CHINNAM KAMESWARA RAO AND ORS.versusSTATE OF AP. REP. BY HOME SECRETARY

                     [2013] 2 S.C.R. 631


        CHINNAM KAMESWARA RAO AND ORS.                              A
                               v.
      STATE OF AP. REP. BY HOME SECRETARY
          (Criminal Appeal No.1116 of 2011)
                     JANUARY 10, 2013
                                                                    B
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

     Penal Code, 1860 - ss. 302 and 324 rlw s. 34 -
Prosecution under - Injured victim and 4 others eye-
witnesses - Incident in question was sequel to an incident on       C
previous day, wherein the deceased was threatened by
accused of dire consequences - Acquittal by trial court -
Conviction by High Court - Held: The conviction was justified
in view of depositions of injured victim and other eye-
witnesses - Facts of the case prove that the incident was           D
premeditated - Absence of charge uls. 34 would not affect the
legality of conviction, as such omission caused no prejudice
to the accused.

     Code of Criminal Procedure, 1973 - s. 386 - Appeal             E
against acquittal - Scope of - Held: While deciding appeal
against acquittal, the power of appellate court not
circumscribed by any limitation - It has power to review the
entire evidence - Appellate court can reverse the acquittal
order, if, on appraisal of evidence, it finds that the view taken
by court, while acquitting the accused was not a possible view.
                                                                    F

     Criminal Trial - Conviction on the basis of s. 34 /PC for
which the accused was not charged - Held: Mere omission
s. 34 in charge-sheet does not ipso facto or ipso jure lead to
any inference or presumption of prejudice having been caused        G
to the accused - Prejudice from such omission needs to be
s~tisfactorily demonstrated - In the instant case, no prejudice
shown to have been caused - Penal Code, 1860 - s. 34.

                             631                                    H
    632      SUPREME COURT REPORTS           [2013] 2 S.C.R.


A      The appellants-accused, alongwith accused No. 4
  were alleged to have caused death of one person and
  caused injuries to another. The prosecution case was
  that all the accused persons stopped the deceased and
  PW1 (the injured witness). All the accused except A-4
B were armed with casuarinas sticks. They assaulted the
  deceased and PW-1 and caused injuries to them. The
  deceased later succumbed to the injuries. The incident
  was a sequel to an incident which had taken place one
  day before the day of the incident between the accused
c persons on one hand and the deceased and PWs-1 on
  the other and the same was pacified at the intervention
  of PW-3. Appellant No.1 ·had also threatened the
  deceased with dire consequences. Charges were framed
  against the appellant accused u/ss. 302 and 324 IPC. A-4
  was charged u/ss. 302 and 324 IPC with the aid of s. 34
0
  IPC. PWs 2,3,4 and 6 were examined as eye-witnesses.
  Trial court acquitted all the accused. High Court
  maintained the acquittal order as regards A-4, while
  reversed the acquittal order as regards appellants-
  accused and convicted them u/s. 302/34 and 324/341PC.
E
       In appeal to this Court, appellants contended that
  High Court was not correct in reversing the acquittal order
  by fresh appraisal of the evidence; that appellants-
  accused were not charged u/s. 34 IPC and hence could
F not have been convicted by the High Court with the aid
  of s. 34; and that there was no basis for the High Court
  to hold that the appellants had common intention to
  commit the murder.
          Dismissing the appeal, the Court
G
         HELD: 1. The High Court committed no error in
    holding the appellants guilty especially when the
    statement of PW-1 who was also injured in the incident
    was found to be credible. The depositions of PW-1, PW-
H
  CHINNAM KAMESWARA RAO v. STATE OF A.P.               633
         REP. BY HOME SECRETARY
2, PW-3, PW-4, PW-6 all supported the prosecution A
version that the deceased was assaulted by the
appellants resulting in grievous injuries to him that
culminated in his death. The trial court fell in error in
rejecting the testimony of these witnesses on minor
contradictions which was not sufficient to shatter their B
credibility. The acquittal recorded by the trial court was
not thus a reasonably possible view in the matter which
the High Court was entitled to reverse while hearing the
appeal. [Para 17] [647-E-G)

     2.1 A reading of s. 386 Cr.P.C. leaves no manner of C
doubt that in an appeal against an order of acquittal the
appellate court may reverse such order and direct that
further inquiry be made or that the accused be re-tried,
as the case may be, or impose a sentence upon him
according to law. Similarly in the case of appeal from a D
conviction, the appellate court has the power to reverse
the findings recorded by the trial court and discharge the
accused or pass an order for his re-trial etc. [Para 10)
[639-G)
                                                            E
     2.2 While deciding appeal against acquittal, the power
of the appellate court is jn no way circumscribed by any
limitation and that power is exercisable by the appellate
court to comprehensively review the entire evidence. The
appellate court must bear in mind that in the case of F
acquittal, the innocence of the accused is doubly
assured by his acquittal. Consequently, if two reasonable
conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the findings
of the acquittal recorded in favour of the accused. [Para G
11) [639-H; 640-A-B]

    2.3 If the appellate court finds that the view taken by
the trial court acquitting the accused was not a
reasonably possible view, it can reverse the view taken
by the trial court and hold the ·accused guilty. On the       H
    634     SUPREME COURT REPORTS               [2013) 2 S.C.R.


A   contrary, if the view is not a reasonably possible view, the
    appellate court is duty bound to interfere and prevent
    miscarriage of justice by suitably passing the order by
    punishing the offender. Just because the trial court had
    recorded an acquittal in favour of the appellants, it cannot
B   be said that the appellate court had any limitation on its
    power to reverse such an acquittal. [Para 12] [641-E-G]

       Dhanna etc. v. State of Madhya Pradesh (1996) 10 SCC
  79: 1996 (4) Suppl. SCR 28; Ka/Ju@ Masih and Ors. v. State
C of Madhya Pradesh (2006) 10 SCC 313: 2006 (1) SCR 201;
  Murugesan and Ors. v. State 2012 (10) SCALE 378;
  Chandrappa and Ors. v. State of Kamataka (2007) 4 SCC
  415: 2007 (2) SCR 630 - relied on.

       3. Mere omission of s. 34 IPC from the charge-sheet
D does not ipso facto or ipso jure lead to any inference or
  presumption of prejudice having been caused to the
  accused in cases where the conviction is recorded with
  the help of that provision. It is only if the accused persons
  plead and satisfactorily demonstrate that prejudice had ~
E indeed resulted from the omission of a charge u/s. 34 IPC
  that any such omission may assume importance. No
  prejudice has been caused in the present case. The
  absence of charge u/s. 34 IPC did not, therefore, affect
  the legality of the conviction recorded by the High Court.
F [Para 15] [646-A-D]
        Krishna Govind Patil v. State of Maharashtra AIR 1963
    SC 1413:1964 SCR 678; Darbara Singh v. State of Punjab
    2012 (8)SCALE 649; Gurpreet Singh v. State of Punjab
    (2005) 12 SCC615: 2005 (5) Suppl. SCR 90 - relied on.
G
      4. It is not correct to say that there was no evidence
  to show common intention on the part of the appellants
  to commit the murder of the deceased. The evidence on
  record sufficiently proves that the appellants had
H confronted the deceased and PW-1 on the previous date
     .,
  CHINNAM KAMESWARA RAO v. STATE OF A.P.               635
         REP. BY HOME SECRETARY
which was defused with the interference of PW-3 who A
was witness to the threat extended by the appellants to
the deceased of dire consequences. The circumstances
of the instant case leave no manner of doubt that the
appellants shared the common intention to kill the
deceased and that they acted under a premeditated plan. B
The incident in instant case had a history behind it; and
that the appellants had not only threatened the deceased
previously but were lying in wait for his arrival at the place
of occurrence clearly showed that the commission of the
offence was preconcerted. [Para 16] [646-E-F; 647-C-D] c
                    Case Law Reference:
    1996 (4) Suppl. SCR 28     Relied on         Para 11
    2006 (1) SCR 201           Relied on         Para 11
                                                              D
    2012 (10) SCALE 378        Relied on         Para 11
    2007 (2) SCR 630           Relied on         Para 11
    1964 SCR 678               Relied on         Para 13
                                                              E
    2012 (8) SCALE 649         Relied on         Para 14
    2005 (5) Suppl. SCR 90     Relied on         Para 15
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1116 of 2011.                                             F
    From the Judgment & Order dated 08.02.2011 of the High
Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
1055 of 2007.
    M.S. Ganesh, T. Anamika for the Appellant.                G
    D. Mahesh Babu, Mayur Shah, Savita Devi, Suchitra
Hrangkhawl, Amit K. Nain, M.B. Shivdu for the Respondent.

    The Judgment of the Court was delivered by
            \
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    636      SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A        T.S. THAKUR, J. 1. This appeal under Section 2(a) of the
    Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
    Act, 1970 assails a judgment and order dated 8th February,
    2011 passed by the High Court of Andhra Pradesh at
    Hyderabad, whereby the High Court has partly allowed the
B   acquittal appeal filed by the State and while reversing the
    judgment and order passed by the trial Court convicted the
    appellants for offences punishable under Section 302 read with
    Section 34 of the IPC and sentenced them to undergo
    imprisonment for life besides levying a fine of Rs.1,000/- each.
c   In default of payment of fine the appellants have been sentenced
    to undergo simple imprisonment for a period of one month
    each. The appellants have been further convicted for an offence
    punishable under Section 324 read with Section 34 of the IPC
    and sentenced to undergo simple imprisonment for three
    months each with the direction that the sentences shall run
0
    concurrently.
          2. Briefly stated the prosecution case is that on 27th April,
    2003, at around 7.00 p.m., the appellants along with one
    Papisetti Praveen who was arrayed as accused no.4 stopped
E   the deceased-Bezawada Srinivasa Rao and PW.1-Alapati
    Seshadri while the latter were on their way home at Bethavolu
    Park Centre - the place of occurrence. An altercation between
    the accused persons on the one hand and the deceased and
    PW-1 on the other had according to the prosecution taken
F   place on the previous day i.e. on 26th April, 2003, while the
    deceased and PW.1 were bringing some palmyrah nuts from
    the fields. PW-3-Sonti Koteswara Rao, a shopkeeper who runs
    a pan shop in the vicinity, claimed to be a witness to that
    incident and had intervened and pacified the parties which
G   passed off without any physical harm to either side except that
    according to the prosecution appellant no.1-Chinnam
    Kameswara Rao had threatened the deceased with dire
    consequences. With the above incident in the background on
    27th April, 2003, the accused persons allegedly confronted the
H   deceased and. PW-1-Alapati Seshadri, armed with stout
  CHINNAM KAMESWARA RAO v. STATE OF A.P.                    637
  REP. BY HOME SECRETARY [T.S. THAKUR, J.]
casuarina sticks except accused no.4 who was unarmed. An            A
altercation followed between the two sides as a sequel to the
incident of the previous day in the course whereof appellant
no.1-Chinnam Kameswara Rao is alleged to have struck a
blow on the head of the deceased. When PW-1-Alapati
Seshadri intervenea, the remaining two appellants came down         B
upon him and gave stick blows on his head also. The injured,
as also Alapati Seshadri-PW-1 fell to the ground, whereupon
A-4 is alleged to have kicked and given fist blows to the
deceased while A-1 to A-3 continued to indiscriminately hit both
of them with their sticks which caused bleeding injuries to both    c
the injured. Taking both of them as dead, the appellants are
alleged to have run away from the spot towards the house of
appellant no.1. Sonti Srinivasa Rao S/o Nageswara Rao (PW-
2), Sonti Koteswara Rao (PW-3), Sonti Srinivasa Rao, S/o
Veeraiah (PW-4) and M.V. Gopala Krishna Murthy (PW-6) are
                                                                    0
alleged to have witnessed the incident. PW-2-Sonti Srinivasa
Rao with the help of one P. Vasudeva Rao shifted both the
injured to the Government Hospital, Gudivada for treatment who
informed the Gudivada Town I Police Station about the arrival
of the injured in the hospital whereupon PW-9-B. Jaya Raju,         E
ASI, reached the hospital and recorded the statement of the
deceased, marked Exhibit P-6. A case under Section 324 read
with 34 IPC was on the basis of that statement registered and
the injured shifted to the University General Hospital, Vijaywada
for further treatment. Around 2.50 a.m. on 28th April, 2003, the
deceased succumbed to his injuries in the hospital at               F
Vijayawada whereupon the Investigating Officer altered the
offence from Section 324 read with Section 34 IPC to Section
302 read with Section 34 IPC.
     3. After completion of investigation that included the arrest G
of the accused persons, post mortem of the dead body of the
deceased, seizure of the weapons of offence, the police filed
a charge sheet against the appellants for offences punishable
under Sections 302 and 307 IPC while A-4 was charged under
Sections 302 and 307 read with Section 34 IPC.
                                                                   H
    638      SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A        4. At the trial the prosecution examined as many as 13
    witnesses including PWs.2, 3, 4 and 6, said to be eye witnesses
    to the incident. The accused did not lead any evidence in their
    defence. The trial Court all the same came to the conclusion
    that the prosecution had not been able to establish the charge
B   framed against the accused persons and accordingly acquitted
    them.

         5. Aggrieved by the judgment and order of the acquittal
    recorded by the trial Court the State filed Criminal Appeal
    No.1055 of 2007 before the High Court of Andhra Pradesh at
C   Hyderabad which appeal was allowed in part reversing the
    acquittal of the appellants and convicting them for offences
    punishable under Section 302 read with Section 34 IPC and
    Section 324 read with Section 34 of the IPC. The acquittal of
    accused No.4 was, however, affirmed by the High Court. The
D   appellants were consequently sentenced to undergo
    imprisonment for life apart from imprisonment for a period of
    three months under Section 324 IPC as already noticed above.
    The sentences were directed to run concurrently. The present
    appeal assails the correctness of the above judgment and
E   order.
         6. Appearing for the appellants Mr. M.S. Ganesh, learned
    senior counsel, made a three-fold submission. Firstly, he
    contended that the High Court was in error in embarking upon
    a fresh appraisal of the evidence adduced by the prosecution
F   at the trial and interfering with the order of acquittal passed by
    the trial Court just because in the opinion of the High Court a
    second view was equally reasonable in the facts and
    circumstances of the case. He urged that acquittal of the
    accused persons reinforced their innocence and except in
G   compelling circumstances where the acquittal is seen to have
    resulted in miscarriage of justice or where appreciation of
    evidence is perverse or manifestly unsatisfactory, the High Court
    should not have converted the acquittal into a conviction.

          7. Secondly, he contended that the High Court could not
H
  CHINNAM KAMESWARA RAO v. STATE OF A.P.                    639
  REP. BY HOME SECRETARY [T.S. THAKUR, J.]

have convicted the appellants for offences punishable under A
Sections 302 and 307 both read with Section 34 IPC when the
charges framed against the appellants were only for offences
punishable under Sections 302 and 307 of the IPC. It was also
contended that accused No.4, since acquitted by the Courts
below, alone was charged with Section 302 read with Section B
34 IPC. The High Court was not, therefore, justified in convicting
the appellants for the offence of murder or attempt to murder
with the help of Section 34 of the Code. The absence of a
charge under Section 34 had, according to the learned counsel,
resulted in prejudice and miscarriage of justice to the appellants. c
     8. Thirdly, it was contended that on a true and proper
appreciation of the evidence adduced at the trial there was no
real basis for the High Court to hold that the appellants had the
common intention to commit the murder of the deceased. In the
absence of any evidence to support the allegation that the D
appellants had a common intention to kill the deceased, their
conviction for the offence of murder punishable under Section
302 IPC was not justified. At any rate, the evidence did not
support the charge of murder which could be appropriately
converted to culpable homicide not amounting to murder E
punishable under Section 304 Part I or II of the IPC.
     9. We propose to deal with the submissions ad seriatim.
      10. The powers of Appellate Court are stipulated in Section
386 of the Code of Criminal Procedure, 1973. A.bare reading F
of the said provision leaves no manner of doubt that in an
 appeal against an order of acquittal the Appellate Court may
 reverse such order and direct that further inquiry be m~de or
that the accused be re-tried, as the case may be or impose a
sentence upon him according to law. Similarly in the case of G
appear from a conviction the Appellate Court has the power to
reverse the findings recorded by the trial Court and discharge
the accused or pass an order for his re-trial etc.

 w 11. The plenitude of the power available to the Appellate
Court notwithstanding recent pronouncements of this Court has      H
    640      SUPREME COURT REPORTS                    [2013) 2 S.C.R.

A   evolved a rule of prudence according to which the Appellate
    Court must bear in mind that in the case of acquittal the
    innocence of the accused is doubly assured by his acquittal.
    Consequently, if two reasonable conclusions are possible on
    the basis of the evidence on record the Appellate Court should
8   not disturb the findings of the acquittal recorded in favour of the
    accused. A long line of decisions rendered by this Court have
    recognised that while deciding acquittal appeal the power of
    the Appellate Court is in no way circumscribed by any limitation
    and that power is exercisable by the Appellate Court to
C   comprehensively review the entire evidence. The decisions of
    this Court in Dhanna etc. v. State of Madhya Pradesh (1996)
    10 SCC 79 and Ka/lu @ Masih & Ors. v. State of Madhya
    Pradesh (2006) 10 sec 313 aptly summarise the legal
    position. A recent decision of this Court in Murugesan & Ors.
    v. State 2012 (10) SCALE 378 is a timely reminder of the
D   principles that were succinctly enunciated in an earlier decision
    of this Court in Chandrappa & Ors. v. State of Kamataka
    (2007) 4 sec 415, in the following words:
          "42. From the above decisions, in our considered view, the
E         following general principles regarding powers of the
          appellate court while dealing with an appeal against an
          order of acquittal emerge:
          (1) An appellate court has full power to review, re-
          appreciate and reconsider the evidence upon which the
F         order of acquittal is founded.
          (2) The Code of Criminal Procedure, 1973 puts no
          limitation, restriction or condition on exercise of such power
          and an appellate court on the evidence before it may reach
          its own conclusion, both on questions of fact and of law.
G
          (3) Various expressions, such as, "substantial and
          compelling reasons", "good and sufficient grounds", "very
          strong circumstances", "distorted conclusions", "glaring
          mistakes", etc. are not intended to curtail extensive powers
H         of an appellate court in an appeal against acquittal. Such
  CHINNAM KAMESWARA RAO v. STATE OF A.P.                   641
  REP. BY HOME SECRETARY [T.S. THAKUR, J.]
    phraseologies are more in the nature of "flourishes of A
    language" to emphasise the reluctance of an appellate
    court to interfere with acquittal than to curtail the power of
    the court to review the evidence and to come to its own
    conclusion.
                                                                   8
    (4) An appellate court, however, must bear in mind that in
    case of acquittal, there is double presumption in favour of
    the accused. Firstly, the presumption of innocence is
    available to him under the fundamental principle of criminal
    jurisprudence that every person shall be presumed to be
    innocent unless he is proved guilty by a competent court C
    of law. Secondly, the accused having secured his acquittal,
    the presumption of his innocence is further reinforced,
    reaffirmed and strengthened by the trial court.
    (5) If two reasonable conclusions are possible on the basis D
    of the evidence on record. the appellate court should not
    disturb the finding of acquittal recorded by the trial court."
                                          (emphasis supplied)
       12. What, therefore, needs to be examined in the light of E
the settled legal position is whether the view taken by the trial
Court acquitting the accused was a reasonably possible view.
 If the answer is in the negative nothing prevents the Appellate
Court from reversing the view taken by the trial Court and holding
the accused guilty. On the contrary, if the view is not a F
reasonably possible view the Appellate Court is duty bound to
interfere and prevent miscarriage of justice by suitably passing
the order by punishing the offender. We have in that view no
hesitation in rejecting the contention that just because the trial
Court had recorded an acquittal in favour of the appellants the
Appellate Court had any limitation on its power to reverse such G
an acquittal. Whether or not the view was reasonably possible
will be seen by us a little later when we take up the merits of
the contention urged by the appellant regarding involvement of
the accused persons in the commission of the crime.
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    642       SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A         13. That brings us to the question whether absence of a
    charge under Section 34 of the IPC would by itself operate as
    an impediment in the Appellate Court recording a conviction
    with the help of that provision. The decision of this Court provide
    a complete answer to that contention to which we may
B   immediately refer. In Krishna Govind Patil v. State of
    Maharashtra AIR 1963 SC 1413 the trial Court had acquitted
    all the accused persons while the High Court convicted them
    under Section 302 read with Section 34 IPC. This Court held
    that the High Court could convict the accused under Section
c   34 even if the named accused were acquitted provided the
    High Court held that there were other unnamed accused
    persons who were involved in the commission of the offence.
    The following passage from the said decision is, in this regard,
    apposite:
D         "It is well settled that common intention within the meaning
          of the section implied a pre-arranged plan and the criminal
          act was done pursuant to the pre-arranged plan. The said
          plan may also develop on the spot during the course of the
          commission of the offence; but the crucial circumstance is
E         that the said plan must precede the act constituting the
          offence. If that be so, before a court can convict a person
          under s. 302, read with s. 34, of the Indian Penal Code, it
          should come to a definite conclusion that the said person
          had a prior concert with one or more other persons, named
          or unnamed, for committing the said offence. A few
F
          illustrations will bring out the impact of s. 34 on different
          situations.
          (1) A, B, C and D are charged under s. 302, read with
          s. 34, of the Indian Penal Code, for committing the murder
G         of E. The evidence is directed to establish that the said
          four persons have taken part in the murder.
          (2) A, B, C and D and unnamed others are charged under
          the said sections. But evidence is adduced to prove that
          the said persons, along with others, named or unnamed,
H         participated jointly in the commission of that off7nce.
   CHINNAM KAMESWARA RAO v. STATE OF A.P.                  643
   REP. BY HOME SECRETARY [T.S. THAKUR, J.)
    (3) A, B, C and D are charged under the said sections.        A
    But the evidence is directed to prove that A, B, C and D,
    along with 3 others, have jointly committed the offence.

    xxxxxxxxx
    But what is the position if the Court acquits 3 of the 4      B
    accused either because it rejects the prosecution
    evidence or because it gives the benefit of doubt to the
    said accused? Can it hold, in the absence of a charge as
    well as evidence. that though the three accused are
    acquitted. some other unidentified persons acted conjointly   C
    along with one of the named persons? If the Court could
    do so. it would be making out a new case for the
    prosecution: it would be deciding contrary to the evidence
    adduced in the case. A Court cannot obviously make out
    a case for the prosecution which is not disclosed either in   o
    the charge or in regard to which there is no basis in the
    evidence. There must be some foundation in the evidence
    that persons other than those named have taken part in
    the commission of the offence and if there is such a basis
    the case will be covered by the third illustration."
                                                                  E
                                    (underlined for emphasis)

      14. The legal position was reviewed by a two-Judge Bench
of this Court in Darbara Singh v. State of Punjab 2012 (8)
SCALE 649. In that case also charges were framed against
                                                                  F
two of the accused persons under Section 302 IPC whereas
against the third accused the charge framed was under Section
302 read with Section 34 IPC. The trial Court had acquitted the
third accused but convicted the first two accused much in the
same manner as is the position in the present case. The           G
contention before this Court was that in the absence of a
charge under Section 34 no conviction could be recorded
against the appellants under Section 302 especially when the
injury inflicted by one of the accused persons was not held to
be sufficient in the ordinary course of nature to cause death.
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    644       SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A   Repelling the contention this Court observed:
          "12. It has further been submitted on behalf of the Appellant
          that, as the appellant was never charged under
          Section 302 r/w Section 34 Indian Penal Code, unless it is
          established that the injury caused by the Appellant on the
B
          head of the deceased, was sufficient to cause death, the
          Appellant ought not to have been convicted under
          Section 302 Indian Penal Code simplicitor. The
          submission so advanced is not worth consideration for the ·
          simple reason that the Learned Counsel for the Appellant
c         has been unable to show what prejudice, if any, has been
          caused to the Appellant, even if such charge has not been
          framed against him. He was always fully aware of all the
          facts and he had, in fact, gone alongwith Kashmir Singh
          and Hira Singh with an intention to kill the deceased. Both
D         of them have undoubtedly inflicted injuries on the
          deceased Mukhtiar Singh. The Appellant has further been
          found guilty of causing grievous injury on the head of the
          deceased being a vital part of the body. Therefore, in the
          light of the facts and circumstances of the said case, the
E         submission so advanced does not merit acceptance.
          xxxxxxxxx
          14. The defect in framing of the charges must be so
          serious that it cannot be covered under Sections 464/465
F         Code of Criminal Procedure., which provide that, an order
          of sentence or conviction shall not be deemed to be invalid
          only on the ground that no charge was framed, or that there
          was some irregularity or omission or misjoinder of charges,
          unless the court comes to the conclusion that there was
G         also, as a consequence, a failure of justice. In
          determining whether any error, omission or irregularity in
          framing the relevant charges, has led to a failure of justice,
          the court must have regard to whether an objection could
          have been raised at an earlier stage, during the
H         proceedings or not. While judging the question of prejudice
  CHINNAM KAMESWARA RAO v. STATE OF A.P.                         645
  REP. BY HOME SECRETARY [T.S. THAKUR, J.]
    or guilt, the court must bear in mind that every accused has         A
    a right to a fair trial, where he is aware of what he is being
    tried for and where the facts sought to be established
    against him, are explained to him fairly and clearly, and
    further, where he is given a full and fair chance to defend
    himself against the said charge(s).                                  B
   ·15. The 'failure of justice' is an extremely pliable or facile
    expression, which can be made to fit into any situation in
    any case. The court must endeavour to find the truth. There
    would be 'failure of justice'; not only by unjust conviction,
    but also by acquittal of the guilty, as a result of unjust failure   C
    to produce requisite evidence. of course, the rights of the
    accused have to be kept in mind and also safeguarded,
    but they should not be over emphasized to the extent of
    forgetting that the victims also have rights. It has to be
    shown that the accused has suffered some disability or               o
    detriment in respect of the protections available to him
    under Indian Criminal Jurisprudence. '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 with            E
    respect to matters falling outside their scope. Once the
    accused is able to show that there has been serious
    prejudice caused to him, with respect to either of these
    aspects, and that the same has defeated the rights
    available to him under jurisprudence, then the accused can
                                                                         F
    seek benefit under the orders of the Court."
     15. In Gurpreet Singh v. State of Punjab (2005) 12 SCC
615, this Court held that no prejudice could be claimed by the
accused merely because charge was framed under Section
302 IPC simpliciter and not with the help of Section 34 IPC. ·G
The Court found that the eye witnesses had been cross-
exam ined at length from all possible angles and from
suggestions that were put to them to the eye witnesses, the
Court was fully satisfied that there was no manner of prejudice
caused. What, therefore, needs to be examined is whether any H
    646     SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A prejudice was caused to the accused persons on account of
  absence of charge under Section 34 of the IPC. Mere omission
  of Section 34 from the charge sheet does not ipso facto or ipso
  jure lead to any inference or presumption of prejudice having
  been caused to the accused in cases where the conviction is
B recorded with the help of that provision. It is only if the accused
  persons plead and satisfactorily demonstrate that prejudice had
  indeed resulted from the omission of a charge under Section
  34 of the IPC that any such omission may assume importance.
  We do not see any such prejudice having been caused in the
c present case. In fairness to Mr. Ganesh we must mention that
  although he had strenuously argued the legal proposition dealt
  with by us above when it came to demonstrating a prejudice
  on account of absence of charge under Section 34 he was
  unable to do so. The absence of charge under Section 34 of
  the IPC did not, therefore, affect the legality of the conviction
0
  recorded by the High Court.
         16. That brings us to third and the only other submission
    urged by Mr. Ganesh to the effect that there was no evidence
    to show common intention on the part of the appellants to
E   commit the murder of the deceased. We regret our inability to
    accept that submission. The evidence on record sufficiently
    proves that the appellants had confronted the deceased and
    PW-1 Alapati Seshadri on the previous date which was
    defused with the interference of PW-3 Sonti Koteswara Rao,
F   a shopkeeper in the vicinity who was, however, witness to the
    threat extended by the appellants to the deceased of dire
    consequences. There is evidence to show that on the date of
    occurrence the appellants were lying in wait near the Reading
    Room for the deceased. No sooner they saw him approaching
    the place where they were waiting that they went behind the
G   Reading Room to fetch the stout sticks that they appear to have
    hidden from public view only to mount a surprise attack on the
    deceased. This implies that the appellants had made
    preparations for the commission of the offence and the incident
    was premeditated as a sequel to the confrontation that the two
H   parties had on the previous date. The last and by no means
   CHINNAM KAMESWARA RAO v. STATE OF A.P.                       647
   REP. BY HOME SECRETARY [T.S. THAKUR, J.]
the least important circumstance is the nature of the injuries          A
inflicted upon the deceased on the vital part of the body
resulting in fracture of the skull, sufficient in the ordinary course
to cause death. The evidence on record suggests that all the
three accused persons belaboured the deceased and
continued their assault and aggression even when the                    B
deceased had fallen to the ground on account of the head
injuries sustained by him. The appellants fled from the place of
occurrence only when they felt that the deceased was dead. All
these circumstances leave no manner of doubt that the
appellants shared the common intention to kill the deceased             c
and that they had acted under a premeditated plan. It is well
settled that the common intention may develop during the
course of the commission of the offence but the fact that the
incident in instant case had a history behind it and that the
appellants had not only threatened the deceased previously but
                                                                        0
were lying in wait for his arrival at the place of occurrence
clearly showed that the commission of the offence was
preconcerted.
     17. The High Court, therefore, committed no error in
holding the appellants guilty especially when the statement of E
PW-1 Alapati Seshadri who was also injured in the incident
was found to be credible. The depositions of PW-1 Alapati
Seshadri, PW-2 Sonti Srinivasa Rao S/o Nageswara Rao, PW-
3 Sonti Koteswara Rao, PW-4 Sonti Srinivasa Rao S/o
Veeraiah, PW-6 M.V. Gopala Krishna Murthy all supported the
                                                                      F
prosecution version that the deceased was assaulted by the
appellants resulting in grievous injuries to him that culminated
in his death. The trial Court had obviously fallen in error in
rejecting the testimony of these witnesses on minor
contradictions which was not sufficient to shatter their credibility. G
The acquittal recorded by the trial Court was not thus a
reasonably possible view in the matter which the High Court
was entitled to reverse while hearing the appeal.
     18. In the result this appeal fails and is hereby dismissed.
K.K.T.                                        Appeal dismissed.         H