[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1098-1099 OF 2003

WITH CRIMINAL APPEAL NOs.   1100-1101   OF   2003   

CHANDRAWATI                                ….Appellant

                VERSUS

RAMJI TIWARI & ANR. ETC.                   ….Respondent (s)

O R D E R

1. This order will  dispose of  Criminal Appeal Nos. 1100-

1101 of 2003 titled State of  U.P. Vs. Ramji Tiwari & Ors.  and  

Criminal Appeal Nos. 1098-1099 of 2003 titled Chandrawati Vs.  

Ramji Tiwari & Anr. Etc.

2. The facts have  been taken from the  appeals  filed  by  

Chandrawati  Devi,  the  complainant  in  Criminal  Appeal  

Nos.1098-1099 of 2003.

3. On 31st October, 1997 the accused were removing hay  

from the land in front of the house of Nazir,  a neighbour of  

Chandrawati.  Nazir objected to this action and started abusing  

them  and  tried  to  assault  them  as  well.   On  hearing  the  

altercation Chandrawati's  husband Bindeshwari  and son Raj  

Kumar  came  out  to  intervene  on  which   Godavari-accused  

brought a double barrel (DBBL) gun and cartridges and gave  

them to accused Ramji Tiwari and exhorted him to kill Nazir  

and  the  others  to  settle  the  dispute  for  all  times  to  come.  

Ramji Tiwari first fired a shot at Nazir and a second shot at  

Smt. Kunna (PW-4) wife of Hazrat Ali.  On hearing the sound of

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the  firing,  the  other  accused  namely  Virendra  Tiwari,  

Chandreshwar Tiwari and Laxmi further exhorted Ramji Tiwari  

and shouted  that  Bindeshwari  was also  coming from a side  

lane and he too should not be spared.  On this Ramji Tiwari  

fired  a  shot  at  Noor  Jahan,  Bindeshwari  and  his  son  Raj  

Kumar.  Nazir and Bindeshwari died at the spot whereas Raj  

Kumar,  Smt. Kunna and Noor Jahan were  seriously injured.  

The  incident  was  witnessed  by  Nawwa,  Narad,  Laxmi  and  

others.  Chandrawati lodged a FIR at about 10.40 a.m. on 31st  

October,  1997.  The bodies of the deceased,  and the injured  

who were  in serious condition, were  removed to the  Primary  

Health  Centre  at  Etwa  but  Raj  Kumar  succumbed  to  his  

injuries  on the  way and  Noor  Jahan too succumbed  to  her  

injuries a little later.    On the completion of the investigation,  

the case was committed to the Court of Sessions.  The Court of  

Sessions framed  charges  inter  alia  under  Sections 302/149,  

307/149, 147, 148 and 307 of the Indian Penal Code.  Relying  

on the evidence of the injured witnesses and that of the doctor  

and keeping in view all the circumstances, the Sessions Judge  

vide  his  judgment  dated  8th August,  2000  convicted  Ramji  

Tiwari under Section 302 and sentenced him to death.  The  

other  accused  were  convicted  under  Sections 302 read with  

109  of  the  Indian  Penal  Code  and  were  sentenced  to  

imprisonment for life.

4. The matter was thereafter taken to the High Court in  

appeal by the accused and was also referred on the question of  

the death sentence under Section 366 of the Code of Criminal  

Procedure. The High Court declined the murder reference but  

dismissed the appeal  filed by Ramji Tiwari.  The High Court  

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also  acquitted  the  other  four  appellants  relying  on  the  

Judgment  of  this  Court  in  Wakil  Yadav  Versus  State  of  Bihar [2001 SCC (Crl.) 149]  held :

 “The appellant having faced trial for being a member  of an unlawful assembly which achieved the common  object of  killing the deceased, could in no event be  substantively convicted for offence under Section 302  I.P.C with the aid of Section 109 I.P.C. There was ob- viously thus not only a legal flaw but also a great  prejudice to the appellant in projecting his defence.   He, on such error committed by the High Court, has  rightly earned his acquittal.”  

5. Two  appeals  have  been  filed  in  this  Court,  one  by  

Chandrawati, the complainant, challenging the acquittal of the  

four accused as also seeking a death sentence for Ramji Tiwari,  

and the other by the State of U.P. making the same prayer.  We  

also see from the record that the SLP filed by Ramji Tiwari has  

been dismissed at the initial stage.

6. Mr. Das, the learned Senior Counsel for the appellant-

State of U.P. in Criminal Appeal Nos.1100-1101 of 2003 at the  

very initial stage  argued that the High Court  had taken a very  

hyper technical view in the matter and had placed reliance on  

the judgment in  Wakil Yadav's case (supra) but the judgment  

aforesaid  had ignored the provision of Section 464 of the Code  

of Criminal Procedure whereby  in order to vitiate a trial and a  

conviction  on  the  ground  of  the  non  framing   or  incorrect  

framing   of  the  charge,  prejudice  had  to  be  shown by  the  

accused.  It has further been highlighted that this court in AIR  

1956 SCC 116 [William Slaney Vs. State of M.P.],   2004 (5) SCC  

334 [Dalbir Singh Vs. State of U.P.] and 2006 SCC (2) 450 [Radha  

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Mohan Singh Vs. State of U.P.] had held that a conviction could  

be recorded even if a charge had not been framed  until and  

unless  the  accused   could  show  prejudice  and  as  in  this  

matter  the  facts  of  the  case  clearly  revealed  no  prejudice  

whatsoever as the accused were fully aware of the case that  

was being put against them, the High Court  was not justified  

in making an order of acquittal. He alternatively prayed that if  

this  Court  was  of  the  view  that  prejudice  had  indeed  been  

occasioned the matter should be remitted to the Trial court for  

fresh trial from the stage of the framing of the charge.   The  

learned counsel for the respondents has however cited  2003  (11)  SCC 534 [Sohan Lal @ Sohan Singh & Ors.  Versus  

State  of  Punjab]  and  1994  (6)  SCC  535  [Joseph  Kurian  Philip Jose Versus State of Kerala] to contend that prejudice  was implicit as a charge under Section 109 of the IPC had not  

been framed.     

7. We have heard learned counsel for the parties at length  

and  gone  through  the  record.   We  find  that  the  matter  is  

covered in favour of respondent accused by several judgments  

including Wakil Yadav’s case (supra).

8. In  Sohan Lal’s  case (supra), similar observations had  been made.  In this case a charge under Section 304 (b) of the  

Indian Penal Code simplicitor had been framed and the Trial  

Court had not framed any charge under Section 302 or 109 of  

the Indian Penal Code.   It was held that in the absence of a  

charge under Section 302  or Section 109 of the Indian Penal  

Code,  it  would  cause  prejudice  to  the  accused  if  he  was  

convicted for either of those offences at the end of the trial.

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In para 7 it was observed as under:-

“Section 211 of  the Code of  Criminal Procedure re- quires that the charge against the accused be precise- ly stated. Sub-section (4) of Section 211 of the Code  of  Criminal Procedure  specifically requires  that  the  law and section of the law against which the offence  is said to have been committed shall be mentioned in  the charge. The learned counsel for  the respondent  State, relying on Section 464 of the Code of Criminal  Procedure, urged that failure to specify Section 109 in  the charge-sheet against Sohan Lal was a mere irreg- ularity which would not vitiate the trial without proof   of  prejudice to  the accused.  We cannot agree.  The  learned counsel for  the accused is fully  justified in  his submission that failure to frame a charge with re- gard to the substantive offence  of  Section 109 IPC  has certainly prejudiced the accused in the trial court.  The accused Sohan Lal @ Sohan Singh was called  upon to face trial only for  the charge under Section  304-B IPC. Neither a charge under Section 302 IPC  nor under Section 109 IPC, was levelled against him  in the charge-sheet. In the absence of a charge being  framed against the accused Sohan Lal under Section  302 or 109 IPC, it would certainly cause prejudice to   him, if he is convicted under either of these offences   at the end of the trial. In our view, it was not permis- sible for the trial court to convict the first accused So- han Lal for the offence under Section 302 read with  Section  109  IPC.  His  conviction  under  Section  302  read with Section 109 IPC is, therefore, illegal and is  liable to be set aside. The High Court erred in uphold- ing the conviction of Sohan Lal @ Sohan Singh under   Section 302 read with Section 109 IPC and dismiss- ing his appeal.”

9. Wakil Yadav’s case and Sohan Lal’s case have their  

basis in the  judgment  of  this  Court in  Joseph Kurian  case  

(supra).  In this case the basic premise that an accused who  had not been charged for the substantive offence could not be  

convicted  thereunder  and  if  the  direct  involvement  of  an  

accused in a crime could not be established, it was difficult to  

hold that such an accused could be convicted of an abetment  

of that offence in the absence of a charge and to do so would  

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cause a grave miscarriage of justice.

10. Mr. Das has, however, referred us to the judgment of  

this Court in Willian Slaney’s case (supra) to submit that in the  

absence  of  a  charge  under  Sections 302/109,  there  was no  

prejudice and the conviction could be recorded in the absence  

of a specific charge.

11. In  William Slaney’s  case (supra),  the two accused had  

been charged under Section 302/34 of the Indian Penal Code.  

There was no charge under Section 302 simplicitor against any  

of the two accused.  One of the accused having been acquitted,  

the question arose as to whether the conviction of the other  

accused  under  Section  302  was  legally  tenable.   The  

Constitution Bench of this Court observed that merely because  

a charge had not been framed would not mean that conviction  

could not be recorded unless prejudice could be shown by the  

accused and this was a factor which would depend on the facts  

of each case.  It must be noted that in Williams Slaney’s case, a  

charge  under  Section  302/34  had  been  framed  and  that  

Section 34 of  the  Indian Penal  Code  does  not  constitute  an  

offence.   In the present  matter,  there  was no charge for the  

offence  under  Section  109  of  the  Indian  Penal  Code.   This  

principle  was reiterated  in Radha Mohan Singh’s and Dalbir  

Singh’s Cases (supra).

12. It must therefore be held that as two of the accused,  

Ramji Tiwari and Virendra Prasad Tiwari, had claimed the right  

of private defence and had also produced defence evidence in  

accordance with this plea, the non-framing of a charge under  

Section 109 of the Indian Penal Code against the four acquitted  

accused had clearly caused prejudice to them.

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13. Mr.  Das  has  made  an alternative  submission that  if  

this court was of the opinion that a failure of justice had in fact  

been  occasioned,  the  matter  should be  remitted  to  the  trial  

court under  Section 464 of the  Criminal Procedure  Code for  

fresh trial from the point of the framing of the charge in the  

light of the fact that the incident pertained to four murders.  

We are unable to accept this submission for the reason that the  

incident happened in the year 1997, the trial court rendered its  

Judgment in August, 2000 and the High Court two years later.  

It would, therefore, not be in the interest of justice to remand  

the case more particularly as it is the admitted position that  

the only role attributed to the four is exhorting Ramji Tiwari to  

kill the enemy.

14. In  the  light  of  the  above  facts,  the  appeals  are  

dismissed.

….……………………..J. (HARJIT SINGH BEDI)

…………………….J. (J.M. PANCHAL)

NEW DELHI, JANUARY 14, 2010.

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