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Ajaybhai Khodidasbhai Chauhan vs State Of Gujarat on 26 February, 2024

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Gujarat High Court

Ajaybhai Khodidasbhai Chauhan vs State Of Gujarat on 26 February, 2024

NEUTRAL CITATION

R/CR.RA/277/2024 ORDER DATED: 26/02/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 277 of 2024

AJAYBHAI KHODIDASBHAI CHAUHAN ORS.
Versus
STATE OF GUJARAT ANR.

Appearance:
MR MAHESH K POOJARA(5879) for the Applicant(s) No. 1,3,4
MR.KISHAN PRAJAPATI(7074) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 26/02/2024

ORAL ORDER

1. By way of this Revision Application under section 397 and
401 of Cr.P.C., the petitioner has challenged the order dated
08.01.2024 passed by learned Additional Sessions Judge,
Savarkundla in Sessions Case No.7 of 2020 (Old Case No.66 of
2014).

2. Learned advocate for the petitioner submits that learned
Sessions Judge has committed error in adding charge under
section 216 of Cr.P.C. for the offence under section 302 of IPC on
the application filed by the learned PP at Exh.44. He would
submit that Hon’ble Apex Court in the case of P.Kartikalakshmi
v/s. Sri Ganesh [(2017) 3 SCC 347] categorically held that power
of the Court under
section 216 to alter or add any charge is
independently and has to be exercised on its own and not at the

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instance of first informant de facto complainant or prosecution
and therefore, learned Sessions Judge has committed serious
error in adding charge of offence under
section 302 of IPC. He
also referred to judgment of this Court in the case of Sahdevsinh
Natubha Zala v/s. State of Gujarat [Criminal Revision
Application No.384 of 2017] to submit that identical view has
been taken by the Co-ordinate Bench while allowing the Revision
and believed that the Court cannot alter charge at the behest of
the prosecution. It is further submitted that adding of charge
under
section 216 of Cr.P.C. for the offence under section 302 of
IPC is materially erred by the learned Trial Court and therefore,
present Revision Application be allowed.

3. On the other hand, learned APP would submit that learned
Trial Court has independently examined the documents available
on record and came to conclusion that because of serious injury
sustained by the deceased, he died. He would further submit
that application Exh.44 was though moved by the learned PP
before the learned Trial Court it was just information brought to
the notice of the learned Trial Court about subsequent incident
which took place and in that way, learned Sessions Judge has
taken cognizance of subsequent incident placed on record and
came to conclusion that offence under
section 302 of IPC is
required to be added. No illegality is committed by the learned
Trial Court. It is further submitted that judgment relied by the
learned advocate for the petitioner is not helping the petitioner
and therefore, present revision application be dismissed.

4. Having heard learned advocates for the parties, it is
necessary to refer translated version of para 4 and 5 being

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reasons of impugned order in allowing Exh.44 which reads as
under :-

“4. Thus, looking to the above mentioned facts and
circumstances, it is found that as per the case of the
Prosecution, the said incident occurred on 13-04-2014 and
in this incident, the accused no. 1 inflicted one sword blow
on the head of the witness and the accused no. 2 inflicted
two blows using an iron T to the witness on head.
Whereas, accused no. 3 to 5 sat on the leg of the witness
and instigated to assault the witness and as the accused
no. 3 caught hold of the hands of the witness, the accused
no. 1 inflicted four blows of pipe on both the shoulders of
the witness. Accordingly, a complaint was registered under
Section 143, 147, 148, 149, 307, 504, 506(2) of the IPC
and Section 135 of the G. P. Act and at the end of the
investigation, charge-sheet was filed regarding those
offenses. The case was committed to this Court and as the
accused no. 3 died, case has been decided as abated qua
him. Thereafter, charge was framed vide Exh.28 regarding
the above mentioned Sections and further statements of
the accused were recorded vide Exh. 29 to 32, wherein the
accused persons pleaded not guilty. Therefore, the case
was adjourned for evidences of the Prosecution.
Complainant Jaysukhbhai Bhanjibhai Rathod has been
examined for the Prosecution and thereafter, as the
Prosecution has submitted the present application, the
aforementioned Medical Witnesses have been examined
and affidavit of the Investigating Officer has been
produced.

5. If it is discussed on the basis of the above mentioned
oral and documentary evidence alongwith the evidences on
record regarding the issue as to whether
section 302 of the
IPC can be added in the present case, it is seen that
Medical Officer Dr. Dharmishtha Gordhanbhai Vaghasia,
who gave treatment to the deceased, has been examined
vide Exh.65. She has stated that the deceased had
sustained grievous injury on head and there was severe
bleeding. Moreover, OPD Case has been produced vide
Exh.66 and treatment certificate has been produced vide

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Exh.67. Thereafter, Neuron Surgeon Dr. Hemang
Harishchandra Vasavada, who also gave treatment to the
deceased, has been examined vide Exh.71. He has stated
in his deposition the history given by the deceased as well
as the injuries sustained by the deceased, wherein it was
mentioned that there was (1) an 8 cm long stitch present
on the forehead, (2) there was right frontal and parietal
bone fracture and extra dural hemorrhage and (3) there
was contusion injury on right side frontal and parietal lobe
of brain. It was stated that the injury no. 2 was such that
was caused by a hard and blunt substance and it was a
grievous injury and the treatment certificate was produced
vide Exh.94. Thereafter, Dr. Kalpesh Somchandbhai
Kotariya, who conducted postmortem examination of the
deceased, has been examined vide Exh. 94. In his
deposition on oath, he has stated in detail about the
process carried out by him, the internal and external
injuries sustained by the deceased as well as regarding the
cause of his death. If the said facts are taken into
consideration at the present stage, it is stated in Para No.
(4) that deceased was 36 years old having strong physic
and there was a healed wound at the center of the
forehead, which started 3 cm above gebella and extended
towards the head on the upper side, wherein stitch marks
were seen. Alongwith this, if the internal injury no. (11)
sustained by the deceased is seen, it is found that “there
was malunited depressed fracture having 7 x 3.6 cm size
below the aforesaid scare, which was in both the
frontoparietal bones.” Thereafter, final opinion and cause
of death was mentioned in Para no. (19) on the basis of
Histopathological report that death has been caused due to
“cardio-respiratory failure due to pathology in brain and
lungs.” Thereafter, looking to Para No. (27), it is stated
therein that depressed fracture, seen in both frontoparietal
bones, noted down during the internal examination, can be
caused if assaulted by hard and blunt substance.

Thereafter, it is stated in Para No. (28) that “such death
can be caused by infection of injuries sustained prior to
death.” Now, if the cross-examination of this witness is
seen, it is stated therein that it is true that no fresh
internal or external injury was found during the
examination. It is true that final cause of death was
mentioned on the basis of Histopathology Report. It is true

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that at present I have stated on the basis of experience as
to using which weapon, the internal and external injuries
may have been caused to the deceased. It is true that, I
was not aware at the time of carrying out the postmortem
that, the person had sustained injury earlier. It is true
that, I was not aware that this person had been previously
injured until after giving opinion. I stated based on my
experience that such death could be due to previous
injury.

Thus, seeing all the above facts and produced
evidence simultaneously, the deceased had 8 cm. long
stitches above the forehead due to the injury sustained on
13-04-2014 and there were frontal and parietal bones
fracture on the right side and extradural type of
hemorrhage. There was contusion type injury in the frontal
and parietal lobes of the brain on the right side. Now, upon
seeing the internal injury from the time of P.M. , the same
also had “malunited depressed fracture of size 7 X 3.6 cm
below the stitched wound in the middle of forehead, below
the scar mentioned above, the same was in both frontal-
parietal bones. From the cross-examination by the defense,
the fact is clear that no external or internal injury
sustained by the deceased was fresh, in those
circumstances, the injury was a previous injury and on
examining the place of the injury, the internal injury was
found at the same place where the stitches were taken and
fracture was found earlier. In this manner, seeing the
cause of death and as the death occurred due to the
pathology in the brain and lumbus, it appears reasonable
to believe that it was caused by a previous injury. From the
cross-examination by the defense, it is clear that the said
witness has stated the cause of death based on his
experience and histopathology report. The said witness is
an “expert” performing duty at the Forensic Medical
Department, Ahmedabad and has no personal interest or
connection with the present case or any of the parties, so
there is no reason to disbelieve his deposition and based
on his experience and pathology report, he has clearly
stated that the death of deceased was caused due to the
injury sustained earlier. Upon seeing the opinion of the
said expert in para no. (24) in regard with the external
injury nos.1 and 2 sustained by the deceased, the same

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can be caused if any person is continuously bedridden and
seeing para no.(27), it is clearly stated that, injury no.6
and 7 may occur due to infection caused by bedridden
situation or previous injury and it is also stated that,
internal depressed fracture injury can occur from blunt
object. The defense has contended that there is no
evidence that the deceased was undergoing treatment from
2014 to 2015, but the injury caused by prolonged bed rest
points towards the bedridden situation due to previous
injury. Deceased was 36 years old and had strong built
body, in such circumstances, on the basis of oral and
documentary evidence and experience of the medical
expert, it appears that, the brain injury sustained by the
deceased at the time of the incident was the same as the
internal injury observed at the time of P.M. and the death
was caused due to previous injury and its infection and
that there is a direct and clear connection between the
same. The defense has also contended about the delay, but
upon seeing the record, the injured person died after the
charge sheet was submitted and the fact came to be known
during the prosecution’s evidence after the charge was
framed and thereafter the application was submitted and
hence the delay. Therefore, no suspicion can be raised
regarding the application due to the delay. Thus, in view of
the discussion as per the above details and due to the
reasons stated, the present application filed by the
appellant deserves to be allowed and therefore below order
is passed in the interest of justice.”

5. What appears that learned Sessions Judge has taken
cognizance of the fact and information produced before it and
that after recording deposition of Dr.Dharmista Vagasiya at
Exh.65 came to the notice that injury on head which was
sustained by the deceased was grievous and several bleeding
was there and then deposition of Dr.Hemang Vasavda Exh.71
was also taken into consideration, so also the various injuries
and thereafter Dr.Kalpesh Kothariya was examined at Exh.94.
All these aspect has been taken into consideration by the learned

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Sessions Judge minutely and elaborately and thereafter reached
to conclusion that offence under
section 302 of ICP is prima facie
made out and therefore, learned Sessions Judge has added
charge of offence under
section 302 of IPC in exercise of powers
under
section 216 of Cr.P.C.

6. Learned advocate for the petitioner has relied on para 6, 7
and 8 of the judgment of Hon’ble Apex Court in the case of
P.Kartikalakshmi (supra), which reads as under :-

“6. Having heard learned counsel for the respective parties, we find
force in the submission of learned senior counsel for respondent
no.1.
Section 216 Cr.P.C. empowers the Court to alter or add any
charge at any time before the judgment is pronounced. It is now well
settled that the power vested in the Court is exclusive to the Court and
there is no right in any party to seek for such addition or alteration by
filing any application as a matter of right. It may be that if there was an
omission in the framing of the charge and if it comes to the knowledge
of the Court trying the offence, the power is always vested in the Court,
as provided under
Section 216 Cr.P.C. to either alter or add the charge
and that such power is available with the Court at any time before the
judgment is pronounced. It is an enabling provision for the Court to
exercise its power under certain contingencies which comes to its notice
or brought to its notice. In such a situation if it comes to the knowledge
of the Court that a necessity has arisen for the charge to be altered or
added, it may do so on its own and no order need be passed for that
purpose. After such alteration or addition when the final decision is
rendered, it will be open for the parties to work out their remedies in
accordance with law.

7. We were taken through Sections 221 222 of the Cr.P.C. in this
context. In the light of the facts involved in this case, we are only
concerned with
Section 216 Cr.P.C. We, therefore, do not propose to
examine the implications of the other provisions to the case on hand. We
wish to confine ourselves to the invocation of
Section 216 and rest with
that. In the light of our conclusion that the power of invocation
of
Section 216 Cr.P.C. is excl usively confined with the Court as an
enabling provision for the purpose of alteration or addition of any
charge at any time before pronouncement of the judgment, we make it

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clear that no party, neither de facto complainant nor the accused or for
that matter the prosecution has any vested right to seek any addition or
alteration of charge, because it is not provided under
Section
216 Cr.P.C. If such a course to be adopted by the parties is allowed,
then it will be well nigh impossible for the Criminal Court to conclude
its proceedings and the concept of speedy trial will get jeopardized.

8. In such circumstances, when the application preferred by the
appellant itself before the Trial Court was not maintainable, it was not
incumbent upon the Trial Court to pass an order under
Section
216 Cr.P.C. Therefore, there was no question of the said order being
revisable under
Section 397 Cr.P.C. The whole proceeding, initiated at
the instance of the appellant, was not maintainable. Inasmuch as the
legal issue had to be necessarily set right, we are obliged to clarify the
law as is available under
Section 216 Cr.P.C. To that extent having
clarified the legal position, we make it clear that the whole proceedings
initiated at the instance of the appellant was thoroughly misconceived
and vitiated in law and ought not to have been entertained by the Trial
Court. As rightly pointed out by the learned senior counsel for
respondent no.1, such a course adopted by the appellant and
entertained by the Court below has unnecessarily provided scope for
protraction of the proceedings which ought not to have been allowed by
the Court below.”

7. The judgment in the case of P.Kartikalakshmi (supra) relied
by learned advocate for the petitioner would not be helpful to the
petitioner. In the present case learned Sessions Judge has
discussed available evidence on record against accused minutely
and elaborately and though application was moved by learned PP
at Exh.44, has taken into consideration on its own to add charge
in exercise of power under
section 216 of Cr.P.C.. It cannot be
said that learned Sessions Judge has exercised and passed order
below Exh.44 at the behest of learned PP, it was learned PP who
has brought to the notice of the learned Sessions Judge about
various evidence on record and learned Sessions Judge took its
own.

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8. In this facts, judgment relied upon by the learned advocate
for the petitioner would not be helpful. The accused will have
right to recall the witness when charge is altered in view of
section 217 of Cr.P.C.

9. In the case of Anant Prakash Sinha v/s. State of Haryana
[(2016) 6 SCC 105], the Hon’ble Apex Court in para 21 and 22
has held as under :-

“21. Presently to the second aspect. Submission of Mr.
Sharan is that the learned Magistrate could not have
entertained the application preferred by the informant, for
such an application is incompetent because it has to be
filed by the public prosecutor. In this regard, he has laid
stress on the decision in
Shiv Kumar v. Hukam Chand and
another[21]. In the said case, the grievance of the appellant
was that counsel engaged by him was not allowed by the
High Court to conduct the prosecution in spite of obtaining
a consent from the concerned Public Prosecutor. The trial
court had passed an order to the extent that the advocate
engaged by the informant shall conduct the case under the
supervision, guidance and control of the Public Prosecutor.
He had further directed that the Public Prosecutor shall
retain with himself the control over the proceedings. The
said order was challenged before the High Court and the
learned single Judge allowing the revision had directed
that the lawyer appointed by the complainant or private
person shall act under the directions from the Public
Prosecutor and may with the permission of the court
submit written arguments after evidence is closed and the
Public Prosecutor in-charge of the case shall conduct the
prosecution. This Court referred to
Sections
301,
302(2), 225 CrPC and various other provisions and
came to hold as follows:-

“13. From the scheme of the Code the legislative
intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by anyone other

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than the Public Prosecutor. The legislature reminds
the State that the policy must strictly conform to
fairness in the trial of an accused in a Sessions
Court. A Public Prosecutor is not expected to show a
thirst to reach the case in the conviction of the
accused somehow or the other irrespective of the true
facts involved in the case. The expected attitude of
the Public Prosecutor while conducting prosecution
must be couched in fairness not only to the court
and to the investigating agencies but to the accused
as well. If an accused is entitled to any legitimate
benefit during trial the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty of
the Public Prosecutor to winch it to the fore and
make it available to the accused. Even if the defence
counsel overlooked it, the Public Prosecutor has the
added responsibility to bring it to the notice of the
court if it comes to his knowledge. A private counsel,
if allowed a free hand to conduct prosecution would
focus on bringing the case to conviction even if it is
not a fit case to be so convicted. That is the reason
why Parliament applied a bridle on him and
subjected his role strictly to the instructions given by
the Public Prosecutor.

14. It is not merely an overall supervision which the
Public Prosecutor is expected to perform in such
cases when a privately engaged counsel is permitted
to act on his behalf. The role which a private counsel
in such a situation can play is, perhaps, comparable
with that of a junior advocate conducting the case of
his senior in a court. The private counsel is to act on
behalf of the Public Prosecutor albeit the fact that he
is engaged in the case by a private party. If the role of
the Public Prosecutor is allowed to shrink to a mere
supervisory role the trial would become a combat
between the private party and the accused which
would render the legislative mandate in
Section 225
of the Code a dead letter.”

22. Being of this view, this Court upheld the order passed
by the High Court. The said decision is, in our opinion, is
distinguishable on facts. The instant case does not pertain

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to trial or any area by which a private lawyer takes control
of the proceedings. As is evident, an application was filed
by the informant to add a charge under
Section 406 IPC as
there were allegations against the husband about the
criminal breach of trust as far as her stridhan is
concerned. It was, in a way, bringing to the notice of the
learned Magistrate about the defect in framing of the
charge. The court could have done it suo motu. In such a
situation, we do not find any fault on the part of learned
Magistrate in entertaining the said application. It may be
stated that the learned Magistrate has referred to the
materials and recorded his prima facie satisfaction. There
is no error in the said prima facie view. We also do not
perceive any error in the revisional order by which it has
set aside the charge framed against the mother-in-law.
Accordingly, we affirm the order of the High Court in
expressing its disinclination to interfere with the order
passed in revision. We may clarify that the entire scrutiny
is only for the purpose of framing of charge and nothing
else. The learned Magistrate will proceed with the trial and
decide the matter as per the evidence brought on record
and shall not be influenced by any observations made as
the same have to be restricted for the purpose of testing
the legal defensibility of the impugned order.”

10. For the foregoing reasons, the present Revision Application
is bereft of merits and learned Sessions Judge has not
committed any error speaks to the error of law in reaching to
conclusion. The present Revision Application is dismissed.

11. Needless to say that above findings are tentative and
limited for the purpose of deciding present Revision Application.
Learned Sessions Judge will not be influenced by such findings.

(J. C. DOSHI,J)
SATISH

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