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2006 DIGILAW 169 (RAJ)

Dhola Ram v. State of Rajasthan Through P. P.

2006-01-16

R.S.CHAUHAN

body2006
JUDGMENT 1. - The petitioner has challenged the order dated 18.1.2005 whereby the Additional Sessions Judge (Fast Track) No. 1, District Jaipur has framed charges against the petitioner for offences under Sections 341, 323, 325 and 308 IPC. 2. The brief facts of the case are that one Nathulal Mali submitted a written report before the Police Station Govindgarh on 28.1.2004 wherein he claimed that both the petitioners came to his house armed with Lathi and Farsa and assaulted his wife, Smt. Narangi Devi. It was further alleged that Kajodmal, the petitioner No. 2, tried to hit Smt. Narangi Devi with a Farsa but the same was repelled. Initially, the police registered the case for the offences under Section 143, 451 and 323 IPC. However, after a through investigation the police submitted the charge sheet for offences under Sections 341, 323, 325 and 308 IPC. After hearing both the sides vide order dated 18.1.2005 the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur, District Jaipur framed the charges as aforesaid. Hence, this petition before us. 3. Mr. Jhabbar, the learned counsel for the petitioner, has contended that according to the Injury Report of Smt. Narangi Devi, she has suffered five injuries in all out of which, two were fracture of bones, one was abrasion and two were lacerated wounds. All the injuries have been caused by blunt weapon. According to the X-ray Report, there were fractures of mandible and femur bone. According to the learned counsel, these injuries have not been attributed to the petitioner. Further, these injuries are neither on vital part of the body, nor they are likely to cause death. Thus, according to the learned counsel, the charge for offence under Section 308 IPC is not made out. 4. On the other hand, Mr. Ashvin Garg, the learned counsel for the complainant, has strenuously argued that since a number of witnesses have already been examined by the trial, it is late in the day to interfere with the charge order. According to him the fact that the injured has suffered as many as five injuries are sufficient to bring the case within the purview of Section 308 IPC. Likewise, the learned Public Prosecutor Mr. Arun Sharma, has supported the impugned order. 5. We have heard learned counsels for the parties and perused the impugned order. 6. According to him the fact that the injured has suffered as many as five injuries are sufficient to bring the case within the purview of Section 308 IPC. Likewise, the learned Public Prosecutor Mr. Arun Sharma, has supported the impugned order. 5. We have heard learned counsels for the parties and perused the impugned order. 6. It is the prime duty of the Court to sift the evidence to see whether the ingredients of the offence exist or not within the evidence provided by the investigating agency. In case the ingredients of the offence are not made out, then the Court is unjustified in framing the charge for that particular offence. Therefore, before framing a charge under Section 308 IPC, the learned Court is duty bound to see whether there is a sufficient evidence to show the existing of Ingredients of Section 308 IPC available or not. 7. Section 308 reads as under: 308. Attempt to commit culpable homicide. 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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 8. However, in the instant case the injured Smt. Narangi Devi has received only five injuries on her body and that too on non-vital parts. Neither the fracture of the mandible, nor the fracture of the femur bone could have led to her death in such a manner as to make it a case for culpable homicide not amounting to murder. Therefore, the basic ingredients of offence under Section 308 IPC are missing in the present case. As has been held in the case of Union of India v. Praffulla Kumar Samal & Anr. ( AIR 1979 SC 366 ) , the Court is not to act as a post office or as a mouthpiece of the prosecution. But the trial Court is duty bound to frame the charges after sifting the evidence for the purpose of finding out if the essential ingredients are present or not. ( AIR 1979 SC 366 ) , the Court is not to act as a post office or as a mouthpiece of the prosecution. But the trial Court is duty bound to frame the charges after sifting the evidence for the purpose of finding out if the essential ingredients are present or not. But, in the present case, the offence under Section 308 IPC is not made out. According to the evidence submitted by the investigating agency, the framing of charge under Section 308 IPC is unsustainable. 9. Before we part with this case we would like to hold that under Section 216, the Court has ample power to frame the charge at any time. Therefore, despite the fact that the testimony of few witnesses have been recorded, the trial Court is certainly free to modify the charge. Therefore, we direct the trial Court to modify the charge, if necessary, in accordance with law. 10. With these observations this revision petition is allowed.Revision Petition allowed. *******