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IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Cr. Rev No. 77 of 2010
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Ramdeo Kumar @ Ramdeo Kumar Ram @ Ramdeo Ram ... Petitioner
-V e r s u s-
1. The State of Jharkhand.
2. Punit Ram ... Opposite Parties.
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mr. Yogesh Modi, Advocate.
For the State : - A.P.P.
For the Opposite Party No. 2 : - Mr. C. S. Prasad, Advocate.
...
4/03.05.2010
Heard the learned counsel for the parties.
2. This Cr. Revision application has been filed with a prayer for directing
the trial court to frame charge under Sections 302/34 of the I.P.C. against the
Opposite Party No. 2 and to try the opposite party No. 2 accordingly.
3. Learned counsel for the petitioner would explain that under Sections
307 and 302/34 of the Indian Penal Code, vide Sessions Trial No. 368 of 2002,
arising out of Jamua P.S. Case No. 29 of 2002 corresponding to G.R. Case No. 255
of 2004, the trial was conducted against several accused persons including the
Opposite Party No. 2 but due to inadvertence, the charge under Sections 307 and
302/34 of the I.P.C. was omitted in respect of the Opposite Party No. 2 and
consequently, while recording the judgment, the trial court could not convict the
accused/Opposite Party No. 2 for the offences under Sections 302/34 of the I.P.C.
Even though, the trial court has found that the death of the deceased was caused
pursuant to the assault, conjointly made by the accused persons including the
Opposite Party No. 2 in furtherance of their common intention to kill the deceased.
Learned counsel therefore prays that under the provisions of
Section 464 of the Cr.P.C., the trial court be directed to try the case against the
Opposite Party No. 2 by framing charge for the offences under Sections 302/34 of
the I.P.C. against him.
4. Learned counsel for the Opposite Party No. 2 objects to the very
maintainability of this Revision application and submits that the charge against the
accused persons at the trail, was framed around eight years ago and the judgment in
the case was passed in July, 2009 and during this period, prior to the date of
pronouncement of the judgment, the petitioner, being the informant of the case, did
not bother to point out any need for modification or alteration in the charge and
neither did the trial court find any such necessity during the pendency of the trial to
alter the charge before passing the judgment.
5. I have heard the learned counsel for the parties and I have also gone
through the impugned judgment of the court below passed in the aforesaid Sessions
Trial No. 368 of 2002.
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6. It appears that the case was instituted against as many as six accused
persons including the Opposite Party No. 2 and on the basis of the chargesheet
submitted by the Investigating Officer, cognizance against all the accused persons
including the Opposite Party No. 2 by the court below was taken for the offences
under Sections 341, 323, 324, 307 and 302/34 of the Indian Penal Code.
It also appears that according to the prosecution’s case, on the
date and time of occurrence, while the members of the informant party were on their
way, the accused persons accosted them armed with Lathis, sticks, swords and spears
and started assaulting the members of the informant-party including the injured
persons Bishun Ram, Guletan Ram and Tahal Ram. On hearing the alarms, the
informant Ramdeo Ram came running and wanted to rescue the victims but he was
assaulted with Lathi on his leg by the accused Talo Ram and Punit Ram (Opposite
Party No. 2). They also assaulted Tahal Ram with Lathis. At that time, the co-
accused, Pokhan Ram dealt a spear blow on the abdomen of Gultem Ram (deceased).
Similar spear blow was also dealt by the co-accused Ghanshyam Ram on another
member of the informant-party, namely, Bishun Ram, as a result of which, he also
sustained injuries on his right thigh and left ankle.
The prosecution’s further case is that besides the informant,
Ramdeo Ram, the other persons, namely, Ishwar Ram, Binod Ram and Bhuneshwar
Ram had also arrived there and they were the eye-witnesses to the occurrence. On
the basis of the proposed evidences against the individual accused persons, the
prosecution had proposed the framing of charge against the accused persons, namely,
Narayan Ram, Niranjan Ram, Jiya Ram for the offences under Sections 341, 323,
324/34, 307, 302/34 of the I.P.C. Against the accused persons, namely, Ghanshyam
Ram and Talo Ram, the prosecution had proposed framing of charge for the offences
under Sections 341, 323, 324/34 307/34, 302/34 of the I.P.C. and against the accused
Punit Ram (Opposite Party No. 2) the prosecution had proposed to frame charge
under Sections 341, 323, 324/34 of the I.P.C. The proposed charges on being
approved by the trial court, the accused persons stood charged accordingly. It also
appears from the evidences of the witnesses, as discussed in the judgment of the
court below, that in consonance with the charges against the individual accused
persons, the witnesses have adduced evidence specifying the role played by each of
the accused persons. The evidence of the witnesses, as observed by the trial court, in
respect of the injury caused to the deceased, was specifically attributed to the
accused Pokhan Ram. Specific evidence was similarly attributed to the co-accused
Ghanshyam Ram for causing spear injury to the informant. As against the accused
Punit Ram (Opposite Party No. 2), the specific evidence was that he had assaulted
the informant with Lathi on the victim’s leg. It further appears that after considering
the evidences, including the oral and medical evidences, the trial court had come to
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its finding, on the point of common intention which has been recorded as follows: –
“It is evident on the record that almost all the accused
persons, they had assembled and they have started assaulting the
injured as stated above at a time. It is a clear case that accused
persons had made a plan to make assault to injured and they were of
the view that they had to assault the injured in furtherance of common
intention.”
The trial court has further made the following observations: –
“The injuries which were inflicted by the accused persons on
deceased also suggest that these injuries are sufficient to cause death
of Guletan Ram. Keeping in the view accused persons had a common
intention to kill Guletan Ram. Since one accused Punit Ram is not
facing the trial for the charge punishable under Section 302 I.P.C. or
302/34 I.P.C. that’s why, he could not be convicted for the charge
punishable under Section 302/34 I.P.C. for the reason that non-
framing of the charge under Section 302 I.P.C., he will be prejudiced,
if he will be convicted.”
… … … … …”It is well-settled law that accused should be given
notice to him for the accusation for which he is going to be tried. The
offence under Section 302 of the I.P.C. is a capital offence. It was the
primary duty that the prosecution should either alter the charge or
take notice in this context. Since no charge is framed against him
under Section 302 I.P.C. that’s why it is not just and proper to convict
him for the charge punishable under Section 302/34 of the I.P.C and if
he is convicted for the charge under Section 302/34 of the I.P.C., he
will be prejudiced by non-framing of the charge for that benefit will be
given in favour of the accused.”
7. Apparently, on the point of common intention, the finding is that the
intention commonly shared between the accused was to assault and cause injury to
the members of the informant-party. Even if the trial court has proceeded further, on
the basis of the fact that a spear-blow on the abdomen of the deceased was given by
one of the accused persons, to draw the inference that the common accused intention
of the accused persons was to kill the deceased, yet, the earlier observations based on
the evidences of the witnesses do confirm that the accused Punit Ram (Opposite
Party no. 2), was not the author of the spear injury, sustained by the deceased.
8. The above facts, as appearing in the judgment of the court below have
been recorded only for the purpose of assessing as to whether the omission to frame
charge under Section 302/34 of the I.P.C. against the Opposite party No. 2, could be
intentional or was an inadvertent omission and whether the non-framing of the
charge for the aforesaid offence has resulted in failure of justice, as contemplated
under the provisions of Section 464 of the Code of Criminal Procedure.
9. As appearing from the allegations in the prosecution’s case, though it
is alleged that the accused persons variously armed with Lathis and other weapons,
had arrived at the place of occurrence and began to assault the informant, the specific
allegations against the accused Punit Ram (Opposite Party No. 2), was that he had
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assaulted the informant with Lathi, causing injury on the informant’s leg. No other
role has been attributed to him of having participated in the alleged assault on the
deceased. In the light of such allegations, it does not appear that the omission to
frame charge against the accused Punit Ram (Opposite Party no. 2) for the offence
under Sections 302/34 of the I.P.C. was an inadvertent mistake. Rather, the charge
appears to have been framed on the basis of the allegations against the individual
accused and the trial was conducted, accordingly, against the accused persons. As
observed, even in the light of the evidences adduced by the Prosecution witnesses,
neither the Prosecution nor the trial court had felt any need to alter the charge or to
add the charge for the offence under Sections 302/34 of the I.P.C. against the
accused Punit Ram (Opposite Party No. 2). From the facts and circumstances, I do
not find that the omission of the charge for the offence under Sections 302/34 of the
I.P.C. framed against the accused Punit Ram/Opposite Party No. 2, has resulted in
failure of justice. Therefore, there is no sufficient ground to invoke the provisions of
Section 464 of the Code of Criminal Procedure.
10. In the light of the above facts and circumstances, I do not find any
merit in this application. Accordingly, this Cr. Rev. Application is dismissed.
(D.G.R. Patnaik, J.)
APK