ગુજરાત હાઈકોર્ટ નું ૩૨૩ અને ૩૨૫ નું લેન્ડ માર્ક જજમેન્ટ

Gujarat High Court
Jayantilal Vrajlal Barot vs State Of Gujarat And Anr. on 21 July, 1967
Equivalent citations: AIR 1968 Guj 218, 1968 CriLJ 1173, (1968) GLR 886
Bench: J Sheth
JUDGMENT (1) This is a an appeal, filed by the original accused, who has been convicted of offences, punishable under Section 325 and 323 of the Indian Penal Code and sentenced to suffer the nine months’ rigorous imprisonment and there months’ rigorous imprisonment for the said offences respectively. He is also sentenced a pay of fine of Rs. 300 in addition to sentence of imprisonment for the offence under Section 325 of the Indian Penal Code and in default of payment of fine, to suffer one month’s further rigorous imprisonment. Out of the fine, if recovered, Rs. 150 are ordered to be paid to Shankerlal Chhabildas by way of compensation for the injuries caused to him. This order has been passed by the learned City Magistrate, 9th Court, Shri N. R. Tatia in a Criminal Case No. 464 of 1965.

(2) The prosecution story is briefly stated as under:–

The injured Shankerlal Chhablidas Barot and the appellant Jayantilal Vrajlal Barot are in two opposite factions of their community. The injured Shankerlal is a leader of one faction. On 23rd February, 1965, at about 7.10 hours, he was going to a temple near Usha Talkies in Gomtipur area. That temple is at a distance of about two furlongs form his house, situated in Limbati Pole. When he came near the Employees’ State Insurance Scheme Hospital, which is near-by that temple, he was given two or there blows by this appellant with a stick from behind. On receipt of those blows, he locked behind and saw the appellant with a stick. The appellant, thereafter also, gave him some more blows with that sick. He received the blows on his hand and above the waist. In trying to avert the blows, he also received injuries on his fingers. On hearing the shouts, the witnesses, Ramachandra Chhabildas his brother, Babuhai Ochhaval; Ghanshyambhai Laxmishanker and Kishore Chhotubhai came up. They saw the part of the assault. The appellant on seeing those people, having come to rescue the injured, ran away on cycle on which he had come. Ramachandra took the injured Shankerlal at Rajpur Police Chowky. Ramachandra’s complaint was recorded there. The injured was sent to the Civil Hospital in Ambulance car and he was treated there. On receipt of a certificate from the Civil Hospital, that injury No. 6 was a fracture of the 8th, 9th and 10th ribs, investigation was made by the Police. Statements were recorded and after the completion of the investigation, the appellant was charge-sheeted to the Court for the offences, punishable under Sections 323 and 325 of the Indian Penal Code.

(3) After looking into the police-papers, the learned Magistrate first framed a charge against the appellant for an offence, punishable under Section 323 only. An application was given on behalf of the State by the Police Prosecutor that a charge under Section 325 should be framed, as one of the injuries caused to Shankerlal was a grievous hurt. The doctor was, thereupon examined and after the examination of the doctor, the charge was amended and the charge under Section 325 of the Indian Penal Code was framed against the appellant. The appellant was given an opportunity to recall the doctor, after the altered charge was explained to him and doctor was recalled and was further cross examined by the appellant.

(4) The defence version was that he had not committed the offence. He had not gone to the place of offence and had not assaulted Shankerlal. Due to factions in the community, he has been falsely involved. The learned Magistrate believed the prosecution evidence and disbelieved the defence version and convicted the appellant of the offences in question.

(5) Mr. Thakore, the learned Advocate for the appellant, firstly contended that the order of conviction of the appellant for the offence, punishable under Section 325 cannot be sustained. The reason advanced was that originally the charge framed against the appellant, after looking into the police-papers, was for the offence punishable under Section 323 of the Indian Penal Code , though the charge-sheet was sent by the police against the appellant to the Court for the offences under Sections 323 and 325 of the Indian Penal Code. This was a case tried as a warrant case. Charge having been framed only for the offence punishable under Section 323 of the Indian Penal Code by a necessary implication, the appellant was discharged for the offence punishable under Section 325 of the Indian Penal Code. It was a case of an implied discharge and the discharge without having been set aside, by the Superior Court, in its revisional jurisdiction, the Magistrate has no power to alter to add to the charge which would result in review of his own previous order. In support of this argument of his, he invited my attention to the case of Apabhai Hemabhai v. State of Gujarat, 1962-3 Guj LR 14 = (AIR 1962 Guj 218). A division Bench of this High Court has observed therein as under:–

“In an inquiry or proceeding under Chapter XVIII of the Code of Criminal Procedure, the Magistrate without recording reasons, simply declined to commit the accused to the Court of Session under Section 307 read with Section 34 of the Indian Penal Code. On a question whether the Sessions Judge had jurisdiction under Section 437 of the Code of Criminal Procedure to direct the Magistrate to commit the accused to the Court of Session on a charger under Section 307 read with Section 34 of the Indian Penal Code:

Held that when a Magistrate declines to commit an accused to the Court of Session, he brings to termination the proceeding or inquiry under Chapter XVIII of the Code of Criminal Procedure and commences a separate and distinct proceeding under Chapter XXI of the Code. In this sense, it can be said that the accused is discharged, and if in the opinion of the Sessions Judge, the accused is improperly discharged, the Sessions Judge would have jurisdiction under Section 437 of the Code of Criminal Procedure to interfere and direct the Magistrate to commit the accused to the Court of Session.

The words “improperly discharged” have been used in Section 437 of Code of Criminal Procedure in relation to or in the context of the words “case” and “matter” and not in connection with or relation to the word “offence” though no doubt, the “case” or the “matter” must be in relation to or concerning an offence exclusively triable by the Court of Session. Nevertheless, “discharge” as contemplated in Section 437 is from the “case” or “matter” in respect of which the Sessions Judge directs the Magistrate to commit an accused person to the Court of Session.

Though it is reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act the presumption is not of much weight, and the same word may be used in different senses in the same statute and even in the same section. The word “discharge” has been used in the Code of Criminal Procedure indifferent contexts and to meet different situations, and has, therefore, different connotations depending upon where it is used. It would be consequently erroneous to contend that the word “discharge” should be given the same meaning wherever and whenever it occurs in the Code.

The words “discharge him” in section 207 (6) of the Civil Procedure Code mean discharging an accused from that proceeding and exonerate him from the obligation to make his appearance and to make his plea in connection with that proceeding. Under Section 253 “the discharge” of an accused person would be from the offence for which a complaint has been filed. Under Section 494 “the discharge” is not a total one from the proceeding or trail but only to the extent of the offence or the offences in respect of which the prosecution against the accused is withdrawn.

The word “unless” used in Section 207-A (6) of the Code of Criminal Procedure must mean that if the Magistrate after discharging an accused from the previous proceeding under Chapter XVIII finds that he should be tried of a lesser offence before himself or before some other Magistrate, which lesser offence is revealed by the same facts and evidence, he shall proceed accordingly. The word “unless” has been deliberately inserted by the legislature in sub-section (6) of Section 207 (A) immediately after the words “discharging him”. The discharge therefore would not be a total discharge in that the accused is set at liberty or released. But in a sense the discharge is total in respect of the case or matter which was exclusively triable by the Court of Session.”

It is significant to note that our High Court dissented from the view taken by Allahabad High Court in the decision reported in AIR 1952 All 231 (FB), and preferred the view taken by the Calcutta High Court in the decision reported in (1956) 60 Cal WN 708, and the view taken by the High Court in the decision reported in AIR 1953 Mad 801 (FB). The same view has been taken by the Supreme Court in its unreported decision in Criminal Appeal No. 213 of 1964, in the case of Ramekbal Tiwari v. Madan Mohan Tiwari, decided on 17-1-1967 = (Since reported in AIR 1967 SC 1156). The Supreme Court has approved the view taken by the Madras High Court and the Calcutta High Court and has disapproved the view taken by the Allahabad High Court. In all those decisions, the question that was posed was that, when a Magistrate finds that there are no grounds for believing that an offence exclusively triable by the Sessions Court has been committed, but finds that a lesser offence triable by him appears to have ben committed and declines to commit the accused to the Sessions Court, for the offence triable by to the sessions Court, whether the Sessions Court has got powers to direct the Magistrate to commit the case to the Sessions Court for the trial of the offence, exclusively triable by the Sessions Court. It was urged in those decisions that there being no express discharge, the powers referred to, in Section 437 of the Civil Procedure Code, could not be exercised by the Sessions Court. It has been held by our High Court that the word “discharge” used at several stages in Criminal Procedure Code, may have different meanings. It has been held that so far as the Sessions Court was concerned on the Magistrate’s finding that there is no sufficient ground to hold that the offence, exclusively triable by the Sessions Court had been committed, the matter ended and eventually, there was a discharge and the Sessions Court could invoke its powers referred to in Section 437 of the Civil Procedure Code. In the instant case, we are not concerned with such a question. What has happened in the instant case is that at the initial stage, the Magistrate found that a charge should be framed for the offence under Section 323 of the Indian Penal Code should be framed as on referring to the Police statement of the complainant Remchandra, he found that the fracture caused to Shankerlal might be on account of his fall and not on account of the stick blows, given by the appellant. Thereafter, the Police Prosecutor gave an application. The doctor was examined and the doctor said that the fracture of the three ribs found was as a result of external injury No. 6 which was a wheal mark on the chest portion. He, therefore, amended the charge and the charge was framed under Section 325 of the Indian Penal Code.

(6) Section 227 of the Civil Procedure Code is material for our purposes. It runs as under:-

“(1) Any Court may alter or add to any charge at anytime before judgment is pronounced, or, in the case of trials (by Jury) before the Court of Session or High Court, before the verdict of the jury is returned.

(2) Every such alteration or addition shall be read and explained to the accused”.

A mere plain reading of this Section indicates that at any stage, before the judgment is pronounced, a Magistrate is empowered to alter or add to any charge. It is a comprehensive section. It not only includes the correction of an error made in framing the charge, but also will include the non-framing of a charge. If there is non-framing of a charge, such a charge can also be added at any stage before the judgment is pronounced, provided there is evidence to support it. If the argument, advanced by the learned Advocate, Mr. Thakore is accepted, and if it is found that correct proposition of law is that if such a charge is not framed at the initial stage and if after recording of evidence, it is found that such a graver offence has been committed and the Magistrate is not empowered to frame such a charge, the Provisions of this Section 427 of the Civil Procedure Code will be quite nugatory. I am, therefore, of opinion that even though the charge-sheet was sent for the offences under Section 323 and 325 of the Indian Penal Code and at the initial stage, the charge was framed only for the offence under Section 323 of the Indian Penal Code, the Magistrate had jurisdiction or had power to alter that charge and frame a new charge for the offence under Section 325 of the Indian Penal Code.

(7) In the case of IN re. B. Satyanarayana Reddi, AIR 1947 Mad 174, the Madras High Court had to deal with a similar question: Yahaya Ali J. has made the following pertinent observations:-

“The words ‘add to’ in Section 227 Civil Procedure Code, do not mean an addition of a few words to the existing charge. They mean addition of new charge. If what was intended was to empower the Court only to make some corrections or additions to the existing charge the word “alter” occurring in the Section would have met the requirements and it was not necessary to enact the words “add to”. Redundance cannot be attributed to the Legislature and it is clear from the sections that follow Section 227 that what the Legislature intended was that the Court may add a new charge at any time before judgment is pronounced provided that the safeguards mentioned in Section 228 were duly observed. The reference to a new charge in Section 229 and 230 clearly shows that the concept of a new charge is implicit in these words.

In a private complaint charging the caused under Section 323, 325 and 355, Penal Code, a Magistrate can, therefore, add at a later stage new charges under Section 325 and 355, in addition to the charge under Section 323 Penal Code, already framed by him”

In that case also, it was argued as has been done in this case that the Act of the Magistrate in framing a charge only under Section 323 when the complaint alleged three specific offences, amounted to a discharge of the petitioner under Sections 325 and 355 and after that discharge was made, the Magistrate had no jurisdiction to frame the additional charges. He contended that that would amount to a reviewing of the case for discharging which the Magistrate was not competent to do. The machinery provided under the Code of moving higher authorities to set aside the order of discharge it is urged, should have been availed of by the complainant if he felt aggrieved. The learned Public Prosecutor points out that even assuming for argument’s sake that the framing of the charges at the earlier stage under Section 328 alone amount to an implied discharge under Sections 325 and 355, Penal Code, it has been held in a number of cases in this Court that that would not preclude a fresh complaint being made in respect of those offences. In (1906) ILR 29 Mad 126, Emperor v. Chinna Kaliappa and in ILR 55 Mad 622 = (AIR 1932 Mad 369) (FB), IN re, Ponnuswami Goundan, two Full Bench cases of this Court, it was held that in such circumstances the filing of a fresh complaint is not prohibited, and that such would be the case even where the order of dismissal of the complaint had not been set aside. It was further held that in view of the powers given to the Magistrate to alter or add to a charge at any stage before the pronouncement of the judgment, the order of the Magistrate’s framing a new charge was quite legal. This decision is a complete answer to the argument, advanced by the learned Advocate Mr. Thakore and I am in respectful agreement with the proposition of law, enunciated in that decision I, therefore, hold that the learned Magistrate has rightly found that he could frame this new charge under Section 325 of the Indian Penal Code. The appellant has not been prejudiced thereby, He was given an opportunity to recall the doctor and Doctor Joshi was recalled and the appellant cross-examined him.

(8) It has been next contended by the learned Advocate, Mr. Thakore that there is no sufficient reliable evidence to hold that the appellant was the assailant who caused injuries to the injured Shankerlal. He urged that in the complaint, Ex. 10, given by Ramchandra, the brother of the injured Shankerlal, within a few minutes after the incident two other persons besides the present appellant were implicated as accused. At the trial, both Shankerlal and Ramchandra state that they were not at all involved in the commission of this offence. It, therefore, suggests that they are capable of implicating any person whom they like and also they are capable of letting them to scot-free, when they choose to do so. Another eye-witness to the incident, Ghanshyambhai , Ex. 11 has at the trial stated about his witnessing the incident. Ramchandra admits in his evidence, Ex. 9 that he had not given the name of this Ghanshyambhai in this complaint. On referring to the complaint, Ex. 10, it is found that in the complaint, he has specifically referred to Kishore and Babubhai, naming them as witnesses and thereafter. He has used the word ….. means ‘etc.. it means that besides those two persons, there were other persons whom he had not named. But even excluding the evidence of Ghanshyambhai from our consideration, there is sufficient evidence which corroborates the say of Shankerlal, the injured person regarding the fact that the assailant was Jayantilal and none else. Babubhai, Ex. 8 has stated about it. It is true that Shankerlal was his surety in the case filed against that witness by one Santram Jalamsingh and his son. It is, therefore, true that he is not absolutely an independent witness. But it will be significant to note that his name was mentioned in the complaint, which was given by Ramchandra within a couple of minutes after the incident. It was urged by the learned Advocate, Mr. Thakore that Babubhai has given his father’s name to be Ochhavlal while in the complaint, Ex. 10 the name of the father of the witness Babubhai is shown to be Mafatlal. He, therefore, contended that this Babubhai Ochhavbbai examined at the time of trail was not the witness referred to in the complaint. In my opinion, this argument is not well founded. Ramchandra may have an impression that Babubhai’s father’s name may be Mafatlal. It was the duty of the defence Advocate to ask Ramchandra who has been examined as to whether Babubhai examined was a witness referred to in the complaint or not. No such question has been put to him. A specific question was put to him that the witness Ghanshyambhai was not named in that complaint. It is, therefore, evident that the defence knew very well the importance of the witnesses named in the complaint. In spite of it, no question was put regarding this Babubhai. Babubhai fully corroborates the say of Shankerlal and Ramchandra that it was the appellant who gave several stick blows to the injured Shankerlal. He is working in a mill in the third shift and he was returning from the Marsden Mill on cycle. When he came near the Employees’ State Insurance Scheme Dispensary, he saw the appellant assaulting Shankerlal with a stick and he had tried to rescue Shankerlal. He has been able to stand the test of cross-examination. Nothing material is brought out in his evidence to doubt his testimony. Ramchandra’s presence at the scene of offence is very natural. He was returning after Darshan at the aforesaid temple. Within 10 minutes he has taken his brother and lodged a complaint Ex. 10. He also corroborates the say of Shankerlal. The appellant was known to these witnesses. They belong to the same community. They live in the same locality. The incident had taken place in a broad day-light. Several stick blows were given to the injured Shankerlal few blows were averted and in averting those blows, he received injuries on his fingers. It, therefore, clearly means that he had the fullest opportunity to identify his assailant. There is no possibility of any mistake in identifying the assailant. Regarding the injuries received by him, there is corroboration from the evidence of Dr. Joshi, a Registrar of Civil Hospital, Ahmedabad, Ex. 4. Shankerlal has stated in his evidence that the appellant gave him 2 to 3 blows on the left side above the waist. He ran away to save himself and tell down. His right elbow, right toe and right knee were injured. It , therefore, appears that the injuries on his right side of his body came to be caused by a fall. He has also states specifically that he had fallen on the right side. It will be significant to note that prior to this incident, as a result of fall, Shankerlal who is aged about 53 years, had got a fracture of the bone of his right arm and his right arm was put in a plaster of Paris. Shankerlal has also said that he was sent to the Civil Hospital. Doctor had treated him and X-Ray photograph was taken and a fracture of 3 ribs was found. Injuries on fingers had to be stitched. A few minor contradictions were brought on the record from his police statement, but they are to such material contradictions which would impeach the say of this witness. He has thus deposed about the fine of the fracture of his three ribs and about the X-Ray photograph taken by the Civil Hospital.

(9) Dr. Joshi, Ex. 4 who examined Shankerlal at about 8-25 A. M. on 23-2-1965 found the following injuries on his person. In all 8 injuries were found:-

1. Contused lacerated wound 1″ x 1/2″ skin deep on posterior aspect of left elbow

2. Contused lacerated wound 1/2 ” x 1/2″ skin deep in webspace between index and middle fingers of left hand.

3. Abrasion 3/4 ” X 1/4″ on left lumber region of Abdomen

4. Abrasion 1/2 ” X 1/2″ on left groin region

5. Abrasion 1/2 ” X 1/4″ on posterior aspect of right elbow region.

6. Wheal mark of 4 ” X 1/2″ on left side of chest, lower 1/3 with fracture of 8th, 9th and 10th ribs.

7. Wheal mark of 2″ X 1/2″ on left gruteal region.

8. Haematoma right great toe.

He has definitely stated that the injury No. 6 was a wheal mark of 4 ” X 1/2″ on left side of chose, lower 1/3 with fracture of 8th, 9th and 10th ribs. In view of that wheal mark found it could be said without any doubt that that injury was caused by a stick blow. It could. Not be caused by a mere fall. The doctor’s evidence on that point can be accepted without any hesitation. Further, the injured had also stated that he had fallen on the right side and not on the left side. If we now taken into consideration the injuries Nos. 5 and 8, we find that there was abrasion on the right elbow region and haematoma on the right great toe. Those injuries also lend support to the injures Shankerlal’s say that he had fallen on the right side. Amongst the injuries found on the left side, most of them are such that they could be caused by stick blows. Much was made of the fact that tat the time this patient was first examined in the Civil Hospital, in the notes made by some doctor, fracture was not detected. It maybe that on a mere clinical examination, fracture may not be detected. The injured person was sent to the Radiologist and X-ray was taken in the X-Ray department by the Radiologist and Dr. Joshi has stated that he was present when the X-ray was taken and the fracture was detected on taking X-ray photograph. Three ribs were found fractured. Shankerlal has also stated about the taking of X-ray of his and find of fracture of ribs. Much was made of the fact that the X-ray plate was not produced. The doctor has stated in his evidence in examination-in-chief that he has brought the X-ray plate and if the defence wanted to challenge the fact that there was really no such fracture found, it had an opportunity go get that X-ray plate produced. It appears that the defence made efforts to prove that the fracture was not as a result of stick blows, but was as a result of fall. The injured person had admitted that he had fallen down on a foot-path, when he began to run away when he was being assaulted. But that fall was on the right said and not on the left side. The wheal mark has been found on the left side of the chest and on account of that external injury, three ribs- 8th, 9th and 10th were fractured. That is the medical evidence. The learned Magistrate was, therefore, fully justified in accepting the evidence of Dr. Joshi, a Registrar of Civil Hospital. He has no axe to grind. It is true that in the case papers, his notes are on the right side. Some other doctor has put his notes on the left side. In the notes made by Dr. Joshi, below his signature he has put the date 27-2-1965, it may be that he may have made these notes after the X-ray was taken and that is why the date 27-2-1965 appears. He has no axe to grind. The appellant was given an opportunity to cross-examine him again after the charge was amended and he was further cross-examined. There is nothing brought out in the evidence of this doctor to indicate that that he has not deposed truthfully. His evidence deserves credence. His evidence proves that one of the injuries caused to this Shankerlal was a grievous hurt. When one gives a stick blow on a chest portion. It could be said reasonably that he had an intention to cause grievous hurt or at any rate he could be reasonably attributed with the knowledge that his Act was likely to cause grievous hurt. The learned Magistrate was, therefore, fully justified on convicting the appellant of the offence punishable under Section 325 of the Indian Penal Code. As all the injuries were caused to the injured Shankerlal by this very appellant and one of which was a grievous hurt and the appellant is convicted of an offence under S. 325 which is a graver offence, no separate conviction ought to be recorded for the offence under Section 323 of the Indian Penal Code. The order of conviction for the offence under section 323 of the Indian Penal Code, passed against the appellant, should, therefore, be set aside.

(10) Coming next to the question of sentence, it has been urged that the sentence awarded was excessive. It was urged that the injured person was an old man aged about 53 years. His bones could be brittle in view of his age, as deposed to by the doctor. It is, therefore, possible that a stick blow given with a less force might have caused a fracture of three ribs. It will be pertinent to note that a stick blows are given by the appellant to this old man, aged about 53 years, as he happens to be a leader of opposite faction. On several parts of his body, injuries are caused. One of them results in the fracture of three ribs. He remained in the hospital as an in-door patient for 15 days. Thereafter he had to go to the Civil Hospital six times and till his deposition came to be recorded on 23-9-1965, he was under treatment. The appellant, as a rational being, could be expected to know the possible consequences of assaulting an aged man. I, therefore, find no mitigating circumstances to reduce the sentence awarded to the appellant for the offence under Section 325 of the Indian Penal Code and at any rate, I see no justifiable reason interfere with the discretion of the learned Magistrate in awarding the punishment.

(11) The appeal substantially, fails, as the sentence awarded for both the offences by the learned Magistrate were ordered to run concurrently.

(12) The order of conviction and sentence passed against the appellant for the offence under Section 325 is maintained. The order of conviction and sentenced passed against him for the offence under Section 323 is set aside. The appellant to surrender to bail.

(13) It is needless to say that the order passed by the learned Magistrate regarding awarding of compensation of Rs. 150 to the injured out of fine, if recovered, remains unchanged.

(14) Appeal dismissed.