Jagmal Singh vs The State of Haryana

S.S. Dewan, J.—Jagmal Singh aged 45 years, resident of village Bhora Kalan, stands convicted under sections 325 and 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for one year on first count and three months on the second count.

Briefly the prosecution ease is that a vacant plot of land measuring 19 yards X 15 yards adjoins the nohra of Jagmal Singh accused towards its East. This accused claims title over this plot by long possession for about 40/50 years. However, Gopal Sarup and Anant Bihari Lal and Basheshar Nath claimed that they are joint owners of this plot. They executed a registered deed in respect of this plot in favour of Bhagwan Singh on 26th June 1973, i.e. 2 days prior to the present occurrence. Bhagwan Singh is stated to have entered into possession of the said plot in the afternoon of 26th June 1973 and he dumped some stones on it and also started digging its foundation. Jagmal Singh took exception to that and promptly reported the matter to the police. Consequently, security proceedings were initiated against Bhagwan Singh and his son Navbhan Singh on the one side and Jagmal Singh accused on the other side. Both the parties were admitted to bail by the Sub-Divisional Magistrate, Gurgaon on 27th June 1973. Ultimately both the parties were bound down to keep the peace. The appeal filed by Bhagwan Singh and his son was accepted by the Sessions Judge, Gurgaon on 7th March 1975 while that of Jagmal Singh was dismissed on the same day. On 28th June 1973, Amar Singh, who is the father-in-law of Navbhan Singh, accompanied by his nephew came to village Bhora Kalan. They were lodged by Navbhan Singh and his father in their nohra which is located about 15/20 paces away from their house. On the same day at about 3 P.M, Navbhan Singh started serving meals to them. After serving the course of meals to these guests, Navbhan Singh proceeded to his house to fetch some more eatables, When he reached in front of his house, Jagdish and Mahabir accused armed with lathis emerged from the nohra of Jagmal Singh. They gave one lathi blow each on the head of Navbhan Singh and in the meantime Jagmal Singh and his two sons Rajinder Singh and Surjan Singh came out of their nohra armed with lathis It is stated that Jagdish Singh and Mahabir exhorted the other three accused to belabour Navbhan Singh. Jagmal Singh gave lathi blow on the head of Navbhan Singh followed by Surjan Singh and Rajinder Singh who gave lathi blows on his right shoulder and right wrist. On receipt of injuries, Navbhan Singh slumped on the ground. On hearing the alarm of Navbhan Singh, his father Bhagwan Singh, his father-in-law Amar Singh, his paternal uncle Ram Charan and Gopal Sarup were attracted to the spot and they also witnessed the occurrence. Bhagwan Singh is stated to have given some lathi blows to Jagmal Singh in self defence and in that process Bhagwan Singh also sustained some injuries. Navbhan Singh and Bhagwan Singh were removed to Primary Health Centre where Dr. S. D Gupta medically examined them, Navbhan Singh bad seven blunt weapon injuries on his person. Injuries Nos. 4 and 6 were stated to be simple in nature while the other injuries were kept for observation. Bhagwan Singh had four simple blunt weapon injuries. After having the injuries of Navbhan Singh stitched and after obtaining the medico legal reports, the two injured prosecution witnesses came to the bus stand of their village to catch a bus for Pataudi. They met Head Constable Jagat Singh at the bus stand and Navbhan Singh made a statement Exhibit P.J. before him. On the basis of the said statement, Head Constable Atma Ram made an entry Exhibit P.K. in the daily diary register. Jagmal Singh accused also approached the police on the same day. He got himself medically examined by Dr. S.D. Gupta at about 8 P.M. the same evening. He had thirteen simple blunt weapon injuries on his person Navbhan Singh was referred to Civil Hospital, Gurgaon for X-ray and treatment Dr. Amolak Singh who radiologically examined Navbhan Singh found fracture of skull at posterior and of parietal bone. On receipt of the X-ray report of Navbhan Singh, the police changed the offence to u/s 325, Indian Penal Code Assistant Sub Inspector Mathura Singh inspected the spot and prepared its visual plan Exhibit P.L. Jagmal Singh was arrested on 7th July 1973 while the other accused were arrested on subsequent dates On 1st October 1973, Dr. S.D. Gupta opined that death of Navbhan Singh could be caused due to multiple fracture of skull. After necessary investigation, the accused were challaned and committed The accused were brought to trial for the offences u/s 148 and sections 307, 325 and 323 read with section 149, Indian Penal Code.

The prosecution examined Navbhan Singh (P.W. 12), Bhagwan Singh (P.W. 13), Gopal Sarup (P.W. 14), Ram Charan (P.W. 15) and Amar Singh (P.W. 16) in support of its ocular account. When the accused were examined, they denied the prosecution allegations and pleaded false complicity in this case. Rajinder Singh and Surjan Singh accused pleaded alibi Jagmal Singh accused took up the plea of self-defence and denied the presence of the other accused at the alleged time of the occurrence.

The Additional Sessions Judge, Narnaul (at Gurgaon) on the basis of the material placed before him acquitted Jagdish, Mahabir, Rajinder and Surjan Singh but convicted and sentenced Jagmal Singh for the offences as indicated above and hence the appeal at his instance.

The contention of the learned counsel for the appellant is that when Jagmal Singh accused was in fact charged under sections 307/149, 325/149, 523/149 and 148, Indian Penal Code, he could not have been convicted under sections 325 and 323 simplicitor. The learned counsel for the State stated that if the charge sheet of the accused is read carefully, it would appear that he has been charged under sections 325 and 323, Indian Penal Code, simplicitor. The learned counsel for the State further argued that even if there is some error in framing the charge, it is curable u/s 464 and 465 (1) of the Code of Criminal Procedure, 1973. The charge-sheet of accused Jagmal Singh shows that he has been indicted under sections 307/149, 325/149, 323/149 and 148, Indian Penal Code. In the main body of the charge, it is mentioned that the convict along with other accused formed an unlawful assembly and in the prosecution of the common object of that assembly committed such and such crime. Thus the charge framed against Jagmal Singh is In conformity with the form of charge meant for the offence u/s 149, Indian Penal Code. The bodies of the charges indicated that the appellant was not arraigned under sections 325 and 323, Indian Penal Code, simplicitor. A charge for substantive offences under sections 325 and 323, Indian Penal Code is for distinct and separate offences from those under sections 325 and 323 read with section 149, Indian Penal Code. In the present case, there was no direct and individual charge against the appellant for the specific offences under sections 325 and 323, Indian Penal Code. The absence of specific charge is a serious illegality which has materially prejudiced the accused The argument of the learned counsel for the State that this is only an irregularity which is curable under sections 464 and 465 (1) of the Code of Criminal Procedure, 1973 is answered by the observations of their Lordships of the Supreme Court in Nanak Chand Vs. The State of Punjab, ) in the following language--

If there is a conviction for a charge not framed, it is an illegality and not an irregularity curable by the provisions of sections 535 and 537, Criminal Procedure Code.

The irregularity is not curable as the appellant was misled in his defence by the absence of a charge under sections 325 and 323, Indian Penal Code. By framing charges in accordance with the provisions of section 149, Indian Penal Code, the trial Court gave an indication that it was rot charging the accused with the specific offences simplicitor and, therefore in defending himself the appellant was not called upon to meet such charges. In this connection, a reference is made to Lakhan Mahto and Others Vs. State of Bihar, . In that case, their Lordships of the Supreme Court after referring to a Privy Council decision in AIR 1925 1 (Privy Council) observed that :--

The High Court has taken the view that section 149, Indian Penal Code, does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate Court to conviction for direct liability though there was an acquittal by the trial Court of the direct liability of the offences. In our opinion, the view taken by the High Court is not correct. There is a legal distinction between a charge u/s 302, Indian Penal Code and a charge of constructive liability under sections 302/149, Indian Penal Code.

That being the settled law, there is no escape from the conclusion that the appellant has wrongly been convicted of the offences simpliciter mentioned in the judgment of the trial Court. Now the question is whether the accused should be acquitted or the case should be remanded to the Court below for its retrial in accordance with law. The offence is alleged to have been committed on 28th June 1973, The trial of the accused continued up to 19th March 1975, that is for about 13/4 years. He is on bail since 10th April 1975. The error here is not merely technical. The appellant has already faced agony of criminal proceedings pending against him for a considerable period. Simply because the trial Judge has omitted to do his duty in not framing correct charge in accordance with law, the appellant cannot be subjected to further harassment vide Machander Vs. State of Hyderabad, justice is not one-sided. It has many facets. While it is incumbent on the Court to see that the guilty persons do not escape punishment but it is even more necessary to see that persons accused of crimes are not indefinitely harassed. The scales of justice have to be kept on an even balance whether for the accused or against him, whether in favour of the State or not. In these circumstances, I am not prepared to order a retrial in the case because of the facts that appear here.

In the result, the appeal is allowed. The conviction and the sentence of the appellant are set aside and the appellant is acquitted. Appellant Jagmal Singh is on bail. His bail bonds stand cancelled.