Important Point-Framing of charge by Trial Court is not an empty formality.

J.B. Pardiwala, J.

1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused persons call in question the legality and validity of the order dated 31.12.2012 passed by the learned Additional District Judge & Additional Sessions Judge, Bhavnagar below exhibit-7 in the Sessions Case No. 58 of 2010, by which, the learned Judge rejected the application exhibit-7 filed by the applicants with a prayer to discharge them from the offence under Section 307 of the Indian Penal Code. The facts giving rise to this application may be summarized as under:--

“2.1 On 9th September, 2009, a first information report was lodged by a person named Brijeshbhai Himmatlal Shah, a resident of Bhavnagar at the “A” Division Police Station, Bhavnagar for the offence punishable under Sections 143, 147, 148, 149, 307, 403 and 506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act.

2.2 The first informant is an animal rights activist. The first informant along with his colleagues, who are also animal activists, intercepted a truck allegedly carrying bullocks for the purpose of slaughter. In the process, the first informant and his colleagues were allegedly attacked and assaulted by the applicants herein. It is the case of the prosecution that the applicants herein, armed with sticks and swords, inflicted injuries on the head of three persons, namely, Brijeshbhai Shah, Chiragbhai Kamdar and Nareshbhai Hapani.

2.3 On conclusion of the investigation, the charge-sheet was filed for the offence under the different Sections of the Indian Penal Code as noted above.

2.4 The applicants herein filed an application exhibit-7 in the Sessions Case No.58 of 2010 and prayed that they be discharged from the offence under Section 307 of the Indian Penal Code. The learned Sessions Judge rejected the application, inter alia, observing as under:-

“Heard the learned Advocate Mr. D.J. Dasadiya on behalf of accused-applicant and the learned A.P.P. on behalf of the State. The learned Advocate Mr. D.J. Dasadiya submitted that in FIR there is no allegation of instigation by any one to assault the alleged victim. But, later on after investigation prosecution witness came with a story that the alleged accused were instigated to kill the victims by calling them by name. The learned Advocate has placed reliance on Medical Certificate issued by Dr. Dijesh Shah for injury sustained by Brijeshbhai, Hareshbhai Dholawala, Chiragbhai Kamdar and Nareshbhai along with charge sheet papers in which the injuries opined as 'simple'. It is also submitted that after C.T. Scan of Brain no abnormality was detected. Hence, all the injuries are of simple nature, no fracture or internal damage has been found and therefore, it can not be said that injuries were inflicted with intention of causing death. Therefore, applicability of Section 307 of I.P.C., does not arise. Therefore, accused should be discharged from offence U/s. 307 of I.P.C., and accused can be prosecuted for offence U/s. 304 of I.P.C., with other offence mentioned in charge sheet.

I have also heard the learned A.P.P. Mr. V.C.G. Mandaliya. He has submitted that the intention of the accused-applicant was to cause death as the injury was inflicted on head and that with a deadly weapon. The injured had take treatment for the period from 09.09.09 to 15.09.09 and injury sustained by the injured are of serious nature, and, therefore, the applicant-accused is not liable to be discharged from offence under Section 307 of I.P.C. Looking to Section 307 of I.P.C.

I have gone through the Police papers, charge-sheet, Medical papers etc. On perusal of the same it appears that the present applicant has been charge-sheeted for the offence U/s. 147, 148, 149, 307, 403, 406(2) of the LP. Code and Section 135 of Police Act. According to Section 307 of I.P.C. intention of accused is to be gathered from all circumstances of the case. Further even after recording oral testimony of a Doctor