Des Raj vs State of Punjab

K.S. Tiwana, J.

Des Raj and his coaccused Makhan Singh, son of Bakar Singh, residents of village Ojhanwali, were tried by the learned Sessions Judge, Ferozepore, for the murder of Smt. Chhindo Bai in the area of village Baghewala on 28th November, 1985, at about 4.00 p.m. At the trial Des Raj and Makhan Singh were charged under Section 302 read with Section 34, Indian Penal Code, for the offence, to which they pleaded not guilty.

The prosecution examined Karnail Singh, PW2, as an eyewitness and also relied upon the statement made by Smt. Chhindo Bai to Sub Inspector Harbhaj Ram at 7.15 p.m. on 28th November, 1985, which, after her death, was relied on by the prosecution as her dying declaration.

The learned trial Judge after trial acquitted Makhan Singh, accused of the charge, but convicted Des Raj, accused, under Section 302 Indian Penal Code, for the murder of Smt. Chhindo Bai and sentenced him to death. Murder, Reference No. 1 of 1986, under Section 366, Code of Criminal Procedure, arises out of that conviction, which is before us. Des Raj accused appellant, filed Criminal Appeal No. 284DB of 1986. The State of Punjab challenged the acquittal of Makhan Singh, accused, through Criminal Appeal No. 338DBA of 1986. As all the cases arise out of the same case and judgment we propose to dispose of all these through a common judgment, recorded in Murder Reference No. 1 of 1986.

We are not referring to the facts of the case and the prosecution evidence in detail because, in our opinion, the illegality of conviction of Des Raj for the substantive offence has vitiated the trial. The purpose of framing charge in a criminal trial is to apprise the accused of the accusation he is expected to meet at the trial and for which he is tentatively charged so that he could be convicted of the offence in the case the prosecution is able to furnish evidence to support of the charge to the satisfaction of the Court. If the accused, who is jointly tried along with other person, is charged with vicarious liability with the aid of Section 34 or Section 149 of the Indian Penal Code, then the Court at the initial stage of trial intimates the accused that he is likely to be convicted of that offence in case that is proved against him. The trial of the case starts after the framing of the charge and when it is read out to the accused and his plea is obtained. If the Court deviates from that charge and ultimately convicts him for the substantive offence in place of the vicarious liability, then the accused has a legitimate right to say that he is prejudiced in his defence, as he was not expected to meet the charge, which was never drawn against him with about which the Court never apprised him before conviction. Nank Chand v. State of Punjab, AIR 1955 Supreme Court 274 is an authority in support of this proposition.

In the case in hand, as noticed above. Des Raj as well as Makhan Singh were charged under Section 302 read with Section 34, Indian Penal Code. Des Raj adjusted his degence and planned the crossexamination only to meet that charge and not the substantive one. The learned trial Judge never intimated him by amending the charge or in any other manner that (sic) has been caused to Des Raj, and because of this fault the conviction stands vitiated.

Criminal Appeal No. 338DAB of 1986 filed by the State against Makhan Singh requires consideration. The learned trial Judge did not discuss the evidence against Makhan Singh and recorded a very sketchy finding and that too against the evidence of the record in paragraph 31 of his judgment, to acquit him. The learned Sessions Judge remarked "injuries on the person of the deceased could be the result of a kirpan, as opined by Dr. Chalana, PW1, and the same is attributed to Des Raj, accused. At least false implication of Makhan Singh accused cannot be ruled out and he is entitled to the benefit of doubt.....". This reflects that the learned trial Judge was under the impression that the injuries were only attributed to Des Raj and not Makhan Singh. This is a complete misreading of the evidence. After going through the whole evidence, we find that equal part was attributed by Karnail Singh PW2 (eyewitness) and by Smt. Chhindo, deceased, in the dying declaration, to both the accused. The acquittal of Makhan Singh based on misreading of evidence has resulted in miscarriage of justice and has to be set aside.

For the foregoing reasons, as indicated earlier, the judgment of the learned Sessions Judge, Ferozepore, in convicting Des Raj and acquitting Makhan Singh is set aside and the case is remanded back to the same Court for retrial, in accordance with the provisions of law if necessary, after appropriate framing of charge. Makhan Singh, accused who is on bail, shall appear before the learned Sessions Judge, Ferozepore, on 8th August, 1986.

JUDGMENT accordingly.