Syed Chand, Mahabubnagar. vs The State Of A.P., Rep. By P.P., ...
2022 Latest Caselaw 4477 Tel

            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.

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."

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

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.

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

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

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.

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

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1281 OF 2009

Date: 08.09.2022.

kvs