MOHAN SINGH versus STATE OF BIHAR

19. While examining the aforesaid provisions, we may keep in mind the principles laid down by Justice Vivian Bose in Willie (William) Slaney v. State of 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 the innocent."

20. The aforesaid observation of Justice Vivian Bose in William Slaney (supra) has been expressly approved subsequently by this Court in V.C. Shukla (supra).

21. Reference 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.

22. Subsequently, 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 Tutsi Ram (supra) as also in the case of Cheemalapati (supra) the charges were of H conspiracy. The same is also a charge in the instant case. Repelling the said grievance, the learned Judges held that the A 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 B 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.

23. Reference in this connection may also be made in the decision of this Court in Rawalpenta Venka/u and another v. The State of Hyderabad reported in AIR 1956 SC 171 at para c 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.

24. In K. Prema S. Rao and another v. Yad/a 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 G 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 H 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 B learned Judges have also referred to Section 215 of the Cr.P.C., set out above, in support of their contention.

25. Even in the case of Dalbir Singh v. State of U.P., reported in (2004) 5 SCC 334, a three-Judge Bench of this C 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 D 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 E 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.

26. In 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 G that no failure of justice has been occasioned in any way nor has the appellant suffered any prejudice.

27. In 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 H 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 A 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.

28. In view of such consistent opinion of this Court, we are B of the view that no prejudice has been caused to the appellant for non-mentioning of Section 302 l.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, C 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.

29. In 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 E 211, sub-section (2) has been complied with. Therefore, we do ·ot find any substance in the aforesaid grievance of the ppellant.

30. Now the only other point on which argument has been made on behalf of the appellant is that in the instant case appellant was in jail at the time of the commission of the offence. It has been submitted that his involvement in the whole episode has been argued for only on the evidence of PW.4 who is said to have identified his voice on the basis of some telephone calls.

31. These 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.

32. However, 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 c 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)

33. Relying on such identification by voice this Court held in Kripa/ 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. G 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 A identify. the voice of Mohan Singh. The first 1.0. 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 1.0. of the case stated that on 23.7.2005, four calls were B 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 c 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 0 connection. This Court finds that from para 19 onwards of the judgment by the High Court these aspects have received due consideration.

34. The learned counsel for the appellant relied on some judgments in support of his contention that in the facts of this E 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 sec 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 A 1 to A4 and this Court finds that the evidence against Nilesh was identical. Therefore, G 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 . A the voice, the principles decided in that case, even though are unexceptionable, cannot be applied to the present cas.e.

35. The other case on which reliance was placed by the learned counsel for the appellant was in the case of Inspector of Police, Tamil Nadu v. Palanisamy alias Se/van 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 D recorded between the mobiles of the appellant and his conspirator Laxmi Singh.

36. The next decision on which reliance was placed by the learned counsel for the appellant was rendered in the case of Saju v. State of Kera/a 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 – Conditio.n for appHcability 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." 37 .. If we apply the aforesaid principles to the facts of the A present case it is clear that there is enough evidence to furnish reasonable ground to believe that both the appellant and Laxmi Singh had conspired together for committing the offence. Therefore, the principles of this case do not help the appellant.

38. Learned 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:- c "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 D 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 E 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 illegal agreement."

39. In view of the aforesaid principles, this Court finds that · F no assistance can be drawn from the aforesaid decision to the case of the appellant in this case.

40. Reliance was also placed on the decision of this Court in the case of S. Aru/ Raja v. State of Tamil Nadu reported in G (2010) 8 sec 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 H A discussed above, substantive evidence was placed to prove the meeting of minds between the appellant and Laxrrii 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 B conspiracy.

41. Reliance 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 (2002) 7 SCC 334. In that case, this court held that offence of conspiracy can be C 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. n 42. For the reasons discussed above, this Court does not E find that there is any reason to interfere with the concurrent finding in the instant case. This Court, therefore, does not find any reason to take a view different from the one taken by the High Court.

43. The appeal is dismissed and the conviction of the F appellant under Section 1208 of IPC for life imprisonment is affirmed. D.G. Appeal dismissed.