Om Prakash Singh @ Pappu Sapata vs State Of Uttarakhand And Another
2023 Latest Caselaw 1019 UK

                                Reserve
 HIGH COURT OF UTTARAKHAND AT NAINITAL

       Writ Petition (Criminal) No. 1018 of 2018

Om Prakash Singh @ Pappu Sapata                  ...Petitioner

                            Versus

State of Uttarakhand and another              ...Respondents
Present:-
            Mr. Ravindra S. Garia and Mr. Madan Chandra
            Karnatak, Advocates for the petitioner.
            Mr. Dinesh Chauhan, Brief Holder for the State.
            Mr. Paritosh Dalakoti, Advocate for the respondent
            no.2.

                              And

        Writ Petition (Criminal) No. 53 of 2023

Om Prakash Singh @ Pappu Sapata                  ...Petitioner

                            Versus

State of Uttarakhand                           ...Respondent


Present:-
            Mr. Ravindra S. Garia and Mr. Madan Chandra
            Karnatak, Advocates for the petitioner.
            Mr. Dinesh Chauhan, Brief Holder for the State.

                              JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

Since common question of law is involved in

both these writ petitions, they are being decided by this

common judgment.

2. In Writ Petition (Criminal) No. 1018 of 2018,

challenge is made to the judgment and order dated

16.12.2018, passed in Criminal Revision No. 77 of 2017,

Omprakash @ Pappu Sapata Vs. State and others ("second

revision") by which, an order dated 06.06.2017 passed in

Criminal Case No. 826 of 2015, State Vs. Omprakash @

Pappu Sapata by the court of Judicial Magistrate 2nd,

Haldwani, District Nainital ("the case") has been upheld.

By this order dated 06.06.2017 passed in the case, while

allowing an application under Section 216 of the Code of

Criminal Procedure, 1973 ("the Code"), the court had

observed that the offence under Section 307 IPC is also

made out. Therefore, the case is to be committed to the

court of sessions under Section 323 of the Code.

3. In Writ Petition (Criminal) No. 53 of 2023,

challenge is made to an order dated 04.06.2016, passed in

the Criminal Revision No. 2 of 2016, Digamber Singh

Rawat Vs. State and another, by the court of District and

Sessions Judge, Haldwani, District Nainital ("first

revision"). By this order, an order dated 06.10.2015 passed

in the case has been set aside and the trial court was

directed to decide the application filed under Section 311

of the Code, before deciding the application under Section

216 of the Code.

4. Heard learned counsel for the parties and

perused the record.

5. Facts necessary to decide the controversy,

briefly stated, are as follows:-

An FIR was lodged against the petitioner on

07.09.2013 at 2:20 PM, at the Police Station, Haldwani,

District Nainital by Radhey Singh Rawat (he is the

respondent no.2, in WPCRL No. 1018 of 2020 : hereinafter

referred to as, "the informant"). According to it, on

06.09.20136, when the injured Digamber Singh Rawat was

returning to his house at 8:30 in the evening, suddenly the

petitioner attacked on his head with a Chappar (a sharp

edged weapon). Due to sudden attack, injured Digamber

Singh Rawat fell on the ground, but the petitioner continue

attacking him on his back, due to which, injured sustained

serious injuries. He was in ICU, when the FIR was lodged.

After investigation in the matter, charge sheet under

Sections 324 IPC was filed against the petitioner and

cognizance taken. It is basis of the case. Four witnesses

were examined, namely, PW1 Radhey Singh Rawat, the

informant, PW2 Chandu Karnatak, PW3 Dr. Ajeet Kumar

and PW4 Dr. M.S. Laspal. Thereafter, an application under

Section 216 of the Code was filed by the prosecution in the

case. This application was rejected by an order dated

06.10.2015. The court held that the witnesses examined

till then, were formal kind of witnesses, PW1 did not see

the incident and other witnesses were doctors. The court

also observed that the original medical report was not on

record. Therefore, the court held that there are no

sufficient grounds to alter the charge.

6. The order dated 06.10.2015, passed in the case

was challenged by the injured in the first revision. The first

revision was allowed. The court observed that, in fact, the

injured was not made a witness in the charge sheet and an

application under Section 311 of the Code had already

been filed by the prosecution to summon the injured,

which was required to be decided prior to disposal of the

application under Section 216 of the Code. Accordingly,

the trial court was directed to decide the application under

Section 311 of the Code, filed by the prosecution and

thereafter, decide the application under Section 216 of the

Code.

7. Thereafter, Digamber Singh Rawat, the injured

was examined on 05.09.2016. On 07.10.2016, the injured

moved an application revealing therein, the history of the

case and the order dated 06.10.2015, passed in the first

revision. It has been then the case of the injured that

offence under Sections 325, 326 and 307 IPC is also made

out against the petitioner. Therefore, the application under

Section 216 of the Code, may be allowed and charge under

Sections 325, 326, 307 IPC be also framed. This

application was allowed by an order dated 06.06.2017

passed in the case. The court observed that offence under

Section 307 IPC is made out. Therefore, the case is to be

committed under Section 323 of the Code for trial to the

court of sessions.

8. The order dated 06.06.2017 has further been

challenged in the second revision, which was dismissed on

16.05.2018.

9. Aggrieved by the order dated 16.05.2018, the

petitioner filed Writ Petition (Criminal) No. 1018 of 2018.

During the course of hearing of Writ Petition (Criminal) No.

1018 of 2018, Writ Petition (Criminal) No. 53 of 2023 has

also been filed by the petitioner, challenging the order

dated 04.06.2016 passed in the first revision.

10. Learned counsel for the petitioner would submit

that under Section 216 of the Code, the court may alter

the charge on its own and for that purpose, an application

is not maintainable. It is argued that the informant did not

have a right to seek alteration of charge. Learned counsel

would raise following points in his submissions:-

(i) The informant is not aggrieved. He could

not have filed any revision.

(ii) The first revision was decided on

04.06.2016, but this order is not in

accordance with law because in the

revision, the court was to examine the

correctness of the impugned order, instead

the court had given directions to record the

statement of the injured and thereafter,

decide the application under Section 216 of

the Code, which is bad in the eyes of law.

(iii) The case could not have been committed to

the court of sessions because offence

under Section 307 IPC is not made out.

(iv) Original Radiologist report (CT Scan/X-ray

report) was not on record.

(v) Earlier, by an order dated 06.10.2015, the

court had held that there is no ground to

alter the charge because original medical

reports are not on record. It is argued that

even thereafter, the situation was same.

On 06.06.2017 also, original medicals were

not on record. Therefore, the order dated

06.06.2017, observing that the offence

under Section 307 is made out, is also bad

in the eyes of law.

(vi) In the first revision, the court had directed

to decide the application under Section 216

of the Code, after examining the injured.

But, by the order dated 06.06.2017,

passed in the case, the court took into

consideration another application dated

07.10.2016 filed by the injured.

(vii) The medical report is based on CT Scan

report, but CT Scan report was not on

record. Without CT Scan report, it could

not have been held that offence under

Section 307 IPC is made out.

(viii) In order to attract the offence under

Section 307 IPC, the intention and

knowledge are two important ingredients.

(ix) The impugned order dated 06.06.2017,

which was confirmed in the second revision

does not record that had the petitioner

been successful, the act would have fallen

under Section 302 IPC. For this reason

also, the impugned order dated

16.05.2018, passed in the second revision

is bad.

(x) In order to commit a case under Section

323 of the Code, to the court of sessions,

the magistrate is required to undertake

higher level of scrutiny, which is not done

in the instant case.

11. Learned counsel for the petitioner would submit

that, in fact, the directions given in the first revision were

not in accordance with law. Therefore, in the second

revision, these aspects ought to have been seen by the

court, which was not done. Therefore, both the impugned

orders deserve to be set aside.

12. In support of his contentions, learned counsel

has placed reliance on the principles of law, as laid down

in the cases of P. Kartikalakshmi Vs. Sri Ganesh and

another, (2017) 3 SCC 347, Maj. Genl. A.S. Gauraya and

another Vs. S.N. Thakur and another, (1986) 2 SCC 709,

State Vs. Maya Dahia, 2018 SCC OnLine Del 11660,

Gurpreet Singh Vs. State of Punjab, Neutral Citation No:

=2019:PHHC:018281, Camilo Vaz Vs. State of Goa, (2000)

9 SCC 1, Surindra Kumar Vs. Sunil Kumar and others,

2012 SCC Online P&H 3747, X Vs. State and others, 2022

SCC OnLine Del 3291, Din Dayal Srivastava Vs. The State

of Vindhya Pradesh, 1953 CRLJ 1218, Dr. Harvir Singh Vs.

State of UP and others, 2007 SCC OnLine

All 1918, Sanjay Kumar Rai Vs. State of Uttar Pradesh

and another, 2021 SCC OnLine SC 367, Nawabkhan

Abbaskhan Vs. State of Gujarat, AIR 1974 SC 1471.

13. In the case of P. Kartikalakshmi (supra), the

Hon'ble Supreme Court discussed the provisions of Section

216 of the Code and observed as hereunder:-

"6. Having heard the learned counsel for the respective parties, we find force in the submission of the learned Senior Counsel for Respondent 1. Section 216 CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

7. We were taken through Sections 221 and 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. We, therefore, do not propose to examine the

implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 CrPC is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC. If such a course to be adopted by the parties is allowed, then it will be well-nigh impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardised."

14. In the case of Maj. Genl. A. S. Gauraya (supra),

the Hon'ble Supreme Court discussed the scope of Section

256 of the Code and held that "there is nothing like any

prospective operation alone of the law laid down by

this Court. The law laid down by this Court applies to

all pending proceedings. If the Sessions Judge had

expressed his helplessness because of the earlier order

of the High Court binding on him and had allowed the

revision on that ground, we could have understood the

reasoning behind it. He got rid of the effect of this

Court's judgment by observing that a decision by this

Court cannot be treated as "a sort of legislation by

Parliament" and thus overlooked the binding nature of

the law declared by this Court, mandating under

Article 141, every court subordinate to this Court to

accept it."

15. In the case of Maya Dahiya (supra), the Hon'ble

Delhi High Court extracted the principles of law, as laid

down in the case of Madan Gopal Kakkad Vs. Naval

Dubey, (1992) 3 SCC 204 and observed as hereunder:-

"9. Supreme Court in the decision reported

as (1992) 3 SCC 204 Madan Gopal

Kakkad v. Naval Dubey observed:

"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is

not the opinion of the medical officer but of the Court."

16. In the case of Gurpreet Singh (supra), the

Hon'ble Supreme Court observed that "in the absence of

the examination of the radiologist and X-ray film, the

opinion of doctor cannot be taken to have prove the

guilt of an accused under Section 325 IPC beyond

reasonable doubt."

17. In the case of Camelo Vaz (supra), the Hon'ble

Supreme Court discussed the ingredient of Section 302

IPC and observed as hereunder:-

"This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case. We are also not oblivious on the fact that other four accused who were similarly convicted

with the appellant with the aid of Section 149 IPC have been held guilty only for offence under Section 326 IPC."

18. In the case of Surinder Kumar (supra), the

Hon'ble Punjab and Haryana High Court discussed the

ingredients for applicability of Section 307 IPC and

observed as hereunder:-

"In Sarju Prasad v. State of Bihar, AIR 1965 Supreme Court 843, it was held that to attract the provisions of Section 307 IPC, it is necessary for the prosecution to establish that intention of the accused in causing the injury was of any of the three kinds referred to in Section 300 IPC and unless the prosecution discharges the burden, the offence under Section 307 IPC cannot possibly be brought home. In the said case, the accused had caused an injury with the knife in a vital region but no vital organ of the injured was cut as a result of injury. However, he was convicted by the Court below for an offence under Section 307 IPC. The Hon'ble Supreme Court held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. Taking the totality of the circumstances, it was held that there was no intention of murder or to cause any injury which may result in death could be inferred. Accordingly, it was held that the prosecution had not established that the offence committed fell squarely under Section 307 IPC and that in its opinion, it amounted to an offence under Section 324 of the IPC.

Therefore, in order to appreciate whether in the circumstances, offence under Section 307 IPC is made out, the injuries are to be of kind as mentioned in Section 300 IPC except that death has not occurred."

19. In the case of X (supra), the Hon'ble Delhi High

Court discussed the law on Section 216 of the Code and

observed as hereunder:-

"15................ the trial court in its discretion at the present stage of trial, dos not find it necessary to alter or add any charge, either on its own or even on an application filed by the petitioner/prosecutrix. The High Court in exercise of its power under Section 482 of the Cr.P.C. should not issue any direction for passing of the other on such an application. Hence, in view of the aforesaid, this court is of the opinion that the trial court has not committed any error in proceeding further with the trial without passing any order on an application under Section 216 of the Cr.P.C.

16. However, looking to the legal position that under Section 216 of the Cr.P.C., the duty is cast upon the trial court to see that in an appropriate case, on the basis of sufficient material, it can alter or add charges, therefore, the trial court is at liberty to consider the application under Section 216 of the Cr.P.C. at an appropriate stage where it considers necessary."

20. In the case of Din Dayal Shrivastava (supra), the

Hon'ble Madya Pradesh High Court make observation with

regard to the interference by the High Court. In para 7, the

Hon'ble High Court observed as hereunder:-

"7. Usually, the High Court will not interfere either in exercise of revisional powers, or of the general powers under Section 561A, at interlocutory stages. To do so freely will obstruct the prompt disposal of judicial work, and lower the self-confidence of the presiding Courts, who should go on unhampered by dictation from, above till their work is complete. However, there may be cases literally crying for interference. Where it is obvious that

a trial is mockery of justice, then it is the duty of the High Court to stop it immediately. It is pointless to say in such cases that the accused should put up with the trouble and expense, and move the higher Courts, in good time, in appeal or revisions as the case may be. A High Court should under Section 561A of the Cr PC end a harassment if it is patently gratuitous."

21. In the case of Dr. Harvir Singh (supra), the

Hon'ble Allahbad High Court discussed the scope of

revisional jurisdiction and question of locus standi and in

para 9 observed as hereunder:-

"9. Further in the present case the Lower Revisional Court, without caring to look in to the various rulings cited by it in the impugned order has allowed the revision filed by an alien to a proceeding. How the revision by an alien to the proceeding was maintainable before the Lower Revisional Court against the statutory bar provided under section 397(2) Cr. P.C. is not understandable. The Lower Revisional Court did not address itself at all to the statutory provision under section 397(2) Cr. P.C. and cogitated on the fact that the order passed by the Judicial Magistrate Court No. 3 Aligarh dated 17.11.2006, which as impugned before it, was purely an interlocutory order and no revision against the said order was maintainable before it being barred by section 397(2) Cr. P.C..................................

...................................................................................... ..................................................................................."

22. In the case of Sanjay Kumar Rai (supra), the

Hon'ble Supreme Court quoted with the approval, the

observations made by the Hon'ble Supreme Court in the

judgment of Asian Resurfacing of Road Agency Pvt.

Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299.

In the case of Asian Resurfacing (supra), the Hon'ble

Supreme Court has observed that "thus considered, the

challenge to an order of charge should be entertained

in a rarest of rare case only to correct a patent error of

jurisdiction and not to re-appreciate the matter."

23. In the case of Nawabkhan Abbaskhan (supra),

the Hon'ble Supreme Court observed that "an order is

null and void if the statute clothing the Administrative

Tribunal with power conditions it with the obligation

to hear, expressly or by implication. Beyond doubt, an

order which infringes a fundamental freedom passed in

violation of the audi alteram partem rule is a nullity."

24. Learned counsel for the informant would submit

that the order passed in the first revision has been

challenged in the year 2023 for the first time. The

witnesses have stated that the injuries were grievous. It is

argued that, in fact, the writ petition is not maintainable.

The petitioner could have invoked the provisions of Section

482 of the Code. In support of his contention, learned

counsel for the informant has placed reliance on the

principles of law, as laid down in the case of Ajay Kumar

Rana and others Vs. State of Bihar and others, 2002 SCC

OnLine Pat. 357.

25. In the case of Ajay Kumar Rana (supra), the

Hon'ble Patna High Court observed as hereunder:-

"19. Having held that remedy under section 482 of the Code is available, the next question which falls for determination is as to whether in such a case, an application either under Articles 226 and 227 of the Constitution is maintainable. It is settled that remedy of writ application under Articles 226 and 227 of the Constitution is a remedy of last resort and a litigant is permitted to invoke said remedy when it is found that no other efficacious remedy is available to him. The power conferred on the High Court under Articles 226 and 227 of the Constitution of India and under section 482 of the Code, have no limits. Hence, in a case where remedy under Articles 226 and 227 of the Constitution is available as also the remedy under section 482 of the Code, a litigant has to necessarily invoke the jurisdiction of this Court under section 482 of the Code and application under Articles 226 and 227 of the Constitution, would not be appropriate remedy.

20. The view I have taken finds support from the judgment of the Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 wherein it has been observed as follows:

"22.--The power conferred on the High Court under Articles 226 and 227 of the Constitution and under section 482 of the Code, have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to."

26. WPCRL No. 1018 of 2018 was admitted by this

Court on 31.05.2018, at this stage, this Court does not see

to redirect the petitioner to any other course of action. The

matter shall be adjudicated on merits.

27. Arguments have been raised with regard to the

applicability of Section 216 of the Code. It reads as

hereunder:-

"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."

28. A bare reading of this section makes it

abundantly clear that the court may at any time before the

judgment is pronounced, alter or add the charge.

29. In the case of P. Kartikalakshmi (supra), the

Hon'ble Supreme Court has discussed the scope of Section

216 of the Code. At the cost of repetition, the Court

reproduces as to what has been held by the Hon'ble

Supreme Court in para 6 of the judgment. The Hon'ble

Court observed that "it is now well settled that the

power vested in the Court is exclusive to the Court and

there is no right in any party to seek for such addition

or alteration by filing any application as a matter of

right." In fact, the Hon'ble Supreme Court has observed

that no party has any vested right to get charge altered or

modified under Section 216 of the Code.

30. In the case of Dr. Nallapareddy Sridhar Reddy

Vs. State of Andhra Pradesh and others, (2020) 12 SCC

467 also the Hon'ble Supreme Court discussed the

principles of law, as laid down in the case of P.

Kartikalakshmi (supra). In the case of Dr. Nallapareddy

(supra), when the case was reserved for judgment an

application under Section 216 of the Code was filed, which

was allowed. The revision against it was also allowed on

the ground of procedural irregularities, but it was left open

to the trial court to frame, if at all necessary, any

additional charge after affording an opportunity of hearing

to the parties. Subsequently, the trial court dismissed the

application for framing additional charge. When this order

was challenged, the High Court allowed the revision and

directed for framing of additional charges. This order was

upheld by the Hon'ble Supreme Court. The Hon'ble

Supreme Court observed that "the High Court has relied

upon the material on record and concluded that the

ingredients of the offences under Section 406 and 420

of the IPC are attracted. The High Court has spelt out

the reasons that have necessitated the addition of the

charge and hence, the impugned order does not

warrant any interference."

31. It may be noted that in the case of

Dr. Nallapareddy (supra) also, an application for framing of

additional charge was moved by the prosecution and that

application was allowed. Therefore, it cannot be said that

no application under Section 216 of the Code may be

entertained by the court for addition or alteration of

charge.

32. Initially, when application under Section 216 of

the Code was filed by the prosecutor on 21.07.2015, it was

rejected by an order dated 06.10.2015 passed in the case.

That order was challenged in the first revision, which was

allowed by the order dated 04.06.2016.

33. The scope of revision is quite restricted to the

extent of examining the correctness, legality or propriety of

the impugned order.

34. Learned counsel for the petitioner would submit

that the directions cannot be given in a revision. The court

has to examine the correctness of the impugned order. In

fact, it is not correctness alone. Legality and propriety of

the impugned order are also fall for scrutiny in a revision.

In the impugned order dated 04.06.2016, the court

observed that, in fact, without examining the injured, an

application under Section 216 of the Code was decided.

The court observed that not making the injured a witness

in the charge sheet was a grave error, which was to be

rectified by the court. The court also took into

consideration the fact that an application under Section

311 of the Code had already been filed by the prosecution

which remained pending. Therefore, in the first revision on

04.06.2016, the Court, while setting aside the order dated

06.10.2015 passed in the case, directed the trial court first

to decide the applicant under Section 311 of the Code and

thereafter, consider the application under Section 216 of

the Code. In fact, the impugned order dated 04.06.2016,

the Court has also examined the propriety of the impugned

order and it was found that the order was not correct and

proper because the manner in which an application under

Section 216 of the Code was decided was not proper. It

ought to have been decided after disposal of the

application under Section 311 of the Code. Therefore, the

impugned order dated 04.06.2016 passed in the first

revision cannot be said to be bad in the eyes of law. This

order is in accordance with law and it does not warrant

any interference.

35. Learned counsel for the petitioner has referred

to the statement of the witnesses to argue that, in fact, no

radiologist report was before the court, therefore, it could

not have been concluded that there was any fracture or the

injuries were grievous. Based on it, it is argued that

offence under Section 307 IPC is not made out. Even

otherwise, it is argued that the magistrate has not

recorded its satisfaction that the ingredients of Section 307

IPC are made out in the case. Learned counsel would

submit that in order to resort to the provisions of Section

323 of the Code, there should be a higher level of

satisfaction. On this aspect, on behalf of the State, it is

argued that there were 24 stitches on the head of the

injured.

36. Before proceeding further, it may be apt to

reproduce Section 323 of the Code. It reads as hereunder:-

"323. Procedure when, after commencement of

inquiry or trial, Magistrate finds case should be

committed.--If, in any inquiry into an offence or a trial

before a Magistrate, it appears to him at any stage of the

proceedings before signing the judgment that the case is

one which ought to be tried by the Court of Session, he

shall commit it to that Court under the provisions

hereinbefore contained 1 and thereupon the provisions

of Chapter XVIII shall apply to the commitment so

made."

37. A case may be committed to the court of

sessions by the court of magistrate at any time before

judgment is pronounced, if it appears to the magistrate

that the case is one which ought to be tried by the court of

sessions. The question is as to whether, the order dated

06.06.2017, which was upheld in the second revision on

16.05.2018 is in accordance with law.

38. The FIR in the instant case categorically records

that on 06.09.2013, the petitioner attacked injured

Digamber Rawat on his head by a sharp edged weapon.

When the injured fell down, the petitioner still attacked the

injured on his back. He was in ICU when FIR was lodged.

The charge sheet records that the injured was attacked by

a sharp edged weapon. He had serious injuries on his head

and back. But, the charge sheet was submitted under

Section 324 IPC.

39. PW1 Radhey Singh Rawat is the informant. He

did not see the incident.

40. PW2 Chandu Karnatak has been declared

hostile. He has not supported the prosecution case.

41. PW3 Dr. Ajeet Kumar medically examined the

injured on 06.09.2013 at 10:30 PM at Soban Singh Jeena

Base Hospital emergency. He found the following injuries

on his person:-

(i) Lacerated wound 11cm x 1cm muscle deep

fresh bleeding present.

(ii) Lacerated wound 2.6 cm long muscle deep

left side of scapula. Fresh wound.

(iii) Swelling on the right side of the mouth.

Tenderness present. Bluish in colour, no

open injury.

(iv) Complain of pain on right thigh, but no

open injury.

(v) The condition of injured was not good, but

he was conscious.

42. According to the doctor injury no.1 was caused

by hard and blunt object. Fresh in duration. The patient

was referred to neurosurgeon and advised for some

scanning also. Injury no.2 was caused by sharp and hard

object. It was fresh in duration. The opinion was reserved

for surgeon. The doctor has stated about other injuries

also. According to him, the general condition of the injured

was poor. Therefore, he was referred to some higher

hospital. This witness has also given supplementary report

Ex. A3. According to him, all the above injuries were

grievous.

43. PW4 Dr. M.S. Laspal had conducted CT scan

and X-ray of the injured. He found fracture and clotting of

blood in the head. According to PW4 Dr. M.S. Laspal, all

the injuries were dangerous and there was threat to the life

of the injured. He has proved his supplementary report Ex.

A4.

44. PW5 is the injured Digamber Singh Rawat. He

has stated as to how he was attacked on 06.09.2013 by

the petitioner. He has been categorical that the petitioner

attacked on his head and back with a sharp edged

weapon.

45. What is being argued is that there is no X-ray

report so as to confirm the fracture. It is not a case of

fracture simplicitor. It is case under Section 307 IPC.

46. In the case of State of Madhya Pradesh Vs.

Mohan and others, (2013) 14 SCC 116, the Hon'ble

Supreme Court observed that if anybody does any act

with intention or knowledge that by his act he might

cause death and hurt is caused, that is sufficient to

attract Section 307 IPC.............In order to attract

Section 307 IPC, the injury need not be on the vital

part of the body."

47. In the case of State of UP Vs. Virendra Prasad,

(2004) 9 SCC 37, the Hon'ble Supreme Court observed that

"as evidence on record clearly establishes, seven

rounds of bullets were fired by accused Virendra from

very close range which hit the deceased and the two

injured witnesses PWs 4 and 5. He aimed at the

deceased and other police officials. Though the bullets

did not hit PWs 4 and 5 on vital parts, yet the

intention of the accused was crystal clear. The

deceased was hit on the chest. Merely because there

was firing all around, it would not bring the accused

within the ambit of Section 304 Part II IPC because the

intention was to hit the police officials."

48. In the order dated 06.06.2017, passed in the

case, which has been confirmed in the second revision on

16.05.2018, the trial court has discussed the evidence

quite extensively. The court has taken into consideration

the medical evidence. The statement of PW4 Dr. M.S.

Laspal, who has stated that the injuries were threat to the

life of the injured. The court also observed that there were

fractures on the skull of the injured, which was on the

vital part and it was caused by a sharp edged weapon.

49. What would be the effect of the medial reports,

even if X-ray report is not filed? Can it be said that Section

307 IPC is not made out?

50. Even injury on a vital part is not necessary for

attracting Section 307 IPC. In the instant case, according

to the prosecution, the petitioner attacked on the head of

the injured by a sharp edged weapon. The injured has

stated that he was given 24 stitches on his head. Not only

this, it is also the prosecution case that when the injured

fell down, the petitioner still attacked on his back with the

sharp edged weapon.

51. This Court refrains to make deeper scrutiny at

this stage. But, having considered the entire material, this

Court is of the view that the trial court in its order dated

06.06.2017 has rightly concluded that offence under

Section 307 IPC is made out and further the trial court has

rightly committed the case for trial to the court of sessions.

There is no reason to make any interference.

52. An argument has been raised that, in fact, in

the first revision, the court has directed to decide the

application under Section 216 of the Code afresh. But, it is

argued that the order under Section 216 of the Code was

passed on another application dated 07.10.2016 filed by

the prosecution. This argument has no force. On

07.10.2016, the injured simply filed an application giving

the history of the cases and referring to the order dated

04.06.2016 passed in the first revision for framing

additional charge. In its order 06.06.2017, in fourth

paragraph, the court has referred to application dated

21.07.2015 and even in the second paragraph, the court

had cleared that pursuant to the judgment passed in the

first revision, the application under Section 216 of the

Code, dated 21.07.2015 is to be heard afresh. Although, in

the operative portion of the order dated 06.06.2017, the

court did not make mention of application dated

21.07.2015. But, it makes no difference because by an

application dated 07.10.2016, what was required was that

the application dated 21.07.2015 be decided and that has

been decided.

53. Having considered, this Court is of the view that

there is no reason to interfere with the impugned orders.

Accordingly, the writ petitions deserve to be dismissed.

54. Both the writ petitions are dismissed.

(Ravindra Maithani, J.) 18.04.2023 Jitendra