The Allahabad High Court while dismissing an appeal observed that trial court has power to find the accused guilty for lesser offence even if charge is made for major offence, but when the charge was framed for lesser offence the court cannot convict the accused for major offence without alteration of charge.
A Single Bench of Justice Renu Agarwal passed this order while hearing a Criminal Appeal filed by Phullan and 3 Others.
The appeal has been preferred by the appellants against the order dated 01.08.2000, passed by Vth Additional Sessions Judge, Pratapgarh, whereby the appellants have been convicted under section 307 IPC read with section 34 IPC and all the appellants except appellant Mausim Ali, have been sentenced to undergo rigorous imprisonment of 7 years and payment of the fine of Rs 2,000/- each and further to undergo imprisonment of 3 years in default of payment of fine and the appellant Mausim Ali is convicted under section 307 IPC read with section 37 IPC and sentenced to pay the fine of Rs 2,000/- and in default of payment of fine to undergo further imprisonment for a period of 3 months.
The facts of the case are that, on 16.07.1996 at about 9.00 A.M, when the informant(Abdul Hamid) was planting the paddy in his fields the accused-appellants Mausim Ali and Hashim Ali, Phullan and Mohd Idris sons of Maushim Ali, assaulted him with lathi-danda and fire arm due to old animosity. He tried to escape towards his house, but Hashim, Phullan and Mohd. Idrish started firing and his brother Abdul Wahid stuck in the fields, filled with water. The fire shot his brother, when he raised a noise the witnesses Bachai, Hatim Ali, Sabit Ali, Iddu @ Neta, reached there and challenged the accused, then all of them went to their house.
On the basis of a written report FIR was registered in Police Station Kotwali, Pratapgarh, as Case under section 307 IPC. After collecting sufficient evidence against the accused-appellants, the investigating officer submitted a charge sheet in the court.
The Magistrate took the cognisance of the case and after compliance of provisions section 207 Cr.P.C, committed the case to the court of session for trial. The charges were framed against the accused-appellants under section 307 IPC. and read over & explained to the accused persons, who abjured from the charges and claimed to be tried.
After the conclusion of evidence, the statement of appellants were recorded under section 313 CrPC. All the accused deposed in their statements recorded under section 313 Cr.P.C that they are innocent and they have been falsely implicated in the case by the informant, as his father was in the police department. All the accused denied the incident and stated that the case was registered on the basis of forged written report and witnesses deposed due to animosity and witness Iddu Neta has expired. All the appellants have stated that Mausim Ali was acquitted of the incident of Kadipur assault. Accused confessed that Idris, Phullan and Mussim Ali were charged and tried in the abduction case.
Accused have stated that Phullan and Idris were tried under section 307 IPC and also for firing in Ramleela ground, but they have been acquitted of the offence under section 307 IPC and section 25 Arms Act.
After hearing the public prosecutor and the counsel for the accused-appellants, the trial court relied upon the prosecution version and held that the FIR is prompt, accused and informant are residents of the same village, therefore, they are well acquainted with everyone. Medical report corroborates the prosecution version, therefore, the prosecution case is proved beyond reasonable doubt. It is also held by the trial court that if the injured witness appeared in the dock and proved the case as an ocular witness then the motive of assault becomes negligible and irrelevant.
Abdul Hamid who was an informant of the case expired during the trial, therefore, he could not be produced as prosecution witness, however the injured Wahid proved the prosecution version. On the basis of the evidence on record, the trial court convicted all the four accused under section 307 read with section 34 IPC and punished them with the aforesaid conviction. Aggrieved with the aforesaid judgment the appeal is filed by the appellants.
It is submitted on behalf of the appellants that impugned judgment and order dated 01.08.2000 is illegal, unjust and improper. Medical evidence has not supported the prosecution version. There are major inconsistencies and contradictions in the statements of the witnesses. Investigation of the case is tainted and prosecution has failed to prove their case beyond reasonable doubt. Trial court did not consider their defence while passing the impugned judgment, hence the impugned judgment is liable to be set-aside.
Counsel for the appellants argued that the investigating officer did not collect blood contaminated water or blood stain earth which goes to show that no such incident happened.
This argument of the counsel for the appellants finds no favour, as the investigating officer himself clear at of examination that the field were filled with water and paddy was being planted, therefore, it was not possible to collect blood stain water or earth, the Court said.
The Court noted that,
The trial court found the case proved on the basis of medical evidence, site plan and oral evidence of injury. FIR is prompt. Enmity is admitted. Gunshot injury was found in the body of the injured and informant, which was proved by the doctor. Therefore, the trial court found the accused-appellants guilty and convicted them in this case. The conclusion of the trial court does not suffer with any infirmity or lacuna. The contradictions are minor in nature and the prosecution proved the case beyond reasonable doubt, hence no merit is found in the appeal and the appeal is liable to be dismissed.
Lastly, counsel for the accused-appellants submitted that all the appellants were charged with section 307 IPC, however, they were convicted under section 307 read with section 34 IPC without amending any charge, therefore, the judgment is liable to be set-aside on this sole ground.
“Trial court has power to find the accused guilty for lesser offence even if charge is made for major offence, but when the charge was framed for lesser offence the court cannot convict the accused for major offence without alteration of charge. Hence when the prosecution has proved the prosecution version regarding major offence under section 307 IPC and it is proved by the evidence that all the appellants acted with common intention then trial court rightly convicted appellants under section 307 IPC read with section 34 IPC. Hence there is no illegality in the judgment of the trial court, if the accused-appellants are convicted under section 307 read with section 34 IPC. Therefore, the appeal is liable to be dismissed on this ground also”, the Court observed while dismissing the petition.