Chinnam Kameswara Rao & Ors vs. State of A.P. Rep. by Home Secretary, Criminal Appeal No. 1116 of 2011, Decided on 10th January, 2013
The question was whether absence of a charge under Section 34 of the IPC would by itself operate as an impediment in the Appellate Court recording a conviction with the help of that provision.
The Hon’ble Supreme Court held:
“Mere omission of Section 34 from the charge sheet does not ipso facto or ipso jure lead to any inference or presumption of prejudice having been caused to the accused in cases where the conviction is recorded with the help of that provision. It is only if the accused persons plead and satisfactorily demonstrate that prejudice had indeed resulted from the omission of a charge under Section 34 of the IPC that any such omission may assume importance. We do not see any such prejudice having been caused in the present case. ….The absence of charge under Section 34 of the IPC did not, therefore, affect the legality of the conviction recorded by the High Court”. [Para 15]
The court noted following case laws:
Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 1413 the trial Court had acquitted all the accused persons while the High Court convicted them under Section 302 read with Section 34 IPC. This Court held that the High Court could convict the accused under Section 34 even if the named accused were acquitted provided the High Court held that there were other unnamed accused persons who were involved in the commission of the offence. The following passage from the said decision is, in this regard, apposite:
“It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under s. 302, read with s. 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of s. 34 on different situations.
(1) A, B, C and D are charged under s. 302, read with s. 34, of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others, have jointly committed the offence.
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But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons? If the Court could do so, it would be making out a new case for the prosecution: it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration.”
Darbara Singh v. State of Punjab 2012 (8) SCALE 649. In that case also charges were framed against two of the accused persons under Section 302 IPC whereas against the third accused the charge framed was under Section 302 read with Section 34 IPC. The trial Court had acquitted the third accused but convicted the first two accused much in the same manner as is the position in the present case. The contention before this Court was that in the absence of a charge under Section 34 no conviction could be recorded against the appellants under Section 302 especially when the injury inflicted by one of the accused persons was not held to be sufficient in the ordinary course of nature to cause death. Repelling the contention this Court observed:
“12. It has further been submitted on behalf of the Appellant that, as the appellant was never charged under Section 302 r/w Section 34 Indian Penal Code, unless it is established that the injury caused by the Appellant on the head of the deceased, was sufficient to cause death, the Appellant ought not to have been convicted under Section 302 Indian Penal Code simplicitor. The submission so advanced is not worth consideration for the simple reason that the Learned Counsel for the Appellant has been unable to show what prejudice, if any, has been caused to the Appellant, even if such charge has not been framed against him. He was always fully aware of all the facts and he had, in fact, gone alongwith Kashmir Singh and Hira Singh with an intention to kill the deceased. Both of them have undoubtedly inflicted injuries on the deceased Mukhtiar Singh. The Appellant has further been found guilty of causing grievous injury on the head of the deceased being a vital part of the body. Therefore, in the light of the facts and circumstances of the said case, the submission so advanced does not merit acceptance.
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14. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Code of Criminal Procedure., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
15. The 'failure of justice' is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence, of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court.”
Gurpreet Singh v. State of Punjab (2005) 12 SCC 615, this Court held that no prejudice could be claimed by the accused merely because charge was framed under Section 302 IPC simpliciter and not with the help of Section 34 IPC.
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