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Madhya Pradesh High Court · body

2007 DIGILAW 600 (MP)

Ratiram v. State of M. P.

2007-05-18

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed against the judgment of conviction passed by Second Additional Sessions Judge, Guna in ST No. 282/97 dated 29.3.2001, by which the appellants are convicted under section 326, IPC and sentenced to undergo RI for three years and fine of Rs. 1,000/- with default stipulation. 2. In short, the story of the prosecution is that on 27.4.1997 at 8 p.m. complainant Surendra Singh alongwith Kailash Sharma and Cheetar was going with 12 bore gun, on the way three miscreants met them. They assaulted Surendra Singh, Kailash Sharma and Cheetar and robbed the 12 bore gun from Surendra Singh and ran away from the spot. The report was lodged at Police Station Vijaypur. After investigation, charge sheet was filed and the case was committed to the Sessions Court. The Sessions Court framed charge under section 397, IPC against the appellants and after conclusion of trial they were acquitted against the charge under section 397, IPC but convicted under section 326, IPC and sentenced as stated in para No. 1. 3. During trial appellant No. 1 Kashmir Singh died and his name was deleted from the array of memo of appeal. 4. In this appeal the conviction of the appellants have been challenged on the ground that the charge under section 397, IPC was framed against the appellants and the trial Court wrongly convicted the appellant under section 326, IPC. It is submitted that section 326, IPC is not a minor offence of section 397, IPC and secondly the incident took place on 27.4.1997 and the test identification parade was held after one month from the incident. Therefore, the conviction recorded by the trial Court is erroneous and they are entitled for acquittal. 5. The judgment and the evidence perused. 6. According to the witness Surendra Singh (PW 2) he was going by his motorcycle alongwith Cheetar and he was having 12 bore gun, the licence of which is in the name of his brother Hanumant Singh. Kailash Pandit was also accompanied with them. On the way two persons in between Santotia and Balaghat met. They were having lathi and farsa in their hands. Their faces were covered by towels. One person inflicted lathi blow and other person also inflicted injury to his head by farsa blow and they have also snatched the 12 bore gun from his hand. He fell down on the ground. They were having lathi and farsa in their hands. Their faces were covered by towels. One person inflicted lathi blow and other person also inflicted injury to his head by farsa blow and they have also snatched the 12 bore gun from his hand. He fell down on the ground. One person also came there and started to beat by lathi. He sustained injuries and fracture on the hand. All of them were between 20-25 years of age. After causing injuries all of them ran away by taking the gun from him. Then he went to police station and lodged the report. According to the witness the appellants were identified by him, the identification memo is Ex. P-3 and he identified the appellants in the Court also. He denied that he met the appellants at the police station. 7. Cheetar (PW 3) gave the same statement as given by Surendra Singh (PW 2) and he also corroborated that the person inflicted injuries to them and snatched away the gun from Surendra Singh. Kailash (PW 1) was also present alongwith Surendra Singh (PW 2) and Cheetar (PW 3). He has also given the same statement as given by Surendra Singh. 8. Hanumant Singh (PW 4) has stated that Surendra Singh has taken his license gun and he informed about the incident taken place between Surendra Singh, Cheetar and Kailash. Hari Singh (PW 5) has also given the same statement. Preetam Singh (PW 7) deposed that he had seen three persons who were going to village Sanotia. When they lit beedi for smoking, he has seen their faces because at that time faces were not covered. After some time Surendra Singh has gone with motorcycle to village Sanotia and he heard the noise after some time. 9. Dr. Pramod Kumar Pathak (PW 11) examined Surendra Singh and found six injuries, out of which injury No. 1 was caused by sharp edged weapon, while others were caused by hard blunt object. For injury No. 4 and 5, x-ray was advised, the report is Ex. P-11. In cross-examination it is opined that except injury No. 1 all may be caused due to fall. 10. About the recovery, Arvind Sengar (PW 15) told that he caught the appellants and they were having gun with them. On inquiry it is stated that the gun was recovered in broken condition. 11. Dr. P-11. In cross-examination it is opined that except injury No. 1 all may be caused due to fall. 10. About the recovery, Arvind Sengar (PW 15) told that he caught the appellants and they were having gun with them. On inquiry it is stated that the gun was recovered in broken condition. 11. Dr. Sitaram Singh Raghuvanshi (PW 6) has taken the x-ray of Surendra Singh on 27.4.1997. He found fracture on parietal bone and also found fracture on lower 1/3 of left radius bone. 12. Now, the main objection of the counsel for the appellants is that the offence under section 326, IPC in which the appellants are convicted are not minor offence under section 397, IPC for which they were tried. Section 222 of CrPC deals with the offences which are major and minor. In fact for minor offence there is no exact definition has been given in CrPC. The reasonable view would seem to be that a minor offence in S. 222 would not be something independent of the main offence or an offence merely involving lesser punishment. The minor offence should be composed of some of the ingredients constituting the main offence and to be a part of it. Minor offences would accordingly be cognate offences and not entirely different offences involving different elements. 13. The trial Court framed charge under section 397, IPC against the appellants in which it is clearly mentioned that while committing robbery the appellants caused serious injury to complainant Surendra Singh. It is no doubt that the offence of robbery has not been proved and the trial Court found that the appellants caused grievous injury to the complainant which comes under the purview of section 326, IPC, therefore, convicted the appellants accordingly. 14. At this stage it would be proper to refer section 464 CrPC in which it is mentioned the effect or omission to frame, or absence or, error in, charge. 14. At this stage it would be proper to refer section 464 CrPC in which it is mentioned the effect or omission to frame, or absence or, error in, charge. Section 464 reads as follows : "Section 464 Effect of omission to frame, or absence of, or error in, charge.--(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit : Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." 15. Section 464 covers every case in which there is a departure from the rules set out in that chapter. Such departures range from errors, omissions and irregularities in charges that are framed down to charges that might have been framed and were not, and include a total omission to frame a charge at all any stage of the trial. Mere absence of formal charge does not invalidate proceedings where no prejudice has been caused to the accused. 16. The apex Court in Radha Mohan Singh v. State of U.P. reported in [ (2006) 2 SCC 450 ] considered the matter that in case passing conviction an offence for which no charge was framed unless the Court is of the opinion that failure of justice would in fact occasion. 16. The apex Court in Radha Mohan Singh v. State of U.P. reported in [ (2006) 2 SCC 450 ] considered the matter that in case passing conviction an offence for which no charge was framed unless the Court is of the opinion that failure of justice would in fact occasion. In order to Judge whether a failure of justice has been occasioned it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. 17. In this case when initial charge was framed the essential ingredients for causing serious injury to the complainant was already in the charge of section 397 and the trial Court convicted the appellants under section 326, IPC for causing serious injury to complainant. Therefore, it cannot be said that there was no basic ingredients of serious injury was mentioned or accused has no knowledge about the facts which are going to be proved against him during the trial, therefore, no prejudice was caused to the appellants. It is admitted that in technical sense section 326, IPC cannot be treated as minor offence of section 397 but in view of section 464 CrPC and the decision of the apex Court as discussed above, it is clear that in this case no prejudice would be caused to the appellants in case they are convicted under section 326, IPC. Therefore, the objection in this regard cannot be accepted. 18. Regarding test identification, the trial Court has already discussed this matter in its judgment in para No. 7 and they were also identified during test identification when the statements of the witnesses were taken in the Court. 19. Therefore, the conviction as recorded by the trial Court after section 326, IPC is affirmed. Regarding sentence the incident took place in the year 1997. The trial Court awarded sentence of three years RI. Looking to the facts and circumstances of the case, the sentence is reduced to two years and the amount of fine as awarded by the trial Court is maintained. Regarding compensation as ordered by the trial Court to complainant Surendra Singh (PW 2) is also maintained. The bail bonds of the appellants shall stand discharged. Looking to the facts and circumstances of the case, the sentence is reduced to two years and the amount of fine as awarded by the trial Court is maintained. Regarding compensation as ordered by the trial Court to complainant Surendra Singh (PW 2) is also maintained. The bail bonds of the appellants shall stand discharged. The appellants are directed to surrender before the trial Court to serve out the remaining part of sentence. 20. With the above modification, the appeal is dismissed accordingly.