Devmani Pandey vs State of U.P.

Ravindra Singh, J.—Heard Sri S. K. Dubey, learned Counsel for the applicant, learned A.G.A. for the State of U. P. and Sri N. D. Shukla, learned Counsel for the complainant who have been impleaded as opposite parties.

This application has been filed with a prayer to set aside the order dated 5.8.2008, passed by learned Addl. Sessions Judge, Court No. 3, Bhadohi in S.T. No. 134 of 1997 and to direct the trial court to frame the charges against the accused persons u/s 326, I.P.C.

The facts in brief of this case are that the F.I.R. has been lodged by the applicant in Case Crime No. 225 of 1990 under Sections 324, 325 and 504, I.P.C. P. S. Suriyawan, district Varanasi on 14.11.1990 against the accused Baduk Nath Tiwari, Shiv Kumar Tiwari and Saroj Tiwari with the allegation that the accused persons caused the injuries by using kicks, fists, lathi, danda and farsa blows consequently the applicant Devmani Pandey had sustained incised wound which was found grievous in nature caused by sharp object. The case was committed to the Court of Sessions which is pending in the court of learned Addl. Sessions Judge, Court No. 3, Bhadohi vide S.T. No. 134 of 1997. At the stage of the trial, an application has been moved from the prosecution side to correct the charge framed by the Court by correcting the time of the incident as 6 p.m. at the place of 8 p.m. and to delete wording by which it has been mentioned that the injuries were caused by lathi and danda and to frame the charge under the Section 326, I.P.C. The application was partly allowed by correcting the time of the incident and deleting words by which it has been mentioned that injuries were caused by lathi and danda and adding the words by which injuries were caused by farsa. But the trial court has refused to frame the charge u/s 326, I.P.C. Being aggrieved from the order dated 5.8.2008 by which the charge has not been framed u/s 326, I.P.C., this application has been filed by the applicant.

It is contended by learned Counsel for the applicant that according to the medical examination report of the applicant he had sustained only three injuries which were grievous in nature which discloses the commission of the offence u/s 326, I.P.C. even then the charge has been framed u/s 324, I.P.C. The learned trial court has committed a manifest error by not framing the charge u/s 326, I.P.C.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel Sri N. D. Shukla appearing on behalf of the opposite parties that the trial court has not committed any error by not framing the charge u/s 326, I.P.C. because at any stage of the trial the charge can be altered, if such evidence is adduced.

Considering the submissions made by learned Counsel for the applicant, learned A.G.A. for State of U. P., learned Counsel appearing on behalf of accused persons and from the perusal of the record it appears that in the present case the trial court has not framed the charge u/s 326, I.P.C. at this stage, it is not proper to enter into the controversy regarding framing of the charge either u/s 324, I.P.C. or 326, I.P.C. because it may prejudice the mind of trial court Judge. This issue may be properly decided by the trial court when such evidence is adduced because any Court may alter or add to any charge at any time before the judgment is pronounced as provided by Section 216 of Cr. P.C., 1973. The trial court is a competent court to appreciate the evidence adduced in the Court, at this stage no evidence is adduced, the material collected by the Investigating Officer during investigation is available on the record. Therefore, it is not proper for this Court to interfere with the order dated 5.8.2008 by expressing any opinion regarding framing of the charge, the prayer for quashing the impugned order dated 5.8.2008 is refused. But it shall be open to the applicant or the prosecution to move an application before the trial court for altering the charge or adding some other charge at the stage of the trial when such evidence is adduced as provided by the provisions of Section 216, Cr. P.C.

With this observation, this application is finally disposed of.