Mohan Singh Vs. State
J U D G M E N T
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 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
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 his
telephone number 06252-239727, 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 number 9835273765. The caller threatened him that since the demand
of money had not been fulfilled, the informant should be ready to face the consequences.
his elder brother's return, the informant had narrated the events to him. However,
his elder brother did not take the threat seriously.
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 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.
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 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.
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.
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.
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.9. 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. The High Court relied upon the
evidence of the informant, PW.4 and on Exts.
and 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
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
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.
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."
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
points have been raised before this Court for the first time. In a case where points
relating to errors in framing of charge or even misjoinder of charge are raised
before this Court for the first time, such grievances are not normally
considered by this Court. Reference in this connection may be made to the decision
of a three-Judge Bench of this Court in the case of Mangal Singh and others v. State
of Madhya Bharat reported in AIR 1957 SC 199. Justice Imam delivering a unanimous
opinion of the Court held in paragraph 5 at page 201 of the report as follows:-
"It was, however, urged that there had been misjoinder of charges. This point
does not seem to have been urged in the High Court because there is no
reference to it in the judgment of that Court and does not seem to have been taken
in the Petition for special leave. The appellants cannot, therefore, be permitted
to raise this question at this stage."
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.
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 Through C.B.I., reported in 1980 Supplementary SCC 92 at
page 150 and paragraph 110 of the report). Justice Desai delivering a
concurring opinion, opined as above.
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."
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 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 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 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."
examining the aforesaid provisions, we may keep in mind the principles laid down
by Justice Vivian Bose in Willie (William) Slaney v. State of Madhya Pradesh reported
in (1955) 2 SCR 1140. At page 1165 of the report, the learned judge observed:- "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
aforesaid observation of Justice Vivian Bose in William Slaney (supra) has been
expressly approved subsequently by this Court in V.C. Shukla (supra).
in this connection may be made to the decision of this Court in the case of Tulsi
Ram and others v. State of Uttar Pradesh reported in AIR 1963 SC 666. In that case
in paragraph 12 this Court was considering these aspects of the matter and made
it clear that a complaint about the charge was never raised at any earlier stage
and the learned Judges came to the conclusion that the charge was fully understood
by the appellants in that case and they never complained at the appropriate stage
that they were confused or bewildered by the charge. The said thing is true here.
Therefore, the Court refused to accept any grievance relating to error in the framing
of the charge.
in the case of State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another
reported in AIR 1963 SC 1850, this Court also had to consider a similar grievance.
Both in the case of Tulsi Ram (supra) as also in the case of Cheemalapati (supra)
the charges were of conspiracy. The same is also a charge in the instant case. Repelling
the said grievance, the learned Judges held that the object in saying what has
been set out in the first charge was only to give notice to the accused as to the
ambit of the conspiracy to which they will have to answer and nothing more. This
Court held that even assuming for a moment that the charge is cumbersome but in
the absence of any objection at the proper time and in the absence of any material
from which the Court can infer prejudice, such grievances are precluded by reason
of provision of Section 225 of the Cr.P.C. Under the present Code it is Section
215 which has been quoted above.
in this connection may also be made in the decision of this Court in Rawalpenta
Venkalu and another v. The State of Hyderabad reported in AIR 1956 SC 171 at
para 10 page 174 of the report. The learned Judges came to the conclusion that although
Section 34 is not added to Section 302, the accused had clear notice that they were
being charged with the offence of committing murder in pursuance of their common
intention. Therefore, the omission to mention Section 34 in the charge has only
an academic significance and has not in any way misled the accused. In the instant
case the omission of charge of Section 302 has not in any way misled the accused
inasmuch as it is made very clear that in the charge that he agreed with the others
to commit the murder of Anil Jha. Following the aforesaid ratio there is no doubt
that in the instant case from the evidence led by the prosecution the charge of
murder has been brought home against the appellant.
K. Prema S. Rao and another v. Yadla Srinivasa Rao and others reported in (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 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 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.
in the case of Dalbir Singh v. State of U.P., reported in (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. If we follow these tests, we have no hesitation that in the instant
case the accused had clear notice of what was alleged against him and he had adequate
opportunity of defending himself against what was alleged against him.
State of Uttar Pradesh v. Paras Nath Singh reported in (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.
Annareddy Sambasiva Reddy and others v. State of Andhra Pradesh reported in (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.
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.
the instant case, in the charge it has been clearly mentioned that the accused-appellant
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.
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 argued for only on the evidence of PW.4 who is said to have identified
his voice on the basis of some telephone calls.
are essentially questions of fact and after a concurrent finding by two courts
normally this Court in an appeal against such finding is slow and circumspect to
upset such finding unless this Court finds the finding to be perverse.
on the legal issue one thing is clear that identification by voice has to be
considered by this Court carefully and on this aspect some guidelines have been
laid down by this Court in the case of Kirpal Singh v. The State of Uttar Pradesh
reported in 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:
"...It is true that the evidence about identification of a person by the
timbre of his voice depending upon subtle variations 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 the date of the offence he had met the appellant
on several occasions in connection with the dispute about the sugarcane
crop...." (para 4, page 714 of the report)
on such identification by voice this Court held in Kripal Singh (supra) 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. PW.4 in his evidence clearly stated that the appellant
gave him a phone call asking for money on 23.7.2005 and again on 25.7.2005 when
the appellant threatened him of dire consequences for not paying the money. PW.4
also stated in his evidence that he got an ID caller installed in his phone and
he informed the police of the phone number of the caller which is of the
appellant. PW.4 also stated in his evidence that he had direct talks with the appellant
at hospital chawk prior to the incident when he used to demand money from him and
other shopkeepers at the time of Durga Puja and Saraswati Puja. PW.4 specifically
stated that he can identify the voice of Mohan Singh. The first I.O. of the case
(PW.6) in his evidence also stated that during investigation mobile No.9835273765
of Mohan Singh was found and mobile No.9431428630 of Laxmi Singh was also found.
P.W. 8, the other I.O. of the case stated that on 23.7.2005, four calls were made
between the mobile phones of Laxmi Singh and Mohan Singh. Then six more calls were
made by Laxmi Singh to Mohan Singh on 3.08.2005, i.e. on the day of the incident
itself. The printout details of these phone calls were produced before the Court.
So both the Trial Court and High Court considered the evidence of PW.6 and PW.8
who were the investigating officers in this case, apart from the evidence of PW.4,
other witnesses and the materials on record before coming to the conclusion. The
fact that the name of registered allottees the SIM cards of these mobile phones
could not be traced is not relevant in this connection. This Court finds that from
para 19 onwards of the judgment by the High Court these aspects have received
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 reported in (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 (supra), the High Court acquitted A1
to A4 and this Court finds that the 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.
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 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 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.
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 reported in (2001) 1 SCC 378.
In Saju (supra) this Court explained the principles of Section 10 of the Evidence
Act, as follows:- "Evidene Act, 1872 - Sec.10 - Condition for
applicability of 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."
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.
counsel for the appellant also relied upon the decision of this Court in the case
of Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra reported in (2008)
10 SCC 394. In paragraph 25 at page 402 of the report this Court laid down the following
principles:- "Thus, it is manifest that the meeting of minds of two or more
persons for doing an illegal act or an act by illegal means is sine qua non of
the criminal conspiracy but it may not be possible to prove the agreement between
them by direct proof. Nevertheless, existence of the conspiracy and its objective
can be inferred from the surrounding circumstances and the conduct of the accused.
But the incriminating circumstances must form a chain of events from which a conclusion
about the guilt of the accused could be drawn. It is well settled that an offence
of conspiracy is a substantive offence and renders the mere agreement to commit
an offence punishable, even if an offence does not take place pursuant to the
view of the aforesaid principles, this Court finds that no assistance can be drawn
from the aforesaid decision to the case of the appellant in this case.
was also placed on the decision of this Court in the case of S. Arul Raja v. State
of Tamil Nadu reported in (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 been noted hereinabove in the earlier part of the judgment it clearly
shows that there is substantial piece of evidence to prove criminal conspiracy.
was also placed by the learned counsel for the appellant on the decision of this
Court in the case of Mohd. Khalid v. State of West Bengal reported in. In that case,
this court held that offence of conspiracy can be proved by either direct or circumstantial
evidence. In paragraph 24 at page 354 of the report the following observations
have been made:- "Conspiracies are not hatched in the open, by their nature,
they are secretly planned, they can be proved even by circumstantial evidence, the
lack of direct evidence relating to conspiracy has no consequence."
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
appeal is dismissed and the conviction of the appellant under Section 120B of IPC
for life imprisonment is affirmed.
(ASOK KUMAR GANGULY)
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