JUDGMENT

1 This criminal appeal filed in terms of clause (a) of the proviso to Section 408 of the Code of Criminal Procedure, Svt. 1989 [‘Cr.P.C’] is directed against the judgment dated 16.03.2009 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/- for commission of offence punishable under Section 326 RPC.

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

(a) That the appellant having been charged by the trial Court under Section 336 RPC could not have been convicted for commission of offence punishable under Section 326 RPC ; and, (b) That even if the entire prosecution evidence on record, as if ,(

there is no challenge in cross-examination by the defence, is taken into consideration, the offence under Section 326 RPC would not be made out. The trial Court has erroneously and without appreciating the true import of Section 326 RPC has recorded the conviction under the said Section against the appellant.

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 Section 326 RPC when neither the police had challaned him for the said offence, nor a formal charge by the trial Court was framed under Section 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 Section 326 RPC, nor could he lead his defence keeping in view that the charge he was required to meet was a charge under Section 326 RPC. He argues that the reliance placed by the trial Court on Section 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 Section 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 Section 326 RPC is not made out, it would serve the ends of justice if the appellant is given the benefit of probation.

4 Having heard learned counsel for the parties and perused the material on record, I am in agreement with Mr. Sharma learned counsel for the appellant that in the face of evidence on record, offence under Section 326 RPC is not made out. It is so, notwithstanding the fact that the trial Court had framed a charge under Section 336 RPC and not under Section 326 RPC. The charge which was framed and read over to the appellant would disclose, prima facie, commission of an offence under Section 325 RPC.

5 As the prosecution story goes, ASI Kartar Singh of Police Station, Billawar recorded the statement of complainant on 06.12.2001 in Sub-District Hospital, Billawar. The complainant deposed that he had gone to his fields at 8 am where the appellant, all of a sudden, appeared and trespassed into his land. The appellant then started pelting stones indiscriminately upon the complainant, as a result whereof, one of the stones struck against his right eye. The complainant fell down and was taken to SDH Hospital, Billawar by his son. The complainant stated that in the injury that was caused by the appellant, he lost the sight of his one eye. On this statement made by the complainant, FIR No. 118/2001 under Section 336 RPC was registered in the Police Station, Billawar.

6 Upon completion of investigation, challan was presented before the trial Court on 23.01.2002 and a charge for offence under Section 336 RPC was framed by the trial Court against the appellant on 24.10.2002. The charge was read over to the appellant