ROHTAS & ANR. versus STATE OF HARYANA

Citation: [2020] 11 S.C.R. 983 · Decided: 10-12-2020 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Disposed off

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Judgment (excerpt)

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ROHTAS & ANR.
v.
STATE OF HARYANA
(Criminal Appeal No. 38 of 2011)
DECEMBER 10, 2020
[N.V. RAMANA, SURYA KANT AND
ANIRUDDHA BOSE, JJ.]
Code of Criminal Procedure, 1973 – ss.211-224, 386 –
Alteration of charges – Permissibility of – Seven accused persons
(one of whom died during trial) attacked victim-complainant – Six
accused persons (including the three appellants-accused) convicted
for offence u/ss.307 r/w s.149; s.148 – Appellants’ conviction u/
ss.307, 148 upheld by High Court and sentence u/s.307 reduced
from seven years to five; other three co-accused persons acquitted
– On appeal, held: ss.211-224 dealing with framing of charges in
criminal trials, give significant flexibility to Courts to alter and rectify
the charges – Courts are free to weigh evidence and determine
whether an independent conviction is possible in case group
prosecution u/s.149 fails – Appellants did not suffer any adverse
effect when the High Court held the three of them individually guilty
for attempted murder, without the aid of s.149 – Appellants had
previously threatened the complainant with physical harm if he were
to attempt to irrigate his fields – Attack was pre-planned and
calculated – Each of them individually attacked the complainant
with a deadly object in furtherance of the common intention of killing
him – Requirements of s.34 established – Offence u/s.307 is clearly
made out against each of them – Appellants to be taken into custody
to serve the remainder of five-year sentence – Conviction u/s.148
set aside – Penal Code, 1860 – ss.34, 141, 148, 149, 307 – Witness
– Sentencing.
Penal Code, 1860 – ss.34, 149 – Difference between –
Discussed.
Witness – Independent witnesses – Non-examination of – Held:
Any adverse inference against the non-examination of independent
witnesses needs to be assessed upon the facts and circumstances of
each case.
[2020] 11 S.C.R. 983
983
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SUPREME COURT REPORTS
[2020] 11 S.C.R.
Disposing of the appeals, the Court
HELD: 1.1 Framing of charge and its subsequent alteration
Before the members of an ‘unlawful assembly’ can be
vicariously held guilty of an offence committed in furtherance of
common object, it is necessary to establish that not less than five
persons, as mandatorily prescribed under Section 141 read with
Section 149 of the IPC had actually participated in the occurrence.
It is not uncommon, like in the present facts, when although the
number of accused is more than five at the time of charge-
sheeting, but owing to acquittals of some of them over the course
of trial, the remaining number of accused falls below five. It may
be true in such cases, as rightly urged by the appellants that the
charge under Section 148 and 149 IPC would not survive. This
does not, however, imply that Courts can not alter the charge
and seek the aid of Section 34 IPC (if there is common intention),
or that they cannot assess whether an accused independently
satisfies the ingredients of a particular offence. Sections 211 to
224 of CrPC which deal with framing of charges in criminal trials,
give significant flexibility to Courts to alter and rectify the charges.
The only controlling objective while deciding on alteration is
whether the new charge would cause prejudice to the accused,
say if he were to be taken by surprise or if the belated change
would affect his defence strategy. The emphasis of Chapter XVII
of the CrPC is thus to give a full and proper opportunity to the
defence but at the same time to ensure that justice is not defeated
by mere technicalities. Similarly, Section 386 of CrPC bestows
even upon the appellate Court such wide powers to make
amendments to the charges which may have been erroneously
framed earlier. Furthermore, improper, or non-framing of charge
by itself is not a ground for acquittal under Section 464 of the
CrPC. It must necessarily be shown that failure of justice has
been caused, in which case a re-trial may be ordered. The
contention of the appellants to the contrary is nothing but hyper-
technical. Courts are free to weigh the evidence and determine
whether an independent conviction is possible in case group
prosecution under Section 149 IPC fails. Although both Section
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34 and 149 of the IPC are modes for apportioning vicarious liability
on the individual members of a group, there exist a few important
differences between these two provisions. Whereas Section 34
requires active participation and a prior meeting of minds, S

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