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2025 DIGILAW 1052 (ALL)

Abid v. State of U. P.

2025-08-13

NALIN KUMAR SRIVASTAVA

body2025
JUDGMENT : Nalin Kumar Srivastava, J. 1. The present criminal revision has been preferred by the revisionist - Abid to quash the impugned order dated 18.4.2025 passed by Additional Chief Judicial Magistrate, Court No.1, Bijnor in case crime no. 113 of 2020, under Sections 323, 504, 308 IPC, Police Station Nehtour, District Bijnor whereby the Magistrate concerned proceeded to frame charge in the matter. 2. Heard learned counsel for the revisionist, learned counsel for the opposite party no.2 as well as the learned AGA for the State and perused the material available on record. 3. Admit. 4. The facts of the case are that NCR dated 20.2.2020 registered against the revisionist was converted into F.I.R. bearing case crime no. 113 of 2020 under Sections 323, 504 and 325 IPC on 12.4.2020 and after investigation charge sheet was also submitted for the said offences. The revisionist appeared before the trial court and was released on bail, however, vide order dated 18.4.2025 the Court concerned held that charge should be framed under Section 308 IPC alongwith offences under Sections 323 and 504 IPC. 5. Assailing the impugned order, it is submitted by the learned counsel for the revisionist that he has been falsely implicated in this case. From the contents of NCR/FIR and also the statement of witnesses it is crystal clear that there was no intention or knowledge on the part of the revisionist to make assault upon the injured that if his act caused death of the injured he would be guilty of culpable homicide not amounting to murder and more over the doctor, who medically examined the injured, stated in his statement before the Investigating Officer that the injury sustained by the injured was not fatal at all. It is further submitted that the essential ingredients to establish the offence under Section 308 IPC are lacking on the basis of evidence on record. 6. The next argument is that the trial court in an arbitrary manner while hearing on the point of framing of charge suo moto opined that the injury was termed grievous in nature as per the statement of the Medical Officer and the C.T. Scan report. It is also submitted that the supplementary report available on record shows a fracture on nasal spine which was not a vital part of the body. It is also submitted that the supplementary report available on record shows a fracture on nasal spine which was not a vital part of the body. It is further submitted that in the impugned order the Magistrate concerned wrongly interpreted the law on the subject. The opinion expressed by the concerned Magistrate whether the accused person had intention or knowledge to cause death of the deceased by his assault was the subject matter of the evidence in trial and it was also wrongly held that the nose is a vital organ of the body and assault upon the same may have proved fatal. 7. Another limb of the argument is that the Court concerned has totally discarded the legal principles governing the matter of framing of charge and passed the impugned order to face trial under Section 308 IPC as well alongwith Sections 323 and 504 IPC whereas the present case does not travel beyond the scope of Section 323, 504, 325 IPC and offence Section 308 IPC is not made out at all. The present prosecution has been instituted with a malafide intention. 8. Learned counsel for the revisionist further pointed out certain documents and statements on record in support of his contention and urged that the impugned order suffers from infirmity, illegality and lack of judicial mind warranting interference by this Court. 9. Repudiating the submissions made above, the learned AGA and learned counsel for the opposite party no.2 vehemently opposed the prayer and submitted that the nature of injuries, which were caused on the vial part of the body, the injury report, the C.T. Scan report and other relevant document clearly establish that charge under Section 308 IPC was a natural outcome in the light of the aforesaid evidence and it was not a case only under Section 325 IPC. Though charge sheet was submitted for the offence under Sections 323, 325 and 504 IPC but it was well within the jurisdiction of the trial court to frame the charges for the offences which were prima facie made out from the perusal of the case diary and materials collected by the I.O. during course of investigation. The impugned order does not suffer from infirmity, illegality, perversity or lack of judicial mind and revision deserves to be dismissed. 10. The impugned order does not suffer from infirmity, illegality, perversity or lack of judicial mind and revision deserves to be dismissed. 10. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully. 11. In connection with the issue involved herein and before dealing with the submissions made by the learned counsel for the parties, it is desirable to quote the provisions of Section 308 IPC, which are as under : "Section 308. Attempt to commit culpable homicide .- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 12. In this case in the F.I.R. itself it has been mentioned that the accused persons hurled abuses and assaulted the injured Anas. In his statement under Section 161 CrPC the injured Anas has supported the F.I.R. version and has further stated that Abid made an assault upon his nose with the aid of danda due to which his nose started bleeding and accused Sukkhan assaulted him with kicking and fisting. Accused persons also hurled abuses. The injured was medically examined at PHC Nahtaur, Bijnor and four injuries were found upon his body. X-ray and C.T. Scan was advised for injury no.1. In the supplementary report fracture of nasal spine was found and the doctor opined the said injury as grievous in nature. 13. The parameters for framing of charge and discharge are well settled by a catena of judicial precedents. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. 14. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135 , the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused. 15. Moreover, at the stage of framing charges a meticulous and in-depth examination of the evidence is not required. The court is only concerned to determine as to whether there is a prima facie case, meaning a sufficient ground to proceed with the trial or not. A detailed assessment of the evidence's credibility or a conclusive finding of guilt is not necessary at this stage. 16. The definition of Section 308 IPC establishes the essential contents to bring home the charges for the said offence. It is must to show that the accused had such intention or knowledge and under such circumstances that he by his act causes death, he would be guilty of culpable homicide not amounting to murder. In the instant matter the evidence on record is not sufficient to show that the accused / revisionist at any point of time was having such intention or knowledge that the assault might cause death of the injured. Had it been so, he could have made an assault upon his head or any other sensitive part of the body and not upon his face where the nasal area is found. Had it been so, he could have made an assault upon his head or any other sensitive part of the body and not upon his face where the nasal area is found. No doubt the injury upon the nose of the injured caused by use of 'danda' may be termed as 'grievous injury' in view of the seriousness of the said injury and nose is a vital part of human body but this fact alone is not sufficient to bring the act of the accused into the ambit of Section 308 IPC. It appears from the evidence collected by the Investigating Officer that the intention or knowledge on the part of the accused was to inflict grievous injury but it does not denote the intention or knowledge on the part of the accused / revisionist that he by such act might cause death of the injured. A nasal injury, as found in the case in hand, was no doubt a serious injury as reflects from the medical reports but it is incapable to bring the offence under the cover of Section 308 IPC. 17. Reference may be taken of a judgment of Uttaranchal High Court in Sufiyan vs. State of Uttarakhand, 2023 SCC OnLine Utt 1413, wherein in almost similar circumstances the injured was examined by a Medical Board, it has been held that the injuries suffered by the injured were a 'fracture in parietal bone' and a 'fracture in nasal bone' but it was opined that the injuries were in fact grievous in nature but they were never fatal to life. Almost same situation is existing in the present matter. 18. In the case in hand it appears from the evidence on record at this stage that the accused might have kept an intention or knowledge to cause grievous hurt to the injured, as defined in Section 320 IPC but there is no evidence on record to show, even prima facie, that the accused on any point of time was having any intention or knowledge to do away with the deceased by his act of blow. The hurt caused in the instant matter may be grievous in nature and may be kept under the cover of Section 320 IPC which defined the grievous hurt and the instant matter does not travel beyond the scope of Section 325 IPC. 19. The hurt caused in the instant matter may be grievous in nature and may be kept under the cover of Section 320 IPC which defined the grievous hurt and the instant matter does not travel beyond the scope of Section 325 IPC. 19. In view of the above, from a perusal of the material available on record and keeping in view the facts of the case, in my view, at this stage it cannot be said that offence under Section 308 IPC is made out against the revisionist. No evidence has been collected against the revisionist during the course of investigation to establish the offence under Section 308 IPC. At this stage, the evidence on record falls short of establishing the requisite ingredients of Section 308 IPC. The Court concerned erred in passing the impugned order. I find force in the submissions made by the learned counsel for the revisionist. The impugned order suffers from illegality, infirmity, perversity and lack of judicial mind. The criminal revision deserves to be allowed and the impugned order is liable to be set aside. 20. Accordingly, the criminal revision is allowed and the impugned order dated 18.4.2025 passed by Additional Chief Judicial Magistrate, Court No.1, Bijnor in case crime no. 113 of 2020, under Sections 323, 504, 308 IPC, Police Station Nehtour, District Bijnor is set aside and the matter is remitted to the trial court with the direction to proceed to frame charges against the revisionist in accordance with law and in the light of the observations made in the present judgment.