Andhra Pradesh High Court - Amravati
Ganapati Sridhar, vs The State Of Andhra Pradesh, on 22 October, 2020
THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION No.1136 of 2020
ORDER:-
This Criminal Petition is filed by the petitioner/accused No.1 under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking to quash the order dated 28.01.2020 passed in Crl.M.P.No.2889 of 2019 in C.C.No.49 of 2017 by learned Judicial Magistrate of First Class, Ponduru.
2. The prosecution has filed a petition under Section 216(1) of Cr.P.C. for adding Section 307 of the Indian Penal Code, 1860 (for short 'I.P.C.') along with other charges as the acts of the petitioner attract the offence punishable under Section 307 I.P.C. The Court below has allowed the petition filed by the prosecution and has taken cognizance of the offence punishable under Section 307 I.P.C. against the petitioner herein in addition to the charges already framed and directed for issuance of summons to the petitioner. It was further directed to register PRC by converting C.C.No.49 of 2017 as the offence punishable under Section 307 I.P.C. is exclusively triable by the Court of Sessions. Assailing the said order, the petitioner is before this Court.
3. Heard Sri P.Anand Seshu, learned counsel for the petitioner and learned Public Prosecutor appearing for respondent No.1- state.
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4. Learned counsel for the petitioner submits that the complainant gave report to the Police on 21.03.2016 alleging that the petitioner came to her house at about 5:30 A.M. and attempted to commit murder in the absence of her parents. Basing on that complaint crime was registered under Sections 498-A and 307 read with 34 I.P.C. The Police after investigation and taking into consideration the medical evidence wherein it is stated that there are no external injuries found on the complainant's body filed charge sheet for the offences punishable under Section498-A I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
5. Learned counsel for the petitioner submits that during course of investigation as there was no evidence with regard to the charge under Section 307 I.P.C. the Police, at the time of filing charge sheet had specifically deleted Section 307 I.P.C. In the charge sheet it is specifically mentioned that even immediate neighbours of the complainant completely denied the presence of the petitioner on 21.03.2016 and denied about his attempt to kill the complainant in her house. Having found that only there are allegations of harassment against the petitioner charge sheet was filed.
6. Learned counsel for the petitioner submits that learned Magistrate failed to construe Section 216(1) Cr.P.C. in its proper perspective and erroneously held that Section 307 I.P.C. is attracted. It is also argued that as per the medical evidence there are no "visible injuries over the neck region and no external visible injuries". In the absence of any injury to the complainant, offence under Section 307 I.P.C. is not attracted. It is also submitted that 3 altering Section of law into 307 basing on the statement of the complainant alone is bad and the Court ought to have taken into consideration the other relevant factors also. The learned counsel for the petitioner submits that the petitioner's right hand is paralysed. Hence, the charge of applying force with his paralyzed hand to squeeze or strangulate her neck with chunni does not arise.
7. Learned counsel for the petitioner has taken out personal notice on respondent No.2, which was received on 02.03.2020 and he has also filed proof of service vide U.S.R.No.16827 of 2020. But none appeared for respondent No.2.
8. Learned public prosecutor appearing on behalf of the state submits that the Court below by way of a reasoned order has added Section 307 I.P.C. along with other Sections. He submits that the Court on consideration of probabilities of the case based upon the evidence and documents produced, if satisfied can alter or add any Section and there cannot be any legal bar and Court is empowered to alter the charge at any time before the judgment is pronounced.
9. As rightly submitted by learned Public Prosecutor, the trial Court is empowered to alter or add any charge at any time before pronouncement of judgment. However, to alter the charge the Court has to take into consideration the evidence produced before the Court or any other piece of evidence which warrants such an order.
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10. Coming to the facts of the case, it is the consistent case of the complainant right from the complaint, her 161 Cr.P.C. statements and the evidence that the petitioner has come to her house when her parents went to work and asked additional dowry. At that point of time altercation took place between them and the petitioner took chunni and strangulated the complainant's neck with it. During the course of investigation admittedly the witnesses have not supported the factum of the petitioner coming to the house of the complainant and making attempt to strangulate her neck with chunni. The Police have also taken into consideration the Doctor's certificate wherein it shows that "there is no evidence of physical injuries over the neck region and no external visible injuries". Further they deleted the charge under Section 307 I.P.C. and filed charge sheet only under Section 498-A I.P.C. and Sections 3 and 4 of D.P.Act.
11. After commencement of trial the prosecution has filed the petition under Section 216 (1) Cr.P.C. for adding Section 307 of I.P.C. basing on the statement made by the complainant about strangulating her neck by the petitioner. There is no dispute about the fact that the petitioner/A1 is a handicapped person and his right hand is completely paralysed. Section 307 I.P.C. reads thus:
"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 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When 5 any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death."
12. In the application filed by the prosecution except the statement given by the complainant no other material or evidence has been placed before the Court, which persuaded the Court to alter the charge to Section 307 I.P.C. While altering the charge under Section 307 I.P.C. the Court below ought to have taken into consideration the nature of injury sustained by the complainant and the weapon used. From the order impugned no explanation is forthcoming on what basis charge was altered to Section 307 I.P.C. Looking at the physical condition of the petitioner where his right hand being paralysed and the medical report which shows that there are no absolute injuries on the petitioner's neck, in the considered opinion of this Court, the trial Court went wrong in altering the charge to Section 307 I.P.C. without there being any material.
13. In view of the above discussion, this Criminal Petition is allowed and the order passed in Crl.M.P.No.2889 of 2019 in C.C.No.49 of 2017 by learned Judicial Magistrate of First Class, Ponduru dated 28.01.2020 is set aside.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________________ JUSTICE LALITHA KANNEGANTI Date: 22.10.2020 IKN 6 THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No.1136 of 2020 Date: 22.10.2020 IKN