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Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Akhilesh Singh, Sri Sangam Lal Kesharwani, learned counsel for the appellants, Mrs. Archana Singh, learned A.G.A. and perused the record.

2. This Criminal Appeal has been preferred by accused appellants Ranveer Singh and Mahavir against the judgment and order dated 13.10.1983 passed by Special Judge, Mainpuri in S.T. No. 149 of 1982 (State vs. Ranveer Singh and another) whereby the accused Ranveer Singh and Mahavir have been convicted and sentenced under section 396 IPC with imprisonment for life.

44. Now the question arises as to under what section, the offence was committed by the appellant although the trial court has convicted him under Section 396 I.P.C. to which following ingredients were to be satisfied to be proved:-

" (i) The decoity must be the joint act of the persons concorned;

(ii) Murder must have been committed in the course of the commission of the decoity."

45. We find that though the trial court has found both the above ingredients to have been satisfied by the evidence led by prosecution but we are of the opinion that as regards satisfying the first ingredient, the trial court's finding that decoity had been committed jointly by the accused appellant along with co-accused appellant and their companions does not appear to be satisfied. Had there been any intention of committing decoity by them, certainly they would have looted valuables and other properties belonging to deceased or his other family members and in the process, some resistance would also have been offered from the side of inmates of the house which included wife of the deceased, his two children as well as daughter of the deceased who was married to P.W.1 and also the son-in-law of deceased who had come for the bidai of his wife but there appears to be no such resistance having been offered which shows that the accused had simply come there with a view to killing the deceased because there was enmity of election of pradhan and thereafter they fled from the place of incident, although it is said that one gun belonging to the deceased was also taken away by them but its recovery has not been made so far, therefore, we hold it simply a case of committing murder in prosecution of common object, hence, accused appellant, instead of being guilty of offence under Section 396 I.P.C., is found to be guilty of offence under Section 302/149 I.P.C. but the question arises whether in this case wherein charge under Section 302 read with Section 149 I.P.C. has not been framed, whether it was possible for us to hold the accused appellant guilty of having committed offence under the above-mentioned sections. In this regard we would like to place reliance on the law laid down by the Hon'ble Supreme Court in Rafiq Ahmed @ Rafi Vs. State of Uttar Pradesh (2011) 8 SCC 300 wherein it has been laid down that a person charged with grave offence can be punished for less than grave offence of cognate nature whose essentials are satisfied with evidence on record. Usually an offence of grave nature includes in itself the essentials of lesser but cognate offence. Apart from it in para 72 of judgement following has been held:-

"Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302 IPC cannot be set aside merely for want of framing of a specific/alternate charge for an offence punishable under Section 302 IPC. It is more so because the dimensions and facets of an offence under Section 302 are incorporated by the specific language and are inbuilt in the offence punishable under Section 396 IPC. Thus, on the application of principle of "cognate offences", there is no prejudice caused to the rights of the appellant."

46. In view of the above position of law if we scrutinize the present case, we find that in statement under Section 313 Cr.P.C. recorded of the accused appellant, he has been clearly put evidence which has come on record pertaining to his role of committing murder of the deceased and in view of the above, we find that he had full knowledge that there was evidence against him with respect to him having committed the offence of murder along with co-appellant as well as other companions who had entered the house of the deceased armed with weapons in prosecution of their common object to give effect to the occurrence of murdering the deceased. Therefore, we find that even if no charge was framed by the trial court under Section 302 I.P.C. read with Section 149 I.P.C. either subsequently or in alternative, no prejudice appears to be caused to surviving accused appellant and, therefore, we are of the view that the judgement of the trial court regarding convicting him under Section 396 I.P.C. needs to be modified as a conviction under Section 302 I.P.C. read with Section 149 I.P.C. and the punishment which has been awarded for life-imprisonment must remain the same to meet the ends of justice.