IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION No.662 OF 2019 BETWEEN:
1. Sri. Vishwanatha S/o. Late Sreenivase Gowda, Aged about 36 years.
2. Sri. Kumara, S/o. Late Sreenivase Gowda, Aged about 32 years.
3. Sri. Kantharaju, S/o. Late Srineevase Gowda, Aged about 34 years.
4. Sri. Chaluve Gowda @ Papachhi, S/o. Late Narashimha Gowda, Aged about 47 years.
All are residing at Chinakurali Village, Mandya Taluk, Mandya District – 570 010. ... Petitioners (By Sri. Shridhara K, Advocate) AND:
The State of Karnataka, By Pandavapura Police, Rep; by SPP, High Court of Karnataka, Ambedkar Veedi, Bengaluru – 560 001. ... Respondent (By Sri. Honnappa, HCGP) This criminal revision petition is filed under Section 397 r/w 401 of Cr.P.C. praying to set aside the orders dated 30.11.2018 in S.C. No.5122/2014 passed by the III Additional District and Sessions Judge, Mandya (sitting at Srirangapattana) whereby rejected the application under Section 216 of Cr.P.C. for deleting the offence under Section 307 of IPC, filed by the petitioners and application filed by the public prosecutor under Section 216 of Cr.P.C. has been allowed and directed to frame the charge under Sections 326 and 34 of IPC.
This criminal revision petition coming on for Admission this day, the Court made the following:
O R D E R This revision petition is filed by the petitioners who are arrayed as accused Nos. 1 to 4 in S.C.No.5122/2014 on the file of III Additional District and Sessions Judge, Mandya (sitting at Srirangapattana) challenging the order dated 30.11.2018 passed by the learned Sessions Judge rejecting the application filed under Section 216 of Cr.P.C seeking deletion of the offence under Section 307 of IPC and further allowing the application filed by the learned Public Prosecutor seeking inclusion of Section 326 read with Section 34 of IPC.
2. I have heard the learned counsel appearing for the petitioners as well as the learned High Court Government Pleader appearing for the respondent-State.
3. A case in Crime No.126/2013 came to be registered at Pandavapura Police Station against the petitioners herein for the offences punishable under Sections 506, 447, 504, 323, 324 and 354 read with Section 34 of IPC.
4. The brief facts of the case of prosecution are that there was a land dispute between the complainant’s husband and the accused persons and in this background, the accused were on inimical terms with the complainant’s party. On 28.03.2013 at about 9.30 a.m., when the complainant went to her land along with her mother and cousin Anitha, at that time, they saw that the accused/petitioners were removing the stones by trespassing into their land. When the same was questioned, the accused abused them in filthy language and also threatened them with dire consequences and accused No.1 dragged the complainant holding her tuft and tore her nighty and also caused bleeding injuries by scratching her.
When the mother of the complainant went to intervene so as to rescue her daughter, the accused persons with a common intention to commit murder, threw a stone at her and caused injuries to her leg. Accused No.2 caused injuries to Anitha with a knife. Accused No.3 also assaulted her with hands and caused injuries and tore her nighty by dragging her. Accused No.4 also assaulted them.
5. After completion of the investigation, chargesheet came to be filed against the accused/petitioners for the offences punishable under Sections 447, 427, 323, 324, 504, 354, 506 and 307 read with Section 34 of IPC.
6. The accused/petitioners filed an application under Section 216 of Cr.PC to delete the offence under Section 307 of IPC. The learned Public Prosecutor also filed an application seeking to include the offence under Section 326 read with Section 34 of IPC.
7. Learned Sessions Judge by a common order dated 30.11.2018 rejected the application filed by the accused and allowed the application filed by the learned Public Prosecutor holding that the charge under Section 326 read with Section 34 of IPC has to be framed against the petitioners.
8. Assailing the aforesaid order passed by the Court below, the learned counsel appearing for the petitioners would vehemently contend that there is absolutely no material against the accused/petitioners for having committed an offence punishable under Section 326 read with Section 34 of IPC. Learned counsel submits that in the FIR, there is no allegation with regard to common intention on the part of the petitioners so as to commit the murder of the mother of the complainant by name Jayamma. He further submits that it is an after thought and also false allegations are made by the witnesses. He further submits that no ingredients are made out for the offence under Section 307 of IPC. Therefore, the Trial Court was not justified in rejecting their application seeking discharge from the offence punishable under Section 307 of IPC.
9. The learned counsel for the petitioners further contended that the charge sheet has not been filed under Section 326 read with Section 34 of IPC and therefore, the Trial Court was not justified in allowing the application filed by the learned Public Prosecutor and proceeding to frame charge under Section 326 read with Section 34 of IPC. Learned counsel submits that, under Section 216 of Cr.PC, after the charges are framed, if new material comes to light, only then additional charges can be framed. In the present case, since Section 326 of IPC not being mentioned in the charge sheet, no charge could be framed for the said offence. Hence, he seeks to allow the petition.
10. Learned High Court Government Pleader on the other hand would contend that there are ample material in the form of statement of witnesses, clearly indicating that the accused/petitioners with a common intention to commit the murder, threw a big stone on the head of the injured by name Jayamma and therefore, he submits that after completion of the investigation, charge sheet was filed for the offence punishable under Section 307 of IPC.
11. He further submits that the injured- Jayamma has sustained grievous injuries and injury No.1 is a fracture, which is termed as grievous in nature. Hence, he submits that the learned Sessions Judge was justified in proceeding to frame charges under Sections 307 and 326 read with Section 34 of IPC.
12. It is the case of the prosecution that all the accused persons with a common intention trespassed into the land and committed the offence. From the statement of the witnesses, it cannot be said at this stage that there is no prima-facie case against the accused persons for the offence punishable under Section 307 of IPC. The charge sheet has been filed for the said offence. The material on record in particular the statement of witnesses including the statement of injured namely, Jayamma- CW.4 and also the statements of CW.1 and CW.3, it clearly discloses that accused No.1 with an intention to commit the murder of Jayamma, took a stone and attempted to drop it on her head and when she tried to escape, the said stone fell on her left foot and on account of which, she suffered fracture. Therefore, the Trial Court was justified in rejecting the application filed by the accused/petitioners seeking to discharge them from the said offence punishable under Section 307 of IPC.
13. The charge sheet has been filed for the offence punishable under Sections 447, 427, 323, 324, 504, 354, 506 and 307 of IPC. There is no mention of Section 326 of IPC in the charge sheet. It is not in dispute that the charges can be altered at any time before Judgment. In the present case, there is no requisition given by the Investigating Officer to include Section 326 read with Section 34 of IPC. It is no doubt true that as per the material on record, CW.2 has sustained grievous injuries. It is the submission of the learned counsel for the petitioners that only during the course of trial, if the case is made out that the injured has sustained grievous injuries, only then the necessary application can be filed by the learned Public Prosecutor to alter the charge or to frame additional charges.
14. Learned High Court Government Pleader would submit that necessary requisition to include Section 326 read with Section 34 of IPC in the charge sheet or necessary application to frame additional charge under Section 326 read with Section 34 of IPC after framing of charge will be made. If such a course of action is taken by the prosecution, the learned Sessions Judge is directed to pass orders in accordance with law so as to frame charge under Section 326 read with Section 34 of IPC. However, in the absence of indicating Section 326 read with Section 34 of IPC in the charge sheet, the Trial Court was not proper in proceeding to frame charge for the said offence.
15. With the above observation, I pass the following:
ORDER (i) Criminal revision petition is partly allowed.
(ii) The order dated 30.11.2018 in so far as rejecting the application filed by the accused/petitioners under Section 216 of Cr.P.C is concerned, the same is confirmed.
(iii) The impugned order with regard to allowing the application filed by the learned Public Prosecutor under Section 216 of Cr.P.C for framing of charge under Section 326 read with Section 34 of IPC is hereby set aside.
(iv) Learned Sessions Judge is directed to proceed in accordance with law keeping in view the observations made in this order.
Sd/- JUDGE SSD