Punjab-Haryana High Court
Surinder Kaur vs State Of Punjab And Others on 1 August, 2023
Neutral Citation No:=2023:PHHC:099281
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Neutral Citation No. 2023:PHHC:099281
CRR-563-2020 (O&M)
Date of Decision: August 01, 2023
Surinder Kaur ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Present: - Mr. Suvir Sidhu and Mr. Gursher Singh Dhillon,
Advocates for the petitioner.
Mr. R.S. Khaira, DAG, Punjab.
Mr. P.K.S. Phoolka, Advocate for respondent Nos.2 and 3.
DEEPAK GUPTA, J.
This revision is directed against the order dated 30.01.2020
passed by learned Judicial Magistrate 1st Class, Bathinda, whereby an
application under Section 216 Cr.P.C. for amendment/addition of charge
under Section 326 IPC in a case arising out of FIR No.132, dated
24.09.2015, registered at Police Station Sangat, District Bathinda, under
Sections 323 and 325 IPC, has been declined.
2. FIR was lodged on the complaint of Smt. Surinder Kaur
(petitioner herein), as per which on 04.09.2015 at about 12.15 p.m.,
respondent Nos.2 and 3 had released the water from their house towards
her house. She asked them to stop the water flow, in response to which
respondent Nos.2 and 3 pushed her. She fell down. Respondent Ramesh
Kumar (wrongly mentioned as Rakesh Kumar in the memo of parties)
then hit an iron rod, which was pretty sharp on its edge at her hand;
whereas Ashok Kumar gave punches to her. She shouted for help, at
which her son Manjit Singh came to the spot. The assailants fled away.
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3. After necessary investigation, challan was filed to prosecute
respondent Nos.2 and 3 under Sections 323 and 325 read with 34 IPC.
The two respondents were charge-sheeted by the Court of learned Judicial
Magistrate 1st Class under the said Sections 323, 325/34 IPC.
4. It is contended by learned counsel for the petitioner-
complainant that during trial, Dr. (Maj.) Sheetal Jindal appeared twice
and made statements revealing the nature of injury on the person of
petitioner to be grievous in nature. The said injury was caused by a sharp-
edged weapon, which is clearly mentioned in the FIR. Learned counsel
has drawn attention towards the photograph (Annexure P-3) revealing
that phalanx of two fingers of the left hand of the petitioner were
completely severed, thus attracting Section 326 IPC. Learned counsel
contends that in the circumstances, the dismissal of the application for
alteration of charge, so as to add Section 326 IPC, is illegal.
5. Per contra, it is contended on behalf of counsel for
respondent Nos.2 and 3 that as per the medico-legal report and the
statement of PW Dr. (Maj) Sheetal Jindal, the injury in question was
caused by blunt weapon and therefore, learned Trial Court did not
commit any error in declining to add Section 326 IPC.
6. I have considered submissions of both the sides and perused
the record.
7. As per statement Annexure P-5 of Dr. (Maj.) Sheetal Jindal,
the injury caused to the petitioner-complainant is as under: -
"Avulsion of distal phalanx of both fourth and fifth digits of
left hand completely. Tenderness present. Fresh bleeding
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present."
8. The statement of Dr. (Maj.) Sheetal Jindal reveals further
that she reserved her opinion regarding the kind of weapon pending for
orthopedic opinion along with the X-ray report. However, police again
approached to seek her opinion about the nature of injury and then she
opined that as per her knowledge, the injury appeared to be grievous and
clinically seemed to be crush injury, whose margins were not clear and
so, weapon seemed to be blunt in nature.
9. It is, thus, clear that the opinion given by Dr. (Maj.) Sheetal
Jindal was not based on the advice of the orthopedic surgeon as was
advised by her earlier.
10. It is not in dispute that injury in question is grievous. The
FIR version is quite clear that injury was caused by an iron rod, which
was having pretty sharp edge.
11. In "Karam Singh v. Naresh and others" CRM-M-42223 of
2016 (O&M), decided by this Court on 22.11.2018, the allegation was
that accused had hit gandasi blow on the nose of the complainant. The
MLR revealed the kind of weapon used for causing the injury as blunt.
The Trial Court framed the charge under Section 325 IPC, as the injury
was described to be a lacerated wound and gandasi was not shown to
have been used from reverse side. It was held by trial court that if gandasi
is used from the side of its handle or wooden portion, then it would not
fall within the meaning of weapon of offence used for shooting, stabbing
or cutting. Said order was upheld by learned Addl. Sessions Judge. In the
petition before this court, reliance was placed upon "Prabhu v. State of
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Madhya Pradesh 2009(1) RCR (Criminal) 284, wherein it had been held
as under: -
"13. The heading of the Section provides some insight into the
factors to be considered. The essential ingredients to attract
Section 326 are: (1) voluntarily causing a hurt; (2) hurt caused
must be a grievous hurt; and (3) the grievous hurt must have been
caused by dangerous weapons or means. As was noted by this
Court in State of U.P. v. Indrajeet Alias Sukhatha (2000(7) SCC
249) there is no such thing as a regular or earmarked weapon for
committing murder or for that matter a hurt. Whether a particular
article can per se cause any serious wound or grievous hurt or
injury has to be determined factually. At this juncture, it would be
relevant to note that in some provisions e.g. Sections 324 and 326
expression "dangerous weapon" is used. In some other more
serious offences, the expression used is "deadly weapon" (e.g.,
Sections 397 and 398). The facts involved in a particular case,
depending upon various factors like size, sharpness, would throw
light on the question whether the weapon was a dangerous or
deadly weapon or not. That would determine whether in the case
Section 325 or Section 326 would be applicable."
12. After observing that though the kind of weapon used in the
offence was blunt, but at the same time, doctor had opined multiple
lacerated wounds with bleeding of 9x1 cm., bone deep spiral, triangular
shape on the nose extending from right to left margin on the nose and so
by taking into account the observations made in Prabhu's case (supra),
this Court directed the Trial Court to frame the charge under Section 326
IPC.
13. In the present case also, the injury in question resulted into
avulsion fracture, completely severing the digital phalanx of the two
fingers of the complainant. Specific allegation in the FIR is that weapon
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used was iron rod having sharp edge. Injury is grievous in nature and so
there was no reason for the Trial Court to decline the application for
addition of Section 326 IPC.
14. Apart from above, charge can be altered as per Section 216
Cr.P.C. at any stage before pronouncement of judgment. Only prima facie
case is to be seen at the stage. The charge should be as wide as possible.
Ultimately if, offence of lessor gravity is found to have been committed
comparing to the offence charged, conviction can be recorded
accordingly. However, if on conclusion of trial, graver offence is found to
have been committed as compared to the offence charged, then de novo
trial may have to be ordered depending upon the circumstances.
15. In view of the aforesaid discussion, particularly, clear
version in the FIR and the nature of the injury caused to the petitioner-
complainant, the impugned order cannot be sustained. Same is set aside.
The Trial Court is directed to frame charge against respondent Nos.2 and
3 under Section 326 IPC as well. As such, present petition is allowed.
16. However, it is made clear that none of the observations made
in this order should be construed as an expression of opinion on the
merits of the case, as Trial Court has to decide the matter on its own
merits on conclusion of the evidence, without being influenced by the
observations made hereinabove.
August 01, 2023 (DEEPAK GUPTA)
sarita JUDGE
Whether reasoned/speaking: Yes/No
Whether reportable: Yes/No
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