The last plea raised by learned counsel for the appellant is
about alleged error in framing of charge by the trial Court. It is submitted
that in the charge, time of the offence is mentioned as, “In the night
between 30th and 31st March, 2003 prior to 4.00 a.m.”. According to
learned counsel for appellant, the evidence on record does not
necessarily prove that incident has taken place in the night and therefore,
this error in framing of charge has resulted in violation of justice.
52. Learned counsel for appellant in this respect relied on Main
Pal vs State of Haryana (2010) 10 SCC 130. However, the facts of
this authority clearly prove that the appellant was charged with offence
of trespassing the house of “P” with intent to assault “P” and for having
assaulted her by outraging her modesty. However, appellant was
convicted for outraging modesty of “S”, who was also present at the time
of alleged incident. In the said fact situation, it was held that the
appellant was misled by error in charge which caused prejudice to him,
thereby resulting in failure of justice.
53. Here in the case the charge nowhere specify the exact time.
It merely says prior to 4.00 a.m. of 31st March. Even if the words, “night
in between 30th and 31st March” are there in the charge, the cross
examination conducted on behalf of appellant and the evidence adduced
in the case including written statement filed by the appellant under
Section 313 of Code of Criminal Procedure, nowhere shows that he has
been in any way misled by the said words in the charge or it has caused
prejudice to the appellant. He was fully aware of what prosecution case
is against him and has led evidence accordingly. In the above referred
authority also, it was held that “there will be no prejudice or failure of
justice, where there was any error in the charge and accused was aware
of the error. Such knowledge can be inferred from the defence of the
accused and if defence of accused showed that he was defending himself
against real and actual charge and not erroneous charge, it will not result
into causing any prejudice to him”. It was further held that, “In judging
the question of prejudice, as of guilt, the courts must act with a broad
vision and look to the substance and not to the technicalities. The Court
has to see whether accused knew for what he was being tried for,
whether the main facts sought to be established against accused were
explained to him and whether he was given full and fair chance to defend
himself”. All these conditions are clearly satisfied in the instant case and
therefore, this last leg of argument advanced by learned counsel for
appellant also fails.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.656 OF 2005
Yogesh Dinesh Bharadwaj
V/s.
State of Maharashtra ]
CORAM : SMT. V.K. TAHILRAMANI, ACTING CJ &
DR. SHALINI PHANSALKARJOSHI, J.
JUDGMENT PRONOUNCED ON : 5th FEBRUARY, 2016
Citation:2016 ALLMR(CRI)1895 BOM
Print Page
about alleged error in framing of charge by the trial Court. It is submitted
that in the charge, time of the offence is mentioned as, “In the night
between 30th and 31st March, 2003 prior to 4.00 a.m.”. According to
learned counsel for appellant, the evidence on record does not
necessarily prove that incident has taken place in the night and therefore,
this error in framing of charge has resulted in violation of justice.
52. Learned counsel for appellant in this respect relied on Main
Pal vs State of Haryana (2010) 10 SCC 130. However, the facts of
this authority clearly prove that the appellant was charged with offence
of trespassing the house of “P” with intent to assault “P” and for having
assaulted her by outraging her modesty. However, appellant was
convicted for outraging modesty of “S”, who was also present at the time
of alleged incident. In the said fact situation, it was held that the
appellant was misled by error in charge which caused prejudice to him,
thereby resulting in failure of justice.
53. Here in the case the charge nowhere specify the exact time.
It merely says prior to 4.00 a.m. of 31st March. Even if the words, “night
in between 30th and 31st March” are there in the charge, the cross
examination conducted on behalf of appellant and the evidence adduced
in the case including written statement filed by the appellant under
Section 313 of Code of Criminal Procedure, nowhere shows that he has
been in any way misled by the said words in the charge or it has caused
prejudice to the appellant. He was fully aware of what prosecution case
is against him and has led evidence accordingly. In the above referred
authority also, it was held that “there will be no prejudice or failure of
justice, where there was any error in the charge and accused was aware
of the error. Such knowledge can be inferred from the defence of the
accused and if defence of accused showed that he was defending himself
against real and actual charge and not erroneous charge, it will not result
into causing any prejudice to him”. It was further held that, “In judging
the question of prejudice, as of guilt, the courts must act with a broad
vision and look to the substance and not to the technicalities. The Court
has to see whether accused knew for what he was being tried for,
whether the main facts sought to be established against accused were
explained to him and whether he was given full and fair chance to defend
himself”. All these conditions are clearly satisfied in the instant case and
therefore, this last leg of argument advanced by learned counsel for
appellant also fails.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.656 OF 2005
Yogesh Dinesh Bharadwaj
V/s.
State of Maharashtra ]
CORAM : SMT. V.K. TAHILRAMANI, ACTING CJ &
DR. SHALINI PHANSALKARJOSHI, J.
JUDGMENT PRONOUNCED ON : 5th FEBRUARY, 2016
Citation:2016 ALLMR(CRI)1895 BOM
