High Court of Punjab and Haryana, Chandigarh
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ZILE SINGH & Ors v. STATE OF HARYANA - CRA-D-401-2003  RD-P&H 87 (10 January 2006)
1. Criminal Appeal No.401-DB of 2003 Zile Singh and others Vs.State of Haryana
2. Criminal Appeal No.424-DB of 2003 Inder and others Vs. State of Haryana
3. Criminal Appeal No.209-DBA of 2004 Smt.Anchai Vs. Reshma and others
4. Criminal Appeal No.568 DB of 2003 Dharam Pal and others Vs. State of Haryana
5. Criminal Appeal No.206-DBA of 2004 State of Haryana Vs. Matri and another
Present: Mr.Baldev Singh, Sr. Advocate with Mr.Ravi Kumar, Advocate
for the appellants in Criminal Appeal No.401-DB of 2003 and for the respondents in Crl.Appeal No.209-DBA of 2004.
Mr.Vinod Ghai, Advocate for the appellants in Crl.A. No.424-DB of 2003.
Mr.O.P.Goel,Senior Advocate with
Ms.Manisha Bhatti, Advocate for the appellants in Crl.A.No.568-DB of 2003 and
Crl.A.No.209-DBA of 2004 and for the respondents in Crl.A.No.206-DBA of 2004.
Mr.B.S.Rana, Sr.DAG, Haryana.
Amar Dutt, J.
March, 1999, FIR No.42 under Sections 302/201 IPC was registered in Police Station, Kalayat on the statement of one Inder Singh son of Muwasi. According to the complainant, he is eldest of the four sons of Muwasi and is a resident of village Simla.
Adjacent to the house where he resides is the house of one Dharam Pal son of Dhari Ram, who ****
had a daughter aged 16 to 17 years named Nirmala. On 28th March, 1999, he had
gone to Narwana where he used to do work of Boot polish and at about 10 O' clock there he came to know that his youngest brother namely Des Raj had eloped with Nirmala daughter of Dharam Pal. He returned to the village at about 12.00 noon and along with his other two brothers searched for Des Raj and Nirmala. At about 4.00 P.M., Pappu son of Baru of village Rajound, who is married to Inder Singh's sister came to village Simla and apprised him that Des Raj and one girl by the name of Nirmala had come to his house at Rajound. On hearing this Inder Singh had requested Pappu not to let the couple go away until he reach there.
March, 1999, Inder Singh accompanied by his uncle Chander Bhan, Lakhmi son of Kanhiya, Karam Singh son of Ami Lal, Chander son of Nathu, Suresh, Member Panchayat, Dharam Pal, Jagdish sons of Dhari, father and uncle of Nirmala caste Harijan and Tilak Raj son of Puran, Jat, all residents of village Simla in the form of a Panchayat had gone to the house of Pappu in village Rajound in a jeep where Des Raj and Nirmala had been found to be present. These people had brought the boy and girl from there and when they reached near Senior Secondary School, Mataur Road, Kalayat, all the persons had decided that Des Raj should be exiled for five years. In pursuance of that decision, Des Raj had been left at Kalayat while they returned to Simla taking Nirmala along with them.
In the evening, it transpired that Des Raj also had reached the village in ****
contravention of the Panchayat's directions. On seeing him, Dharam Pal father of Nirmala had convened a Panchayat at Harijan Chaupal. This Panchayat was attended by Inder Singh, his Uncle Soran son of Diwana, Zile Singh son of Ballu Ram, Bhajana son of Muwasi and Chander Bhan son of Bhagat Ram, caste Harijan. During the Panchayat persons from the side of girl family had started slipping away one by one. At about 7.00 P.M., the persons who had remained behind in the Chaupal had heard the noise Maar do-Maar do coming from the side of the house of Inder Singh and when Soran son of Diwana, Zile Singh son of Ballu Ram, Bhajana son of Muwasi and Chander Bhan son of Bhagat Ram, caste Harijan had run to the spot, they had seen that Dharam Pal, Jagdish, Suresh sons of Dhari, Sushil, Rajesh sons of Jagdish, Ram Niwas son of Dharam Pal, Ram Chander son of Hari Kishan, Dalip son of Phool Singh, Prem, Krishan, Bhim sons of Mallan, Chander Bhan son of Budha, Ram Chander son of Ronak, Matri wife of Karam Singh and Beermati wife of Jagdish, caste Harijan, who are residents of village Simla armed with Lathies, Jallies and Drants were inflicting injuries on Des Raj in the street in front of the house of Mihan Singh son of Bhagta and had killed him. Immediately thereafter these persons had killed Nirmala with the same weapons and put the dead body in the common street in front of their own house.
After this, all of them had taken the dead bodies of Des Raj and Nirmala to the cremation ground and cremated their dead bodies separately. Inder Singh had after some time over-come the shock and proceeded to the Police Station where at ****
Kainchi Chowk, Kalayat he met SI Randhir Singh and got recorded his statement regarding the manner in which Dharam Pal, Jagdish, Suresh, Sushil, Rajesh, Ram Niwas, Ram Chander, Dalip, Prem, Krishan, Bhim, Chander Bhan, Ram Chander son of Ronak, Matri wife of Karam Singh and Beermati wife of Jagdish had killed Des Raj and Nirmala. Investigation into incident was conducted by SI Randhir Singh and ultimately a challan was filed against Dharam Pal, Jagdish, Suresh, Rajesh, Sushil, Ram Niwas, Chander Bhan, Krishan, Bhim Singh, Prem Singh, Ram Chander, Dalip, Matri, Beemati and Ram Chander son of Ronak before the Illaqa Magistrate, who committed the same to the Court of Sessions as the offences disclosed were exclusively triable by it.
On 12.5.1999, Smt.Anchai wife of Dharam Pal had filed a complaint in the Court of Judicial Magistrate Ist Class, Kaithal complaining about the partiality exhibited by the Police while investigating into FIR No.42 dated 30.3.1999.
According to her, Des Raj son of Muwasi had abducted her daughter and taken her away to some unknown place on 27.3.1999. On 29.3.1999 Inder Singh son of Muwasi had convened a Panchayat of the Harijan community in village Simla and in the Panchayat Inder Singh had told that Des Raj son of Muwasi, his brother, had taken the daughter of complainant to village Rajound and they were staying in the residential house of Inder Singh's brother in law named Pappu, who ****
is married to the sister of Inder Singh and Des Raj. It was decided by the Panchayat that 10/12 persons will go to Rajound and bring back Nirmala and Des Raj. On 29.3.1999 at about 12.00 A.M. Inder Singh son of Muwasi and pappu, the brother-in-law of Des Raj, Smt. Kelo wife of Pappu, Zile Singh son of Biloo, Jagpala, Smt.Reshma, Smt.Rajpati and Smt.Dhanno came to the house of the complainant along with Nirmala and handed over Nirmala to the complainant and her husband Dharam Pal. The aforesaid persons had also told that Des Raj had been sentenced to not to enter in village Simla for five years. But Des Raj had disobeyed the order of Panchayat and returned to village Simla, whereupon another Panchayat of the Harijan community was convened. It was also decided that Nirmala being the maternal Aunt of Des Raj in the same Gotra, the couple could not be married. According to the complainant, she, her husband and other members of the family did not go to the Panchayat out of shame. After some time, Chandan son of Nathu, Suresh son of Dhari and Jagdish son of Ronak had come to the house and told Dharam Pal and other members of his family that about 500/600 persons of Harijan community were present in the Panchayat and when Des Raj had refused to leave the village, a quarrel had taken place in the Panchayat and Des Raj had caused injuries on the head of Inder Singh saying why he is speaking in the Panchayat against him. On this, the persons present in the Panchayat had become furious and with brick-bats and lathies etc. had killed Des Raj. Jagdish had further told that after this Inder Singh, Chander Bhan, Zile ****
Singh, Ziya, Khushi Ram, Jag Pala, Miyan Singh, Mohinder, Tilku, Bhajna, Ramesh, Ajmer, Bharthu, Smt.Reshma, Smt.Rajpati, Smt. Kelo wife of Chander Bhan, Pappu and Smt. Kelo wife of Pappu had started raising slogans under the leadership of Inder Singh that when Des Raj had been killed, then why should Nirmala be allowed to live. Jagdish had advised Smt.Anchai complainant and other members of the family to leave the house so as to save their own lives and the life of Nirmala. Complainant Anchai, her husband Dharam Pal, her elder son and Nirmala came out of the house where they were surrounded in the street by the accused. Inder Singh, Rajpati wife of Jiya lal, Reshma wife of Muwasi, Ramesh son of Muwasi, Pappu and Smt. Kelo wife of Chander Bhan had dragged Nirmala in the chowk, where meeting of Panchayat was being held. Then Inder Singh, Pappu, Tilku, Zile Singh, Miyan Singh, Smt.Reshma, Smt.Rajpati and Smt.Kelo had raised slogans to kill Nirmala at the place where Des Raj had been killed.
Complainant and her husband had tried to save her daughter but Nirmala had been thrown on the dead body of Des Raj. Then all the accused had started beating Nirmala with lathies, jailies and brick-bats due to which she died on the spot.
Accused and his companions then taken the dead bodies to the Cremation Ground where they were burnt.
of March, 1999 the complainant had gone to the Police Station, Kalayat where her statement was recorded by the SHO but when he did not take ****
action and had filed a challan in FIR No.42 dated 30.3.1999 against her husband along with other persons under Section 302 IPC, she had no option but to file a complaint.
On receipt of this complaint, the Judicial Magistrate Ist Class, after recording the evidence found that a prima-facie case was made out against the persons named as accused in the complaint regarding the murder of Nirmala and had, therefore, committed the same for trial. Both the cases arising out of FIR No.42 dated 30.3.1999 regarding the death of Des Raj and Nirmala and version put forth by Smt.Anchai complainant regarding the manner in which murder of Nirmala had taken place were entrusted to one Court and came up for consideration of charge before it, which framed the following charges in the case arising out of aforesaid FIR:-
"That on 29.3.1999 in the area of village Simla, Police Station Kalayat, at about 7.00 P.M., you all were members of an unlawful assembly with an common object of committing murders of Des Raj and Nirmala and at that time you were armed with deadly weapons to wit lathis, Jaili and Dranti, which used as weapon of offence are likely to cause death, thus you all committed the offence of rioting punishable under Section 148 Indian Penal Code and within my cognizable.
Secondly, on the aforesaid date, time and place you all, in prosecution of common object of the said unlawful assembly, formed by you, did commit murders of Des Raj and Nirmala by intentionally causing their death and thereby committed an offence punishable under Section 302 Indian Penal Code read with Section 149 Indian Penal Code and within my cognizance.
Thirdly, on the aforesaid date, time and place you all knowing that certain offence, to wit murders of Des Raj and Nirmala, punishable with death, has been committed, did cause certain evidence of the said offence to disappear to wit cremated the dead bodies of Des Raj and Nirmala to screen yourself from punishment and thereby committed an offence under Section 201 Indian Penal Code and within my cognizance.
And I hereby direct you all to be tried by this Court on the aforesaid charge."
and following charges had been framed in the complaint case filed by Smt.Anchai:-
"That on 29.3.1999 in the area of village Simla Police Station Kalayat, at about 7.00 P.M., you all were members of an unlawful assembly having an common object of committing murders of Nirmala and at that time you were armed with deadly weapons to wit ****
lathis, jaili and Brick-bats which used as weapon of offence are likely to cause death, thus you all committed the offence of rioting punishable under Section 148 Indian Penal code and within my cognizance.
Secondly on the aforesaid date time and place, you all, in prosecution of common object of the said unlawful assembly, formed by you, did commit murders of Nirmala by intentionally causing her death and thereby committed an offence punishable under section 302 Indian Penal Code read with Section 149 Indian Penal Code and within my cognizance.
Thirdly, on the aforesaid date, time and place, you all knowing that certain offence, to wit murder of Nirmala, punishable with death, has been committed, did cause certain evidence of the said offence to disappear to wit cremated the dead body of Nirmala to screen yourself from punishment and thereby committed an offence under Section 201 Indian Penal Code and within my cognizance.
And I hereby direct you all to be tried by this Court on the aforesaid charge."
Since in both the cases, when appellants pleaded not guilty to the charge, the prosecution as well as complainant were called upon to lead their evidence.
To bring home the charge, in the case arising out of FIR No.42 dated 30.3.1999, the prosecution examined Constable Vijender Singh as PW1, Head Constable Dalbir Singh as PW2, Constable Satyawan as PW3, Constable Ram Niwas as PW4, Inder Singh as PW5, Chander Bhan as PW6, SI Shamsher Singh as PW7, Pappu as PW8, SI Randhir Singh as PW9 and Sukram Pal as PW10.
In the complaint case, the complainant Smt.Anchai examined herself as PW1, Dharam Pal as PW2, Jagdish Chand as PW3 and Suresh Kumar as PW4.
On completion of evidence and after recording of statements under Section 313 Cr.P.C. of the persons arrayed as accused in each of these cases, arguments were heard and in case arising out of aforesaid FIR, the trial Court acquitted Matri and Beermati of the charges framed against them and convicted and sentenced all other accused namely Dharam Pal, Jagdish, Suresh, Rajesh, Sushil, Ram Niwas, Chander Bhan, Krishan, Bhim Singh, Prem Singh, Ram Chander son of Hari Kishan, Dalip and Ram Chander son of Ronak of the offences for which they stood charged and in the complaint case, the trial Court acquitted Reshma, Rajpati, Kelo wife of Chander Bhan and Kelo wife of Pappu and convicted and sentenced all the remaining accused namely Inder, Chander Bhan, Zile Singh, Ziya, Khushi Ram, Jagpal, Miyan Singh, Mohinder, Tilku, Bhajna, Ramesh, Ajmer, Bhartu and Pappu of the offences for which they stood charged. Results of the trial did not satisfy any party and as such Criminal Appeal No.568-DB of 2003 has been filed by the accused convicted in the case arising out of FIR No.42 dated ****
30.3.1999 and Criminal Appeal No.206-DBA of 2004 has been filed by the State of Haryana against the acquittal of Matri and Beermati, while Criminal Appeals No.401-DB and 424-DB of 2003 have been filed by the accused convicted in complaint case and Criminal Appeal No.209-DBA of 2004 has been filed by complainant Smt.Anchai against the acquittal of Rehsma, Rajpati, Kelo wife of Chander Bhan and Kelo wife of Pappu.
We have heard Mr.Baldev Singh, learned Senior Counsel appearing on behalf of the appellants in Criminal Appeal No.401-DB of 2003 and for the respondents in Criminal Appeal No.209-DBA of 2004, Mr.Vinod Ghai, learned counsel appearing on behalf of the appellants in Criminal Appeal No.424-DB of 2003, Mr.O.P.Goel, learned Senior Counsel appearing on behalf of the appellants in Criminal Appeal No.568-DB of 2003 and 209-DBA of 2004 for the respondents in Criminal Appeal No.206-DBA of 2004 and Mr.B.S.Rana, learned Senior Deputy Advocate General, Haryana for the State and perused the records.
In relation to the incident, in which Des Raj and Nirmala had lost their lives, two versions were available before the trial Court, one which was arising out of FIR No.42 dated 30.3.1999 in which Inder Singh was complaining not only about the murder of his brother but also of the murder of Nirmala. Second is the version, which has been put forth in the complaint filed by Smt.Anchai, which confines itself to the murder of Nirmala and tries to highlight the failure of the investigating agency to look into the complaint, which is alleged to have been ****
made by Smt.Anchai to the SHO regarding the manner in which her daughter had been killed. Learned counsel for the parties agreed that to deal with a situation like this, Legislature had enacted the provisions of Section 210 of the Code of Criminal Procedure. This Section deals with a situation where a party is not satisfied with a police investigation of a crime and comes up with another version and Sub Section (3) thereof provides the course which is to be adopted by the Court in an eventuality where the complainant names persons other than those who are arrayed as accused by the police in the challan which had been presented.
Normally, we find that the complainant in both the cases i.e. in the police case as well as in the complaint case is the same but the present case is unique to the extent that while FIR had been initiated at the behest of Inder Singh whereas complaint incorporates the grouse of the opposite party i.e. Smt.Anchai. Another unique factor which has come to light during deliberations in Court is the fact that while the police case deals with the death of Des Raj and Nirmala but in the complaint the grouse is evinced only regarding the murder of Nirmala.
The judgment in the complaint case is being assailed on the ground that the trial Court has erred in referring to the evidence led in the State case while appraising what was brought on the record before it in the complaint case in the shape of evidence of complainant Smt.Anchai PW1, Dharam Pal PW2, Jagdish Chand PW3 and Suresh Kumar PW4. Our attention has been drawn to para 13 of the judgment, wherein the trial Court has observed as under:- ****
"..................In State case, in which the accused are the complainant party, Randhir Singh Sub Inspector proved that from the cremation ground ashes and bones of Des Raj and Nirmala were lifted and made into parcel and then sent to FSL and as per FSL report in the State case, the bones were found that of human bones. Thus, the death of Des Raj and Nirmala is proved and even their death is corroborated by the ocular evidence."
In para 14, the trial Court has observed as under:- "..............In the State case, there is sufficient evidence that deceased Des Raj was murdered by the complainant party." In para 15, the trial Court has observed as under:- "..............When Nirmala was at her home and even she had not participated in the Pancnayat, then there was no reason for the complainant party to murder Nirmala and this aspect of the case has also been discussed in detail in the State case, in which the complainant party is the accused."
In para 16, the trial Court has observed as under:- "The version of the complainant and the witnesses produced by her that Des Raj was murdered by the Panchayat cannot be believed as it is duly established in the cross case that Des Raj was not murdered before the Panchayat or by the Panchayat rather Des Raj was ****
murdered by the complainant party. The statement of the complainant that Des Raj was murdered in the panchayat cannot be accepted as firstly, there was no reason for the Panchayat to murder Des Raj. The annoyance if any was to the accused party or the complainant party........."
In para 18, the trial Court has observed as under:- "The evidence produced in both the cases is sufficient to prove that Des Raj was murdered by the complainant party and since Des Raj was murdered by the complainant party, so the accused party, in order to take the revenge formed unlawful assembly and then since Des Raj was murdered, they also murdered Nirmala Devi. The accused were having the grudge in their minds as Des Raj, real brother of Inder Singh was murdered, whereas Nirmala was also at fault. So in order to take the revenge, they formed unlawful assembly and murdered Nirmala Devi. Statement of complainant and witnesses produced by her cannot be disbelieved that the accused murdered Nirmala Devi in their presence by causing injuries with their respective weapons." ****
It is in view of this lapse, Mr.Baldev Singh, learned senior counsel appearing on behalf of the appellants stated that the conviction and sentences of Inder, Chander Bhan, Zile Singh, Ziya, Khushi Ram, Jagpal, Miyan Singh, Mohinder, Tilku, Bhajna, Ramesh, Ajmer, Bhartu and Pappu for the murder of Nirmala cannot be sustained. In support of this submission, learned counsel had placed reliance on the judgment in Nathilal and others Vs. State of U.P. and another, 1990 Supreme Court Cases (Criminal) 638 and states that law settled therein clearly supports his contention and would warrant similar intervention by this Court. Para 2 of the aforesaid judgment reads as under:- "We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross case. Each case must ****
be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
The position regarding the case arising out of the FIR is not different and the judgment therein too cannot be sustained.
On perusal of the charge, we find that the trial Court has clubbed in one head the murders of Des Raj and Nirmala. This fact by itself would vitiate the trial as the same does not comply with the provisions of Sections 218 and 31 of the Code of Criminal Procedure which require framing of a separate charge for distinct offences as has been held by us in Murder Reference No.5 of 2005, State of Haryana Vs.Krishan and others decided on September 08, 2005 wherein after adverting to the facts of that case, where appellants were being tried for murder of three persons, this Court has observed as under:- "One of the flaws in the proceedings conducted by the trial Court which has come to light during the course of arguments is the fact that though three persons had died in the incident yet a composite charge for all the three murders had been framed.
According to Section 218 of the Code of Criminal Procedure, which reads as under:-
"218. Separate charges for distinct offences:-(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately.
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.
(2)Nothing in sub-section(1) shall affect the operation of the provisions of sections 219,220,221 and 223.
a separate charge has to be framed for each of the offences, which have been committed in an incident. In the present case, persons, namely,Lakhan, Mohinder and Suresh are alleged to have been killed by the appellants Krishan, Ranjit and Balbir.
Viewed in the light of the provisions of Section 218 Cr.P.C.
referred to here-in-before, the trial Court was required to frame three separate charges against the persons arrayed as accused for the murders of Lakhan, Mohinder and Suresh. On the conclusion of the trial, the trial Court was required to examine the evidence in the light ****
of three separate charges and pass three different orders in relation to charges so framed and thereafter, if so required, award sentences as per the provisions of Section 31 of the Code of Criminal Procedure.
This is how the corresponding provisions in the Code of Criminal Procedure, 1898, namely, Sections 35 & 233 have been interpreted by the Privy Council in N.A.Subramania Iyer Vs. The King Emperor, The Calcutta Weekly Notes, Volume V (Privy Council), 866 where while dealing with the question whether the defect, which occurs on account of non compliance with the provisions of Section 233 of the Code of Criminal Procedure could be cured under Section 537 of the Code of Criminal Procedure, the Court observed:- "Their Lordships cannot regard this as cured by Sec.537.
Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment. The illustration of the section itself sufficiently shows what was meant.
The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity.
Some pertinent observations are made upon the subject by Lord Herschell and Lord Russell of Killowen in Smurth- waite Vs. Hannay (1). Where in a civil case several causes of action were joined Lord Herschell says that "if unwarranted by any enactment or rule it is much more than an irregularity," and Lord Russell of Killowen in the same case says, "such a joinder of Plaintiffs is more than an irregularity; it is the constitution of a suit in a way not authorised by law and the rules applicable to procedure.
With all respect to Sir Francis Maclean and the other Judges who agreed with him in the case of Abdul Rahman Vs.The Empress (2), he appears to have fallen into a very manifest logical error in arguing that because all irregularities are illegal as he says in a sense and this trial was illegal that ****
therefore all things that may in his view be called illegal are therefore by that one adjective applied to them become equal in importance and are susceptible of being treated alike. But this trial was prohibited in the mode in which it was conducted, and their Lordships will humbly advise His Majesty that the conviction should be set aside. Their Lordships will make no order as to costs." This view was followed by the Bombay High Court in Krishnaji Anant Dange and another Vs.Emperor, A.I.R. 1932 Bombay 277, by the Lahore High Court in Pahlad Vs. Emperor, A.I.R 1921 Lahore 381, by the Calcutta High Court in Kanai Lal Paladi Vs. Emperor, A.I.R. (35) 1948 Calcutta 274 and accepted by the Supreme Court in Aftab Ahmad Khan Vs.The State of Hyderabad, A.I.R. 1954 S.C. 436, wherein it has been observed as under:-
"Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every such charge should be tried separately. There is no doubt that the object of Section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped ****
together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in Sections 234,235, 236 and 239.
Having regard to the facts and the circumstances of this case, we are of opinion that the present case falls under Section
235. It provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
XXX XXX XXX
No question of contravention of any express provision of the Code such as Section 233 arises and in the circumstances it is not necessary for us to consider how far the violation of any express provisions of the Code relating to the mode of a trial or otherwise constitutes an illegality which vitiates the trial as distinguished from an irregularity which is curable under Section 537."
Looked at from another angle, if the provisions of Sections 218 and 31 Cr.P.C. had been complied with, the appellants would have been convicted under three separate heads for the murders of ****
Lakhan, Mohinder and Suresh and three sentences of imprisonment would have been imposed on them, in addition whereto the trial Court would also have had to impose the sentences of fine on each count. In the present case, where the wife of one of the deceased Mohinder is seeking compensation under Section 357 Cr.P.C., additional fine which would have necessarily been collected, could have been appropriated towards payment of compensation to the widow of the deceased."
The lapse in the present case is not different. Not only a single charge framed qua the murders of Des Raj and Nirmala is illegal but it has in our opinion resulted in confusion. As a consequence whereof, the trial Court has fallen into the lapse of referring conclusion arrived at in case arising out of FIR No.42 in the complaint case. The framing of separate charges qua murders of Des Raj and Nirmala would, in our opinion, enable the trial Court to deal with the complaint case as a cross case qua murder of Nirmala alone and consequently help the trial Court to avoid the pit fall, which have been committed by it in the judgment dated 18.4.2003 in the complaint case. It was probably in this view of the matter that the learned counsel for the parties have agreed that the confusion created can only be resolved by ordering a re-trial of both complaint case as well as case arising out of FIR No.42.
For the reasons recorded above, judgments of the trial Court dated 18/21.4.2003 passed in cases arising out of FIR as well as in the complaint case and the conviction and sentences imposed upon the appellants are set aside and both the cases remanded to the Additional Sessions Judge, Kaithal to be re-tried after proper charges have been framed as is required by law. It is further directed that the Addl.Sessions Judge would deal with the trial as expeditiously as possible preferably within six months.
October 25,2005 (Kiran Anand Lall)
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