IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.546 of 2007 1.Selvam 2.Mani ... Petitioners/(Accused 1&2) vs. State, rep.by its Sub Inspector of Police, Gudiyattam Taluk Police Station, Vellore District ... Respondent/(Complainant) (Cr.No.310 of 2004) Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgment dated 29.1.2007 passed by the Additional District and Sessions Judge/Fast Track Court, Vellore, in C.A.No.147 of 2006 confirming the judgment dated 28.8.2006 passed by the Judicial Magistrate, Gudiyattam, in C.C.No.133 of 2004. For Petitioner : Mr.R.Karthikeyan For Respondent : Mr.A.Saravanan,G.A. ORDER Challenging and impugning the judgment dated 29.1.2007 passed by the Additional District and Sessions Judge/Fast Track Court, Vellore, in C.A.No.147 of 2006 confirming the judgment dated 28.8.2006 passed by the Judicial Magistrate, Gudiyattam, in C.C.No.133 of 2004, this criminal revision case is focussed. 2. A 'resume' of facts absolutely necessary and germane for the disposal of this criminal revision case would run thus: (a) The police laid the police report under Section 173 of Cr.P.C. as against the revision petitioners herein for the offence under Sections 326, 324, 323, 294 r/w.34 of IPC. Inasmuch as the accused pleaded not guilty, the trial was conducted. (b) During enquiry,on the prosecution side, P.Ws.1 to 10 were examined, Exs.P1 to P10 and M.O.1 were marked. On the accused's side, no oral or documentary evidence was adduced. (c) Ultimately, the Magistrate acquitted A3 and recorded the convictions and imposed the sentences as against A1 and A2 as under: https://hcservices.ecourts.gov.in/hcservices/ Case No. Offence Punishable C.C.No.133 of 2004 Sec.326 IPC – A1 One year rigorous imprisonment and fine of Rs.1000/-, in default, one month rigorous imporisonment Sec.294-B IPC-A1 and A2 Fine of Rs.500/-, in default, two weeks rigorous imprisonment Sec.323 IPC-A2 Fine of Rs.500/-, indefault, two weeks rigorous imprisonment. (d) Animadverting upon such convictions and sentences, the appeal in C.A.147 of 2006 was filed before the Additional District and Sessions Judge, Fast Track Court, Vellore, for nothing but to be dismissed by the appellate Court, confirming the judgment of the trial Court. (e) Being disconcerted and dissatisfied with the judgments of both the Courts below, this criminal revision case is focussed by A1 and A2 on various grounds, the pith and marrow of them would run thus: Even though no charge under Section 326 of IPC was framed by the Magistrate as against A1, the Magistrate recorded conviction under Section 326 IPC and imposed such severe punishment. The evidence of I.O. was quite unsatisfactory, even then, the Magistrate over looking the same, simply recorded the conviction under Section 326 IPC. The judgment of both the Courts below are not based on proper analysis of evidence. 3. Heard both sides. The learned counsel for the revision petitioners would make a supine submission that he is restricting his argument relating to the conviction of A1 under Section 326 IPC. 4. At the out set itself I would like to point out that a perusal of the records would reveal that the Magistrate has not framed any specific charge as against A1 under Section 326 IPC. In fact, the charge framed by the Magistrate would run thus:- A1 and A2 were charged under Section 294-B IPC and the very same A1 and A2 were also charged for the offence under Section 324 of IPC, in connection with they having attacked with stone the injured, namely, Dhanabal and A3 was charged with the offence under Section 326 of IPC on the ground that he, with stone, pierced the right eye of Dhanabal and caused deprivation of his eye sight. Ultimately, A3 was acquitted and the fact also remains that in the https://hcservices.ecourts.gov.in/hcservices/ FIR, there was no reference to A3 at all. However, in the FIR there is reference to A1 having attacked Dhanabal with a stone on his right eye and deprived him of his eye sight. Curiously, P.W.10- the I.O. while recording the depositions of witnesses, observed that it was A3, who attacked the injured Dhanabal with stone and deprived him of his right eye sight. As such, there is glaring incoherence in this case. 5. It is a trite proposition of law that an accused is entitled to arrange his defence in such a manner, so as to torpedo the charge, if at all there is a charge leveled against him. 6. At this juncture, my mind is reminiscent and redolent of Section 464 of Cr.P.C., which would highlight that no finding or sentence ordered by the Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed. However, the same Section contemplates that if in the opinion of the Court, a failure of justice resulted due to such non framing of charge, certainly that benefit should be accorded to the accused. 7. The pertinent question arises as to whether such non- framing of charge under Section 326 of IPC as against A1, resulted in failure of justice. 8. My discussion supra would reveal that in the FIR there is one version as though A1 caused such grievous injuries on Dhanabal by using a stone. Whereas, in the 161 statements there were no whisper at all by any one of the witnesses, including Dhanabal, and to that effect the I.O. himself spoke before the Court. As such, certainly, non-framing of charge by the Magistrate under Section 326 of IPC as against A1, can rightly be understood and inferred that it resulted in failure of justice. Hence, I would like to acquit A1 under Section 326 of IPC, after setting aside that much portion of the judgment of the lower Court as well as the appellate Court, which failed to consider the salient features by applying the correct provisions of law and both the Courts below were perverse in arriving at their conclusion on this aspect. 9. The learned Government Advocate would implore and entreat that this Court has got ample power to remit the matter back to the Magistrate, so as to frame afresh a charge even under Section 326 of IPC, by invoking Section 216 of Cr.P.C. 10. I would like to disagree with that view expressed by the Government Advocate for the reason that it is not a mere mistake the Magistrate committed, but there is inherent defect in the prosecution case itself as none of the 161 statements of the witnesses point towards the guilt of the accused under Section 326 of IPC and in such a case, it would be travesty of justice if the matter is remitted back to the Magistrate to frame a charge afresh under Section 326 of IPC as against A1 . 11. However justice warrants the matter to be remitted back to the Magistrate only in respect of A1's alleged perpetration of https://hcservices.ecourts.gov.in/hcservices/ offence under Section 324 of IPC. In fact, charge was framed as against A1 for the offence under Section 324 of IPC not relating to the alleged act of he having caused deprivation of eye sight of the injured Dhanapal, but on the ground that he allegedly attacked Dhanabal with stone on his hand. But the Magistrate conveniently failed to adhere to those facts and arrive at a conclusion. In fact, A1 was charged under Section 324 of IPC, but he was neither acquitted nor convicted and there is no sufficient discussion also on this score. As such, there is non application of mind on the part of the Courts below relating to the charge framed under Section 324 of IPC as against A1 and to that limited extent alone, the matter is remitted back to the Magistrate for considering afresh the available evidence and arrive at a conclusion, after hearing both sides, as per law. 12. Regarding the revision filed by A2, the same is dismissed, as I could see no perversity in convicting and sentencing him. 13. In the result, the criminal revision case is partly allowed. Msk Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Additional District and Sessions Judge/ Fast Track Court, Vellore 2. -do- Through the Principal Sessions Judge, Vellore 3.The Judicial Magistrate, Gudiyattam. 4.-do-through the Chief Judicial Magistrate Vellore. 5. The Public Prosecutor, High Court. 6. The Sub Inspector of Police Guaiyattam Taluk Polices Station. Copy to: TheSection officer Criminal SEction High Court MaDRAS. + 1 cc to Mr. R. Karthikeyan, Advocate CC SR.33817. Crl.R.C.No.546 of 2007 mbs(co) EU 31.8.2009. https://hcservices.ecourts.gov.in/hcservices/