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2011 DIGILAW 1442 (RAJ)

Mahesh Kumar v. State of Rajasthan

2011-07-21

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - In this revision petition, filed by the complainant, it is prayed that order dated 1.9.2008 passed by the Addl. Sessions Judge (Fast Track) No. 1, Bikaner in Sessions Case No. 54/2008 may be quashed to the extent of discharging the accused non-petitioners from offence under Sections 307 and 450, I.P.C. 2. Learned counsel for the petitioners submits that upon complaint filed by the petitioner at Police Station Gangashahar. After through investigation, the police filed charge-sheet for offences under Sections 147, 148, 323, 427, 325, 450 and 307, I.P.C. against the accused persons before the Magistrate; and, thereafter, the matter was committed to the trial Court but the learned Addl. Sessions Judge (Fast Track) No. 1, Bikaner after hearing arguments upon framing charge discharged the accused non-petitioners from offences under Sections 307 and 450, I.P.C. and while framing charge for offences under Sections 147, 148, 427, 452, 323, 325, and 325/149, I.P.C. remanded the case to the Court of Chief Judl. Magistrate, Bikaner in exercise of power under Section 228 (1) (a), Cr.P.C. 3. Learned counsel for the petitioner submits that order impugned is totally contrary to the facts on record. The Investigating Officer after through investigation found that offences under Section 307 and other section of the Indian Penal Code are made out and, as per the medical report, the petitioner received serious injury upon the mid-parietal region with clotted blood and injury was inflicted upon vital part of the body and this injury itself is sufficient to frame charge for offence under Section 307, I.P.C. but, ignoring the facts narrated in the investigation by the prosecution witnesses the trial Court discharged the non-petitioners from offences under Sections 307 and 450, I.P.C. which is totally erroneous. 4. Learned counsel for the petitioner further submits that the respondents with an intention to kill the petitioner inflicted the injuries which is corroborated by the oral statements of the prosecution witness as well as medical evidence; but, the learned trial Court did not consider the medical evidence which is no record, therefore, the order impugned may be quashed and direction may be issued to Addl. Sessions Judge (Fast Track) No. 1, Bikaner to frame charge for offence under Section 370, I.P.C. along with other offences under other sections of the Indian Penal Code and trial may be commenced. 5. Sessions Judge (Fast Track) No. 1, Bikaner to frame charge for offence under Section 370, I.P.C. along with other offences under other sections of the Indian Penal Code and trial may be commenced. 5. Per contra, learned counsel appearing on behalf of the respondents vehemently argued that there is no error in the order impugned because the injury which is said to be caused upon the mid-parietal region of the head was found to be simple in nature and, so also, the Addl. Sessions Judge (Fast Track) No. 1, Bikaner gave finding in the order that looking to the nature of the injury it cannot be presumed that there was any intention to kill the injured, therefore, there order is based upon valid reasons and the same does not require any interference. Hence, this revision petition may be dismissed. 6. After hearing learned counsel for the parties, I am of the opinion that intention can be gathered from the facts of the case. In this case, according to facts there is no dispute that 7 cm injury was found upon the head of the petitioner complainant which is evident from the medical injury report and the way in which the occurrence took place and other injuries were caused upon other parts of the body charge under Section 307, I.P.C. was to be framed; but, it appears from the impugned order that the learned trial Court exceeded its jurisdiction and passed order of framing charge as if the Court was finally deciding the matter. The finding of the trial Court recorded in Paras 8 and 9 of the impugned order are nonetheless finding in the nature of ultimate conclusion which cannot be done at the stage of framing charge. 7. The evidentiary value of the material coming on record is required to be assessed and appreciated after recording statements of prosecution witnesses as well as medical evidence in the trial, therefore, in my opinion, the finding of the trial Court with regard to discharging the non-petitioner from the charge of committing offence under Section 307, I.P.C. is totally erroneous because in the investigation clear finding is given that it is a case of attempt to murder. 8. Hence, this criminal revision petition is allowed. Order dated 1.9.2008 passed by Addl. 8. Hence, this criminal revision petition is allowed. Order dated 1.9.2008 passed by Addl. Sessions Judge (Fast Track) No. 1, Bikaner to the extent of non-framing charge under Section 307, I.P.C. is set aside and it is directed that Addl. Sessions Judge (Fast Track) No. 1, Bikaner Shall frame charge under Section 307, I.P.C. along with other charges and commence trial as soon as certified copy of this order is received.Revision allowed. *******