1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CRIMINAL APPEAL No.227/1986. : : Hoormat & Ors. Vs. State of Rajasthan. Date of Order : : 26th August, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Suresh Dhenwal for the appellant. Mr.B.S.Chhaba, P.P. for the State. Reportable This appeal has been preferred by four accused- appellants against the judgment dated 6.5.1986 passed by the learned Additional Sessions Judge, Kishangarhbas, District Alwar whereby they were convicted for offence under Section 307 IPC with sentence to undergo rigorous imprisonment of 4 years and a fine of Rs.200/- with the stipulation that in default of payment of fine, they shall to further undergo rigorous imprisonment of one month and further convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment of 3 months and also convicted for offence under Section 324/149 IPC and sentence to undergo rigorous imprisonment of 6 months. 2 Additionally, accused-appellants Moju, Sameer and Shakeen were convicted for offence under Section 147 IPC with sentence of rigorous imprisonment of six months and accused Hurmat has convicted for offence under Section 148 IPC with sentence of rigorous imprisonment of one year. A first information report was lodged with Police Station, Kishangarhbas by one Bambu on 28.12.1983 alleging therein that at 5.00 pm on that day accused Jumma, Hurmat, Sameer, Moju, Sakeen all Mev caste and resident of Dogra, subjected his brother Bundu to mercilessly beaten. Jumma was armed with 'farsi' and Hurmat had 'chatiya' whereas Sameer and Sakeen were armed with 'lathies'. He stated that his brother was going to Manpur in his camel cart, who heard his hue and cry from a distance, he came rushing to the site. Ambu S/o Chawala also witnessed the incident who was working at the nearby field. The informant took his brother to the house and got him first aid and then took him to hospital on tractor. The prosecution on completion of the trial filed challan against the appellants for offence under Section 147, 148, 307, 323, 325/149 and 324/149 IPC. Prosecution 3 examined as many as 11 witnesses in support of his case. During the pendency of the trial co-accused Jumma expired and the matter against him stood abated. The trial Court finally convicted the appellants and sentenced them as indicated herienabove. Shri Suresh Dhenwal, learned counsel for the appellants has argued that substantive charge for offence under Section 307 IPC was framed separately against each of the accused whereas according to the injury report, there was only one injury sustained by the injured which was grievous in nature. It was argued that the allegation of causing this injury was against the co-accused Jumma, who was stated to be armed with 'farsi'. Injuries Nos.2 to 6 were all found to be simple. It was argued that Jumma has already expired because he was murdered by the complaint party. PW.4 Bambu has admitted in his cross-examination that he was an accused in the murder trial of Jumma. He said that injured Bundu was also an accused in that trial and allegation against both of them was about committing murder of Jumma. Learned counsel further argued that nature of injuries suffered by injured Bundu could be caused by his fall on the stones. While referring to the statement of PW.2 4 Rehmat, the learned counsel argued that he stated that injured Bundu was sitting on the top of camel cart which was full of fodder and the accused-appellants possibly brought him down and in this process, he fell on the stones. It was argued that PW.9 Medical Officer Dr.Om Prakash Gupta has clearly stated that such injuries could have been caused by fall of the injured from the hight of about 8 ft. Learned counsel argued that there was contradiction in statements of Jumma and PW.2 Rehmat on this aspect co-accused Jumma has on the contrary stated that there were no stones on the ground where the incident took place. It was argued that when no charge for offence under Section 307 read with Section 147 IPC has been framed against the appellants, with the only injury being opined to be dangerous to life, which was attributed to deceased by the co-accused Jumma, who has died, the appellants could not be convicted just because for other injuries for offence under Section 325/149 and 324/149 IPC were against them. The learned trial Court has not correctly applied the law on this aspect of the matter. Learned counsel alternatively submitted that accused Moju was about 70 years of age at the time of conviction and similarly other accused have also grown old enough. At this stage, it will be too harsh if they are sent back to undergo 5 sentence. It was, therefore, prayed that while setting aside the conviction under Section 307 IPC, this Court should grant them benefit of probation for the other offences under Sections 325/149 and 324/149 IPC. Shri B.S.Chhaba, learned Public Prosecutor opposed the appeal and submitted that the evidence against the accused-appellants clearly proved their involvement in the crime and they have rightly been convicted for offence under Section 307 IPC along with other offences. It was argued that when charge under Section 325/149 IPC was framed, no prejudice was caused to the accused-appellants. They were convicted under Section 307 IPC because substantive charge for that offence was framed against them. When all accused were members of unlawful assembly, each of them would be equally reasonable for the act of one another. The accused-appellants have not been in any manner prejudiced on account of non-framing the charge under Section 307/149 IPC because charge of Section 149 IPC with one of the offences under Section 325, would be sufficient for other offence under Section 307 because it was one of the same type. Learned Public Prosecutor submitted that the trial Court has considered the evidence in true 6 prospective and has rightly convicted the accused-appellants for offences indicated above. It was argued that in view of nature of offences the accused-appellants were not entitled to benefit of probation. I have given my thoughtful consideration to the rival submissions, perused the impugned judgment and also other material available on record. A perusal of the record would reveal that the trial Court separately and individually framed charges under Sections 147, 148, 307, 323, 325/149 and 324/149 IPC against each of the accused-appellants and also the co- accused Jumma. The evidence indicated that the injury No.1, which was attributed to co-acused Jumma was found to be grievous and sufficient in the ordinary course of nature to have cause the death of the injured. It is proved from the statements of PW.6 Bundu, the injured himself apart from PW.3 Ambu and PW.2 Rehmat, the two other eye-witnesses that this injury on the head of the injured Bundu was caused by accused Jumma. It was alleged that Jumma was armed with 'lathi'. In my considered view, however, the learned trial Court could not convict all the five accused for the offence 7 under Section 307 IPC simplicitor as no charge against them for offence under Section 307/149 was framed. The charges that were framed against the accused-appellants were separately under Sections 325/149 and 324/149 IPC. That charge could be taken only for unlawful assembly for offence under Section 324 and 325 IPC. The trial Court could at the most convict the accused of charges framed under Section 324/149 and 325/149 IPC. But framing of these charges would not suffice the conviction under Section 307 IPC simplicitor on the analogy that because they knew thereby that they were member for the unlawful assembly in the same incident in which the aforesaid grievous injury was caused to the injured Bundu. Charge for offence under Sections 324/149 and 325/149 IPC is certainly a charge of lessor gravity as compared to charge of Section 307 IPC simplicitor. Moreover, when only one injury has been found to be sufficient in the ordinary course of nature to cause death of injured Bundu and when on evidence that injury was attributted to co-accused Jumma alone, conviction for offence under Section 307 IPC simplicitor would be recorded or co-accused Jumma alone and other accused count not be convicted for that offence simplicitor. The learned trial Court was not justified in convicting the accused-appellants for 8 offence under Section 307 simplicitor on the analogy that since they knew that they were member of unlawful assembly for offences for which they were charged under Sections 325/149 and 324/149 IPC. Requirement of framing necessary charge in accordance with provision of Section 220 of the Code of Criminal Procedure is a mandatory requirement and it cannot be treated as complied with by presumption. The trial Court, in my view was not justified in assuming that charges since charges under Sections 324/149 and 325/149 IPC were framed, the appellants could also be convicted for offence under Section 307 IPC simplicitor while at the same time convicting the main accused Jumma also to whom the grievous injury was attributed under Section 307 IPC simplicitor. The Supreme Court in Sukhram Vs. State of Maharashtra (2007 (7) SCC 502) was dealing a case in which charge for offence under Section 302 was framed against accused No.1 whereas no such charge against accused No.2 was framed even with the aid of Section 34 IPC. The only charge framed against accused No.2 was for an offence 9 punishable under Section 201 read with Section 34 IPC but he was eventually convicted for offence under Section 304-B and 498-A IPC. It was held by the Supreme Court that though Section 222 of Code of Criminal Procedure clothes the court with the power to convict a person of an offence which is minor in comparison to the one for which he is charged and tried, but by no stretch of imagination, offences under Sections 304-B and 498-A IPC, under which appellant accused No.2 was convicted by the trial Court, could be said to be minor offences in relation to the one under Section 201 IPC for which he was charged. It was held that though the offences are distinct and belong to different categories ingredients of the offences under the said sections are vastly different. Therefore, Section 222 Cr.P.C. has no application on facts in hand. Section 222 (1) of the Code of Criminal Procedure provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Section 222 (2) Cr.P.C. Further provides that when a person is charged with an offence and facts are proved which reduce it to a minor 10 offence, he may be convicted of the minor offence, although he is not charged with it. Consideration of the aforesaid provision would make it clear that while accused is charged with an offence of higher degree providing for greater sentence may be convicted for an offence of lessor degree with lessor sentence. On the same analogy, however, if the accused-appellants were not charged with the offence of Section 307 IPC simplicitor, they could not be convicted such offence if the offence was proved against each of them individually. In the present case, the offence under Section 307 IPC is proved only against Jumma, who has already expired, the appellants could be convicted along with him only with the aid of Section 149 IPC, whereas no such charge was framed against them for offence under Section 307/149 IPC. When comparison of the minor offence with major offence is made in such a situation, the charge under Section 324/149 IPC and 325/149 IPC though minor as compared to Section 307 IPC but on that analogy, the said charge under Section 149 cannot be segregated in aid of conviction of the accused for substantive offence under Section 307 IPC when there is no evidence for his conviction for offence under Section 307 simplicitor for which another accused is also convicted because the injury attracting the offence under 11 Section 307 IPC on evidence is found to have been caused by him. This Court, however, is inclined to uphold the arguments of the learned counsel for the appellants that there is not evidence for their conviction under Sections 325/149 and 324/149 IPC. The evidence of PW.2 Rehmat, PW.3 Ammu and PW.6 Bundu clearly proves their presence and participation in the incident in which the injured Bundu suffered as many as 6 injuries. While injury No.1 which was found serious is attributed to co-accused Jumma but other injuries were attributed to appellants herein. The contention that such injuries might have been caused by fall from the camel cart because according to one of the witnesses namely; PW.2 Rehmat there were stones on the ground where injured Bundu had fallen, cannot be accepted. This argument is sought to be supported from the statement of PW.9 Dr.Om Prakash Gupta, who in answer to suggestion in the cross-examination simply stated that if any person falls on the stones from the hight of 8 ft. possibility of his sustaining such injuries cannot be ruled out. An answer of this nature to a suggestion cannot be made basis for brushing aside the eye-witness account. 12 This appeal, therefore, deserves to be allowed in part. Conviction of the appellant for offence under Section 307 IPC is liable to be set aside but at the same time their conviction for other offences is maintained. However, keeping in view the fact that this incident pertains to the year 1983 and almost 25 years have gone by since then and further that the appellants, who were quite young at the time when the incident took place, have grown old enough, sending them behind the bar at this late stage would be too harass upon them. Interest of justice would be met if they are extending the benefit of probation. In the result, the appeal is allowed in part and the conviction of the appellants for offence under Section 307 IPC is set aside and conviction for offences under Sections 147, 148, 323, 325/149, 324/149 IPC is maintained. The accused-appellants (1) Hoormat, (2) Sameer both sons of Khaddi (3) Mouju S/o Ummed and (4) Shakeen S/o Mouju are directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on their furnishing a personal bond in the sum of Rs.10,000/- each on the condition of maintaining good conduct with the surety in the like amount to the satisfaction of the trial court with the 13 stipulation that they shall maintain peace and be of good behavior for a period of two years and shall appear before the court during the aforesaid period to receive and undergo sentence as and when called and shall not indulge again in any such offence in future. (MOHAMMAD RAFIQ)J. A.Arora/-