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2016 DIGILAW 3272 (ALL)

Azad v. State of U. P.

2016-09-23

AMAR SINGH CHAUHAN

body2016
JUDGMENT Amar Singh Chauhan,J. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Nasiruzzaman, learned counsel for the applicant-informant and Shri Kamal Krishna learned Senior Counsel assisted by Shri Janardan Prasad Tripathi, learned counsel for the accused-opposite party Nos. 2 and 3 and learned Additional Government Advocate for the State. 2. The applicant Azad, through this application moved under section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court for quashing the impugned orders dated 12.7.2016 and 15.7.2016 passed by the learned Additional District and Sessions Judge, Court No. 13, Aligarh in proceedings of ST Nos. 925 of 2015 (State Vs. Meenu alias Izhar) and 194 of 2016 (State Vs. Faisal and others) whereby the application moved by the accused-opposite party was allowed and charges were directed to be framed under sections 304/323 IPC, whereas the charge sheet was submitted under sections 302/307 IPC. 3. It is submitted by the learned counsel for the applicant that charges should be framed in major offences if the nature of the offence under both the sections are not of distinct and different categories. The submission is that incident took place on 27.5.2011 at about 11 PM in which the brother and father of the applicant were badly assaulted by different weapons, i.e. lathi, danda, saria and Kripan etc. causing serious injuries to them. One of the injured namely Shahzad succumbed to the injuries. Another injured Shahid sustained grievous injuries, may be fatal to the life. It was submitted by the learned counsel for the applicant that injuries to Shahzad was examined on 27.5.2015 in District Malkhan Singh Hospital, Aligarh wherein as many as six injuries were found. Injury No. 1 was lacerated wound of 4 cm x 0.5 cm x scalp deep over mid of head and the injury No. 2 was also caused on the head in an area of 4 cm x 0.5 cm x scalp deep. Injured Shahid has sustained two injuries, lacerated wound on the region of 1 cm x 1 cm over left frontal and laceration of 8 cm x 1 cm over posterior aspect of scalp occipital frontal region. In CT scan report these injuries were found to be fatal. 4. On the other hand learned counsel for the opposite party Nos. Injured Shahid has sustained two injuries, lacerated wound on the region of 1 cm x 1 cm over left frontal and laceration of 8 cm x 1 cm over posterior aspect of scalp occipital frontal region. In CT scan report these injuries were found to be fatal. 4. On the other hand learned counsel for the opposite party Nos. 2 and 3 has supported the impugned orders and contended that there is nothing wrongs in the impugned orders as both sections 304 IPC and 302 IPC are punishable with life imprisonment. 5. In the instant case one person has lost life life and other sustained fatal injuries on vital part. Pursuant to FIR, charge sheet was submitted under sections 302,307 IPC, but trial court framed the charge under section 304, 323 IPC, Therefore, it would be unsafe to convict under section 302 IPC if the prosecution have proved the ingredient of charge under section 302 IPC. Section 222(1) Code of Criminal Procedure deals with the case when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it. Whereas sub-section (2) of Section 222 Cr.P.C. deals with the case when a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 6. In the case in hand, there are repetition of causing injuries, which reflects that there was a set of mind to cause the murder of the injured. 7. Privy Council in Reg Vs. Govinda, 1876 ILR 1876 Bom 342, held that whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder. 8. In this aspect Hon'ble Supreme Court in Kandaswamy Vs. State of Tamil Nadu, 2008(62) ACC 969 has held that culpable homicide is genus and murder its specie. All 'murder' is 'culpable homicide' but not vice-versa. Three degrees of culpable homicide are recognized by the Court practically. 8. In this aspect Hon'ble Supreme Court in Kandaswamy Vs. State of Tamil Nadu, 2008(62) ACC 969 has held that culpable homicide is genus and murder its specie. All 'murder' is 'culpable homicide' but not vice-versa. Three degrees of culpable homicide are recognized by the Court practically. The first degree of culpable homicide is defined as murder, the second decree of culpable homicide is punishable under section 304 IPC and third is the lowest degree of culpable homicide, which is punishable under the second part of Section 304 IPC. 9. Degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. Even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. 10. In the case in hand the deceased sustained a large number of injuries and injured also sustained two injuries, which are fatal in nature. The trial court is expected to conduct the fair trial. The fair trial is that which is fair to the accused as well as to the prosecution. Where the accused is charged with a major offence and the said charge is not proved, the accused could be convicted for minor offence if such case is made out though he was not charged with the same provided nature of the offence is not distinct in both the section but not vice versa. It will not cause injustice to the accused if charges are framed under major offences, if evidence led by the prosecution prove the ingredient of the minor offence, the accused may be convicted under minor offence. The same ratio was laid down by Hon'ble Supreme Court in the case of Tarkeshwar Sahu Vs. State of Bihar, (2006)8 SCC 504. 11. In view of what has been indicated herein above, the application is allowed. The orders dated 12.7.2016 and 15.7.2016 passed by the learned Additional District and Sessions Judge, Court No. 13, Aligarh are quashed. Learned Trial Court is directed to frame the charges against the accused under sections 302/307 IPC, under which sections the charge sheet was submitted. 12. 11. In view of what has been indicated herein above, the application is allowed. The orders dated 12.7.2016 and 15.7.2016 passed by the learned Additional District and Sessions Judge, Court No. 13, Aligarh are quashed. Learned Trial Court is directed to frame the charges against the accused under sections 302/307 IPC, under which sections the charge sheet was submitted. 12. The observations made herein above were only for the purpose of disposal of this application and the learned trial court is directed to decide the trial uninfluenced by the observations made herein above.