IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 772 OF 2008
Sanichar Sahni .... Appellant
Versus
The State of Bihar .... Respondent
JUDGMENT
Dr. B.S. Chauhan, J.
1. This appeal has been filed against the judgment and order
passed by the High Court of Patna in Criminal Appeal No.328 of
2003 affirming the judgment and order of the trial court dated 30th
May, 2003 and order of sentence dated 2nd June, 2003 passed in
Sessions Trial No.122 of 2002.
2. The facts and circumstances giving rise to this appeal are that
a First Information Report was lodged on 12.10.2001 against
Munilal Sahni, Biswanath Sahni, brother and father of the
appellant respectively. Golu Paswan and Kishore Thakur under
Sections 394/302/34 of the Indian Penal Code, 1860 (in short
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"IPC") and Section 27 of the Arms Act for the murder of deceased
Bhola Chaudhary. During the course of investigation, it came to
light that the appellant had conspired with his father and brother to
finish Bhola Chaudhary. Charge sheet was filed against Munilal
Sahni, Biswanath Sahni and the appellant. At the time of framing
of the charge on 21.11.2002, the appellant was charged only under
Section 120-B IPC alone and the co-accused Munilal Sahni was
charged under Sections 302/34, 394 and 412 of the IPC and
Section 27 of the IPC. Accused Bishwanath Sahni was charged
under Section 302/34 IPC. None of the co-accused was charged for
conspiracy under Section 120-B IPC. The appellant was not
charged with any other offence except under Section 120-B IPC
though the specific case of the prosecution was that the appellant
hatched the criminal conspiracy with his father and brother to
eliminate Bhola Chaudhary. On conclusion of the trial, the
appellant was convicted vide judgment and order dated 30.5.2003
under Section 120-B IPC and was sentenced to undergo rigorous
imprisonment for life. Accused Bishwanath Sahni was convicted
under Section 302/34 IPC and sentenced to R.I. for life. Accused
Munilal Sahni was convicted under Sections 302, 394 and 412 of
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the IPC and sentenced to undergo R.I. for life under Section 302,
R.I. for seven years under Section 394 and R.I. for three years
under Section 412 IPC. He was further convicted under Section 27
of the Arms Act and sentenced to undergo R.I. for one year.
3. Being aggrieved, all the convicted persons including the
present appellant filed appeal which has been decided by the
impugned judgment and order dated 13.12.2007 by which the High
Court acquitted Bishwanath Sahni, giving benefit of doubt. Appeal
of the present appellant and Munilal Sahni was dismissed.
4. Munilal Sahni challenged the judgment and order of the High
Court and his special leave petition has been dismissed by this
Court. Hence, the present appeal by appellant, Sanichar Sahni.
5. Mr. A.P. Sahay, learned counsel appearing for the appellant
has submitted that there was no evidence for hatching the
conspiracy so far as the appellant is concerned. The appellant had
falsely been implicated in this case and no charge of conspiracy
under Section 120B IPC had been framed against any of the co-
accused and hence it is not permissible in law to convict the
appellant under the said charge as he has also not been charged for
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any other offence. No person can conspire with himself. Therefore,
the appeal deserves to be allowed.
6. On the other hand, Shri Chandan Kumar, learned counsel
appearing for the State of Bihar has vehemently opposed the
submission made by the counsel for the appellant submitting that
there was sufficient evidence against the appellant for collecting
"Rangdari" from the deceased Bhola Chaudhary. However he could
not pay at one time, when the appellant was in jail for committing
some other offence. Appellant came from jail to the Court and his
father and brother met him there. The appellant conspired with
them to eliminate Bhola Chaudhary. If there has been some defect
in framing of the charge, unless the appellant shows what prejudice
has been caused to him, judgment and order of conviction passed
by the courts below should not be interfered with on such
technicalities. The appeal has no merit and is liable to be
dismissed.
7. We have considered the rival submissions made by learned
counsel for the parties and perused the record. Admittedly, the
appellant had been charged under Section 120-B IPC and under no
other provision of law. The other co-accused had been charged
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under different provisions but none of them had been charged
under Section 120B IPC. So far as the evidence on record is
concerned, two witnesses were examined on the point of conspiracy,
namely, Ashok Paswan PW.2, and Ashok Kumar Verma PW.5.
Learned counsel for the parties had taken us to the depositions
thereof. Both the said witnesses had fully supported the
prosecution case so far as point of conspiracy to eliminate Bhola
Chaudhary is concerned. It is strange that in the cross-examination
of Ashok Paswan PW.2, the defence did not make even a suggestion
that he had been deposing falsely to implicate the appellant. When
the statement of the appellant under Section 313 of the Code of
Criminal Procedure (in short "Cr.P.C.") was recorded on 5.4.2003
and was asked about conspiracy, he simply replied that he had not
conspired and he would produce the defence witnesses in this
regard. We fail to understand as where was the question of
adducing evidence after recording of the statement of the accused
under Section 313 Cr.P.C.
8. As per the trial court judgment the money bag containing
Rs.11,000/- looted from the deceased Bhola Chaudhary was
recovered from accused Munilal Sahni, the brother of the appellant
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and it was established before the trial court that the appellant had
been demanding "Rangdari" from the deceased on telephone. The
Trial Court believed Ashok Paswan PW.2 and Ashok Kumar Verma
PW.5, so far as the conspiracy part is concerned as they had stated
that in their presence the appellant had directed his father and
brother that if Bhola Chaudhary deceased would not pay amount
he should be finished. Both the witnesses had given satisfactory
explanation for being present in Hazipur Court at the relevant
point of time. The documentary evidence had been produced to the
satisfaction of the court to corroborate their evidence that the
appellant was present in the Court on 12.10.2001 to appear in
Sessions Trial No.116/2001. It was also satisfactorily proved that
appellant had talked with co-accused, his brother and father in
between the place court Hajat and the court. The trial court found
no reason to disbelieve the depositions of Ashok Paswan PW.2 and
Ashok Kumar Verma PW.5. The Trial Court came to the conclusion
that appellant Sanichar Sahni hatched the conspiracy and directed
his brother and father to finish Bhola Chaudhary in case the money
was not paid by him and consequently, Bhola Chaudhary was
murdered by the co-accused on 12.10.2001 at 8.45 P.M.
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9. In appeal, the High Court dealt with the issue of conspiracy
elaborately and found the evidence of Ashok Paswan PW.2 and
Ashok Kumar Verma PW.5 fully trustworthy and came to the
conclusion that Bhola Chaudhary was murdered by the co-accused
in conspiracy for non-fulfillment of demand of "Rangdari". The High
Court held that both the said witnesses were present on that date
i.e. 12.10.2001 in the court premises Hazipur and the appellant
Sanichar Sahni was also produced in the Court in custody and he
met his father and brother and it was in their presence that he had
asked the co-accused to finish Bhola Chaudhary if "Rangdari" was
not paid.
10. The above concurrent findings of fact recorded by the courts
below regarding the conspiracy and murder of Bhola Chaudhary by
the co-accused do not require to be interfered with as there is
nothing on record to show that the said findings are perverse.
11. So far as the issue of framing charge under Section 120-B
against the appellant and non-framing the charge of conspiracy
against other co-accused is concerned, the High Court had taken
up the issue but in view of the sufficient material on record to prove
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the guilt, did not consider it proper to deal with it elaborately. The
High Court has held as under:
"So far as legality of conviction of appellant
Sanichar Sahni is concerned, we have no doubt in our
mind that the evidence as discussed above is sufficient to
fasten liability upon him for making conspiracy to
commit murder of victim Bhola Chaudhary. The Court
below has rightly convicted this appellant under Section
120B IPC."
12. Learned counsel Mr. A.P. Sahay, appearing for the appellant
has placed reliance upon the judgment of this Court in Topandas v.
State of Bombay A.I.R. 1956 S.C. 33 wherein it has been held that
in a case of conspiracy there ought to be two or more persons who
must be parties to an agreement and it is trite to say that one
person alone can never be held guilty for criminal conspiracy for the
simple reason that one cannot conspire with oneself. However, in
the said case four persons were charged for having committed the
offence under Section 120-B IPC and out of them three were
acquitted of the charges, remaining one could not be convicted to be
guilty of the offence of criminal conspiracy. Same view has been
reiterated in Fakhruddin Vs. State of Madhya Pradesh AIR 1967
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SC 1326, wherein this Court held that the offence of conspiracy
cannot survive the acquittal of the alleged co-conspirators. In that
case also if the other co-accused were to be acquitted of all the
charges, this Court held that the appellant Fakhruddin could not be
convicted unless there was a proof that he had conspired with
person or persons other than his co-accused. Both the above
referred to cases had been where all co-accused had been acquitted
of the charges of conspiracy. Thus the said cases referred to and
relied upon by the learned counsel for the appellant are of no
assistance as the facts involved in the instant case are quite
distinguishable. At the most it can be held that the charge had not
been framed properly. It is also not the case where the appellant
can take the plea that he was not aware as what was the charge
against him and what defence he could lead. There had been
evidence of hatching the conspiracy of impeccable character. On the
point of conspiracy the courts below have recorded the finding
against the appellant.
13. In State of A.P. v. Thakkidiram Reddy, (1998) 6 SCC 554,
this Court considered the issue of not framing the proper charges.
In that case averment had been raised that charges have not been
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framed against the accused persons in accordance with Section 211
Cr.P.C.. In that case the charge had been framed under Section
148 IPC, though it was alleged that they were the members of an
unlawful assembly, it was not mentioned what its common object
was. Besides, it was contended, a charge under Section 302 IPC
simpliciter was framed against all the accused persons and not with
the aid of Section 149 IPC for which they were convicted by the trial
court. This Court repealed the contention observing as under:
"10. Sub-section (1) of Section 464 of the Code of
Criminal Procedure 1973 ("Code" for short) expressly
provides that no finding, sentence or order by; a court of
competent jurisdiction shall be deemed invalid merely on
the ground that no charge was framed or on the ground
of any error, omission or irregularity in the charge
including any misjoinder of charges, unless in the
opinion of the court of appeal, confirmation or revision, a
failure of justice has in fact (emphasis supplied) been
occasioned thereby. Sub-section (2) of the said section
lays down the procedure that the court of appeal,
confirmation or revision has to follow in case it is of the
opinion that a failure of justice has in fact been
occasioned. The other section relevant for our purposes
is Section 465 of the Code; and it lays down that no
finding, sentence or order passed by a court of competent
jurisdiction shall be reversed or altered by a court of
appeal, confirmation or revision on account of any error,
omission or irregularity in the proceedings, unless in the
opinion of that court, a failure of justice has in fact been
occasioned. It further provides, inter alia, that in
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determining whether any error, omission or irregularity
in any proceeding under this Code has occasioned a
failure of justice, the Court shall have regard to the fact
whether the objection could and should have been raised
at an earlier stage in the proceedings. "
The Court further held that in judging a question of prejudice, as of
guilt, court must act with a broad vision and look to the substance
and not to technicalities, and its main concern should be to see
whether the accused had a fair trial, whether he knew what he was
being tried for, whether the main facts sought to be established
against him were explained to him fairly and clearly and whether he
was given a full and fair chance to defend himself. In the said case
this Court ultimately came to the conclusion that in spite of defect
in framing of charge, as no prejudice had been caused to the
convicts, no interference was required.
14. A Constitution Bench of this Court in Willie (William) Slaney,
v. State of M.P., AIR 1956 SC 116, considered the issue of non-
framing of charges properly and conviction of an accused for the
offences for which he has not been charged and reached the
conclusion as under:-
"In such a situation, the absence of a charge under one
or other of the various heads of criminal liability for the
offence cannot be said to be fatal by itself, and before a
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conviction for the substantive offence, without a charge,
can be set aside, prejudice will have to be made out. ....
..... .... If it is so grave that prejudice will necessarily be
implied or imported, it may be described as an illegality.
If the seriousness of the omission is of a lesser degree, it
will be an irregularity and prejudice by way of failure of
justice will have to be established" .
15. This Court in Gurpreet Singh v. State of Punjab, (2005) 12
SCC 615 referred to and relied upon its earlier judgments in Willie
(William) Slaney, (supra) and State of A.P. v. Thakkidiram
Reddy, (supra) and held that unless there is failure of justice and
thereby the cause of the accused has been prejudiced, no
interference is required if the conviction can be upheld on the
evidence led against the accused. The Court should not interfere
unless it is established that the accused persons were in any way
prejudiced due to the errors and omissions in framing the charges
against him.
16. A similar view has been reiterated by this Court in Ramji
Singh v. State of Bihar (2001) 9 SCC 528.
17. Therefore, the law on the issue can be summarized to the
effect that unless the convict is able to establish that defect in
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framing the charges has caused real prejudice to him and that he
was not informed as what was the real case against him and that he
could not defend himself properly, no interference is required on
mere technicalities. Conviction order in fact is to be tested on the
touchstone of prejudice theory.
18. In the instant case learned counsel for the appellant, Mr.
Sahay could not point out as to what prejudice has been caused to
the appellant. Charge has been framed against the appellant under
Section 120-B IPC. He never raised any grievance against the same
at the time of framing of the charge or during the course of the trial
or by filing any petition for quashing the charge. The issue was not
agitated before the High Court also. On this very issue of
conspiracy, the prosecution led evidence of impeccable character of
two witnesses, namely, Ashok Paswan PW.2 and Ashok Kumar
Verma PW.5. The appellant was given full opportunity to defend
himself only on this very point of conspiracy as there was no other
allegation against him. He was asked specific question by the trial
court on the point of conspiracy while recording his statement
under Section 313 Cr.P.C. Therefore, it cannot be held even by any
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stretch of imagination that any prejudice has been caused to the
appellant on this very issue.
19. Thus, in view of the above, we do not find any force in this
appeal. The appeal is, accordingly, dismissed.
............ ......... ......... ......... ..J.
(Dr. Mukundakam Sharma)
............ ......... ......... ......... ..J.
(Dr. B.S. Chauhan)
New Delhi;
26th May, 2009.
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Digital Proforma
1. Case No. : Criminal Appeal No. 772 of 2008
2. Date of decision : 26.5.2009
3. Cause Title : Sanichar Sahni
vs.
The State of Bihar
4. Coram : Hon'ble Dr. Justice Mukundakam Sharma
Hon'ble Dr. Justice B.S. Chauhan
5. Date of C.A.V. : 20.5.2009
6. Judgment delivered Hon'ble Dr. Justice B.S. Chauhan
by :
7. Nature of judgment : Reportable
Whether reportable
------------ --------- --------- --------- --------- --------- -
This judgment came from Hon'ble Supreme Court of India and delivered by Hon'ble Dr. Justice B.S. Chauhan on dated 20.05.09. He have described so many Questions of Law in length but as per our state`s concern it not a simply judgment that is given by supreme court .It show the mindset of justice delivery system which is going in Bihar the day's. The date of crime is 12.10.2001 and the date of judgment is 20.05.09.its within 8year 7 month and it a strange how speedily the three tire of judicial system have delivered the judgment. Now its gone day history in Bihar that parson can commit a crime and after a long year ago he was punish for his crime. Speedy trail is a way where can finish organized crime and it's only possible if the state government is supporting &administrating his policing system. This day government of Bihar has appointed so many good & competent lawyers as public prosecutor in prosecution office whether it can be high court, lower court or Supreme Court. So many notorious criminal's are send to behind bar. Finally its strengthen the thought about Bihar now the day gone story are in Bihar that, a wrong dourer can be left abandon in Bihar .As a lawyer or being a Bihari its really proudest moment for me as now be all can say Bihar is no more lawless state. It's only possible in the governments whose head is good dynamic administrator and keep effectively surveillances upon his officer/police.
NILOTPAL SHARMA
ADVOCATE
DELHI HIGH COURT
M#09868768094
NILOTPAL
