Dumpala Chandra Reddy
Vs. Nimakayala Balireddy & Ors.  INSC 1112 (14 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.309 OF 2001 Dumpala
Chandra Reddy ...Appellant Nimakayala Balireddy and Ors. ...Respondents (With
Crl. Appeal No. 310 of 2001)
Dr. ARIJIT PASAYAT,
1. Heard learned
counsel for the parties.
2 These two appeals,
one by the complainant Dumpala Chandra Reddy and other by the State of A.P.
question the correctness of judgment of a Division Bench of the Andhra Pradesh
High Court, which, while holding that the respondents were responsible for
causing the death of one Gangireddigari Kondareddy (hereinafter referred to as
the 1 `deceased') convicted them in terms of Section 326 of the Indian Penal
Code, 1860 (in short `the IPC') instead of Section 302 IPC as was done by the
3. The respondents,
along with one Nimmakayala Lakshmi Reddy (A-8) s/o Obul Reddy faced trial for
alleged commission of offences punishable under Sections 148, 302 IPC and in
respect of the deceased A-8, Section 114 IPC. The Trial Court found the accused
persons guilty of offences punishable under Section 148 IPC and also under
Section 302 IPC. For the former offence, they were directed to undergo sentence
of two years while for the latter offence, life imprisonment was imposed.
4. Substance of the
accusations, which led to the trial, is as follows.
All the accused are
residents of Gopalapuram village. The deceased was a resident of Khajipalli
village. PWs 1 and 3 are also the residents of Khajipalli village. PWs 1 and 2
are 2 the brother-in-laws of the deceased and PW3 is the brother of the
Originally, all the
accused were residents of Khajipalli village. Due to factions with the deceased's
family, the deceased left the village and migrated to Gopalapuram village.
About 18 years ago,
A-8's brother's son by name Pattabhi Reddy married one Dumpala Munemma,
resident of Khajipalli village. Munemma is related to the family of the deceased.
A- 2 and A-4 are brothers of Pattabhi Reddy. Pattabhi Reddy deserted his wife
Munemma, resident of Khajipalli village.
Due to that, there
were differences between the accused and the deceased and also there were
criminal cases filed against each other.
Accused persons were
residents of Khajipalli village. After filing of the criminal cases, the
accused left Khajipalli and settled down at Gopalapuram. About 8 years prior to
the murder of the deceased, A-2, A-4 and Pattabhi Reddy had stabbed PW3 and the
deceased in a lane by the side of 3 Sangham Lodge at Cuddapah. One year
thereafter Nimmakayala Gangireddy was murdered in Khajipalli village in the
fields. In that regard, a criminal case was filed against the deceased family
and that criminal case ended in acquittal.
After that incident,
the deceased's family alongwith his brothers settled down at Hyderabad and was
running a motor rewinding workshop.
On the date of the
incident i.e. on 25.12.1995, the deceased went to his village from Hyderabad in
the morning hours. After sometime the deceased took PW-1 and went to Patha
Cuddapah to fix up the marriage date of his younger brother. The deceased and
PW-1 took Lingamappli bus at the village at about 8.30 A.M. and reached
Cuddapah at 9.30 A.M.
PW-1 and the deceased
went to see one Raja Reddy, who happened to be the proprietor of Sangham
Medical Stores, and they found that Raja Reddy was not available in the medical
shop and then they went to Venkateswara Cloth Stores. By that time,
Venkateswara Reddy, a resident of 4 Balisingapalli, was also present in the
cloth shop. The deceased telephoned Raja Reddy. After sometime Raja came to the
cloth shop and they were talking to each other at the shop. After sometime, the
deceased, PW1, Venkata Subba Reddy and Raja Reddy went to Manasa Hotel situated
in Madras road. At about 2.30 P.M. the deceased along with others went to the
house of Rama Subba Reddy to fix up the marriage date of the brother of the
deceased. The marriage date was fixed as 31.01.1996. Then all of them went to
Venkateswara Cloth shop and again from there, they went to the medical shop of
Raja Reddy and stayed there for sometime. Thereafter the deceased, PW-1 and
Venkata Subba Reddy went to Mithen hotel for drinking tea. At that time, i.e.
around 6.00 p.m., Venkata Subba Reddy left the hotel to go to his village. All
of them consumed tea.
deceased and PW-1 were going to Machupalle bus stand through Madras road with a
view to catch the bus going to their village at about 6.30 p.m.
5 With a view to
take the cycle of Chinna Narsimha Reddy who happened to be the proprietor of
Ayyappa Electricals, situated on the northern side of Madras road, they went to
the said electrical shop. When the deceased and PW- 1 were climbing the steps
of the said electrical shop, A-8 who is no more instigated the other accused
and all the accused surrounded the deceased and took out daggers from their
waists and stabbed the deceased. Finally the deceased fell in front of Lepakshi
Emporium, on the road margin. When the deceased fell down, all the accused
persons again stabbed the deceased. A-5 raised cries saying that "catch
hold of that fellow". PW-1 was frightened and ran to the northern lane of
the road. After sometime, PW1 came to the scene of offence and saw the deceased
lying dead with bleeding injuries all over the body. Thereafter, PW1 went to
Cuddapah I Town Police Station for giving the report.
PW-6, the S.I. of
Police, Cuddapah received an oral statement of the incident from PW1 at about
7.20 p.m. He 6
reduced the oral
statement into writing and took the signature of PW1 on the statement. On the
strength of the report given by PW1, PW6 registered the case as Cr. No.207 of
1995 against the accused for offences punishable under Sections 147, 148 and
302 read with Section 149 IPC. The copies of first information were sent to all
concerned. At about 9.30 p.m. PW-6 visited the scene of offence and recorded
the statements of PWs 1 to 3 and others. PW6 collected MO-1 dagger and MO-2
right leg shoe from the scene of offence.
On 26.12.1995 PW7 the
CI of Police, Cuddapah, held inquest over the dead body of the deceased in the
presence of PW-5 and others. Ex. P-3 is the inquest report.
On 26.12.1995, PW-4,
the Civil Assistant Surgeon, District Headquarters Hospital Cuddapah received a
requisition from the Station House Officer, I Town Police Station, Cuddapah to
conduct autopsy over the dead body of the deceased. He commenced the autopsy on
the dead body of the deceased at about 12.40 P.M. and opined that the 7 deceased
died because of multiple injuries and the injuries to vital organs. According
to the observation, he issued post mortem certificate Ex.P-2.
PW-7, the CI of
Police, Cuddapah, arrested the accused at Padagalapalli bus stop on 04.01.1996
at 10.30 a.m. Thus, on completion of investigation, he filed the charge sheet
The defence of the
accused was of total denial. It is also suggested by the accused by way of
defence that the incident did not take place in the manner suggested by the
In order to
substantiate the accusation, the prosecution examined PWs 1 to 7. They produced
certain documents and they were marked as Exs. P-1 to P-18, whereas the accused
examined DW-1 and 2 and they produced certain documents and they were marked as
Ex.D1 and D2.
8 P.Ws. 1 and 2 are
stated to be eye-witnesses to the occurrence. As noted above, the evidence of
the eye- witnesses was found to be credible, cogent and reliable and on that
basis, conviction was recorded. The respondents filed an appeal before the High
Court. By the impugned judgment, the High Court found that the respondents were
responsible for the death of the deceased but held that in the absence of
charge under Section 302 read with Section 149 IPC, they could not have been
convicted under Section 302 IPC, but held that each would be liable for
conviction for the offence punishable under Section 326 IPC. Sentence of five
years RI and a fine of Rs.1,000/- with default stipulations was imposed.
5. Learned counsel
for the appellant in each case submitted that the approach of the High Court is
clearly erroneous. It is submitted that if the accused persons could not have
been convicted under Section 302 with the aid of Section 149 IPC, they could not
have also been convicted for 9 offence punishable under Section 326 IPC
simplicitor. It is pointed out that the charges framed clearly related to the
offence punishable under Section 149, though there was no specific mention of
the provision. It is also submitted that no prejudice has been caused to the
accused because of the non mention of the provision. In fact, the essence of
Section 149 IPC was clearly spelt out while framing charge.
6. Learned counsel
for the accused-respondents supported the impugned judgment of the High Court
and additionally submitted that this is a case for acquittal and the evidence
of PWs. 1 and 2 should not have been acted upon.
7. This Court, in the
oft repeated case of Willie (William) highlighted the aspect of prejudice. This
decision has been referred to in a large number of subsequent cases dealing
with the question of prejudice in the background of Section 464 of the Code of
Criminal Procedure, 1973 (in short `the Code'). In 10 518), it was noted as
"In view of the
findings recorded by the learned Sessions Judge and the material on record, we
are unable to ascribe to the finding that the appellants' intention was to
cause death of Bhura deceased. The finding betrays the observation of the trial
court as noticed above. The medical evidence also does not support the ultimate
finding recorded by the trial court and upheld by the High Court. The offence
in the established facts and circumstances of the case in the case of the
appellants would only fall under Section 304 Part II IPC read with Section 149
IPC and not under Section 302 IPC. Indeed no specific charge indicating the
applicability of Section 149 IPC was framed, but all the ingredients of Section
149 IPC were clearly indicated in the charge framed against the appellants and
as held by the Constitution Bench of this Court in omission to mention Section
149 IPC specifically in the charge is only an irregularity and since no
prejudice is shown to have been caused to the appellants by that omission it
cannot affect their conviction."
8. Similar view was
also taken in B.N. Srikantiah and background of Section 34, viz-a-viz Section
149, IPC. In as follows.
11 State of M.P. a
Constitution Bench examined the question of absence of charge in considerable
detail. The observations made in paras 6 and 7, which are of general
application, are being reproduced below:(AIR P 121 6) "6. Before we
proceed to set out our answer and examine the provisions of the Code, we will
pause to observe that the Code is a Code of procedure and, like all procedural
laws, is designed to further the ends of justice and not to frustrate them by
the introduction of endless technicalities. The object of the Code is to ensure
that an accused person gets a full and fair trial along certain well established
and well-understood lines that accord with our notions of natural justice.
If he does, if he is
tried by a competent court, if he is told and clearly understands the nature of
the offence for which he is being tried, if the case against him is fully and
fairly explained to him and he is afforded a full and fair opportunity of
defending himself, then, provided there is 'substantial' compliance with the
outward forms of the law, mere mistakes in procedure, mere inconsequential
errors and omissions in the trial are regarded as venal by the Code and the
trial is not vitiated unless the accused can show substantial prejudice. That,
broadly speaking, is the basic principle on which the Code is based.
Now, here, as in all
procedural laws, certain things are regarded as vital. Disregard of a provision
of that nature is fatal to the trial 12 and at once invalidates the conviction.
Others are not vital and whatever the irregularity they can be cured; and in
that event the conviction must stand unless the Court is satisfied that there
was prejudice. Some of these matters are dealt with by the Code and wherever
that is the case full effect must be given to its provisions.
the provisions of Sections 225, 232, 535 and 537 of the Code of Criminal
Procedure, 1898 which correspond to Sections 215, 464(2), 464 and 465 of the
1973 Code, the Court held as under in para 44 of the Report: (AIR p.128)
"44.Now, as we have said, Sections 225, 232, 535 and 537(a) between them,
cover every conceivable type of error and irregularity referable to a charge
that can possibly arise, ranging from cases in which there is a conviction with
no charge at all from start to finish down to cases in which there is a charge
but with errors, irregularities and omissions in it.
The code is emphatic
that 'whatever' the irregularity it is not to be regarded as fatal unless there
It is the substance
that we must seek. Courts have to administer justice and justice includes the
punishment of guilt just as much as the protection of innocence.
Neither can be done
if the shadow is mistaken for the substance and the goal is lost in a labyrinth
of unsubstantial technicalities.
Broad vision is
required, a nice balancing of the rights of the State and the protection of society
in general against protection from harassment to the individual and the risks
of 13 unjust conviction.
presumption must be made in favour of an accused person; he must be given the
benefit of every reasonable doubt.
The same broad
principles of justice and fair play must be brought to bear when determining a
matter of prejudice as in adjudging guilt. But when all is said and done what
we are concerned to see is 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.
If all these elements
are there and no prejudice is shown the conviction must stand whatever the
irregularities whether traceable to the charge or to a want of one."
16. This question was
again examined by State of Punjab in which it was held as under:
(AIR p.626, para 7)
"In judging a question of prejudice, as of guilt, courts must act with a
broad vision and look to the substance and not to technicalities, and their
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."
17. There are a
catena of decisions of this Court on the same lines and it is not necessary to
burden this judgment by making reference to each one of them. Therefore, in
view of Section 464 Cr.P.C., it is possible for the appellate or revisional
court to convict an accused for an offence for which no charge was framed
unless the Court is of the opinion that a failure of justice would in fact
In order to judge
whether a failure of justice has been occasioned, it will be relevant to
examine whether the accused was aware of the basic ingredients of the offence
for which he is being convicted and whether main facts sought to be established
against him were explained to him clearly and whether he got a fair chance to
9. The High Court, as
has been rightly pointed out by learned counsel for the appellant, lost sight
of the fact that if its view is accepted in the absence of charge under Section
149, conviction in terms of Section 326 could not have been done.
10. The High Court
appears to have misconstrued the 1998 SC 2883). In that case, the High Court
held that the accused persons could be held guilty only under Section 326 IPC,
particularly, when it was stated in the charge that their 15 common object was
to assault the deceased and commit rioting with deadly weapons. The position is
entirely different here. In fact, while framing charge and combined reading of
charge No.1 and charge No.3 makes it clear, that the Court specified that the
accused persons were members of unlawful assembly and in prosecution of the
common object of such assembly, i.e, in order to commit murder of the deceased,
committed the offence and at that time they were armed with daggers etc. to
bring in the application of Section 148 IPC. In Charge No.3, there is a
specific reference to the transactions, as mentioned in the first charge, and
the object to commit murder by hacking on the body of the deceased with daggers
and causing his intentional death and thereby committing offence punishable
under Section 302 IPC. Therefore, the charge in relation to offence punishable
under Section 149 IPC is not only implicit but also patent in the charges.
11. Apart from the
question of prejudice, this aspect has also been lost sight of by the High
12. The inevitable
result is that the appeals deserve to be allowed, and we direct so. The
judgment of the Trial Court stands restored and that of the High Court stands
The respondents shall
surrender to custody forthwith to suffer remainder of sentence, if any.
(Dr. ARIJIT PASAYAT)