# 11 S.C.R. 907 RAFIQ AHMED @ RAFI v. STATE OF U.P

- **Citation:** [2011] 11 S.C.R. 907
- **Court:** Supreme Court of India
- **Decided:** 2011-08-04
- **Case number:** Criminal Appeal No. 656 of 2005
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-907-rafiq-ahmed-rafi-v-state-of-u-p-27365
- **Pages:** 58

## Headnote

Penal Code, 1860:
A
B
ss. 302, 396 - A/legation of dacoity and murder - Charge c
sheet filed ulss.396, 201 - Conviction u/ss.302 and 201 -
Plea of appellant that he was charged for offence u/s. 396 but
without reformulation/alteration of the charge, he was
convicted for offence u/s.302 and this deprived him of a fair
opportunity of defence and caused him serious prejudice; that 0
s.302 is a graver offence than an offence punishable u/s.396
and as such the entire trial and conviction of the appellant was
vitiated in law; that there were serious contradictions between
the statements of the witnesses and the courts below failed
to appreciate the evidence in its correct perspective and this
E
·being a case of circumstantial evidence, prosecution failed
to prove chain of events pointing towards the guilt of the
accused -
On appeal, held: PW2 and PW4 were the
witnesses who had last seen the deceased with the appellant
- The statements of the Investigating Officer and the witnesses
including PW3, in whose presence the dead body was F
recovered at the behest of the appellant, by means of recovery
memo were the other material pieces of evidence which
completed the chain of events and pointed undoubtedly
towards the guilt of the accused - Prosecution was able to
establish its case beyond reasonable doubt on the basis of G
the circumstantial evidence - There was no significant link
which was missing in the case put forward by the prosecution
- No prejudice was caused to the appellant by his conviction
u/s.302 though he was initially charged u/s.396 rlw s.201 -
907
H
908
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
Further, the nature of injuries namely three incised wounds,
three abrasions and severing of the trachea, caused by a
sharp-edged weapon indicated that the accused knew that the
injury inflicted would be sufficient in the ordinary course of
nature to cause death -
The incriminating evidence were
B
clearly put to the accused in his statement u/s.313 Cr.P.C. -
The circumstances which constitute an offence uls. 302 were
literally put to him, as s. 302 itself is an integral part of an
offence punishable under s. 396 - The appellant was not able
to demonstrate any prejudice which the appellant suffered in
c his right to defence, fair trial and in relation to the case of the
prosecution - Since the appellant did not suffer any prejudice,
much less a serious prejudice, his conviction uls.302 cannot
be set aside merely for want of framing of a specific/alternate
charge for offence punishable uls.302 - More so because the
0
dimensions and facets of an offence u/s.302 are incorporated
by specific language and are inbuilt in the offence punishable
uls.396 - Thus, on the application of principle of 'cognate
offences', there was no prejudice caused to the rights of the
appellant - Conviction upheld.
E
F
G
ss.392, 396- Essential ingredients- Held: To constitute.
an offence of 'dacoity', robbery essentially should be
committed by five or more persons - To constitute an offence
of 'dacoity with murder' if any one of the five or more persons
commit a murder while committing the dacoity, then every one
of such persons so committing, attempting to commit or
aiding, by fiction of law, would be deemed to have committed
the offence of murder and be liable for punishment depending
upon the facts and circumstances of the case.
ss.302, 396 - Distinction between - Discussed.
ss.302, 396 -
Sentencing for the offence under -
Jurisdiction of court - Held: Under s.396, wide discretion is
vested in the courts in awarding punishment - The court, in
exercise of its jurisdiction can award sentence of ten years with
H
fine or even award sentence of life imprisonment or sentence
RAFIQ AHMED @ RAFI v. STATE OF U.P.
909
of death, as the case may be while u/s. 302, the court cannot,
A
in its discretion, award sentence lesser than life imprisonment.
ss.302, 396 -
Essential ingredients -
Held: The
ingredients of both these offences, to some extent, are
different inasmuch

## Text

_Characters 0–39,655 of 111,816. This is a partial read: ask again with offset=39655 for what follows._

(2011] 11 S.C.R. 907
RAFIQ AHMED @ RAFI
v.
STATE OF U.P.
(Criminal Appeal No. 656 of 2005)
AUGUST 04, 2011
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Penal Code, 1860:
A
B
ss. 302, 396 - A/legation of dacoity and murder - Charge c
sheet filed ulss.396, 201 - Conviction u/ss.302 and 201 -
Plea of appellant that he was charged for offence u/s. 396 but
without reformulation/alteration of the charge, he was
convicted for offence u/s.302 and this deprived him of a fair
opportunity of defence and caused him serious prejudice; that 0
s.302 is a graver offence than an offence punishable u/s.396
and as such the entire trial and conviction of the appellant was
vitiated in law; that there were serious contradictions between
the statements of the witnesses and the courts below failed
to appreciate the evidence in its correct perspective and this
E
·being a case of circumstantial evidence, prosecution failed
to prove chain of events pointing towards the guilt of the
accused -
On appeal, held: PW2 and PW4 were the
witnesses who had last seen the deceased with the appellant
- The statements of the Investigating Officer and the witnesses
including PW3, in whose presence the dead body was F
recovered at the behest of the appellant, by means of recovery
memo were the other material pieces of evidence which
completed the chain of events and pointed undoubtedly
towards the guilt of the accused - Prosecution was able to
establish its case beyond reasonable doubt on the basis of G
the circumstantial evidence - There was no significant link
which was missing in the case put forward by the prosecution
- No prejudice was caused to the appellant by his conviction
u/s.302 though he was initially charged u/s.396 rlw s.201 -
907
H
908
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
Further, the nature of injuries namely three incised wounds,
three abrasions and severing of the trachea, caused by a
sharp-edged weapon indicated that the accused knew that the
injury inflicted would be sufficient in the ordinary course of
nature to cause death -
The incriminating evidence were
B
clearly put to the accused in his statement u/s.313 Cr.P.C. -
The circumstances which constitute an offence uls. 302 were
literally put to him, as s. 302 itself is an integral part of an
offence punishable under s. 396 - The appellant was not able
to demonstrate any prejudice which the appellant suffered in
c his right to defence, fair trial and in relation to the case of the
prosecution - Since the appellant did not suffer any prejudice,
much less a serious prejudice, his conviction uls.302 cannot
be set aside merely for want of framing of a specific/alternate
charge for offence punishable uls.302 - More so because the
0
dimensions and facets of an offence u/s.302 are incorporated
by specific language and are inbuilt in the offence punishable
uls.396 - Thus, on the application of principle of 'cognate
offences', there was no prejudice caused to the rights of the
appellant - Conviction upheld.
E
F
G
ss.392, 396- Essential ingredients- Held: To constitute.
an offence of 'dacoity', robbery essentially should be
committed by five or more persons - To constitute an offence
of 'dacoity with murder' if any one of the five or more persons
commit a murder while committing the dacoity, then every one
of such persons so committing, attempting to commit or
aiding, by fiction of law, would be deemed to have committed
the offence of murder and be liable for punishment depending
upon the facts and circumstances of the case.
ss.302, 396 - Distinction between - Discussed.
ss.302, 396 -
Sentencing for the offence under -
Jurisdiction of court - Held: Under s.396, wide discretion is
vested in the courts in awarding punishment - The court, in
exercise of its jurisdiction can award sentence of ten years with
H
fine or even award sentence of life imprisonment or sentence
RAFIQ AHMED @ RAFI v. STATE OF U.P.
909
of death, as the case may be while u/s. 302, the court cannot,
A
in its discretion, award sentence lesser than life imprisonment.
ss.302, 396 -
Essential ingredients -
Held: The
ingredients of both these offences, to some extent, are
different inasmuch as to complete an offence of 'dacoity' u/ 8
s.396, five or more persons must conjointly commit the
robbery while u/s.302 even one person by himself can commit
the offence of murder - But, to attract the provisions of s. 396,
the offence of 'dacoity' must be coupled with murder - The
ingredients of s.302 become an integral part of the offences
punishable u/s.396 - Resultantly, the distinction with regard
C
to the number of persons involved in the commission of the
crime loses its significance as it is possible that the offence
of 'dacoity' may not be proved but still the offence of murder
could be established - A conjoint reading of ss.396 and 302
shows that the offence of murder has been lifted and D
incorporated in the provisions of s.396 -
The offence of
murder punishable u/s.302 and as defined u/s.300 will have
.to be read into the provisions of offences stated uls.396- The
expression 'murder' appearing in s.396 would have to take
necessarily in its ambit and scope the ingredients of s.300 -
E
There is no scope for any ambiguity - The provisions are
clear and admit no scope for application of any other principle
of interpretation except the 'golden rule of construction', i.e.,
to read the statutory language grammatically and
terminologically in the ordinary and primary sense which it F
appears in its context without omission or addition - These
provisions read collectively put the matter beyond ambiguity
that the offence of murder, is by specific language, included
in the offences uls.396 - It will have the same connotation,
meaning and ingredients as are contemplated under the
G
provisions of s. 302 - Interpretation of statutes.
Criminal jurisprudence:
Offences of grave nature vis-a-vis offence of lesser grave
nature - Held: Usually an offence of grave nature includes
H
910
SUPREME COURT REPORTS
(2011] 11 S.C.R.
A in itself the essentials of a lesser but cognate offence -
Wherever an accused is charged with a grave offence, he can
be punished for a less grave offence finally, if the grave
offence is not proved - But even in those cases, -the Court
has to be cautious while examining whether the ingredients
B of the offences are independently satisfied - If the ingredients
even of a lesser offence are not satisfied then it may be
difficult in a given case for the court to convict the person for
(3n offence of a less grave nature - There can be cases where
it may not be possible at all to punish a person of a less grave
c offence if its ingredients are completely different and distinct
from the grave offence - Thus, the accused has to be charged
with a grave offence which would take within its ambit and
scope, the ingredients of a less grave offence.
Prejudice - Held: To show prejudice to an accused, it has
D to be shown that the accused has suffered some disability or
detriment in the protections available to him under the Indian
criminal jurisprudence -
Courts should make a close
examination to ascertain whether there was really a failure of
justice or whether it is only a camouflage - Administration of
E Criminal Justice.
Code of criminal Procedure, 1973:
Object of the Code -_Held: To further the ends of justice
and not to frustrate them by the introduction of endless
F technicalities - The object is to ensure that an accused person
gets a full and fair trial along with certain well-established and
we/I-understood canons of law that accord with th53 notions of
natural justice.
G
ss. 211 to 215 - Framing of charge - Purpose of -
Discussed.
ss.211 to 215 - Protections to and rights of the accused
during investigation and trial - Held: The accused has the
H freedom to maintain silence during investigation as well as
RAFIQ AHMED @ RAFI v. STATE OF U.P.
911
before the Court - He may choose to maintain .silence or A
make complete denial even when his statement u/s.313,
Cr.P. C. is being recorded - The accused has right to fair trial
- There is presumption of innocence (not guilty) and the
prosecution has to prove its case beyond· reasonable doubt
- In case of allegation of prejudice by the accused, the Courls B
are required to examine both the contents of the allegation
of prejudice as well as its extent in relation to these aspects
of the case of the accused - It will neither be possible nor
appropriate to state such principle with exactitude as it will
allJYays depend on the facts and circumstances of a given c
case - Therefore, the Courl has to ensure that the ends of
justice are met as that alone is the goal of criminal
adjudication - Thus, wherever a plea of prejudice is raised
by the accused, it must be examined with reference to these
rights and safeguards, as it is the violation of ttiese rights 0
alone that may result in weakening of the case of the
prosecution and benefit to the accused in accordance with law.
Non-framing of charge or some defect in drafting of the
charge - Held: Per se would not vitiate the trial itself - It will
have to be examined in the facts and circumstances of a E
given case - Of course, the court has to keep in mind that
the accused 'must be' and not merely 'may be' guilty of an
offence - A person charged with a heinous or grave offence
can be punished for a less grave offence of cognate nature
whose essentials are satisfied with the evidence on record -
F
Where the offences are cognate offences with commonality
in their feature, duly supported by evidence on record, the
Courts can always exercise its power to punish the accused
for one or the other provided the accused does not suffer any
orejudice as indicated.
G
INTERPRETATION OF STATUTES: Where a provision
is physically lifted and made part of another provision, it shall
"all within the ambit and scope of principle akin to 'legislation
')y incorporation' which normally is applied between an
H
912 .
SUPREME COURT REPORTS
[2011] 11 S.C.R..
A
existing statute and a newly enacted Jaw - Penal Code, 1860
- ss.396.
WORDS AND PHRASES: Word 'prejudice', cognate',
'cognate offence - Meaning of
B
The prosecution case was that five accused
including appellant committed dacoity in a car belonging
to the appellant and also murdered the victim-deceased.
The uncle of the deceased was a merchant. The
deceased used to realize money from the market on
C behalf of his uncle's firm. On the fateful day, the deceased
had gone to collect money but he did not return home at
night. A case was registered under Section 364, IPC. After
investigation, the appellant was arrested. He made a
confessional statement that the dead body of the
D deceased. was lying in sugarcane fields. The body was
recovered and identified. The other accused were also
arrested. The appellant was charged under Sections 396
and 201, IPC. The trial court convicted the appellant under
Sections 302 and 201 IPC. The accused 'A' was convicted
E
under Section 411, IPC but the trial court acquitted him
and three other accused for the offence under Section
396 IPC by giving them benefit of doubt. On appeals, the
High Court allowed the appeal of 'A' and acquitted him
even of the charge under Section 411, IPC. However, the
F
conviction of the appellant was upheld. The instant
appeal was filed challenging the order of the High Court.
It was contended for the appellant that he was
charged for an offence under Section 396 IPC but without
reformulation/alteration of the charge, he was convicted
G for an offence under Section 302 IPC and this deprived
him of a fair opportunity of defence and has caused him
serious prejudice; that Section 302, IPC is a graver
offence than an offence punishable under Section 396,
IPC and as such the entire trial and conviction of the
H appellant was vitiated in law; that there were serious
RAFIQ AHMED @ RAFI v. STATE OF U.P.
913
contradictions between the statements of the witnesses A
and the courts below erred in fact and in law, failed to
appreciate the evidence in its correct perspective and this
being a case of circumstantial evidence, the prosecution
has failed to prove the chain of events pointing towards
the guilt of the accused.
B
Dismissing the appeal, the Court
HELD: 1.1. The appellant was charged with an
offence under Sections 396 and 201, IPC. Section 391, IPC
explains the offence of 'dacoity'. When five or more C
persons conjointly commit or attempt to commit a
robbery, or where the whole number of persons
conjointly committihg or attempting to commit a robbery,
and persons present and aiding such commission and
attempt amount to five or more, every person so D
committing, attempting or aiding, is said to commit
'dacoity'. Under Section 392 IPC, the offence of 'robbery'
simplicitor is punishable with rigorous imprisonment
which may extend to ten years or 14 years depending
upon the facts of a given case. Section 396 IPC brings E
within its ambit a murder committed along with 'dacoity'.
In terms of "this provision, if any one of the five or more
persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those
persons shall be punished with death or imprisonment
for life or rigorous imprisonment for a term which may F
extend to ten years and shall also be liable to fine. On a
plain reading of these provisions, it is clear that to
constitute an offence of 'dacoity', robbery essentially
should be committed by five or more persons. Similarly,
to constitute an offence of 'dacoity with murder' any one G
of the five or more persons should commit a murder while
~ommitting the dacoity, then every one of such persons
so committing, attempting to commit or aiding, by fiction
of law, would be deemed to have committed the offence
Qf murder and be liable for punishment provided under H
914
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A these provisions depending upon the facts and
circumstances of the case. [Paras 6-8] [932-F-H; 933-AE]
1.2. Section 299 defines 'culpable homicide'.
8
Whoever causes death by doing an act with the intention
of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the
knowledge that. he is likely by such act to cause death,
commits the offence of culpable homicide. Except the
exceptions provided under Section 300 IPC, culpable
C homicide is murder if the act by which death is caused
is done with the intention of causing death. The intention
to cause death is the primary distinguishing feature
between these two offences. It is a fine but clear -tine of
distinction. In terms of Section 300 IPC, except in the
D cases stated in that provision, culpable homicide is
murder if the act by which the death is caused is done
with the intention of causing death or in terms of any of
the circumstances stated secondly, thirdly and fourthly
respectively. The law clearly marks a distinction between
E culpable homicide amounting to murder and culpable
homicide not amounting to murder. Another. distinction
between Sections 302 and 396 is that under the latter,
wide discretion is vested in the courts in awarding
punishment. The court, in exercise of its jurisdiction and
F judicial discretion in consonance with the established
principles of law can award sentence of ten years with
fine or even award sentence of life imprisonment or
sentence of death, as the case may be while under
Section 302, the court cannot, In Its discretion, award
G sentence lesser than life imprisonment.The ingredients
of both these offences, to some extent, are also different
inasmuch as to complete an offence of 'dacoity' under
Section 396 IPC, five or more persons must conjointly
commit the robbery while under Section 302 of the IPC
H even one person by himself can commit the offence of
RAFIQ AHMED @ RAFI v. STATE OF U.P.
915
murder. But, to attract the provisions of Section 396, the A ·
offence of 'dacoity' must be coupled with murder. In other
words, the ingredients of Section 302 become an integral
part of the offences punisl")able under Section 396 of the
IPC. Resultantly, the distinction with regard to the number
of persons involved in the commission of the crime loses B
its significance as it is possible that the offence of
'dacoity' may not be proved but still the offence of murder
could be established, like in the instant case. Upon
reasonable analysis of the language of these provisions,
it is clear that the Court has to keep in mind the c
ingredients which shall constitute a criminal offence
within the meaning of the penal section. This is not only
essential in the case of the offence charged with but even
where there is comparative study of different penal
provisions as the accused may have committed more 0
than one offence or even offences of a graver.nature. He
may finally be punished for a lesser offence or vice versa,
if the law so permits and the requisite ingredients are
satisfied. [Paras 9-11] [933-F-H; 934-A-H]
1.3. The judicial pronouncements show a consistent E
trend that wherever an accused is charged with a grave
offence, he can be punished for a less grave offence
finally, if the grave offence is not proved. But even 'in
those cases, the Court has to be cautious while
examining whether the ingredients of the offences are
F
independentfy satisfied. If the ingredients even of a lesser
offence are not satisfied then it may be difficult in a given
case for the court to convict the person for an offence of
a less grave nature. There can be cases where it may not
be possible at all to punish a person of a less grave G
offence if its ingredients are completely different and
distinct from the grave offence. In other words, the.
accused has to be charged with a grave offence which
would take within its ambit and scope the ingredients of
a less grave offence. The evidence led by the prosecution H
916
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
for a grave offence, thus, would cover an offence of a less
grave nature. But it is essential that the offence for which
the Court proposes to punish the accused, is established
beyond reasonable doubt by the prosecution. [Para 12]
(935-A-F]
B
1.4. The Code of Criminal Procedure 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 with certain
C well-established and well-understood canons of law that
accord with the notions of natural justice. Usually an
offence of grave nature includes in itself the essentials
of a lesser but cognate offence. In other words, there are
classes of offences like offences against the human
D body, offeoces against property and offences relating to
cheating, misappropriation, forgery etc. In the normal
course of events, the question of grave and less grave
offences would arise in relation to the offences falling in
the same class and normally may not be inter se the
E
classes. It is expected of the prosecution to collect all
evidence in accordance with law to ensure that the
prosecution is able to establish the charge with which the
accused' is charged, beyond reasonable doubt. It is only
F
in those cases, keeping in view the facts and
circumstances of a given case and if the court is of the
view that the grave offence has not been established on
merits or for a default of technical nature, it may still
proceed to punish the accused for an offence of a less
grave nature and content. [Paras 14, 17] (939-B-C; 942G B-E]
Willie (William) Slaney v. State of Madhya Pradesh AIR
1956 SC 116: 1955 SCR 1140 - followed.
Iman Ali & Anr. v. State of Assam AIR 1968 SC 1464:
H 1968 SCR 610 - relied on.
RAFIQ AHMED @ RAFI v. STATE OF U.P.
917
2. ( To show prejudice to an accused, it has to be
A
shown that the accused has suffered some disability or
· detriment in the protections available to him under the
Indian criminal jurisprudence. It Is also a settled canon
of criminal law that this has occasioned the accused with
failure of justice. One of the other cardinal principles of B
criminal justice administration is that the courts should
make a close examination to ascertain whether there was
really a failure of justice or whether it is only a
camouflage, as this expression is perhaps too pliable.
With the development of law, Indian courts have accepted c
certain protections to and rights of the accused during
investigation and trial which are: The accused has the
freedom to maintain silence during investigation as well
as before the Court. The accused may choose to maintain
silence or make complete denial even when his statement D
.. under Section 313 of the Code of Criminal Procedure is
being recorded, of course, the Court would be entitled to
draw inference, including adverse inference, as may be
permissible to it in accordance with law. The accused has
right to fair trial; There is presumption of innocence (not
E
guilty) and the prosecution must prove its case beyond
reasonable doubt. Prejudice to an accused or failure of
justice, thus, has to be examined with reference to these
aspects. That alone, probably, is the method to determine
with some element of certainty and discernment whether
there has been actual failure of justice. 'Prejudice' is
incapable of being interpreted in its generic sense and
applied to criminal jurisprudence. The plea of prejudice
has to be in relation to investigation or trial and not
matters falling beyond their scope. Once the accused is
able to show that there is serious prejudice to either of G
these aspects and that the same has defeated the rights
available to him under the criminal jurisprudence, then
the accused can seek benefit under the orders of the
Court. [Paras 20-21] [945-B-H; 946-A-B]
F
H
918
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
Anil @ Raju Namdev Patil vs. Administration of Daman
& Diu and Anr. 2006 Suppl. (9) SCR 466; K. Prema S. Rao
and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217:
2002 (3) Suppl. SCR 339; Kammari Brahmaiah and Ors. v.
Public Prosecutor, High Court of A.P. (1999) 2 SCC 522:
B 1999 (1) SCR 361; Dalbir Singh v. State of U.P. (2004) 5
SCC 334; Kamalanantha and Ors. v. State of T.N. (2005) 5
SCC 194: 2005 (3) SCR 182; Harjit Singh v. State of Punjab
(2006) 1 sec 463: 2005 (5) Suppl. SCR 629 .... relied on.
c
Black's Law Dictionary, Eighth Edition - referred to.
2.2. Right to fair trial, presumption of innocence until
pronouncement of guilt and the standards of proof, i .. e.,
the prosecution must prove its case beyond reasonable
doubt are the basic and crucial tenets of Indian criminal
D jurisprudence. The Courts are required to examine both
the contents of the allegation of prejudice as well as its
extent in relation to these aspects of the case of the
accused. It will neither be possible nor appropriate to
state such principle with exactitude as it will always
E depend on the facts and circumstances of a given case.
Therefore, the Court has to ensure that the ends of justice
are met as that alone is the goal of criminal adjudication.
Thus, wherever a plea of prejudice is raised by the
accused, it must be examined with reference to these
F rights and safeguards, as it is the violation of these rights
alone that may result in weakening of the case of the
prosecution and benefit to the accused in ~ccordance
with law. [Para 22] [946-C-E]
Shamnsaheb M. Multtani v. State of Kamataka (2001) 2
G SCC 577: 2001 (1) SCR 514; Dinesh Seth v. State of NCT
of Delhi (2008) 14 SCC 94: 2008 (12) SCR 113; Shivaji
Sahebrao Bobade & Anr. v. State of Maharashtra AIR 1973
SC 2622: 1974 (1) SCR 489 - relied on.
H
2.3. During conduct of trial, framing of a charge is an
RAFIQ AHMED @ RAFI v. STATE OF U.P.
919
important function of the court. Sections 211 to 224 of A
Chapter XVII of the Code of Criminal Procedure, 1973
have been devoted by the Legislature to the various
facets of framing of charge and other related matters
thereto. Under Section 211, the charge should state the
offence with which the accused is charged and should B
contain the other particulars specified in that section. In
terms of Section 214, 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 pu.nishable. Another c
significant provision is Section 215 which states that 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 0
was in fact misled by such error or omission, and it has
occasioned a failure of justice. Further, the court has
·been vested with the power to alter the charge. There
could be trial of more than one offence together and there
could even be joint trial of the accused. The purpose of E
framing of a charge is to put the accused at notice
regarding the offen.ce for which he is being tried before
the court of competent jurisdiction. For want of requisite
information of offence and details thereof, the accused
should not suffer prejudice or there should not be failure
of justice. The requirements of putting the accused at F
notice and there being a charge containing the requisite
particulars, as contemplated under Section 211, has to be
read with reference to Section 215 of the Code. [Para 22)
[946-F-H; 947-A-D]
G
3.1. Non-framing of charge or some defect in drafting
of the charge per se would not vitiate the trial itself. It will
have to be examined in the facts and circumstances of a
given case. Of course, the court has to keep in mind that
the accused 'must be' and not merely 'may be' guilty of H
920
SUPREME COURT .REPORTS
[2011] 11 S.C.R.
A an offence. The mental distance between 'may be' and
'must be' Is long and divides vague conjectures from
sure conclusions. A person charged with a heinous or
grave offence can be punished for a less grave offence
of cognate nature whose essentials are satisfied with the
B evidence on record. Alike or similar offences can be
termed as 'cognate offences'. The word 'cognate' is a term
primarily used in civil jurisprudence particularly with
reference to the provisions of the Hindu Succession Act,
1956 where Section 3(c) has used this expression in
c relation to the d'escendants of a class of heirs an·d
normally the term is used with reference to blood
relations. The expression 'cognate' has also been
recognized and applied to the criminal jurisprudence as
well not only in the Indian system but even in other parts
0
of the world. Such offences indicate the similarity,
common essential features between the offences and
they primarily being based on differences of degree hav~
been understood to be ·'cognate offences'. Therefore,
where the offences are cognate offences with
commonality in their feature, duly supported by evidence
E on record-, ttie Courts can always exercise its power to
punish the a'ccused for one or the 'other provided the
accused does not suffer any prejudice as indicated.
[Paras 22, 23, 25, 26) [948-C-G; 949-A-B-G-H; 950-C]
F
Da/bir Singh v. State of U.P. (2004) 5 SCC 334 -
Followed.
Lakhjit Singh v. State of Punjab 1994 Suppl. (1) SCC
(Crl.) 173; Sanagaraboina Sreenu v. State of A.P. (1997) 5
G sec 348: 1997 (3) SCR 957 - relied on.
3.2. The concept of punishing the accused for a less
grave offence than the one for which he was charged is
not unique to the Indian Judicial System. It has its
relevancy even under the English jurisprudence under
H the concept of alternative verdicts. There is no absolute
RAFIQ AHMED@ RAFI v. STATE OF U.P.
921
bar or impediment, in law, in punishing a person for an
A
offence less grave than the offences for which the
accused was charged during the course of the trial
provided the essential ingredients for adopting such a
course are satisfied. [Paras 29, 31) [956-H; 957-A-B; 958E-F]
B
R v. Coutts (Appellant) 2006 UKHL 39 - referred to.
3.3. The instant case related with an offence
punishable under Section 396 IPC and in alternative with
an offence under Section 302 of the IPC. The offence C
under Section 396 consists of two parts: firstly, dacoity
by five or more persons, and secondly, committing of a
murder in addition to the offence of dacoity. If the
accused have committed both these offences, they are
liable to be punished with death or imprisonment for life D
or rigorous imprisonment for a term which may extend
to ten years and be liable to pay fine as well. Under
Section 302 IPC, whoever commits murder shall be
punished with death or imprisonment for life and shall
also be liable to pay fine. A conjoint reading of Sections
E
396 and 302 IPC shows that the offence of murder has
been lifted and incorporated in the provisions of Section
396 IPC. In other words, the offence of murder punishable
under Section 302 and as defined under Section 300 will
have to be read into the provisions of offences stated
F
under Section 396 IPC. In other words, where a provision
is physically lifted and made part of another provision, it
shall fall within the ambit and scope of principle akin to
'legislation by incorporation' which normally is applied
between an existing statute and a newly enacted law. G
The expression 'murder' appearing in Section 396 would
have to take necessarily in its ambit and scope the
ingredients of Section 300 of the IPC. There Is no scope
for any ambiguity. The provisions are clear and admit no
scope for appllcatlon of any other principle of H
922
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A interpretation except the 'golden rule of construction', i.e.,
to read the statutory language grammatically and
terminologically in the ordinary and primary sense which
it appears in its context without omission or addition.
These provisions read collectively put the matter beyond
B ambiguity that the offence of murder, is by specific
language, included in the offences under Section 396. It
will have the same connotation, meaning and ingredients
as are contemplated under the provisions of Section 302
IPC. [Paras 32-33] [958-G-H; 959-A-F]
c
3.4. This is admittedly a case of circumstantial
evidence and, thus, the evidence has to be examined in
that context. There is no dispute to the fact that the
charge under Sections 396 and 201 IPC were framed
against the accused. The trial court had acquitted the four
D accused but convicted the appellant for an offence under
Sections 302 and 201, IPC. [para 34] [959-G-H; 960-A-B]
3.5. PW2 and PW4 were the witnesses '11fhO had last
seen the deceased with the appellant. The statements of
E the Investigating Officer (PW11) and the witnesses.
including PW3, in whose presence the dead body was
recovered at the behest of the appellant, by means of
recovery memo are the other material pieces of evidence
which would complete the chain of events and point
F
undoubtedly towards the guilt of the accused. The
accused, for the reasons best known to him, had taken
up a stand of complete denial in his statement recorded
under Section 313 Cr.P.C. and opted not to explain his
whereabouts at the relevant time. Furthermore, he was a
G regular taxi driver. It is true that the statement under
Section 313 Cr.P.C. cannot be the sole basis for
conviction of the accused but certainly it can be a
relevant consideration for the courts to examine,
particularly when the prosecution has otherwise been
H
RAFIQ AHMED @ RAFI v. STATE OF U.P.
923
able to es.tablish the chain of events. It was clearly A
established from the evidence on record that the
deceased was a regular trader and used to come to
Nehtaur from where he was picked up by the appellant
on the fateful day. These were certain definite
circumstances clearly indicating towards the involvement B
of the appellant in the commission of the crime. The
prosecution was able to establish its case beyond
reasonable doubt on the basis of the circumstantial
evidence. There was no significant link which was
missing in the case put forward by the prosecution. [para c
i 35) [961-D-H; 962-A]
Shyam Behari v. State of Uttar Pradesh AIR 1957 S.C.
320 - Followed.
4. No prejudice was caused to the appellant by his D
conviction for an offence under Section 302 IPC though
he was initially charged with an offence punishable
under Section 396 IPC read with Section 201 IPC. Further,
the nature of injuries namely three incised wounds, three
abrasions and severing of the trachea, caused by a E
sharp-edged weapon as noticed by the High Court
indicated that the accused knew that the injury inflicted
would be sufficient in the ordinary course of nature to
cause death. The 'prejudice' has to be examined with
reference to the rights and/or protections available to the
F
accused. The incriminating evidence was clearly put to
the accused in his statement under Section 313 Cr.P.C.
The circumstances which constitute an offence under
Section 302 were literally put to him, as Section 302 IPC
itself is an integral part of an offence punishable under G
Section 396 IPC. The appellant was not able to
demonstrate any prejudice which the appellant has
suffered in his right to defence, fair trial and in relation to
the case of the prosecution. Once the appellant has not
suffered any prejudice, much less a serious prejudice, H
924
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A then the conviction of the appellant under Section 302
IPC cannot be set aside merely for want.of framing of a
specific/alternate charge for an offence, punishable under
Section 302 IPC. It is more so because the dimensions
and facets of an offence under Section 302 are
B incorporated by specific language and are inbuilt in the
offence punishable under Section 396 IPC. Thus, on the
application of principle of 'cognate offences', there was
no prejudice caused to the rights of the appellant. [para
38) [963-E-H;. 964-A-C]
c
Case Law Reference:
1968 SCR 610
relied on
Para 15
2006 Suppl. (9) SCR 466
relied on
Para 18
D
2002 (3) Suppl. SCR 339
relied on
Para 18
1999 (1) SCR 361
relied on
Para 18
20Q5 (3) SCR 182
relied on
Para 18
E
2005 (5) Suppl. SCR 629
relied on
Para 18
2001 (1) SCR 514
relied on. Para 22
1955 SCR 1140 .
Followed Paras 13, 22
2008 (12) SCR 113
relied on
Para 22
F
1974 (1) SCR 489
relied on
Para 22
1994 Suppl. (1) sec (Crl.) 173 relied on
Para 27
1997 (3) SCR 957
relied on
Para 27
G
(2004) 5 sec 334
Followed Para 27
2001 (1) SCR 514
relied on
Para 28
2006 UKHL 39
referred to Para 29
H
AIR 1957 SC 3~0
Followed Paras 36, ',37
RAFIQ AHMED @ RAFI v. STATE OF U.P.
925
CRIMINAL APPELLATE JURISDICTION : Crimioal Appeal A
No. 656 of 2005.
From the Judgment & Order dated 29.~.2004 of the. High
Court of Judicature at Allahabad in Criminal Appeal No. 1887
of 1981.
B
R. Anand Padmanabhan, Prit~vi Raj B.N., G. Ramakrishna
Prasad for the Appellant.
T.N. Singh, Rajeev Dubey, Kamlendra Mishra, Jatinder
Kumar Bhatia for the Respondent.
C
'
The Judgment of the Court was delivered, by
SWATANTER KUMAR, J. 1. Fine distinctions of law, if
discerning, should normally be recognized and permitted to
operate in their respective fields. With the development of D
criminal jurisprudence, the law has recognized· the concept of
cognate charges besides alternative charges. The
differentiation between the offences from the same family in
contradistinction to the offences falling in different categories
have persuaded the courts to apply the principle of 'cognate E
1
offences' and punish the offender of a less grave offence
because the offence of greater gravity has not been proved
beyond reasonable doubt. This principle is to be applied
keeping in view the facts and circumstances of a given case
and notwithstanding the fact that no charge for such less grave
F
offence had been framed against the offender. In the case in
hand, we are concerned with a similar question which arises
from the following facts:
All the five accused, namely, Rafiq Ahmad, Ahsan, G
lmamuddin, Arun Kumar and Yashwant Singh, according to the
prosecution, in the intervening night of 30th September, 1977
and 1st October, 1977 committed dacoity in Ambassador Car
No.UPS 7293 belonging to Rafiq Ahmad. While the car was
going on the pucca road from Nehtaur to Dhampur within the
H.
926
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
jurisdiction of thana Nehtaur, the accused had committed the
murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish
Babu and thereafter thrown his body in a sugarcane field of one
lkrar Ahmad situated in Village Kashmiri, thana Nehtaur with
the intention of screening themselves from punishment for
B
committing any offence. Shri Krishna Garg, uncle of the
deceased was carrying on ~he wholesale business of sugar,
Khandsari, flour, food grains etc. under the name of Mis. Sadri
Prasad Sunder Lal in Mohalla Bari Mandi, Dhampur (Bijnor).
This firm had branches in the name of 'Garg Brothers'. The firm
C
used to sell the above products on credit to the customers at
Dhampur, Nagina, Sherkot, Sheohara, Haldaur and Nehtaur
and the deceased, Jagdish Prasad, used to go to Nehtaur
every Friday to realize money from them. On Friday, 30th
September, 1977, also he left for Nehtaur to collect money.
Ordinarily, he used to return home between 9.00 p.m. and
D
10.00 p.m. with collections roughly upto Rs. 10,000/-. Though,
Jagdish Prasad, on that day also had collected more than Rs.
· 8,000/- from the customers, but he did not return home that
night. The next morning, Shri Krishna Garg sent his Munim,
Ramesh Chandra to Nehtaur to enquire about Jagdish Prasad.
E
The Munim returned and disclosed to Shri Krishna Garg the
above facts. After arrival of the Munim, Shri Krishna Garg left
Dhampur for Nehtaur along with Pyare Lal, Surendra Kumar,
Har Kishan and Kamlesh to enquire about Jagdish Prasad.
From the enquiries, it came to light that at about 8.00 p.m., the
F
deceased Jagdish Prasad had occupied a taxi, in which some
persons were already sitting, at the Agency Chauraha, Nehtaur.
The matter was reported and after making an entry in the GD
on 1st October, 1977 at 2.30 p.m., SI K.L. Verma started
investigation and interrogated a number of persons including
G
Shri Krishna Garg and Pyare Lal. Thereafter, a case was
registered under Section 364 of the Indian Penal Code (IPC).
On 2.10.1977, the investigation was taken up by Station Officer
(S.O.) Raj Pal Yadav and both Mr. Verma and Mr. Yadav left
the police station together for investigation and reached P .S.
H
Dhampur. At about 9.00 pm, accused Rafiq Ahmad was
RAFIQ AHMED @ RAFI v. STATE OF U.P.
927
[SWATANTER KUMAR, J.]
arrested by the police along with his taxi No.UPS 7293. His A
arrest led to recovery of the taxi which was made in presence
of Pyare Lal and Surendra Kumar. During the course of the
investigation, the accused Rafiq Ahmad also made a
confessional statement before the investigating officer in
presence of Surendra Kumar and Pyare Lal that the dead body B
of the deceased was lying in the sugarcane fields near village
Kashmiri. The body of the deceased was, thus, recovered and
identified by Pyare Lal. SI K.L Verma (PW9) prepared the
inquest report and the body was subjected to post mortem by
Dr. R.8. Saxena (PW8), the Medical Officer.
c
On 3rd October, 1977, the accused Ahsan and his brother
lmamuddin were arrested with the help of Zamal Ahmad @
Khan Zamaloo and Sattar. A gold ring was recovered from the
possession of Ahsan. These arrests were effected at about
9.00 pm. Similarly, the accused Yashwant Singh was arrested D
by the police from the railway platform at 1.00 am on 2nd
October, 1977.
We may refer to the post-mortem report and the antemortem injuries found by Dr.