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2001 DIGILAW 584 (RAJ)

Indraj v. State of Rajasthan

2001-04-11

SHASHI KANT SHARMA

body2001
JUDGMENT : 1. This revision is directed against the order dated 23.11.1998, passed by learned Additional Sessions Judge, Neem-Ka-Thana, District Sikar, whereby learned Additional Sessions Judge has accepted the application filed by prosecution under Section 216 Cr.P.C. and altered the charge and ordered to add the charge of offence under Section 302 IPC. In the alternative charged for offence under Section 306 IPC. Hence this revision. 2. Brief facts relating to this revision are that one Sunda Ram lodged a written report at the Police Station Neem-Ka-thana, alleging that Smt. Shakuntala was raped and murdered by accused Indraj, Bugla, and Balia alias Balvir. On this report, police registered a case for offence under Sections 376, 302 read with 34 IPC. After investigation, Police filed challan against accused Indraj, Bugla, Balia alias Balvir for the offence under Sections 376 and 306 read with Section 34 IPC before the concerned Court. Then case was committed to Sessions Court, Additional Sessions Judge, Neem-Ka-Thana, framed charges against all the three accused persons for the offence under Sections 376 and 306 IPC. 3. Prosecution examined as many as 18 witnesses. Accused persons were examined under Section 313 Cr.P.C. Seven defence witnesses were examined and case was posted for final arguments. An application under Section 216 of Cr.P.C. was filed by prosecution. After hearing arguments, that application was accepted, against which, this Criminal revision is filed. 4. Learned counsel for the petitioners argued that application under Section 216 Cr.P.C. has been filed at a very belated stage after the entire evidence was recorded and the case was posted for final arguments. Hence, it should not have been accepted. It was also argued that it was not proper for the trial Court to alter and add the charge. In support of their arguments, learned counsel for the petitioners have placed reliance on Madan Raj Bhandari v. The State of Rajasthan, AIR 1970 SC 436 , Prabhu v. State of Rajasthan, 1987 (1) WLN 208 , Mohd. Javed v. State of Rajasthan, 1990 (1) RLW 456 , Mangi Lal v. State of Rajasthan, reported in 1990 (1) WLN 662 . 5. On the other hand, learned counsel for the complainant argued that under Section 216 Cr.P.C., charge can be altered or added at any time before judgment is pronounced. He further argued that Section 216 of Cr.P.C. itself is clear on this point, which speaks as under:- "216. 5. On the other hand, learned counsel for the complainant argued that under Section 216 Cr.P.C., charge can be altered or added at any time before judgment is pronounced. He further argued that Section 216 of Cr.P.C. itself is clear on this point, which speaks as under:- "216. Court may alter charge. - (1) Any Court may alter or add to any charge at any time before judgment is pronounced." 6. It is also argued that the Court should decide every case looking to the facts and circumstances of each case. In this matter, from the written report, which was filed by Sunda Ram it was clear that it was not a case of suicide but was a case of murder. Police also registered a case for offence under Section 302 IPC and not under Section 306 IPC. It is urged that Police was wrong to file the challan for the offence under Section 306 IPC. From the entire evidence led before the trial Court, it is clear that it was a case of murder and not abatement of suicide. 7. In support of this arguments, learned counsel for the complainant has placed reliance on Kapildeo Upadhya v. State, AIR 1954 All. 557 , Habib v. State of M.P. , Jayantilal Vrajilal Barot v. State of Gujarat and another, AIR 1968 Guj. 218 , and Ganesh Lal v. State of Maharashtra, Cr.L.R. (SC) 1992. 8. I have heard learned counsel for the parties, examination the entire record and gone through the authorities cited by them. 9. The first point for determination is as to whether the impugned order can be set-aside only on the ground that it was passed after recording the prosecution evidence and examination of the accused and recording of defence evidence. For this purpose, in my view Sub-section (1) of Section 216 is relevant, in which it is mentioned that Court may alter or add any charge at any time before judgment is pronounced. In my view, provisions of Section 216 Cr.P.C. are very clear and it says that charge can be altered or added at any time before judgment is pronounced. In this way, the trial court has not committed any illegality in altering or adding the charge after recording the evidence. 10. Now, I will examine the authorities cited by counsel for the petitioners on this point. In this way, the trial court has not committed any illegality in altering or adding the charge after recording the evidence. 10. Now, I will examine the authorities cited by counsel for the petitioners on this point. I have gone through the judgment of this Court in Mohd. Javeds case (supra). The facts of this case are distinguishable. It was a case of theft of a petty nature where a cycle was said to have been stolen and the trial was dragged on for about 8 years on a wrong charge. In that case, it was held by this Court that in such matter, Court should not have altered the charge. The facts of other cases relied upon by learned counsel for the petitioners are also different from the facts of the present case and are not applicable in the present matter. 11. In my view, law relating to procedure is made for doing the justice and justice should be done to both the parties i.e. accused as well to the victim. Every case should be decided on its own facts. 12. Now, I will examine the facts and circumstances of this case and then decide whether the trial court has committed any illegality or irregularity in accepting the application of prosecution under Section 216 Cr.P.C. In this case, written F.I.R. was lodged by one Sunda Ram, categorically stating that deceased Shakuntala was raped and murdered by the accused persons named in F.I.R. Informant Sunda Ram has never stated in this F.I.R. that Shakuntala had committed suicide. According to the F.I.R., it was a clear cut case of murder, therefore, Police registered this case for offence under Sections 376, 302 read with Section 34 IPC. Police did not register the. case for offence under Section 306 IPC. The matter was investigated. Statement of the witnesses were recorded under Section 161 Cr.P.C. and challan was filed by the Police for offence under Section 306 IPC. Ultimately matter was committed to Sessions Court, where charges were framed against these accused persons for the offence under Section 376 and 306 IPC and then the entire prosecution evidence was recorded, from which it is clear that it was a case of murder and not abatement of suicide. After recording defence evidence, this application under Section 216 Cr.P.C. was submitted, which was accepted. After recording defence evidence, this application under Section 216 Cr.P.C. was submitted, which was accepted. In my view, learned trial court has rightly accepted the application filed under Section 216 Cr.P.C. Learned trial court has not committed any illegality or irregularity in passing the impugned order. This revision is devoid of merits and liable to be dismissed. 13. Consequently the revision is dismissed.