LexRAFIQ AHMED @ RAFI versus STATE OF U.P.
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(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
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