Jaswant Rai And Anr. vs The State And Ors.
2006 Latest Caselaw 964 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The petitioner No. 1 is the injured / victim and the petitioner No. 2 is his brother. The petitioners have challenged the impugned order dated 04.8.2004 to the extent that respondent No. 4 (Raju) has been discharged from the offences under Sections 307/34 IPC whereas the other accused namely Praveen Kumar and Manoj have prima facie been found to have committed offences under Section 307/34 IPC and charges have been framed accordingly as against them.

2. Notices were issued to the respondents. Despite service, apart from the State, none of the respondents 2 to 4 have entered appearances. Since the respondents have been duly served, this revision petition is taken up in their absence.

3 The learned Counsel for the petitioners referred to the order dated 04.8.2004 In that order it is, inter alia, recorded as under : - ?Heard. Perused record. Prima facie case U/s 307/34 IPC made out against accused Praveen and Manoj. As regards accused Raju the allegation is that he came with the other accused. No overt act is attributed to him. It is not alleged that he encouraged or aided other accused in any manner. Merely because he came with the other accused, a common intention under Section 34 cannot be attributed to him. Therefore, accused Raju is discharged.

4. The learned Counsel for the petitioners referred to the aforesaid portion of the impugned order and submitted that the respondent No. 4 (Raju) has been discharged on the erroneous ground that no overt act has been attributed to him and that he was merely present at the scene of crime. He further submitted that the observation that the respondent No. 4 (Raju) is not alleged to have encouraged or aided the other accused in any manner, is entirely contrary to the record. Therefore, he submitted, the order to the extent that it discharges the respondent No. 4 (Raju) is liable to be set aside.

5. The learned Counsel for the petitioners also referred to the chargesheet and other documents accompanying the same. He referred to the statement of petitioner No. 1 (injured/victim) recorded under Section 161 Cr.PC wherein it is specifically stated that Praveen Kumar caught him by his left hand and Raju (respondent No. 4) caught him from his waist and Manoj put out a knife. He also referred to the Section 161 Cr.PC statement of Kshetra Pal who is an alleged eye witness of the incident. In that statement, it is clearly recorded that three boys were holding one boy and giving beatings to him (the petitioner). Out of these three boys, one was holding the boy by his hands and another was holding his waist and the third boy stabbed the knife on his chest. It is, therefore, clear that the respondent No. 4 (Raju), as per the allegations, played an active part in the crime.

6. The learned Counsel for the State has also been heard and he also supports the contentions advances by the learned Counsel for the petitioners on the basis of records available with him.

7. I agree with the submissions made by counsel. The said observations of the learned Additional Sessions Judge in the impugned order dated 4.8.2004 are absolutely contrary to the record. Accordingly, the said order, insofar as it discharges the respondent No. 4 (Raju), is set aside. Charges under sections 307/34 IPC are directed to be framed against the respondent No. 4 (Raju) also and it is directed that trial be conducted de novo after the formal charges are framed.

This revision petition stands disposed of.

A copy of this order also be sent directly to the concerned trial court.