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2007 Supreme(All) 540
[2007(4) ADJ 418]
ALLAHABAD HIGH COURT
BEFORE : BARKAT ALI ZAIDI, J.
RAM KESH MAURYA —Applicant
Versus
STATE OF U.P. AND ANOTHER —Opposite Parties
(Criminal Misc. Application No. 3268 of 2007, decided on 2nd March, 2007)
S.K. Dubey for the Applicant; R.K. Maurya, A.G.A. for the Opposite Parties.
Headnote:Criminal Procedure Code, 1973—Section 482—Framing of charge—Alteration of—Addl. Sessions Judge framed a charge under Sections 308/34, 504, 506 and 323/34, IPC—While according to doctor victim sustained injuries simple in nature—Charge framed under Section 308 of IPC unjustified—Charge should have been framed under Section 323 of IPC—Trial should have taken place before Magistrate—Alleged injury on vital part of victim could not be proved—Not appropriate to frame charge under Section 308 of IPC—Applicant accused would be deprived of one tier of appeal—Objection justified—Case should go back to Magistrate for trial. [Paras 3, 4, 5 and 6]
Honble Barkat Ali Zaidi, J.—In these proceedings under Section 482, Cr.P.C., one out of the three accused in the case complains that the Trial Judge (Addl. Sessions Judge) Fast Track Court, Jaunpur has framed a charge under Sections 308/34, 504, 506 and Section 323/34, I.P.C., while according to the doctor, the injuries sustained by the two injured ladies are simple in nature and, therefore, a charge under Section 308, I.P.C. was unjustified and charge should have been framed under Section 323, I.P.C. and the Trial should have taken place before the Magistrate.
2. I have heard Sri S.K. Dubey, learned Counsel for the applicant and Sri R.K. Maurya, Addl. Government Advocate for the State.
3. This argument was raised before the Trial Judge, which he dispelled by his order and maintained that it was an appropriate case for framing a charge under Section 308, I.P.C. because the injury was on the head, which is a vital part and could have been fatal though fortunately it did not prove to be so.
4. This controversy could have been easily reconciled if the doctor had advised an X-ray and the X-ray was thereafter performed, from which it could be ascertained whether there is any fracture of the skull bone or not? Since there is no X-ray report, it may be presumed that the doctor did not consider it necessary to advise X-ray because he found the injury to be quite simple.
5. Since the injury has been described by the doctor as simple and since we have no sufficient reason to assume otherwise, the charge should have been under Section 323, I.P.C. It would not be appropriate to frame a charge under Section 308, I.P.C. as a precautionary measure because that would deprive the accused of one tier of appeal. In case the charge is under Section 308, I.P.C., it would be tried by the Court of Sessions and appeal will lie to the High Court while if the charge is under Section 323, I.P.C. , the case be tried by the Magistrate and appeal will lie to the Sessions Court.
6. In view of the aforesaid circumstances, the complainant’s objection is justified and the charge should not be under Section 308, I.P.C. and the case should go back to the Magistrate for Trial.
7. Petition allowed. Ordered accordingly.
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