HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1281 OF 2009
JUDGMENT:
1. The appellant is convicted for the offence under Section 307 of IPC and sentenced to undergo rigorous imprisonment for a period of seven years vide judgment in SC No.459 of 2008 dated 30.09.2009 passed by the IV Additional Sessions Judge. Aggrieved by the same, the present appeal is filed.
2. The case of the prosecution is that on 13.11.2007, the appellant inflicted injuries on P.W.5 and also caused injuries to the husband of P.W.1. The Dying Declaration of P.W.5 was recorded, who stated that one person has stabbed him and later during the course of test identification parade, P.W.5 identified the appellant as the person who inflicted injuries.
3. In the said incident on 13.11.2007, after inflicting injuries on P.W.5, the appellant also inflicted injuries to another person who is the husband of P.W.1, according to the prosecution case.
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4. Crime No.196 of 2007 was registered by Mahabubnagar Railway Police Station in which P.W.5 was the complainant and the appelalnt herein was shown as accused. The present complaint was registered as Crime No.429 of 2007 by Mahabubnagar Rural, Mahabubnagar District. P.W.1, who is the wife of the deceased Balaiah stated that the deceased came home with injuries and he was taken to the hospital where he died. P.W.1 suspected that one person stabbed while he was returning home.
5. The Police, after investigation, registered the case under Section 302 of IPC for causing death of the husband of P.W.1 namely Balaiah.
6. On 24.11.2008, the IV Additional District and Sessions Judge framed charge against the appellant as follows:
"That you, on or about the 13th day of November, 2007 evening at 7.00 p.m at the back side of Cotton Mill, Mahabubnagar, did commit murder by intentionally causing the death of Balaiah S/o.Bheemaiah, age 38 years, Native of Marikal now R/o.Gangaputra Bhavan, New Prem Nagar, Mahabubnagar by stabbing with knive and that you thereby committed an offence punishable U/S 302 of the Indian Penal Code and within my cognizance."3
7. The learned Sessions Judge after recording the evidence of the witnesses P.Ws.1 to P.W.13, framed additional charges on 06.07.2009 as follows:
"FIRSTLY:
That you, on or about the 13th day of November, 2007 evening at 7.00 p.m at the back side of Cotton Mill, Mahabubnagar, you did an act namely attacked Balaiah with such intention to kill the said Balaiah and under such circumstances by that act you had caused the hurt to the said Bojja Venkataiah and that you thereby committed an offence punishable U/S 307 of Indian Penal Code and within my cognizance.
SECONDLY:
That you, during the course of same transaction, at the same time and place mentioned supra in Charge No.1, voluntarily caused hurt to Bojja Venkataiah by stabbing with knife, used as a weapon of offence is likely to cause death and that you thereby committed an offence punishable U/S 324 of Indian Penal Code and within my cognizance."
8. During the course of trial, P.W.5 was examined who stated that it was the appellant who inflicted injuries on him and also attacked another person on the very same day.
9. Learned Sessions Judge having found that no charge was framed for inflicting injuries on P.W.5, the learned Sessions Judge framed the charge under Section 307 and 324 of IPC as extracted above. After framing of the charge under Section 307 4 and 324 of IPC, the learned Sessions Judge has not given any opportunity to the appellant as required under Section 217 of Cr.P.C. The Court may alter charge under Section 216 Cr.P.C and in the event of any such altering of charges, it is mandatory on the part of the Court to permit the appellant to recall, re-summon or examine any witness. As seen from the record, no such opportunity was given to the appellant nor the appellant has waived his right which accrues under Section 217 of Cr.P.C.
10. Crime No.190 of 2007 of Mahabubnagar Railway Police Station was registered against the appellant for inflicting the injuries on P.W.5. The appellant had pleaded guilty in the said crime and was sentenced to imprisonment which was already undergone by the appellant. In the said circumstances, when the appellant had already undergone imprisonment by pleading guilty for inflicting injuries on P.W.5, the learned Sessions Judge erred in framing the charge under Section 307 and 324 of IPC for inflicting injuries on P.W.5.
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11. When the case is filed by police for causing death of Balaiah, the husband of P.W.1, the Court and the prosecution ought to have concentrated upon proving the case against the appellant for causing the murder of Balaiah instead, the Court resorted to framing of charges under Sections 307 and 324 of IPC for inflicting injuries on P.W.5, which is not only improper but also coming up with a new case during the course of trial by the court. Neither the prosecution nor the Court have taken steps to seek identification from P.W.5 whether the other person who was attacked on the same day after attacking P.W.5 was Balaiah, the deceased. The Public Prosecutor ought to have taken steps by showing photograph of the deceased to identify whether he was the same person who was attacked by Balaiah after attacking P.W.5. Instead, the trial Court resorted to framing charge under Section 307 IPC for attacking P.W.5, which is erroneous, improper and also hit by Section 300 of Cr.P.C and Article 20(2) of the Constitution of India. It was brought to the knowledge of the trial court that the appellant was already convicted for causing hurt on P.W.5 in Cr.No.196 6 of 2007. In the said circumstances, the Court was barred from framing any charge or trying the appellant for attacking or causing injuries on P.W.5.
12. The trial court relied upon Section 300 (3) of Cr.P.C, to justify conviction of appellant for causing injuries to P.W.5.
Section 300 (3) of Cr.P.C reads as follows:
"Section 300(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted."
13. Section 300 (3) of Cr.P.C is not applicable to the facts and circumstances of the case. There are no consequences which arose to state that a different offence is made out to rely upon the said exception to convict the appellant for causing injuries to P.W.5. To illustrate, if a person injures 'x' causing grievous injuries and chare sheet is filed under Section 324 of IPC. The person pleads guilty and is convicted. However, 'x' dies due to the same injuries inflicted by the person, the court or police can resort to the exception under Section 300 (3) of Cr.PC to try the person for committing the murder of 'x' under 7 Section 302 of IPC. Such trial will not be barred under Section 300 of Cr.P.C.
14. The Mahabubnagar Railway Police filed charge sheet for the offence under Section 324 of IPC for inflicting five injuries to P.W.5. The appellant was convicted for causing the said injuries punishable under Section 324 of IPC, when pleaded guilty. The learned Sessions Court cannot convict the appellant again for the same acts, for the offence under Section 307 of IPC, which is causing injuries with an intention to commit murder.
15. The very course adopted of the learned Sessions Judge in framing charge for the offence under Section 307 of IPC against the appellant is totally improper. The Court cannot come to a total different case during the course of trial to convict the appellant. The case is for causing murder of one Balaiah. However, the Court had convicted the appellant for causing injuries to P.W.5. At the cost of repetition, for causing injuries on P.W.5, the appellant was already convicted and had already undergone imprisonment.
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16. The appellant had caused injuries to both P.W.5 and deceased at the same time according to the police. The police should have filed one case for causing injuries on deceased and P.W.5 or after the charge sheets were filed, police/state should have taken steps to try both the cases together. NO such procedure was adopted resulting in benefit to accused.
17. In the said circumstances, the prosecution has failed to make out a case against the appellant.
18. In the result, the impugned judgment of the trial Court in SC No.459 of 2008 dated 30.09.2009 is set aside. Since the appellant is on bail, his bail bonds shall stand cancelled.
19. Accordingly, Criminal Appeal is allowed.
__________________ K.SURENDER, J Date: 08.09.2022 kvs 9 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1281 OF 2009 Date: 08.09.2022.
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