Case Summary
| Citation | Mohan Singh v. State of Bihar (2011) 9 SCC 272 |
| Keywords | sec 20 and 50 of NDPS Act, sec 313 of crpc, serious error in conviction by Session Court |
| Facts | A constable noticed that a person was coming on a bicycle from the said of Kumardhubi Market and he had a Jhola on his bicycle and on seeing them, he started fleeing away but he was chased and caught. On search, four kilograms of Ganja was recovered from his Jhola but he failed to produce any document in re- spect of the said Ganja. Accordingly, seizure list was prepared in presence of the independent witnesses. The First Information Report was lodged accordingly. The police investigated the case and submitted charge-sheet against the appel-lant. The appellant appeared before the Special Judge and charge under Section 20 (b) (i) of the N.D.P.S Act was framed which was read over to which he pleaded not guilty. The appellant appealed against the judgment of conviction and sentence on the grounds that the learned Court below committed serious error in convicting the appellant though there is an illegality inPreparation of seizure list and the provision of. Section 50 of the N.D.P.S Act has not been complied with.The appellant argued that that the the provision of Section 50 of the N.D.P.S Act, which is mandatory, had not been complied with. |
| Issues | Whether the learned Court below committed serious error in convicting the appellant though there is an illegality in preparation of seizure list and the provision of Section 50 of the N.D.P.S Act has not been complied with? |
| Contentions | |
| Law Points | The appellant/accused was examined under Section 313 of the Code of Criminal Procedure and he denied the allegation. Obviously, the appellant was not informed by the police officer/informant that he had right to be searched in presence of the Magistrate or a Gazetted Officer. It is the obligation of the PoliceOfficer to inform the appellant of his right to be searched in presence of a Gazetted Officer or a Magistrate if the person of the accused is to be searched. Since themandatory provision was not complied with as well as there appears much infirmity in conducting the case as the informant being the complainant has lodged the First Information Report, he should not have proceeded with the investigation of the case. The court noted that P.Ws 1 and 2, who were the seizure list witnesses, had admitted in their cross-exami-nation that the said Ganja was never weighed in their presence. The court also observed that the provi-sion of Section 50 of the N.D.P.S Act, which is mandatory, had not been complied with. Therefore, thecourt found that the learned Court below had committed serious error in convicting the appellant. |
| Judgement | The court found merit in the appeal and set aside the judgment of conviction and sentence passed by the learned Court below. The appellant, Mohan Singh, was acquitted and set at liberty. He was discharged from the liability of his bail-bonds. |
| Ratio Decidendi & Case Authority |
Full Case Details
A.K.GANGULY, J.
1. This criminal appeal has been preferred from the judgment of the High Court in
Criminal Appeal (DB) No. 1338 of 2007, dated 3.9.2008, whereby the High Court
upheld the judgment and order of conviction passed by the learned Additional Sessions
Judge, Fast Track Court-IV, Motihari, East Champaran in Sessions Trial No. 101/16 of
2006/2007. The learned Sessions Court held the appellant guilty of criminal 1
conspiracy for murder under sections 120B of IPC and of extortion under section 387
of IPC and sentenced him to undergo rigorous imprisonment for life and was fined for
Rs.25,000/- for the offence of criminal conspiracy for murder under section 120B, in
default of which he was to further undergo simple imprisonment for 1 year. He was
further sentenced for seven years rigorous imprisonment under section 387 IPC and
was fined Rs.5,000/-, in default of which to undergo simple imprisonment for six
months.
2. The facts of the case are that the informant Shri Vikas Kumar Jha gave a fardbeyan
to the effect that at about 5.00 P.M. on 23.7.2005, he had received a call on, inquiring
about his elder brother Shri Anil Kumar Jha. The informant stated before the police that
his elder brother, the owner of a medical store, on the said date had been out of town.
He submitted that he had communicated the same to the caller. Upon such reply, the
caller disclosed himself as Mohan Singh, the appellant herein, and asked the informant
to send him Rs.50,000/-. The informant submitted that he had similar conversations
with the caller three to four times in the past. However, he then received another
telephone call on 25.7.2005 from a cell phone. The caller threatened him that since the
demand of money had not been fulfilled, the informant should be ready to face the
consequences. Upon his elder brother’s return, the informant had narrated the events to
him. However, his elder brother did not take the threat seriously.
3. On 3.8.2005, at about 9.00 P.M. when the informant was at a place called Balua
Chowk, he had received a call from his driver Shri Dhanai Yadav on his cell phone to
the effect that informant’s elder brother and their father, Shri Sureshwar Jha, had been
shot at while they were in their medical store, and that both of them had been rushed to
Sadar Hospital. On 3 reaching Sadar Hospital, the informant saw the dead body of his
elder brother. He was intimated by the people there that his father had been shifted to
another hospital called Rahman’s Nursing Home. He was also told that the shots had
been fired by one Laxmi Singh and Niraj Singh. Having heard this, the informant rushed
to Rahman’s Nursing Home, where his injured father told him that while Niraj Singh
cleared the medical store of all the other people, Laxmi Singh had fired shots at him
and Anil Kumar Jha with an A.K. 47 rifle, before fleeing from the scene. After narrating
such events, his father became unconscious.
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4. The informant further stated that his family had actually known the appellant and
Laxmi Singh from an earlier incident in 2004, when on the occasion of Durga Puja, the
two had sent a messenger to Anil Kumar Jha’s medical store, demanding Rs.50,000/-
or to face death in the alternative. He submitted that pursuant to this, they had preferred
a complaint 4 before the police, and that the matter was sub judice. He further stated
that he had actually met the appellant once prior to the telephone calls when the latter
had asked for money, as contribution for celebrations of Sarswati Puja and Durga Puja.
The informant thus stated that his father and brother had been attacked by Laxmi Singh
and Niraj Singh at the instance of Mohan Singh for not having paid the extortion money.
The informant said so on the identification of the voice of the telephone caller as that
of the appellant. He, however, did not follow up the calls made on 23rd and 25th of
July, 2005 either with the appellant in person, or with the authorities of Motihari jail
where the appellant was in fact lodged at the time of the calls. These statements of the
informant were supported by the informant’s father Sureshwar Jha, and his other brother
Sunil Kumar Jha.
5. On the basis of this fardbeyan, Motihari Town Police Station Case No.246/2005 was
registered on 3.8.2005 against the appellant Mohan Singh, Laxmi Singh, Niraj Singh
and others. The investigating officer submitted that he had known the appellant to have
as many as seven criminal cases for murder, kidnapping for ransom and loot, pending
against him. However, he submitted that he had received the phone number attributed
to the appellant only from the informant. Though he submitted that as many as nine
calls had been made between the phone numbers attributed to the appellant and Laxmi
Singh, and that he had retrieved the records of calls made by the number attributed to
the appellant and that of the informant, he had not been able to establish as to who were
the registered owners of the SIM cards.
6. The learned Sessions Court in the course of trial took note of the fact that identities
of the registered owners of the said SIM cards had not been established by the police,
but it did not give much emphasis on this on the grounds that the informant’s family
had known the appellant and Laxmi Singh long enough and had known about their
common intention to extort money. On these findings the learned Sessions Court found
the appellant guilty.
7. On appeal the learned Division Bench upheld the conviction inter alia on the grounds
that the informant himself and his family had known the appellant and Laxmi Singh
from before.
8. Even though the High Court in the impugned judgment held that identification by
voice and gait is risky, but in a case where the witness identifying the voice had previous
acquaintance with the caller, the accused in this case, such identification can be relied
upon. The High Court also held that direct evidence in a conspiracy is difficult to be
obtained. The case of conspiracy has to be inferred from the conduct of the parties.
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9. The High Court relied upon the evidence of the informant, PW.4 and on Exts. 9 and
10 where the conversation between PW.4 and the appellant was recorded. The High
Court also relied upon the evidence of PW.1 Dhanai Yadav, who was sitting inside the
medical store of the deceased Anil Kumar Jha at the time of the incident. PW.1 was a
witness to the incident of Laxmi Singh firing shots at the deceased and his father
Sureshwar Jha. The High Court also relied upon the evidence of PW.2 Surehswar Jha,
the injured witness. The High Court found that the evidence of PW.2 and 4 is
unblemished and their evidence cannot be discarded. The High Court also relied upon
the evidence of PW.4 as having identified the voice of the appellant.
10. On appreciation of the aforesaid evidence, the High Court came to the conclusion
that Mohan Singh was performing one part of the act, and Laxmi Singh performed
another part, both performing their parts of the same act. Thus the case of conspiracy
was made out.
11. Assailing such finding of the Sessions Court which has been affirmed by the High
Court, the learned Counsel appearing for the appellant argued that the appellant cannot
be convicted under section 120-B and given the sentence of rigorous imprisonment for
life in view of the charges framed against the appellant.
12. In order to appreciate this argument, the charges framed against the appellant are
set out below: “FIRST – That you, on or about the day of at about or during the period
between 23.7.05 & 3.8.05 agreed with Laxmi Narain Singh, Niraj Singh & Pankaj
Singh to commit the murder of Anil Jha, in the event of his not fulfilling your demand,
as extortion of a sum of Rs.50,000/- and besides the above said agreement you did
telephone from Motihari Jail to Vikash Jha in pursuance of the said agreement
extending threat of dire consequences if the demand was not met and then on 3.8.05 the
offence of murder punishable with death was committed by your companions Laxmi
Narain Singh and Niraj Singh and you thereby committed the offence of criminal
conspiracy to commit murder of Anil Jha and seriously injured Sureshwar Jha and
thereby committed an offence punishable under Section 120-B of the Indian Penal
Code, and within my cognizance.
SECONDLY – That you, during the period between 23.7.05 & 3.8.05 at Hospital gate
Motihari P.S., Motihari Town Dist. East Champaran, Put Vikash Jha in fear of death
and grievous hurt to him and his family members in order to commit extortion on
telephone and thereby committed an offence punishable under Section 387 of the Indian
Penal Code, and within my cognizance and I hereby direct that you be tried by me on
the said the charge.
Charges were read over and explained in Hindi to the accused and the accused pleaded
not guilty as charged. Let him be tried.”
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13. Admittedly, no complaint of any prejudice by the appellant was raised either before
the trial Court or in the High Court or in the course of examination under Section 313
Cr.P.C. These points have been raised before this Court for the first time.
15. However, instead of refusing to consider the said grievance on the ground of not
having been raised at an earlier stage of the proceeding, we propose to examine the
same on its merits.
16. The purpose of framing a charge is to give intimation to the accused of clear,
unambiguous and precise notice of the nature of accusation that the accused is called
upon to meet in the course of a trial. (See decision of a four-Judge Bench of this
Court in V.C. Shukla v. State 1980 supp SCC 92 at page 150 and paragraph 110 of
the report). Desai,J. delivering a concurring opinion, opined as above.
17. But the question is how to interpret the words in a charge? In this connection, we
may refer to the provision of Section 214 of the Code. Section 214 of the Code is set
out below:
“214. Words in charge taken in sense of law under which offence is punishable. In
every charge words used in describing an offence shall be deemed to have been used in
the sense attached to them respectively by the law under which such offence is
punishable.”
18.The other relevant provisions relating to charge may be noticed as under:
“211. Contents of charge- (1) Every charge under this Code shall state the offence with
which the accused is charged.
(2) If the law which creates the offence gives it any specific name, the offence 12 may
be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of
the definition of the offence must be stated as to give the accused notice of the matter
with which he is charged.
(4) The law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal
condition required by law to constitute the offence charged was fulfilled in the
particular case.
(6) The charge shall be written in the language of the Court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason
of such previous conviction, to enhanced punishment, or to punishment of a different
kind, for a subsequent offence, and it is intended to prove such previous conviction for
the purpose of affecting the punishment which the Court may think fit to award for the
subsequent offence, the fact date and place of the previous conviction shall be stated in
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the charge; and if such statement has been omitted, the Court may add it at any time
before sentence is passed.
215. Effect of errors- No error in stating either the offence or the particulars required
to be stated in the charge, and no omission to state the offence or those particulars, shall
be regarded at any stage of the case as material, unless the 13 accused was in fact misled
by such error or omission, and it has occasioned a failure of justice.
464. Effect of omission to frame, or absence of, or error in, charge.- (1) 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 been
occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice
has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that
the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be
had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid
charge could be preferred against the accused in respect of the facts proved, it shall
quash the conviction.”
19. While examining the aforesaid provisions, we may keep in mind the principles laid
down by Justice Vivian Bose in Willie (William) Slaney v. State of MP AIR1956 SC
116. At page 1165-66 of the report, the learned judge observed(AIRP.127,Para40)
40″We see no reason for straining at the meaning of these plain and emphatic provisions
unless ritual and form are to be regarded as of the essence in criminal trials. We are
unable to find any magic or charm in the ritual of a charge. It is the substance of these
provisions that count and not their outward form. To hold otherwise is only to provide
avenues of escape for the guilty and afford no protection to the innocent.”
23. In K. Prema S. Rao v. Yadla Srinivasa Rao (2003) 1 SCC 217 this Court held that
though the charge specifically under Section 306 IPC was not framed but all the
ingredients constituting the offence were mentioned in the statement of charges and in
paragraph 22 at page 226 of the report, a three-Judge Bench of this Court held that mere
omission or defect in framing of charge does not disable the criminal court from 18
convicting the accused for the offence which is found to have been proved on the
evidence on record.The learned Judges held that provisions of Section 221 Cr.P.C. takes
care of such a situation and safeguards the powers of the criminal court to convict an
accused for an offence with which he is not charged although on facts found in evidence
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he could have been charged with such offence. The learned Judges have also referred
to Section 215 of the Cr.P.C., set out above, in support of their contention.
24. Even in the case of Dalbir Singh v. State of U.P., (2004) 5 SCC 334, a three-Judge
Bench of this Court held that in view of Section 464 Cr.P.C. it is possible for the
appellate or revisional court to convict the accused for an offence for which no charge
was framed unless the court is of the opinion that the failure of justice will occasion in
the process. The learned Judges further explained that in order to judge whether there
is a failure of justice the Court has to examine whether the accused was aware of the
basic ingredients of the offence for which he is being convicted and whether the main
facts sought to be established against him were explained to him clearly and whether
he got a fair chance to defend himself.
25. In State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372 this Court, setting
out Section 464 of Cr.P.C., further held that whether there is failure of justice or not has
to be proved by the accused. In the instant case no such argument was ever made before
the Trial Court or even in the High Court and we are satisfied from the materials on
record that no failure of justice has been occasioned in any way nor has the appellant
suffered any prejudice.
26. In Annareddy Sambasiva Reddy v. State of AP (2009) 12 SCC 546 this court again
had occasion to deal with the same question and referred to Section 464 of Cr.P.C. In
paragraph 55 at page 567 of the report, this Court came to the conclusion that if the
ingredients of the section charged with are obvious and implicit, conviction under such
head can be sustained irrespective of the fact whether the said section has been
mentioned or not in the charge. The basic question is one of prejudice.
27. In view of such consistent opinion of this Court, we are of the view that no prejudice
has been caused to the appellant for non-mentioning of Section 302 I.P.C. in the charge
since all the ingredients of the offence were disclosed. The appellant had full notice and
had ample opportunity to defend himself against the same and at no earlier stage of the
proceedings, the appellant had raised any grievance. Apart from that, on overall
consideration of the facts and circumstances of this case we do not find that the
appellant suffered any prejudice nor has there been any failure of justice.
28. In the instant case, in the charge it has been clearly mentioned that the accusedappellant has committed the murder of Anil Jha. By mentioning that the accused has
committed the murder of Anil Jha all the ingredients of the charge have been mentioned
and the requirement of Section 211, sub-section (2) has been complied with. Therefore,
we do not find any substance in the aforesaid grievance of the appellant.
29. Now the only other point on which argument has been made on behalf of the
appellant is that in the instant case appellant was in jail at the time of the commission
of the offence. It has been submitted that his involvement in the whole episode has been
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argued for only on the evidence of PW.4 who 22 is said to have identified his voice on
the basis of some telephone calls. These are essentially questions of fact and after a
concurrent finding by two courts normally thisCourt in an appeal against such finding
is slow and circumspect to upset such finding unless thisCourt finds the finding to be
perverse.
30. However, on the legal issue one thing is clear that identification by voice has to be
considered bythis Court carefully and on this aspect some guidelines have been laid
down by this Court in the caseof Kirpal Singh v. The State of UP AIR 1965 SC 712.
In dealing with the question of voice identification, construing the provisions of Section
9 of the Indian Evidence Act,this Court held (AIRp714,para4)
“…It is true that the evidence about identification of a person by the timbre of his voice
dependingupon subtle variations 23 in the overtones when the person recognising is not
familiar with the person recognised may be some-what risky in a criminal trial.But the
appellant was intimately known to Rakkha Singh and for more than a fortnight before
thedate of the offence he had met the appellant on several occasions in connection with
the dispute about the sugarcane crop….”
31. Relying on such identification by voice this Court held in Kripal Singh that it cannot
come to the conclusion that the identification of the assailant by Rakkha Singh was so
improbable that this Court would be justified in disagreeing with the opinion of the
Court which saw the witness and formed its opinion as to its credibility and also of the
High Court which considered the evidence against the appellant and accepted the
testimony (see para 4, page 714 of the report). The same principles will apply here.
34. The learned counsel for the appellant relied on some judgments in support of his
contention that in the facts of this case voice identification cannot be accepted. The
learned counsel relied on a judgment of this Court in the case of Nilesh Dinkar
Paradkar v. State of Maharashtra (2011) 4 SCC 143. In that case the voice in the
telephone was tapped and then the voice was recorded in a cassette and the cassette was
then played to identify the voice. Therefore, there is a substantial factual difference with
the facts in the case of Nilesh (supra) and the facts of the present case. Apart from that
in Nilesh , the High Court acquitted A1 to A4 and this Court finds that the 26 evidence
against Nilesh was identical. Therefore, this Court held that the conclusion of the High
court in acquitting Accused 1, 2, 3 and 4 has virtually “destroyed the entire substratum
of the prosecution case” (see para 28 of the report).Since that decision was passed on
tape recorded version of the voice, the principles decided in that case, even though are
unexceptionable, cannot be applied to the present case.
35. The other case on which reliance was placed by the learned counsel for the appellant
was in the case of Inspector of Police, Tamil Nadu v. Palanisamy alias Selvan reported
in (2008) 14 SCC 495. In that case this Court held that identification from voice is
possible but in that case no evidence was adduced to show that witnesses were closely
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acquainted with the accused to identify him from his voice and that too from very short
replies. Therefore, this case factually stands on a different footing. In the instant case
the evidence of PW.4 that he knows the 27 voice of the appellant was not challenged
nor was it challenged that the mobile no. 9835273765 is not that of the appellant. Nor
has the evidence of PW.8 been challenged that on 3.8.2005 eight calls were recorded
between the mobiles of the appellant and his conspirator Laxmi Singh.
36. The next decision on which reliance was placed by the learned counsel for the
appellant was rendered in the case of Saju v. State of Kerala (2001) 1 SCC 378. In Saju
this Court explained the principles of Section 10 of the Evidence Act, as follows:-
Condition for applicability of the Indian Evidene Act, 1872 – Sec.10
Act or action of one of the accused cannot be used as evidence against the other.
However, an exception has been carved out under Section 10 of the Evidence Act in
the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act,
the court must have reasonable ground to believe that two or more persons had
conspired together for committing an offence. It is only then that the evidence of action
or statement made by one of the accused could be used as evidence against the other.”
If we apply the aforesaid principles to the facts of the present case it is clear that there
is enough evidence to furnish reasonable ground to believe that both the appellant and
Laxmi Singh had conspired together for committing the offence. Therefore, the
principles of this case do not help the appellant.
38. Reliance was also placed on the decision of this Court in the case of S. Arul Raja v.
State of Tamil Nadu (2010) 8 SCC 233. In that case this Court held that mere
circumstantial evidence to prove the involvement of the accused is not sufficient to
meet the requirements of criminal conspiracy and meeting of minds to form a criminal
conspiracy has to be proved by placing substantive evidence. In the instant case, as
discussed above, substantive evidence was placed to prove the meeting of minds
between the appellant and Laxmi Singh about the murder of the victim. In evidence
which has 30 been noted hereinabove in the earlier part of the judgment it clearly shows
that there is substantial piece of evidence to prove criminal conspiracy.
40. For the reasons discussed above, this Court does not find that there is any reason to
interfere with the concurrent finding in the instant case. This Court, therefore, does not
find any reason to take a view different from the one taken by the High Court. The
appeal is dismissed and the conviction of the appellant under Section 120B of IPC for
life imprisonment is affirmed.
