Crl.Rev.No. 2242 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 2242 of 2010 (O&M) Date of decision: 12.11.2010 Amrik Singh ......Petitioner Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.J.K.Gurna, Advocate, for the petitioner. Mr.Amandeep Singh Rai, AAG, Punjab. **** SABINA, J. This petition has been filed under Section 397 of the Code of Criminal Procedure challenging order dated 3.8.2010 passed by the Judicial Magistrate, Ist Class, Derabassi whereby the application seeking amendment of charge was dismissed. Learned counsel for the petitioner has submitted that the doctor, who had medico legally examined injured Babu Singh, had specifically stated that injury No.1 was grievous in nature and was caused by a sharp edged weapon. Hence, the charge was liable to be framed against the accused under Section 326 of the Indian Penal Crl.Rev.No. 2242 of 2010 (O&M) 2 Code (IPC for short). Learned State counsel, on the other hand, has opposed the petition. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. In the present case, charge was framed against the accused under Sections 323/ 324/ 379/ 435/ 148/ 149 IPC. PW-1 Achhar Singh deposed as under:- “On 7.6.1999 at 6.15 am I examined Babu Singh son of Wariam Singh, aged 65 years village Ranimajra, Tehsil Rajpura, P.S. Lalru and examined the following injuries:- 1. 4cm long incised wound/ in direction over the dorsel aspect of little finger of right hand in the middle phalanh. It is 1 cm wide filled with clot and active bleeding. Refer to Dr.S.K.Goyal for x-ray and nature of injury. Upper part of the incised wound is towards the midial end and comes down towards the lateral end/indirection convering the whole dorsel aspect of middle finger. 2. Complains of pain over left leg. Both shoulder and back. Nature of injury were kept under observation. Probable duration of injury was within 24 hours approximately. Crl.Rev.No. 2242 of 2010 (O&M) 3 Injury No.1 was caused by sharp edge. Injury No.2 was caused by blunt edge weapon. I have brought the original post mortem report today in the court, which is in my hand and hearts my signatures. Corbon copy of the same which was prepared in the same process as was the original is Ex.PA . As per X-ray report given by Dr.S.C.Goyal is Ex.PB whose signatures I identify. The was frecture of the middle phalanh. As such, I declare the injury No.1 as grievous on the basis of said report. Ex.PC. Thus as per PW-1, injury No.1 was caused on the person of injured Babu Singh son of Wariam Singh with a sharp edged weapon and the said injury was grievous in nature as there was fracture of middle phalanx. Section 326 IPC reads as under:- “326. Voluntarily causing grievous hurt by dangerous weapons or means. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison Crl.Rev.No. 2242 of 2010 (O&M) 4 or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The application moved by the prosecution, whereby it was prayed that charge be also framed against the accused under Section 326 IPC, was dismissed by the trial Court on the ground that the application had been filed at a belated stage. The fact that the application was filed at a belated stage could not have been taken in consideration by the learned trial Court in the interest of justice. In case offence under Section 326 IPC was made out against the accused, the trial Court was under a legal obligation to frame charge against the accused even if during investigation, offence under Section 326 IPC had been deleted. Even at the stage of arguments, in case the Court comes to a conclusion that the accused are prima facie guilty of an offence qua which charge had not been framed against them, even at that stage, the trial Court is bound to amend the charge and thereafter proceed further with the trial in accordance Crl.Rev.No. 2242 of 2010 (O&M) 5 with law. Merely because the application for amendment of charge had been filed by the prosecution at a belated stage does not absolve the trial Court of its legal duty and responsibility. In case the charge is not framed against the accused under the relevant provision, the accused cannot be convicted qua the said offence despite there being evidence in that regard. Although the doctor has also stated in his cross-examination that possibility of injury No.1 being friendly in nature cannot be ruled out but the said fact was not to be looked into at the stage of amendment of the charge. Court is only required to see as to whether a prima facie case is made out against the accused or not. The evidence was not liable to be discussed in detail at the time of framing or amendment of the charge. Accordingly, this petition is allowed. The impugned order is set aside. The trial Court is directed to pass a fresh order on the application seeking amendment of the charge in accordance with law. SABINA) JUDGE November 12, 2010 anita