JASWANT SINGH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This criminal appeal filed in terms of clause (a) of the proviso to Sec. 408 of the Code of Criminal Procedure, Svt. 1989 ['Cr.P.C'] is directed against the judgment dtd. 16/3/2009 passed by the Chief Judicial Magistrate, Kathua ['the trial Court'] in case file No. 95/challan titled 'State vs Jaswant Singh whereby and where-under the accused Jaswant Singh-appellant herein has been convicted and sentenced to undergone simple imprisonment for a period of five years and a fine of Rs.5000.00 for commission of offence punishable under Sec. 326 RPC.

(2.) The impugned judgment of conviction and sentence is challenged by the appellant primarily on the following grounds:

(3.) Mr. Vishal Sharma learned counsel appearing for the appellant argues that the trial Court committed a serious error of law by convicting the appellant for commission of offence under Sec. 326 RPC when neither the police had challaned him for the said offence, nor a formal charge by the trial Court was framed under Sec. 326 RPC. He submits that the appellant was seriously prejudiced as he had no opportunity to cross-examine the prosecution witnesses on the charge of Sec. 326 RPC, nor could he lead his defence keeping in view that the charge he was required to meet was a charge under Sec. 326 RPC. He argues that the reliance placed by the trial Court on Sec. 535 Cr.PC is totally misplaced. He submits that in the instant case, the trial Court did not appreciate that because of framing of erroneous charge and by omission to frame the charge under Sec. 326 RPC for which the appellant was ultimately convicted, the appellant had been seriously prejudiced. He lastly urges that having regard to the facts and circumstances of the case and also having regard to the fact that offence under Sec. 326 RPC is not made out, it would serve the ends of justice if the appellant is given the benefit of probation.