E culpable homicide amounting to murder and culpable v. Section 302, the court cannot, In Its discretion, award

The prosecution case was that five accused including appellant committed dacoity in a car belonging to the appellant and also murdered the victim-deceased. The uncle of the deceased was a merchant. The deceased used to realize money from the market on C behalf of his uncle's firm. On the fateful day, the deceased had gone to collect money but he did not return home at night. A case was registered under Section 364, IPC. After investigation, the appellant was arrested. He made a confessional statement that the dead body of the D deceased. was lying in sugarcane fields. The body was recovered and identified. The other accused were also arrested. The appellant was charged under Sections 396 and 201, IPC. The trial court convicted the appellant under Sections 302 and 201 IPC. The accused 'A' was convicted E under Section 411, IPC but the trial court acquitted him and three other accused for the offence under Section 396 IPC by giving them benefit of doubt. On appeals, the High Court allowed the appeal of 'A' and acquitted him even of the charge under Section 411, IPC. However, the F conviction of the appellant was upheld. The instant appeal was filed challenging the order of the High Court. G It was contended for the appellant that he was charged for an offence under Section 396 IPC but without reformulation/alteration of the charge, he was convicted for an offence under Section 302 IPC and this deprived him of a fair opportunity of defence and has caused him serious prejudice; that Section 302, IPC is a graver offence than an offence punishable under Section 396, IPC and as such the entire trial and conviction of the H appellant was vitiated in law; that there were serious RAFIQ AHMED @ RAFI v. STATE OF U.P. 913 contradictions between the statements of the witnesses A and the courts below erred in fact and in law, failed to appreciate the evidence in its correct perspective and this being a case of circumstantial evidence, the prosecution has failed to prove the chain of events pointing towards the guilt of the accused. B Dismissing the appeal, the Court HELD: 1.1. The appellant was charged with an offence under Sections 396 and 201, IPC. Section 391, IPC explains the offence of 'dacoity'. When five or more C persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committihg or attempting to commit a robbery, and persons present and aiding such commission and attempt amount to five or more, every person so D committing, attempting or aiding, is said to commit 'dacoity'. Under Section 392 IPC, the offence of 'robbery' simplicitor is punishable with rigorous imprisonment which may extend to ten years or 14 years depending upon the facts of a given case. Section 396 IPC brings E within its ambit a murder committed along with 'dacoity'. In terms of "this provision, if any one of the five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may F extend to ten years and shall also be liable to fine. On a plain reading of these provisions, it is clear that to constitute an offence of 'dacoity', robbery essentially should be committed by five or more persons. Similarly, to constitute an offence of 'dacoity with murder' any one G of the five or more persons should commit a murder while ~ommitting the dacoity, then every one of such persons so committing, attempting to commit or aiding, by fiction of law, would be deemed to have committed the offence Qf murder and be liable for punishment provided under H 914 SUPREME COURT REPORTS [2011) 11 S.C.R. A these provisions depending upon the facts and circumstances of the case. [Paras 6-8] [932-F-H; 933-A E] 8

1.2. Section 299 defines 'culpable homicide'. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that. he is likely by such act to cause death, commits the offence of culpable homicide. Except the exceptions provided under Section 300 IPC, culpable C homicide is murder if the act by which death is caused is done with the intention of causing death. The intention to cause death is the primary distinguishing feature between these two offences. It is a fine but clear -tine of distinction. In terms of Section 300 IPC, except in the D cases stated in that provision, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or in terms of any of the circumstances stated secondly, thirdly and fourthly respectively. The law clearly marks a distinction between E culpable homicide amounting to murder and culpable homicide not amounting to murder. Another. distinction between Sections 302 and 396 is that under the latter, wide discretion is vested in the courts in awarding punishment. The court, in exercise of its jurisdiction and judicial discretion in consonance with the established principles of law can award sentence of ten years with fine or even award sentence of life imprisonment or sentence of death, as the case may be while under Section 302, the court cannot, In Its discretion, award G sentence lesser than life imprisonment. The ingredients of both these offences, to some extent, are also different inasmuch as to complete an offence of 'dacoity' under Section 396 IPC, five or more persons must conjointly commit the robbery while under Section 302 of the IPC H even one person by himself can commit the offence of F RAFIQ AHMED @ RAFI v. STATE OF U.P. 915 · murder. But, to attract the provisions of Section 396, the A offence of 'dacoity' must be coupled with murder. In other words, the ingredients of Section 302 become an integral part of the offences punisl")able under Section 396 of the IPC. Resultantly, the distinction with regard to the number of persons involved in the commission of the crime loses B its significance as it is possible that the offence of 'dacoity' may not be proved but still the offence of murder could be established, like in the instant case. Upon reasonable analysis of the language of these provisions, it is clear that the Court has to keep in mind the c ingredients which shall constitute a criminal offence within the meaning of the penal section. This is not only essential in the case of the offence charged with but even where there is comparative study of different penal provisions as the accused may have committed more than one offence or even offences of a graver.nature. He may finally be punished for a lesser offence or vice versa, if the law so permits and the requisite ingredients are satisfied. [Paras 9-11] [933-F-H; 934-A-H] 0

1.3. The judicial pronouncements show a consistent E trend that wherever an accused is charged with a grave offence, he can be punished for a less grave offence finally, if the grave offence is not proved. But even 'in those cases, the Court has to be cautious while examining whether the ingredients of the offences are F independentfy satisfied. If the ingredients even of a lesser offence are not satisfied then it may be difficult in a given case for the court to convict the person for an offence of a less grave nature. There can be cases where it may not be possible at all to punish a person of a less grave G offence if its ingredients are completely different and distinct from the grave offence. In other words, the. accused has to be charged with a grave offence which would take within its ambit and scope the ingredients of a less grave offence. The evidence led by the prosecution H 916 SUPREME COURT REPORTS [2011] 11 S.C.R. A for a grave offence, thus, would cover an offence of a less grave nature. But it is essential that the offence for which the Court proposes to punish the accused, is established beyond reasonable doubt by the prosecution. [Para 12] (935-A-F] B

1.4. The Code of Criminal Procedure 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 with certain C well-established and well-understood canons of law that accord with the notions of natural justice. Usually an offence of grave nature includes in itself the essentials of a lesser but cognate offence. In other words, there are classes of offences like offences against the human D body, offeoces against property and offences relating to cheating, misappropriation, forgery etc. In the normal course of events, the question of grave and less grave offences would arise in relation to the offences falling in the same class and normally may not be inter se the E classes. It is expected of the prosecution to collect all evidence in accordance with law to ensure that the prosecution is able to establish the charge with which the accused' is charged, beyond reasonable doubt. It is only in those cases, keeping in view the facts and circumstances of a given case and if the court is of the view that the grave offence has not been established on merits or for a default of technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content. [Paras 14, 17] (939-B-C; 942- F G B-E] Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116: 1955 SCR 1140 - followed. Iman Ali & Anr. v. State of Assam AIR 1968 SC 1464: H 1968 SCR 610 - relied on. RAFIQ AHMED @ RAFI v. STATE OF U.P. 917

#2. ( To show prejudice to an accused, it has to be A shown that the accused has suffered some disability or · detriment in the protections available to him under the Indian criminal jurisprudence. It Is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of B criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted c certain protections to and rights of the accused during investigation and trial which are: The accused has the freedom to maintain silence during investigation as well as before the Court. The accused may choose to maintain silence or make complete denial even when his statement D .. under Section 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law. The accused has right to fair trial; There is presumption of innocence (not E guilty) and the prosecution must prove its case beyond reasonable doubt. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. '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 matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of G these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the Court. [Paras 20-21] [945-B-H; 946-A-B] F H 918 SUPREME COURT REPORTS [2011] 11 S.C.R. A Anil @ Raju Namdev Patil vs. Administration of Daman & Diu and Anr. 2006 Suppl. (9) SCR 466; K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217: 2002 (3) Suppl. SCR 339; Kammari Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P. (1999) 2 SCC 522: B 1999 (1) SCR 361; Dalbir Singh v. State of U.P. (2004) 5 SCC 334; Kamalanantha and Ors. v. State of T.N. (2005) 5 SCC 194: 2005 (3) SCR 182; Harjit Singh v. State of Punjab (2006) 1 sec 463: 2005 (5) Suppl. SCR 629 .... relied on. c Black's Law Dictionary, Eighth Edition - referred to.

2.2. Right to fair trial, presumption of innocence until pronouncement of guilt and the standards of proof, i .. e., the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of Indian criminal D jurisprudence. The Courts are required to examine both the contents of the allegation of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always E depend on the facts and circumstances of a given case. Therefore, the Court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication. Thus, wherever a plea of prejudice is raised by the accused, it must be examined with reference to these rights and safeguards, as it is the violation of these rights alone that may result in weakening of the case of the prosecution and benefit to the accused in ~ccordance with law. [Para 22] [946-C-E] F