Rajasthan High Court - Jaipur
Tara Singh vs State Of Rajasthan on 15 February, 2000
Equivalent citations: 2000CRILJ1982, 2000(2)WLC520
ORDER Mohd. Yamin, J.
1. Both these revision petitions have been heard together and will be decided together by this order as both the accused petitioners jointly faced trial and were convicted for offence under Section 394, IPC by learned Additional Chief Judicial Magistrate No. 4, Jodhpur by his judgment dated 20-3-1991 and each one of them was sentenced to four years rigorous imprisonment with a fine of Rs. 500/- and in default to undergo six months rigorous imprisonment. Both of them preferred joint appeal before learned Sessions Judge, Jodhpur which was decided by learned Additional Sessions Judge No. 1, Jodhpur on 31-8-1991 who reduced the sentence of four years to three years under Section 394, IPG but maintained the sentence of fine.
2. I have heard the learned counsel for both the petitioners in two different revisions as well as learned Public Prosecutor at length.
3. Relevant facts are that at about 11.00 P.M. on 27-3-1983 Smt. Dhapi was passing through the 'B' Road in Sardarpura, Jodhpur in order to go to her house. When she reached in front of Shiv Mandir near Gandhi Maidan two persons came on a cycle from her back side. Both of them caught hold of her and fell down. She was wearing a 'borala' (golden ornament) on her head. They tried to snatch it. While snatching the ornament one of them put chilly powder in her eyes. Smt. Dhapi made hue and cry but the 'borala' which was tied on her head was snatched. Both of them tried to run away but in the meantime two constables and Bal Kishan Gupta came and chased the petitioners. They were caught. Smt. Dhapi went to police station along with her son-in-law and reported the matter where first information report was registered. Kedar and Sitaram constables brought both the petitioners stating that they had run away after snatching the 'borala' of Smt. Dhapi. Tara Singh petitioner was arrested vide Ex. P/4 while petitioner Satyanarain was arrested vide Ex. P/5. When search was taken 'borala' was recovered from the possession of Tara Singh and chilly powder was recovered from accused petitioner Satyanarain. During investigation Smt. Dhapi was medically examined. She was having some injuries as detailed in Ex. P/9. After investigation challan was submitted before Chief Judicial Magistrate who framed charges under Sections 394/34, IPC against both the accused petitioners who denied them and claimed trial. Thereupon prosecution examined as many as ten witnesses in support of its case. Then the petitioners were examined under Section 313, Cr.P.C. They did not produce any evidence in defence. Learned Additional Chief Judicial Magistrate, after hearing both the parties, convicted and sentenced the petitioners as stated above. On appeal their conviction was maintained but sentence of jail was reduced.
4. Learned counsel for the petitioners wanted me to go through the entire evidence as their argument was that the petitioners are not proved to have committed the offence under which they have been convicted. Their attention was drawn to State of Kerala v. Puttumana 111ath Jathavedan Namboodiri, 1999 (1) JT (SC) 456 : (1999 Cri LJ 1443) in which it was observed that in its revisional jurisdiction the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power Of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
5. Then the counsel submitted that the charges framed against the petitioners mentioned the time of occurrence as 11.00 A.M. on 27-3-1983 while actually the allegation relates to 11.00 P.M. of 27-3-1983. This, according to the learned counsel, has caused prejudice to the petitioners. They submitted that the attention of the trial Court was drawn to it when the case was argued before him and the trial Court instead of amending charges held that the accused petitioners were not prejudiced by this irregularity and hence it was not material. Learned counsel submitted that it is a material irregularity which has prejudiced the accused petitioners . They also submitted that though charges were framed under Sections 394/34, IPC but the learned Magistrate convicted the accused petitioners for offence under Section 394, IPC which was not proper and resultantly the accused petitioners deserve acquittal.
6. On the other hand learned Public Prosecutor has supported the judgments of both the Courts below.
7. The first question is whether mentioning of wrong timing in the charge is such a defect which vitiates the trial ? my attention goes to Section 464, Cr.P.C. which provides that 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.
8. Learned counsel submitted that the attention of the trial Court was drawn to this defect at the time of arguments but the trial Court did not amend the charge and, therefore, the case can be remitted back to the trial Court for correction of the charge and further trial thereafter. It has been submitted that when the attention of the trial Court was drawn to the irregularity in the charge, it means that it has occasioned a failure of justice to the petitioners. I do not agree with this contention simply because Section 212, Cr.P.C. provides that charges shall contain such particuars as to the time and place of the alleged offence and if such a mistake, as in the present case, has crept in the charge, it is a curable defect and does not vitiate the trial. Even omission to specified date and time is curable as per the judgment of Supreme Court reported in AIR 1963 SC 1696, Chittaranjan Das v. State of West Bengal.
9. Section 215, Cr.P.C. says that 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. When the law is such, the effect of the error does not prejudice the petitioners at all because they right from the very beginning knew as to what was the charge they were to meet. Under Section 215, Cr.P.C. the legislature has given some illustrations and illustration (d) reads as follows :-
A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haider Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haider Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
10. So when the charges mentioned the time as 11.00 A.M. and the petitioners were never charged of any other incidence than the present one and had with open eyes faced the trial for the same, they were not misled and the error in the charge was immaterial.
11. In AIR 1936 Patna 358, Nanhkoo Mahton v. Emperor, the offence was committed at two places but the charge mentioned only one place. It was held that by mentioning of only one place the accused was not misled in his defence and that did not affect his conviction.
12. In yet another citation, AIR 1942 Madras 417 : (1942 (43) Cri LJ 807) In re E.S. Ganapatisubramanya Iyer, the accused was prosecuted for the offence under Defence of India Act and its Rules as he was organising meeting at which intending Satyagrahis made anti-war speeches. Charge sheet filed by the police relating to offence of 18-5-1941 but the charge itself relating primarily to the incident on 26-3-1941 was levelled. Sub-Inspector, who was only witness in the case, referred to the incident other than on 18-5-1941 one of them being that of 26-3-1941. Accused had pleaded guilty and it was held that the accused was not prejudiced by difference in charge and charge sheet.
13. In AIR 1943 Patna 212, Banamali Tripathy v. Emperor, only month and not actual date of offence was given in the charge. Even then it was held that it cannot be regarded as an irregularity and even if so it would be curable under the provisions of Code of Criminal Procedure.
14. In view of all this law discussed above, the wrong mentioning of time in the charge does not vitiate the trial at all, much so because the accused petitioner knew from the very beginning as to what was the charge he was facing. It were Sitaram PW-1, Bhanwarlal PW-2, Dhapu PW-3, Bal Kishan PW-5 and Budhi Sagar PW-6 who have stated that the occurrence had taken place in the night and thus the petitioners knew that the occurrence had taken place in the night and not during the day. No prejudice has been caused to them and as such the argument of the learned counsel for the petitioners does not hold water.
15. The second argument of the learned counsel for the petitioners was that though charge under Section 394 with the help of Section 34, IPC was read over to each of the accused petitioners yet they have been convicted of the charge under Section 394, IPC which was not permissible. The same question arose in AIR 1956 SC 116, Willie (William) Slaney v. State of Madhya Pradesh, in which accused persons were charged for offence under Section 302 read with Section 34, IPC. One of the accused persons was acquitted while the other was convicted for offence under Section 302, IPC. It was held that conviction could be recorded for offence under Section 302, IPC though charge was framed with the help of Section 34, IPC as it was the curable irregularity which in absence of prejudice could not effect the legality of conviction.
16. It may be stated that no such argument was made either before the Magistrate or before the learned Additional Sessions Judge. There is no prejudice to the accused petitioners. As such there is no force in the second argument.
17. It was submitted that no test identification parade of the accused petitioners was conducted and it was not possible to identify them at that hour of night. It may be stated that when Smt. Dhapi made hue and cry when she was being looted and the police constables came running who after chasing the accused petitioners caught hold of them and produced them at the police station where on search the golden ornament of Smt. Dhapi snatched by them as well as chilly powder were recovered, it was not necessary to hold test identification parade. The petitioners were so desperate that when the police constables caught hold of them they tried to run away after they were apprehended by the police constables. Smt. Dhapi fell down and she suffered injuries as proved by prosecution. In this way a robbery was committed by both the accused petitioners and such an offence is punishable with imprisonment for life. The learned Additional Sessions Judge has himself reduced the sentence of the petitioners and no further leniency should be shown to them.
18. In view of above discussion, there is no force in these revision petitions. They are hereby dismissed. Bail bonds of both the petitioners are cancelled and they are directed to surrender before learned Additional Chief Judicial Magistrate, Jodhpur who shall take them in custody and send to jail so that they may undergo the remaining part of sentence. If they do not surrender, learned Additional Chid Judicial Magistrate shall issue non-bailable warrants of arrest immediately and alter procuring their attendance send to jail to undergo the remaining part of sentence.