Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 497 (PNJ)

Khursid v. State of Haryana

2004-04-28

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - This criminal revision has been filed by the petitioners against the judgment and order dated 15.7.1995 passed by learned Sub Divisional Judicial Magistrate, Ferozepur Jhirka and the judgment dated 9.10.1999 passed by learned Additional Sessions Judge, Gurgaon. The Sub Divisional Judicial Magistrate found the petitioners guilty and, thus, convicted and sentenced as under :- Khurshid, Shorab, Gunga, Asloop, Mehtab, Jumma, Yakub, Sheodan, Shokat. U/ss. 147, 148, 323 Indian Penal Code to undergo RI for three months and to pay a fine of Rs. 500/- each. In default of payment of fine, the defaulter shall further undergo RI for one month. U/ss. 325, 147, 148 Indian Penal Code to undergo RI for six months and to pay a fine of Rs. 1,000/- each. In default of payment of fine, the defaulter shall further undergo RI for two months. U/ss. 147, 148, 326 Indian Penal Code to undergo RI for two months and to pay a fine of Rs. 1,000/- each. In default of payment of fine, the defaulter shall further undergo RI for two months. 2. However, all the sentences were ordered to run concurrently. 3. Aggrieved by the judgment and order 15.5.1995, accused Khursid, Sohrab, Gunga, Asloop, Mehtab, Jumma, Yakub, Sheodan and Shaukat have preferred an appeal before the learned Additional Sessions Judge, Gurgaon, who vide judgment dated 9.10.1999 ordered as under :- "In these circumstances without sentencing the appellants for the offence punishable under Section 147 Indian Penal Code which is clubbed by learned trial Court with Sections 323/325 and 326 Indian Penal Code, I maintain the sentence for the offences punishable under section 323 read with Section 149 Indian Penal Code, 325 read with Section 149 Indian Penal Code and Section 326 read with Section 149 Indian Penal Code. The punishment now would be rigorous imprisonment for a period of two years and a fine of Rs. 1,000/- each for the offence punishable under Section 326 Indian Penal Code read with Section 149 Indian Penal Code with rigorous imprisonment for two months in default of payment of fine, rigorous imprisonment for a period of six months and a fine of Rs. 1,000/- each for the offence punishable under Section 325 read with Section 149 Indian Penal Code with same punishment in default of payment of fine and rigorous imprisonment for a period of three months and a fine of Rs. 1,000/- each for the offence punishable under Section 325 read with Section 149 Indian Penal Code with same punishment in default of payment of fine and rigorous imprisonment for a period of three months and a fine of Rs. 500/- each for the offence punishable under Section 323 Indian Penal Code read with Section 149 Indian Penal Code with rigorous imprisonment for a period of one month in default of payment of fine. The substantive sentences shall run concurrently." 4. The prosecution story, in brief, is that on 29.12.1986, Idrish, complainant, lodged a case with police to the effect that earlier he had got constructed a well near the school wherein he got released the water connection from the water supply department. However, accused Jumma felt annoyed as he wanted to get the water connection for his house. He told accused Jumma that he shall not have any objection, if the water connection would be released to his house also by the department concerned. However, on the same day, accused Jumma brought an employee of water supply department and asked him to cut the water connection of the aforesaid well and to get the same released to his house. PWs Jeet Khan, Dhup Khan, Leela son of Niwaj Khan also reached there. On hearing lalkara of accused Jumma, Yakub, Kallu, Khurshid, Gunga, Sheodan, Asloop, Sheodan, Shokat and Mehtab, who were armed with deadly weapons, the employee of the water supply department ran away from there. Accused Khurshid gave a lathi blow on his left ankle. Accused Jumma snatched the lathi of Yakub. Thereafter accused Yakub gave a brick-bat blow on his fore-head. Accused Gunga caused hurt on the forehead or Jeet Khan with Ballam. Accused Saudan caused hurt near the left eye of Jeet Khan with stone. Accused Asloop gave a stone bat blow on his right elbow. Accused Jumma caused hurt on the head of Leela with lathi. Accused Mehtab gave a lathi blow on the left side of the forehead of Leela. Accused Saurab gave a lathi blow on his (Leela) right hand and accused Shokat gave a lathi blow on the left shoulder of Leela as a result of which he fell down and lost his senses. On raising noise, PWs Habib, Maqsood, Noor Mohd. and Kamru were attracted to the scene of occurrence, who intervened and rescued them from the clutches of the accused. On raising noise, PWs Habib, Maqsood, Noor Mohd. and Kamru were attracted to the scene of occurrence, who intervened and rescued them from the clutches of the accused. Accused Jumma, Amin, Bulla, Hanif, Hussain Khan, Chhote Khan and Ibrahim also reached the place of occurrence having lathies in their hands. Thereafter, injured/complainant got themselves medico-legally examined. 5. After completion of investigation, challan against the accused was presented and it was found that the accused have committed the offence under Sections 148, 147, 323, 324, 325 Indian Penal Code. However, the accused pleaded not guilty and claimed trial. 6. To prove the case, the prosecution examined Jeet Khan as PW1/PW4, Dr. B.B. Aggarwal as PW2, SI Sunder Lal as PW3, Leela (injured) as PW 5, Idrish (injured-complainant) as PW 6, Dr. Sudhir Kapoor as PW 7 and Kamru, injured- eye witness as PW-8. 7. The accused were examined under Section 313 Criminal Procedure Code to explain the incriminating circumstance appearing in the prosecution evidence. They pleaded innocence and alleged false implication. In defence, they examined DW 1 Ayyub Khan who specifically stated that the accused had inflicted injuries on the persons of complainant and others in their right of self-defence. I have heard learned counsel for the parties and perused the record. 8. The petitioners are to be acquitted on the ground that no proper charge has been framed against them. The charge is to be framed under Section 21 Criminal Procedure Code The same reads as under:- 211. Contents of charge - (1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that 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 has 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. (5) The fact that the charge is made is equivalent to a statement has 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 convictions, 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 it such statement has been omitted, the Court may add it at any time before sentence is passed." 9. The purpose of the charge is to apprise the accused precisely and consciously the charge to be framed against him/her. If the charge is defective, which materially prejudice the accused and on the basis of such charge, conviction cannot sustain. The charge in this case was framed by the learned Sub Divisional Judicial Magistrate on 18.11.1987 by passing the following order :- "That on 27.12.1986 in the area of Village Aaklimpur, you all formed an assembly and thereby punishable under section 147 Indian Penal Code. Secondly, on the same date and place all of you caused simple hurt to Idresh, Habib, Jeet Khan, Nur Mohd., Kamroo and Maksood and you thereby offended (committed ?) an offence under section 323 Indian Penal Code. Thirdly and on the same date and place all of you voluntarily caused grievous hurt to Leela and Jeet Khan PW and thereby committed an offence under section 326 Indian Penal Code. That you all are to be tried by me in the abovesaid offences and within my cognizance." 10. The charge shall contain the particulars with regard to time and place of the alleged offence and the person against whom or the thing in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. 11. A perusal of the charge-sheet, as reproduced above, shows that in this case the charge has not been properly framed against the petitioners for the offence alleged to have been committed by them in respect of the injured prosecution witnesses. 11. A perusal of the charge-sheet, as reproduced above, shows that in this case the charge has not been properly framed against the petitioners for the offence alleged to have been committed by them in respect of the injured prosecution witnesses. The learned trial Court has not altered the charge at any stage but the learned Additional Sessions Judge while disposing of the appeal of the petitioners modified the judgment of conviction to the one under Section 147/323/325/326 read with Section 149 Indian Penal Code. The offence under Section 147 Indian Penal Code is a substantive offence and a person can be convicted for an offence of vicarious liability under Section 149 Indian Penal Code. As it has been stated above, no specific charge for direct liability for the substantive offence has been framed against any of the accused-petitioners as names of the accused did not find mention in the charge-sheet for the substantive offence. 12. Under Section 216 Criminal Procedure Code the Court has the power to add or alter the charge. The same reads as under :- "216. Court may alter charge. - (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the some facts as those on which the altered or added charge is founded." 13. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the some facts as those on which the altered or added charge is founded." 13. A perusal of clause (4) of Section 216 shows that if the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Before altering the charge, learned Additional Sessions Judge has not given any opportunity of hearing to the petitioners. As per the complainant, Idresh, 19 persons participated in the occurrence and caused injuries to them. In the charge-sheet, neither the names of the accused- petitioners were mentioned nor any accused has been substantially charge- sheeted for any of the offence. The learned Sub Divisional Judicial Magistrate has convicted and sentenced nine persons, namely, Khurshid, Shorab, Gunga, Asloop, Mehtab, Jumma, Yakub, Sheodan and Shokat out of 19 persons. The learned trial Court has not given any reason for distinguishing the case of present nine petitioners from the case of remaining 10 accused. The learned Additional Sessions Judge has also over-looked this aspect of the matter while dismissing the appeal. 14. The petitioners are to be acquitted on other ground also. They have not denied the occurrence, rather, their case is that they have caused injuries to the complainant party in the right of their self-defence. One of the petitioner-Gunga has received grievous injury. The said injury has been attributed to the complainant party. The injuries sustained by the petitioners have not been explained by the prosecution. In Lakhsmi Singh and others etc. One of the petitioner-Gunga has received grievous injury. The said injury has been attributed to the complainant party. The injuries sustained by the petitioners have not been explained by the prosecution. In Lakhsmi Singh and others etc. v. State of Bihar, AIR 1976 Supreme Court 2236, it has been held by the Honble Apex Court as under :- "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence in unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. xx xx xx xx The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." 15. In view of the above discussion, I accept this Criminal Revision and set- aside the judgment/order of conviction and sentence passed by learned Sub Divisional Judge Magistrate and modified by the learned Additional Sessions Judge, Gurgaon and acquit the petitioners of the charges levelled against them. They are on bail. Their bail bonds and surety bonds stand discharged. Revision allowed.