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2018 DIGILAW 1686 (HP)

Gurdarshan Singh v. State Of H. P.

2018-09-17

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present revision petition is maintained by the petitioners under Section 397/401 of the Code of Criminal Procedure, against the order dated 07.04.2017, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Sessions Trial No.S/7 of 2017, titled as State of H.P. versus Gurdarshan Singh & others with a prayer to allow the present petition. 2. Briefly stating the facts giving rise to the present appeal are that FIR No.62 of 2016, dated 05.06.2016 under Sections, 323, 324, 325, 326, 307, 504 and 506 read with Section 34 of the Indian Penal Code and Section 25(1A) and 30 of the Arms Act, in Police Station, KotKehloor, District Bilaspur, H.P., has been registered against the petitioners and Others. 3. It has been alleged that the allegations against the petitioners are that on 05.06.2016, the dispute arose between the complainant party and the petitioners due to the landed property and raising of retaining wall. It has been alleged that the petitioners have given beatings to the complainantparty by way of iron rod and sword and that petitioner No.2 was armed with sword and the petitioner No.1 was armed with iron road and gun. It has been alleged that during beatings, one Smt. Parminder Kaur wife of Mohan Singh, Rashpal Singh son of Naseeb Singh and Gurinder Singh suffered injuries on their person. Smt. Parminder Kaur has suffered grievous injuries on her arm, which were alleged to have been caused by way of using sword by the petitioners. She suffered injuries while she had to save Gurvinder Singh. She suffered three fracture injuries on her arm. It has been alleged that thereafter, Smt. Parminder Kaur and Rashpal Singh were taken to Civil Hospital, Anandpur Sahib. 4. It has been alleged that Smt. Parminder Kaur was referred to PGI, Chandigarh, where she was operated for the injuries sustained by her. It has been alleged that accused Randhir Singh also lodged FIR No.61/2016, dated 05.06.2016, under Sections 147, 148, 149, 323 and 324 IPC, qua the same incident. 5. It has been alleged that thereafter challan was filed and copy of the challan was supplied to the petitioners and they are facing the trial and that on 07.04.2017, the learned Additional Sessions Judge, Ghumarwin, dismissed the objections raised on behalf of the petitioners at the time of framing of the charge. 6. 5. It has been alleged that thereafter challan was filed and copy of the challan was supplied to the petitioners and they are facing the trial and that on 07.04.2017, the learned Additional Sessions Judge, Ghumarwin, dismissed the objections raised on behalf of the petitioners at the time of framing of the charge. 6. It has been contended that the order dated 07.04.2017, passed by the learned Additional Sessions Judge, Ghumarwin is against the fats as well as law and the same is liable to be quashed and set aside. Further, it has been alleged that the learned Court below has not considered the objections raised by the petitioners at the time of framing of charge on 07.04.2017, especially under Section 307 of the Indian Penal Code. 7. It has been contended that the learned Court below has not considered the fact that since Khasra No.117 over which the incident has taken place belongs to the petitioners. Therefore, it was clear that the complainants themselves had trespassed into the property of the petitioners and the petitioners were forced to act in order to protect their possession over the land of which the petitioners were owners. Therefore, the complainants themselves being aggressors, the petitioners could not be held to have committed any offence, while thwarting the attack launched by the complainant party, much less any criminal charge can be framed against the petitioners. 8. It has been alleged that in the challan submitted in the Court, no opinion has been given by the doctor that the injuries caused to Smt. Parminder Kaur are dangerous to her life. Since the doctor has not given any definite opinion, therefore, no charge under Section 307 I.P.C. can be framed against the petitioners. Hence, order dated 07.04.2017, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. is liable to be quashed and set aside. 9. Heard. 10. Mr. S.D. Gill, learned counsel appearing for the petitioners has vehemently argued that there is no prima facie case to frame the charge under Section 307 of the Indian Penal Code. He has argued that there is no iota of evidence to prima facie come to the conclusion that there was any intention to kill, rather the injury was being caused, which was sufficient to cause death. He has argued that there is no iota of evidence to prima facie come to the conclusion that there was any intention to kill, rather the injury was being caused, which was sufficient to cause death. So, in these circumstances, the charge, as framed by the learned Court below, under Section 307 IPC, is required to be set aside. 11. The learned Additional Advocate General appearing for the respondent/State, has argued that the injury was caused by such a weapon which itself shows that it was a case under Section 307 IPC. 12. The learned counsel appearing for the petitioner in rebuttal has argued that the injury was not caused by the weapon, as alleged such weapon ''Sword'' was brought by the complainant party to attack the accused persons in the land of the accused persons, as it was a boundary dispute and only to save themselves, the accused has snatched away the ''Sword'' from the complainant party. But this fact is not considered by the learned Court below. 13. After going through the evidence, which has come on record, this Court finds that the Court below, while examining the facts, has not taken into consideration the material, which has come on record to conclude that a prima facie case is made out against the accused persons under Section 307 IPC. The learned Court below is of the opinion, but why that opinion was found and what was the evidence or documents on record to affirm that opinion is not at all discussed. Meaning thereby that the Court below has not taken those material and evidence collected by the police into consideration and the charge has been framed in a manner which has caused serious prejudice to the appellant. So, this Court finds that the present is a fit case where the jurisdiction is required to be exercised and the charge, as framed by the learned Court below is required to be set aside by directing the Court below to frame the charge under the relevant provisions of law after analyzing the material before the Court below after affording the parties opportunity of being heard on charge. Thereafter, charge be framed in accordance with law. Needless to say that my observations made hereinabove will have no impact while the learned Court below will reconsider the matter for framing of charge. 14. Thereafter, charge be framed in accordance with law. Needless to say that my observations made hereinabove will have no impact while the learned Court below will reconsider the matter for framing of charge. 14. The parties are directed to appear before the learned Court below on 04.10.2018. 15. In view of the above observations, the petition stands disposed of, so also pending application(s), if any.