This criminal revision has been filed by the revisionist against the order dated 8.1.97 passed by Vth Additional Sessions Judge, Saharanpur in S.T.No. 219 of 1996.
The brief facts of this case are that on 7.5.93 at about 7 p.m. in village Ramgarh, P.S. Kotwali Dehat, Saharanpur one Dharam Sen had gone to the residence of opposite party nos. 1 & 2 to borrow from them some weights as Dharam Sen had to weigh some grains. Opposite party no.1 Tara Chand refused to oblige Dharam Sen upon which an altercation between the two started at the spot. Thereafter opposite party no.1 pulled out a revolver and opposite party no.2 Vijay Pal took out a knife and on the exhortation of opposite party no.1. opposite party no.2 inflicted a knife blow in the abdominal region of Dharam Sen causing him serious injuries. The incident was seen by the witnesses who were present at the spot. Thereafter both the accused ran away from the place of occurrence. The injured Dharam Sen fell down on the ground and was rushed to the hospital. An F.I.R. was lodged with the police by the revisionist, who is the wife of the injured. It should be mentioned here that opposite party no.2 is the son of opposite party no.1. The F.I.R. was registered by the police under Sections 323, 324, 504 I.P.C. The injured was medically examined at the hospital wherefrom he was transferred to the main hospital B.H.E.L. Ranipur, Hardwar. He was operated upon by the surgeon. He was admitted in the hospital at Ranipur on 8.5.93 and remained there upto 19.5.93 when he was discharged.
The matter was investigated and during the course of investigation, keeping in view the nature of the injuries of the injured, the case was converted under Section 307 I.P.C. also. After conclusion of the investigation a charge sheet under Section 323/307/504 I.P.C. was filed against both the opposite parties. The learned Magistrate took cognizance of the case and thereafter he committed the case to the Court of Sessions vide his order dated 9.4.96. Feeling aggrieved by the committal order a revision was filed before the learned Sessions Judge, Saharanpur by the opposite parties which was dismissed on 11.9.96 by the learned VII additional Sessions Judge, Saharanpur to whose Court the said revision was transferred. At the stage of framing of charges arguments were advanced from both the sides before the learned trial Judge. The contention before the trial judge was that keeping in view the facts and circumstances of the case and nature of injuries no charge under Section 307 I.P.C. can be framed and the opposite parties were liable to be discharged. After hearing the learned Judge held that no case under Section 307 IPC was mad out, but a case under Sections 323, 324, 504 IPC was definitely made out and therefore he framed charges against both the opposite parties under the sections mentioned above and directed that the matter be remanded back to the Court of Chief Judicial Magistrate under the provision of Section 228 (1)(a).
Feeling aggrieved by this order the complainant has filed the present revision before this Court.
I have heard learned counsel for the parties and perused the records.
From the perusal of the F.I.R. it is evident that during the course of altercation both the opposite parties had pulled out deadly weapons and immediately thereafter opposite party no.1 had exhorted opposite party no.2 upon which the opposite party no.2 had inflicted knife blow in the abdominal region of the injured.
I have examined the injury report of the injured which has been filed as annexure-2 to the affidavit filed alongwith the memo of revision. The injuries are as follows:
1.Incised wound 6.0 cm x 1.0 cm x depth not probed, on front upper part of abdomen 8.0 cm below the epigastric notch. Fresh bleeding present. Margins clean cut. Referred for urgent surgical operation.
2.Abraded contusion 5.0 cm x 2.0 cm back of left fore arm 10.0 cm below the elbow joint.
3.Complaint of pain in right arm.
The injured was examined immediately after the incident and there from the injured was shifted to the B.H.E.L. Hospital at Ranipur Hardwar. At this point it has been argued from the side of opposite parties that there was absolutely no need to transfer the injured from Saharanpur to Hardwar and it was done only because the revisionist wanted to get a favourable report obtained in favour of the injured. This argument is not tenable. In such type of cases various factors come into play. Convenience of the injured and his family members, availability of various kinds of need at that place, medical facilities etc. play important roles in the matter and when the life of a person is apparently in danger the family members of the injured take a decision, keeping in view their family circumstances, need of the hour and interest of the injured. Such things are not to be looked into at the time of framing of charges. These types of arguments can be advanced at the time of final arguments of the case while assailing the conduct of the injured and the witnesses of the case. Therefore, these arguments as advanced by the learned counsel for opposite party nos. 1 & 2 have got absolutely no force. From the perusal of the injury report dated 7.5.93 and supplementary report dated 22.5.93 it is crystal clear that the injuries were dangerous to life.
I have perused the order passed by the learned Additional Sessions Judge. At the stage of framing of charges he has discussed all the pros and cons of the facts available in the case diary and examined them critically knowing it fully well that the evidence as recorded by the investigating officer under Section 161 Cr.P.C. is different than the statements of the witnesses which were yet to be recorded under Section 231 Cr.P.C. He has discussed those facts in his order discussions of which were absolutely not required at the stage of framing of charges under Section 227 Cr.P.C.
From perusal of the impugned order it is evident that the learned Judge has given much importance to the motive in the case. The learned judge, it appears, had forgotten that the motive is often locked in the heart of the accused and it may, or it may not come out after conclusion of the trial. The motive is one of the essentials, but it is never the sole ingredient of an offence. To justify framing of charge under Section 307 IPC it is not essential that bodily injury capable of causing death should have been inflicted. It is sufficient in law that if from the action of the accused it appears that he had intention to kill a person and for the purpose he made a positive attempt, but due to good luck of the victim he happened to survive. The intention is related to facts of the case and analysis of the facts is only possible when the witnesses are examined and cross-examined before the Court. These guide lines have not been borne in mind by the learned trial judge when he passed the order impugned herein.
On the basis of the above discussions, I am of the opinion that the orders passed by the learned additional Sessions Judge is not sustainable in the eye of law and is liable to be quashed.
In the instant case a charge under Section 307 IPC also is clearly made out. Therefore, the revision is allowed. The order impugned herein is quashed and set aside.
The matter is sent back to the learned trial Court who will frame a charge against the charge sheeted accused persons under Section 307 IPC also alongwith other charges which according to the learned Judge appears necessary to be framed, keeping in view the facts contained in the case diary.
The matter is old. The learned trial Judge is directed to dispose of the case at the earliest possible and preferably within a period of six months from the date he receives a certified copy of this order. The proceedings were stayed by this Court. The stay stands vacated.
Order Date :- 26.11.2010 IA