REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.309 OF 2001   

Dumpala Chandra Reddy …Appellant

Vs.

Nimakayala Balireddy and Ors. …Respondents

(With Crl. Appeal No. 310 of 2001)

J U D G M E N T

Dr.  ARIJIT PASAYAT, J.

1. Heard learned counsel for the parties.

2 These two appeals, one by the complainant Dumpala

Chandra Reddy and other by the State  of A.P. question the

correctness  of  judgment  of  a Division Bench of  the  Andhra

Pradesh  High  Court,  which,  while  holding  that  the

respondents  were  responsible  for  causing the  death  of  one

Gangireddigari  Kondareddy  (hereinafter  referred  to  as  the

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`deceased')  convicted  them  in  terms  of  Section  326  of  the

Indian Penal Code, 1860 (in short `the IPC') instead of Section

302 IPC as was done by the Trial Court.

3. The  respondents,  along  with  one  Nimmakayala

Lakshmi Reddy  (A-8)  s/o  Obul  Reddy  faced  trial for  alleged

commission of  offences  punishable  under  Sections 148,  302

IPC and in respect of the deceased A-8, Section 114 IPC.  The

Trial  Court  found  the  accused  persons  guilty  of  offences

punishable under Section 148 IPC and also under Section 302

IPC.  For the  former  offence,  they  were  directed  to undergo

sentence  of  two  years  while  for  the  latter  offence,  life

imprisonment was imposed.

4. Substance of the accusations, which led to the trial,

is as follows.

All the accused are residents of Gopalapuram village.

The deceased was a resident of Khajipalli village. PWs 1 and 3

are also the residents of Khajipalli village.  PWs 1 and 2 are

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the brother-in-laws of the deceased and PW3 is the brother of

the deceased.

Originally, all the accused were residents of Khajipalli

village.   Due  to  factions  with  the  deceased’s  family,  the

deceased left the village and migrated to Gopalapuram village.

About  18  years  ago,  A-8's  brother's  son  by  name  Pattabhi

Reddy married one Dumpala Munemma, resident of Khajipalli

village. Munemma is related to the family of the deceased.  A-

2 and A-4 are  brothers of  Pattabhi Reddy.   Pattabhi Reddy

deserted  his  wife  Munemma,  resident  of  Khajipalli  village.

Due to that, there were differences between the accused and

the deceased and also there were criminal cases filed against

each other.

Accused persons were residents of Khajipalli village.

After  filing of  the  criminal cases,  the  accused  left  Khajipalli

and settled down at Gopalapuram.  About 8 years prior to the

murder  of  the  deceased,  A-2,  A-4  and Pattabhi  Reddy  had

stabbed  PW3  and  the  deceased  in  a  lane  by  the  side  of

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Sangham  Lodge  at  Cuddapah.  One  year  thereafter

Nimmakayala Gangireddy was murdered in Khajipalli village in

the fields.  In that regard, a criminal case was filed against the

deceased  family  and  that  criminal  case  ended  in  acquittal.

After  that  incident,  the  deceased’s  family  alongwith  his

brothers settled down at Hyderabad and was running a motor

rewinding workshop.

On the date  of the incident i.e.  on 25.12.1995, the

deceased went to his village from Hyderabad in the morning

hours.  After sometime the deceased took PW-1 and went to

Patha Cuddapah to fix up the marriage date  of his younger

brother.  The deceased and PW-1 took Lingamappli bus at the

village at about 8.30 A.M. and reached Cuddapah at 9.30 A.M.

PW-1  and the  deceased  went  to  see  one  Raja Reddy,  who

happened  to  be  the  proprietor  of  Sangham Medical  Stores,

and  they  found  that  Raja  Reddy  was  not  available  in  the

medical  shop  and  then  they  went  to  Venkateswara  Cloth

Stores.   By  that  time,  Venkateswara  Reddy,  a  resident  of

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Balisingapalli,  was  also  present  in  the  cloth  shop.   The

deceased telephoned Raja Reddy.  After sometime Raja came

to the cloth shop and they were talking to each other at the

shop.   After  sometime,  the  deceased,  PW1,  Venkata Subba

Reddy  and  Raja  Reddy  went  to  Manasa  Hotel  situated  in

Madras road.   At  about 2.30  P.M.  the  deceased  along with

others went to the house of Rama Subba Reddy to fix up the

marriage date of the brother of the deceased.   The marriage

date  was  fixed  as  31.01.1996.   Then  all  of  them  went  to

Venkateswara Cloth shop and again from there, they went to

the  medical  shop  of  Raja  Reddy  and  stayed  there  for

sometime.   Thereafter  the  deceased,  PW-1  and  Venkata

Subba Reddy went to Mithen hotel  for drinking tea. At that

time,  i.e.  around  6.00  p.m.,  Venkata  Subba Reddy  left  the

hotel  to  go  to  his  village.   All  of  them  consumed  tea.

Thereafter, the deceased and PW-1 were going to Machupalle

bus stand through Madras road with a view to catch the bus

going to their village at about 6.30 p.m.

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With a view  to  take  the  cycle  of  Chinna Narsimha

Reddy  who  happened  to  be  the  proprietor  of  Ayyappa

Electricals, situated on the northern side of Madras road, they

went to the said electrical shop.  When the deceased and PW-

1 were climbing the steps of the said electrical shop, A-8 who

is no more instigated the other accused and all the accused

surrounded  the  deceased  and  took  out  daggers  from their

waists and stabbed the deceased.  Finally the deceased fell in

front of Lepakshi Emporium, on the road margin.  When the

deceased fell down, all the accused persons again stabbed the

deceased.   A-5  raised  cries  saying  that  “catch hold  of  that

fellow”.  PW-1 was frightened and ran to the northern lane of

the road.  After sometime, PW1 came to the scene of offence

and saw the  deceased  lying dead  with bleeding  injuries  all

over  the  body.   Thereafter,  PW1 went  to Cuddapah I  Town

Police Station for giving the report.

PW-6, the S.I. of Police,  Cuddapah received  an oral

statement  of  the  incident  from PW1 at about 7.20 p.m. He

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reduced the oral statement into writing and took the signature

of PW1 on the statement.  On the strength of the report given

by  PW1,  PW6  registered  the  case  as  Cr.  No.207  of  1995

against the  accused  for offences  punishable  under  Sections

147, 148 and 302 read with Section 149 IPC.  The copies of

first  information were  sent  to  all  concerned.  At  about  9.30

p.m.  PW-6  visited  the  scene  of  offence  and  recorded  the

statements of PWs 1 to 3 and others.  PW6 collected  MO-1

dagger and MO-2 right leg shoe from the scene of offence.

On 26.12.1995 PW7 the CI of Police, Cuddapah, held

inquest over the dead body of the deceased in the presence of

PW-5 and others.  Ex. P-3 is the inquest report.

On 26.12.1995,  PW-4,  the  Civil  Assistant Surgeon,

District  Headquarters  Hospital  Cuddapah  received  a

requisition  from  the  Station  House  Officer,  I  Town  Police

Station, Cuddapah to conduct autopsy over the dead body of

the deceased.  He commenced the autopsy on the dead body

of  the  deceased  at  about  12.40  P.M.  and  opined  that  the

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deceased died because of multiple injuries and the injuries to

vital  organs.   According  to  the  observation,  he  issued  post

mortem certificate Ex.P-2.

PW-7,  the  CI  of  Police,  Cuddapah,  arrested  the

accused  at  Padagalapalli  bus  stop  on  04.01.1996  at  10.30

a.m.  Thus, on completion of investigation, he filed the charge

sheet on 12.04.1996.

The defence of the accused was of total denial.  It is

also  suggested  by  the  accused  by  way of  defence  that  the

incident did not take  place in the manner suggested  by the

prosecution.   

In  order  to  substantiate  the  accusation,  the

prosecution  examined  PWs  1  to  7.   They  produced  certain

documents  and  they  were  marked  as  Exs.  P-1  to  P-18,

whereas  the  accused  examined  DW-1  and  2  and  they

produced certain documents and they were marked as Ex.D1

and D2.

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P.Ws. 1 and 2 are stated to be eye-witnesses to the

occurrence.   As  noted  above,  the  evidence  of  the  eye-

witnesses was found to be credible, cogent and reliable and on

that basis, conviction was recorded. The respondents filed an

appeal before the High Court. By the impugned judgment, the

High Court found that the respondents were  responsible  for

the  death  of  the  deceased  but  held  that in the  absence  of

charge  under  Section 302  read  with Section 149  IPC,  they

could not  have  been  convicted  under  Section 302 IPC,  but

held that each would be  liable for conviction for the offence

punishable under Section 326 IPC. Sentence of five years RI

and  a  fine  of  Rs.1,000/-  with  default  stipulations  was

imposed.

5. Learned  counsel  for  the  appellant  in  each  case

submitted  that  the  approach  of  the  High  Court  is  clearly

erroneous.  It is submitted that if the accused persons could

not have  been  convicted  under  Section 302 with the  aid of

Section 149 IPC, they could not have also been convicted for

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offence  punishable under Section 326 IPC simplicitor.   It is

pointed  out  that  the  charges  framed  clearly  related  to  the

offence  punishable  under Section 149, though there  was no

specific mention of the provision.  It is also submitted that no

prejudice has been caused to the accused because of the non

mention of the provision.  In fact, the essence of Section 149

IPC was clearly spelt out while framing charge.  

6. Learned  counsel  for  the  accused-respondents

supported  the  impugned  judgment  of  the  High  Court  and

additionally submitted that this is a case for acquittal and the

evidence of PWs. 1 and 2 should not have been acted upon.

7. This Court, in the oft repeated case of Willie (William)

Slaney Vs. State of Madhya Pradesh (1955 (2) SCR 1140) had

highlighted the  aspect of prejudice.   This decision has been

referred to in a large number of subsequent cases dealing with

the question of prejudice in the background of Section 464 of

the Code of Criminal Procedure, 1973 (in short `the Code').  In

Ramkishan and  Ors. Vs.  State  of  Rajasthan (1997  (7)  SCC

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518), it was noted as follows:

“In view of the findings recorded by the learned  Sessions  Judge  and the  material  on record, we are unable to ascribe to the finding that  the  appellants'  intention  was  to  cause death of Bhura deceased.  The finding betrays the  observation  of  the  trial  court  as noticed above.   The  medical  evidence  also  does  not support  the  ultimate  finding recorded  by the trial court and upheld by the High Court.  The offence  in  the  established  facts  and circumstances of the  case  in the  case  of  the appellants would only fall under  Section 304 Part II IPC read with Section 149 IPC and not under  Section  302  IPC.   Indeed  no  specific charge  indicating  the  applicability  of  Section 149 IPC was framed, but all the ingredients of Section 149 IPC were  clearly indicated in the charge  framed  against the  appellants and as held by the Constitution Bench of this Court in Willie  (William)  Slaney  Vs.  State  of  M.P.  the omission  to  mention  Section  149  IPC specifically in the charge is only an irregularity and since no prejudice is shown to have been caused  to the  appellants by that omission it cannot affect their conviction.”

8. Similar view was also taken in  B.N. Srikantiah and

Ors.  Vs.  The  State  of  Mysore  (1959  SCR  496) in  the

background  of  Section  34,  viz-a-viz  Section  149,  IPC.   In

Dalbir Singh Vs. State of U.P. (2004 (5) SCC 334), it was noted

as follows.

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“15. In Willie (William) Slaney Vs. State  of M.P. a Constitution Bench examined the  question  of  absence  of  charge  in considerable detail. The observations made in paras  6  and  7,  which  are  of  general application, are being reproduced below:(AIR P 121 6)

“6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a Code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of  endless  technicalities.   The  object  of  the Code is to ensure that an accused person gets a  full  and  fair  trial  along  certain  well established  and  well-understood  lines  that accord with our notions of natural justice.

If he does, if he is tried by a competent court, if he is told and clearly understands the nature  of  the  offence  for  which  he  is  being tried, if the case against him is fully and fairly explained  to  him and he  is afforded   a  full and   fair  opportunity  of defending himself, then,  provided  there  is  'substantial' compliance with the outward forms of the law, mere  mistakes  in  procedure,  mere inconsequential  errors  and  omissions  in  the trial are  regarded  as venal  by  the  Code  and the trial is not vitiated unless the accused can show  substantial  prejudice.   That,  broadly speaking, is the basic principle  on which the Code is based.

7. Now, here,  as in all procedural laws, certain things are regarded as vital.  Disregard of a provision of that nature is fatal to the trial

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and at once invalidates the conviction.  Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there  was prejudice.   Some  of  these  matters are dealt with by the Code and wherever that is  the  case  full  effect  must  be  given  to  its provisions.

15.1After analysing the provisions of Sections 225,  232,  535  and  537  of  the  Code  of Criminal Procedure, 1898 which correspond to Sections 215, 464(2), 464 and 465 of the 1973 Code, the Court held as under in para 44 of the Report:  (AIR p.128)

“44.Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every  conceivable  type  of  error  and irregularity referable to a charge that can possibly  arise,  ranging  from  cases  in which  there  is  a  conviction  with  no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The code is emphatic that 'whatever' the irregularity  it  is  not  to  be  regarded  as fatal unless there is prejudice.

It  is  the  substance  that  we  must seek.   Courts have  to administer  justice  and justice  includes  the  punishment  of  guilt just as  much  as  the  protection  of  innocence. Neither can be done if the shadow is mistaken for  the  substance  and  the  goal  is  lost  in  a labyrinth  of  unsubstantial  technicalities. Broad vision is required,  a nice  balancing of the  rights of  the  State  and the  protection of society  in  general  against  protection  from harassment to the individual and the risks of

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unjust conviction.

Every  reasonable  presumption  must be  made  in favour of an accused  person; he must be given the benefit of every reasonable doubt.  The same broad principles of justice  and fair play  must  be  brought  to  bear  when determining  a  matter  of  prejudice  as  in adjudging guilt.  But when all is said and done what we are concerned to see  is 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.

If all these elements are there and no prejudice is shown the conviction must stand whatever  the  irregularities  whether  traceable to the charge or to a want of one.”

16. This question was again examined by a three Judge Bench in Gurbachan Singh Vs. State of Punjab in which it was held as under: (AIR p.626, para 7)

“In  judging  a  question  of prejudice,  as  of  guilt,  courts  must  act with  a  broad  vision  and  look  to  the substance  and not to technicalities, and their  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.”

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17. There are a catena of decisions of this Court  on  the  same  lines  and  it  is  not necessary to burden this judgment by making reference  to each one of them.  Therefore,  in view of Section 464 Cr.P.C., it is possible  for the appellate or revisional court to convict an accused  for  an  offence  for  which  no  charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge  whether a failure  of justice has  been  occasioned,  it  will  be  relevant  to examine  whether  the  accused  was  aware  of the basic ingredients of the offence  for which he is being convicted and whether main facts sought  to  be  established  against  him  were explained to him clearly and whether he got a fair chance to defend himself.”   

9. The High Court, as has been rightly pointed out by

learned counsel for the appellant, lost sight of the fact that if

its view is accepted  in the absence  of charge  under  Section

149, conviction in terms of Section 326 could not have been

done.

10. The  High Court  appears  to  have  misconstrued  the

decision of this Court in  Rewa Ram Vs.  Teja and Ors.   (AIR

1998 SC 2883).  In that case, the High Court held that the

accused persons could be held guilty only under Section 326

IPC, particularly, when it was stated in the charge that their

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common  object  was  to  assault  the  deceased  and  commit

rioting with deadly weapons.  The position is entirely different

here.  In fact, while framing charge and combined reading of

charge No.1 and charge No.3 makes it clear, that the Court

specified that the accused persons were members of unlawful

assembly and in prosecution of  the  common object  of  such

assembly,  i.e,  in  order  to  commit  murder  of  the  deceased,

committed the offence and at that time they were armed with

daggers etc. to bring in the application of Section 148 IPC.  In

Charge No.3, there is a specific reference to the transactions,

as mentioned  in the  first charge,  and the  object  to  commit

murder by hacking on the body of the deceased with daggers

and  causing  his  intentional  death  and  thereby  committing

offence  punishable  under  Section  302  IPC.  Therefore,  the

charge  in relation to offence  punishable  under  Section 149

IPC is not only implicit but also patent in the charges.

11. Apart from the question of prejudice, this aspect has

also been lost sight of by the High Court.   

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12. The inevitable result is that the appeals deserve to be

allowed,  and we direct so.  The judgment of the Trial Court

stands restored and that of the High Court stands set aside.

The respondents shall surrender to custody forthwith to suffer

remainder of sentence, if any.

                         …………………….....................J.            (Dr. ARIJIT PASAYAT)              

      …… ……………………...............J.

 (P. SATHASIVAM)

 ……… ….……….......................J.

 (Dr. MUKUNDAKAM SHARMA) New Delhi,      July 14, 2008

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