Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 772 OF 2008

Sanichar Sahni …. Appellant

Versus

The State of Bihar …. Respondent

J U D G M E N T

Dr. B.S. Chauhan, J.  

1. This  appeal  has been filed  against  the  judgment  and order  

passed by the High Court of Patna in Criminal Appeal No.328 of  

2003 affirming the judgment and order of the trial court dated 30th  

May, 2003 and order of sentence dated 2nd June, 2003 passed in  

Sessions Trial No.122 of 2002.  

2. The facts and circumstances giving rise to this appeal are that  

a  First  Information  Report  was  lodged  on  12.10.2001  against  

Munilal  Sahni,  Biswanath  Sahni,  brother  and  father  of  the  

appellant  respectively.   Golu Paswan and Kishore  Thakur  under  

Sections  394/302/34  of  the  Indian  Penal  Code,  1860  (in  short  

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“IPC”) and Section 27 of the Arms Act for the murder of deceased  

Bhola Chaudhary.  During the course of investigation, it came to  

light that the appellant had conspired with his father and brother to  

finish Bhola Chaudhary.  Charge sheet was filed against Munilal  

Sahni, Biswanath Sahni and the appellant.  At the time of framing  

of the charge on 21.11.2002, the appellant was charged only under  

Section 120-B IPC alone  and the co-accused Munilal  Sahni  was  

charged  under  Sections  302/34,  394  and  412  of  the  IPC  and  

Section 27 of  the IPC.  Accused Bishwanath Sahni  was charged  

under Section 302/34 IPC. None of the co-accused was charged for  

conspiracy  under  Section  120-B  IPC.  The  appellant  was  not  

charged  with  any  other  offence  except  under  Section  120-B  IPC  

though the specific case of the prosecution was that the appellant  

hatched  the  criminal  conspiracy  with  his  father  and  brother  to  

eliminate  Bhola  Chaudhary.  On  conclusion  of  the  trial,  the  

appellant was convicted vide judgment and order dated 30.5.2003  

under Section 120-B IPC and was sentenced to undergo rigorous  

imprisonment  for  life.  Accused  Bishwanath  Sahni  was  convicted  

under Section 302/34 IPC and sentenced to R.I. for life.  Accused  

Munilal Sahni was convicted under Sections 302, 394 and 412 of  

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the IPC and sentenced to undergo R.I. for life under Section 302,  

R.I.  for  seven  years  under  Section  394  and  R.I.  for  three  years  

under Section 412 IPC.  He was further convicted under Section 27  

of the Arms Act and sentenced to undergo R.I. for one year.   

3. Being  aggrieved,  all  the  convicted  persons  including  the  

present  appellant  filed  appeal  which  has  been  decided  by  the  

impugned judgment and order dated 13.12.2007 by which the High  

Court acquitted Bishwanath Sahni, giving benefit of doubt. Appeal  

of the present appellant and Munilal Sahni was dismissed.  

4. Munilal Sahni challenged the judgment and order of the High  

Court  and his  special  leave  petition  has been dismissed by  this  

Court.  Hence, the present appeal by appellant, Sanichar Sahni.

5. Mr. A.P. Sahay, learned counsel appearing for the appellant  

has  submitted  that  there  was  no  evidence  for  hatching  the  

conspiracy so far as the appellant is concerned.  The appellant had  

falsely  been implicated in this  case and no charge of  conspiracy  

under Section 120B IPC had been framed against any of the co-

accused  and  hence  it  is  not  permissible  in  law  to  convict  the  

appellant under the said charge as he has also not been charged for  

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any other offence.  No person can conspire with himself.  Therefore,  

the appeal deserves to be allowed.  

6. On the  other  hand,  Shri  Chandan  Kumar,  learned  counsel  

appearing  for  the  State  of  Bihar  has  vehemently  opposed  the  

submission made by the counsel for the appellant submitting that  

there  was  sufficient  evidence  against  the  appellant  for  collecting  

“Rangdari” from the deceased Bhola Chaudhary.  However he could  

not pay at one time, when the appellant was in jail for committing  

some other offence. Appellant came from jail to the Court and his  

father and brother met him there.   The appellant conspired with  

them to eliminate Bhola Chaudhary.  If there has been some defect  

in framing of the charge, unless the appellant shows what prejudice  

has been caused to him, judgment and order of conviction passed  

by  the  courts  below  should  not  be  interfered  with  on  such  

technicalities.  The  appeal  has  no  merit  and  is  liable  to  be  

dismissed.  

7. We have considered the  rival  submissions made by learned  

counsel  for  the parties  and perused the record.   Admittedly,  the  

appellant had been charged under Section 120-B IPC and under no  

other  provision of  law.   The  other  co-accused had been charged  

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under  different  provisions  but  none  of  them  had  been  charged  

under  Section  120B  IPC.   So  far  as  the  evidence  on  record  is  

concerned, two witnesses were examined on the point of conspiracy,  

namely,  Ashok  Paswan  PW.2,  and  Ashok  Kumar  Verma  PW.5.  

Learned counsel  for  the parties  had taken us to the depositions  

thereof.   Both  the  said  witnesses  had  fully  supported  the  

prosecution case so far as point of conspiracy to eliminate Bhola  

Chaudhary is concerned. It is strange that in the cross-examination  

of Ashok Paswan PW.2, the defence did not make even a suggestion  

that he had been deposing falsely to implicate the appellant.  When  

the statement of the appellant under Section 313 of the Code of  

Criminal Procedure (in short “Cr.P.C.”)  was recorded on 5.4.2003  

and was asked about conspiracy, he simply replied that he had not  

conspired  and  he  would  produce  the  defence  witnesses  in  this  

regard.   We  fail  to  understand  as  where  was  the  question  of  

adducing evidence after recording of the statement of the accused  

under Section 313 Cr.P.C.   

8. As  per  the  trial  court  judgment  the  money  bag  containing  

Rs.11,000/-  looted  from  the  deceased  Bhola  Chaudhary  was  

recovered from accused Munilal Sahni, the brother of the appellant  

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and it was established before the trial court that the appellant had  

been demanding “Rangdari” from the deceased on telephone.  The  

Trial Court believed Ashok Paswan PW.2 and Ashok Kumar Verma  

PW.5, so far as the conspiracy part is concerned as they had stated  

that  in  their  presence the  appellant  had directed  his  father  and  

brother that if Bhola Chaudhary deceased would not pay amount  

he should be finished.  Both the witnesses had given satisfactory  

explanation  for  being   present  in  Hazipur  Court  at  the  relevant  

point of time.  The documentary evidence had been produced to the  

satisfaction  of  the  court  to  corroborate  their  evidence  that  the  

appellant  was  present  in  the  Court  on  12.10.2001  to  appear  in  

Sessions Trial No.116/2001. It was also satisfactorily proved that  

appellant  had talked  with  co-accused,  his  brother  and father  in  

between the place court Hajat and the court. The trial court found  

no reason to disbelieve the depositions of Ashok Paswan PW.2 and  

Ashok Kumar Verma PW.5.  The Trial Court came to the conclusion  

that appellant Sanichar Sahni hatched the conspiracy and directed  

his brother and father to finish Bhola Chaudhary in case the money  

was  not  paid  by  him  and  consequently,  Bhola  Chaudhary  was  

murdered by the co-accused on 12.10.2001 at 8.45 P.M.   

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9. In appeal, the High Court dealt with the issue of conspiracy  

elaborately  and  found  the  evidence  of  Ashok  Paswan  PW.2  and  

Ashok  Kumar  Verma  PW.5  fully  trustworthy  and  came  to  the  

conclusion that Bhola Chaudhary was murdered by the co-accused  

in conspiracy for non-fulfillment of demand of “Rangdari”.  The High  

Court held that both the said witnesses were present on that date  

i.e.  12.10.2001 in the court premises Hazipur and the  appellant  

Sanichar Sahni was also produced in the Court in custody and he  

met his father and brother and it was in their presence that he had  

asked the co-accused to finish Bhola Chaudhary if “Rangdari” was  

not paid.   

10. The above concurrent findings of fact recorded by the courts  

below regarding the conspiracy and murder of Bhola Chaudhary by  

the  co-accused  do  not  require  to  be  interfered  with  as  there  is  

nothing on record to show that the said findings are perverse.  

11. So far  as the issue of  framing charge under  Section 120-B  

against  the  appellant  and  non-framing  the  charge  of  conspiracy  

against other co-accused is concerned, the High Court had taken  

up the issue but in view of the sufficient material on record to prove  

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the guilt, did not consider it proper to deal with it elaborately.  The  

High Court has held as under:

“So  far  as  legality  of  conviction  of  appellant  Sanichar Sahni is concerned, we have no doubt in our  mind that the evidence as discussed above is sufficient to  fasten  liability  upon  him  for  making  conspiracy  to  commit murder of victim Bhola Chaudhary.  The Court  below has rightly convicted this appellant under Section  120B IPC.”

12. Learned counsel  Mr.  A.P.  Sahay, appearing for  the appellant  

has placed reliance upon the judgment of this Court in Topandas v.  

State of Bombay A.I.R. 1956 S.C. 33 wherein it has been held that  

in a case of conspiracy there ought to be two or more persons who  

must  be  parties  to  an agreement  and it  is  trite  to  say  that  one  

person alone can never be held guilty for criminal conspiracy for the  

simple reason that one cannot conspire with oneself.  However, in  

the said case four persons were charged for having committed the  

offence  under  Section  120-B  IPC  and  out  of  them  three  were  

acquitted of the charges, remaining one could not be convicted to be  

guilty of the offence of criminal conspiracy.  Same view has been  

reiterated in  Fakhruddin Vs.  State of Madhya Pradesh AIR 1967  

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SC 1326, wherein this Court  held that the offence of conspiracy  

cannot survive the acquittal of the alleged co-conspirators.   In that  

case also if  the other co-accused were to be acquitted of  all  the  

charges, this Court held that the appellant Fakhruddin could not be  

convicted  unless  there  was  a  proof  that  he  had  conspired  with  

person  or  persons  other  than  his  co-accused.   Both  the  above  

referred to cases had been where all co-accused had been acquitted  

of the charges of conspiracy.  Thus the said cases referred to and  

relied  upon  by  the  learned  counsel  for  the  appellant  are  of  no  

assistance  as  the  facts  involved  in  the  instant  case  are  quite  

distinguishable.  At the most it can be held that the charge had not  

been framed properly.  It is also not the case where the appellant  

can take the plea that he was not aware as what was the charge  

against  him  and  what  defence  he  could  lead.   There  had  been  

evidence of hatching the conspiracy of impeccable character. On the  

point  of  conspiracy  the  courts  below  have  recorded  the  finding  

against the appellant.  

13. In  State of A.P. v.  Thakkidiram Reddy, (1998) 6 SCC 554,  

this Court considered the issue of not framing the proper charges.  

In that case averment had been raised that charges have not been  

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framed against the accused persons in accordance with Section 211  

Cr.P.C..  In that case the charge had been framed under Section  

148 IPC, though it was alleged that they were the members of an  

unlawful assembly, it was not mentioned what its common object  

was.  Besides, it was contended, a charge under Section 302 IPC  

simpliciter was framed against all the accused persons and not with  

the aid of Section 149 IPC for which they were convicted by the trial  

court.  This Court repealed the contention observing as under:

“10. Sub-section (1) of Section 464 of the Code of  Criminal  Procedure  1973  (“Code”  for  short)  expressly  provides that no finding, sentence or order by; a court of  competent jurisdiction shall be deemed invalid merely on  the ground that no charge was framed or on the ground  of  any  error,  omission  or  irregularity  in  the  charge  including  any  misjoinder  of  charges,  unless  in  the  opinion of the court of appeal, confirmation or revision, a  failure  of  justice  has  in  fact (emphasis  supplied)  been  occasioned thereby.  Sub-section (2) of the said section  lays  down  the  procedure  that  the  court  of  appeal,  confirmation or revision has to follow in case it is of the  opinion  that  a  failure  of  justice  has  in  fact  been  occasioned.  The other section relevant for our purposes  is  Section  465  of  the  Code;  and it  lays  down that  no  finding, sentence or order passed by a court of competent  jurisdiction  shall  be  reversed  or  altered  by  a  court  of  appeal, confirmation or revision on account of any error,  omission or irregularity in the proceedings, unless in the  opinion of that court, a failure of justice has in fact been  occasioned.   It  further  provides,  inter  alia,  that  in  

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determining whether any error, omission or irregularity  in  any  proceeding  under  this  Code  has  occasioned  a  failure of justice, the Court shall have regard to the fact  whether the objection could and should have been raised  at an earlier stage in the proceedings.”

The Court further held that in judging a question of prejudice, as of  

guilt, court must act with a broad vision and look to the substance  

and not to technicalities,  and its main concern should be to see  

whether the accused had a fair trial, whether he knew what he was  

being tried for,  whether  the main facts  sought to  be established  

against him were explained to him fairly and clearly and whether he  

was given a full and fair chance to defend himself.  In the said case  

this Court ultimately came to the conclusion that in spite of defect  

in  framing  of  charge,  as  no  prejudice  had  been  caused  to  the  

convicts, no interference was required.

14. A Constitution Bench of this Court in Willie (William) Slaney,  

v.  State of M.P., AIR 1956 SC 116, considered the issue of non-

framing of charges properly and conviction of an accused for the  

offences  for  which  he  has  not  been  charged  and  reached  the  

conclusion as under:-

“In such a situation, the absence of a charge under one  or other of the various heads of criminal liability for the  offence cannot be said to be fatal by itself, and before a  

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conviction for the substantive offence, without a charge,  can be set aside, prejudice will have to be made out.  ….  ….. …. If it is so grave that prejudice will necessarily be  implied or imported, it may be described as an illegality.  If the seriousness of the omission is of a lesser degree, it  will be an irregularity and prejudice by way of failure of  justice will have to be established”.   

15. This Court in  Gurpreet Singh v.  State of Punjab, (2005) 12  

SCC 615 referred to and relied upon its earlier judgments in Willie  

(William)  Slaney,  (supra)  and  State  of  A.P. v.   Thakkidiram  

Reddy, (supra) and held that unless there is failure of justice and  

thereby  the  cause  of  the  accused  has  been  prejudiced,  no  

interference  is  required  if  the  conviction  can  be  upheld  on  the  

evidence led against the accused.  The Court should not interfere  

unless it is established that the accused persons were in any way  

prejudiced due to the errors and omissions in framing the charges  

against him.  

16. A  similar  view  has  been  reiterated  by  this  Court  in  Ramji  

Singh v. State of Bihar (2001) 9 SCC 528.

17. Therefore,  the  law on  the  issue  can  be  summarized  to  the  

effect  that  unless  the  convict  is  able  to  establish  that  defect  in  

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framing the charges has caused real prejudice to him and that he  

was not informed as what was the real case against him and that he  

could not defend himself  properly,  no interference is required on  

mere technicalities.  Conviction order in fact is to be tested on the  

touchstone of prejudice theory.

18. In  the  instant  case  learned  counsel  for  the  appellant,  Mr.  

Sahay could not point out as to what prejudice has been caused to  

the appellant.  Charge has been framed against the appellant under  

Section 120-B IPC.  He never raised any grievance against the same  

at the time of framing of the charge or during the course of the trial  

or by filing any petition for quashing the charge.  The issue was not  

agitated  before  the  High  Court  also.   On  this  very  issue  of  

conspiracy, the prosecution led evidence of impeccable character of  

two  witnesses,  namely,  Ashok  Paswan  PW.2  and  Ashok  Kumar  

Verma PW.5.  The appellant was given full opportunity to defend  

himself only on this very point of conspiracy as there was no other  

allegation against him.  He was asked specific question by the trial  

court  on  the  point  of  conspiracy  while  recording  his  statement  

under Section 313 Cr.P.C.  Therefore, it cannot be held even by any  

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stretch of imagination that any prejudice has been caused to the  

appellant on this very issue.   

19. Thus, in view of the above, we do not find any force in this  

appeal.  The appeal is, accordingly, dismissed.  

…….…………………………….J. (Dr. Mukundakam Sharma)

…….…………………………….J. (Dr. B.S. Chauhan)

New Delhi; 26th May, 2009.

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Digital Proforma

1. Case No. : Criminal Appeal No. 772 of 2008

2. Date of decision : 26.5.2009

3. Cause Title : Sanichar Sahni vs.

The State of Bihar

4. Coram : Hon’ble Dr. Justice Mukundakam Sharma Hon’ble Dr. Justice B.S. Chauhan

5. Date of C.A.V. : 20.5.2009

6. Judgment delivered Hon’ble Dr. Justice B.S. Chauhan by :

7. Nature of judgment : Reportable Whether reportable

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