Sarla Devi vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The revisionist, who is now about 74 years of age was assaulted by the complainant/respondent in an incident, which has occurred on 09.08.2005, wherein, out of the said assault an FIR was registered being FIR No. 24 dated 18.08.2005 under Sections 323, 308, 504 & 506 of IPC, which was registered at Police Station Bhagwanpur, District Haridwar, by the husband of the present complainant.

As per the medical, which was conducted on the person of the applicant, it was submitted in the medical report that in accordance with the x-ray, which was conducted on various parts of the body including the head, it was found that parietal bone of the applicant's head was found fractured and it was a fracture, which was caused on account of a blow, which was inflicted by sariya (iron rod), which has resulted into the injury being caused on the head, which is as per medical jurisprudence is vital part of the body and as per the medical report too it was observed by the doctor, who has examined the applicant, that according to the radiologist report injury no. 2 is reported to be dangerous to life. Consequently, on the investigation being conducted a final report was submitted, which was opposed by the present applicant by filing an objection against the final report, and later on it was converted into a complaint case and registered as NCR No. 51 of 2005 dated 13.08.2005 under Sections 323, 504 & 506 of IPC, which was later converted to Complaint No. 138/2005 for offences under Sections 308, 504 & 506 of IPC.

During the pendency of the Trial a medical report was submitted on 18.08.2005 and the NCR No. 51 of 2005, which was initially registered under Sections 323, 504 & 506 was registered as Case Crime No. 138 of 2005 under Sections 308, 323, 504 & 506.

Later on after recording of the statement of the witnesses, which were produced before the Court below including statement of the doctor and the other accused persons, the NCR No. 33 of 2005 was closed by an order dated 20.11.2005 and as per the report, which was submitted under Section 182 of the Cr.P.C., it was converted into an offence under Sections 323, 504 & 506 of IPC. It is at this stage that the present applicant had moved an application invoking Section 216 of Cr.P.C., which grants ample of power to the Court, who may alter the charge or add a charge at any stage of the proceedings and even said provision it goes to an extent of conferring the power to the Courts for altering the charge even before the pronouncement of the judgment that means the latitude of alteration of the charge under the Cr.P.C. could be exercised by the Court even after the culmination of the Trial, but before the pronouncement of the judgment. Section 216 of Cr.P.C. is quoted hereunder:

"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."

The application as preferred by the applicant came up for consideration before the Additional Judicial Magistrate on 07.11.2013 and after considering the propriety of the medical report and the statement of the doctor, i.e. Dr. S.P. Singh, who appeared as PW4 and deposed before the Trial Court and supported his stand pertaining to injury no. 2, which was reported to be fatal to life, the Judicial Magistrate by the impugned order dated 07.11.2013, had rather declined to accept the request made by the applicant by virtue of his application under Section 216, by the applicant requesting for reframing a charge under Section 308 was rejected on the ground that certain documents pertaining to the x-ray report and the x-ray plate since they were not filed and in accordance with the statement of doctor, i.e. PW 4, that cannot be taken as to be the sole basis for reformulating of a charge to be as an offence under Section 308 of IPC. Merely on that pretext the Judicial Magistrate has rejected application under Section 216. Consequently, the said order was put to challenge in a revision being Revision No. 541 of 2013 by the present applicant and the revisional court too after hearing the parties on the application for conversion or reformation of a charge under Sections 323 to 308, as it was done earlier at the time of submission of the supplementary medical report and also after considering the statement recorded that of Dr. S.P. Singh on 31.08.2013, the charge was required to be reformulated, but the revisional court also erred in law and simplicitor accepted the finding, which has been recorded by the Judicial Magistrate pertaining to the inference drawn due to non furnishing of the x-ray report and x-ray plate, but has failed to consider the statement of the doctor as well as the medical report, which was already placed on record, which in itself spoke about the nature of injury suffered by the applicant and also to the effect that the doctor, who is a medical expert has expressed his opinion that the injury no. 2 was fatal to life since having been inflicted on the vital part of the body, yet the revisional court and also on considering the judgment of the learned Judicial Magistrate has dittoed the same by dismissing the revision by the impugned order dated 18.07.2014, which is under challenge in the present C482 application.

Heard learned counsel for the parties. It has been argued by the learned counsel for the revisionist that for the purposes of formulation of a charge in relation to a criminal offence, it is necessary for the Court to consider the material evidence, which is on record to logically determine as to whether the nature of offence would fall to be within the ambit of Sections 323 of 308 and it satisfied its ingredient because at the stage of formulation of a charge merely the evidence of a medical expert, i.e. a doctor, who has recorded his statement, has expressed his opinion that injury no. 2 was fatal to life. This Court is of the view that material itself was sufficient enough for the Court below to remodulate the charge to be under Section 323 to Section 308, because what impact would the reformulation of the charge would carry would always be a subject matter of evidence to be determined by the Court, which is being led by the parties including the accused persons in defense.

It is argued by the learned counsel for the respondent that the stage of the proceedings, have already reached upto the stage under Sections 246 and 244. Hence, at this stage once the charge has already been formulated under Sections 323, 504 & 506 on 28.04.2011, then the applicant ought to have at an appropriate earlier stage of the proceedings should have invoked the proceedings under Section 216 of the Cr.P.C. for the purposes of reformulation of the charge. What he contends that in fact a delayed application under Section 216 was malicious because had there cannot be any sanctity in the pleading of the contents of the application under Section 216 then it was required then this Court is of the view that the applicant ought to have objected to the application itself at that time when the Court was framing a charge under Section 323 as against the accused respondent. Secondly, he has taken it in his defense to the application under Section 216 that the nature of injuries, which has been found on the body of the applicant on the head was not caused on account of any attack, which was made by the accused person by the use of an iron rod, but rather she fell from a train and on account of that she has suffered injuries on her head.

These aspects pertaining to as to whether the injury was caused on account of the revisionist falling from the train or it was on account of the blow inflicted by the accused person is absolutely a subject matter of evidence to be determined by the court, but so far as the present court is concerned or the court of Judicial Magistrate, who was considering the application under Section 216, at that stage only the Judicial Magistrate was required to consider the material evidence, which was before it, that was the medical report and the statement of the doctor, who is an expert who has determined injury no. 2 as to be fatal having been inflicted on the head by an iron rod, that in itself would be a sufficient material for the court to draw a conclusion for framing of a charge under Section 308, more particularly, when it was earlier reformulated while assigning Criminal Case No. 138 of 2015, which was registered under Sections 308, 323, 504 & 506.

In that view of the matter and on the basis of the medical report and considering the statement of the doctor, this court is of the view that the Magistrate ought to have exercised a judicious application of mind after considering the material on record for the purposes of altering the charge under Section 216 Cr.P.C. after considering the medical report and the statement of the doctor. Hence, the rejection of the application merely on the ground that there was a failure to produce an x-ray report or the x-ray plate cannot be a reason for rejecting the application under Section 216 Cr.P.C..

Consequently, this Court is of the view that the present C482 application deserves to be allowed. The same is accordingly allowed. Learned Trial Court is directed to reformulate the charge based on the basis of the material on record after considering the medical report and the statement of the doctor and then proceeding with the trial and decide it accordingly in accordance with law.

Subject to the above observation, the present C482 application stands allowed.