Karnataka High Court
Vasu S/O Somappa Lamani @ Pujari vs The State Of Karnataka on 5 November, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRL.P.No.102029/2018
BETWEEN
1. VASU S/O SOMAPPA LAMANI @ PUJARI,
AGE: 39 YEARS, OCC: AGRICULTURE,
2. IRAPPA S/O SOMAPPA LAMANI @ PUJARI,
AGE: 31 YEARS, OCC: AGRICULTURE,
3. KRISHNA S/O SHANKRAPPA LAMANI,
AGE: 28 YEARS, OCC: AGRICULTURE,
4. SHEKAR S/O SHANKRAPPA LAMANI,
AGE: 28 YEARS, OCC: AGRICULTURE,
5. VINOD S/O SHANKRAPPA LAMANI,
AGE: 28 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: NERANUR L T NO.2,
TQ: BADAMI, DIST: BAGALKOTE.
..... PETITIONERS
(BY SRI SRINIVAS B NAIK, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH KERUR PS BAGALKOTE,
REP. BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
..... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP)
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THIS CRIMINAL PETITION U/SEC.482 OF CR.P.C.,
PRAYING TO QUASH THE ORDER DATED 22.01.2018,
ALLOWING THE APPLICATION FILED BY RESPONDENT-STATE
UNDER SECTION 216 OF CR.P.C. SEEKING TO FRAME
ADDITIONAL CHARGES FOR THE OFFENCES PUNISHABLE
U/SEC. 307 & 326 R/W 149 OF IPC PASSED IN S.C.
NO.94/2012, ON THE FILE OF II ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOT, REGISTERED FOR THE
OFFENCES PUNISHABLE U/SEC.143, 147, 148, 323, 324, 504
R/W 149 OF IPC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C. seeking to set aside the order passed by the learned II Addl. District and Sessions Judge, Bagalkot in S.C.No.94/2012 wherein an application filed by the prosecution under Section 216 of Cr.P.C. came to be allowed and ordered for trying the accused therein for the offence punishable under Sections 326 and 307 of I.P.C. as well.
2. The case of the prosecution is that the incident connecting the case happened on 09.06.2011 at about 8.00 a.m. when complainant and his brother were working on their agricultural land, the petitioners attacked, :3: assaulted and abused the complainant and his brother when complainant started shouting, his another brother and father intervened and pacified the incident. However, in the said incident, the complainant and his brother sustained injuries. The case came to be registered for the offence punishable under Sections 324, 504 read with Section 34 of IPC against the petitioners. After the investigation, the final report was submitted for the offence punishable under Sections 143, 147, 148, 323, 324, 504 read with Section 149 of IPC.
3. Sri Srinivas B Naik, learned counsel for the petitioners submits that earlier a similar application was filed under Section 216 of Cr.P.C. before the trial Court and the learned District Judge had passed an order to frame additional charges under Sections 326 and 307 of IPC against the accused. The same was challenged by the petitioners before this Court in Crl.P.No.100286/2017 and this Court passed an order on 09.03.2017 remanding the matter to the trial Court while disposing of Crl.P.No.100286/2017. Learned counsel would further submit that the Public Prosecutor has filed a document :4: purporting to be CT Scan report of the injured in the case and sought for alteration of charge. The petitioners resisted as it was not tenable and further the Court could not have heard and adjudicated the matter for alteration of charge and in this connection no proper procedure was also followed.
4. Learned H.C.G.P. would oppose the application and submit that the disposal of the matter was in normal procedural manner and there is no lapse in the formalities conducted by the Court. He would also submit that no prejudice is caused to the accused and the accused who are the petitioners herein have their opportunity to defend the case and to place their grievance.
5. In this circumstance, the moot question that would arise for consideration would be whether there was any provision of law and prima facie, the prosecution to prosecute the same in addition to the existing offences. If so, the procedure to be followed, if not, why not? In the circumstances of the case, the undisputed facts are, a criminal case was registered in Crime No.63/2011 for the :5: offences punishable under Sections 143, 147, 148, 323, 324, 504 read with Section 149 of IPC. Meanwhile, it is necessary to mention that the subject case originally did not contain offences triable by the Sessions Court. It was sent along with the counter case in C.C.No.100/2011. The original case that was triable by the Sessions Court is Crime No.62/2011 relating to C.C.No.100/2011 being committed to the Sessions Court in S.C.No.67/2011. Thus, it can be understood on the phase of the records that being a case and counter case in S.C.No.94/2012 and C.C.No.131/2011 to be tried together as they are said to arise out of the same incident.
6. When a circumstance existed as stated above, the Public Prosecutor filed an application under Section 216 of Cr.P.C. before the trial Court seeking for insertion of Section 326 and 307 of IPC which stands for attempt to murder along with the offence that already existed. The said application came to be allowed by order dated 07.11.2016 in S.C.No.94/2012 wherein the learned District Judge ordered for framing of charges for the offences punishable under Section 326 and 307 read with Section :6: 149 of IPC. The said order dated 07.11.2016 was set aside by this Court and the matter was remanded to Sessions Court concerned with a direction to hear the application and objections thereon by the learned counsel for the parties and to pass appropriate order in accordance with law. The order impugned was passed in the first phase of proceedings.
7. Learned counsel for the petitioners would submit after the matter was remanded, the learned Judge passed orders on 22.01.2018, however, again allowed the application filed under Section 216 of Cr.P.C. and ordered for framing of additional charges under Section 307 and 326 of IPC. Learned counsel for the petitioners would submit that it was not open to the trial Judge to frame additional charge of the offences on the basis of a memo or an application filed by the Public Prosecutor or on the document (in this case, CT Scan report issued by the doctor dated 16.07.2011). Learned counsel would further submit that final report was filed and the matter in other matter was committed so as the present case. When there was no change of circumstance, the application which was :7: neither necessary nor mandatory filed to seek alteration of charge to include the offence punishable under Sections 307 and 326 of IPC. The order that was passed by this Court on the earlier occasion is that it was remanded as in the light of the counsel urging that no proper opportunity was given to the petitioners.
8. The contention of the prosecution said to be that when a CT scan report pertaining to CW-6 issued by Kerudi Hospital, Bagalkot shows that CW-6 Kumar Lamani sustained a linear undisplaced fracture involving right superior frontal calvarial.
9. After remand, the trial Court has found that the injury was caused on the vital parts of the body. Injury is on the 'forehead' and held that 'the accused No.5 intended to cause murder' and found that CT scan report issued by Kerudi Hospital clearly show that the fracture sustained by CW-6 prima facie establishes that the concerned petitioner/accused No.6 had intention to kill CW-6. When the Court takes cognizance for the offence punishable under Section 190 of Cr.P.C. :8:
10. It is to be noted that cognizance is taken in respect of the offence and not the offender. However, a criminal case trying a particular offence follows the evidence and material on hand during the trial and finally if it concludes that the accused has not committed the offence charged against him, he is entitled for acquittal. At the same time, if the Court apart from holding that the accused has committed the lesser offence, it pronounces the judgment in respect of the said lesser offence. In this case, there need not be formality as there was evidence of recalling witness or other aspects as the offence is lesser one and in terms of punishment, no additional opportunity need to be given to the accused.
11. However, any application filed under Section 216 of Cr.P.C. filed by the Public Prosecutor seeking for insertion of the murder offence as it has happened in this case, it is to be seen, on the earlier occasion the offence was punishable under Sections 143, 147, 148, 323, 324, 504 read with Section 149 of IPC And after allowing the application, it also included 307 & 326 of IPC. It is in this connection, the accused/petitioners have come up in this :9: petition to urge for setting aside the order passed in S.C.No.94/2012.
12. The basis for framing charge report that consists of the materials that are connected to final report filed under Section 173 (2) of Cr.P.C. It is necessary to mention Section 173 (2) of Cr.P.C.
173. Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information'
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested; : 10 :
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
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Thus, the materials that are considered at the time of framing of charge for assessing that prima facie to permit a particular charge whether relevant materials are available. Definitely, it does not mean that a document is included, more particularly, a CT Scan report, when the case was registered on the basis of the wound certificate which is issued by the Medical Officer on considering the external position of the injured, CT scan report reflects the internal position or damage to a particular inner parts : 11 : related to fracture whether single or multiple and certain cases life threatening impact on the injured. Insofar as Section 2(b) of Cr.P.C. is concerned, the charge is defined as under
2(b). "charge" includes any head of charge when the charge contains more heads than one;
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13. The identification of an offence is necessary to connect the period of punishment prescribed for it. In this connection, the offences included subsequently are 326 and 307. The wound certificate of the injured is mentioned as the injury is simple in nature. So far as Section 326 of IPC prescribes punishment for grievous injury which is defined as under:
"326. Voluntarily causing grievous hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any : 12 : explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
14. Out of injuries that are considered as grievous, under Section 320 of IPC, 8th is as under:
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous": --
xxx xxx Eighthly.-- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
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15. The nature of injury describing whether simple one or otherwise is the domain of a doctor who examines it medically and so far as Section 307 of IPC is concerned, it reads as under:
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 : 13 : 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.]
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16. Thus, the nature of hurt acts. When an act in the circumstance of causing injury had laid the death of the victim, accuse would have been guilt of murder. It provides the nexus between the injured and the death and it would fall under Section 307 of IPC. The statute specifically refers an 'act' and not the word 'injury'. It should be open to the accused to have an opportunity to file a document or cross examine the witness in connection with the new provision and leading evidence from his behalf. Otherwise, it cannot be concluded with the Court as no power to order for impleading sections sought for trying the accused.
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17. It is necessary to mention that the investigating officer does not hold a copyright regarding offence that have to be tried before the Court.
18. The domain of the investigating officer to investigate and mention the offence, if any, commission of charge disclosed and thereby curtailing the Court to add or delete the existing section. In the circumstances, I find that there are no lapses, latches or mistake in the order passed by the learned District Judge, Bagalkot dated 22.01.2018. In the result, the petition filed under Section 482 of Cr.P.C. is hereby rejected.
19. It is made clear that the observations made while assigning the reasons for passing this order shall invariably and exclusively for framing of charges and to proceed with the trial and it shall not be construed as a finding regarding the commission of offence. The appreciation of the evidence has to be done independently.
SD JUDGE Naa