The Supreme Court has set aside the impugned judgment of the High Court wherein the accused were convicted of the murder of the deceased on the ground that the charges framed against the accused were not only misleading but also no opportunity was given to the accused to explain the circumstances in which the deceased was allegedly killed.

The Court observed that questioning an accused under Section 313 CrPC is not an empty formality and thus held -

"The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence."

The Bench of Justice Sanjay Kishan Kaul and Justice Abhay S. Oka observed that "by reason of omission to frame a proper charge in terms of Section 213 of CrPC, and by reason of not putting important circumstances appearing in the evidence in the statement under Section 313 caused serious prejudice to the accused. The prejudice, in the facts of the case, has occasioned a failure of justice."

In this case, the accused were convicted of offences punishable under Sections 148, 302, 307 read with section 149 of the Indian Penal Code, 1860 (for short, IPC) by Fast Track Sessions Court. A separate FIR under Section 25 of the Arms Act was also registered against the appellant no.2 (accused no.2). The conviction of appellant no. 3 (accused no.3) was set aside as he was a juvenile in conflict with law.

The issue dealt with were-

  • Whether there was a failure to comply with the requirements of Section 213 and Section 313 of CrPC?
  • Whether prejudice has been caused to the accused due to failure of non-compliance with such provisions?

Senior Advocate Rakesh Khanna appeared for the appellants and submitted that allegation u/s 148 and 149 f IPC of unlawful assembly made by the prosecution cannot be accepted as there was no assembly of five or more persons. it was also submitted that the deceased did not receive any firearm injury but he suffered injuries due to the assault made by the accused nos.1,2 and 4 by weapons in their hands and that a serious prejudice has been caused to the accused due to the failure to frame proper charge and by failure to put material circumstances to the accused in their statement under Section 313 of CrPC.

Additional Advocate General, Vinod Diwakar submitted on behalf of the State that no prejudice was caused to the accused on account of failure of the Court to frame a proper charge as two eye-witnesses were cross-examined by the accused's advocate on the prosecution case that Harpal Singh died due to assault made by the appellant nos.1, 2 and 4 by the weapons in their hands. Moreover, the appellants were aware of the prosecution case, therefore, the failure of the Trial Judge to put the circumstance to them in their statement under Section 313 is not at all fatal.

With regard to the contention of the accused that sections 148 and 149 were not applicable, the Apex Court observed that for attracting offences punishable u/s 148 and 149 of IPC, the condition precedent was that there should be an unlawful assembly of five or more persons, as defined u/s 141 of IPC. But the appellant no. 3 had been declared as a juvenile in conflict with law and was acquitted by the Apex Court, therefore, the charge under Sections 148 & 149 of IPC could not be sustained.

The Apex Court then discussed that the object of provisions of framing of charge was to make the accused aware of the accusations made against him on the basis of which the prosecution was seeking to convict him and also that he was in a position to effectively defend himself.

"That is why there is a specific requirement incorporated in Section 213 that if the particulars mentioned in Sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose." said the Apex Court.

But the material brought on record by the prosecution witnesses was to the effect that the deceased died due to injuries sustained as a result of an attack made by accused nos.1,3 and 4 on him by sharp weapons and no questions were asked in the Section 313 statement about the post-mortem of the body of the deceased, which revealed the cause of death was due to haemorrhage and shock as a result of injuries caused by sharp weapons. Moreover, the material on which their conviction was based was never put to the accused.

The Apex Court stated that if the accused is not explained the important circumstances which appeared against him in the evidence on which his conviction was sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him and will not be able to properly defend himself.

The Apex Court relied upon the decision of the Supreme court in the case of Jai Dev v. State of Punjab (1963) 3 SCR 489 and held that "not only that the charge framed was misleading, but most material circumstance brought on record against the accused in the evidence that Harpal Singh died due to injuries caused by the attack made by accused nos.1,3 and 4 was not put any of the accused. Thus, not only that the charge was misleading but the accused had no opportunity to explain the circumstance in which Harpal Singh was allegedly killed which was brought on record during the trial."

The Apex Court further said that it would be unfair and serious prejudice would be caused to the accused if the case was remanded back for framing of a proper charge and for recording additional statements of the accused as the incident took place in 2000 and the accused have already undergone a sentence for more than 3 years.

Accordingly, the appeal was allowed and the accused were directed to be released.

Cause Title- Kalicharan & Ors. v. The State of Uttar Pradesh.

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