KURBANBHAI MAKHANBHAI SAMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. Learned APP Mr. K.P. Raval waives service of RULE for respondent No.1, State of Gujarat. Learned advocate Mr. Soeb R. Bhoharia waives service of RULE for respondent Nos.2 to 5. Petitioner is original complainant. He has challenged an order dated 30.11.2009 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) below application Exh.7 filed by the petitioner in Sessions Case No.183/2009. Through the said application, the petitioner wanted sections 307 and 326 be added in the charge-sheet against the original accused who are respondent Nos.2 to 5 herein. It is the case of the petitioner that he is assaulted with an axe which is a deadly weapon causing fracture of the nasal bone. It is, therefore, the case of the petitioner that offence under Section 307 and 326 of Indian Penal Code ought to have been included in the charge-sheet. Since charge-sheet was filed only under Sections 324 and 325 of Indian Penal Code besides other provisions, he filed the said application. The application, however, as already noted came to be dismissed by the impugned order.

(2.) LEARNED counsel for the private respondents, however, submitted that petitioner himself was aggressor and there are other inconsistencies in his version. However, this is a matter of evidence and I am sure that the learned Judge shall examine the same while conducting the trial. At this stage, suffice it to note that prosecution version is that an axe was used while committing the offence and in the resultant blow, petitioner's nose is fractured. If this be the case, offence would be governed by Section 326 of Indian Penal Code. The said provision shall, therefore, be added. Application Exh.8 stands allowed to this limited extent. In view of the above, counsel for the petitioner does not press at this stage for addition of Section 307 of Indian Penal Code. Rule is made absolute to the above extent. Direct service is permitted.