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2006 DIGILAW 3166 (PNJ)

Gopi Chand v. Davender Mangla

2006-08-07

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The present revision has been filed by complainant Gopi Chand challenging the order passed by Additional Sessions Judge, Faridabad on 24.7.1999, whereby the respondents were discharged of offences under Sections 307/148/149 IPC. 2. A criminal complaint under Sections 307/148/149 IPC was filed by the complainant against the accused. It was alleged that he along with others was an employee in the factory M/s. Mangla Udyog. The employees sat on dharna in front of the factory for 24 hours on 29.1.1990 for acceptance of their demands. At the time, when the gate meetings were held, owners of the factory, accompanied by their henchmen, started throwing glass bottles and stones on the employees besides firing some gun shots. Luckily, none of the employee was hit on account of the firing of shots. The District Committee of the employees decided to lead a powerful procession on 9.2.1990 in support of their demands. When they were proceeding towards the gate of the factory, the owners of the factory, along with their henchmen, fired gun shots towards the employees. As a result, four labourers received gun shot injuries. Accused Virender Mangla fired gun shot towards Sher Singh s/o Bhajan Lal, the pellets of which hit him on his head and chest. Davinder Mangla again fired towards Gopi Chand s/o Chet Ram, who received three pellet injuries on his person. Nandan s/o Ram Rattan was hit on account of firing of shots by Davinder, Virender and Sita Ram. Similarly, Balbir s/o Udey Singh was injured at the hands of Virender and Narender. The accused had caused injuries to the complainant and his companions Sher Singh, Nandan and Balbir with an intention to kill them. The complainant, thereafter, went to the Police Station to lodge a report but it was all in vain. Left with no option, he filed the present complaint on 10.4.1990. 3. After recording preliminary evidence, the Magistrate found that there was substance in the allegations levelled in the complainant against the accused Davinder Mangla, Virender Mangla, Sita Ram and Narender. Accordingly, they were ordered to be summoned to face trial under Sections 307/148/149 IPC. However, the complaint was dismissed against accused Ram Pal, Mohinder Singh, Surinder Singh, Danveer Singh, Sunil and Amar Singh Dagar as the allegations made against them were found to be not substantiated. 4. Accused Narender Singh was reported to have died. Accordingly, they were ordered to be summoned to face trial under Sections 307/148/149 IPC. However, the complaint was dismissed against accused Ram Pal, Mohinder Singh, Surinder Singh, Danveer Singh, Sunil and Amar Singh Dagar as the allegations made against them were found to be not substantiated. 4. Accused Narender Singh was reported to have died. Accordingly, his name was deleted from the array of the accused. Accused Sita Ram could not be arrested and he was declared a proclaimed offender. However, accused Davinder Mangla and Virender Mangla appeared in the complaint and they were released on bail. The case was, thereafter, committed to the Court of Sessions. 5. At the time of consideration of the case for the purposes of framing of charge, it was contended on behalf of the accused that the evidence adduced by the complainant did not prima facie disclose commission of offences punishable under Sections 307/148/149 IPC. The accused, accordingly, prayed for their discharge. 6. After hearing counsel for the complainant and the accused, Additional Sessions Judge, Faridabad vide impugned order dated 24.7.1999 discharged the accused on the ground that the complaint was filed as late as on 10.4.1990, whereas the incident was of 9.2.1990. It was also held that the allegations made in the complaint did not disclose a prima facie case as the evidence adduced was meagre and insufficient and further that the FIR No. 69 dated 9.2.1990, charge-sheet dated 12.1.1991 and final judgment delivered on 25.11.1998, prima facie showed the false implication of the accused persons in the incident. Besides, it was observed that the complainant filed the present complaint not only as an after-thought but also as counter-blast to the criminal case registered against him and others at the instance of the accused. 7. Counsel for complainant Gopi Chand has submitted that on the facts and circumstances of the case, the accused respondents ought to have been charged under Sections 307/148/149 IPC. The lower Court vide the impugned order erred in coming to the conclusion that no case was made out against the accused for which they were required to be charged. 8. 7. Counsel for complainant Gopi Chand has submitted that on the facts and circumstances of the case, the accused respondents ought to have been charged under Sections 307/148/149 IPC. The lower Court vide the impugned order erred in coming to the conclusion that no case was made out against the accused for which they were required to be charged. 8. Counsel for the accused respondents, per contra, submitted that in respect of the same incident, FIR was registered at the instance of the accused against the complainant and others wherein they were charged and finally convicted and that the present complaint had been instituted by the complainant at a late stage, which was not only after-thought but also as a counter-blast to the two criminal cases earlier registered at the instance of the accused. 9. Respondent Nos. 5 to 10, namely, Ram Pal, Mohinder Singh, Surender Singh, Danveer Singh, Sunil and Amar Singh Dagar were not summoned initially when Judicial Magistrate Ist Class, Palwal passed the order on 17.7.1995, whereby only four accused, namely, Davinder Mangla, Virender Mangla, Sita Ram and Narender were summoned. The said order passed by the Magistrate whilst not summoning respondent Nos. 5 to 10 remained unchallenged by the complainant. He cannot, now, agitate for charging them to face the trial of the case. 10. Respondent No. 4 had died and his name was deleted from the array of the accused by the Magistrate on 8.9.1995. Similarly, accused No. 3 Sita Ram had been declared proclaimed offender. Till date he has not been arrested. Only when he is there before the Court, he can be charged. Coming to the case of the prosecution against respondent Nos. 1 and 2, namely, Davinder Manga and Virender Mangla respectively, it may be seen that both of them were armed with fire arms and had resorted to firing. The shots fired by Davinder Mangla hit Gopi Chand complainant. He received three pellet injuries, one on the head and one each on the two shoulders. Similarly, Virender Mangla was alleged to have fired gun shot hitting Sher Singh on his head and chest. Dr. S.S. Singal, who was examined during the recording of preliminary evidence as PW-3 proved the medico-legal reports in respect of Gopi Chand petitioner, Sher Singh, Nandan and Balbir. Similarly, Virender Mangla was alleged to have fired gun shot hitting Sher Singh on his head and chest. Dr. S.S. Singal, who was examined during the recording of preliminary evidence as PW-3 proved the medico-legal reports in respect of Gopi Chand petitioner, Sher Singh, Nandan and Balbir. The ocular account of the occurrence was deposed to by complainant Gopi Chand as PW-1 and Ghasita Ram as PW-2. 11. Coming to the objection of the accused that in respect of the same incident, FIR No. 69 dated 9.2.1990 was registered at Police Station City, Palwal against the petitioner and others under Sections 148/149/353/452/427/323/332 and 506 IPC, that by itself is no ground in discharging the accused. As per the complaint, the complainant had approached SHO Police Station City, Palwal, who did not allow the registration of the criminal case. Left with no option, the complainant filed the present private complaint on 10.4.1990. Whatever delay occurred in filing of the complaint will be explained by the complainant during the trial of the case. For the present, his case cannot be thrown out on the ground that it were the accused, who had lodged the FIR or that the complaint was filed much later or that it was after-thought or as a counter-blast. Similarly, the fact that for an another incident, which had taken place in the factory premises on 29.1.1990 in respect of which FIR No. 41 was registered on the same day at the instance of the accused against six persons of the complainant party including PW-2 Ghasita Ram, is no ground to conclude that the present complaint has been filed as a counter-blast to the same. Moreover, quality of evidence led by the prosecution for the purposes of consideration of the case for framing the charges cannot be commented upon or criticized. For the time being, only prima facie evidence had to be seen which if found sufficient, would impel the Court to frame charges against the accused. The same cannot be appreciated and considered at this stage which will be done only at the time of final decision of the case. At the time of consideration of the case for the purposes of framing of the charges, even a strong suspicion is sufficient. If the evidence shows that the accused has committed the offence, he has to be charged for the same. 12. At the time of consideration of the case for the purposes of framing of the charges, even a strong suspicion is sufficient. If the evidence shows that the accused has committed the offence, he has to be charged for the same. 12. In State of Orissa v. Debendra Nath Padhi, 2005(1) RCR(Criminal) 297 the Apex Court held that at the time of framing the charge, the accused has no right to produce any material. In the present case the trial Court took into consideration the charge-sheet dated 12.1.1991, judgment dated 25.11.1988 as well as FIR No. 69 dated 9.2.1990 while discharging the accused. All these documents were placed on record by the accused. The approach of the lower Court in taking those documents, produced by the accused, into consideration in discharging the accused was, thus, not permitted by law. 13. Resultantly, the present revision is partly accepted. The order dated 24.7.1999 passed by Additional Sessions Judge, Faridabad in discharging respondent Nos. 1 and 2, namely, Davinder Mangla and Virender Mangla is set aside. The Court is directed to proceed with the trial after charging the said accused for the offences made out against them. Revision qua respondent Nos. 5 to 10 is devoid of any merit and is dismissed. Revision filed against Narender, respondent No. 4, is not maintainable while in respect of Sita Ram, Respondent No. 3, no orders are required to be passed for the time being. 14. Revision is accordingly disposed of.