Patna High Court
Ram Nath Singh vs State Of Bihar on 18 February, 1997
Equivalent citations: 1997(1)BLJR877
Author: P.K. Sarin
Bench: P.K. Sarin
JUDGMENT P.K. Sarin, J.
1. This criminal revision-application is directed against the judgment and order dated 19.4.1988 passed VIth Additional District and Sessions Judge, Bhojpur at Ara, dismissing the Criminal Appeal No. Ill of 1984 and affirming the judgment and order of conviction and sentence passed by IIIrd Assistant Sessions Judge, Ara in Sessions Trial No. 1 of 1981. The petitioner was convicted for the offences punishable under Section 326 and 379 of the Indian Penal Code (hereinafter referred to as the Code) and was sentenced to five years and three months rigorous imprisonment respectively for the said offences by the Trial Court.
2. The petitioner, along with two other co-accused, was tried. The petitioner was tried for the offences punishable under Sections 307, 379 and 148 of the Code. The other two co-accused were found guilty under Section 379 of the Code. The other two co-accused were released after admonition under Section 360(3) of the Code of Criminal Procedure. The charge under Section 307 of the Code was fund not proved against the petitioner, instead he was held guilty for the offence punishable under Section 326 and 379 of the Code.
3. The prosecution case, in brief, was that on 14.4.198Q, at about 4.00 P.M. the informant, Ramadhar Singh (P.W. 5) was in the process of taking the Arhar crop which he had collected in his Khalihan and at that time the petitioner along with co-accused and two unknown persons came there and took away the Arhar crop forcibly. It was alleged that when informant protested, the petitioner at the exhortion of other co-accused Raja Ram Singh gave a pharsa blow to the informant which caused serious injuries to the informant. On alarm, having been raised, witnesses came there. The informant was taken to the hospital. On his Fardbeyan the first information report was recorded. After investigation police submitted charge sheet.
4. The prosecution examined nine witnesses in the case: out of which one was tendered and one was declared hostile. The learned Trial Court on appreciation of the prosecution evidence including the medical evidence came to the conclusion that the petitioner had caused grievous injury to the informant by pharsa although injury was not caused with the intention of causing murder. The Trial Court also held the petitioner guilty of commission of theft of the Arhar crop along with the other two co-accused. Accordingly, the Trial Court convicted the petitioner under Section 326 of the Code instead of Section 307 of the Code and also under Section 379 of the Code. The petitioner's Cr. Appeal No. 1ll of 1984 against the judgment and order of the Trial Court has been dismissed by the Appellate Court. The Appellate Court on reappraisal of evidence concurred with the findings of facts recorded by the Trial Court. Thus, there is concurrent findings of fact by the two Courts below.
5. The learned Counsel for the petitioner has contended that the petitioner could not have been convicted under Section 326 of the Code as no charge under Section 326 of the Code was framed against the petitioner. The learned Counsel has contended that Section 326 of the Code cannot be said to be a minor offence vis-a-vis Section 307. Therefore, framing of charge under Section 326 of the Code was necessary before the petitioner could be convicted under that section. In support of his contention the learned Counsel for the petitioner has placed reliance on a decision of Rajasthan High Court in the case of Parma v. State wherein while considering the scope of Section 238 of the Code of Criminal Procedure (1898) it has been held that offence under Section 326 of the Code is not minor in relation to offence under Section 307 of the Code. It has been observed that in order that the conditions prescribed under Section 238 may be fulfilled it is necessary that under Clauses (1) and (2) of the section the offence for which the accused is sought to be convicted must be minor in relation to the offence with which he is charged which may be called major offences.
6. The next case relied upon by the learned Counsel for the petitioner is the decision of Bombay High Court in the cast of Ramchandra Bahini Shingate v. State 1972 Cri. L.J. 938, wherein also the provision of Section 238 of the Code of Criminal Procedure 1898 was considered and with reference to the consideration of that section it was held that conviction for an offence other than for which no charge is framed is not justified either under Section 238 or under Section 536 (1) or 537 (b) where the offence for which the accused is convicted is not of a minor nature in comparison with the offence with which the accused is charged and the ingredients of the two offences are different.
7. In both the cases the decision was with reference to the provisions of Section 238 of the Code of Criminal Procedure (1898) which appears to be analogous to the present Section 222 of the Code of Criminal Procedure of 1973. The Supreme Court had also occasioned to consider the matter whether a person could be convicted under Section 326 of the Code without framing charge under that section and in the situation where charge was framed only under Section 307 of the Code. The Supreme Court in the cast of Bejoy Chand Patra v. State of West Bengal , has held with reference to Section 237 of the Code of Criminal Procedure (1898) that where the accused is charged under Section 307 Penal Code he may be convicted under Section 326 even in the absence of the charge in respect of it if on the facts of the case he can be charged alternatively under Sections 307 and 326 of the Penal Code. The provision of Section 237 of the Code of Criminal Procedure (1898) appears to be analogous to the present provision of Section 221 of the Code of Criminal Procedure.
8. Section 221 of the Code of Criminal Procedure, 1973, provides that if a single act or series of acts is of such a nature that it is doubtful of which several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences, Sub-section (2) of Section 221 provides that if in such a case the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1) he may be convicted of the offence which he is shown to have committed, although he was not charged with it. The Supreme Court in the case, referred to above, considered such a provision and held that on the facts of the case the accused could have been charged alternatively for the offence punishable under Section 326 of the Code and, therefore, even in the absence of charge under Section 326 of the Code the accused can be convicted under Section 326 of the Penal Code although he was charged only with the offence punishable under Section 307 of the Code. In view of the decision of the Supreme Court the conviction of an accused under Section 326 of the Code cannot be held to be illegal or without jurisdiction where charge was framed under Section 307 of the Code but conviction was recorded under Section 326 of the Code. The cases cited by the learned Counsel for the petitioner do not lay down any law with reference to the provisions of Section 237 of the Code of Criminal Procedure (1898) analogous to the present Section 221 of the Code of Criminal Procedure.
9. In the present case, the petitioner was alleged to have caused grievous injury by pharsa but on trial it was found that the intention to cause murder was lacking when injury was caused as such the offence under Section 307 of the Code was found to be not proved but for the same injury it was found that the petitioner would be liable under Section 326 of the Code. Accordingly, the conviction was recorded against him under Section 326 of the Code. For the same injury the petitioner could have been charged in the alternative under Section 326 of the Code along with the charge under Section 307 of the Code. He could be convicted under Section 326 of the Code by virtue of the provisions contained in Sub-section (2) of Section 221 of the Code of Criminal Procedure although no separate charge was framed for the offence punishable under Section 326 of the Code. In these circumstances, the contention of the learned Counsel for the petitioner that the conviction and sentence of the petitioner under Section 326 of the Code is bad in law and without jurisdiction cannot be accepted.
10. The learned Counsel for the petitioner has next contended that the Courts below have not considered regarding extending the benefit of Section 360 of the Code of Criminal Procedure to the petitioner. It has been contended that under Section 361 of the Code of Criminal Procedure special reasons have to be recorded if benefit under Section 360 of the Code of Criminal Procedure is not given to a convicted accused.
11. The petitioner has been convicted under Section 326 of the Code for which the sentence provided is imprisonment for life or imprisonment for ten years and fine. The cases of accused persons, who are charged with an offence punishable with the sentence exceeding seven years is not covered by the provisions of Section 360 of the Code of Criminal Procedure. The provisions are clear. Section 360(1) provides that when any person not under 21 years of age is convicted of an offence punishable with fine or with imprisonment for a term of seven years or less he may be released on his entering into a bond after taking into consideration the age, character, or antecedents of the offender and to the circumstances in which the offence was committed. Thus, it is evident that benefit under Section 360 may be given to an accused who is convicted of an offence punishable with fine or with imprisonment for a term of seven years or less. It does not apply to cases of such accused who are punished for an offence which is punishable for imprisonment for more than seven years.
12. In the circumstances, there appears to be no illegality on the parts of the two Courts below in not extending the benefit of Section 360 of the Code of Criminal Procedure to the petitioner.
13. The conviction has been recorded on appraisal of evidence. There is concurrent findings of facts by two Courts below. The revisional Court cannot enter into re-appraisal of evidence like an Appellate Court. Hence, it is not possible for the revisional Court to take a different view on the findings of fact as the different view could be possible only after re-appraisal of evidence. In the circumstances, there is no ground to interfere with the findings of fact recorded by the two Courts below which has resulted in the conviction of the petitioner under Section 326 and 379 of the Code.
14. As regards sentence the petitioner has been sentenced to five years under Section 326 of the Code and to three months' rigorous imprisonment under Section 379 of the Code. The incident is of 1980. The injury appears to have been caused while taking away the Arhar crops forcibly. In the facts and circumstances of the case, the sentence of five years' rigorous imprisonment under Section 326 of the Code appears to be bit excessive. The ends of justice would meet if the said sentence is reduced to a period of three years rigorous imprisonment. Accordingly, the sentence of petitioner under Section 326 of the Code is reduced to a period of three years rigorous imprisonment. The sentence under Section 379 of the Code does not call for any interference. Both the sentences are to run concurrently. The petitioner is on bail. His bail bonds are cancelled. He shall surrender to serve out the sentence.
15. Subject to the modification in the-sentence, as stated above, the present Criminal Revision application is dismissed.