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Synopsis

The Supreme Court has set aside the conviction of a man in connection with a triple murder of 1987 after finding that the High Court altered the charge against him without issuing a notice and decided the appeal in absence of his counsel.

"In view of the wide powers conferred by Section 386 of CrPC, even an appellate court can exercise the power under Section 216 of altering or adding the charge. However, if the appellate court intends to do so, elementary principles of natural justice require the appellate court to put the accused to the notice of the charge proposed to be altered or added when prejudice is likely to be caused to the accused by alteration or addition of charges," a bench of Justices Abhay S Oka and Pankaj Mithal said.

The court further said unless the accused was put to notice that the appellate court intends to alter or add a charge in a particular manner, his advocate cannot effectively argue the case. Only if the accused is put to notice by the appellate court that the charge is intended to be altered in a particular manner, his advocate can effectively argue that even the altered charge was also not proved.  

"We may add here that the court can give the notice of the proposed alteration or addition of the charge even by orally informing the accused or his advocate when the appeal is being heard. In a given case, the court can grant a short time to the advocates for both sides to prepare themselves for addressing the court on the altered or added charge," the bench said.

In the instant case, the court noted the advocate of appellant Chandra Pratap Singh was absent on the date of the hearing. Therefore, there was no occasion for the High Court to put the advocate for the appellant to the notice that the charge under Section 302 read with Sections 148 and/or 149 of IPC was proposed to be altered to a charge under Section 302 read with Section 34 of IPC. 

"Grave prejudice has been caused to the appellant by altering the charge without giving any notice to the appellant or his advocate about the charge," the court said.  

The court, however, noted "one more crucial aspect of the case" that the entire judgment does not mention the reasons or records any finding in terms of sub section (4) of Section 216 of CrPC on alteration of charge.

"There is no reason recorded in the impugned judgment to show that Section 34 of IPC was applicable. There is no discussion on this aspect in the judgment. Only in the operative part, without assigning any reasons, the High Court held that the appellant was liable to be convicted for the offence punishable under Section 302, read with Section 34 of IPC," the bench said.

The High Court has not recorded a finding that there was sufficient evidence to prove that the four accused who were ultimately convicted had done the criminal act in furtherance of a common intention.

In the case, the bench said in the ordinary course, it would have remanded the matter to the HC for fresh hearing on the ground that the appellant was not heard before confirming conviction on a modified charge. 

"However, we cannot ignore that the incident is of 1987, and the present appeal is of 2011. Therefore, it will be unjust to pass an order of remand," the bench said.

The bench, which examined the materials, found there is no evidence of the presence of common intention. Only the act of stopping the deceased Uma Prasad will not, by itself, bring the case within the purview of Section 34 of IPC, it said.

"There is no overt act attributed to the appellant by any prosecution witness in the assault on deceased Uma Prasad. It is difficult to infer a prior meeting of minds in this case," the bench said.

However, the court noted two prosecution witnesses have been consistent in role played by the appellant of dragging the body of the deceased and throwing in into well, making him liable for offence under Section 201 of the IPC related to disappearance of evidence.

The court noted the appellant was awarded five years jail under Section 201 which he had already served as he remained in jail for nine years before grant of bail in 2012.

The matter related to murders of Uma Prasad, and his sons Vinod Kumar and Munau alias Anant Kishore Khare.

According to the prosecution case, on June 2, 1987, Vinod Kumar had taken his brother Munau to village on a scooter medical treatment. By the evening as he did not return, his father went for his search, he reached at a place where all the accused, 17 in total, attacked and killed him. Thereafter, they went towards bus stand and shot dead the two brothers.

The trial court convicted seven accused and acquitted 10 others. It acquitted all accused with regard to killings of Vinod and Munau, which became final. The HC acquitted three out of seven accused in murder case of Uma Prasad. Out of four convicts, two did not prefer any appeal. One convict filed a special leave petition in 2012 but he did nor furnish a proof of surrender, so his plea was dismissed. His plea for restoration was also dismissed.

Case Title: Chandra Pratap Singh Vs State of Madhya Pradesh