The court established that the main ingredients of Section 323 IPC and Section 498A IPC are cognate to each other, and Section 323 IPC is a minor offence in comparison to Section 498A IPC.

By means of this petition under Section 397 read with Section 401 of the CPC, the petitioner has challenged the judgment and order dated 07.02.2015 delivered in Criminal Appeal No. 62 of 2014 whereby the judgment and order of conviction and sentence dated 16.10.2014 delivered in PRC 1011 of 2010 by the Judicial Magistrate, 1st Class, Agartala, West Tripura has been affirmed. The trial court convicted the petitioner under Section 323 of the IPC for causing hurt and sentenced him to suffer rigorous imprisonment for 1 (one) month and to pay a fine of Rs.1000/- with default imprisonment.

2. In a nutshell, the prosecution case is that on 18.03.2007, the petitioner married one Rinku Sarkar as per Hindu rite and customs. After one year of their marriage, Rinku Sarkar, hereinafter the victim, was subjected to mental torture both physical and mental by her husband. On 14.09.2010 at mid night at about 02.00 hours, the petitioner assaulted her by thrashing against a concrete structure and resultantly the victim received injury on her head and was shifted to Mohanpur Community Health Centre [CHC in short] for her treatment. Based on the complaint filed by the victim to the Officer-in-Charge, Lefunga Police Station, Lefunga P/S Case No. 46/2010 under Section 498-A of the IPC was registered and taken up for investigation. Having completed the investigation, the investigating officer filed the final police report charge-sheeting the petitioner. On taking cognizance, the charge was framed under Section 498-A of the IPC. For ensuring the attendance of the petitioner proclamation and attachment procedure were also resorted.

3. To substantiate the charge, the prosecution adduced as many as 6 (six) witnesses including the victim (PW-1) and one of the investigating officers, namely Satikanta Bardhan (PW-6) was examined. After examination of the petitioner under Section 313 of the Cr.P.C. and evaluating the evidence on record, the trial court has observed as under :

“Therefore, from the evidence on record, the prosecution could not bring home the guilt to the accused person under Section 498A IPC. However, from the material evidence on record it is amply proved beyond any doubt that on 14.09.2010, the accused person had assaulted the victim causing her simple hurt and accordingly the prosecution had been successful in bringing home the guilt of the accused person under Section 323 IPC. Accordingly, I find and hold that the accused person committed the offence under Section 323 IPC.”

4. The trial court passed the judgment of conviction on 16.10.2014 and on that very day i.e. 16.10.2014 a separate order was passed in PRC 1011 of 2010 where the following has been observed by the trial court:

“However, having heard arguments of both sides as well as on perusal of the evidence on record it appears to me that for fair ends of justice the charge so framed against the accused person is required to be altered. Accordingly, Section 323 IPC has been added in addition to section 498A IPC so framed against the accused in compliance with section 216 Cr.P.C read with section 221(2) Cr.P.C.”

On that premises the petitioner has been convicted under Section 323 of the IPC.

5. Mr. A. Pal, learned counsel appearing for the petitioner has submitted that the charge can be altered by the court under Section 216 of the Cr.P.C. Section 216 of the Cr.P.C. provides as under :

“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