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TMI Blog2011 (8) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... dergo simple imprisonment for 1 year. He was further sentenced for seven years rigorous imprisonment under Section 387 Indian Penal Code, 1860 and was fined Rs. 5,000/-, in default of which to undergo simple imprisonment for six months. 2. The facts of the case are that the informant Shri Vikas Kumar Jha gave a fardbeyan to the effect that at about 5.00 P.M. on 23.7.2005, he had received a call on his telephone number 06252-239727, inquiring about his elder brother Shri Anil Kumar Jha. The informant stated before the police that his elder brother, the owner of a medical store, on the said date had been out of town. He submitted that he had communicated the same to the caller. Upon such reply, the caller disclosed himself as Mohan Singh, the Appellant herein, and asked the informant to send him Rs. 50,000/-. The informant submitted that he had similar conversations with the caller three to four times in the past. However, he then received another telephone call on 25.7.2005 from a cell phone number 9835273765. The caller threatened him that since the demand of money had not been fulfilled, the informant should be ready to face the consequences. 3. Upon his elder brother's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyan, Motihari Town Police Station Case No. 246/2005 was registered on 3.8.2005 against the Appellant Mohan Singh, Laxmi Singh, Niraj Singh and others. The investigating officer submitted that he had known the Appellant to have as many as seven criminal cases for murder, kidnapping for ransom and loot, pending against him. However, he submitted that he had received the phone number attributed to the Appellant only from the informant. Though he submitted that as many as nine calls had been made between the phone numbers attributed to the Appellant and Laxmi Singh, and that he had retrieved the records of calls made by the number attributed to the Appellant and that of the informant, he had not been able to establish as to who were the registered owners of the SIM cards. 7. The learned Sessions Court in the course of trial took note of the fact that identities of the registered owners of the said SIM cards had not been established by the police, but it did not give much emphasis on this on the grounds that the informant's family had known the Appellant and Laxmi Singh long enough and had known about their common intention to extort money. On these findings the learned Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did telephone from Motihari Jail to Vikash Jha in pursuance of the said agreement extending threat of dire consequences if the demand was not met and then on 3.8.05 the offence of murder punishable with death was committed by your companions Laxmi Narain Singh and Niraj Singh and you thereby committed the offence of criminal conspiracy to commit murder of Anil Jha and seriously injured Sureshwar Jha and thereby committed an offence punishable under Section 120B of the Indian Penal Code, and within my cognizance. SECONDLY - That you, during the period between 23.7.05 3.8.05 at Hospital gate Motihari P.S., Motihari Town Dist. East Champaran, Put Vikash Jha in fear of death and grievous hurt to him and his family members in order to commit extortion on telephone and thereby committed an offence punishable under Section 387 of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by me on the said the charge. Charges were read over and explained in Hindi to the accused and the accused pleaded not guilty as charged. Let him be tried. 13. Admittedly, No. complaint of any prejudice by the Appellant was raised either before the trial Court or in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. 215. Effect of errors. No. error in stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1963 SC 666. In that case in paragraph 12 this Court was considering these aspects of the matter and made it clear that a complaint about the charge was never raised at any earlier stage and the learned Judges came to the conclusion that the charge was fully understood by the Appellants in that case and they never complained at the appropriate stage that they were confused or bewildered by the charge. The said thing is true here. Therefore, the Court refused to accept any grievance relating to error in the framing of the charge. 22. Subsequently, in the case of State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and Anr. AIR 1963 SC 1850, this Court also had to consider a similar grievance. Both in the case of Tulsi Ram (supra) as also in the case of Cheemalapati (supra) the charges were of conspiracy. The same is also a charge in the instant case. Repelling the said grievance, the learned Judges held that the object in saying what has been set out in the first charge was only to give notice to the accused as to the ambit of the conspiracy to which they will have to answer and nothing more. This Court held that even assuming for a moment that the charge is cumbersome but in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Code of Criminal Procedure it is possible for the appellate or revisional court to convict the accused for an offence for which No. charge was framed unless the court is of the opinion that the failure of justice will occasion in the process. The learned Judges further explained that in order to judge whether there is a failure of justice the Court has to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. If we follow these tests, we have No. hesitation that in the instant case the accused had clear notice of what was alleged against him and he had adequate opportunity of defending himself against what was alleged against him. 26. In State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372 this Court, setting out Section 464 of Code of Criminal Procedure, further held that whether there is failure of justice or not has to be proved by the accused. In the instant case No. such argument was ever made before the Trial Court or even in the High Court and we are satisfied from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered by this Court carefully and on this aspect some guidelines have been laid down by this Court in the case of Kirpal Singh v. The State of Uttar Pradesh AIR 1965 SC 712. In dealing with the question of voice identification, construing the provisions of Section 9 of the Indian Evidence Act, this Court held: ...It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognized may be some-what risky in a criminal trial. But the Appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the Appellant on several occasions in connection with the dispute about the sugarcane crop.... (para 4, page 714 of the report) 33. Relying on such identification by voice this Court held in Kripal Singh (supra) that it cannot come to the conclusion that the identification of the assailant by Rakkha Singh was so improbable that this Court would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to its credibility and also of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Nilesh (supra) and the facts of the present case. Apart from that in Nilesh (supra), the High Court acquitted A1 to A4 and this Court finds that the evidence against Nilesh was identical. Therefore, this Court held that the conclusion of the High court in acquitting Accused 1, 2, 3 and 4 has virtually destroyed the entire substratum of the prosecution case (see para 28 of the report). Since that decision was passed on tape recorded version of the voice, the principles decided in that case, even though are unexceptionable, cannot be applied to the present case. 35. The other case on which reliance was placed by the learned Counsel for the Appellant was in the case of Inspector of Police, Tamil Naduv. Palanisamy alias Selvan (2008) 14 SCC 495. In that case this Court held that identification from voice is possible but in that case No. evidence was adduced to show that witnesses were closely acquainted with the accused to identify him from his voice and that too from very short replies. Therefore, this case factually stands on a different footing. In the instant case the evidence of PW.4 that he knows the voice of the Appellant was not challenged nor was it challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid principles, this Court finds that No. assistance can be drawn from the aforesaid decision to the case of the Appellant in this case. 40. Reliance was also placed on the decision of this Court in the case of S. Arul Raja v. State of Tamil Nadu (2010) 8 SCC 233. In that case this Court held that mere circumstantial evidence to prove the involvement of the accused is not sufficient to meet the requirements of criminal conspiracy and meeting of minds to form a criminal conspiracy has to be proved by placing substantive evidence. In the instant case, as discussed above, substantive evidence was placed to prove the meeting of minds between the Appellant and Laxmi Singh about the murder of the victim. In evidence which has been noted hereinabove in the earlier part of the judgment it clearly shows that there is substantial piece of evidence to prove criminal conspiracy. 41. Reliance was also placed by the learned Counsel for the Appellant on the decision of this Court in the case of Mohd. Khalid v. State of West Bengal (2002) 7 SCC 334. In that case, this Court held that offence of conspiracy can be proved by either direct or circumstantial evidence. In paragraph 24 at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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