Allahabad High Court
Raghunath Singh vs State Of U.P. on 11 May, 2012
Author: Vinay Kumar Mathur
Bench: Vinay Kumar Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Criminal Revision No.557 of 2010 ************************************* Raghunath Singh Vs. State of U.P. Hon. V.K. Mathur, J.
The instant revision has been preferred against the order dated 8.1.2010 passed in S.T. No.189 of 2009, under Sections 147, 148, 149, 452, 323 and 504, IPC, P.S. Achhanera, District Agra.
Vide the impugned order learned Additional Sessions Judge, Court No.14, Agra on an application by the revisionist under Section 216, Cr.P.C. praying that charge under Section 302 and 307, IPC in the light of evidence of the witnesses be framed against the accused persons, has observed that it will not be appropriate to express opinion at this time and only after the entire evidence is recorded and it is found at the time of the judgment that accused Damodar has murdered Prem Singh then in that situation the court will be free to amend the charge and the question of framing of charge under Section 302 and 307, IPC will be considered finally at that time. Accordingly, the application under Section 216, Cr.P.C. has been disposed of. Aggrieved from the impugned order the revisionist has preferred the revision on the ground that the impugned order is arbitrary and has been passed without application of judicial mind as the court below while passing the said order, has completely overlooked facts and circumstances of the case, evidence on record as well as the grounds mentioned in the application.
I have heard learned counsel for the revisionist and learned A.G.A. and have perused the record.
Learned counsel for the revisionist has submitted that in the incident dated 28.11.2006 the accused had come to the house of the complainant and they assaulted Achal Singh and Hari Singh while accused Damodar opened fire from country made pistol which accidentally injured his own man deceased Prem Singh, therefore, provisions of Section 301, IPC will be attracted. It has also been contended that the ballistic report dated 16.1.2007 indicates that the gun shot was not fired by Arab Singh, as alleged in the FIR of case crime no.424 of 2006 (cross case). The report proves that the fire made by Damodar caused death of Prem Singh. Further contention is that as per statement of the witnesses examined on behalf of the complainant it is established that the incident took place outside the residence of the complainant. The learned court below has not looked into the evidence properly. Injuries were sustained by Achal Singh and Hari Singh. The trial court completely misconstrued/misinterpreted the provisions of Section 216, Cr.P.C. and the charge could have been modified at any stage of the trial. There is cross version and there was no requirement for the court below to defer its decision on merits in the application.
Learned counsel for the revisionist has further submitted that annexure-1 is the FIR which has been lodged by Shashikant against two sons of the revisionist and also against Keshav Singh and Shiv Singh under Sections 302, 307, 323, 504, 506, IPC in respect of the alleged cross version dated 28.11.2006 which as per report took place at 8.30 p.m. In this case, which is being also tried by the court of Additional Sessions Judge, Agra, there are charges against the accused persons that they murdered deceased Prem Singh. In the FIR it has come that on the exhortation of accused Keshav Singh, Arab Singh opened fire from his Tamancha which hit informant's brother Prem Singh on the left side of his chest. As a consequence thereof Prem Singh subsequently died. Further submission of learned counsel is that the revisionist tried to lodge FIR, which was not registered by the police, therefore, on 4.12.2006 applications addressed to DIG and SSP, Agra were sent by post and after obtaining order under Section 156(3), Cr.P.C. the FIR on behalf of Revisionist's side could be lodged. In this FIR wherein Damodar, Sonu, Dhan Singh, Prem Singh and Shashikant have been made accused it has been stated that the accused persons had entered the house of the complainant and were armed and started maarpeet. As a consequence thereof a premolar (tooth) of Achal Singh was fractured. There are allegations that fire was opened with intent to kill the complainant and others. It has also been alleged that the fire made by Damodar had infact hit Prem Singh, who fell down at some distance. When Keshav Singh, Hari Singh and Shiv Singh went to lodge the FIR at the reporting outpost, they were arrested and were sent to P.S. Achhanera. Learned counsel has further submitted that after the investigation, final report was submitted and ultimately in the complaint case after evidence on behalf of complainant was recorded by the Magistrate it was committed to Sessions. After examination of two witnesses PW-1 and PW-2 the application under Section 216, Cr.P.C. was moved stating that the ballistic report rules out the possibility of alleged FIR of Arab Singh having hit deceased Prem Singh.
Further submission is that the learned Additional Sessions Judge has not considered the case laws referred on behalf of the complainant and has wrongly formed the view that it has to be seen whether at this stage amending the charge will be justified or not. While admitting the fact that the statements of PW-1 Raghunath Singh and PW-2 Hari Singh are identical, thus, the court below has erred in holding that the recording of the remaining evidence is yet to be completed and at this stage to clarify the fact whether an offence under Section 302 and 307, IPC has been committed by the accused persons or not will not be proper.
Learned counsel has further submitted that the court has further wrongly held that if something is said at this point, it will not be proper as it will amount to expressing the opinion. Therefore, in the opinion of the Court, after recording the entire evidence, if it is found that accused Damodar had murdered Prem Singh, in that situation the court will be free to amend the charge and in that event this question will be considered finally. Thus, in this view of the matter the impugned order is against the law and as such is not sustainable in the eyes of law and is liable to be set aside.
Learned A.G.A. has defended the impugned order and has submitted that Section 216, Cr.P.C. provides that any court may alter or add to any charge at any time before judgment is pronounced. Therefore, if after recording of the entire evidence and after consideration of the evidence at the time of judgment it is found that the deceased was hit fatally by the fire of Damodar, then the court can amend/alter the charge. Prior to it merely on the basis of evidence of two witnesses there does not appear to be any justification of amending the charge. There is no illegality in the impugned order.
It is provided in sub-section (1) of Section 216, Cr.P.C. that any court may alter or add to any charge at any time before the judgment is pronounced. In Rocky Benediek Vs. State of Sikkim, (2003) 3 Crimes 452 it has been observed that the object of Section 216, Cr.P.C. is to ensure a fair trial and the court is to see as to whether alteration or addition to any charge at any time before the judgment is pronounced is called for or not and if it is called for, such alteration or addition to any charge must be on the basis of some evidence on record. It has been further held in Rajendra Singh Sethia Vs. State, 1989 Cr.L.J. 255 and Ishwarchand Amichand Govadia Vs. State of Maharashtra, 2006 (10) SCC 322 that charge may be altered or added under Section 216, Cr.P.C. only when there is evidence to support it.
From the perusal of the impugned order it appears that the application under Section 216, Cr.P.C. was moved on behalf of the prosecution after the evidence of P.W.1 and P.W.2, Raghunath and Hari Singh respectively, had been recorded, who have said that accused Damodar had fired on the complainant side from his 315 bore pistol, but the fire hit Prem singh who was involved at that time in the maarpeet and as a result thereof he died. It also appears that the accused persons had opposed the alteration of the charge contending that the complainant had moved an application under Section 156(3), Cr.P.C. on 6.12.2006 and at that time Shri Suresh Sharma was complainant's counsel who continues to be his counsel and the learned counsel had mentioned only Sections 147, 148, 452, 323 and 326, IPC in that application and on that basis the FIR was lodged and investigation conducted. During investigation the case was found to be false and final report was submitted and it was also mentioned that in order to save themselves from cross version registered at crime no.424 of 2006, under Sections 302, 307, 323 and 504, IPC the application under Section 156(3), Cr.P.C. on false grounds had been moved. Thereafter, after filing the protest petition the complaint case was registered and since there was no mention of Section 302, IPC throughout and the statement of the witnesses P.W.1 and P.W.2 are in consonance with their earlier statements, therefore, the application deserves to be rejected.
Learned court below in the impugned order has observed that it is to be seen as to whether at this stage it will be justifiable to amend the charge or not. It has held that in the complaint, in statement under Section 200 and 202, Cr.P.C. and in the evidence of P.W.1 & P.W.2 during trial there is similarity in their testimonies. The court has further held that charges under Sections 147, 148, 323 read with 149, 325 read with 149, 452, IPC were framed on 25.5.2009 after hearing both the sides and also after perusing the entire evidence. The court has further held that remaining evidence of the prosecution is yet to be recorded, therefore, it will not be appropriate to clarify at this stage as to whether an offence under Section 302 and 307, IPC has been done by the accused persons or not. It has further held that now it is not the stage after framing of charge to take cognizance of any fact on prima facie satisfaction, because the opinion of the court will be expressed. After recording of the entire evidence if at the time of the judgment it is found that the accused Damodar had murdered Prem Singh, in that case the court will be free to amend the charge and in that situation this question will be finally looked into. Accordingly, the application has been disposed of. Thus, it is clear that learned court below has not taken any final decision on the application of the complainant under Section 216, Cr.P.C. but has deferred its decision to the stage of the judgment after recording of the entire evidence is completed.
I am of the view that if evidence in support of parties under Section 307 and 302, IPC was available before the learned court below and it was convinced prima facie, then it ought to have passed appropriate order for altering the charge. However, in case after the assessment of the evidence produced, the court was of the opinion that prima facie offences under Section 307 and 302, IPC are not made out, then after recording such finding it could have rejected the application. To my mind, there does not appear to be any justification by deferring the decision to judgment stage and after completion of the entire evidence of the parties. No doubt Section 216, Cr.P.C. provide that charge may be altered at any stage prior to delivery of the judgment, but this does not imply that in all cases decision should be deferred to the judgment stage. The very object of Section 216, Cr.P.C. to provide fair trial will be defeated, if such an approach is adopted. To my mind, the stage after recording of evidence of two prosecution witnesses was right when court ought to have taken a decision whether alteration to the charge was required or not. It is not disputed that evidence on the basis of which decision could have been taken was already on record. It may further be pointed out that the approach of the learned court is erroneous in observing that if a decision is taken at this stage, the opinion of the court will be expressed. By allowing the application or rejecting the application it cannot be said that the opinion of the court will be expressed. The decision whether to alter the charge or not will be based on prima facie consideration alone which is subject to change or modification at subsequent stage and final decision/opinion will not be affected by this decision. In this prospective I am in agreement with the learned counsel for the revisionist that impugned order is not legally sound and the court below has committed manifest error in passing the impugned order and the impugned order suffers from infirmity and irregularity, as such, it is not sustainable and deserves to be set aside.
Revision is allowed. The impugned order dated 8.1.2010 is set aside. Learned court below is directed to decide application 47 B under Section 216, Cr.P.C. afresh after affording opportunity of hearing to both the sides by passing a reasoned and speaking order in accordance with law as far as possible within 45 days from the date of filing of the certified copy of this order.
Stay order, if any, is vacated.
No order is as to costs.
Dated:11.5.2012 T. Sinha