Ram Briksh vs State

P.N. Goel, J.—This is an appeal against the order dated 19-9-1973 passed by Sri Din Dayal, 1st Temp. Civil and Sessions Judge, Deoria convicting and sentencing Appellant Ram Parikhan u/s 323 IPC to undergo R.I. for four months.

The Appellant was tried on a charge u/s 394, IPC out he was convicted u/s 323, IPC.

The case of the prosecution against the Appellant was that the Appellant wanted Khaira Prasad Misra, P.W. 1 Lekhpal to show him a copy of the map of the chak. On 6-9-1971 at about 8.30 a. ra. the Appellant began to snatch the map of the chak from Khaira Prasad Misra. He succeeded in taking the map. Thereafter he assaulted Khaira Prasad Misra with a lathi and snatched a sum of Rs. 10/- from his pocket. Ram Briksh P.W. 3 another Lekhpal was present. He was also assaulted by the Appellant. The Appellant then ran away With the map and the money.

A written report of the occurrence was lodged by Khaira Prasad Misra, at P.S. Kotwali, Deoria on the date of occurrence at 10-05 a.m. The place of occurrence is one mile from the Police Station.

Sri S.N. Yadava, S.I. P.W.5 investigated into the case. Dr. S.P. Gupta P.W. 6 examined Khaira Prasad Misra on the date of occurrence at 11-45 a.m. and found eight injuries as detailed below (vide injury report Ex. Ka-7):

* * * *

After having completed the investigation, Sri S.N. Yadava, submitted a charge-sheet against the Appellant.

The Appellant denied the allegations of the prosecution and asserted that he had been falsely implicated on account of enmity.

On facts, the prosecution examined Khaira Prasad Misra and Ham Briksh, Lekhpals P.Ws. 1 and 3 who were the victims in the case. The prosecution also examined Sri Babu Singh. Consolidation Officer, P.W. 4 who saw Khaira Prasad Misra and Ram Briksh shortly after the occurrence. Khaira Prasad told him of the entire occurrence implicating Ram Parikhan Appellant. Ram Briksh told same facts to him. Then he went to the Police Station, and in his presence the clothes of the injured persons were taken by the police.

9 The Additional Sessions Judge has not believed that the Appellant had taken away the map and Rs. 10/- from the possession of Khaira Prasad Misra. He. however, believed that the Appellant had assaulted Khaira Prasad and Ram Briksh because Khaira Prasad had not even the map of the chak to him in few of this finding the Additional Sessions Judge convicted the Appellant u/s 323, IPC.

10 Sri K. Kapoor, Advocate for the Appellant urged that as there was a charge u/s 394, IPC, the Appellant could not be convicted u/s 323 IPC This point was raised before the Additional Sessions Judge also. The Additional Sessions judge, repelled this contention.

A perusal of the charge framed by the Magistrate on 10-5-1972 and on 13-9-1972 shows that it was specifically mentioned therein that the Appellant had committed robbery of the property of Khaira Prasad and had voluntarily caused hurt to Khaira Prasad and his companion Ram Briksh.

It will next be seen that robbery is punishable u/s 392, IPC and voluntarily causing hurt is punishable u/s 323, IPC Where in commission of robbery hurt is caused voluntarily then the offence is punishable u/s 394, IPC. It means that there are two main ingredients of the offence punishable u/s 394, IPC - I) Robbery and (2) Voluntarily causing hurt. It will thus be seen that causing hurt is an integral part of the offence punishable u/s 394 IPC. Section 235 of the old Code of Criminal Procedure permitted joint trial of offences punishable under Sections 323, 392 and 394 IPC (vide Sub-section (3) of Section 235 and illustration (m)).

It will then be noticed that Section 238(1) Code of Criminal Procedure provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offences, though he was not charged with it.

Sub-section (2) of Section 238 further provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

The position is that where a person is charged with a major offence, he can be convicted of a minor offence. Major and minor offences are not defined in the Code. But it appears that a minor offence should be cognate to the major offence. It was so held in the case of Makkhan v. Emperor AIR 1945 All. 89, which has been cited by the Additional Sessions Judge.

Word ''Cognate'' literary means "akin in nature". As the offence u/s 394 IPC is akin in nature to the offences under Sections 392 and 323 IPC, I am of the view that in this case the Appellant could be convicted u/s 323 IPC simpliciter. Sri K. Kapoor for the Appellant could not show any precedent in his favour.

It will also be noticed that a case u/s 323 IPC is to be tried as a summons case and, therefore, it is not necessary to frame a separate charge u/s 323 IPC, especially where it is mentioned in the charge framed that the offender had caused hurt. In the instant case, the Magistrate clearly mentioned in the charge that the Appellant had caused hurt to Khaira Prasad Misra and Ram Briksh. Thus the Appellant had full knowledge of the facts attributed to him. He knew the facts which he was required to meet at the trial.

In view of the above, it cannot be said thaUhe Appellant was prejudiced in any manner by his conviction u/s 323 IPC.

It is pertinent to refer to Sections 535 and 537 of the old Code of Criminal Procedure. Section 535 provides that no finding or sentence pronounced or passed shall be deemed Invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.

Section 537 also clearly provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the charge.

For the aforesaid provisions of law, the contention of Sri Kapoor cannot be accepted and the Appellant cannot be given any benefit for not framing a specific charge u/s 323 IPC.

Sri Kapoor then urged that the sentence be reduced to the period already undergone. It appears that the Appellant was arrested on 17-9-1971. He was allowed to be released on bail on 7-10-1971. In this way, the Appellant remained in jail for about three weeks.

The Additional Sessions Judge convicted the Appellant on 19-9-1973.

After filing the appeal in this Court, he was allowed to be released on bail on 24-9-1973. He would have remained in jail for a few days after the order dated 24-9-1973. In this way, the Appellant remained in jail for about a week.

The position therefore, is that the Appellant has remained in jail for one month. The occurrence took place about seven years ago. The Additional Sessions Judge recorded conviction five years ago. In all these circumstances, it does not appear appropriate that the Appellant should now be sent to jail to serve out three months imprisonment more for a minor offence punishable u/s 323 IPC. Hence, the sentence can be reduced to, the period already undergone.

No other point was raised by the Appellant''s Counsel. The case has been fully proved by the sworn testimony of two Lekhpals, whose evidence is corroborated by the other evidence on record.

The appeal is dismissed and the conviction of the Appellant u/s 323 IPC is maintained, but the sentence of four months'' R.I. awarded to him thereunder by the Additional Sessions Judge is reduced to the period already undergone. The Appellant is on bali. He need not surrender. Bail bonds furnished by him are hereby cancelled.