HARDAYAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) HEARD . The petitioner was tried for an offence under Sections 279/337/304-A IPC. After trial, the petitioner was convicted and sentenced as under :- Under Section 279 IPC RI for three months and fine of Rs. 250/-. In default to payment of fine, further RI for one month. Under Section 337 IPC RI for three months and fine of Rs. 250/-. In default of payment of fine, further RI for one month. Under Section 304-A IPC RI for one and a half year and fine of Rs. 500/-. In default of payment of fine, further RI for two months. All the sentences were to run concurrently.

(2.) THE petitioner preferred an appeal. It was contended that while in the charge, the number of the vehicle mentioned was HR 35/8444, in the order of conviction, the number of the vehicle mentioned was HR-35/8458 and, thus, charge was defective which prejudiced the petitioner. The plea was opposed on the ground that the correct number of the vehicle was HR 35/8458 and merely because in the charge, number mentioned was HR 35/8444, no prejudice was caused to the accused. It was submitted that on evidence, charge against the accused was fully proved. The lower appellate Court held that the charge has misled the accused and that a fresh trial was called for on the stage of framing of charge. Hence this petition. Learned counsel for the petitioner submitted that the lower appellate Court was not justified in ordering retrial. Once the lower appellate Court came to the conclusion that the petitioner was prejudiced on account of error in the charge, the petitioner ought to have been acquitted. Learned counsel for the State submitted that the observation of the lower appellate Court that prejudice was caused to the accused on account of mention of the wrong number of the vehicle in the charge-sheet was erroneous and conviction of the petitioner should have been upheld.

(3.) CASE of the prosecution is that Chander Bhan (since deceased) and Mahender Singh, PW-9 jointly hired a tempo driven by the petitioner and on account of rash and negligent driving, the said tempo overturned and Chander Bhan died. FIR was lodged by PW-2, Ramesh Kumar. Mahender Singh took his father to the hospital where he was declared dead. Tempo No. HR 35-8458 was taken into possession vide memo Ex. PW4/A by HC Jaswant Singh, PW-4. Investigation was conducted by PW-7 Babu Lal, SI. Post-mortem was conducted by Dr. S.K. Mahipat, PW-6. Version of PW-9 Mahender Singh was also corroborated by injured Chiranji, PW-3. In the initial version, Mahender Singh gave number of the vehicle as HR-35-8444.