IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision No.36 of 2011. Judgment Reserved on: 20.07.2011. Date of decision: 05.08.2011 State of H.P. … …Petitioner. Versus Ramesh Chand … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.P.K. Sharma, Additional Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. For the Respondent: Mr.Pawan Gautam, Advocate. Dev Darshan Sud,J. The State has preferred this petition against the order passed by the learned Additional Sessions Judge, Kangra at Dharamshala dated 10.11.2010 dismissing the application preferred by the State under Section 216 of the Code of Criminal Procedure for alteration of the charge against the respondent from Section 306, 498-A IPC to Section 302 read with Section 498-A IPC. 2. I need not delve into the facts in extenso as the charge itself speaks about them. The only question 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 for consideration before the learned Court below was, as to whether the charge could be altered from Section 306 read with Section 498-A to Section 302 read with Section 498-A? 3. The application was resisted by the accused on the ground of maintainability and the fact that the accused has already come forward with the defence that the deceased has committed suicide and he has tried to douse the fire in order to save her life. It is also urged that the edifice of the defence will be destroyed, in case the charge is altered, causing grave prejudice to the accused and that the application is motivated by the fact that it has been moved only for the reason that the prosecution apprehends that the case against the accused will not succeed. 4. The learned Court considers the statement under Section 161 Cr.P.C. made by the prosecution witnesses including Seema Devi, daughter of the accused, as also Sarla Devi. The Court then abruptly concludes that barring the bald statement of the mother, there is nothing on record to invoke the jurisdiction of the Court to alter the charge. 5. At the outset I may observe that the order is extremely cryptic and does not in any manner consider the merits of the application. To pronounce with some finality on the veracity of the statement made by the prosecution witnesses which is not the function of the Court at that stage. But even then what I find is that 3 in the Court Sarla Devi appeared as PW-1 and states in her examination-in-chief that she was informed by the deceased that she was set on fire by the accused and wanted to give a statement to this effect to the police. At that time one Jalam Singh, Dalip Kumar and Kamal Kumar were present. Dalip Kumar has appeared as PW-2 and corroborates her on this fact. He is the brother of the deceased. Sema Devi is the daughter, who is aged about 8 years, and though her statement may be in contradiction to what these two state, yet at the stage of framing charge/alteration of the charge it is not the business of the Court to pronounce upon the veracity of the evidence except when the statements become mutually destructive. 6. I have seen the statement made by Seema under Section 161 Cr.P.C. She states two things; namely; that her father (accused) used to beat up her mother after drinking and that she saw her aflame in the house. This is being urged by the learned counsel appearing for the petitioner for exonerating the petitioner of any wrong doing under Section 302 IPC. 7. All that I need say about this is that statements under Section 161 Cr.P.C. do not constitute substantive evidence but in this case, alteration was sought by the prosecution after recording the evidence of the witnesses on oath and in whose presence the deceased states that she has been set on fire by the respondent. To urge and to say that grave prejudice 4 has been caused to the respondent, at this stage, cannot be accepted because when the statements were made by these witnesses in their examination-in-chief it is always open to the respondent to have cross- examined them at length on this part of the testimony. 8. Sections 216 and 217 of the Code of Criminal Procedure provide:- “216. Court may alter charge.- (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn 5 the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. 217. Recall of witnesses when charge altered.- Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed- (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for resons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice; (b) also to call any further witness whom the Court may think to be material”. 6 9. Adverting to the law on the point, it is by now well settled that a charge can be altered at any stage. 10. In State of Maharashtra vs. Salman Salim Khan and another, (2004)1 SCC 525, the Supreme Court reiterates the principle applicable for alteration of charge in the following terms:- “4. The law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate it is open to that court at any stage of trial if it comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior court, it can always do so by committing such case for further trial to a superior court as contemplated in the Code of Criminal Procedure (the Code). On the contrary, if the trial is being conducted in a superior court like the Sessions Court and if that court comes to the conclusion that the evidence produced in the said trial makes out a lesser offence than the one with which the accused is charged, it is always open to that court based on evidence to convict such accused for a lesser offence. Thus, arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise as has 7 happened in this case proceedings get protracted by the intervention of the superior courts”. (p-527) 11. Precedent reiterates these principles. In Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others, (2004)5 SCC 347 the Court holds:- “10. Therefore, if during trial the trial Court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.” (p-350) 12. Similarly, in Sabbi Mallesu and Others vs. State of A.P. (2006)10 SCC 543, the Court considering the principle in respect of alteration of charge, holds that:- “19. The power of the Court to alter the charges is neither in doubt nor in dispute but in terms of Sub-section (2) of Section 216, Cr.P.C, it was obligatory on the part of the learned Sessions Judge to bring it to the notice of the accused and explain the same to the accused. The same having not been done, it cannot be said that the requirements of Section 216 of the Criminal Procedure Code stood complied 8 with. It must also be borne in mind that all the accused were acquitted for commission of an offence under Section 147 of the Indian Penal Code.” (p-548) 13. In Ranbir Yadav vs. State of Bihar, (1995)4 SCC 392, the Court had laid down the law in the following terms:- “23. The matter can be viewed from another angle also. Section 216 of the Code empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration or addition of the charge the Court is required to read and explain the same to the accused in accordance with sub-section (2) thereof. It is further laid down under sub-section (3) that if in the opinion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding immediately with the trial is likely to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that whenever a charge is altered or added to by the Court after the commencement of the trial 9 the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witnesses who has already been examined unless the Court for reasons to be recorded in writing considers that the desire to recall or re-examine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Beside, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been 10 read over and explained to the accused has been made. … … … … … … … … … … …” (pp-405-406) 14. Adverting to the decision in Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya and Others, (1990)4 SCC 76, the law is now well settled that the Court has to consider the material on the record, I do not find any such exercise having been undertaken in the present case. 15. In these circumstances, the order passed by the learned Court cannot be sustained and is accordingly quashed and set aside. I accordingly direct that the accused be tried for offences under Section 302 IPC. The charge be suitably altered/amended by the learned trial Court. Needless to add that the Court shall thereafter proceed with the mandate of Section 217 Cr.P.C. and grant an opportunity both to the prosecution as also to the accused to substantiate their respective pleas. Petition is allowed in the aforesaid terms. 16. Parties to appear before the trial Court on 30th September, 2011. August 5,2011 (Dev Darshan Sud) (aks) Judge.