Allahabad High Court
Pankaj Sharma And 3 Ors vs State Of U.P. And Anr on 12 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 795, (2019) 2 ALLCRIR 1761
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 14.2.2019. Delivered on 12.3.2019. Case :- APPLICATION U/S 482 No. - 5831 of 2019 Applicant :- Pankaj Sharma And 3 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Opposite Party :- G.A.,Mayank Yadav Hon'ble Saurabh Shyam Shamshery,J.
1. Applicants by way of instant application has sought to invoke powers of this Court under Section 482 Cr.P.C. and prayed to quash the order dated 19.1.2019 in Complaint Case No.16864 of 2009, (Dhruv Bhardwaj Vs.vinay Gaur & Ors) under Sections 323, 324, 307, 504 and 506 I.P.C., Police Station-Kavi Nagar, District-Ghaziabad passed by the Chief Judicial Magistrate, Ghaziabad, whereby the application filed by the opposite no.2 has been partly allowed and it has been directed that the applicants shall also be tried under section 307 I.P.C. and accordingly applicants have been summoned under Section 307 I.P.C.
2. Factual matrix of the present case is as follows:
(a) Opposite Party No.2 lodged a F.I.R. No.780 at Police Station Kavinagar, District-Ghaziabad on 11.8.2008 against the applicants under sections 323, 324, 504 and 506 I.P.C. alleging that:
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(b) Investigating Officer after investigation submitted final report on 30.9.2008 as no case was made out against the applicants.
(c) On the direction of Higher Officials, the matter was further investigated however, again final report was submitted on 30.8.2009.
(d) Opposite party no.2 filed protest petition on 29.9.2009. The learned court below, after considering the report submitted by the police, treated the Protest Petition as Complaint Case No.16864 of 2009 under Sections 323, 504 and 506 I.P.C. and was registered in the court of learned Chief Judicial Magistrate Ghaziabad vide order dated 9.10.2009.
(e) Opposite party no.2 recorded his statement under section 200 Cr.P.C. as well as statements of other witnesses were recorded under Section 202 Cr.P.C. and after considering the material, learned court below summoned the applicants vide order dated 16.2.2010.
(f) Applicants appeared before the learned trial court and obtained bail. Applicants filed discharge application which was dismissed on 21.9.2013.
(g) Statement of P.W.1 Umesh Bhardwaj was recorded U/s 244 Cr.P.C. and he was cross examined on 10.11.2014.
Statement of opposite party no.2/injured Dhruv Bhardwaj was recorded on 06.7.2015 and he was not cross examined by accused/applicants.
The charges were framed against accused/applicants U/s 323, 324, 504 506 I.P.C. on 28.8.2015.
(h) P.W.2 Dhruv Bhardwaj was not cross examined by accused/applicants and adjournment was sought by them. On 08.3.2016 P.W.2 Dhruv Bhardwaj could not appear before trial court and his evidence was closed by court below.
Statement of accused/applicants was recorded on 01.4.2016.
An application U/s 311 Cr.P.C. was moved by opposite party no.2/complainant which was allowed by trial court for examination of Dr. R. P. Singh and eye witness Vinod Jha.
(i) Eye witness Vinod Jha was examined and he was cross examined on 08.7.2016.
Dr. R.P. Singh (Government Doctor) was examined as court witness no.1 on 20.7.2016 and he was cross examined on three dates on 10.8.2016, 22.8.2016, and 20.9.2016 and he proved medical examination report of Umesh Bhardwaj as Ex-Ka 1 on 20.7.2016 and medical examination report of Dhruv Bhardwaj as Ex-Ka-2 on 10.8.2016. Cross-examination was completed on 20.9.2016.
P.W.4 Brahmanand Sharma was examined and he was cross examined by accused/applicant on 13.4.2017 and 20.4.2017. When the case was fixed for statements under Section 313 Cr.P.C., the opposite party no.2 moved an application under section 211 Cr.P.C. to summon the applicants under section 307 I.P.C. also on 28.4.2017. Objections were filed on behalf of the applicants, however the application was withdrawn on 15.10.2018 and was dismissed as withdrawn. Later on, opposite party no.2 moved an application under Section 91 Cr.P.C. but the same was also withdrawn.
(j) The court below allowed application on behalf of informant/opposite party no2 and opportunity for his cross examination was given by trial court vide order dated 04.8.2018. P.W.2/informant/opposite party no.2 Dhruv Bhardwaj was cross examined by accused/applicants on 04.9.2018, 26.9.2018 and 09.10.2018. His cross examination was completed on 09.10.2018.
(k) An application under Section 311 Cr.P.C. was moved by opposite party no.2 Dhruv Bhardwaj wherein it was prayed that offence U/s 307 I.P.C. is made out and accused may be tried U/s 307 I.P.C. also therefore they may be summoned U/s 307 I.P.C. Objections were also filed by the applicants.
The trial court allowed the application filed under section 311 Cr.P.C. vide order dated 19.1.2019 and accused/applicants were summoned to face trial U/s 307 I.P.C. also.
3. The applicants have challenged the order dated 19.1.2019 in the present application.
The counsel for the parties made their submissions at length and also relied upon certain judgments. Written submissions are also filed.
4. Learned counsel for the applicants submits following grounds for quashing of the impugned order.
(a) By the impugned order dated 19.1.2019 the learned court below in an absolutely mechanical manner has allowed the application of the opposite party no.2 and has summoned the applicants to face trial under section 307 I.P.C. as well.
(b) The basis on which the impugned order has been passed is that the learned court below has relied on the fact that the applicants had evil intention as such section 307 I.P.C. is attracted.
(c) If this assertion of the learned court below is taken to be true then there was no occasion to add section 307 I.P.C. at such a belated stage, especially when all the facts were already in the knowledge of the learned court below.
(d) The application on which the order has been passed is not under section 216 Cr.P.C. rather it is a misc. application which does not call for an alteration of charge but it requests the court that the applicants be summoned under sections 307, 325 and 326 I.P.C. This application was also not maintainable.
(e) Learned court below has placed reliance on the deposition of an witness Vinod Jha, on extremely feeble grounds without appreciating that during his cross examination he has mentioned that the incident took place after he reached the spot, as such he is not an eye witness.
(f) He further submitted that injuries are simple in nature and are not dangerous to life. The application is moved at the fag end of the trial as well as injury report are fabricated piece of evidence.
(g) In the written submissions filed by the learned counsel for the applicants, it has been stated that:
The contentions of the applicants is that there is bad blood between the parties which has been duly explained and elaborated. The applicant no.1 was married to the sister of the opp.party no.2 and serious litigation between the parties has been ongoing since the last 12-13 years.
The intention which is required under section 307 IPC is to be inferred from the deposition of the witnesses keeping in view the background of on going litigation between the parties. The fact that the opp Party will exaggerate cannot be lost sight of, especially when they have been fighting with each other since the last decade.
The intention is something which the learned court below is required to deduce from the facts of the case as well as the conduct of the witnesses. The aspect of intention is not something which should be placed before the court by moving an application. The court should arrive at that conclusion on its own and not after being probed by either of the parties.
Moreover, it cannot be lost sight of the fact that there is absolutely no medical evidence to substantiate the framing of charge under section 307 I.P.C. In the absence of any admissible medical evidence merely on the exaggerated version of the complainant and other partisan witnesses keeping in mind that their exists serious animus between the parties, the court is required to exercise extreme caution and not forget the fact that in case of an doubt, the accused has to be given benefit.
The aspect of intention is something that existed in the exaggerated version of the complainant which states that the act was caused in such a fashion so that it causes death of the complainant, this fact existed since 2008 i.e. the time when the first information report was lodged, there was absolutely nothing new on the records of the case after the expiry of 10 years which would prompt the learned court below to add section 307 I.P.C. at such a belated stage. No new evidence was brought on record to justify the inclusion of the section 307 I.P.C. The witnesses on whom reliance is being placed have faltered on their cross examination which will be evident from the deposition.
5. Per contra, the counsel for the opposite party submitted that-
(a) In order to make out offence under section 307 I.P.C. intention which matters and if a person attacked upon injured with previous planning and came to spot with knife and caused injury on his chest, in that circumstances it cannot be said that offence under section 307 I.P.C. is not made out. The Hon'ble Apex Court in the case of State of 'Maharashtra Versus Balram Bama Patil' (1983) 2 SCC 28 has held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted. The section makes a distinction between act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. The court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section.
(b) The Hon'ble Apex Court in case of 'State of M.P. Versus Saleem' (2005) 5 SCC 554, has held that an accused charged under Section 307 I.P.C. cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. In another latest judgment, State of M.P. Versus Kanha @ Omprakash' reported in 2019 SCC Online SC 120, the Hon'ble Supreme Court has held that accused can be convicted under section 307 I.P.C. even if it is not stated that the injuries were dangerous to life. It does not require that the hurt should be grevious or of any particular degree. The intention is relevant. In the present case injujry was caused on the person of injured on his chest by knife. Therefore, the offence would be punishable under section 307 I.P.C. and the doctor in his examination in court has clearly stated that injury on the body of injured Dhruv Bhardwaj cannot be said to be simple in nature. Therefore the learned court below rightly and correctly summoned the applicants to face trial under section 307 I.P.C.
(c) The opposite party no.2 and his brother received injury and they were medically examined in government hospital. The applicants/accused committed offence and they were summoned by learned Magistrate under sections 323, 324, 504, 506 I.P.C. which was challenged by them before this Hon'ble Court in criminal revision no.1453 of 2010 but the Hon'ble Court found that there is no illegality in the order passed by learned Magistrate and criminal revision no.1453 of 2010 was dismissed by this Hon'ble Court. The question of malicious prosecution has already been raised in criminal revision no.1453 of 2010 which has been considered by this Hon'ble Court therefore they cannot raise that argument again and again by way of filing another petition.
(d) As per Section 216 (1) Cr.P.C., court may alter or add to any charge at any time before judgment is pronounced. Section 216 of Cr.P.C says if court found any material or evidence at the stage of trial, he may add or alter any charge and it can be done at any stage before judgment is pronounced. If court has not framed a charge despite material on record, it has jurisdiction to add a charge. Similarly, it has authority to alter charge.The principle that has to be kept in mind is, that the charge so framed by Magistrate is in accord with materials produced before him or if subsequent evidence comes on record. Safeguard has also been provided for accused in Section 216 of Cr.P.C.
(e) The Hon'ble Apex Court in case of Ánant Prakash Sinha Versus State of Haryana (2016) 6 SCC 105, has held that charge may be altered or added at any stage of trial, before judgment is pronounced and it has also been held by Hon'ble Apex Court that application may be moved by complainant or his counsel for addition/alteration of charge. In the present case the court below found that an offence punishable U/s 307 I.P.C. is made out from statement of opposite party no.2 Dhruv Bhardwaj and C.W.1 Dr. R.P.Singh. Therefore, the applicants/accused were rightly summoned by learned Magistrate U/s 307 I.P.C. so that charge U/s 307 I.P.C. may be framed against them after committal of case to Court of Sessions. In another judgment of 'C.B.I. Versus Karimullah Osan Khan' reported in (2014) 11 SCC 538, it has been held that charges U/s 216 Cr.P.C. may be added at any time before judgment is pronounced. Therefore, there is no delay in moving application dated 14.11.2018 and trial court did not commit any illegality in summoning the applicants/accused to face trial U/s 307 I.P.C.
(f) It is very much clear from perusal of statement of Dr. R.P. Singh that he examined the injured and prepared medical report which was duly proved by him as Ex. Ka-1 and Ex.Ka-2 and at this stage authenticity of medical report, duly proved by doctor cannot be questioned. It may be seen at the time of conclusion of trial.
(g) The learned Magistrate has not committed any illegality in passing the order dated 19.1.2019 and the order is well reasoned order which was passed by him on oral as well as documentary evidence adduced before the trial court. The order dated 19.1.2019 is well reasoned order and there is no merit in 482 application file by applicants. They have failed to show any illegality in the order passed by learned Magistrate therefore present 482 application is liable to be dismissed with exemplary cost.
6. Counsel for the State also supported the impugned order.
7. Heard counsel for the parties, perused the written submissions and record.
8. Relevant provisions of law which needs to be considered in the present case are mentioned hereinafter:
Section 216 Cr.P.C.
"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."
Section 307 I.P.C.
"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 any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] "
9. Object and scope of Section 216 Cr.P.C. has been considered in various judgments passed by Hon'ble Supreme Court. For reference, relevant paragraphs of some of the judgments are mentioned hereinafter:
In Central Bureau of Investigation Vs. Karimullah Osan Khan, (2014) 11 SCC 538, in paragraphs 15,16,17 and 18 the Hon'ble Supreme has held that:
"15.This Court in Jasvinder Saini v. State (Govt of NCT of Delhi) (2013) 7 SCC 256 had an occasion to examine the scope of Section 216 Cr.P.C. and held as follows:
"11.. ...... the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any [pic]reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.
12. In the case at hand the evidence assembled in the course of the investigation and presented to the trial court was not found sufficient to call for framing a charge under Section 302 IPC. ....."
16. The Privy Council, as early as in Thakur Shah v. King Emperor AIR 1943 PC 192, spoke on alteration or addition of charges as follows :
"The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred."
17. Section 216 CrPC gives considerable powers to the Trial Court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add any charge, subject to the conditions mentioned therein. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the Courts should also see that its orders would not cause any prejudice to the accused.
18. Section 216 CrPC confers jurisdiction on all Courts, including the designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and Sub-Sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the Courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the Court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court. (See Harihar Chakravarty v. State of West Bengal AIR 1954 SC 266. Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in in Section 216 Cr.P.C. and other related provisions."
(emphasis supplied) In Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana & Anr, 2016 (6) SCC 105, in paras 18 and 19, the Hon'ble Supreme has held that:
"18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.
19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. It has been held in Amar Singh v. State of Haryana, (1974) 3 SCC 81 that the accused must always be made aware of the case against them so as to enable him to understand the defence that he can lead. An accused can be convicted for an offence which is minor than the one he has been charged with, unless the accused satisfies the court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. While so stating, we may reproduce the following two passages from Bhimanna v. State of Karnataka, (2012) 9 SCC 650:-
"25. Further, the defect must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
26. This Court in Sanichar Sahni v. State of Bihar, (2009) 7 SCC 198, while considering the issue placed reliance upon various judgments of this Court particularly on Topandas v. State of Bombay, AIR 1956 SC 33, Willie (William) Slaney v. State of M.P. AIR 1956 SC 116, Fakhruddin v.State of M.P., AIR 1967 SC 1326, State of A.P. v. Thakkidiram Reddy, (1998) 6 SCC 554, Ramji Singh v. State of Bihar, (2001) 9 SCC 528 and Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 and came to the following conclusion: (Sanichar Sahni case (supra), SCC p. 204, para 27) "27. Therefore ... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory."
A similar view has been reiterated in Abdul Sayeed v. State of M.P. (2010) 10 SCC 259"
(Emphasis supplied)
10. On the issue that what is the nature of injuries which may constitute offence under Section 307 I.P.C., judgment passed by Hon'ble Supreme Court in the matter of State of Madhya Pradesh Vs. Kanha alias Om Prakash reported in 2019 SCC Online SC, 120 is relevant and paragraph 11 of the said judgment is mentioned hereinafter:
"11. Several judgements of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v Balram Bama Patil(1983) 2 SCC 28, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:
"9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
(Emphasis supplied)
11. In the present matter learned Trial Court has metriculously considered the submissions raised for and against the application and passed the impugned order and held that:
^^EkSaus i=koyh dk ifj'khyu fd;kA i=koyh cpko lk{;@cgl esa uh;r gSA ifjoknh dks ?kVuk esa fuEu pksVs vk;h gS%& 1&pksV uEcj&01 lwtu ds lkFk pksV 11 ls0eh0 xq.kk 5 ls0eh0 jkbZV lkbZM ds flj ds mij nk;s dku ds 5 ls0eh0 2&pksV uEcj&2 ,d dVk gqvk ?kko 3-5 ls0eh0 xq.kk 0-5 ls0eh0 e'ky Mhi ¼ekl rd xgjk½ tks ck;h rjQ dh Nkrh ij ck;s fuIiy ls 9 ls0eh0 mij Fkk ftlesa rktk jDr cg jgk FkkA 3&pksV uEcj&3 dVk gqvk ?kko 3-5 ls0eh0 xq.kk 0-5 ls0eh0 e'ky Mhi ¼ekl rd xgjk½ lh/ks gkFk ij ckgj d rjQ NksVh mWxyh ls 1-5 ls0eh0 mij Fkk ftlesa rktk jDr cg jgk FkkA 4& pksV uEcj 4 o 5 fdlh dqUn gfFk;kj ls vkuk crk;k x;k gSA ifjoknh@pqVSy /kzqo Hkkj}kt dks vk;h pksV uEcj 02 o 03 dh ckcr fpfdRlh; vk[;k ls ;g Li"V :i ls mYys[k gS fd 'kkiZ vksctSDV us vk;h crk;h x;h gS rFkk vU; pksVs gkVZ ,aM CyaM vksctSDV ls vkuh crk;h x;h gSA bl izdkj lk{kh mes'k Hkkj}kt dks vk;h lHkh pksVs gkVZ ,aM CyaM vksctSDV ls vk;h crk;h x;h gSA lk{kh /kzqo Hkkj}kt us viuh lk{; esa ;g Li"V :i ls vfHkdFku fd;k gS fd vfHk;qDrx.k us fnukad 02-08-2018 dks le; djhc 9-30 cts lqcg tc og vius HkkbZ mes'k ds lkFk tk jgk Fkk rFkk lqcg 10-30 cts tc oh xzhu gkml fcfYMax lsDVj&3 ds lkFk okyh jksM ij igqps rks foi{khx.k fou; xkSM+] vfHk"ksd xkSM+ mQZ fjadw] iadt 'kekZ o mRre 'kekZ us ihNs ls mldh eksVjlkbfdy ds vkxs viuh eksVj lkbfdy yxkdj jksd fy;k vkSj xkyh xykSp dh rFkk lHkh us ,d jk; gksdj tku ls ekjus dh uh;r ls geyk fd;k ftlls eksVj lkbfdy lM+d ij fxj x;kA tc tku ls ekjus dh uh;r ls fou; xkSM+ us pkdw ekjuk pkgk rks mlus gkFk ls jksd fn;k fdUrq nqckjk okj fd;k rFkk og mlds lhus esa ?kqlk fn;k rFkk mes'k Hkkj}kt dks cqjh rjg ls ekjk ihV dhA yksxks ds bdB~Bk gksus ij os yksx Hkkx x;sA mes'k Hkkj}kt us Hkh vius c;ku esa oknh dh lk{; dk leFkZu fd;k gS rFkk ;g Hkh dFku fd;k gS fd eqfYteku us tku ls ekjus dh uh;r ls mls rFkk mlds HkkbZ /kzqo Hkkj}kt ij geyk fd;k rFkk mu yksx us tku ls ekjus ds fy;s pkdw ls okj fd;k FkkA lk{kh czgekuUn >k ;|fi fd ?kVuk dk izR;{kn'khZ lk{kh ugh gS fdUrq ?kVuk esa diM+ks ij vk;s [kwu vkfn dh ckcr lk{; izLrqr fd;k gSA fpfdRld lk{kh Mk0 vkj0 ih0 flag us Hkh ifjoknh o pqVSy lk{kh dks vk;h pksVksa dh ckcr mudk fpfdRlh; ijh{k.k djus dh rFkk viuh fpfdRlh; fjiksVZ esa nh x;h pksVksa ds vkus dk lk{; izLrqr fd;k gS rFkk ;g Hkh vfHkdFku fd;k gS fd /kzqo Hkkj}kt dks vk;h pksV la[;k 02 o 03 'kkiZ vkctSDV ls vk;h FkhA lk{kh /kzqo Hkkj}kt us viuh lk{; esa ;g Hkh vfHkdFku fd;k gS fd ?kVuk ds ckn og dbZ vLirky esa HkrhZ jgk rFkk bu pksVks ds dkj.k mls dkQh ijs'kkuh jghA fpfdRlh; fjiksVZ esa /kzqo Hkkj}kt dh pksV la[;k&02 ck;h rjQ ls Nkrh ij ely Mhi rd xgjh gSA ifjoknh dh vksj ls ekuuh; mPPkre U;k;ky; }kjk ,l0 ,y0 ih0 ¼dze0½ la[;k 1507@2007 e/; izns'k jkT; cuke dk'khjke vkfn es ikfjr fu.kZ; fnukafdr 02-02-2009 izLrqr fd;k x;k gS ftlesa ekuuh; mPpre U;k;ky; }kjk ;g Li"V :i ls vfHkfu/kkZfjr fd;k x;k gS fd /kkjk 307 Hkk-na-la ds vijk/k es ;g vko';d ugh gksxk fd 'kjhj ij xEHkhj pksVs vk;h gks cfYd vfHk;qDrx.k dk tks mn~ns'; gks og tku ls ekjuk gks vkSj tku ls ekjus dh uh;r ls izgkj djuk vkSj ;g le>uk gS fd blls e`R;q lEHko gks] ;g egRoiw.kZ gSA mijksDr rF;ksa ,oa ifjfLFkfr;ksa esa mijksDr foospu ls ;g Li"V gS fd ifjoknh@pqVSy lk{kh /kzqo Hkkj}kt o pqVSy lk{kh mes'k Hkkj}kt dh lk{; esa ;g Li"V :i ls vk;k gS fd vfHk;qDrx.k us mUgs tku ls ekjus dh uh;r ls gh geyk fd;k Fkk rFkk tku ls ekjus dh ckr dgrs gq, gh /kzqo Hkkj}kt ij pkdw ls geyk fd;k FkkA ,slh fLFkfr esa mijksDr lk{;ks ds voyksdu ls vfHk;qDrx.kksa fou; xkSM+] vfHk"ksd mQZ fjadw xkSM+] iadt 'kekZ o mRre 'kekZ ds fo:} /kkjk 323] 324] 504] 506 Hkk- na- la- ds lkFk&lkFk /kkjk 307 Hkk- na- la- dk vijk/k Hkh xfBr gksrk gS /kkjk 325] 326 Hkk-na-la- ds vijk/k dk xBu ugh gksrk gSA ,slh fLFkfr esa izk0 i= vkaf'kd :i ls Lohdkj gksus ;ksX; gSA^^
12. Dr. R.P. Singh who was examined as C.W.1 has stated that:
^^esjh jk; ds vuqlkj pksV ua0 2 o 3 rst /kkj okyh oLrq ls vkuk lEHko gS rFkk nksuks pksV rktk FkhA pksV ua0 1] 4 o 5 lk/kkj.k izd`fr dh Fkh rFkk Hkkjh o dqUn oLrq ls vkuk lEHko gSA^^ ^^et:c dh eSfMdy fjiksVZ ij ntZ pksVs fnukad 2-8-08 dks izkr% esa vkuk lEHko gS pksV ua0 2 o 3 xEHkhj izc`fRr dh gks ldrh Fkh ;fn ;g pksV vkSj xgjh gksrh vkSj Nkrh rd gksrhA ;g ckr lgh gS fd nksuks pksVs ftuesa pksV ua0 2 o 3 lk/kkj.k izc`fRr dh ugh fy[kh eSus pksV ua0 2 o 3 blfy, lk/kkj.k izc`fRr dh ugh fy[kh pwafd os /kkjnkj oLrq ls vk;h gqbZ Fkh blfy, lk/kkj.k izc`fRr dh ugh FkhA^^
13. Dhruv Bhardwaj (P.W.-2) has stated that:
^^?kVukLFky ij yxHkx nl ls iUnzg feuV ds vkl ikl jgs gksxs blh chp esa foif{k;ksa }kjk ge nksuks HkkbZ;ksa ds lkFk ekj ihV o esjs lkFk fou; xkSM }kjk tku ls ekjus dh uh;r ls nks ckj pkdw ls izgkj fd;k ftlesa esjs xEHkhj pksVs vk;h eS bu pksVks dk bZykt ,e,eth vLirky ds ckn vEcs vLirky lkfgckckn esa pyk esjs 'kjhj esa vR;f/kd ihM+k jgh ftl otg ls eS dkQh fnuksa rd dk;Z Hkh ugh dj ik;k FkkA^^
14. Umesh Bhardwaj (P.W.-1) has stated that:
^^ge nksuks us fojUn fd;k rks lHkh us feydj ,d jk; gksdj tku ls ekjus dh uh;r ls geyk dj fn;k bl geys esa fou; xkSM+ us vius gkFk esa fy, pkdw ls esjs HkkbZ /kzqo ij tku ysok geyk djrs gq, pkdw ls dbZ okj fd;s ftlls esjk HkkbZ xEHkhj :i ls ?kk;y gks x;k rFkk [kwu ls yFkiFk gks x;kA^^
15. Vinod Jha (P.W.-3) has stated that:
^^eSa ogka ij igqapk rks eSaus ns[kk fd /kzqo Hkkj}kt ds Nkrh o nka;s gkFk ls [kwu cg jgk FkkA rFkk mes'k Hkkj}kt fpYyk jgk Fkk vkSj ;g dg jgk Fkk fd esjs HkkbZ dks cpk yks fou; xkSM+ us pkdw ls /kzqc Hkkj}kt dh tku ys fy;kA eSus ns[kk Fkk fd fou; xkSM+ ds gkFk esa [kwu ls luk pkdw FkkA vkSj rhu O;fDr gkFkks esa M.Ms fy, FksA^^
16. Bramhanand Sharma (P.W.-4) has stated that:
^^fn0 2-8-08 dks /kzqc Hkkj}kt rFkk mes'k Hkkj}kt viuh cqyV eksVj lkbfdy ls xkft;kckn dpgjh vk jgs Fks rks djhc 9-30 cts fou; xkSM+ vfHk"ksd mQZ fjadw o mRre 'kekZ us /kzqc o mes'k ij tku ysok geyk fd;k FkkA ftlls /kzqc cqjh rjg t[eh gks x;k Fkk rFkk mes'k dks Hkh pksVs vk;h Fkh bl ?kVuk dh fjiksVZ /kzqo Hkkj}kt }kjk Fkkuk dfo uxj esa ntZ djk;h FkhA^^ (Emphasis supplied)
17. Considering the well settled proposition of law as mentioned above and rival submissions raised, I am of the considered opinion that from the evidence on record as mentioned above, it is evident that accused has attacked the injured by knife, which was stopped by hand on first time however on second time it caused injury on chest which was muscle deep. From the evidence and the fact that accused has attacked the injured twice by knife and even caused injury on chest, it is clear that accused have such intention or knowledge under such circumstances, if he by that act caused death, he would be guilty of murder. Therefore, accused has rightly been summoned under section 307 I.P.C.
18. From the perusal of statements mentioned in earlier paragraphs are sufficient material to frame charge against the applicants under Section 307 I.P.C.
19. The applicants have not been able to show any prejudice caused due to additions of charge under Section 307 I.P.C.
20. The argument that there is delay in filing the application under Section 216 Cr.P.C. also lacks merit as evidence of the P.W.2/opposite party no.2 was over on 4.8.2018, and application was filed on 14.11.2018, therefore, there is no delay as such. Further, application under section 216 Cr.P.C. can be filed anytime and Court may alter charge at any time before the judgment is pronounced.
21. In view of the above discussions, the application sans merit and is accordingly rejected.
Order Date :-12.3.2019 SB