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2005 DIGILAW 981 (PNJ)

Hardayan v. State Of Haryana

2005-09-14

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. Heard. The petitioner was tried for an offence under Sections 279/337/304-A IPC. After trial, the petitioner was convicted and sentenced as under :- Under Section 279 IPC RI for three months and fine of Rs. 250/-. In default to payment of fine, further RI for one month. Under Section 337 IPC RI for three months and fine of Rs. 250/-. In default of payment of fine, further RI for one month. Under Section 304-A IPC RI for one and a half year and fine of Rs. 500/-. In default of payment of fine, further RI for two months. All the sentences were to run concurrently. 2 The petitioner preferred an appeal. It was contended that while in the charge, the number of the vehicle mentioned was HR 35/8444, in the order of conviction, the number of the vehicle mentioned was HR-35/8458 and, thus, charge was defective which prejudiced the petitioner. The plea was opposed on the ground that the correct number of the vehicle was HR 35/8458 and merely because in the charge, number mentioned was HR 35/8444, no prejudice was caused to the accused. It was submitted that on evidence, charge against the accused was fully proved. The lower appellate Court held that the charge has misled the accused and that a fresh trial was called for on the stage of framing of charge. Hence this petition. 3. Learned counsel for the petitioner submitted that the lower appellate Court was not justified in ordering retrial. Once the lower appellate Court came to the conclusion that the petitioner was prejudiced on account of error in the charge, the petitioner ought to have been acquitted. Learned counsel for the State submitted that the observation of the lower appellate Court that prejudice was caused to the accused on account of mention of the wrong number of the vehicle in the charge-sheet was erroneous and conviction of the petitioner should have been upheld. 4. I have perused the record of the case and considered the rival submissions. 5. Case of the prosecution is that Chander Bhan (since deceased) and Mahender Singh, PW-9 jointly hired a tempo driven by the petitioner and on account of rash and negligent driving, the said tempo overturned and Chander Bhan died. FIR was lodged by PW-2, Ramesh Kumar. Mahender Singh took his father to the hospital where he was declared dead. 5. Case of the prosecution is that Chander Bhan (since deceased) and Mahender Singh, PW-9 jointly hired a tempo driven by the petitioner and on account of rash and negligent driving, the said tempo overturned and Chander Bhan died. FIR was lodged by PW-2, Ramesh Kumar. Mahender Singh took his father to the hospital where he was declared dead. Tempo No. HR 35-8458 was taken into possession vide memo Ex. PW4/A by HC Jaswant Singh, PW-4. Investigation was conducted by PW-7 Babu Lal, SI. Post-mortem was conducted by Dr. S.K. Mahipat, PW-6. Version of PW-9 Mahender Singh was also corroborated by injured Chiranji, PW-3. In the initial version, Mahender Singh gave number of the vehicle as HR-35-8444. 6. The trial Court held that giving of wrong number at initial stage was mistake which did not cause any prejudice as the vehicle taken into possession from the accused was HR-35-8458 which was involved in the accident and which fact was duly proved during the trial. The accused was duly identified by PW-3 Chiranji and PW-9 Mahender Singh, the eye witnesses who were travelling in the same tempo. 7. The lower appellate Court did not go into the merits of reliability or otherwise of the evidence of the prosecution and reached the conclusion that mention of different number of tempo in the charge vitiated the conviction. 8. The approach adopted by the lower appellate Court cannot be sustained in law. The lower appellate Court lost sight of statutory provisions and settled law on the point. Section 215 of the Code of Criminal Procedure provides that mere error in the charge cannot be treated as material unless the accused is in fact misled by such error and it has occasioned failure of justice. Section 464 of the Code provides that no finding, sentence or order will be invalid merely on the ground that no charge was framed or on the ground of error, omission or irregularity in the charge unless failure of justice has been occasioned. Section 465 of the Code further provides that conviction will not be vitiated by any error during the trial unless failure of justice has been occasioned. 9. Section 465 of the Code further provides that conviction will not be vitiated by any error during the trial unless failure of justice has been occasioned. 9. In Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, it was observed :- "13.........Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. 14. This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of latter-day criminal jurisprudence in England as well as in India. The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. 45. 45. In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge or a total want of one, was taken at an early stage. If it was not, and particularly where the accused is defended by counsel AIR 1930 PC 57(2) at p. 58(G), it may in given case be proper to conclude that the accused was satisfied and knew just what he was being tried for andknew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that `no serious defect in the mode of conducting a criminal case can be justified or cured by the consent of the advocate of the accused. AIR 1927 PC 44 at pp. 46-47 and 49(F). But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can even be regarded as a precedent or a guide for a conclusion of fact in another because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were." 10. The above observations have been followed consistently in State of West Bengal v. Laisal Haque and another, AIR 1989 SC 129; Kammari Brahmaiah and others v. Public Prosecutor, High Court of A.P., 1999(1) RCR(Crl.) 839 (SC) : AIR 1999 SC 775 and Dalbir Singh v. State of UP, 2004(2) RCR(Crl.) 497 : 2004(2) Apex Crl. 633 (SC) : AIR 2004 SC 1990. 10-11. In the present case, except for initial mention of wrong number which was also mentioned in the charge, recovery memo, Ex. 633 (SC) : AIR 2004 SC 1990. 10-11. In the present case, except for initial mention of wrong number which was also mentioned in the charge, recovery memo, Ex. PW4/A as well as the entire evidence mentioned correct number for which the petitioner was convicted. Reliability or otherwise of the evidence is a different matter but merely because different number was mentioned in the charge and in the initial version which was sought to be corrected during the trial with reference to the facts available right from the beginning, was not enough to infer that any prejudice was caused to the petitioner. The accused knew the number of vehicle recovered from him in connection with this case and recovery memo of the same vehicle seized soon after the occurrence was placed on record. Retrial, by changing number of the vehicle in the charge, will not make any qualitative difference in the opportunity to be given to the accused. Accused had full opportunity to face trial and it cannot be held that any prejudice was caused merely because of error in number of vehicle in the charge. 11. Finding of the lower appellate Court that the petitioner was prejudiced by the wrong mention of the number of the vehicle in the charge, is, thus, patently erroneous. The same is set aside. The consequential order of retrial is also liable to be set aside. 12. Accordingly, this petition is allowed. Order of the lower appellate Court is set aside and the matter is remanded for fresh decision in accordance with law. Any observation made herein above for deciding this petition will not be treated as an expression of opinion on merits of the case which will be independently gone into by the lower appellate Court. The parties will appear before the lower appellate Court for further proceedings on October 18, 2005.