Summary
A quarrel over levelling a lane in Bulandshahr in 2000 led to an armed attack in which two people died. A father, his son and his wife were convicted of rioting, murder and attempt to murder with the aid of Section 149 IPC. The Supreme Court acquitted them. A co-accused had already been found to be a juvenile, so fewer than five persons remained and there was no unlawful assembly. The murder charge alleged that one deceased died of gunshots from the son's pistol. The evidence and post-mortem showed only sharp-weapon injuries inflicted after he fell. That case was never framed as a charge under Section 213 CrPC or put to the accused under Section 313. This misled them and caused a failure of justice, and a remand 22 years later would be unfair.
Issues
- Whether convictions under Sections 148 and 149 IPC could stand when, after one accused was held to be a juvenile, fewer than five persons remained.
- Whether the failure to frame a charge stating the manner of the murder under Section 213 CrPC, and to put the material circumstances to the accused under Section 313 CrPC, caused prejudice and a failure of justice.
Provisions considered
- Sections 141, 148 and 149, Indian Penal Code, 1860An unlawful assembly requires five or more persons; with one of the five accused excluded as a juvenile, only four remained and the charges under Sections 148 and 149 could not be sustained. (¶¶ 8, 25)
- Sections 212, 213, 215 and 464, Code of Criminal Procedure, 1973Where the particulars do not give sufficient notice, the charge must state the manner of committing the offence; an error vitiates the trial only if the accused was misled and a failure of justice resulted, which the appellate court determines on the whole record. (¶¶ 16, 17, 18, 19, 20)
- Section 313, Code of Criminal Procedure, 1973Examination of the accused is not an empty formality; circumstances not put to the accused must be excluded from consideration (Sharad Birdhichand Sarda), and the test is whether the accused had an opportunity to explain the case against him (Jai Dev). (¶¶ 21, 22)
Held
- The charges alleged that the deceased was killed by four to five shots fired from the second accused's pistol, but the eyewitnesses deposed that he fell in the stampede and was then assaulted with weapons, and the post-mortem doctor found only sharp-weapon injuries; no charge stated that the other accused killed him in that manner, so Illustration (e) to Section 213 did not apply and the manner of the offence had to be stated. (¶¶ 9, 10, 12, 13, 15, 17)
- The only Section 313 question on this death put the unproved gunshot version to the accused, and neither the assault with sharp weapons nor the post-mortem findings were put to them; together with the misleading charge, this caused serious prejudice and occasioned a failure of justice. (¶¶ 21, 22, 23)
- Remanding for a fresh charge and further Section 313 statements about an incident of December 2000, more than 22 years later, would itself prejudice the accused; the murder charge therefore failed, and Section 149 being inapplicable the convictions under Section 307 also fell, the accused having been in custody since 19.08.2019. (¶¶ 24, 25)
Result
Criminal Appeal No. 122 of 2021 allowed; the judgments of the Fast Track Sessions Court, Bulandshahr and of the Allahabad High Court dated 24.05.2019 in Criminal Appeal No. 2181 of 2003 set aside so far as they convicted accused Nos. 1, 2 and 4, who were directed to be released forthwith unless required in any other case; accused No. 3 had already been acquitted as a juvenile by order dated 01.07.2021.