Bhagwant Singh and another vs The State of Punjab

Ujagar Singh, J.—On 10-11-1983 Bhagwant Singh and Rajinder Singh, revision-Petitioners, armed with Gandasa and Sua respectively, came in front of the house of Jhanda Sirgh complainant at about 6 p.m. The complainant was challenged by them to come out of his house. The Petitioners raised Lalkara sand Jhanda Singh came in the street Bhagwant Singh Petitioner gave a Gandasa blow from its blunt side and Jhaadi Singh fell down. In the meantime, Shrimati Dalip Kaur wife of Jhanda Singh came to his rescue. She gave a cover to him by laying herself on him. Bhagwant Singh caused another Gandasa blow from its sharp-side, striking at the left thumb of the complainant and the same was amputated. Rajinder Singh Petitioner gave injuries with Sua on the person of Smt. Dalip Kaur, Bhagwant Singh also caused injuries to Smt. Dalip Kaur. Chhota Singh also came there and tried to rescue Jhinda Singh and Smt. Dalip Kaur. The Petitioners ran away with their respective weapons. The injured were carried by Bhajan Singh in a truck to Civil Hospital, Malerkotla. The motive for the occurrence was that there was so ns dispute between Smt. Dalip Kaur and Smt. Basant Kiur alias Basanto mother of the Petitioners. The Gram Panchayat intervened and tried to get effected a compromise between the parties, but the complainant-party was not satisfied with the negotiations. Ruqqa sent by the Doctor attracted the attention of the Police and on coming to the hospital, statement Ex. PA of Jhanda Singh was recorded on 12-11-1983 at about 3.45 p.m. and case; First Information Report No. 223 of that date was registered under Sections 326/324/323/34 of the Indian Penal Code (the Code in short) at Police Station Malerkotla. After investigation, report u/s 173 of the Code of Criminal Procedure was submitted to the Illaqa Magistrate.

During trial, the prosecution examined PW1 Jhanda Singh, PW2 Smt. Dalip Kaur, PW3 Chhota Singh and PW4 Dr. K.C. Modi. On 29-1-1985 one PW was given up and the remaining witnesses were not present. Keeping the facts of the ease in view, the trial Court closed the evidence of the prosecution, as on earlier dates it was made clear that no adjournment would be granted to the prosecution. Thereafter the statements of the Petitioners were recorded and they examined DW1 Harnak Singh and DW2 Ujagar Singh in their defence Their statements were that in front of the house of Harnak Singh, there was some dispute between Smt. Basanto mother of the Petitioners and Smt. Dalip Kaur and there were some injuries caused to Smt. Basanto by Jhanda Singh. Jhanda Singh then declared that he would involve them in some cases. Bhagwant Singh was in service and Rajinder Singh was a student. This defence has not been believed by both the Courts below. Relying on the statements of prosecution witnesses No. 1, 2 and 3 (who are eye-witnesses), the trial Court convicted the Petitioners under the aforesaid sections of the Code and sentenced them to undergo rigorous imprisonment for one year each u/s 326 of the Code and to pay a fine of Rs. 500/- each. Both the Petitioners were further sentenced to undergo RI for 6 months u/s 324 of the Code and also to undergo RI for 3 months u/s 323 of the Code. All the sentences were directed to run concurrently. The Petitioners preferred an appeal and the Sessions Court modified the sentences, reducing one year''s RI u/s 326 to 9 months and a fine of Rs. 500 qua Bhagwant Singh and in default of payment of fine, he was further directed to suffer RI for 6 months. The sentence of Bhagwant Singh Petitioner u/s 324 was maintained as RI for 6 months; u/s 323/34 of the Code it was also maintained. Rajinder Singh''s sentence u/s 326/34 of the Code was reduced to RI for 8 months, but fine and imprisonment in default thereof was maintained. Rajinder Singh''s sentence u/s 321/34 and u/s 323 of the Code was maintained. Out of the fine, if realised, a sum of Rs. 300/- was directed to be paid as compensation to Jhanda Singh and Rs. 200/- to Smt. Dalip Kaur. The Petitioners have challenged their conviction and sentences by way of this criminal revision.

Jhanda Singh complainant has also filed Criminal Revision No. 1482/1985 for enhancement of sentence and also for awarding more compensation to the injured. Both these Criminal Revisions are being disposed of by this order. The learned Counsel for the Petitioners has argued that the trial Court framed the charges against the accused on 7th of September 19S4 and therein the following three lines in the beginning thereof indicate a different place of occurrence than alleged against the accused "that on 10th of November, 1983 at about 6.00 P.M. in the area of City Malerkotla you Bhagwant Singh and Rajinder Singh in furtherance of the common intention of you all.... "According to him, this charge was not in accordance with the mandatory requirements of Section 212 of the Code of Criminal Procedure (hereinafter to be referred as the ''Code'') which requires that the charge shall contain such particulars as to the time and the place of the alleged offence as are reasonably sufficient to give the accused notice of the matter with which he is charged. Admittedly, the occurrence did not take place in the area of city Malerkotla and, therefore, according to him, the whole trial is vitiated. He next argues that left thumb of PW1 Jhanda Singh was chopped off and it fell on the ground at the place of occurrence There is no corroboration by recovery of the thumb. On this score, he challenges the thruthfulness of the prosecution version. He further challenges the prosecution case as most doubtful in view of the delay in lodging the F.I.R. He has referred to the statement of PW1 Jhanda Singh who admitted that after the occurrence he along with Dalip Kaur, his wife, were taken in a truck by Bhajan Singh and after reaching Malerkotla they went to the police and thereafter, along with police people they were taken to the Civil Hospital Rather according to the witness one constable was sent with them. He further stated in cross-examination that the police went to him in the hospital on the third day and recorded his statement Exhibit PA. PW2 Smt. Dalip Kaur is silent about their going to the police-station and rather states that they went to the hospital She talks about probability of compromise through the Ranches but stated that after there was no possibility of compromise they reported the matter to the police. He has also referred to the statement of PW3 Chhotu Singh who stated that Bhagwant Singh gave a gandasa blow from blunt side on the head of Jhanda Singh who fell down and Dalip Kaur fell on him. Rajinder Singh then gave Sua blows to her and Bhagwant Singh cut off the left thumb of Jhanda Singh. He has pointed out further discrepancies in the statements of eye witnesses and has laid stress for absence of the Investigating Officer from the witness box. The statement of PW4 Dr. K.C. Modi in his cross-examination indicating that the possibility cannot be ruled out with regard to injury No. 2 (chopping off left thumb'' on the person of Jhanda Singh while working with toka machine With these arguments, he seeks acceptance of the Revision and acquittal of the Petitioners.

The counsel for the state has urged that the prosecution version is fully supported by the statements of PW1, PW2 and PW3 who are eye witness. According to him, absence of the investigating officer from the winess box is of no consequence in this case because no incriminating recovery has taken place in this case and in the circumstances of the case the delay, if any, has been properly explained by the prosecution witnesses.

The counsel for the complainant in the revision has claimed enhanced punishment and compensation for the injured out of the fine.

I have considered the arguments of the counsel for the Petitioners. The provisions of Section 212 of the Code are very material as the same are meant to give a notice to the accused to meet the charge framed against him. In this case the place of the alleged offence has been stated to be in the area of city Malerkotla. At the time of framing the charge the papers placed on the record along with the report u/s 173 of the Code are looked into for the purpose and at that time neither the trial Court nor the prosecution counsel bothered to mention the place of alleged offence in the charge-sheet. The record does not show on whit material place of alleged offence was mentioned as in the area of city Malerkotla. In any case, the mentioning of the area in city Malerkotla as the place of alleged offence is not according to the evidence on record and this wrong fact crept in the charge-sheet. For this reliance has been placed on Division Beach judgment of Mysore High Court in Bayyappanavara Muniswamy and Ors. v. State AIR 1954 Mys 81 where the charge framed against the accused alleged that on or about 8-11-1952 at Thirumalahally they abetted the commission of the offence of murder of one Appaiah and it was held that the words "on or about 8th Nov. at Thirumalahally" in the charge could not be construed as being comprehensive enough to apply to acts outside the village about 20 days earlier and sufficient to give notice of it to the accused. The Division Bench observed that if the time of abetment had been satisfied in the charge in keeping with the evidence the accused may well have established a plea of alibi and they are prejudiced by the evidence which is clearly at variance with the charge so far as the date is concerned, being acted upon.

In Aswini Kumar Roy and Another Vs. The State, a Division Bench of Calcutta High Court held that where the charge of abetment against A stated that on or about 9 or 10-2-1952. A abetted G in the commission of the offence of kidnapping of the girl and there was no material in the evidence to justify this allegation and the proper charge would have been one of abetment on or about 15-4-1952 when the girl was actually kidnapped. In that case, charge was regarded as wholly bad and, therefore, the conviction and sentence of A u/s 366/109 I.P.C. could not be sustained. In another case, C.N. Krishna Murthy v. Abdul Subban and Anr. AIR 1956 Mys 128 charge was held to be vague and it was held that accused had no fair trial as the mode and manner in which the accused was tried had occasioned failure of justice. The criminal appeal was accepted and the accused were acquitted.

In view of the importance of a charge in a criminal trial I do not think it necessary to adjudicate the other points raised by the counsel for the Petitioners. The charge in this case mentions place of the alleged offence as in the area of city Malerkotla which actually took place in a village according to the prosecution version and this fact was not sufficient eat to give notice to the accused. Another authority Jalal-ud-Din v. King Emperor AIR 1924 Lah. 616 has come to my notice. Therein the assault took place in the house of the complainant and the Petitioner was charged with the same. This charge was denied and was not found to be true. It was held therein that it seems unfair to convict the Petitioner of an offence with which he was never charged, as it is obvious that had he been charged with having beaten the complainant in some other place he might have had a complete reply to give. With these observations, the criminal revision was accepted. The above authorities support this view and this contravention of the provision of Section 212 of the Code is fatal to the prosecution and this Revision is liable to be accepted and it is hereby accepted. Conviction and sentence imposed on the accused are set-aside.

Now the question remains whether the case is to be sent to the trial Court for re-trial or not. For this reliance can be placed on the judgment in C.A. Krishna Murthy''s case (supra) and the observation in para 47 of judgment can be usefully mention here:

This takes me to the question whether a retrial should be ordered in this case. The charge of defalcation of public funds by a public servant is a very serious charge. So also is the charge u/s 477-A I.P.C. but, in deciding the question whether a retrial should be ordered or not, the Court should bear in mind the harassment the accused had already gone through, the time that has elapsed between the date of the commission of the offence and the date of the order of the re trial, the expenditure that might have been incurred by the defence as well as by the prosecution and the nature of the evidence available against the accused with a view to find out whether in the circumstances of the case there are valid reasons to order a retrial.

In this case keeping in view the observations quoted above, it has to be seen whether after such a long time case has to be sent for retrial or not. The occurrence is said to have taken place on 10-11-1983 at about 6-00 P.M. and about years have passed since then. The proceeding in the trial Court started on 17.12.1983 and the trial ended with the judgment of conviction and sentence on 28.5.1985. Thereafter, appeal was instituted on 5.6 1985 and the appellate Court decided the same on September 19, 1985. Petitioners filed this revision on 24.9.1985 and the same came up for hearing on 25.9.1985 when the Petitioners were allowed bail. Since then the Petitioners are on bail. During all this period, there must have been sufficient harassment undergone by the Petitioners who must have incurred the huge expenditure specially when Bhagwant Singh Petitioner is in Army Service and Rajinder Singh Petitioner was a student. I think it will be a travesty of justice to order a retrial of this case at this stage and the prosecution has to thank itself for this sorry state of affairs.

This revision is allowed and the Petitioners stand acquitted. The criminal revision No. 1482 of 1985 filed by Jhanda Singh is resultantly dismissed.