Allowed

Gena Alias Ganesh Mahto v. State of Bihar

Jharkhand HC12 Mar 2019Cr.A(DB)/183/1996

Case brief

AI extract

What is this about?

This High Court criminal appeal allowed by a bench of two judges. The court set aside the trial court's conviction of two appellants for murder committed with bombs, holding that convicting them under Section 302/34 IPC without an amended charge under Section 222 Cr.P.C., after the charge was framed only under Section 396 IPC, caused a failure of justice.

What did the court decide?

The impugned judgment of conviction dated 29.08.1996 and order of sentence dated 31.08.1996 passed under Section 302/34 of the Indian Penal Code are hereby set aside. Consequently, the appellants on b

Gena Alias Ganesh Mahto Vs State of Bihar — Criminal Trial and Appeal | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.181 of 1996(R) with

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Cr. Appeal (DB) No.183 of 1996(R)

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Against the Judgment of conviction dated 29.08.1996 and order of sentence dated 31.08.1996, passed by learned 2nd Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 232 of 1991.

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Suresh Mahto, son of Ider Mahto, resident of village – Hesakudar, P.S.Katkamsandi, District - Hazaribagh ….. Appellant

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[in Cr. Appeal (DB) No. 181 of 1996(R) ]

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With

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Gena @ Ganesh Mahto, son of Lukan Mahto resident of village -Soki, P.S.- Itkhori and District – Hazaribagh. Appellant

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[in Cr. Appeal (DB) No. 183 of 1996(R) ]

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Versus

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The State of Bihar now Jharkhand ….. Respondent

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Present Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo

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For the Appellants : Mr. Jitendra Shankar Singh, Advocate.(in both Cr. Appeals) : Mr. Amit Kumar Verma, Advocate. For the State : Mrs. Vandana Bharti, A.P.P.( in both Cr. Appeals)

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Per Kailash Prasad Deo, J.:- Both the aforesaid Criminals Appeals arising out of common

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impugned judgment of conviction and order of sentence, are being heard together and disposed of, by a common judgment.

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2 . Heard, learned counsel for the appellants, Mr. Jitendra Shankar Singh assisted by Mr. Amit Kumar Verma, Advocate appearing in both the appeals and learned counsel for the State, Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing in both the appeals.

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3 . The instant Criminal appeals have been preferred against the judgment of conviction dated 29.08.1996 and order of sentence dated 31.08.1996, passed by learned 2nd Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 232 of 1991, whereby these two accused persons namely, Suresh Mahto and Gena @ Ganesh Mahto have been convicted for the offence committed and punishable under Section 302 read with section 34 of the Indian Penal Code and sentenced to undergo imprisonment of life.

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By the same impugned judgment learned trial court has acquitted other co-accused facing trial namely, 1. Loki Mahto, 2. Parameshwar @ Rameshwar Mahto 3. Kailash Mahto, 4. Mahabir Mahto 5. Sheetal Mahto and 6. Kamdeo Mahto from the charge under section 396 of the Indian Penal Code.

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The prosecution case, is based upon fardbeyan of the informant, Dhaneshwar Yadav (P.W.11), recorded by Sub-Inspector, Arjun Ram (P.W.13), Officer-In-Charge of Katkamsandi Police Station on 21.02.1991 at 07.30 A.M. at Katkamsandi, whereby the informant has stated that in the night of 20.02.1991 after taking dinner, they have closed the door and were sleeping, at around 9.00P.M someone asked informant, Dhaneshwar Yadav to open the door as friend has come. The informant under fear did not reply to the same nor anybody gave any reply from inside the house. The informant has stated that his brother, Bisun Yadav, who was sleeping with his wife in another room, enquired, as who is there and thereafter, the informant heard hurling sound followed by another sound of bomb within two minutes. Thereafter, all the inmates of the house after raising brawl tried to came out of the house, but they could not come out of the house, as door was closed from outside. The informant has further stated that co-villager has opened the door and thereafter, informant along with other co-villagers went to the room of his brother, Bisun Yadav and saw the deadbody of Bisun Yadav and the informant's sister-in-law, Chando Devi was lying in an injured condition having injury on the left leg and was in pool of blood. The informant has further stated that sister-in-law has disclosed before him that after hearing voice, her husband inquired about the persons and saw two persons in the light of torch and identified them as Suresh Mahto and Gena @ Ganesh Mahto from portion of the house open in the north side and thereafter, the accused have thrown bomb from that open side causing death of the husband and injuries to the victim. The informant has further stated that the accused persons have also taken a white colour goat, weighing 5 K.G. from the verandah of the informant. The informant has further stated that she could only identify two accused persons and could not see the other accused persons. After 1-2 hours, injured, sister-in-law

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of the informant has also died. The informant has alleged that a year ago, there was some dispute between his brother and Suresh Mahto, Gena @ Ganesh Mahto, Luki Mahto, Kailash Mahto and others for picking/ collecting 'Mahua' and for this altercation, the accused persons have given threatening and have committed the crime. The informant has alleged that sister-in-law, Chando Devi has identified Suresh Mahto and Gena @ Ganesh Mahto and the same has been disclosed to him as well as to co-villagers. The informant has further stated that he could not say that how many accused persons were there, but accused persons have taken Khassi (castrated he-goat) worth Rs. 300/- from the varandah of the accused and it appears from sound that accused persons were 5-7 in number. The informant has claimed that accused, Suresh Mahto and Gena @ Ganesh Mahto and others because of enmity, killed his brother and sister-in-law of the informant by exploding bomb and have also taken Khassi (castrated he-goat).

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4 . On the basis of 'fardbeyan' of informant, the Police has registered First Information Report bearing Katkamsandi P. S. Case No. 27 of 1991 dated 21.02.1991 under Section 396 of the Indian Penal Code against two named accused persons namely, Suresh Mahto and Gena @ Ganesh Mahto and unknown 4-5 persons.

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5 . After completion of investigation, Police has submitted charge sheet vide No. 51 of 1991 dated 17.05.1991 under Section 396 of the Indian Penal Code against eight named accused persons namely, 1. Suresh Mahto, 2. Gena @ Ganesh Mahto, 3. Loki Mahto, 4. Parmeshwar @ Rameshwar Mahto, 5. Kailash Mahto, 6.Mahabir Mahto, 7. Sital Mahto and 8. Kamdeo Mahto.

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6 . The cognizance of offence has been taken vide order dated 18.05.1991 and the case has been committed to the court of sessions vide order dated 12.07.1991.

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7. Learned trial Court has framed charge against all the eight accused persons under Section 396 of the Indian Penal Code vide order dated 26.11.1992. The charges were read over and explained to the accused persons in Hindi, to which they pleaded not guilty and claimed to be tried.

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8 . The prosecution, in order to prove its case, has examined altogether thirteen prosecution witnesses.

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Dewa yadav has been examined as P.W.1, Sunita Devi has been examined as P.W.2, Devali Devi has been examined as P.W.3, Dasrath Pandey has been examined as P.W.4, Naresh Pandey has been examined as P.W.5, Pokhan Thakur has been examined as P.W.6, Narayan Thakur has been examined as P.W.7, Baleshwar Yadav has been examined as P.W.8, Ajij Khan has been examined as P.W.9, Sarju Pandey has been examined as P.W.10, Dhaneshwar Yadav, informant of the case, has been examined as P.W.11, Shivdayal Yadav has been examined as P.W.12 and Arjun Ram, Police Officer, who has recorded fardbeyan of the informant, has been examined as P.W.13.

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The prosecution, has also adduced a number of documentary evidence up to exhibit -6.

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Signature of informant on the written report has been proved by P.W. 11 and marked as Exhibit-1, seizure list has been proved by P.W. 13 and marked as Exhibit-2, fardbeyan has been proved by P.W. 13 and marked as Exhibit-3, formal F.I.R. has been proved by P.W. 13 and marked as Exhibit-4, inquest reports have been proved by P.W.13 and marked as Exhibits-5 and 5/1 and charge-sheet has been proved by P.W.13 and marked as Exhibit-6.

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8 . After closure of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. on 13.05.1996. The accused persons have denied about their involvement in the present case and claimed themselves to be innocent and have submitted that they have been falsely implicated in this case, but no defence witness or document has been brought on record.

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9. After hearing learned counsel for the parties and on the basis of the materials available on record, learned trial Court has convicted both the appellants for the offence committed and punishable under Section 302/34 of the Indian Penal Code but has acquitted other six co-accused persons facing trial along with them.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellants have preferred the present criminal appeal separately before this Hon’ble Court, assailing the same.

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Heard, learned counsel for the appellants, Mr. Jitendra Shankar Singh assisted by Mr. Amit Kumar Verma, Advocate.

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Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law as well as on facts and cannot sustain in the eyes of law.

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Learned counsel for the appellants has submitted that charge has been framed under Section 396 of the Indian Penal Code but conviction has been passed by learned trial Court under Section 302/34 of the Indian Penal Code. Learned counsel for the appellants has submitted that both sections are not inter changeable rather both are distinct and being major, the charge ought to have been framed under Section 302/34 of the Indian Penal Code so as to convict the appellants under section 302/34 of the Indian Penal Code. Learned counsel for the appellants has submitted that section 222 Cr. P.C. will not come to rescue the prosecution, as section 302/34 of the Indian Penal Code is not minor section to section 396 of the Indian Penal Code and as such, impugned judgment of the conviction is not sustainable under law. Learned counsel for the appellants has further submitted that the informant is not the person, who was present at the place of occurrence. He has not identified any of the accused either by seeing them or through voice rather as per the disclosure made by the victim i.e. sister-in-law, Chando Devi, the informant has taken name of the appellants as Suresh Mahto and Gena @ Ganesh Mahto in the First Information Report. Learned counsel for the appellants has submitted that said Chando Devi has not been examined in this case as she has subsequently died on the same day after death of her husband, Bisun Yadav. Learned counsel for the appellants has further submitted that from perusal of the evidence adduced by prosecution, it appears that Deva Yadav, father of the informant has been examined as P.W.1 and who is also a hearsay witness. Sunita Devi

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examined as P.W. 2, has been tendered by the prosecution. Dewali Devi examined as P.W.3 has not adduced any evidence so far the present case is concerned, though she is mother of the informant. Dasrath Pandey has been examined as P.W.4 and he is also a hearsay witness. Naresh Pandey has been examined as P.W.5 and has been declared hostile by the prosecution. Pokhan Thakur has been examined as P.W.6 and has not disclosed the name of any of the accused persons. Narayan Thakur examined as P.W.7, has also been tendered by the prosecution. Baleshwar Yadav has been examined as P.W.8 and he is also hearsay witness. Ajij Khan has been examined as P.W.9, but has not disclosed name any of the accused persons. Sarju Pandey has been examined as P.W.10 and he has also been tendered by prosecution. Dhaneshwar Yadav, informant of the case, has been examined as P.W.11 and he has lodged the First Information Report on the basis of the information disclosed to him by his sister-in-law, Chando Devi. Shiv Dayal yadav has been examined as P.W.12 and he is also a hearsay witness. Arjun Ram, S.I. of police, has been examined as P.W.13, who has recorded the fardbeyan and investigated the case and submitted the charge-sheet against accused persons. Learned counsel for the appellants has further submitted that Deva yadav (P.W.1), Dasrath Pandey (P.W.4), Baleshwar yadav (P.W.8) and Dhaneshwar yadav (P.W.11), have disclosed the name of appellants Suresh Mahto and Gena @ Ganesh Mahto as perpetrators of the crime along with others. Learned counsel for the appellants has further submitted that from evidence of Deva Yadav (P.W.1), Dasrath Pandey (P.W.4), Baleshwar Yadav (P.W.8) and Dhaneshwar Yadav (P.W.11), it appears that their evidence depend upon disclosure made by the victim, Chando Devi, who died subsequent to the occurrence. Learned counsel for the appellants has further submitted that evidence of other prosecution witnesses, is based upon information received from Deva yadav (P.W.1), Dasrath Pandey (P.W.4) and Dhaneshwar yadav (P.W.11). Learned counsel for the appellants has further submitted that Naresh Pandey (P.W.5), has not supported the case regarding the disclosure made by injured, Chando Devi, as such, has been declared hostile by the prosecution but Pokhan Thakur (P.W.6) and Ajij Khan (P.W.9), who have also not supported the prosecution so far disclosure and identity of the accused made by injured

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Chando Devi is concerned, have not been declared hostile by the prosecution as such, evidence of Deva yadav (P.W.1), Dasrath Pandey (P.W.4), Baleshwar yadav (P.W.8) and Dhaneshwar Yadav (P.W.11) have to be considered with care and caution. Learned counsel for the appellants has further submitted that in absence of postmortem reports, homicidal death has not been proved by prosecution as such, the conviction of the appellants under Section 302/34 of the Indian Penal Code is not sustainable in eyes of law. Learned counsel for the appellants has further submitted that impugned judgment of conviction suffers from legal infirmities apart from material lacuna in the prosecution case as such, impugned judgment of conviction is not sustainable in the eyes of law and appellants deserves to be acquitted from the charge under Section 396 of the Indian Penal Code and conviction under section 302/34 of the Indian Penal Code. Learned counsel for the appellants has further submitted that no charge under Explosive Substance Act has been framed in this case so as to uphold the conviction under Section 302/34 of the Indian Penal Code in absence of postmortem reports of the deceased, Bisun yadav and Chando Devi. Learned counsel for the appellants has thus submitted that impugned judgment of conviction and order of sentence is fit to be set aside.

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11 . Heard, Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State in both the aforesaid Criminal Appeals.

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Learned counsel for the State has vehemently argued the case and has submitted that impugned judgment of conviction and order of sentence has been passed by learned trial court, as both wife and husband, have been killed by exploding bombs while they were sleeping in the room. The learned trial court on the basis of the materials brought on record, has rightly convicted the appellants, who have been identified by deceased (Chando Devi) and the same was disclosed to the witnesses and the learned trial court has rightly convicted the appellants under Section 302/34 I.P.C. considering the disclosure made by Chando Devi to be a dying declaration admissible under Section 32 of the Indian Evidence Act.

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Learned counsel for the State has further submitted that there may be some minor contradictions in the prosecution case, but that is not going to the root of prosecution case, as two persons have died in the occurrence and learned trial court though has framed charge under Section 396 I.P.C. (dacoity with murder), has rightly convicted the appellants under Section 302/34 I.P.C. for causing murder permissible under Section 222 Cr.P.C.

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Learned counsel for the State in support of her submission has relied upon Section 464 Cr.P.C., which reads as follows :-

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Section 464 in The Code Of Criminal Procedure, 1973

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464. Effect of omission to frame, or absence of, or error in, charge.1)No finding, sentence 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 been occasioned thereby.

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(2)If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

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(a)in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

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(b)in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction .”

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Learned counsel for the State has thus, submitted that the impugned judgment

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of conviction and order of sentence may not be interfered by this Court, as two persons have been killed in same transaction. The accused persons, after killing them by exploding bombs, have also taken away goat of the informant kept in the verandah, as such, learned trial court has rightly convicted the appellants under Section 302/34 I.P.C.

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12 . Heard, Mr. Jitendra Shankar Singh, learned counsel appearing for the appellants assisted by Mr. Amit Kumar Verma, Advocate in both the Criminal Appeals and learned counsel for the State, Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing in both the Criminal Appeals and perused the materials available on record, including the First Information Report, framing of charge, evidence of all the thirteen prosecution witnesses, six prosecution exhibits and statement of accused/appellants recorded under

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Section 313 Cr.P.C, as well as impugned judgment of conviction and order of sentence.

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This Court has scrutinized the prosecution case. From bare reading of First Information Report, which is based on the fardbeyan of informant (Dhaneshwar YadavP.W.11), the prosecution has alleged about commission of dacoity with murder of brother of the informant, Bishun Yadav and injury caused to his sister-in-law, Chanda Devi who after disclosing the same, died at the spot. Thus, First Information Report has been instituted against two named accused persons and other unknown accused persons under Section 396 I.P.C. On completion of investigation by the Police, Police has submitted charge-sheet against eight named accused persons including two accused persons, named in the First Information Report. The charge has been framed against all the eight accused persons under Section 396 I.P.C. Till delivery of judgment, the charge has never been amended under Section 216 Cr.P.C. as such, charge remained under Section 396 I.P.C. However, learned trial court, without amending the charge, convicted the appellants, Suresh Mahto and Gena @ Ganesh Mahto under Section 302/34 of the Indian Penal Code and acquitted other six accused persons facing trial. Neither the State nor the informant has preferred any Acquittal Appeal against the judgment of acquittal against other six co-accused persons who have been acquitted by learned trial court by the same impugned judgment of conviction.

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This Court while scrutinizing the evidence of the prosecution witnesses, has taken note of Section 222 of the Cr.P.C., which reads as follows :-

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Section 222 in The Code Of Criminal Procedure, 1973

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“ 222. When offence proved included in offence charged.- (1)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.

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(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

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(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

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(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.”

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From perusal of the same, this Court is of the opinion that conviction of the appellants under Section 302/34 I.P.C. when the charge has been framed under Section 396 I.P.C., will not come under the purview of Section 222 Cr.P.C., as the ingredient to prove the charge under Section 396 I.P.C. is different than what are required to be proved for the charge under Section 302/34 of the Indian Penal Code.

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This Court has also perused Section 464 of the Cr.P.C., which reads as

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follows :-

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Section 464 in The Code Of Criminal Procedure, 1973

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Effect of omission to frame, or absence of, or error in, charge.- 1)No finding, sentence 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 been occasioned thereby.

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(2)If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

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(a)in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

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This Court on the basis of materials brought on record and perusing the same, is of the opinion that ingredient to prove the charge under Section 302/34 I.P.C. is different than the material for proving the charge under Section 396 of the Indian Penal Code. To prove a charge under Section 396 I.P.C, the ingredient of Section 395 I.P.C. is essential. From perusal of the impugned judgment as well as materials brought on record, it appears that other co-accused persons facing trial with these two appellants have been acquitted by the court below, as such, the number of accused persons was reduced from number 8 to 2. In absence of establishing the charge under Section 395 I.P.C., these accused persons could not be held guilty under Section 396 I.P.C. As a matter of fact, it would amount to failure of justice convicting the appellants under Section 302/34 I.P.C. To appreciate the evidence for convicting the appellants under Section 302/34 of the Indian Penal Code which requires strict proof, being a major offence and also independent and distinct offence from Section 396 I.P.C., this Court has taken the evidence on record so as to examine the judgment passed by learned trial Court,

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convicting the appellants under Section 302/34 I.P.C. To appreciate the same, this Court has minutely scrutinized the evidence of Dewa Yadav (P.W.1), Dasrath Pandey (P.W.4), Pokhan Thakur (P.W.6), Baleshwar Yadav (P.W.8), Ajij Khan (P.W.9) and Dhaneshwar Yadav (P.W.11). From perusal of evidence of P.W.1 (Deva Yadav), it appears that during examination-in-chief, he has stated that his daughter-in-law died after two hours of occurrence and she has disclosed the name of accused, Gena and Suresh, as the persons who have thrown the bomb but while cross-examining in Para-6, this witness has stated that he heard the sound of explosion of bomb and after half an hour when the villagers opened the door, he came out of the house and went to the room of his son. In Para-8, he has categorically stated that his daughter-in-law has disclosed the occurrence to Dasrath Pandey (P.W.4), Naresh Pandey (P.W.5), Pokhan Thakur (P.W.6) and Ghanshyam (not examined in this case) though the other witnesses, who have been named as the persons before whom daughter-in-law of this witness has disclosed about the name of the criminals, they have not supported the case of prosecution, such as, Naresh Pandey who has been examined as P.W.5 has not supported this version and has been declared hostile by the prosecution. So far witness, Pokhan Thakur (P.W.6) has also not supported the case of prosecution, as disclosed by daughter-in-law of this witness (P.W.1), but he has not been declared hostile by the prosecution. Similar is the evidence of Dasrath Pandey, who has been examined as P.W.4 and he has categorically stated in Paras-4 and 5 that wife of Bishun Yadav was asking for water and subsequently she became unconscious and died. P.W.4 (Dasrath Pandey) has categorically stated that she has not disclosed the name of any accused person. Considering evidence of Dasrath Pandey (P.W.4), Naresh Pandey (P.W.5), Pokhan Thakur (P.W.6) coupled with the evidence of Ajij Khan (P.W.9), this Court is of the view that evidence of Dewa Yadav (P.W.1) is not fit to be relied upon, for convicting the appellants, as this witness has claimed that name has been disclosed by daughter-in-law in presence of other witnesses and those witnesses have not supported the case of prosecution. Sunita Devi (P.W.2) has been tendered. Devli Devi (P.W.3), mother of the informant has not adduced any evidence in support of the prosecution case rather her evidence is of no use in the present case. Dasrath Pandey has been examined as P.W.4. This witness while examining in the Court has categorically stated in Para-4 that wife of Bishun Yadav was demanding water and became unconscious and subsequently died. She did not disclose the name of any of the accused persons. This

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witness while adducing evidence has given a fatal blow to the prosecution case particularly to the evidence of Dewa Yadav (P.W.1) and Dhaneshwar Yadav (P.W.11), as this witness has categorically stated in Para-5 that after brawl, when they opened the door of the room of father of Bishnu Yadav, by that time, wife of Bishun Yadav has already died and after remaining there for ten minutes, they disclosed death of both the persons to father, Deva Yadav (P.W.1) and the informant (P.W.11).

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Under the aforesaid circumstances, it is apparent that evidence of Dasrath Pandey (P.W.4) is not supporting the case of the prosecution with regard to disclosure by the victim- Chando Devi before the informant, Dhaneshwar Yadav (P.W.11), Dewa Yadav (P.W.1), Dasrath Pandey (P.W.4), Naresh Pandey (P.W.5), Pokhan Thakur (P.W.6) and Ajij Khan (P.W.9). This Court has also taken note of the evidence of Naresh Pandey (P.W.5), who has been declared hostile by the prosecution, as he has not supported the version of the prosecution that name of the accused persons has been disclosed by the injured- Chando Devi.

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Pokhan Thakur has been examined as P.W.6, but he has not supported the fact that name has been disclosed to him by the injured- Chando Devi, rather this witness has stated that without disclosing the name of any of the accused, wife of Bishun Yadav died in unconscious condition.

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Narayan Thakur has been examined as P.W.7 and has been tendered by the prosecution.

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Baleshwar Yadav has been examined as P.W.8 and he has claimed to have heard the name of the accused persons from the mouth of the injured (Chando Devi). This Court while examining the evidence of Baleshwar Yadav (P.W.8) as stated in Para-1, contradiction has been taken during his cross-examination at Paras 4, 6 and 8. This witness has denied that he along with Taleshwar were kept at the Police Station for two days after the occurrence. This witness has further stated that deceased has disclosed before him and before Pokhan Thakur (P.W.6), Dasrath Pandey @ Daso Pandey (P.W.4), Naresh Pandey (P.W.5), Ajij Khan (P.W.9), Satar Khan (not examined) and Narayan Thakur (P.W.7), but all these witnesses have not supported the case of prosecution, even P.W.4 (Dasrath Pandey) has given contradictory version in Paras 4 and 5 of his cross-examination, as such, the evidence of Baleshwar Yadav (P.W.8), is not reliable to uphold conviction of the appellants under Section 302/ 34 of the Indian Penal Code. As per the evidence of Baleshwar Yadav (P.W.8), other persons before whom the injured - Chando Devi has disclosed name of the appellants, namely, Dasrath Pandey @

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Daso Pandey (P.W.4), Naresh Pandey (P.W.5), Pokhan Thakur (P.W.6), Narayan Thakur (P.W.7) and Ajij Khan (P.W.9) have given contradictory evidence than the evidence of Baleshwar Yadav (P.W.8) and evidence of informant, Dhaneshwar Yadav (P.W.11) and evidence of Dasrath Pandey (P.W.4) are also self contradictory in nature.

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Under the aforesaid circumstances, in view of lack of reliable and consistent evidence, as the other prosecution witnesses, namely, Naresh Pandey (P.W.5), Pokhan Thakur (P.W.6) and Ajij Khan (P.W.9) have categorically stated that the injured, Chando Devi without disclosing anything died at the spot, this Court is not relying upon the evidence of Baleshwar Yadav (P.W.8) for upholding the conviction of the appellant in absence of the post-mortem report of the deceased. This Court has also opined that since charge has also not been framed under the Explosive Substance Act, as such, considering the charge framed against the accused under Section 396 I.P.C., this Court is of the opinion that failure of justice has been caused by the impugned judgment, whereby, the appellant has been convicted under Section 302/34 I.P.C. without altering the charge from Section 396 I.P.C.

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Under the aforesaid circumstances, considering the evidence of the informant, Dhaneshwar Yadav (P.W.11) particularly in Paras 34 and 35, where he has stated that before his arrival Naresh Pandey (P.W.5), Ajij Khan (P.W.9), Pokhan Thakur (P.W.6), Sarju Pandey (P.W.10), Balo Yadav (P.W.8), Narayan Thakur (P.W.7) and Dasrath Pandey (P.W.4) have already reached at the place of occurrence and the informant is not the first person, before whom injured, Chando Devi has taken name of accused, as such, as discussed above, all these persons who have arrived to the place of occurrence prior to the informant, have not supported the case of the prosecution and for that reason evidence of Dewa Yadav (P.W.1) and Baleshwar Yadav (P.W.8) are not reliable, this Court is not considering the informant as a witness before whom the injured, Chando Devi has disclosed about the occurrence.

¶86

Considering the above discussion, where miscarriage of justice has been caused, as the charge was framed under Section 396 I.P.C. and no alteration of charge has been framed under Section 216 Cr.P.C. conviction under Section 302/34 I.P.C. is not sustainable in the eyes of law either protected under Section 222 Cr.P.C. or under Section 464 Cr.P.C.

¶87

14 -

¶88

We are, therefore, inclined to set aside impugned judgment of conviction and order of sentence and accordingly, the impugned the Judgment of conviction dated 29.08.1996 and order of sentence dated 31.08.1996, passed by learned 2nd Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 232 of 1991 is hereby set aside.

¶89

In the result, both the Appeals stand allowed.

¶90

Consequently, the appellants, who are on bail, are discharged from the liability of their bail

¶91

bonds.

¶92

Let L.C.R. be sent to the concerned Trial Court along with a copy of this judgment

¶93

forthwith.

¶94

(Aparesh Kumar Singh, J.)