December 16, 2022 In Uncategorized


A Two Judge Bench of the Supreme Court presided by Justice Sanjay Kishan Kaul and Justice Abhay S. Oka passed a Judgment dated 14.12.2022 in the case of Kalicharan & Ors. v. State of Uttar Pradesh, Criminal Appeal No. 122 of 2021 and observed that the requirement of Section 313[1](Power to examine the accused) of Code of Criminal Procedure (CrPC) is that the accused must be explained the circumstances appearing against him so that accused can offer an explanation.


The informant Atar Singh (Principal Witness-1) was carrying soil for leveling a lane by his bullock cart on 06.12.2000 at about 1.30 pm. When he reached near the house of Shankar, Appellant no.1 Kalicharan and his sons, Yaad Prakash (Appellant no.2), and Diwan Singh (Appellant no.3) resisted PW-1 and forced him to turn back his bullock cart. The said three Appellants went back to their house and came back with weapons. The allegation is that one Bangali came with a chura (razor), Appellant no.1 was carrying a lathi, and Appellant no.2 was carrying a country-made pistol of 315 bores. Appellant no.3 and Appellant no.4 Shakuntala Devi, wife of Appellant No.1 was carrying axe in their hands. The allegation made in the First Information Report (FIR) was that Appellant no.2 fired four to five shots from his pistol which hit deceased Harpal Singh who died on the spot. As a result of this incident, the conflict started and the accused Bangali who was armed with a razor attacked PW-1’s sister Rani, who succumbed to the injuries caused by Bangali. Malkhan Singh, Ram Autar, Smt. Saroj, Smt. Rajni and Smt. Rani Devi came to rescue the deceased Rani. However, the said persons were attacked by Appellant Nos.1,3 and 4 with weapons in their hands. The FIR noted that the deceased Harpal Singh died due to bullet injuries caused by bullets fired by Appellant no.2 Yaad Prakash, however in the evidence, the prosecution witnesses deposed that due to commotion caused by firing of shots by Appellant no.2, Harpal Singh fell down and later on he was attacked by the other Appellants. The injuries caused by sharp weapons led to his death.

The Fast Track Sessions Court, Bulandshahr convicted Bangali under Section 148 (Rioting, armed with deadly weapon) of the Indian Penal Code (IPC), Section 302 (Punishment for murder) of IPC as well as Section 307 (Attempt to murder) read with Section 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object) of IPC. The Fast Track Court also convicted Appellant no.1 to 4 for the same offences. Appellant no.2 was convicted for the offence punishable under Section 25 (Punishment for certain offences) of the Arms Act, 1959. Two separate appeals, one preferred by the accused Bangali and the other one preferred by Accused Nos.1 to 4 were filed before the High Court of Allahabad, both were dismissed. Bangali did not challenge the impugned Judgment, however, Appellant nos.1 to 4 filed an appeal before the Supreme Court.


i)Whether there is a failure to comply with the requirements of Sections 213 and 313 CrPC ii) Whether prejudice has been caused to the accused due to failure to comply with the aforesaid provisions and iii) Whether it has caused a failure of justice.

Supreme Court Observations:

Applicability of sections 148 and 149 of IPC

The Hon’ble Supreme Court observed that the condition precedent for attracting offences punishable under Sections 148 and 149 of IPC is that there should be an unlawful assembly as provided in Section 141 of IPC. Section 141 of IPC defines “unlawful assembly” to mean an assembly of five or more persons. In this case, the four appellants and accused Bangali were named in the charge sheet. Diwan Singh, Appellant No.3 was acquitted vide Order dated 01.07.2021 Therefore, for considering the question whether there was an unlawful assembly, Appellant no.3 was kept out of consideration. Then only four accused remain. Hence, the charge under Sections 148 and 149 of IPC was not sustained.

Effect of Omission to frame proper charge and omission to put relevant circumstances to accused in their Statement under section 313 Of Crpc

The Hon’ble Supreme Court while considering the above issue observed that the third charge was based on the allegation in the FIR that Harpal Singh suffered injuries due to bullets fired by Appellant No.2 and that he died due to the bullet injuries. There is no charge framed that the death of Harpal Singh was caused due to assault made by Appellant Nos.1, 2 and 4.There are provisions made in CrPC in Chapter XVII regarding the framing of charge. The object of the said provisions is obviously to make the accused aware of the accusations against him on the basis of which the prosecution is seeking to convict him. The object of the provisions regarding the framing of charge is that accused should be in a position to effectively defend himself. An accused can properly defend himself provided he is clearly informed about the nature of the allegations against him before the actual trial starts.

The Hon’ble Apex Court further observed that there are two provisions in CrPC that deal with errors or omissions in framing charge. The said provisions are Sections 215 and 464. Section 215 lays down when errors in the particulars required to be stated in the charge can be treated as material. It lays down that the error cannot be said to be material unless the accused was misled by such error or omission and that such error or omission has caused a failure of justice. Section 464 deals with the effect of error or omission made while framing charges on the finding and sentence of the competent Court. The Section provides that the finding and sentence of the Court cannot be invalid merely on the ground of error in framing charge or omission in framing charge. The finding and sentence will be invalid only if in the opinion of the Court of appeal, the error or omission has occasioned a failure of justice. When the Court of appeal is called upon to decide whether any failure of justice has been occasioned due to omission to frame a charge or error in the charge, the Court is duty bound to examine the entire record of the trial including all exhibited documents, depositions and the statements of the accused recorded under Section 313.

The Hon’ble Supreme Court further relied on paragraph 145 of the well known decision in the case of Sharad Birdhichand Sarda v. State of Maharashtra 2 (1984) 4 SCC 116, where it was held that: “145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.”

The Hon’ble Supreme Court further categorically observed that it is not only that a charge was not framed on the allegation that the death of Harpal Singh was caused due to assault physically made by the accused and in particular Appellant Nos. 1, 2 and 4 by use of sharp weapons, a misleading charge was also framed that Harpal Singh died due to bullet injuries sustained by the bullets fired by the Appellant No.2 with a pistol in his hand. There is every possibility of the accused getting misled due to the framing of such a charge and omission to frame the correct charge.

The Apex Court on the basis of the records observed that “It can be seen from the oral evidence, the post-mortem reports and examination of the doctor, Harpal Singh did not receive any bullet injury. Still, the said allegation was put to all the accused in the examination under Section 313. Thus, not only that the charge framed was misleading, but most material circumstance brought on record against the accused in the evidence that Harpal Singh died due to injuries caused by the attack made by accused nos.1,3 and 4 was not put any of the accused. Thus, not only that the charge was misleading but the accused had no opportunity to explain the circumstance in which Harpal Singh was allegedly killed which was brought on record during the trial. Therefore, in the facts of the case, by reason of omission to frame a proper charge in terms of Section 213 of CrPC, and by reason of not putting important circumstances appearing in the evidence in the statement under Section 313 caused serious prejudice to the accused. The prejudice, in the facts of the case, has occasioned a failure of justice”.

The Hon’ble Supreme Court while giving the aforesaid reasoning concluded that since the incident is of December 2000, it will be unfair to the Appellants if they are called upon to answer the circumstances appearing against them in evidence about the incident which has taken place more than 22 years back. Therefore, in the circumstances, the charge of committing the murder of Harpal Singh against Appellant Nos. 1, 2 and 4 was not substantiated. Appellant No.2 was sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 25 of the Arms Act which he has already undergone.


Thus, based on the aforesaid reasoning, the Supreme Court allowed the Criminal Appeal and set aside the impugned judgment of the Fast Track Session Court as well as the High Court of Allahabad to the extent to which Appellant No.1, 2 and 4 were convicted. Appellant No.3 had already been acquitted vide Order 01.07.2021.


Roopal Bardia


The Indian Lawyer


[1] 313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to

be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of

this section.

Leave a Reply