KAMIL v. STATE OF UTTAR PRADESH

1.2 The charge was not framed against the appellant under Section 302 read with Section 34 IPC. But it is for the accused to prove that omission to frame charge has occasioned in a failure of justice. Though specific charge under Section 302/34 was not framed, the gist of the charge sheet filed against the appellant/ accused clearly shows that the accused has been charged for the offence under Section 302/34. In the charges framed, even if the appellant and co-accused were charged only under Section 323/ 34, the gist of the charge sheet clearly alleges their sharing of common intention in committing the murder of victim with the first accused. [Para 18][1104-F-G; 1105-E]

1.3 After filing of the charge sheet, case was committed to the court of Sessions. The trial court has pointed out that the accused persons were charged under Sections 302, 302/34, 323 and 323/34 IPC to which they pleaded not guilty and opted for trial. The appellant/accused has thus, clearly understood that charge has been framed against him under Section 302 read with Section 34 IPC. If really, the appellant was under the impression that no charge was framed against him under Section 302 read with Section 34 IPC, the appellant would have raised the objection for his committal to the Sessions Court. Appellant has not raised the objection as to non-framing of charges at the earliest point of time namely the trial court and the High Court. [Para 19] [1105-F-G]

1.4 The procedure followed by the Court has neither caused prejudice to the appellant nor deprived him of principles of Natural Justice. In the High Court, the appellant did not raise any grievance as to non-framing of charge under Section 302 read with Section 34 IPC and that it has caused prejudice to him. On the other hand, the counsel appearing for the appellant only contended that the appellant ought not to have been convicted by invoking the principle of vicarious liability enshrined by Section 34. All these aspects clearly show that the appellant clearly understood that charge under Section 302 read with Section 34 has been framed against him and throughout he has been defending himself only for the charge under Section 302. [Para 20, 21][1106-D, F]

1.6 The appeal preferred by the similarly situated co- accused has been dismissed by this Court. A conviction for the H KAMIL v. STATE OF UTTAR PRADESH 1095 substantive offence without a charge can be set aside only if the accused shows that prejudice has been caused to him and that “failure of justice” has occasioned thereby. No such argument was ever made before the trial court or before the High Court. No prejudice has been caused to the accused nor failure of justice has been shown to have been occasioned warranting interference with the impugned judgment. [Para 23][1107-D]