Delhi High Court
State (Govt Of Nct Of Delhi) vs Ramtej on 17 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 13.09.2017
Judgment Pronounced on: 17. 10.2017
+ Crl. Rev. Petition 464/2017
STATE (GOVT OF NCT OF DELHI) ..... APPELLANT
Through: Mr. Amit Chadha, APP for
State along with SHO Sanjay
Sharma, Inspector Ugesh
Kumar and SI R.K. Yadav, P.S.
Vasant Kunj (South) Delhi.
versus
RAMTEJ ..... RESPONDENT
Through: Mr. Akhand Pratap Singh,
Advocate with Ms. Aditi Mittal,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J.
1. This Criminal Revision Petition impugns an order dated
29.08.2016 passed by the Court of Additional Sessions Judge,
Fast Track Court, Patiala House Courts, New Delhi (in short
‗ASJ') whereby an application of the prosecution under Section
216 of the Code of Criminal Procedure, 1973 (in short ‗the
Code') for framing additional/alternate charge under Section
302 of the Indian Penal Code, 1860 (in short ‗IPC') besides the
charges framed under Sections 376A/392/201 read with Section
411 of the IPC against the respondent/accused was dismissed.
2. The prosecution charge-sheeted the accused/respondent under
Sections 302/201/376A/377/392 read with Section 411 of the
IPC. The ASJ vide order dated 09.09.2015 framed charges
under Sections 201/376A/392/411 of the IPC stating that there
was no material for framing charges against the accused under
Section 377 of the IPC and that the offence under Section 376A
was a graver offence than the offence under Section 302 of the
IPC as the cause of death of the deceased was due to the
combined effect of strangulation and shock due to visceral
injuries and blood loss due to insertion of wooden objects in
both the private parts as per the post-mortem report and
therefore there was no question of framing an alternate charge
under Section 302 of the IPC.
3. This order dated 09.09.2015 of the ASJ was assailed by the
State in Criminal Revision Petition 254/2016. It was argued by
the State that the charge under Section 302 of the IPC has not
been framed by the ASJ even though there was ample medical
evidence on record. This petition was disposed of on
23.08.2016 with liberty to the State to approach the ASJ for
framing a charge on the basis of the material before the Court.
4. The petitioner exercised the liberty so granted by this Court and
moved an application before the ASJ for framing an
additional/alternative charge under Section 302 of the IPC. This
application was dismissed of vide impugned order dated
29.08.2016 whereby the ASJ surprisingly concluded that this
application was filed beyond the scope of liberty granted by this
Court wherein the State had prayed for amendment of the
charge and particularly for framing of charge under Section
302 of the IPC. The ASJ also observed that the application was
devoid of any merit in view of his earlier order dated
09.09.2015. He reiterated that the court has the power to convict
the accused for offences which are minor in relation to the
offences with which the accused has been charged with after
conclusion of trial if the evidence already led proves the
commission of the minor offence.
5. Learned APP for the State argued that the ASJ had committed a
grave error in law by holding that the offence under Section 302
is a minor offence in relation to the offence under Section 376A
of the IPC. He argued that the two offences do not belong to the
same genus and species and therefore cannot be treated as a
minor and major offence. He argued that the offence of rape is
distinct in comparison of the offence of murder and hence
cannot be considered as being minor or major and at the time of
framing of charge, offences cannot be compared particularly
when both the offences are extremely grave and serious.
6. He further argued that the ASJ committed an error in not
appreciating the spirit of the order passed by this Court on
23.08.2016 whereby liberty was granted to move the Trial Court
with an application under Section 216 of the Code for framing a
charge as per the material available on record.
7. He further argued that there was ample evidence on record to
bring home the guilt of the accused under Section 302 of the
IPC and therefore after going through the evidence prima facie,
an additional or alternative charge under Section 302 should
have been framed by the ASJ.
8. He further argued that in view of the fact that the victim was the
only eye witness and since she was murdered, it might be
difficult for the prosecution to prove the offence of commission
of rape on the victim in terms of Section 376A of the IPC. He
argued that the prosecution would be able to prove that the
accused committed the offence under Section 302 of the IPC by
way of circumstantial evidence on record i.e. last seen evidence
coupled with medical evidence and therefore an additional or
alternative charge under Section 302 of the IPC should have
been framed.
9. He further argued that no prejudice would be caused to the
accused if an additional/alternative charge under Section 302
would have been framed against him.
10. He relied upon the judgment of the Hon'ble Supreme Court in
Dalbir Singh v State of U.P (2004) 5 SCC 334 (para 17) in
support of his arguments.
11. Per contra, the learned counsel for the accused had argued that
there was no error in framing of charges by the ASJ.
12. He urged that a Court under Section 216 of the Code can only
alter or add to a charge that has already been framed but cannot
frame an alternative charge. He emphasised that such alteration
must be based on some material on record and not based on
conjectures. He relied on the judgment of the Hon'ble
Supreme Court in Anant Prakash Sinhs alias Anant Sinha
vs State of Haryana & Others (2016) 6 SCC 105 and a
judgment of this Court in X v State of NCT of Delhi 2016
LawSuit(Del) 2839 to further substantiate his point.
13. I have heard the learned APP for the State and learned counsel
for the respondent/accused.
14. The question that arises for consideration is whether the ASJ
should have framed an additional charge/ alternative charge
under Section 302 of the IPC in the facts and circumstances of
the case? To answer this query, three questions arise for the
Court's consideration -
i. Whether the Trial/Revisionist Court has the
power to alter/add charge to the original
charges?
ii. Whether the offence under Section 302 of
the IPC is of the same genus and species as
the offence given under Section 376A of the
IPC?
iii. Whether there is sufficient material on
record to frame a charge under Section 302
of the IPC in the present case?
15. It is appropriate to reproduce Section 216 of the Code:-
―216. Court may alter charge.
(1) Any Court may alter or add to any charge at
any time before judgment is pronounced.
(2) Every such alteration or addition shall be read
and explained to the accused.
(3) If the alteration or addition to a charge is such
that proceeding immediately with the trial is not
likely, in the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in the
conduct of the case, the Court may, in its
discretion, after such alteration or addition has
been made, proceed with the trial as if the altered
or added charge had been the original charge.
(4) If the alteration or addition is such that
proceeding immediately with the trial is likely, in
the opinion of the Court, to prejudice the accused
or the prosecutor as aforesaid, the Court may either
direct a new trial or adjourn the trial for such
period as may be necessary.
(5) If the offence stated in the altered or added
charge is one for the prosecution of which previous
sanction is necessary, the case shall not be
proceeded with until such sanction is obtained,
unless sanction has been already obtained for a
prosecution on the same facts as those on which
the altered or added charge is founded.‖
16. The Hon'ble Supreme Court in CBI v. Karimullah Osan
Khan, (2014) 11 SCC 538 laid down the scope of
adding/altering charges under Section 216 of the Code as
under:-
―17. Section 216 CrPC gives considerable power
to the trial court, that is, even after the
completion of evidence, arguments heard and
the judgment reserved, it can alter and add to
any charge, subject to the conditions mentioned
therein. The expressions "at any time" and
before the "judgment is pronounced" would
indicate that the power is very wide and can be
exercised, in appropriate cases, in the interest of
justice, but at the same time, the courts should
also see that its orders would not cause any
prejudice to the accused.
18. Section 216 CrPC confers jurisdiction on all
courts, including the Designated Courts, to alter or
add to any charge framed earlier, at any time
before the judgment is pronounced and sub-
sections (2) to (5) prescribe the procedure which
has to be followed after that addition or alteration.
Needless to say, the courts can exercise the power
of addition or modification of charges under
Section 216 CrPC, only when there exists some
material before the court, which has some
connection or link with the charges sought to be
amended, added or modified. In other words,
alteration or addition of a charge must be for an
offence made out by the evidence recorded during
the course of trial before the court. (See Harihar
Chakravarty v. State of W.B. [AIR 1954 SC 266 :
1954 Cri LJ 724] ) Merely because the charges
are altered after conclusion of the trial, that
itself will not lead to the conclusion that it has
resulted in prejudice to the accused because
sufficient safeguards have been built in Section
216 CrPC and other related provisions."
17. There is no doubt that the trial court can alter/add to a charge
already framed at any stage before the judgment is pronounced
provided that the safeguards under Section 216 and 217 of the
Code are followed so that no prejudice is caused to the accused.
18. The ASJ dismissed the application of the State under Section
216 of the Code to frame additional/alternative charge under
Section 302 of the IPC in addition to the charge under Section
376A of the IPC on the ground that the offence under Section
302 is a minor offence in relation to the offence under Section
376A of the IPC and therefore was no question of framing an
alternative charge under Section 302 of the IPC.
19. It is important to reproduce Section 222 of the Code at this
juncture:
―222. When offence proved included in offence
charged
(1) When a person is charged with an offence
consisting of several particulars, a combination
of some only of which constitutes a complete
minor offence, and such combination is proved,
but the remaining particulars are not proved,
he may be convicted of the minor offence,
though he was not charged with it.
(2) When a person is charged with an offence
and facts are proved which reduce it to a minor
offence, he may be convicted of the minor
offence, although he is not charged with it.
(3) When a person is charged with an offence, he
may be convicted of an attempt to commit such
offence although the attempt is not separately
charged.
(4) Nothing in this section shall be deemed to
authorise a conviction of any minor offence where
the conditions requisite for the initiation of
proceedings in respect of that minor offence have
not been satisfied. Illustrations
(a) A is charged, under section 407 of the Indian
Penal Code (45 of 1860), with criminal breach of
trust in respect of property entrusted to him as a
carrier. It appears, that he did commit criminal
breach of trust under section 406 of that Code in
respect of the property, but that it was not
entrusted to him as a carrier. He may be convicted
of criminal breach of trust under the said section
(b) A is charged, under section 325 of the Indian
Penal Code (45 of 1860), with causing grievous
hurt. He proves that he acted on grave and sudden
provocation. He may be convicted under section
335 of that Code.‖
20. A person can be convicted of an offence for which he was not
charged with if that offence is a minor in relation to the offence
for which he was charged with. No definition is provided in the
Code or any other statute of a ‗minor offence' but help can be
taken from the illustrations itself given under Section 222 of the
Code. A three judges bench of the Hon'ble Supreme Court in
Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC
577 interpreted the meaning of a ‗minor offence' as under:
―16. What is meant by "a minor offence" for the
purpose of Section 222 of the Code? Although the
said expression is not defined in the Code it can
be discerned from the context that the test of
minor offence is not merely that the prescribed
punishment is less than the major offence. The
two illustrations provided in the section would
bring the above point home well. Only if the two
offences are cognate offences, wherein the main
ingredients are common, the one punishable
among them with a lesser sentence can be
regarded as minor offence vis-à-vis the other
offence.‖
21. The Hon'ble Supreme Court in Rafiq Ahmad v. State of U.P.,
(2011) 8 SCC 300 had explained which offences would fall
within the same genus and species as under:
―31. With the passage of time more and more such
cases came up for consideration of this Court as
well as the High Courts. The development of law
has not changed the basic principles which have
been stated in the judgments aforereferred.
Usually an offence of grave nature includes in
itself the essentials of a lesser but cognate
offence. In other words, there are classes of
offences like offences against the human body,
offences against property and offences relating
to cheating, misappropriation, forgery, etc. In
the normal course of events, the question of
grave and less grave offences would arise in
relation to the offences falling in the same class
and normally may not be inter se the classes. It
is expected of the prosecution to collect all
evidence in accordance with law to ensure that the
prosecution is able to establish the charge with
which the accused is charged, beyond reasonable
doubt. It is only in those cases, keeping in view the
facts and circumstances of a given case and if the
court is of the view that the grave offence has not
been established on merits or for a default of
technical nature, it may still proceed to punish the
accused for an offence of a less grave nature and
content.‖
22. Therefore to decide whether an offence is a minor offence in
relation to another offence under Section 222 of the Code, it
needs to be ascertained whether both are cognate offences or
that they belong to the same genus and species of offences.
Punishment alone cannot be the deciding factor in determining
the minor offence as held by the Hon'ble Supreme Court in
Shamnsaheb M.Multtani's case (supra).
23. The ASJ held that the offence under Section 302 of the IPC is a
minor offence in relation to the offence under Section 376A of
the IPC and therefore there was no need to frame an alternative
charge under Section 302. Sections 376A is reproduced below:
―376A. Punishment for causing death or
resulting in persistent vegetative state of
victim.--
Whoever, commits an offence punishable under
sub-section (1) or sub-section (2) of section 376
and in the course of such commission inflicts an
injury which causes the death of the woman or
causes the woman to be in a persistent vegetative
state, shall be punished with rigorous
imprisonment for a term which shall not be less
than twenty years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that person's
natural life, or with death.‖
24. Relevant part of Section 300 which defines Murder and Section
302 are also reproduced below: -
―300. Murder ---
Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death
is caused is done with the intention of causing
death, or
2ndly.--If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or
3rdly.--If it is done with the intention of causing
bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or
4thly.--If the person committing the act knows
that it is so imminently dangerous that it must,
in all probability, cause death, or such bodily
injury as is likely to cause death, and commits
such act without any excuse for incurring the
risk of causing death or such injury as
aforesaid.
........................
302. Punishment for murder.--
Whoever commits murder shall be punished with
death or [imprisonment for life], and shall also be
liable to fine.‖
25. A comparison of Sections 376A and 300 brings out the
difference in the ingredients of these Sections. To convict a
person under Section 376A of the IPC, the prosecution first
needs to establish that rape was committed on the victim and
that in the course of commission of rape the accused inflicted
such injury which was the cause of the victim's death or was the
cause of the victim being in a persistent vegetative state.
Therefore it is imperative to prove the commission of rape
under this Section before proceeding to the second ingredient.
To hold an accused guilty under Section 300, the intention of
the accused to cause death has to be established or else the case
would come under culpable homicide not amounting to murder.
The difference between the two Sections is not of degree, even
though the victim has to be dead for both the Sections to be
attracted. Section 376A nowhere refers ‗Murder', rather it uses
the words ‗causes the death' which does not attract the essential
ingredient of Section 300 which requires intention of the
accused to cause death. Under Section 376A, even if the
accused had no intention of causing death but such injuries to
cause death or cause the victim to be in a persistent vegetative
state was inflicted during the commission of rape; the accused
would be guilty under this Section. But under Section 300,
intention has to be established to hold the person guilty of
Murder.
26. Further the minimum punishment prescribed under Section 302
(punishment for murder) is imprisonment for life while the
minimum punishment prescribed under Section 376A is
imprisonment for 20 years. Therefore the offence under Section
300 of the IPC cannot be said to be a minor offence in relation
to the offence under Section 376A of the IPC.
27. Moreover, under Section 222 of the Code, at the time of
framing of charges, the Court cannot speculate if the accused
would be convicted for an offence. It can also not presume that
some of the ingredients of an offence constitute the ingredients
of another minor offence. It is important to note that it is only at
the stage of final adjudication when the Court has the power to
convict the accused for a minor offence even though the charge
could not be framed. The state has been insisting since the stage
of deciding point of charge before the ASJ who continued to be
under a wrong belief that the accused can be convicted for the
minor offence under Section 302 of the IPC in relation to the
offence under Section 376A of the IPC without caring to peruse
the ingredients of both the offences and without realising that it
was not the stage of final adjudication. Chapter XVI of the IPC
has the heading ―Of offences affecting the human body‖. This
chapter, inter alia, contains the sub-headings ―Of offences
affecting life‖ for Sections 299 to 311 and ―Sexual offences‖ for
Sections 375 to 376E. As held by the Hon'ble Supreme Court
in Rafiq Ahmed's case (supra), the quantum of grave and less
grave offences would arise in relation to the offences falling in
the same class and not inter se classes of offence.
28. There is force in the arguments of the learned APP that since
the victim had died and due to the nature of injuries inflicted on
her, it might be difficult for the prosecution to prove the offence
of rape which would result in the accused being acquitted
altogether resulting in the casualty of justice. It might be easier
for the prosecution to prove Murder as per Section 300 given
the nature of injuries, medical evidence and last seen evidence.
29. PW-5 Dr. Abhishek Yadav who conducted the post-mortem of
the deceased opined that the cause of death was due to a
combined effect of ligature strangulation and shock due to
visceral injuries and blood loss. He further opined that the
injuries no.3, 9 and 10 were individually and collectively
sufficient in the ordinary course nature to cause death. Injuries
no. 9 and 10 of the victim's post-mortem report show that a
wooden stick was inserted into the victim's vaginal canal and
anal canal. The APP's argument that it might be difficult to
prove rape finds force in view of these injuries as all biological
as well as physical evidence which is essential to prove
commission of rape might have been destroyed. Without going
in to the details of evidence on record, a cursory look at the
post-mortem report shows that a case for Murder under Section
300/302 of the IPC is prima facie made out. Impugned order is
per se whimsical, illegal & perverse and speaks of non-
application of judicial approach and grave error has been
committed by the ASJ by which the failure of justice has in fact
occasioned on account of non-framing of charge under Section
302 of the IPC.
30. The powers of the revisional court to frame a charge where
there is an omission to frame a charge has been provided under
Section 464 of the Code which is reproduced below:
―464. Effect of omission to frame, or absence of,
or error in, charge.--(1) No finding, sentence or
order by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no
charge was framed or on the ground of any error,
omission or irregularity in the charge including
any misjoinder of charges, unless, in the opinion of
the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned
thereby.
(2) If the Court of appeal, confirmation or
revision, is of opinion that a failure of justice
has in fact been occasioned, it may,--
(a) in the case of an omission to frame a charge,
order that a charge be framed, and that the
trial be recommended from the point
immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity
in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the
facts of the case are such that no valid charge
could be preferred against the accused in respect of
the facts proved, it shall quash the conviction.‖
31. As per the trial court record, trial is at the final stage of
arguments. It would not be out place to refer to Section 217of
the Code:
―217. Recall of witnesses when charge altered.--
Whenever a charge is altered or added to by the
Court after the commencement of the trial, the
prosecutor and the accused shall be allowed--
(a) to recall or re-summon, and examine with
reference to such alteration or addition, any
witness who may have been examined, unless the
Court, for reasons to be recorded in writing,
considers that the prosecutor or the accused, as the
case may be, desires to recall or re-examine such
witness for the purpose of vexation or delay or for
defeating the ends of justice;
(b) also to call any further witness whom the
Court may think to be material.‖
32. In light of the above discussion and the facts and circumstances
of the present case, impugned order dated 29.08.2016 passed by
the ASJ declining the request of the prosecution to frame
additional charge under Section 302 of the IPC is set aside. The
ASJ is directed to frame an additional charge under Section 302
of the IPC and commence the trial in accordance with law
keeping in view the provisions of Section 217 and Section
464(2) (a) (b) of the Code. It is directed that the trial shall be
continued on a day to day basis and the ASJ shall conclude the
trial within 3 months of receiving this order.
33. Trial court record be sent back forthwith.
34. Copy of this order be circulated to all the judicial officers for
their knowledge and guidance.
(VINOD GOEL)
JUDGE
OCTOBER 17 , 2017
//
