Order 17

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF SH. SANJAY SHARMA-I,
PRINCIPAL DISTRICT & SESSIONS JUDGE (NORTH-EAST)
KARKARDOOMA COURT, DELHI
SC 38/2024
STATE Vs. Dharampal & Anr.
FIR No. 139/2023
PS Sonia Vihar
13.02.2026
ORDER
Vide this order I shall decide an application under Section
216 Cr.P.C. filed by the prosecution for amendment/modification/
alteration of charge framed against the accused persons under Section
308/34 IPC vide order dated 01.04.2024 and for adding of Section 307/34
IPC.
2. It is stated in the application that the injured Chitra Singh
suffered multiple injuries and fractures of skull and face with brain
hemorrhage at the hands of the accused persons when accused Nishant
threw a flower pot on his head from the roof. It is further stated that the
said injuries could have caused the death of the injured as he fell
unconscious on the spot and both the accused had intention to kill him. It
is further stated that the amendment sought will not amount to revisiting
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the order of the court and no prejudice will be caused to the accused if
the charge framed under Section 308/34 IPC is amended as prayed. In
support of his contention, Ld. Chief PP has relied upon judgments
delivered in Anant Prakash Sinha Vs. State of Haryana 13 (2016) 6
SCC 105; Nallappa Reddy Sridhar Reddy Vs. State of Andhra Pradesh
– Criminal Appeal No. 1934 of 2019: arising of SLP No. 3884 of 2019;
Jasvinder Saini and Ors. Vs. The State of GNCT DOD Oct. 13th 2011;
and Hasan Bhai Vali Bhai Qureshi Vs. State of Gujrat & Ors. Crl.
Appeal No. 421 of 2004 arising out of SLP (Crl.) No. 472/2004 2004(2)
JCC 803.
3. Ld. Counsel for the accused persons has filed reply to this
application stating therein that the present application is misconceived,
legally untenable and liable to be dismissed as prosecution has failed to
satisfy the mandatory legal ingredients required for invoking Section 307
IPC and further the prosecution has failed to prove that the injury
endangered the life of the injured. It is further contended that six
prosecution witnesses have already been examined including the
complainant, injured/victim, medical witness and radiologist and even in
the MLC there is no opinion that the injury is ‘life threatening’ or was
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sufficient to cause death. Further, it is contended that the victim was
discharged from the hospital within 5-6 days. Ld. Counsel has relied upon
Sarju Prasad Vs. State of Bihar, AIR 1965 SC 843; State of MP Vs.
Saleem (2005) 5 SCC 554; P. Kartikalakshmi Vs. Sri Ganesh (2017) 3
SCC 347; Jage Ram vs State of Haryana (2015) 11 SCC 366; Natasha
Singh Vs. CBI (2013) 5 SCC 741 in support of his contention. It is thus
prayed that the application filed by the prosecution be dismissed and
charge under Section 308 IPC, as already framed, be maintained.
4. I have heard Mr. Masood Ahmad, Ld. Chief PP for the State,
Sh. RP Kaushik and Sh. Manoj Suri, Ld. Counsels for complainant and
Sh. Sagar Bhardwaj, Ld. Counsel for both the accused and have gone
through the record.
5. Section 216 of Cr.P.C reads as under:
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,
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in its discretion, after such alteration or addition has been
made, proceed with the trial as if the altered or added
charge has 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 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.
6. It is clear from the bare reading of the above provision that
charge can be amended, altered or added at any stage of the trial before
the judgment is pronounced. However, it can be done so only if there is
sufficient material on record that is to say, that if the chargesheet discloses
commission of a particular offence, but because of any omission, charge
for the said offence could not be framed, or it was incorrectly framed, the
court has ample powers to frame it at a later stage. Similarly, if during the
trial any substantive evidence comes on record requiring the amendment
or addition of the charge, the court can still do it. The only thing which
has to be borne in mind is that there should be sufficient material
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available on record requiring the court to amend, alter or add a charge.
Secondly, the court should also consider that no prejudice is caused to the
accused in case a charge is so amended.
7. The law on this point has been succinctly stated in a
judgment referred to by the Ld. Counsel for the complainant in
Dr.Nallapareddy Sridhar Reddy vs The State Of Andhra Pradesh on
21st January 2020 (AIR 2020 SUPREME COURT 753), in para 20
which is as under:-
“20. From the above line of precedents, it is clear
that Section 216 provides the court an exclusive and wide-
ranging power to change or alter any charge. The use of the
words “at any time before judgment is pronounced” in Sub-
Section (1) empowers the court to exercise its powers of
altering or adding charges even after the completion of
evidence, arguments and reserving of the judgment. The
alteration or addition of a charge may be done if in the
opinion of the court there was an omission in the framing of
charge or if upon prima facie examination of the material
brought on record, it leads the court to form a presumptive
opinion as to the existence of the factual ingredients
constituting the alleged offence. The test to be adopted by the
court while deciding upon an addition or alteration of a
charge is that the material brought on record needs to have a
direct link or nexus with the ingredients of the alleged
offence. Addition of a charge merely commences the trial for
the additional charges, whereupon, based on the evidence, it
is to be determined whether the accused may be convicted
for the additional charges. The court must exercise its
powers under Section 216 judiciously and ensure that no
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prejudice is caused to the accused and that he is allowed to
have a fair trial. The only constraint on the court’s power is
the prejudice likely to be caused to the accused by the
addition or alteration of charges. Sub-Section (4)
accordingly prescribes the approach to be adopted by the
courts where prejudice may be caused.”
8. Ld. Counsel for the complainant also relied upon the
judgment in Jasvinder Saini & Ors. Vs State of GNCT dated
13.10.2011. The said judgment has been discussed in the aforesaid
judgment. He also relied upon the judgment in Hassanbhai Valibhai
Qureshi Vs. State of Gujarat 2004 (2) JCC 803. However, the said
judgment has no applicability to the present case as it was on the point of
further investigation under Section 173(8) Cr.PC.
8.1 It is now to be seen in light of the above observations,
whether in the given facts of the present case, the charge is required to be
altered / amended from that under Section 308 IPC to Section 307 IPC.
9. The facts in brief as stated in the chargesheet and appearing
in the complaint of the complainant are that on 17.03.2023 at about 08.30
pm, the younger brother of the complainant was feeding dogs in front of
his house which was objected to by accused Dharampal and a verbal
heated arguments took place between the two. When the brother of the
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complainant protested on being abused by the accused, son of Dharampal
namely accused Nishant picked up a flower pot and threw it on the head
of the brother of the complainant resulting into injuries on his head. He
further stated that the accused with an intention to kill his brother caused
the said injury.
10. Ld. Counsel for the complainant and the Ld. Chief
Prosecutor have sought alteration of the charge mainly on two grounds.
Firstly, that the complainant in his complaint had stated that the accused
had caused injury upon his brother with an intention to kill him.
Secondly, that the injury upon the injured have been opined to be
grievous since the injured sustained multiple fractures on his skull.
11. The accused have been charged for the offence punishable
under Section 308 IPC i.e. attempt to commit culpable homicide. The
said Section provides as under:-
“Whoever does any act with such intention or
knowledge and under such circumstances that, if he by
that act caused death, he would be guilty of culpable
homicide not amounting to murder, shall be punished
with imprisonment of either description for a term which
may extend to three years, or with fine, or with both;
and, if hurt is caused to any person by such act, shall be
punished with imprisonment of either description for a
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term which may extend to seven years, or with fine, or
with both.”
12. In criminal law, Section 308 of the IPC is not automatically
attracted in every instance of a head injury. Courts have consistently held
that the intention or knowledge of the accused-not just the severity or
location of the injury-is the primary factor for conviction.
13. The Section requires proof that the act was committed with
such intention and knowledge that, if death had occurred, it would have
amounted to culpable homicide. The first part of Section 308 IPC applies
even if no injury is caused, provided the requisite intent is proven.
Conversely, a serious injury without this specific intent may fall under
Section 323 or 325 IPC. The Courts examine the weapon used, the force
applied, and whether there was pre-meditation or a sudden or trivial
quarrel to determine the true nature of the offence.
Section 307 IPC provides as under:-
“Whoever does any act with such intention or knowledge, and
under such circumstances that, if he by that act caused death,
he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and if hurt
is caused to any person by such act, the offender shall be
liable either to imprisonment for life, or to such punishment as
is hereinbefore mentioned.”
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14. Thus, the basic difference between the two provisions is that
under Section 308 IPC, there should be either intention or knowledge to
cause such bodily injury that in case the injured died, the offender would
be guilty of culpable homicide not amounting to murder whereas, under
Section 307 IPC, the intention or knowledge should have been to cause
death.
15. In the instant case, as per the prosecution case, a heated
argument had taken place between the complainant side and the accused
on a petty issue of feeding dogs and in the heat of the said arguments,
accused Nishant had thrown the flower pot towards the injured. It is not
the case of the complainant that the said accused was a marksman and
had a perfect aim or that he had aimed at the head of the injured. It was
only in a heat of passion that he had thrown the flower pot towards the
injured. It by chance struck on his head but it could have also struck any
other part of his body or even had missed the target and fallen on the
ground. Thus, the fact suggests that the act was not pre-meditated, the
weapon used was also not a deadly weapon and there appears to be no
intention of the accused to cause the death of the injured.
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16. It is also to be observed that in the complaint Ex.PW3/A, it
was vaguely stated by the complainant in the last part that the accused
with an intention to kill the injured caused injuries upon him. However,
when the complainant entered the witness as PW, he never deposed the
said fact. At that time, he was not even confronted from his previous
statement by the prosecution. Similarly, the injured who was examined as
PW2 only deposed in the court that accused Nishant had thrown the pot
upon him with an intention to cause injury. He also did not allege that the
accused had thrown the pot with intention to cause his death.
17. As far as the medical evidence is concerned, no doubt there
were multiple fractures on the skull of the injured but there is no medical
opinion that the said injuries were dangerous or life threatening but have
been opined only to be grievous.
18. Exception 4 to Section 300 IPC provides that culpable
homicide is not murder if it is committed without pre-meditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual
manner. The explanation to this exception provides that it is immaterial in
such cases which party offers the provocation or commits the first assault.
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19. In Sarju Prasad Vs. State of Bihar AIR 1965 SC 843,
relied upon by Ld. Counsel for the accused, it was held that “the mere
fact that injury is grievous does not attract Section 307 IPC unless
intention to cause death is established.”
20. In the instant case, no doubt the injury was opined to be
grievous and was on a vital part of the body of the injured, but the
intention or knowledge to cause death on part of the accused is missing
for the reason stated herein above that is, that the injury was not pre-
meditated, was caused in a spurt of a moment during the sudden fight or
quarrel and without any intention to cause death of the injured. Apart
from that, it is also to be noted that charge in the case was framed on
01.04.2024 and the injured as well as the complainant were examined on
29.10.2024 and 02.04.2025 respectively, however, the present application
was filed on 12.01.2026 when four other witnesses have already been
examined. There is no explanation for the delay in moving the present
application nor the circumstances warrant for amending or altering the
charge. Furthermore, amendment of charge at this stage would definitely
cause prejudice to the accused since his defence has already been
disclosed in the cross examination of the prime witnesses.
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21. Hence, for the reasons aforesaid, I find no ground for
allowing the present application. The same is accordingly dismissed.
Nothing said hereinabove shall be construed as an opinion
on the merits of the case.
ANNOUNCED IN OPEN COURT
ON 13th day of February, 2026
(SANJAY SHARMA-I)
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH EAST DISTRICT,
KARKARDOOMA COURT, DELHI
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