IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 15TH DAY OF OCTOBER 2010/23RD ASWINA 1932 CRL.A.No. 816 of 2009 (Y) ----------------------------------- AGAINST THE JUDGMENT IN SC.366/2008 of ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM DATED 24-02-2009 APPELLANT(S)/APPELLANT/ACCUSED.: ---------------------------------------------------- SHOUKKATH, S/O.ASSAINAR, C.NO.7359, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. SRI.BIJU MARTIN (STATE BRIEF) RESPONDENT(S): ---------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI. M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-10-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ----------------------------- Crl.Appeal.No.816 OF 2009 ----------------------------------------- Dated 15th October, 2010 J U D G M E N T The appellant was convicted for offences under section 452, 323, 324, 326 read with 34 Indian Penal Code ('IPC' for short). He was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for three months for offence under section 326 IPC. He was also sentenced to undergo Rigorous imprisonment for two years and a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for two months for offence under section 452 IPC and simple imprisonment for three months for offence under section 324 IPC. Simple imprisonment for one month for offence under section 323 IPC was imposed against appellant. Sentence is ordered to run concurrently. The fine amount, if recovered is ordered to be paid as compensation to PWs. 2,3,4 and 5 equally. Set off was granted.” The above conviction and sentence are challenged in this appeal. Crl.A. No.816/09 2 2. The offences alleged against accused in crime no.334/04 are under sections 452, 323, 324, 326, 308 and 34 IPC and Section 20 read with Section 27 of Arms Act. Prosecution case is narrated by learned Additional Sessions Judge in the judgment in paragraph 2 is as follows: “The prosecution case is that on 3.12.2004 at 3 pm due to the previous enmity of the accused with CW1, accused in furtherance of their common intention trespassed upon house No.45/678 of Cochin Corporation in Chalikkavattom kara of Edappally South village with intention to cause hurt. CW1 was living in this house with family. Second accused beat CW2 on his forehead with an iron rod. First accused hit CW1 on his abdomen using the handle of a sword and caused a cut injury on the head of CW1 with the same sword, it caused the loss of two teeth and when other family members interfered, accused kicked and fisted them causing bodily injuries. The accused now stands trial in the fourth accused.” 3. Prosecution examined PW1 to 12 and marked Exts.P1 to P12(a) and MO1 and MO2 on its side. Accused did not adduce any evidence. He only stated that he has wife and child. On analysis of evidence the court found that appellant committed offences under section 452, 323, 324, 326 and 34 IPC, holding that liability is sought to be fasten under section 34 IPC. When a criminal act is done by several persons in furtherance of common Crl.A. No.816/09 3 intention of all, each of such person is liable as if it is done by him alone. The court also found that there is no other evidence to presume that accused had knowledge of the use of prohibited arms by other accused. Then accused will be liable only under section 27 of Arms Act, it is held. There is no sufficient evidence to presume common intention of use of prohibited arms, it is further held. 4. Appellant is undefended. He filed an appeal and it was registered as jail appeal. Adv.Biju Martin was appointed as State Brief. Heard both sides. Perused records. Learned counsel for the accused argued that none of the witnesses specifically identified the accused while examined in court. 5. It is pointed out by learned defence counsel that according to PW3, appellant was seen while he was in the witness box. That means, he had not seen him on the date of occurrence. It is also submitted that as per the address memo in Ext.P11, petitioner is included as 4th accused. But a per para 2 of the judgment, second accused beat CW2 (PW3) on his forehead with an iron rod and petitioner is shown as second accused during trial. But the second accused referred to in Ext.P11 is totally different person by name Raju. Petitioner is Shoukath. Crl.A. No.816/09 4 6. It is argued that there is some discrepancy in the evidence. The date of occurrence is stated to be 1.12.2007 as per evidence of PW2, but as per First Information Report the date of occurrence is 3.12.2007. In the questioning under section 313 Cr.P.C. also, the court referred to the date of occurrence as 1.12.2007. The evidence of PW4 and PW5 regarding the loss of teeth is also contrary,it is submitted. PW5 mother stated that PW2, her son lost two teeth whereas PW4, who is also the son of PW5, stated that it was PW3 who lost his teeth. 7. Learned counsel for petitioner submitted that statement given by PW11 that he went to the hospital and recorded statement of PW2, based on which crime was registered cannot be believed, in the light of other evidence. It is pointed out that in the cross examination PW11 gave evidence that PW4 was in ICU, whereas PW4 stated that PW3 was admitted in ICU. As per evidence of PW9, the doctor also, it was PW3 who was in ICU. 8. Therefore, the evidence of PW11 that he recorded the statement of injured from the hospital cannot be believed, it is argued. He had gone to the hospital on knowing that PW3 was in ICU and there is no evidence to show that PW3 was beaten with iron rod by accused. He only stated that a dark person had Crl.A. No.816/09 5 beaten him. In the above circumstances, the accused is entitled for an acquittal, it is submitted. 9. Learned public prosecutor argued that there is ample evidence against accused in this case to connect the accused with the crime. There is only a mistake in the rank of the accused referred to in the judgment and in the evidence. But PW3 gave evidence that appellant had beaten PW3 with an iron rod. PW4 also stated that accused had beaten him with an iron rod. PW2 also stated that appellant has assaulted his mother and also him. PW5 categorically stated that the person who assaulted him was standing in the dock. 10. In th FIR statement given by PW1, it was specifically stated that a dark person had beaten him with an iron rod. The only thing is, except the name of first accused, the names of other accused were not mentioned. Therefore, this is not a case where there is no evidence against appellant and on the basis of such argument, accused cannot be acquitted of the offences alleged against him, it is submitted. 11. On hearing both sides and on going through the records in this case, I am unable to find out what offence accused had committed. It is not clear from records in this case, Crl.A. No.816/09 6 what are the overt acts committed by accused and for what overtact he has to be convicted. Prosecution case is referred to in paragraph 2 of the judgment and it is already quoted in this judgment. Reference is made in paragraph 2 that accused No.1 and 2 committed certain overtacts. It is clear from arguments advanced by both sides that they were no able to pin-point whether the appellant was second accused or not. 12. Learned defence counsel had taken a lot of strain to convince this court that appellant was the second accused. According to the learned Sessions Judge, in the evidence of PW3, he only stated that a dark person had beaten him with an iron rod on the presumption that appellant herein was referred to by the trial court is the second accused. Learned public prosecutor also had drawn my attention to evidence given by PW2 to 5 regarding the allegation made against appellant that he has beaten PW3 and PW4 with iron rod. 13. On going through the records it is not clear to me whether the appellant is the second accused or not or what was the overtact for which he was tried by the court. It appears that it was not clear to the trial court itself as to what was the overtact committed by appellant and who was the injured who sustained Crl.A. No.816/09 7 injuries at his arms. 14. There are only general questions raised by the courts below whether accused have caused bodily hurt, grievous hurt on the members of family of PW3 etc. The conclusion made by trial court also reveals that trial court was not in a position to enter a finding as to what are the overact committed by each of the accused or even appellant, accused who was tried by him. Paragraph 15 of the impugned judgment reads thus : “Prosecution has no case that this accused was holding any weapons. The liability is sought to be fastened with the aid of section 34 IPC. When a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable as if it is done by him alone. But the prosecution has to prove that the accused came with the intention of illegally using the arms. There is no other evidence to presume that accused had knowledge of the use of prohibited arms by other accused. Then only accused will be liable under section 27 of the Arms Act. Therefore I hold that there is no sufficient evidence to presume common intention with regard to the use of prohibited arms.” 15. Paragraph 13 makes it crystal clear that the court was only referring to the attack made on the various witnesses, but not with reference to the accused who had committed it. For example, it is stated that PW3 was attacked with sword. He Crl.A. No.816/09 8 sustained cut injuries, lost two teeth; PW2 was also beaten with iron rod; accused four in number, including appellant came to the house holding sword and iron rod. But, there is absolutely nothing in the judgment to show as to who was holding iron rod, who was holding sword and who was attacking each of the witnesses or what is exactly the overtact committed by accused. Even though PW3 and 4 stated that they were beaten by appellant with an iron rod, the court below has not considered whether such allegation is true or not. 16. The court has committed grievous error in framing charge. The relevant portion from court charge is extracted hereunder (Charge is framed in Malayalam and hence translation in English is extracted): “On 03.12.2004 at about 3 pm pursuant to the enmity which accused had, towards CW1 and that with intention to assault him, the accused criminally trespassed into the hall situated in front of house no.45/678, Cochin Corporation in Chalikkavattom Kara, Edappally South Village, where PW1 is residing with family and second accused beat CW2 (PW3) with iron rod, which he was carrying and inflicted injuries. First accused hit him with handle of the sword knowing that such act will result in death and cut injuries on his head with a sword and inflicted injury, he also hit him and thereby he lost two teeth on the lower jaw and when the family members of CW1 attempted to interfere, the accused kicked, beat Crl.A. No.816/09 9 and hit and inflicted injuries and thereby they were acting in furtherance of common intention as revealed from the records and on preliminary hearing. The acts committed by you (referring to the first and second accused) constitute offence under section 452, 323, 324, 326, 308 r/w 34 IPC and section 20 read with section 27 of Arms Act and it is directed you will be tried for the said offence.” 17. A reading of the charge shows that charge was framed against appellant, who is the single accused, but reference is made that accused No.1 and 2 each committed certain overtacts against CW1 and 2 and both of them kicked, beat and fisted CW1's family members. There is absolutely nothing in the court charge to show whether the appellant is the first or second accused. Therefore, charge is silent about what is the overtact committed by appellant against any of the witnesses in this case. In short, the charge framed against appellant will not reveal that appellant committed any overtact against any of the witnesses in this case. There can be no doubt that based on such a defective charge the accused cannot be proceeded against or be convicted for any of the offences alleged in the charge. 18. It is quite evident that both defence counsel and Public Prosecutor were finding it difficult to argue the case, with respect Crl.A. No.816/09 10 to the alleged overtact committed by accused. It was also difficult to explain how appellant was referred to by rank. An argument is developed by learned defence counsel, as if the appellant is the second accused who had used the iron rod, as per the prosecution case. Both sides were in utter confusion so also is this court. 19. The trial court framed a charge in the most shabby manner. The court has not entered a finding regarding the specific overtact committed by each of the accused after analysis of the evidence of eye witnesses and the injured. General statements are made, by not even mentioning who exactly assaulted each of the witnesses. But appellant is convicted for certain offences. It is also relevant to mention that though several offences are alleged against appellant, the court has convicted him only for certain offences. But it is not stated in the judgment that he was acquitted for the rest of the offences for which he was standing trial. 20. Section 354 of Cr.P.C lays down that in every judgment, if an accused is acquitted, it shall state the offence of which the accused is acquitted and direct that he is set at liberty. So in cases where the accused is tried and convicted for certain Crl.A. No.816/09 11 offences and acquitted for other offences only out of the offences for which he was tried, the court shall state that accused is acquitted for the other offences specifying the offences as required under section 354 Cr.P.C. It cannot be said that this is a case where there is only an omission or error in framing charge. 21. If it is only an error as per Section 215 of Cr.P.C, no error in stating either the offence or the particulars stated in the charge and no omission to state the offence or those particulars shall be reckoned at any stage of the case as material, unless the accused was in fact misled by such omission or error and it has occasioned a failure of justice. Section 464 also lays down that no finding 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 occasioned. 22. On the facts and circumstances of this case, I cannot find the infirmity, error or irregularity as a mere omission or error or irregularity. Section 211 Cr.P.C lays down that charge must contain time and place of alleged offence and person (if any) Crl.A. No.816/09 12 against whom all things (if any), in respect of which, it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. This provision is brought into statute on the basis of a constitutional right of citizen for a fair trial. Fair trial includes fair and proper opportunities allowed by law to know the allegations against a particular accused and also an opportunity to defend himself without being misled by infirmity or omission or irregularity in the charge. 23. Rules and procedures are designed to ensure justice and those shall be followed and if the courts find there is denial of fair trial to accused there is violation of constitutional provision and hence conviction cannot be sustained. This is a case where the court has framed the charge in such a fashion that accused was not in a position to know what he had committed and a close reading of the charge framed by the court would show that no allegations were made against him in the charge. But the allegations were made against first and second accused. The appellant is not referred as first or second accused in the charge. 24. The court was also in a confusion. This fact is revealed from the manner in which charge is framed and evidence is discussed and conclusion arrived at. The court was not able to Crl.A. No.816/09 13 find out what are the allegations made against appellant and for what offence he was called upon to face the trial. At least in the context of raising point for consideration, the court ought to have realised his mistake committed by him and made necessary amendment to the charge by clarifying the details. But the court does not have done anything to amend the charge even while considering the arguments and coming to a conclusion that accused was guilty. 25. As pointed out by me earlier, even prosecution and defence was finding it difficult to find out from the materials available in court as to what exactly were the allegations made against appellant and what can be the overtact committed by him for which he could be convicted. A look at the charge sheet laid by the police will reveal that there are four accused in the case. Charge sheet was laid against four persons and certain overtacts are alleged against each of the accused. Major overtacts are alleged against accused 1 and 2 and not the appellant. 26. The court has not specified in the charge, or made it clear in the charge what exactly was the overtact committed by him for which he is liable to be punished. His defence has been materially affected. I am surprised at the manner in which charge Crl.A. No.816/09 14 is framed and trial proceeded. As an appellate court, I am also at a loss to reappreciate the evidence and find out what is the overtact committed by accused. I am satisfied this is a case where accused is denied fair trial by denying him opportunity to know, for what allegations he was tried. 27. The accused was necessarily prejudiced and even defending this appeal itself is a difficult task. Accused is in custody as an under trial prisoner and also till now. The judgment pronounced on 24th February, 2009 and now more than one year elapsed, since passing of the judgment. The independent overtact allegedly committed by petitioner appears to be only under section 323 of IPC. As per the charge sheet laid by the police, it appears that he was not armed with any weapons; he had not used any weapons for the commission of offence and the overtact committed individually by him will constitute offence under section 323 IPC prima facie. But the accused is in custody for more than one year. 28. There is no justification in directing the petitioner to undergo a denovo trial after amendment of charge. If such an order is passed, it will result in gross miscarriage of justice. For the fault of the court no person shall suffer. An error committed Crl.A. No.816/09 15 by the court cannot be treated as a mere error in framing charge, which can be corrected by remand and retrial. Code of Criminal Procedure, like all procedural laws, is designed to save the ends of justice and not to frustrate them. The object of the court is to ensure fair trial along with certain well established and well understood laws that accord with our laws and natural justice. If the accused is told and he fairly understand the nature of offence for which he is being tried and if the case against him is fully and fairly explained to him and he is afforded a fully and fair opportunity for defending himself then there is substantial compliance of the outward form of law and mere mistakes in procedure or in consequential error and omission may not be vital and the trial may not be vitiated. 29. But in cases in which there is flagrant violation of certain provisions by which accused is denied fair trial and an opportunity to know what exactly are the allegations made against him and for what act committed by him, he is tried, there is denial of fair trial to him. Such denial of fair trial is fatal and it is not an irregularity which can be cured (AIR 1956 SC 116). In the above circumstances, I find that the conviction and sentence passed against appellant are unsustainable and those are liable to Crl.A. No.816/09 16 be set aside. In the result, the following order is passed: (i) The conviction and sentence passed against appellant under sections 452, 323, 324, 326 and 34 IPC are set aside. (ii) The appellant is found not guilty of offences under section 452, 323, 324, 326, 308 and 34 IPC and Section 20 read with Section 27 of Arms Act and he is acquitted of the said offences. (iii) The appellant is set at liberty forthwith. (iv) The appellant shall be released from prison forthwith, if he is not wanted in any other case and Registry shall issue release order forthwith. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //