Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1696 OF 2010 [Arising out of SLP (CRL.) No.4624 of 2010]

Main Pal … Appellant

Vs.

State of Haryana … Respondent

J U D G M E N T  

R. V. RAVEENDRAN J.,  

Leave granted.  

2. An FIR was registered on 23.3.1996 on the statement of one Prakashi  

Devi.  She  stated  that  on  the  night  of  22/23.3.1996,  while  she  and  her  

daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM,  

the appellant jumped over the front wall of her house and broke the bulbs  

and ran away;  that at that time, no male member was present in the house  

except the children; that around 00.30 AM the appellant again came into her  

house and touched her daughter-in-law Sheela Devi who woke up and raised

an  alarm;  and  that  the  appellant  immediately  ran  away.  The  police  

investigated into the said complaint and submitted a report under Section  

173 of the Code of Criminal Procedure (for short ‘the Code’). On that basis,  

the  following charge was framed  by the  Judicial  Magistrate,  First  Class,  

Karnal, against the appellant –  

“That  on 23.3.1996,  after  having made preparation for  causing hurt  or  assault,  you committed house trespass into the house of  Smt. Prakashi  Devi, and thereby committed an offence punishable under section 452 IPC  within my cognizance. Secondly on the same date, time and place, you  assaulted  and used  criminal  force  against  abovenamed Prakashi  Devi  with  intent  to  outrage  her  modesty  and  thereby  committed  an  offence  punishable under section 354 IPC and within my cognizance.

And I hereby direct that you be tried on the above said charge by this  court.”

        (emphasis supplied)

When the said charged was read over and explained to the  appellant,  

he pleaded not guilty to the said charge and claimed trial.

3. Prakashi  Devi  was  examined  as  PW-1.  She  reiterated  what  was  

recorded in the FIR, that the appellant came into the house around 11.30 PM  

and broke the bulbs, that he came again around 00.30 AM and touched her  

daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and  

raised an alarm, the appellant ran away. In her cross-examination, Prakashi  

Devi stated that she has five sons; that only her husband and one son named  

Mahavir were staying with her; that the other four sons were married and  

2

were not staying with her; that on that night, her husband was away in the  

fields and her  son Mahavir  was also not  present  in the house.  However,  

when  confronted  with  her  statement  recorded  in  the  FIR,  she  admitted  

having stated that when the appellant had come first time at around 11.30  

PM and broke the outside bulbs, her son woke up and went out of the house.  

She also admitted that the appellant did not touch her nor teased her nor  

abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and  

stated  that  she  was  married  to  one  Jaibir  who  worked  in  the  military  

services; that at 11 to 11.30 PM the accused scaled the door and broke the  

bulbs in the verandah of her house; that when she identified the accused and  

raised an alarm the accused ran away; that again he came around 00.30 AM  

by scaling the door and caught her hand; and that when she raised an alarm  

and when her mother-in-law woke up, he ran away. It was elicited in her  

cross-examination that the accused did not go towards her mother-in-law nor  

say  anything  to  her  mother-in-law;  that  she  used to  come to  the  village  

where her in-laws were residing, only when her husband came home; and  

that  the  house  of  her  father-in-law was surrounded by the  houses  of  his  

brothers and their sons. Both PW1 and PW2 stated that the house of the  

accused was at a distance of 15-16 houses from the house of Prakashi Devi;  

that the accused had never come into their house earlier; that their family  

3

and the  accused were  not  on visiting terms with  each other  even during  

functions, marriages or death, though they were on visiting terms with others  

in the village. PW 2 also stated that she did not know the particulars of the  

dispute between the accused and her in-laws. The investigating officer was  

examined as PW-3. The accused examined a witness Ex-Sarpanch of the  

village as DW-1 and he stated that there was a quarrel between the accused  

and complainant’s son Surinder about a water course and subsequently he  

came to know that the quarrel was converted into a false case against the  

accused by registering a false allegation that the accused had outraged the  

modesty of a woman.  

4. The learned Magistrate by judgment dated 2.2.2001, held the accused  

guilty of offences under sections 452 and 354 Cr.PC and sentenced him for  

rigorous imprisonment for six months and a fine of Rs.1,000/- in default  

thereof simple imprisonment for one month. The appeal filed by the accused  

was  dismissed  by  the  Addl.  Sessions  Judge  on  20.2.2002.  The  criminal  

revision  filed  by  the  appellant  was  disposed  of  by  the  High  Court  on  

16.3.2010 upholding the conviction but reducing the sentence from six to  

four months rigorous imprisonment. That order is challenged by the accused.

4

5. One of the contentions urged by the accused before the appellate court  

and High Court was that the charge against him was that he attempted to  

outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to  

show that he attempted to outrage the modesty of her daughter-in-law Sheela  

Devi. He contended that as the charge levelled against him was not proved,  

and  as  he  was  not  required  to  defend  himself  against  a  charge  that  he  

assaulted and outraged the modesty of Sheela Devi, he ought to have been  

acquitted. This was negatived by the appellate court and High Court holding  

that an accused cannot take advantage of a technical defect in framing the  

charge. It was held that mentioning the name of Prakashi Devi instead of the  

name of Sheela Devi in the charge was an error that did not prejudice the  

accused.  

6. The following question therefore arises for our consideration: When  

the charge is that the accused assaulted ‘X’ and outraged her modesty, but  

the evidence is that he assaulted ‘Y’ to outrage her modesty, can the accused  

be punished, for having assaulting and outraging the modesty of ‘Y’, even  

though he was not charged with any offence with reference to ‘Y’, on the  

ground that the error or omission in the charge did not prejudice the accused  

or result in failure of justice.  

5

7. Section 211 of the Code relates to the contents of the charge. It inter  

alia provides that every charge under the Code shall state the offence with  

which the accused is  charged. Section 212 of the Code provides that the  

charge shall contain the particulars as to the time and place of the alleged  

offence, and the person (if any) against whom, or the thing (if any) in respect  

of which, it was committed, as are reasonably sufficient to give the accused  

notice  of  the  matter  with  which he is  charged.  Section 215 of  the  Code  

however clarifies that no error in stating either the offence or the particulars  

required to be stated in the charge, and no omission to state the offence or  

those  particulars,  shall  be  regarded  at  any stage  of  the  case  as  material,  

unless the accused was in fact misled by such error or omission, and it has  

occasioned a failure of justice.  Section 464 of the Code relates to effect of  

omission to frame, or absence of, or error in, charge. Sub-section (1) thereof  

provides  that  no  finding,  sentence  or  order  of  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 charge, unless, in the opinion of the court of  

appeal,  confirmation  or  revision,  a  failure  of  justice  has  in  fact  been  

occasioned thereby. Sub-section (2) of sec. 464 provides that if the court of  

6

appeal, confirmation or revision is of opinion that failure of justice has in  

fact been occasioned, it may --

(a)    in the case of an omission to frame a charge, order that a charge be  framed and that the trial be recommended from the point immediately after  the framing of the charge;  

(b) in case of an error, omission or irregularity in the charge, direct a new  trial to be had upon a charge framed in whatever manner it thinks fit.  

8. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC  

116] this  court  explained the concepts  of  “prejudice to the accused” and  

“failure of justice” thus:-

“(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 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.”

7

This  Court  then  examined  the  question  as  to  when a  procedure  adopted  

could be said to have worked actual injustice to the accused and held :  

“Except  where  there  is  something  so  vital  as  to  cut  at  the  root  of  jurisdiction or so abhorrent to what one might  term natural  justice,  the  matter resolves itself to a question of prejudice. Some violations of the  Code  will  be  so  obvious  that  they  will  speak  for  themselves  as,  for  example, a refusal to give the accused a hearing, a refusal to allow him to  defend himself, a refusal to explain the nature of the charge to him and so  forth.

These go to the foundations of natural justice and would be struck down as  illegal forthwith. It hardly matters whether this is because prejudice is then  patent or because it is so abhorrent to well-established notions of natural  justice that a trial of that kind is only a mockery of a trial and not of the  kind envisaged by the laws of our land because either way they would be  struck down at once.

Other violations will not be so obvious and it may be possible to show that  having regard to all  that  occurred no prejudice  was occasioned or  that  there was no reasonable probability of prejudice. In still another class of  case, the matter may be so near the border line that very slight evidence of  a reasonable possibility of prejudice would swing the balance in favour of  the accused.  

… 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 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  

8

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.”

“In  adjudging  the  question  of  prejudice  the  fact  that  the  absence  of  a  charge,  or a substantial  mistake in it,  is  a serious lacuna will  naturally  operate to the benefit of the accused and if there is any reasonable and  substantial doubt about whether he was, or was reasonably likely to have  been, misled in the circumstances of any particular case, he is as much  entitled  to  the  benefit  of  it  here  as  elsewhere;  but  if,  on  a  careful  consideration of all  the facts,  prejudice,  or a reasonable and substantial  likelihood of it,  is  not disclosed the conviction must stand; also it  will  always  be  material  to  consider  whether  objection  to  the  nature  of  the  charge, or a total want of one, was taken at an early stage.…..But these are  matters  of  fact  which  will  be  special  to  each  different  case  and  no  conclusion on these questions of fact in any one case can ever be regarded  as a precedent or a guide for a conclusion of fact in another, because the  facts can never be alike in any two cases however alike they may seem.  There is no such thing as a judicial precedent on facts though counsel, and  even judges, are sometimes prone to argue and to act as if there were.”

(emphasis supplied)

In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623] following Willie   

Slaney, this Court held:  

“……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.”

9

In Shamnsaheb M. Multtani vs. State of Karnataka – 2001 (2) SCC 577, this  

Court  considered  the  meaning  of  the  expression  “failure  of  justice”  

occurring in section 464 of Cr.PC. This Court held thus :  

“The crux of the matter is this : Would there be occasion for a failure of  justice by adopting such a course as to convict an accused of the offence  under section 304-B IPC when all the ingredients necessary for the said  offence have come out in evidence, although he was not charged with the  said offence?

… a conviction would be valid even if there is any omission or irregularity  in  the  charge,  provided  it  did  not  occasion  a  failure  of  justice….The  criminal  court,  particularly  the  superior  court  should  make  a  close  examination to ascertain whether there was really a failure of justice or  whether it is only a camouflage.  

One of the cardinal principles of natural justice is that no man should be  condemned  without  being  heard,  (audi  alteram  partem).  But  the  law  reports  are  replete  with  instances  of  courts  hesitating  to  approve  the  contention that failure of justice had occasioned merely because a person  was not heard on a particular aspect. However, if the aspect is of such a  nature  that  non-explanation  of  it  has  contributed  to  penalizing  an  individual,  the  court  should  say  that  since  he  was  not  given  the  opportunity to explain that aspect there was failure of justice on account of  non-compliance with the principle of natural justice.”  

The  above  principles  are  reiterated  in  several  decisions  of  this  Court,  

including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129, State  

of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554, Dalbir Singh v. State of   

UP [2004 (5)  SCC 334],  Dumpala Chandra Reddy vs.  Nimakayala  Bali   

Reddy - 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar - 2009 (7)  

SCC 198.  

1

9. The following principles relating to sections 212, 215 and 464 of the  

Code, relevant to this case, become evident from the said enunciations:    

(i) The object of framing a charge is to enable an accused to have a clear  

idea of what he is being tried for and of the essential facts that he has to  

meet. The charge must also contain the particulars of date, time, place and  

person  against  whom  the  offence  was  committed,  as  are  reasonably  

sufficient to give the accused notice of the matter with which he is charged.  

(ii) The accused is entitled to know with certainty and accuracy, the exact  

nature of the charge against  him, and unless he has such knowledge,  his  

defence  will  be  prejudiced.  Where  an  accused  is  charged  with  having  

committed  offence  against  one  person  but  on  the  evidence  led,  he  is  

convicted for committing offence against another person, without a charge  

being framed in respect of it, the accused will be prejudiced, resulting in a  

failure of justice. But there will be no prejudice or failure of justice where  

there was an error in the charge and the accused was aware of the error.  

Such knowledge can be inferred from the defence, that is, if the defence of  

the accused showed that he was defending himself against the real and actual  

charge and not the erroneous charge.  

(iii) In judging a question of prejudice, as of guilt, the courts must act with  

a broad vision and look to the substance and not to the 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  

1

and clearly, and whether he was given a full and fair chance to defend  

himself.

10. The  respondent  relied  upon  the  decision  of  this  court  in  State  of  

Himachal  Pradesh v.  Geeta Ram [2000 (7)  SCC 452].   In  that  case  the  

respondent  was  chargesheeted  for  an offence  under  section 376 IPC and  

section  3  of  the  Scheduled  Castes  and  Scheduled  Tribes  (Prevention  of  

Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court  

which  was specified  as  a  special  court  under  the  Act.  The  special  court  

framed a charge only for an offence under section 376 IPC and after trial  

convicted the respondent under section 376 IPC and sentenced him to ten  

years  imprisonment.  The  High  Court  set  aside  the  conviction  on  the  

technical ground that the trial court had no jurisdiction as it was a special  

court specified in under the SC & ST (Prevention of Atrocities) Act. This  

Court reversed the decision of the High Court on the ground that a special  

court under the Act being a sessions court, it continued to have jurisdiction  

to  try  the  case  for  the  offence  under  section  376  IPC.  That  matter  was  

considered under section 465 of the Code and not relevant on the facts of  

this case.

1

11. As  noticed  above,  in  this  case,  the  charge  was  that  appellant  

committed trespass into the house of Prakashi Devi for assaulting Prakashi  

Devi, and assaulted the said Prakashi Devi and outraged her modesty.  The  

accused concentrated his cross-examination with reference to the said charge  

and elicited answers showing that he did not assault or outrage the modesty  

of Prakashi Devi. He did not try to challenge the evidence let in to show that  

he had tried to outrage the modesty of Sheela Devi, as he was not charged  

with  such  an  offence.  The  evidence  of  PW-1  and  PW-2  was  that  the  

appellant did not touch or tease or abuse Prakashi Devi. Their evidence was  

that  he touched/caught  the  hand of  Sheela  Devi  and when she raised  an  

alarm he ran away.  When the  charge was  that  the  accused attempted to  

commit trespass into the house of Prakashi Devi with intent to outrage the  

modesty of Prakashi Devi, the conclusion of the appellate court and the High  

Court that there was no failure of justice if he is punished for the offence of  

having  assaulted  Sheela  Devi  and  outraging  her  modesty,  is  opposed  to  

principles of fair play and natural justice embodied in   sections 211, 212,  

215 and 464 of the Code. When the accused is charged with having entered  

the house of Prakashi Devi and assaulted the said Prakashi Devi with intent  

to outrage her modesty and when the accused defended himself in regard to  

the said charge and concentrated on proving that the said charges were not  

1

true, he cannot be convicted for having assaulted and outraging the modesty  

of  someone  else,  namely  Sheela  Devi.  The  accused  did  not  have  any  

opportunity to meet or defend himself against the charge that he assaulted  

Sheela Devi and outraged her modesty. Nor did he proceed with his defence  

on the understanding that he was being charged with having committed the  

offence with reference to Sheela Devi. One of the fundamental principles of  

justice is that an accused should know what is the charge against him so that  

he can build his defence in regard to that  charge.  An accused cannot be  

punished for committing an offence against ‘Y’ when he is charged with  

having  committed  the  offence  against  ‘X’  and  the  entire  defence  of  the  

accused was with reference to charge of having committed offence against  

‘X’.  

12. The  illustrations  under  a  provision  of  a  Statute  offer  relevant  and  

valuable  indications  as  to  meaning  and  object  of  the  provision  and  are  

helpful in the working and application of the provision. Illustration (e) under  

section  215  of  the  Code,  as  contrasted  from  illustration  (d)  under  that  

section, throws some light on this issue. The said illustrations are extracted  

below :

1

“(d) A is charged with the murder of Khoda Baksh on the 21st January,  1882. In fact, the murdered person’s name was Haidar Baksh, and the date  of the murder was the 20th January, 1882. A was never charged with any  murder but one, and had heard the inquiry before the Magistrate, which  referred exclusively to the case of Haidar Baksh.  The Court  may infer  from these facts that A was not misled, and that the error in the charge was  immaterial.   (e) A was charged with murdering Haidar Baksh on the 20th January, 1882,  and Khoda Baksh (who tried to arrest  him for that murder) on the 21st  January, 1882. When charged for the murder of Haidar Baksh, he was  tried for the murder of Khoda Baksh. The witnesses present in his defence  were witnesses in the case of Haidar Baksh. The Court may infer from this  that A was misled, and that the error was material.”  

Applying  the  guidance  offered  by  the  said  illustrations  and  the  legal  

principles evolved by this Court, the position will be as follows : If Sheela  

Devi alone had been present at the house at the time of the incident and the  

accused had assaulted and outraged the modesty of the said Sheela Devi, but  

in the charge the name of the victim had been erroneously mentioned, say as  

Sushila Devi or Prakashi Devi (though there was no person by such name),  

and the inquiry exclusively referred to the assault and outraging the modesty  

of Sheela Devi, the court could infer that the accused was not misled and the  

error in the charge was immaterial. On the other hand, if two persons were  

present in the house at the time of the incident namely Prakashi Devi and  

Sheela Devi and the accused is charged with trespassing into the house of  

Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi  

Devi, and the witnesses refer only to the assault and outraging the modesty  

of Sheela Devi, the court will have to infer that the accused was prejudiced,  

1

if the accused had solely concentrated and focused his defence and entire  

cross-examination  to  show that  he  did  not  commit  the  offences  against  

Prakashi Devi.

13. The  court  having  charged  the  accused  with  the  offence  of  having  

trespassed into the house of Prakashi  Devi with intent to assault  her and  

having further charged him for having assaulted the said Prakashi Devi by  

outraging her modesty, convicts him on the ground that though he did not  

assault  or  outrage  the  modesty  of  Prakashi  Devi,  he  had  outraged  the  

modesty of Sheela Devi, that would lead to failure of justice. There was a  

material error in the charge as it violated the requirement of sub-section (1)  

of section 212 of the Code, that the charge shall contain particulars as to the  

person against whom the offence was committed. There were two women  

present  at  the house at  the time of the alleged incident,  namely Prakashi  

Devi and her daughter-in-law Sheela Devi. In view of the specific charge,  

the accused concentrated on showing that the charge was false. He did not  

attempt to meet the case made out in the trial that the offence was against  

Sheela Devi. The accused was thus clearly misled by the error in the charge  

which  caused  prejudiced  to  the  accused  thereby  occasioning  failure  of  

1

justice. Therefore, we are of the view that there should be a new trial after  

charging him with the offence of outraging the modesty of Sheela Devi.  

14. The appeal is therefore allowed, the conviction of the accused is set  

aside and the matter is remitted to the trial court with a direction for a new  

trial after framing a charge by substituting the words “her daughter-in-law  

Sheela Devi” for the words “abovenamed Prakashi Devi”, in the second part  

of the charge.   

………………………J (R. V. Raveendran)

………………………..J (H. L. Gokhale)

New Delhi; September 7, 2010.  

1