BHARAMAPPA GOGI Vs. PRAVEEN MURTHY & ORS. ETC.

Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2216-2217 of 2010, Judgment Date: Feb 09, 2016

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2216-2217 OF 2010

BHARAMAPPA GOGI …APPELLANT

VERSUS

PRAVEEN MURTHY & ORS. ETC. …RESPONDENTS

J U D G M E N T

AMITAVA ROY, J.

These appeals register a challenge to the judgment and order
dated 4.12.2009 rendered in Criminal Appeal Nos. 1126 of 2006 and 1167
of 2006 preferred by the respondent Nos. 1 and 2 in Criminal Appeal No.
2216 of 2010 and respondent No. 1 in Criminal Appeal No. 2217 of 2010
respectively.

2. The appellant-complainant is aggrieved by the interference with
the conviction of the respondents-accused recorded by the trial court.
Whereas respondent Nos. 1 and 2 in Criminal Appeal No. 2216 of 2010
were convicted under Sections 390/392/457 read with Section 34 IPC,
they were acquitted of the charge under Section 302 IPC. The
respondent No. 1 in Criminal Appeal No. 2217 of 2010, however, had been
additionally convicted under Section 302 IPC. All the three accused
were sentenced accordingly. Though the respondents-accused preferred
appeals against their conviction, as above, the State refrained from
doing so, more particularly against the acquittal of respondent Nos. 1
and 2 of the charge under Section 302 IPC.

3. We have heard learned counsel for the parties.

4. The prosecution case relates back to the night of 18.4.2005.
The deceased Nemiraj Gogi was in his house, while his wife and son were
out of station. It is alleged that the respondents-accused visited his
house in the said night, committed robbery of the valuable household
items including gold and silver articles and in the process, also
committed the murder of Nemiraj Gogi. According to the prosecution,
the housemaid in the morning, having found the deceased body, informed
the brother of the deceased, who lodged the FIR on 19.4.2005 at 8 A.M.
and the investigation was thus set in motion. The report mentioned that
some unknown persons had committed the offence.

5. In course of the investigation, recoveries of the valuable
articles, claimed to be at the instance of the respondents-accused,
were made. According to the prosecution, recovery of the weapon of
assault i.e. the knife and seizure, amongst them, of the blood stained
clothes of the deceased were also effected. The respondents-accused
were arrested and on the completion of the inquisition, charge-sheet
under Sections 120B/302/380/394 and 397 read with Section 34 IPC was
laid against them. The case of the prosecution is based on
circumstantial evidence.

6. The trial court framed charges against the respondents-accused
under Sections 120B/302/390/392/457 read with Section 34 IPC and on the
basis of the evidence adduced by the prosecution and on a consideration
of the other materials on record, convicted and sentenced the
respondents-accused as above.

7. The High Court, as the impugned judgment and order would reveal,
not only did find fault with the trial court in omitting to frame
charge under Section 397 IPC against the respondents-accused, but also
recorded its disapproval of the analysis and the appreciation of the
evidence on record. The High Court was, inter alia, of the view that
the trial court was not justified in acquitting the respondent Nos. 1
and 2 in Criminal Appeal No. 1126 of 2006 of the charge under Section
302 IPC. Referring to Sections 386 and 401 Cr.P.C. and invoking its
suo motu power of revision, the High Court interfered with the
conviction of the respondents-accused and remitted the matter to the
trial court to frame charge under Section 397 IPC against the
respondents-accused and to undertake a fresh consideration of the
materials on record. Liberty was also granted to the trial court to
record additional evidence, if construed necessary.

8. The learned counsel for the appellant-informant has urged that
having regard to the conspectus of facts on which the case of the
prosecution is founded, the trial court did not commit any error in not
framing a charge under Section 397 IPC against the respondents-accused.
He maintained that the High Court in this premise, ought not to have
interfered with their conviction, but ought to have heard their
appeals on merit after affording due opportunity to the prosecution to
demonstrate that all of them were liable to be convicted on the charges
framed and proved against them.

9. In reply, learned counsel for the respondents-accused has
submitted that he would not join issue with the appellant, if the
matter is remanded to the High Court by maintaining the charges as
framed by the trial court for a decision on the appeals on merits.

10. We have extended our thoughtful consideration to the debate
involved. A plain reading of the decision impugned in the instant
appeals, to start with, reveals that the High Court though the final
court of facts, did not adequately address itself to the evidence on
record as required, and instead laid more emphasis on the perceived
omission on the part of the trial court in not framing charge under
Section 397 IPC against the respondents-accused. We would refrain
presently from offering any observation on the merits of the case, for
obvious reasons.

11. As adverted to hereinabove, the trial court had framed charge
against the respondents-accused under Sections 120B/302/390/392/457
read with Section 34 IPC. For ready reference, the texts of the above
legal provisions are set-out hereunder:

“120B :Punishment of criminal conspiracy.—

(1) Whoever is a party to a criminal conspiracy to commit an
offence punishable with death, [imprisonment for life] or
rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner
as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as aforesaid
shall be punished with imprisonment of either description for a
term not exceeding six months, or with fine or with both.]

302 - Punishment for murder—Whoever commits murder shall be
punished with death, or [imprisonment for life], and shall also
be liable to fine.

390- Robbery—In all robbery there is either theft or extortion.

392-Punishment for robbery—Whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to fine; and, if the
robbery be committed on the highway between sunset and sunrise,
the imprisonment may be extended to fourteen years.

457-Lurking house-trespass or house-breaking by night in order
to commit offence punishable with imprisonment—Whoever commits
lurking house-trespass by night, or house-breaking by night, in
order to the committing of any offence punishable with
imprisonment, shall be punished with imprisonment of either
description for a term which may extend to five years, and shall
also be liable to fine; and, if the offence intended to be
committed is theft, the term of the imprisonment may be extended
to fourteen years.

34- Acts done by several persons in furtherance of common
intention—When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by
him alone.”

Section 397 IPC reads thus:

“Robbery, or dacoity, with attempt to cause death or grievous
hurt.—If, at the time of committing robbery or dacoity, the
offender uses any deadly weapon, or causes grievous hurt to any
person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be
punished shall not be less than seven years.”

12. Having regard to the number of persons allegedly involved in
the offences, as disclosed by the prosecution, the crimes committed are
of murder in the course of robbery together with lurking house trespass
and house breaking by night in order to commit offence punishable with
imprisonment with common intention. Though Section 397 IPC deals
with robbery or dacoity with attempt to cause death or grievous hurt
and prescribes punishment by way of imprisonment of not less than
seven years, in our view, the High Court ought to have decided the
appeals on merit without remanding the case to the trial court for
fresh adjudication after framing charge under Section 397 IPC and
recording additional evidence, if deemed necessary.

13. The purpose of framing a charge against an accused person is to
acquaint him with the incriminating facts and circumstances proposed to
be proved against him in the trial to follow. The principal objective
is to afford him an opportunity of preparing his defence against the
charge. The possibility of prejudice to the accused arises, if he is
not made conversant with the entire gamut of facts constituting the
accusations leveled against him, as has been consistently propounded by
this Court, amongst others, in V.C. Shukla vs. State through CBI (1980)
Supp. SCC 92. Though Section 397 IPC, having regard to the case of the
prosecution, may not be wholly irrelevant, the charges framed against
the respondents-accused by the trial court, do adequately encompass
all essential facts building up the offences imputed against them.

14. In view of the inclusion of Section 34 IPC in the array of
offences, for which the respondents-accused had been charged by the
trial court, as well as the facts and the evidence sought to be relied
upon by the prosecution, in our estimate, the order of remand was not
called for and the appeals should have been decided on merits, on the
basis of the charges already framed and the materials on record. The
deduction of the High Court that the omission to frame charge under
Section 397 IPC has resulted in miscarriage of justice is unconvincing
in the facts of this case. That meanwhile more than a decade has
passed since the date of the incident, cannot also be readily over-
looked.

15. On an overall consideration of the above aspects, we are not
inclined to sustain the impugned decision. It is, thus, set-aside.
The criminal Appeal Nos. 1126 of 2006 and 1167 of 2006 filed by the
respondents-accused before the High Court are restored to their
original numbers, for disposal afresh in accordance with law on the
basis of the charges already framed and the evidence on record. We
make it clear that we have not offered any observation on the merits
of the case.

16. The appeals are disposed of in the above terms.

……..……………………..….J.
(S.A. BOBDE)

……..……………………..….J.
(AMITAVA ROY)
NEW DELHI;
FEBRUARY 9, 2016.

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