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2006 DIGILAW 1706 (DEL)

VIJAY KUMAR and NAVEEN KUMAR v. STATE

2006-09-22

BADAR DURREZ AHMED

body2006
Judgment BADAR DURREZ AHMED, J (ORAL) 1. This revision petition has been filed inasmuch as the petitioners are aggrieved by the order on charge dated 30.5.1997 as well as the formal charge framed on the same date by the learned Additional Sessions Judge. The charges have been framed against the petitioners under Sections 308/427/34 IPC. The learned counsel for the petitioners stated, at the outset, that he is not challenging the order insofar as the charge under Section 427/34 IPC is concerned. However, he is aggrieved by the framing of the charge under Section 308/34 IPC and it is to this limited extent that this revision petition is being argued. 2. The learned counsel for the petitioners straightaway drew my attention to the impugned order on charge and to paragraph 7 thereof wherein the following is recorded: .“ 7. In the present case it is appearing on record in the testimony of witnesses examined u/s 161 Cr.P.C. and the other material available on record that the parties did have a quarrel earlier on 5.7.95. The matter was compromised before the police. It cannot, thus, be said that there was no previous enmity.” 3. With reference to the aforesaid extract, the learned counsel for the petitioners submitted that the purported quarrel of 05.07.1995 is not mentioned in any of the statements of the witnesses taken under Section 161 CrPC. He further submitted that there is no record of any matter being compromised before the police. In view of this, he submitted that the very basis of framing the charge under Section 308/34 IPC is taken away because it is only on the basis of these purported allegations that the learned Additional Sessions Judge came to the conclusion that there was previous enmity between the parties. 4. The learned counsel for the petitioners then referred to the portion of the impugned judgment wherein the following is recorded: “ The perusal of record go to show that it is true that initially the nature of injury as declared on the MLC by RML hospital is shown a “Simple” with blunt object. However, there is a certificate dated 16.4.1996 being a letter addressed to SHO of P.S. by the RML hospital. It is reported in the said letter that the case had been reviewed by the team of Neuro-surgeons namely Dr. L.N. Gupta and Dr. However, there is a certificate dated 16.4.1996 being a letter addressed to SHO of P.S. by the RML hospital. It is reported in the said letter that the case had been reviewed by the team of Neuro-surgeons namely Dr. L.N. Gupta and Dr. A.K. Srivastava regarding the nature of injuries on the person of injured. It has been opined by them that the nature of injuries is `Grievious'.” 5. He submits that the purported certificate dated 16.04.1996 did not form part of the documents filed by the prosecution along with the challan nor did it form part of the record of the court nor was there any witness cited by the prosecution who would prove this document. Furthermore, he submits that the signature on the purported document dated 16.4.1996, a copy whereof is placed at page 35 of the paper book, is that of one Kuldeep Kumar, for Medical Superintendent, RML Hospital, New Delhi. The original of this purported letter is available on the file of the trial court and I have examined the same. When the same is put against the light, the name of one Dr. Bhushan appears and the same has apparently been concealed by white fluid and on top of it the signature of the said Kuldeep Kumar for the Medical Superintendent has been indicated. In any event, it has further been submitted by the learned counsel for the petitioner that this document is not a part of the record as there is no order passed by the court taking such document on record. 6. The learned counsel for the petitioners lastly submitted that in paragraph 8 of the impugned order, there is reference to a photocopy of a letter dated 19.4.1996. The relevant paragraph reads as under: “ 8. Ld. complainant's counsel Shri R.K. Jain during arguments has filed before me a photocopy of the letter dated 19.4.96. The same goes to show that injured can do simple memorizing but not difficult. He failed on long turn memory span function.” 7. The learned counsel for the petitioner referring to the aforesaid extracts submitted that the purported letter dated 19.4.1996, firstly, is not the original and, secondly, it has been introduced by the complainant at the time of arguments on charge before the learned Additional Sessions Judge and the same ought not to have been looked into as the document did not come from the prosecution. The learned counsel for the petitioners, therefore, submitted that the charge under Section 308/34 IPC which has been framed against the petitioners has so been framed because the learned Additional Sessions Judge has considered all the aforesaid materials which he could not have looked at the time of framing of charge and, therefore, the order requires to be set aside to this extent. 8. The learned counsel for the State was also heard. He could not controvert the fact that nowhere in the statements of witnesses recorded under Section 161 CrPC is it mentioned that there was a quarrel between the parties on 05.07.1995. He was also unable to show that the matter was allegedly compromised before the police. According to him, there is no record of the same. This being the case. The conclusion of the learned Additional Sessions Judge that there was previous enmity between the parties is without any basis. 9. The learned counsel for the State also fairly stated that the purported certificate dated 16.4.1996 did not form part of the challan. He also submitted that no supplementary challan under Section 173(8) CrPC was filed. However, this certificate dated 16.04.1996 was filed alongwith an application moved by the IO requesting that this letter be taken on record. But, there is no order of the court taking this document on record. He also submits that no witness has been cited on behalf of the prosecution who would go to prove this document. Therefore, in my view, under these circumstances, the purported document dated 16.04.1996 ought not to have been considered by the learned Additional Sessions Judge while framing the charge under Section 308/34 IPC against the petitioners. The fact that he did so clearly demonstrates that the order is erroneous and requires to be set aside on this question. 10. As regards the letter dated 19.04.1996, a photocopy of which was handed over by the complainant counsel, the counsel for the State has nothing to state inasmuch as this document did not proceed from the prosecution. The learned counsel submits that the prosecution is not relying upon this letter at all. The fact that the learned Additional Sessions Judge took note of this letter and was, to some extent, influenced by the same, also goes to show that the order, insofar as the charge under Section 308/34 IPC is concerned, is erroneous. 11. The learned counsel submits that the prosecution is not relying upon this letter at all. The fact that the learned Additional Sessions Judge took note of this letter and was, to some extent, influenced by the same, also goes to show that the order, insofar as the charge under Section 308/34 IPC is concerned, is erroneous. 11. At the time of framing charges, the trial court is required to consider only the material produced by the prosecution alongwith its charge sheet and/or supplementary charge sheet. It is not even to look at the documents which the accused may produce in its defence. In the present case, I find that the learned Additional Sessions Judge has transgressed his arena of jurisdiction by looking at documents that do not form part of the record. The learned Additional Sessions Judge has also erred on facts in recording that in the Section 161 statements of the witnesses, there is mention of a quarrel having taken place on 05.07.1995. He has also committed a gross error in noting that the matter was compromised before the police when, even according to the prosecution, there is no such record of any such fight or compromise. 12. In these circumstances, the impugned order is set aside insofar as the charge under Section 308/34 IPC is concerned. As regards the charge framed under Section 427/34 IPC, the same is maintained. Since a proper consideration in respect of the allegations under Section 308 IPC has not been undertaken by the learned Additional Sessions Judge, I am of the view that this matter should be remanded on this question to the learned Additional Sessions Judge for considering arguments afresh on the basis of material on record. This revision petition is allowed in part as indicated above. Interim orders stand vacated.