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2024 DIGILAW 202 (UTT)

Arun v. State of Uttarakhand

2024-03-19

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the followings:- (i) The judgment and order dated 05.07.2022, passed in Criminal Case No.3267 of 2020, Forest Department, Haridwar vs. Lalit and another, by the court of Chief Judicial Magistrate, Haridwar, District Haridwar (“the case”). By it, the revisionist has been convicted under Section 51 of the Wild Life (Protection) Act, 1972 (“the Act”) and sentenced to undergo rigorous imprisonment for a period of seven years with a fine of Rs.25,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of three months; and (ii) Judgment and order dated 17.02.2023, passed in Criminal Jail Appeal No. 109 of 2022, Arun Vs. Forest Department by the court of 4th Additional Sessions Judge, Haridwar (“the appeal”). By it, the appeal has been dismissed and the judgment and order passed in the case has been upheld. 2. The case is based on a complaint filed by the Khushal Singh Rawat, Sub-Divisional Forest Officer, Haridwar Division. According to the complaint, on 18.04.2020, at 5:30 PM, when the forest officials were on patrolling duty, they spotted two persons having bags on their hands. One of them was the revisionist. From his possession, according to the prosecution case, two live turtles and one live Monitor Lizard were recovered. They were arrested. The matter was inquired, thereafter, complaint was filed. The court took cognizance. 3. In order to prove its case, the prosecution examined two witnesses, namely, PW1 Gaurav Singh and PW2 Rakesh Kumar. 4. Charge under Sections 9, 39, 51 of the Act was framed against the revisionist. After prosecution evidence, the revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). The revisionist denied the allegations and claimed that he has been falsely implicated. 5. After hearing the parties, by the impugned judgment and order dated 05.07.2023, the revisionist has been convicted and sentenced as stated hereinbefore. Aggrieved by it. Revisionist preferred the appeal which has been dismissed. Hence, the revision. 6. Heard learned counsel for the parties and perused the record. 7. Learned counsel for the revisionist raised two points. He would submit that alongwith the revisionist co-accused Lalit was also arrested but he was sentenced for three years rigorous imprisonment only. Aggrieved by it. Revisionist preferred the appeal which has been dismissed. Hence, the revision. 6. Heard learned counsel for the parties and perused the record. 7. Learned counsel for the revisionist raised two points. He would submit that alongwith the revisionist co-accused Lalit was also arrested but he was sentenced for three years rigorous imprisonment only. It is argued that the revisionist has been sentenced under Section 51 of the Act for seven years rigorous imprisonment on the ground that it was a subsequent offence. Learned counsel would submit that the charge for subsequent offence has not been framed lawfully; and the sentence is excessive. It is argued that even for successive offence, the maximum sentence is seven years, which has been imposed in the case. It should have been little less than seven years. Seven years imprisonment should have been imposed in extreme cases. 8. Learned State Counsel would submit that it is a finding of fact recorded by two courts below. 9. In the case, the revisionist was examined under Section 313 of the Code on 12.05.2022. The judgment was delivered on 05.07.2022. Record reveals that on 05.07.2022, additional charge with regard to previous conviction was framed on the revisionist. It records that “earlier in Criminal Case No.1153 of 2007, State vs. Arun, under Section 9, 39, 51 of the Act, Police Station Pathri District Haridwar, the revisionist was convicted under Section 51 of the Act and sentenced to four years rigorous imprisonment with a fine of Rs.12,000/-with further stipulation that in default of payment of fine the revisionist shall undergo 15 days additional simple imprisonment”. Revisionist was then convicted on 19.07.2019, which was affirmed in appeal on 07.12.2020. The charge also specifies that as per allegation, on 05.12.2016, the revisionist was arrested having five turtles in his possession. Charge records that it was read over to the revisionist to which he admitted his conviction. 10. Learned counsel for the revisionist would argue that the charge should have further informed the revisionist that due to previous conviction, he is liable for enhanced sentence. It is argued that this part has not been told to the revisionist. 11. What would be the effect of omission or error in charge, Section 215 of the Code, inter alia, provides that unless failure of justice has occasioned, error in charge may have no effect. This Section reads as follows:- “215. It is argued that this part has not been told to the revisionist. 11. What would be the effect of omission or error in charge, Section 215 of the Code, inter alia, provides that unless failure of justice has occasioned, error in charge may have no effect. This Section reads as follows:- “215. Effect of errors. - No error 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.” 12. Not only this, Section 464 of the Code also provides for a situation where there is some error, omission or irregularity in the charge. This section reads as follows:- “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.” 13. These aspects have been discussed by the Hon’ble Supreme Court in a number of cases. These aspects have been discussed by the Hon’ble Supreme Court in a number of cases. In the case of Kammari Brahmiah and others vs. Public Prosecutor, High Court of Andhra Pradesh, Manu/SC/0053/1999, the Hon’ble Supreme Court, inter alia, held that non framing of charge does not in every situation vitiate the conviction if no prejudice is caused thereby. In para 13 of the judgment of Hon’ble Supreme Court observed as follows:- “13. The aforesaid discussion leaves no doubt that non-framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid case, the trial should be 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. Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. In the present case, accused were tried on the prosecution version that all of them went at 3.30 p.m. in the field of the deceased; they picked up the quarrel with him, inflicted injuries to the deceased as narrated by the prosecution witnesses, accused No. 3 to 6 participated as stated above; the statements were recorded under Section 313 of the CPC and the questions were asked to the effect that they jointly came at 3.30 p.m. and caused injuries to the deceased as stated by the prosecution witnesses and the role assigned to accused No. 3 to 6 was also specifically mentioned. Hence, it is apparent that no prejudice is caused to the accused who were charged for the offence under Section 302, by not framing the charge for the offence punishable under Section 302 read with 149. In this view of the matter, the conviction of the accused No. 3 to 6 for the offence punishable under Section 325 read with 149 cannot be said to be anyway illegal which requires to be set aside.” 14. Further in the case of Mohammed Ankoos and others Vs. In this view of the matter, the conviction of the accused No. 3 to 6 for the offence punishable under Section 325 read with 149 cannot be said to be anyway illegal which requires to be set aside.” 14. Further in the case of Mohammed Ankoos and others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , the Hon’ble Supreme Court, inter alia, observed that “Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if the accused has not been affected thereby.” 15. In the case of Willie (William) Slaney vs. State of M.P. Manu/SC/0038/1955, the Hon’ble Supreme Court observed that unless prejudice is caused to the accused, error or omission in charge shall have no effect. In para 23 of the judgment, the Hon’ble Supreme Court observed as follows:- “23. Now there is no doubt that a charge forms the foundation of a session’s trial and is a most important step in it. The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms: section 271(1). There can be no shirking that or slurring over it, and this must appear on the face of the record. It cannot be established by evidence taken after the trial. But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in a number of sections. The whole question therefore is whether the "charge" must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the fundamental defect of an incurable illegality or whether the information that is the substance of the matter can be conveyed in other ways. The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure.” 16. The framing of charge is also regulated by the provisions as contained in the Code. The essence of framing of charge is to tell the accused at the very beginning of the trial that what is the matter he is going to face? The framing of charge is also regulated by the provisions as contained in the Code. The essence of framing of charge is to tell the accused at the very beginning of the trial that what is the matter he is going to face? What are the allegations against him? So that, he can put a defence in his favour. 17. Insofar as enhanced punishment is concerned, there is a provision under Section 211 (7) of the Code, which reads as follows:- “(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, 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 if such statement has been omitted, the Court may add it at any time before sentence is passed.” 18. A bare reading of the said provision makes it abundantly clear that the date and place of the previous conviction is to be stated in the charge. In the instant case, on the date of delivery of judgment, the court framed charge with regard to previous conviction of the revisionist and it contains the following:- I. The facts of the previous conviction, according to which on 05.12.2016, five turtles were recovered from his possession. II. The details of the case. That was Criminal Case No.1153 of 2007 State vs. Arun under Section 9, 51, of the Wild Life (Protection) Act, 1972. III. The date of conviction i.e. 19.07.2020. IV. The sentence i.e. four years rigorous imprisonment with a fine and default clause. V. The date of the judgment of the appellate court i.e. 07.11.2020. 19. The charge has been framed as per the provisions of Section 211 of the Code. Even otherwise, if the revisionist is not told that because of the previous conviction he is liable to earlier possession, no prejudice is caused to him. The Court wanted to know from the learned counsel for the revisionist as to what he has to say even if those lines are not told that because of previous conviction he is liable for punishment. Learned counsel would submit that it makes no difference. 20. The Court wanted to know from the learned counsel for the revisionist as to what he has to say even if those lines are not told that because of previous conviction he is liable for punishment. Learned counsel would submit that it makes no difference. 20. In the instant case, framing of the additional charge with regard to the previous conviction is as per law and if it is not told to the revisionist that because of the previous conviction, he is liable for the alleged punishment, this Court is of the view that no prejudice has been caused to the revisionist. It has not occasioned any failure of justice. The charge has been framed as per law. Therefore, for the reasons of framing of additional charge with regard to previous conviction, no interference is warranted in the matter. 21. On the question of sentence, it is argued that the sentence is extremely excessive as the maximum sentence has been imposed. 22. This requires consideration for the simple reason that it is argued that the applicant is a poor person; he has been in custody throughout the trial and during the appeal also from the date of his arrest. 23. In case of second or subsequent offence, the term of imprisonment shall not be less than three years but if may extend to seven years and also a fine which shall not be less than Rs.25,000/- at the relevant time. The Court has imposed the maximum sentence. As such no reason has been assigned. 24. Having considered the entirety of facts, this Court is of the view that the interest of justice would be served if the revisionist is sentenced to undergo four years rigorous imprisonment instead of seven years of imprisonment. As far as the fine is concerned, the same shall remain unaltered. The judgment and order passed in the case as well as the appeal deserves to be modified accordingly. 25. In view thereof, the revision is partly allowed. Under Section 51 of the Act, the revisionist is sentenced to undergo four years rigorous imprisonment instead of seven years of imprisonment. As far as the fine is concerned, the same shall remain unaltered. 26. The judgment and order passed in the case as well as in the appeal is modified accordingly.