Supreme Court of India
SANICHAR SAHNIversusTHE STATE OF BIHAR
- Citation
- 2009 INSC 839
- Decided
- 26 May 2009
- Disposal
- Dismissed
- Bench
- MUKUNDAKAM SHARMA
Holding
The conviction under Section 120‑B IPC is upheld as no prejudice was shown despite the non‑framing of conspiracy charges against the co‑accused.
Summary
Sanichar Sahni was convicted under Section 120‑B IPC for conspiring with his father and brother to murder Bhola Chaudhary. The co‑accused were charged only with murder and related offences, not with conspiracy. The appellant argued that the lack of a conspiracy charge against the co‑accused made his conviction illegal and that he suffered prejudice. The Supreme Court examined the trial and appellate findings, held that the two eyewitnesses reliably proved the appellant directed the murder, and found no prejudice because the appellant was fully aware of the charge and was given an opportunity to defend himself. Relying on the prejudice doctrine, the Court concluded that a technical defect in charge‑framing does not invalidate a conviction absent demonstrable injustice. Consequently, the appeal was dismissed and the conviction under Section 120‑B upheld.
Issues considered
- Whether a conviction under Section 120‑B IPC can stand when the co‑accused were not charged with conspiracy.
- Whether the failure to frame a conspiracy charge against co‑accused caused prejudice to the appellant sufficient to set aside the conviction.
- Whether the appellant was denied a fair trial or the opportunity to defend himself on the conspiracy charge.
Legislation cited
- Arms Act, 1959s. 27
- Code of Criminal Procedure, 1973s. 211, s. 215, s. 313, s. 464, s. 465
- Indian Penal Code, 1860s. 120-B, s. 302, s. 34, s. 394, s. 412
Subjects
criminal conspiracySection 120-B IPCcharge framingprejudice doctrinefair trialevidenceconviction upheld
Judgment
[2009] 10 S.C.R. 112
...
A SANICHAR SAHNI •
v.
THE STATE OF BIHAR
(Criminal Appeal No. 772 of 2008)
MAY 26, 2009
B
[DR. MUKUNDAKAM SHARMA AND DR. B.S.
CHAUHAN, JJ.] ->
PENAL CODE, 1860:
c s. 120-B - Punishment for criminal conspiracy- Charges
u/s 120-B only framed against one accused - Other co-
accused charged with s. 302134 but not uls 120-B - Accused
and co-accused convicted and sentenced by courts below of
the respective charges - Plea by accused before Supreme ...
D Court that in the absence of charge against other co-accused
uls 120-B, he alone could not have been convicted and
sentenced u/s 120-B - HELD: Both the trial court and the
High Court recorded concurrent findings of fact that the
accused hatched the conspiracy and directed his brother and
E father to eliminate the deceased and consequently the
deceased was murdered - There is nothing on record to show
the said findings as perverse warranting interference -
Besides, accused never raised such a grievance either before
the trial court or the High Court - It could not be shown that
F arw prejudice was caused to him - Code of Criminal
Procedure, 1973- ss. 211and215- Practice and Procedure
- Framing of charges.
The appellant-accused was charged with an offence
punishable uls 120-8 IPC, whereas his father and brother
G
(co-accused) were charged with offences punishable ul
ss 394 and 302134 IPC in connection with murder of one
'BC' (deceased). The prosecution case was that the
appellant hatched a conspiracy with the co-accused to
H 112
SANICHAR SAHNI v. STATE OF BIHAR 113
eliminate the deceased as he had refused to pay A
'Rangdari'. Consequently, the deceased was murdered.
The trial court convicted and sentenced the appellant-
accused u/s 120-B. The father of the appellant was
convicted and sentenced u/s 302/34 IPC and his brother
u/ss 302, 394 and 412 IPC as also u/s 27 ofthe Arms Act. B
The appeals filed by the three accused were dismissed
by the High Court.
In the instant appeal it was contended for the
appellant that there was no evidence to suggest hatching C
of conspiracy so far as the appellant was concerned; and
that as no charge u/s 120-B IPC was framed against any
other accused, it was not permissible in law to convict
the appellant u/s 120-B since he was also not charged
with any other offence.
D
Dismissing the appeal, the Court
HELD: 1.1. It was established before the trial court
that the appellant had been demanding 'Rangdari' from
the deceased on telephone. PW.2 and PW.5 fully E
supported the prosecution case of conspiracy to
eliminate the deceased. Both of them stated that in their
presence the appellant had directed his father and
brother that if deceased refused to pay the amount he
should be finished. The trial court found no reason to
disbelieve the depositions of PW.2 and PW.5, and came F
to the conclusion that the appellant hatched the
conspiracy and directed his brother and father to finish
the deceased in case the money was not paid by him and,
consequently, the deceased was murdered by the co-
accused. [Para 7 and 8] [118-E-H; 119-A-B] G
1.2. In appeal, the High Court dealt with the issue of
conspiracy elaborately and it also found the evidence of
PW.2 and PW.5 fully trustworthy, and came to the
H
114 SUPREME COURT REPORTS [2009) 10 S.C.R.
A conclusion that the deceased was murdered by the co-
ac¢used in conspiracy for non-fulfillment of demand of
"Rangdari". The concurrent findings of fact recorded by
the courts below regarding the conspiracy and murder
of the dec~ased by the co-accused do not require to be
B interfered with as there is nothing on record to show that
the said findings are perverse. [Para 9 and 10] [119-B-E]
2.1. So far as the issue of framing charge u/s 120-B
IPC against the appellant and non-framing the charge of
conspiracy against other co-accused is concerned, the
C law on the issue can be summarized to the effect that
unless the convict is able to establish that defect in
framing the charges has caused real prejudice to him and
that he was not informed as to what was the real case
against him and that he could not defend himself
D properly, no interference is required on mere
technicalities. Conviction order in fact is to be tested on
the touchstone of prejudice theory. It could not be
pointed out as to what prejudice was caused to the
appellant. [Para 11 and 17 and 18) [119-E-F; 123-A-B]
E
State of A.P. v. Thakkidiram Reddy (1998) 6 SCC 554;
Willie (William) Slaney v. State of M.P. AIR 1956 SC 116;
Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615; Ramji
Singh v. State of Bihar (2001) 9 SCC 528, relied on.
F Topandas v. State of Bombay A.LR. 1956 S.C. 33; and
Fakhruddin Vs. State of Madhya Pradesh AIR 1967 SC 1326,
held inapplicable.
2.2. The appellant was given full opportunity to
G defend himself on the point of conspiracy as there was
no other allegation against him. He was asked specific
question by the trial court on the point of conspiracy
while recording his statement u/s 313 Cr.P.C. He never
raised- any grievance against the same at the time of
H
SANICHAR SAHNI v. STATE OF BIHAR 115
L
framing of the charge or during the course of the trial or A
by filing any petition for quashing the charge. The issue
was not agitated before the High Court also.· Therefore,
it cannot be said that any prejudice has been caused to
the appellant on this very issue. [Para 18) [123-C-F]
B
Case Law Reference:
A.LR. 1956 S.C. 33 . held inapplicable para 12
AIR 1967 SC 1326 held inapplicable para 12
I
(1998) 6 SGC 554 relied on para 13 c
AIR 1956 SC 116 relied on para 14
(2005) 12 sec 615 relied on para 15
(2001) 9 sec 528 relied on para 16 D
I
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.· 772 of 2008.
From the Judgment & Order dated 13.12.2007 of the High
Court of Judicature at Patna in Criminal Appeal No. 328 of E
2003.
A.P. Sahay and Himanshu Shekhar for the Appellants.
Chandan Kumar and Gopal Singh for the Respondents.
F
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been filed
against the judgment and order passed by the High Court of
Patna in Criminal Appeal No.328 of 2003 affirming thff
G
judgment and order of the trial court dated 30th May, 2003 and
+ order of sentence dated 2nd June, 2003 passed in Sessions
Trial No.122 of 2002.
2. The facts and circumstances giving rise to this appeal
H
116 SUPREME COURT REPORTS [2009] 10 S.C.R.
A are that a First Information Report was lodged on 12.10.2001
against Munila! Sahni. Biswanath Sahni, brother and father of
the appellant respectively. Golu Paswan and Kishore Thakur
under Sections 394/302/34 of the Indian Penal Code, 1860 (in
short "IPC") and Section 27 of the Arms Act for the murder of
B deceased Bhola Chaudhary. During the course of investigation,
it caime to light that the appellant had conspired with his father
and brother to finish Bhola Chaudhary. Charge sheet was filed
against Munilal Sahni, Biswanath Sahni and the appellant. At
the, time of framing of the charge on 21.11.2002, the appellant
C was charged only under Section 120-B IPC alone and the co-
accused Munilal Sahni was charged under Sections 302/34,
394 and 412 of the IPC and Section 27 of the IPC. Accused
Bishwanath Sahni was charged under Section 302/34 IPC.
None of the co-accused was charged for conspiracy under
Section 120-B IPC. The appellant was not charged with any
0
other offence except under Section 120-B IPC though the
specific case of the prosecution was that the appellant hatched
the criminal conspiracy with his father and brother to eliminate
Bhola Chaudhary. On conclusion of the trial, the appellant was
convicted vide judgment and order dated 30.5.2003 under
E Stilction 120-B IPC and was sentenced to undergo rigorous
imprisonment for life. Accused Bishwanath Sahni was
ccmvicted under Section 302/34 IPC and sentenced to R.I. for
life. Accused Munilal Sahni was convicted under Sections 302,
394 and 412 of the IPC and sentenced to undergo R.I. for life
F under Section 302, R.I. for seven years under Section 394 and
R.I. for three years under Section 412 IPC. He was further
convicted under Section 27 of the Arms Act and sentenced to
undergo R.I. for one year.
G 3. Being aggrieved, all the convicted persons including the
present appellant filed appeal which has been decided by the
ir:npugned judgment and order dated 13.12.2007 by which the
High Court acquitted Bishwanath Sahni, giving benefit of doubt.
Appeal of the present appellant and Munilal Sahni was
H dismissed.
SANICHAR SAHNI v. STATE OF BIHAR 117
[DR. B.S. CHAUHAN, J.]
4. Munilal Sahni challenged the judgment and order of the A
High Court and his special leave petition has been dismissed
by this Court. Hence, the present appeal by appellant, Sanichar
Sahni.
5. Mr. A.P. Sahay, learned counsel appearing for the 8
appellant has submitted that there was no evidence for hatching
the conspiracy so far as the appellant is concerned. The
appellant had falsely been implicated in this case and no
charge of conspira~y under Section 1208 IPC had been
framed against any of the co-accused and hence it is not C
permissible in law to convict the appellant under the said charge
as he has also not been charged for any other offence. No
person can conspire with himself. Therefore, the appeal
deserves to be allowed.
6. On the other hand, Shri Chandan Kumar, learned D
counsel appearing for the State of Bihar has vehemently
opposed the submission made by the counsel for the appellant
submitting that there was sufficient evidence against the
appellant for collecting "Rangdari" from the deceased Bhola
Chaudhary. However he could not pay at one time, when the E
appellant was in jail for committing some other offence.
Appellant came from jail to the Court and his father and brother
met him there. The appellant conspired with them to eliminate
Bhola Chaudhary. If there has been some defect in framing of
the charge, unless the appellant shows what prejudice has been F
caused to him, judgment and order of conviction passed by the
courts below should not be interfered with on such
technicalities. The appeal has no merit and is liable to be
dismissed.
G_
7. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
Admittedly, the appellant had been charged under Section 120-
8 IPC and under no other provision of law. The other co-
accused had been charged under different provisions but none
of them had been charged under Section 1208 IPC. So far as H
118 SUPREME COURT REPORTS [2009] 10 S.C.R.
A the evidence on record is concerned, two witnesses were
examined on the point of conspiracy, namely, Ashok Paswan
Pl/l/.2, and Ashok Kumar Verma PW.5. Learned counsel for the
parrties had taken us to the depositions thereof. Both the said
witnesses had fully supported the prosecution case so far as
B poi'nt of conspiracy to eliminate Bhola Chaudhary is concerned.
It is strange that in the cross-examination of Ashok Paswan
PW.2, the defence did not make even a suggestion that he had
been deposing falsely to implicate the appellant. When the
st~tement of the appellant under Section 313 of the Code of
c Criminal Procedure (in short "Cr.P.C.") was recorded on
5.4.2003 and was asked about conspiracy, he simply replied
that he had not conspired and he would produce the defence
witnesses in this regard. We fail to understand as where was
the question of adducing evidence after recording of the
0 statement of the accused under Section 313 Cr.P.C.
8. As per the trial court judgment the money bag containing
Rs.11,000/- looted from the deceased Bhola Chaudhary was
recovered from accused Munilal Sahni, the brother of the
appellant and it was established before the trial court that the
E appellant had been demanding "Rangdari" from the deceased
on telephone. The Trial Court believed Ashok Paswan PW.2
and Ashok Kumar Verma PW.5, so far as the conspiracy part
is concerned as they had stated that in their presence the
appellant had directed his father and brother that if Bhola
F Chaudhary deceased would not pay amount he should be
finished. Both the witnesses had given satisfactory explanation
for being present in Hazipur Court at the relevant point :;i time.
The documentary evidence had been produced to the
satisfaction of the court to corroborate their evidence that the
G appellant was present in the Court on 12.10.2001 to appear in
Sessions Trial No.116/2001. It was also satisfactorily proved
that appellant had talked with co-accused, his brother and father .
in between the place court Hajat and the court. The trial court
found no reason to disbelieve the depositions of Ashok Paswan
H PW.2 and Ashok Kumar Verma PW.5. The Trial Court came
SANICHAR SAHNI v. STATE OF BIHAR 119
[DR. B.S. CHAUHAN, J.]
to the conclusion that appellant Sanichar Sahni hatched the A
..... conspiracy and directed his brother and father to finish Bhola
Chaudhary in case the money was not paid by him and
consequently, Bhola Chaudhary was murdered by the co-
accused on 12.10.2001 at 8.45 P.M.
B
9. In appeal, the High Court dealt with the issue of
conspiracy elaborately and found the evidence of Ashok
i Paswan PW.2 and Ashok Kumar Verma PW.5 fully trustworthy
and came to the conclusion that Bhola Chaudhary was
murdered by the co-accused in conspiracy for non-fulfillment of
demand of "Rangdari". The High Court held that both the said
c
witnesses were present on that date i.e. 12.10.2001 in the court
premises Hazipur and the appellant Sanichar Sahni was also
proquced in the Court in custody and he met his father and
brother and it was in their presence that he had asked the co-
I accused to finish_ Bhola Chaudhary if "Rangdari" was not paid. D
10. The above concurrent findings of fact recorded by the
courts below regarding the conspiracy and murder of Bhola
Chaudhary by the co-accused do not require to be interfered
with as there is nothing on record to show that the said findings E
are perverse.
11. So far as the issue of framing charge under Section
;. 120-8 against the appellant and non-framing the charge of
......
conspiracy against other co-accused is concerned, the High
F
Court had taken up the issue but in view of the sufficient material
on record to prove the guilt, did not consider it proper to deal
with it elaborately. The High Court has held as under:
"So far as legality of conviction of appellant Sanichar
Sahni is concerned, we have no doubt in our mind that the · G
evidence as discussed above is sufficient to fasten liability
upon him for making conspiracy to commit murder of victim
B.hola Chaudhary. The Court below has rightly convicted
this appellant under Section 1208 IPC."
H
120 SUPREME COURT REPORTS [2009] 10 S.C.R.
A 12. Learned couri:;el Mr. A.P. Sahay, appearing for the >
appellant has placed reliance upon the judgment of this Court
in Topandas v. State of Bombay A.l.R. 1956 S.C. 33 wherein
it has ~een held that in a case of conspiracy there ought to be
two or more persons who must be parties to an agreement and
B it is trite to say that one person alone can never be held guilty
for criminal conspiracy for the simple reason that one cannot
conspire with oneself. However, in the said case four persons
were <;harged for having committed the offence under Section
120-8 IPC and out of them three were acquitted of the charges,
c remaining one could not be convicted to be guilty of the offence
of criminal conspiracy. Same view has been reiterated in
Fakhfluddin Vs. State of Madhya Pradesh AIR 1967 SC 1326,
wherein this Court held that the offence of conspiracy cannot
survive the acquittal of the alleged co-conspirators. In that case
also if the other co-accused were to be acquitted of all the
D
charges, this Court held that the appellant Fakhruddin could not
be convicted unless there was a proof that he had conspired
with person or persons other than his co-accused. Both the
above referred to cases had been where all co-accused had
been acquitted of the charges of conspiracy. Thus the said
E cases referred to and relied upon by the learned counsel for
the appellant are of no assistance as the facts involved in the
instant case are quite distinguishable. At the most it can be
held that the charge had not been framed properly. It is also
not the case where the appellant can take the plea that he was
F not aware as what was the charge against him and what
defence he could lead. There had been evidence of hatching
•
- ,
the conspiracy of impeccable character. On the point of
conspiracy the courts below have recorded the finding against
the appellant.
G
13. In State of A.P. v. Thakkidiram Reddy, (1998) 6 SCC
554, this Court considered the issue of not framing the proper
~ .....
charges. In that case averment had been raised that charges
have not Deen framed against the accused persons in
H accordance with Section 211 Cr.P.C .. In that case the charge
SANICHAR SAHNI v. STATE OF BIHAR 121
[DR. B.S. CHAUHAN, J.]
had been framed under Section 148 IPC, though it was alleged A
that they were the members of an unlawful assembly, it was not
........
mentioned what its common object was. Besides, it was
contended, a charge under Section 302 IPC simpliciter was
framed against all the accused persons and not with the aid of
Section 149 IPC for whtch they were convicted by the trial court. B
This Court repealed the contention observing as under:
"10. Sub-section (1) of Section 464 of the Code of
'
Criminal Procedure 1973 ("Code" for short) expressly
provides that no finding, sentence or order by; a court of
competent jurisdiction shall be deemed invalid merely on
c
the ground that no charge was framed or on the ground of
.. any error, omission or irregularity in the charge including
any misjoinder of charges, unless in the opinion of the court
of appeal, confirmation or revision, a failure of justice has
I in ~act (emphasis supplied) been occasioned thereby, D
Sub-section (2) of the &aid section lays down the
procedure that the court of appeal, confirmation or revision
..
has to follow in case it is of the opinion that a failure of
justice has in fact been occasioned. The other section
relevant for our purposes is Section 465 of the Code; and E
it lays down that no finding, sentence or order passed by
a court of competent jurisdiction shall be reversed or
- ' ~
altered by a court of appeal, confirmation or revision on
account of any error, omission or irregularity in the
proceedings, unless in the opinion of that court, a failure F
of justice has in fact been occasioned. It further provides,
inter alia, that in determining whether any error, omission
or irregularity in any proceeding under this Code has
occasioned a failure of justice, the Court shall have regard
... ;.
to the fact whether the objection could and should have G
been raised at an earlier stage in the proceedings."
The Court further held that in judging a question of prejudice,
as of guilt, court must act with a broad vision and look to the
substance and not to technicalities, and its main concern should
H
122 SUPREME COLJRT REPORTS [2009] 10 S.C.R.
A be to see whether the accused had a fair trial, whether he knew
what he was being tried for, whether the main facts sought to .....
be established against him were explained to him fairly and
clearly and whether he was given a full and fair chance to
defend himself. In the said case this Court ultimately came to
B the ccmclusion that in spite of defect in framing of charge, as
no prejudice had been caused to the convicts, no interference
was required.
14. A Constitution Bench of this Court in Willie (William)
Slaney, v. State of MP., AIR 1956 SC 116, considered the
c issue of non-framing of charges properly and conviction of an
accused for the offences for which he has not been charged
and reached the conclusion as under:- ...
"1'1 such a situation, the absence of a charge under one or
D other of the various heads of criminal liability for the offence
cannot be said to be fatal by itfalf, and before a conviction
for the substantive offence, without a charge, can be set
aside, prejudice will have to be made out. ............. If it
is so grave that prejudice will necessarily be implied or
E imported, it may be described as an illegality. If the
seriousness of the omission is of a lesser degree, it will
be an irregularity and prejudice by way of failure of justice
-
will have to be established".
.
1S. This Court in Gurpreet Singh v. State of Punjab, (2005)
F 12 sec 615 referred to and relied upon its earlier judgments
in Willie (William) Slaney, (supra) and State of A.P. v.
Thakkidiram Reddy, (supra) and held that unless there is failure
of justice and thereby the cause of the accused has been
prejudiced, no interference is required if the conviction can be
G upheld on the evidence led against the accused. The Court
should not interfere unless it is established that the accused
persons were in any way prejudiced due to the errors and
omissions in framing the charges against him.
,,
-
H 16. A similar view has been reiterated by this Court in
/ SANICHAR SAHNI v. STATE OF BIHAR 123
[DR. B.S. CHAUHAN, J.]
~ Ramji Singh v. State of Bihar (2001) 9 SCC 528. A
.........
17. Therefore, the law on the issue can be summarized to
the effect that unless the convict is able to establish that defect
in framing the charges has caused real prejudice to him and
that he was not informed as what was the real case against
B
him and that he could not defend himself properly, no
interference is required on mere technicalities. Conviction order
in fact is to be tested on the touchstone of prejudice theory.
18. In the instant case learned counsel for the appellant,
Mr. Sahay could not point out as to what prejudice has been c
caused to the appellant. Charge has been framed against the
,.. appellant under Section 120-B IPC. He never raised any.:
grievance against the same at the time of framing of the charge
or during the course of the trial or by filing any petition for
J quashing the charge. The issue was not agitated before the D
High Court also. On this very issue of conspiracy, the
.
}
prosecution led evidence of impeccable character of two
witnesses, namely, Ashok Paswan PW.2 and Ashok Kumar
Verma PW.5. The appellant was given full opportunity to defend
- . himself only on this very point of conspiracy as there was no E
other allegation against him. He was asked specific question
by the trial court on the point of conspiracy while recording his
... statement under Section 313 Cr.P.C. Therefore, it cannot be
held even by any stretch of imagination that any prejudice has
been caused to the appellant on this very issue. F
19. Thus, in view of the above, we do not find any force in
this appeal. The appeal is, accordingly, dismissed.
R.P. Appeal dismissed.
G
- ~
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