RAFIQ AHMED ALIAS RAFI Vs. STATE OF U P

JUDGEMENT

(1.) Fine distinctions of law, if discerning, should normally be recognized and permitted to operate in their respective fields. With the development of criminal jurisprudence, the law has recognized the concept of cognate charges besides alternative charges. The differentiation between the offences from the same family in contradistinction to the offences falling in different categories have persuaded the courts to apply the principle of cognate offences and punish the offender of a less grave offence because the offence of greater gravity has not been proved beyond reasonable doubt. This principle is to be applied keeping in view the facts and circumstances of a given case and notwithstanding the fact that no charge for such less grave offence had been framed against the offender. In the case in hand, we are concerned with a similar question which arises from the following facts:

(2.) The entire emphasis of the submissions made on behalf of the Appellant is primarily founded on determination of a question of law, which, if answered in favour of the Appellant, according to the learned Counsel appearing for the Appellant, would entitle the Appellant to an order of acquittal. The argument is that the Appellant was charged for an offence under Section 396 IPC and without reformulation/alteration of the charge, the Appellant has been convicted for an offence under Section 302 IPC. This according to the learned Counsel, has deprived the Appellant of a fair opportunity of defence and has caused him serious prejudice. Section 302 IPC is a graver offence than an offence punishable under Section 396 of the IPC and as such the entire trial and conviction of the Appellant is vitiated in law.

(3.) It is also contended that the learned trial court as well as the High Court have erred in fact and in law, have failed to appreciate the evidence in its correct perspective and also that there are serious contradictions between the statements of the witnesses. It is also urged that this being a case of circumstantial evidence, the prosecution has failed to prove the chain of events, pointing towards the guilt of the accused. Therefore, the judgments of the courts below are liable to be set aside.