Shiv Shankar And Ors. vs State
1994 Latest Caselaw 730 Del

JUDGMENT

Arun Kumar, J.

(1) By this petition under Section 397, 401, 482 Cr Indian Penal Code the petitioners have challenged an order dated 1.8.1994 by which charges were framed against the petitioners under sections 308,452,325,323,506,34 1.P.C.

(2) It is alleged in the F.I.R. that on 3.11.1992 at about 4.20 P.M., Kumari Saraswati, daughter of Shri Surat Singh was in her house in Panna Mamurpur, Narela, Delhi when petitioners No-1,2,3 & 5 reached there , (bare handed) and started beating Saraswati and dragging her. Her mother Smt. Om Wati and her aunt Krishna tried to save her. In the meantime it is alleged that petitioner No.4 carrying iron rods, 'jalli' sword and lathi came there and distributed the weapons to the other petitioners. Her mother and aunt were also beaten. Her father Sh. Surat Singh also reached there and he was also injured by the petitioners.

(3) The English translation of the statement of Kumari Saraswati who lodged the report and which contains the details of the occurrence is as follows:- "1am living at the above said address with my parents and I am studying in 12th class in a school situated at Nahra (Haryana). Today on 3.11.92 at about 4.20 p.m. I was present at my house when our neighbours Shiv Shankar son of Sh.Kundan.Lal, Satya Parkash son of Sh.Kundan, Virender son of Radhey Shyam and Ashok son of Shiv Shankar came to our house and started beating me and dragging me out and my mother Omwati and my aunt Krishna wife of Rampat came and started rescuing me when in the meantime Narender son of Shri Shiv Shankar came there carrying in his hands some iron rods, "jelly", sword and lathi and distributed the same among themselves. The above said persons with their respective weapons started beating my aunt, mother and me. In the meanwhile my father Shri Surat Singh also reached home after attending his duty. On seeing him, Shiv Shankar shouted saying that he has also come, kill him and that he shall see himself. On hearing this, the above said persons left us and started beating my father. My father suffered injuries on his head with the above said weapons and blood started oozing from his head and he became unconscious and fell down and they inflicted several injuries on several parts of body while he was lying down. In the melee I suffered injuries, injuries on head and other parts of body, mu aunt Krishna on the head and other parts of the body and my mother Omwati also received injuries on the right wrist, left hand and back. This attack has been made by them due to old grievance which is their old habit. Then the above said persons after inflicting injuries on us and while leaving Shiv Shankar said, "Today it is enough, they are to be killed later on". This statement is given by me in full senses. They be tried according to law. Statement has been heard. The same is correct."

(4) On the basis of the above material the learned Addl.Sesions Judge framed charges under Sections 308/462/506/325/323/34 Indian Penal Code on 1.8.1994

(5) The grievance of the learned counsel for the petitioners is that on this material a charge under section 308 Indian Penal Code could not have been framed. It is submitted that as per the medical report the nature of injuries is:- Injuries on Surat Singh 1.Lacerated wound right side frontal region 2" X 1 and half inch. 2. Punctured wound in right ankle. 3. Abrasion on posterior side of left shoulder and swelling on lower back. He was stated to be smelling of alcohol. Injuries were found to be simple,caused by blunt weapon. Injuries on Om Wati Swelling and tenderness in right fore- arm. Injury was found to be grievous caused by blunt weapon. Injuries on Saraswati 1. Small lacerated would vertex supra, 2. Swelling right fore-arm 3. Swelling left hand palm. Injuries were found to be simple caused by blunt object. Injuries on Krishna 1. C.L.W. vertex 2 cm X 1 cm bone deep. Injury was found to be simple caused by blunt object."

(6) For such injuries section 308 Indian Penal Code cannot be invoked according to the learned counsel for petitioners. The nature of injuries is such that at best sections 323, 325 Indian Penal Code could be applied. He has turner heavily relied upon the alleged statement of accused Shiv Shankar at the time of leaving the house of the victims after the incident that "Today it is enough, they are to be killed later on". On the basis of this statement it is submitted that it cannot be said that the accused had any intention to kill. Therefore, it is submitted that no charge under section 308 Indian Penal Code could be framed.

(7) The learned counsel for the petitioners has relied on Jangir Singh & Others vs. State of Punjab, 1987(1) C.L.R 714. In that case injury was inflicted on the head of the injured by reverse side of a gandasa. The injury was opined to be simple as per medical report. It was held that the accused could not be attributed the knowledge that in case of death result- ing from said injury, they would be guilty of murder or culpable homicide not amounting to murder. Charge under section 308 Indian Penal Code was held to be unsustainable.

(8) On the other hand the learned counsel for the State has urged that the way the offence was committed and the number of persons who went to the house of the victims to commit the crime and the fact that the accused had weapons with them while inflicting the injuries shows that the charges have been rightly framed. The statement of Shiv Shankar while leaving the scene of occurrence that it was enough for that day and they would be killed next time is not enough to exonerate the petitioners of charge under section 308 Indian Penal Code The learned counsel for the State has cited Jai Narain vs. Ziley Singh etc., 1982 C.C.C. 100 which is judgment of this court to submit that at the time of framing of charge prima facie case is to be seen. A strong suspicion is enough for purposes of framing a charge. It was observed:- "THE only question to be considered at this initial stage is whether there is a prima facie case against the accused. The test is whether there is 'sufficient ground The statment for proceeding against the accused' and not whether there is sufficient ground for his conviction. A 'strong suspicion' is enough for 'presuming that the accused has committed an offence' and ordering that he be tried. The principle that the accused is presumed to be innocent and should be given the benefit of the doubt has not application at this stage. Nor is any 'weight to be attached to the probable defense of the accused'. Ramesh Singh's case is very explicit on all these points."

(9) I have given my careful consideration to the rival contentions. The manner of execution of the crime in this case, the nature of weapon in possession of the accused persons leave no doubt in my mind that the charges have been rightly framed in this case. Of course, it would have been better if the learned Additional Sessions Judge had indicated in the order his mind, that is, the basis which led him to frame the charges against the accused persons. But the conclusion cannot be faulted. Therefore, I do not wish to interfere with the order.

(10) The learned counsel for the petitioners has conveniently omitted reference to the following words in the beginning of the statement of Saraswati: " On seeing him (Surat Singh, one of the victims), Shiv Shankar shouted saying that he has also come, kill him and that he shall see himself". Further the accused, are neighbours of the injured. According to the F.I.R. four of them came to the house of victims and started beating the ladies. The accused persons had with them iron rods, jelly, sword and lathi. They kept on beating and dragging the ladies. When Surat Singh came he was beaten up. He fell down. Beating continued. Assuming that later on the injuries did not turn out to be fatal or such which could lead to death, it cannot be said that even the charge cannot be framed. In the face of the statement attributed to Shiv Shankar on the arrival of Surat Singh at the scene of occurrence, it cannot be said that even a charge ' under section 308 Indian Penal Code could not beframed. The statment of Shiv Shankar alleged to have been made while leaving the scene has to be seen in the light of all the other facts on record.

(11) The result is the petition fails. The same is dismissed.