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2008 DIGILAW 115 (UTT)

VISHNU v. STATE OF UTTARAKHAND

2008-03-18

DHARAM VEER

body2008
JUDGMENT Hon’ble Dharam Veer, J. This revision u/s 397/401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 22nd October 2002 passed by the learned Additional Sessions Judge, F.T.C.-6 Dehradun in Sessions Trial No. 152 of 2002 State Vs. Vishnu whereby the learned Addl. Sessions Judge after hearing upon learned counsel for the parties has framed charge against the revisionist for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.). 2. Brief facts, which emerge out from the record, are that the complainant Rajendra Singh Rana alongwith Nand Kishore and Dheer Singh Rawat were coming from Rani Pokhari to Rainapur and when they reached at Ranipokhari near the flour mill of one Jagdish then the revisionist/accused alongwith his three other associates were there in a Vikram vehicle No. U.P. 10A/3297 standing at the middle of the road and were abusing the passerby on the road. When the complainant has tried to convince and requested them to clear the way, then the accused/revisionist who was armed with DANDA alongwith his three other associates had attacked on the complainant and the revisionist/accused caused injuries to Nand Kishore with the DANDA with intention to kill him. When the complainant and his companions have tried to save Nand Kishore then the accused/revisionist had also caused injuries with DANDA to him which hit at his hand. The complainant alongwith his companions have tried to catch hold of the assailants and two of the assailants were apprehended on the spot with the DANDA but two of them have succeeded to flee from the place of occurrence. One of the assailants apprehended, was the accused/revisionist Vishnu and the other was Ashwani Kumar. The other assailants who fled from the place of occurrence their names were disclosed by the assailants captured as Chote Lal and Pradeep. With the same averments the first information report was lodged by the complainant Rajendra Rana against the accused persons Vishnu, Ashwani, Chote Lal and Pradeep on 18.05.1993 at about 6:30 p.m. at Police Station Rishikesh about the incident taken place on 18.05.1993 at 6:00 p.m. Distance of the place of occurrence from the Police Station is shown to be 14 kms. 3. 3. The injured Nand Prasad was medically examined by the Medical Officer at S.P.S. Hospital, Rishikesh, Dehradun on 18.05.1993 at 6:45 p.m. and the doctor has found the following injury on his person – 1. One lacerated wound below about 7.0 cm. X 1.0 cm. Bone deep over scalp lateral on left side about 9-10 cm. from left ear tip. 2. Complaint of pain on right thumb. The doctor has advised of X-Ray of the skull and the injury was kept under observation. In the opinion of the doctor the injuries seems to be caused by striking hard and blunt object. 4. The complainant Rajendra Rana was also examined by the Medical Officer on 18.05.1993 at 7:15 p.m. at S.P.S. Hospital, Rishikesh, Dehradun and the doctor has found the following injury on his person :- Painful swelling reddish in colour size about 5.0 cm x 5.0 cm on left wrist joint and complaint of pain. In the opinion of the doctor the injury seems to be caused by striking hard and blunt object. And fresh in duration. X-Ray of left wrist joint was advised. And the injury was kept under observation. 5. After completing the investigation, the Investigation Officer submitted charge sheet against the accused/revisionist Vishnu and the co-accused Ashwani, Chote Lal and Pradeep u/s 307 I.P.C. 6. On 22.10.2002 the learned Addl. Sessions Judge/F.T.C-VI, Dehradun, after hearing learned counsel for the accused/revisionist as also to the learned A.D.G.C. (Crl.), has found that the ingredients for the offence punishable u/s 307 I.P.C. are attracted, therefore, the learned Addl. Sessions Judge framed charge against the accused/revisionist for the offence punishable u/s 307 read with Section 34 I.P.C. 7. Heard Sri Vivek Shukla, learned counsel for the accused/revisionist and Sri Harish Pujari, learned Addl. Govt. Advocated for the State. 8. Sri Vivek Shukla, learned counsel for the accused/revisionist has argued that on the basis of the injuries and the averments made in the first information report there is no offence is made out against the accused/revisionist for the offence punishable u/s 307 I.P.C. He has further submitted that on the basis of First Information Report and the injury report; only the offence punishable u/s 323 I.P.C. is made out against the accused/revisionist. On the contrary Sri Harish Pujari, learned Addl. Govt. On the contrary Sri Harish Pujari, learned Addl. Govt. Advocate has submitted that the injury is on the head of the injured Nand Kishore which is the vital part of the body. The injury was caused by the accused/revisionist with a DANDA with the intention and knowledge and under such circumstances that if the accused by that act caused death, he would be guilty of murder. He has further submitted that the injury was caused by the accused/revisionist- Vishnu with a DANDA with the common intention to kill Nand Kishore on 18.05.1993 at about 6:00 p.m. along with his other associates Ashwani, Chote Lal and Pradeep by pre-planned. The accused/revisionist was caught on the spot with a DANDA in his hand. He has further submitted that the Investigating Officer has recorded statements of the eye witnesses i.e. injured Nand Kishore, Rajendra Singh Rana, Dheer Singh Rawat – shadow of the injured Rajendra Singh Rana u/s 161 Cr.P.C. and after completing the investigation, has filed charge sheet against the accused/revisionist u/s 307 I.P.C. alongwith the co-accused. It is further submitted by the learned Addl. Govt. Advocate Sri Harish Pujari that on the basis of the investigation and the statements recorded by the Investigating Officer u/s 161 Cr.P.C. as also on the basis of the injury report and on the circumstances of the case, the case u/s 307 I.P.C. is fully made out against the accused/revisionist and the learned Trial Court has rightly framed the charge for the offence punishable u/s 307 read with Section 34 I.P.C. against the accused/revisionist. He has further submitted that at the time of framing of the charge the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage. In support of his arguments the learned Addl. Govt. Advocate has sited the judgment reported in 2007 AIR SCW 3683 “Soma Chakravarty vs. State (Th. CBI). The learned Addl. Govt. Advocate has relied on para-19 and 20 of this judgment, which are reproduced hereunder :- 19. Learned counsel for the appellant relied on the decisions of this Court in Union of India and another vs. Major J.S. Khanna etc. Advocate has sited the judgment reported in 2007 AIR SCW 3683 “Soma Chakravarty vs. State (Th. CBI). The learned Addl. Govt. Advocate has relied on para-19 and 20 of this judgment, which are reproduced hereunder :- 19. Learned counsel for the appellant relied on the decisions of this Court in Union of India and another vs. Major J.S. Khanna etc. 1972 (3) SCC 873; State of Maharashtra and others vs. Som Nath Thapa and others, 1996 (4) SCC 659 and L. Chandraiah vs. State of A.P. and another, 2003 (12) SCC 670 and contended that before framing the charges the court must have some material on the basis of which it can come to the conclusion that there is a prima facie case against the accused. In our opinion there was such material before the Court while framing the charge. 20. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.” 9. I have perused the impugned order dated 22.10.2002 passed by the learned Addl. Sessions Judge/F.T.C. VI, Dehradun and have also gone through the material available on the record. Specific role has been assigned in the First Information Report to the accused/revisionist to cause injuries with DANDA to Nand Kishore and Rajendra Singh Rana. The injury is on the head i.e. the vital part of injured Nand Kishore. Sessions Judge/F.T.C. VI, Dehradun and have also gone through the material available on the record. Specific role has been assigned in the First Information Report to the accused/revisionist to cause injuries with DANDA to Nand Kishore and Rajendra Singh Rana. The injury is on the head i.e. the vital part of injured Nand Kishore. After considering the role assigned to the accused/revisionist in the First Information Report and the injury of the injured Nand Kishore which is on the head i.e. the vital part of the body and the other material available on record, the Trial Court is justified in framing charge against the accused/revisionist for the offence punishable u/s 307 read with Section 34 I.P.C. I do not find any irregularity, illegality, or impropriety in the impugned judgment and order. In my opinion, the learned Trial Court, on the basis of the evidence available on the record, has rightly framed the charge for the offence punishable u/s 307 read with Section 34 I.P.C. against the present accused/revisionist. For the reasons recorded above, the revision is devoid of merits and liable to be dismissed. 10. Accordingly, the revision is hereby dismissed. Interim order dated 20.11.2002 passed by this Court is hereby vacated.