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2002 DIGILAW 83 (AP)

Goude Ilaiah v. State Of A. P.

2002-01-25

GOPALA KRISHNA TAMADA

body2002
GOPALAKRISHNA TAMADA, J. ( 1 ) THE petitioner herein (A-5) and four others were tried in C. C. No. 222 of 1996 for the offence punishable under Section 3 (a) of Railway Property (Unlawful Possession) Act by the learned XIII Metropolitan Magistrate for Railways at Secunderabad and after examining P. Ws. 1 to 9 and getting marked Exs. P-1 to P-21 and Mos. 1 to 8, the learned Magistrate found all the accused guilty of the said charge and accordingly sentenced each of them to undergo rigorous imprisonment for a period of four months. ( 2 ) THE petitioner herein along with two others filed an appeal and the learned III Additional Metropolitan Sessions Judge by his order dated 24-3-2000 made in Criminal Appeal No. 166 of 1999 confirmed the judgment of the trial court. Hence, this revision by the petitioner. ( 3 ) THE learned counsel for the petitioner Sri D. K. Jaiswal strenuously contended that the charge framed against the accused is defective on account of which the petitioner-accused suffered prejudice and could not defend his case properly in the court below and as such, the conviction and sentence imposed by the courts below are not sustainable. ( 4 ) HEARD the learned Public Prosecutor. ( 5 ) IT is true that the case of the prosecution is that on 23-8-1996, the Police of the Railway Protection Force arrested A-1 to A-4 and seized M. Os. 1 to 4 and basing on the confession made by them, they proceeded to the shop of A-5 on 24-8-1996 and seized M. Os. 5 to 7. Whereas, the charge framed against the accused reads as under:" That, you on or about the 23rd day of August, 1996, at you were found in possession of You A1 to A4 with 4 Nos. of Railway Brake Blocks each (Mos. 1 to 4) You A5 with 3 Nos. of Angle Type Tie Rods (MO. 5), 2 Nos. of Tonges (MO. 6), 8 Nos. of Pin No. 12 type (MO. 7) belonging to Indian Railways reasonably suspected to have been stolen or unlawfully retained, and that you thereby committed an offence punishable under Section 3 (a) of R. P. F. U. F. Act, and within my cognizance: And I hereby direct that you be tried on the above said charge. " ( 6 ) CHAPTER 17 of the Code of Criminal Procedure deals with Charge. " ( 6 ) CHAPTER 17 of the Code of Criminal Procedure deals with Charge. Section 211 thereof deals with contents of the charge. Section 212 deals with particulars as to time, place and person and Section 215 deals with effects of errors in the charge. Section 215 and illustration (d) thereunder is relevant for the present purpose, which are extracted hereunder:" 215 Effect of errors -- No errors in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. " ( 7 ) ILLUSTRATION (d) reads thus:" (d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person s name was Haidar Baksh and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haider Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. " ( 8 ) AS per Illustration (d) to Section 215 of the Code, a mere error in the charge is not sufficient to say that the entire charge is defective and as such prejudice is caused to the accused. Unless the accused is able to establish that there was material error in the charge and that material error has misled him while defending the case, on account of which prejudice is caused to him, it is not necessary for the courts to throw away the case of the prosecution basing on such a charge which is merely defective. In the instant case, it is no doubt true that M. Os. 5 to 7 were seized from out of the possession of the petitioner herein only on 24/08/1996 basing on the confession made by A-1 to A-4, but in the charge framed by the trial court it is mentioned that the recovery from the petitioner herein also was made on 23rd August itself. Even though the charge is to the effect that on 23rd August itself M. Os. Even though the charge is to the effect that on 23rd August itself M. Os. 5 to 7 were seized from out of the possession of the petitioner herein (A-5), the entire evidence is to the effect that on 23/08/1996, M. Os. 1 to 4 were seized from out of the possession of A-1 to A-4 and later on 24/08/1996, M. Os. 5 to 7 were seized from the shop of the petitioner herein basing on a confession made by A-1 to A-4. Simply because a wrong date is quoted in the charge, it cannot be said that it is a material error which led to miscarriage of justice. Hence, I am not in agreement with the submission made by the learned counsel for the petitioner. Therefore, the judgment of conviction passed against the petitioner herein is confirmed. ( 9 ) HOWEVER, in view of the fact that the offence took place in the year 1996 and the sentence imposed by the courts below against the petitioner herein is rigorous imprisonment for four months, the said sentence is modified into one of fine and the petitioner is sentenced to pay a fine of Rs. 5,000. 00 (Rupees Five thousands only) in default to suffer simple imprisonment for a period of four weeks. ( 10 ) WITH the above modification in sentence, this criminal revision case is disposed of.