Punjab-Haryana High Court
Sandeep Singh vs State Of Punjab on 10 April, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
2024:PHHC:048795
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-1281-2021 (O&M)
Date of Decision: 10.04.2024
Sandeep Singh ..................Petitioner
Versus
State of Punjab & another ................Respondents
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present: Petitioner - Sandeep Singh in person with
Mr. Manan Bhardwaj, Legal Aid Counsel.
Mr. Vinay Kumar Malhotra, DAG, Punjab.
Mr. Parampreet Singh Paul, Advocate,
for respondents No.2 to 5.
Respondent No.6 proceeded against ex parte.
Respondent No.7 is reported to have expired.
GURVINDER SINGH GILL, J.
1. The instant revision petition, filed by victim(injured), is directed against
order dated 23.09.2021 passed by the learned Additional Sessions Judge,
SAS Nagar, whereby an application filed by the petitioner seeking
amendment of charges, so as to substitute charges for offence under section
308 IPC with charges for offence under section 307 IPC, has been
dismissed.
2. The matter pertains to a trial arising out of a FIR No.27 dated 07.02.2017
registered at Police Station Sadar, Kurali, under Sections 308, 341, 325, 323,
201, 34 IPC, wherein charges were framed against accused for offences
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under section 308 IPC. The FIR in question was lodged at the instance of
Manmohan Singh, wherein it is stated that on 05.02.2017, he as well as other
members of his family and also his friend Sandeep Singh had gone to attend
marriage of his aunt's (Bua's) grand-daughter namely Manpreet Kaur at
Kalsi Farm, Kurali. It is alleged that at about 5:00 PM, when Manjit Kaur
wife of Piara Singh, daughter of complainant's another aunt (Bua), was
chatting with the complainant's cousin Ravinder Singh, the complainant told
his cousin Ravinder Singh that since their family (complainant's family) was
not on talking terms with them for the last 10-12 years, he should not chat
with Manjit Kaur. Thereupon, Manjit Kaur's husband, namely, Piara Singh
and his son-in-law, who is resident of Kiri Afgana, came there and started
abusing the complainant. It is further alleged that in the meantime Gurmeet
Singh, Bhupinder Singh, Ramandeep Singh and Damanpreet Singh also
came there and started abusing the complainant and also issued threats to
cause harm to him. However, they were separated by their relatives. After
the wedding was over, when the complainant and his friend Sandeep Singh
were proceeding to the main gate of the palace so as to return to their
houses, Gurmeet Singh, Bhupinder Singh, Damanpreet Singh, Raman Singh,
Piara Singh and son-in-law of Piara Singh, accompanied by 3-4 unknown
persons waylaid them. It is alleged that while Damanpreet Singh was
carrying an iron rod, the remaining were carrying sticks. It is alleged that
Piara Singh exhorted his companions to teach the complainant a lesson for
bullying them after consuming liquor at the wedding and inflicted a blow
with stick on his (complainant's) head hitting him below his right eye. It is
alleged that Damanpreet Singh inflicted a blow with iron rod on the head of
Sandeep Singh as a result of which Sandeep Singh fell on the ground. It is
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further alleged that while the complainant was attending to Sandeep Singh,
all the accused inflicted blows to them with sticks and rods and also kicked
them. The other relatives present at the spot, however, saved them from the
assailants, who ran away from the spot with their respective weapons while
issuing threats. Since Sandeep Singh was seriously injured, he was taken to
PGIMER, Chandigarh, where the Doctor informed that on account of
fracture in the head, a surgery was to be performed.
3. Upon conclusion of investigation, challan was presented against the accused.
Learned Illaqa Magistrate upon finding that the facts, prima facie, disclosed
commission of an offence under Section 308 IPC, which is triable exclusive
by Court of Sessions, committed the case to the Court of Sessions. Upon the
matter being entrusted to the Court of Additional Sessions Judge, charges
were framed against the accused for offence under Section 308 IPC.
4. The petitioner, thereafter, moved an application in terms of Section 216
Cr.P.C. so as to get the charge altered from Section 308 IPC to Section 307
IPC. The said application was, however, dismissed by the learned
Additional Sessions Judge vide order dated 23.09.2021, which has been
assailed in the present revision petition.
5. Learned counsel for the petitioner submitted that it is a case where the
petitioner had sustained an injury with an iron rod on his head and the said
injury was inflicted with such great force that it not only led to fracture of
his skull, but has left him crippled for life and till date he is on a wheel-chair
having been permanently disabled to the extent of 70%. It has been
submitted that the injury in question has been opined to be 'dangerous to
life' and that the manner in which the injury has been caused by the accused
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by waylaying the petitioner, who was accompanying the complainant, after
the marriage ceremony was over, would clearly show that it was a pre-
meditated murderous assault and thus attract an offence under Section 307
IPC.
6. Opposing the petition, learned counsel representing the accused i.e.
respondents No.2 to 5 submitted that it is a case of solitary injury and that
too with a blunt edged weapon i.e. an iron rod and as such, it cannot be said
that the injury in question had been inflicted by the accused with an intention
to kill him or to make a murderous assault upon him. It has been submitted
that the complainant, nowhere in the FIR, alleged that the injury had been
inflicted with an intention to make an attempt to commit murder and that it
is only at the stage of recording statement of the petitioner during the
proceedings of trial that such an improvement has been made by him. It has
also been submitted that it is not a case of any pre-meditation on part of the
accused and that the occurrence had taken place pursuant to some exchange
of hot words at a wedding. It has also been submitted that the mere fact that
the injury was caused on the head would not be sufficient to charge the
accused for an offence under Section 307 IPC.
7. Learned counsel further submitted that even though the doctor at a belated
stage opined that the injury could have been dangerous to life, but the
medical opinion is not the only guiding factor for the Courts and is not
binding upon the Courts and that the Courts are free to examine and evaluate
an injury to arrive at a just conclusion. Learned counsel in order to buttress
his aforesaid submission places reliance upon Gangabhavani Vs. Rayapati
Venkat Reddy & others, 2013 (15) SCC 298.
CRR-1281-2021 (O&M) )
8. Learned State counsel submitted that since the accused are already being
tried by the Court of Sessions for an offence under Section 308 IPC, even if
any alteration is made so as to charge the accused for offence under Section
307 IPC instead of offence under Section 308 IPC, the same would not have
any effect on proceedings of trial and that it will always be open to the trial
Court either to completely acquit the accused or to hold him guilty for any
lesser offence.
9. This Court has considered the aforesaid rival submissions. The controversy
in the present case can be crystallized to the following question:
"Whether the solitary grievous injury on head of petitioner,
inflicted with a blunt edged weapon, will essentially attract
offence under section 308 IPC and not 307 IPC?"
10. Before proceeding further, it is apposite to bear in mind the nature of
exercise which the trial Court is expected to conduct at the stage of
considering framing of charges. It is a well settled principle that at the stage
of framing of charges, the Court has to sift and weigh the prosecution
evidence on record only for the limited purpose to find out if the same
prima-facie discloses the necessary ingredient to constitute the alleged
offence. Hon'ble Supreme Court in Central Bureau of Investigation Versus
K. Narayana Rao, 2012(9)SCC 512, while reiterating the law laid down in
P.Vijayan Versus State of Kerala and another, 2010(1) R.C.R. (Criminal)
826 and in Sajjan Kumar Versus Central Bureau of Investigation, 2010(4)
R.C.R. (Criminal) 382, held as under:-
"12. While considering the very same provisions i.e., framing of charges and discharge
of accused, again in Sajjan Kumar (supra), this Court held thus:
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"19. It is clear that at the initial stage, if there is a strong suspicion which leads
the court to think that there is ground for presuming that the accused has
committed an offence, then it is not open to the court to say that there is no
sufficient ground for proceeding against the accused. The presumption of
the guilt of the accused which is to be drawn at the initial stage is only for
the purpose of deciding prima facie whether the court should proceed with
the trial or not. If the evidence which the prosecution proposes to adduce
proves the guilt of the accused even if fully accepted before it is challenged
in cross-examination or rebutted by the defence evidence, if any, cannot
show that the accused committed the offence, then there will be no
sufficient ground for proceeding with the trial.
20. A Magistrate enquiring into a case under Section 209 Criminal Procedure
Code is not to act as a mere post office and has to come to a conclusion
whether the case before him is fit for commitment of the accused to the
Court of Session. He is entitled to sift and weigh the materials on record,
but only for seeing whether there is sufficient evidence for commitment,
and not whether there is sufficient evidence for conviction. If there is no
prima facie evidence or the evidence is totally unworthy of credit, it is the
duty of the Magistrate to discharge the accused, on the other hand, if there
is some evidence on which the conviction may reasonably be based, he
must commit the case. It is also clear that in exercising jurisdiction under
Section 227 Criminal Procedure Code, the Magistrate should not make a
roving enquiry into the pros and cons of the matter and weigh the evidence
as if he was conducting a trial.
Exercise of jurisdiction under sections 227 and 228 Criminal Procedure
Code
21. On consideration of the authorities about the scope of Sections 227 and 228
of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 Criminal Procedure Code has the undoubted power
to sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made
out. The test to determine prima facie case would depend upon the
facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion
against the accused which has not been properly explained, the court
will be fully justified in framing a charge and proceeding with the
VIMAL KUMAR trial.
CRR-1281-2021 (O&M) )
(iii) The court cannot act merely as a post office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the
court, any basic infirmities, etc. However, at this stage, there cannot
be a roving enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can frame
the charge, though for conviction the conclusion is required to be
proved beyond reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge
the court must apply its judicial mind on the material placed on record
and must be satisfied that the commission of offence by the accused
was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate
the material and documents on record with a view to find out if the
facts emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged offence. For
this limited purpose, sift the evidence as it cannot be expected even at
that initial stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad probabilities of the
case.
(vii) If two views are possible and one of them gives rise to suspicion only,
as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not to see
whether the trial will end in conviction or acquittal."
From the above decisions, it is clear that at the initial stage, if there is a strong
suspicion which leads the Court to think that there is ground for presuming that
the accused has committed an offence, in that event, it is not open to the Court to
say that there is no sufficient ground for proceeding against the accused. A
judicial magistrate enquiring into a case under Section 209 of the Code is not to
act as a mere post office and has to arrive at a conclusion whether the case before
him is fit for commitment of the accused to the Court of Session. He is entitled to
sift and weigh the materials on record, but only for seeing whether there is
sufficient evidence for commitment, and not whether there is sufficient evidence
VIMAL KUMAR for conviction. On the other hand, if the Magistrate finds that there is no prima
CRR-1281-2021 (O&M) )
facie evidence or the evidence placed is totally unworthy of credit, it is his duty to
discharge the accused at once. It is also settled law that while exercising
jurisdiction under Section 227 of the Code, the Magistrate should not make a
roving enquiry into the pros and cons of the matter and weigh the evidence as if
he was conducting a trial. This provision was introduced in the Code to avoid
wastage of public time and to save the accused from unavoidable harassment and
expenditure. While analyzing the role of the respondent herein (A-6) from the
charge sheet and the materials supplied along with it, the above principles have to
be kept in mind."
11. Now coming to the difference between the quality of evidence, as required at
the stage of consideration of framing of charges and at the stage of final
hearing at the end of the trial, it is well-settled that at the time of framing of
charges, the Court's primary concern lies in determining as to whether a
prima facie case exists against the accused and that as to whether the
ingredients of the offence are prima facie satisfied. At the time of framing
of charges, the Court need not delve into the realm as to whether the
evidence collected during investigation would prove the case beyond
reasonable doubt. Such satisfaction is to be recorded at the conclusion of
trial after the entire evidence has been led. In other words, the principle
criteria at the time of framing of charges is as to whether there exist
sufficient grounds for 'presuming' is that by taking the evidence collected by
the police at its face value whether the ingredients constituting the alleged
offences are disclosed. The Court has to consider the material only with a
view to find out if there is ground for 'presuming' that the accused had
committed the offences alleged against him and not for arriving at a
conclusion that it is not likely to lead to a conviction. A three-Judge Bench
of Hon'ble Apex Court in State of Maharashtra Vs. Som Nath Thapa, (1996)
CRR-1281-2021 (O&M) )
4 SCC 659, while delving and explaining the word 'presume', observed as
under:
"32. .................if on the basis of materials on record, a court could come to the
conclusion that commission of the offence is a probable consequence, a case for
framing of charge exists. To put it differently, if the Court were to think that the
accused might have committed the offence it can frame the charge, though for
conviction the conclusion is required to be that the accused has committed the
offence. It is apparent that at the stage of framing of charge, probative value of the
materials on record cannot be gone into; the materials brought on record by the
prosecution has to be accepted as true at that stage."
12. Section 307 IPC, for the sake of ready reference, is reproduced hereinunder:
"307. Attempt to murder.-- Whoever does any act with such intention or knowledge,
and under such circumstances that, if he by that act caused death, he would be
guilty of murder, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine; and if hurt is
caused to any person by such act, the offender shall be liable either to
imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.--When any person offending under this section is
under sentence of imprisonment for life, he may, if hurt is caused, be punished
with death."
13. Under Exception 4 to Section 300 IPC, culpable homicide is not murder if
the stipulations contained in that provision are fulfilled. They are: (i) that the
act was committed without pre-meditation; (ii) that there was a sudden fight;
(iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the
offender should not have taken undue advantage or acted in a cruel or
unusual manner.
14. It is the specific case of the prosecution that the accused had inflicted an
injury with the help of an iron rod on the head of the petitioner. The injury
is described in the record of PGIMER, Chandigarh as '5x1 cm laceration
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over the occiput'. The injury in question has been opined to be 'dangerous
to life'. The said injury has left the petitioner disabled physically
permanently to the extent of 70%, as is evident from Disability Card/
Disability Certificate annexed as Annexure P-9.
15. A perusal of Section 307 IPC makes it clear that an intention or knowledge
on the part of offender is a necessary ingredient. Though it is correct that in
the FIR, there is no specific averment that the injury in question has been
caused with an intention to commit murder, but it is well-settled that the
intention 'to kill' or 'to commit murder' is not to be established on the basis
of allegations or a specific recital made by the injured or by the complainant.
Intention is a state of mind where a person acts with an object to achieve a
particular consequence and which is borne in mind during preparation and
commission of offence followed by the actual execution of the act to achieve
the intended result.
16. Intention has to be gathered from various circumstances, such as, nature of
weapon used, the seat of injury, the number of injuries, the nature of injuries
etc. Intention has to be absolute and very specific and is not to be confused
with mere recklessness of the offender. Hon'ble Apex Court in Pulicherla
Nagaraju @ Nagaraja Reddy Vs. State of A.P., 2006(11) SCC 444,
delineated various circumstances which could be suggestive of real intention
of the assailant in causing injuries. The relevant extract reads as under:
"29. Therefore, the court should proceed to decide the pivotal question of intention,
with care and caution, as that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of
a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally
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CRR-1281-2021 (O&M) )
absent in such cases. There may be no intention. There may be no pre-meditation.
In fact, there may not even be criminality. At the other end of the spectrum, there
may be cases of murder where the accused attempts to avoid the penalty for
murder by attempting to put forth a case that there was no intention to cause
death. It is for the courts to ensure that the cases of murder punishable under
Section 302, are not converted into offences punishable under Section 304 Part
I/II, or cases of culpable homicide not amounting to murder, are treated as murder
punishable under Section 302. The intention to cause death can be gathered
generally from a combination of a few or several of the following, among other,
circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the
spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free
for all fight;
(vi) whether the incident occurs by chance or whether there was any pre-
meditation;
(vii) whether there was any prior enmity or whether the deceased was a
stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause
for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has
acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive and there may be
several other special circumstances with reference to individual cases which may
throw light on the question of intention."
17. The present case is certainly a case of solitary injury and that too with blunt
edged weapon i.e. iron rod. However, having regard to the manner in
which the injury had been inflicted on a vital part i.e. on the head and the
result which the said injury generated i.e. a fracture of the skull which
required surgery and left the petitioner crippled for life, it is apparent that
the injury in question had been inflicted with a great force with a heavy
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CRR-1281-2021 (O&M) )
object. It appears that the accused having been successful in inflicting the
injury on the head of the petitioner with great force, which led to
immediate falling down of the petitioner, did not feel necessity to cause
more injuries.
18. In a given case, even a single injury with a blunt edged weapon on head
can prove fatal. An assailant under normal circumstances cannot be
expected to inflict an injury with such accuracy and precision that he would
know as to whether such injury is not likely to cause death or that the same
is sure to result into death. A Division Bench of this Court in Criminal
Appeal No.632-DB of 2006 decided on 24.9.2008, titled as 'Banarsi @
Magha Vs. State of Haryana', wherein also it was a case of single injury
with a blunt edged weapon, held that Section 307 IPC could be attracted.
The relevant portion of the said judgment reads as follows:
"We are unable to agree with the submission made by learned counsel for
appellant Banarsi that he had no intention to cause murder of the deceased as only
one blow had been given. Each case has to be decided on its own facts. In the
facts of the present case we are of the opinion that accused Banarsi had given
injury with such force with an iron rod with intention to commit murder of
Mukesh. After receipt of single injury Mukesh fell down. As per the ocular
version, after Mukesh fell down the other accused gave him blows with brick
bats. The said part of the ocular version is not corroborated by the medical
evidence as no injury was found on the person of the deceased with brick bats.
Learned trial Judge rightly held that the possibility of accused Mohan Lal,
Balwant Singh and Raghbir having been falsely involved in this case could not be
ruled out as they had no previous enmity with the deceased and had no motive to
cause injuries on his person."
19. A Division Bench of this Court in Jai Chand Vs. State of Haryana 2007(4)
RCR(Criminal) 221, wherein death had been caused on account of accused
having inflicted a single blow on head with a hammer and wherein also a
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contention was raised that the same would constitute an offence under
section 304 Part-II IPC and not 302 IPC, it was held as under:
"22. Having considered the medical evidence and while analyzing the facts on the
parameters as laid down by the Apex Court in Pulicherla Nagaraju alias
Nagaraja Reddy's case (supra), we could not convince our mind to hold that the
single blow given by the accused, in the given circumstances of the case,
particularly keeping in view the nature, size of weapon i.e. hammer , used by the
accused, the force with which the weapon was used, part of the body over which
the injury was caused i.e. on the head, a vital part of the body, the nature of the
injury resulted in an instantaneous collapse leading to death, leaves no room to
doubt that the intention of the accused was to cause death or to cause such bodily
injury which was sufficient, in the ordinary course of nature, to cause death. Thus,
irresistible conclusion in this case, which could be drawn, is that provisions of
Section 304II certainly could not be attracted and the accused Jai Chand could
safely be held to have committed an offence under Section 302 Indian Penal
Code."
20. In this context, reference may be made to Gudar Dusadh Vs. State of Bihar,
1972(3) SCC 118, wherein it has been held as under:
"5. The two courts below accepted the prosecution case that it was the appellant who
had given a lathi blow on the head of Ramlal deceased as a result of which the
latter died. It was held that the case against the appellant fell under clause "3rdly"
of section 300 of Indian Penal Code. As such, the appellant was convicted under
section 302 Indian Penal code.
6. The only question with which we are concerned in appeal is whether the offence
committed by the appellant is murder or whether it is culpable homicide not
amounting to murder. In this respect we find that according to Dr. R. S. Singh
who performed the post-mortem examination on the dead body of the deceased,
the doctor found a lacerated wound 2" x½" bone deep on the left side of the head
of the deceased. The injury was ante-mortem and had been caused by a weapon
like lathi. On dissection the doctor found 3" long fracture of the left parietal bone
about 2½" from the middle line of the top of the head. On removing the skull the
doctor noticed large amount of blood and blood clots on the left side of the doctor,
was due to compression on the left side of the brain. The doctor further stated that
the above injury was sufficient in the ordinary course of nature to cause death.
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7. The appellant who caused the above injury to Ramlal deceased, in our opinion,
was guilty of the offence of murder and he has been rightly convicted under
section 302 Indian Penal Code. The appellant along with his companions was
lying in wait to attack Ramlal and, according to the evidence on record which has
been accepted by the High Court, he gave a blow on the head of Ramlal as a result
of which Ramlal fell down and died instantaneously. It has also been found by the
High Court that there was no altercation or exchange of abuses between Ramlal
and the accused party. The circumstances of the case thus show that the assault
was premeditated and the blow on the head of Ramlal was not accidental. The fact
that the appellant gave only blow on the head would not mitigate the offence of
the appellant and make him guilty of the offence of culpable homicide not
amounting to murder. The blow on the head of Ramlal with lathi was plainly
given with some force and resulted in a 3" long fracture of the left parietal bone.
Ramlal deceased died instantaneously and as such, there arose no occasion for
giving a second blow to him. As the injury on the head was deliberate and not
accidental and as the injury was sufficient in the ordinary course of nature to
cause death, the case against the appellant would fall squarely within the ambit of
clause "3rdly" of Section 300 Indian Penal Code. According to that clause,
culpable homicide is murder 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. Section 300 also provides for some
exceptions but we are not concerned with them in this case."
21. While elaborating the legal position regarding single blow injury, the Apex
Court in case Jagrup Singh Vs. State of Haryana, AIR 1981 Supreme Court
1552 observed as under :-
"6. There is no justification for the assertion that the giving of a solitary blow on a
vital part of the body resulting in death must always necessarily reduce the
offence to culpable homicide not amounting to murder punishable under Section
304 Part II of the Code. If a man deliberately strikes another on the head with a
heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the
skull, he must in the absence of any circumstances negativing the presumption, be
deemed to have intended to cause the death of the victim or such bodily injury as
is sufficient to cause death. The whole thing depends upon the intention to cause
death, and the case may be covered by either clause firstly or clause thirdly. The
nature of intention must be gathered from the kind of weapon used, the part of the
body hit, the amount of force employed and the circumstances attendant upon the
death."
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22. It is, thus, evident that there is no absolute rule that in every case of a single
injury with a blunt edged weapon, the offence under 304 (or 308) IPC would
be attracted and not 302 (or 307) IPC.
23. The present case, as already noticed above, is a case where the blow on head
of the petitioner with iron rod had a consequence of not only fracture of
skull of the petitioner, but it also left him disabled for life to the extent of
70% and which could only have been possible if the blow had been given
with immense force. There is very fine distinction between offence under
Section 307 IPC and Section 308 IPC mainly as regards the intention of the
assailant, which has to be gathered from the facts and circumstances.
Having regard to the fine distinction, the case of the prosecution with regard
to commission of offence under Section 307 IPC cannot be thrown out at the
initial stage particularly when circumstances are suggestive that the blow
had been inflicted on a vital part of body with immense force leading to near
fatal consequences. As a matter of fact, an accused while inflicting injury
with an iron rod or with some other weapon cannot be expected to measure
the force with which the blow is to be inflicted with such precision so as to
be sure that the same would not cause death. It is the duty of the Court to
refrain from entering into niceties at the stage of framing of charges
particularly when there is a fine distinction between two offences, which
could be said to have been committed. It can safely be left to the trial Court
to consider at the conclusion of trial as to whether the evidence establishes a
graver offence or a lesser offence. The relevant extract from Pulicherla
Nagaraju @ Nagaraja Reddy's case (supra), even at the sake of repetition, is
reproduced hereinunder:
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"29. .................At the other end of the spectrum, there may be cases of murder
where the accused attempts to avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section 302, are not converted into
offences punishable under Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder punishable under Section 302."
24. Having regard to the facts and circumstances, the instant case is a fit case
where charges ought to be amended/altered so as to substitute the charges
for an offence under Section 308 IPC with Section 307 IPC. Needless to
mention, a trial Court upon conclusion of trial and upon appraisal of the
entire evidence always has an option to totally acquit the accused of the
graver charge or to convict such accused for lesser offence in case the
evidence establishes commission of any lesser offence only.
25. The petition, as such, is accepted and the order dated 23.09.2021 passed by
the learned Additional Sessions Judge, SAS Nagar, is hereby set aside. The
trial Court is directed to alter the charges so as to substitute offence under
Section 308 IPC with offence under Section 307 IPC and to proceed further
in accordance with law.
10.04.2024 ( GURVINDER SINGH GILL )
Vimal JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes
