Raj Kumar Sharma vs State
2011 Latest Caselaw 2720 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL. REV. P. No. 228/2008

                                       Date of Decision : 20.05.2011

RAJ KUMAR SHARMA                                ...... Petitioner
                                Through:   Ms.Gita Dhingra, Adv.

                                  Versus



STATE                                           ......      Respondent

Through: Mr. M.N.Dudeja, APP Mr.A.S.Sharma, Adv. for the complainant.

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

V.K. SHALI, J. (oral)

1. This is a revision petition filed by the petitioner against the

order dated 18.1.2008 by virtue of which the learned Sessions

Judge had directed the framing of charge against the

petitioner under Section 308 of the IPC.

2. Briefly stated the facts of the case are that one Mr.Abhinav

Sarup Sharma lodged a complaint with the police that on

2.4.2005, he went to drop his cousin sister (Buaji's daughter)

in Ram Nagar, Tilak Nagar. At about 12.30 -1.00 P.M., while

he was returning to his home, the present petitioner Sh.Raj

Kumar Sharma who happens to be his Uncle came in front of

him and hit him on the head with a baseball bat.

3. In the meantime, the grandfather of the complainant Anand

Sarup Sharma also came out and shouted that Raj Kumar

should eliminate the complainant. Raj Kumar is living in the

adjoining portion to his sister's house, who happens to be the

Bua of the complainant and whose daughter he had gone to

drop. Two boys are alleged to have come out from the

residence of Raj Kumar Sharma and started beating the

complainant with leg and fist blows. The complainant started

bleeding due to injuries as he was hit on the head with a

baseball bat. The Uncle and the grandfather of the

complainant caught hold of the two arms of the complainant

while as the boys took out their belt and started hitting the

same over the person of the complainant. The Uncle of the

complainant shouted that since the complainant and his

father are contesting litigation against the assailants

therefore, if the complainant is eliminated, there will be no

one to follow the cases. The wife of Raj Kumar is alleged to

have thrown a brick which hit the complainant. The

complainant was also hit on the back with the help of a

hockey by the grandfather.

4. As a consequence of the entire episode, the complainant is

stated to have suffered injuries which were two Contused

Lacerated Wounds of 2

cms x 0.5 cms and 1.5 cms x 0.5 cms over the mid frontal

region of the scalp and the injuries were opined to be simple.

5. The investigating agency filed a charge sheet and the learned

Sessions Judge on the basis of the statements and

documents on record came to the conclusion that prima facie

a case of attempt to culpable homicide is made out, therefore,

the petitioner along with the other co-accused persons were

charged for an offence under Section 308 IPC. The petitioner

feeling aggrieved by this has assailed the said order.

6. I have heard learned counsel for the petitioner as well as

learned APP and the learned counsel for the complainant who

is also present.

7. The main contention of the learned counsel for the petitioner

is that as the nature of injuries on the complainant are

opined to be simple by the doctor, therefore, no charge u/S

308 IPC can be sustained. The petitioner in order to support

her point has placed reliance on judgments titled Surinder

Kumar Vs. State 1996 V AD (Delhi) 345 and P.K.Ghosh Vs.

State & Anr. 2008 (2) JCC 834. On the basis of these

authorities, it has been contended that as in the present case

as the injuries were simple and there was no intention or

knowledge attributable to the petitioner that it could have

resulted in homicide of the complainant, therefore, the charge

could not have been framed.

8. The learned APP has contested the arguments of the defence

counsel and urged that merely because the nature of injuries

are opined to be simple, it does not warrant the dilution of the

charge from Section 308 IPC to one u/S 323 IPC. It has been

contended that while considering a prima facie case as to

whether a charge under Section 308 IPC is made out against

the petitioner or not only the nature of injury is to be seen

but even other attendant circumstances are also to be borne

in mind.

9. Admittedly, in the present case, the attack on the

complainant seems to be pre-planned as the same is fortified

from the fact that the grandfather of the complainant himself

shouted for taking the life of the complainant so that there is

no one to chase the pending litigation between the petitioner

and his father on the one side and the family of the

complainant on the other.

10. So far as the learned counsel for the complainant is

concerned, he has contended that the nature of the injuries

could not be said to be simple, as admittedly the MLC shows

that the complainant had received six stitches and it was only

providence which saved the complainant, otherwise the

petitioner and his father were bent upon liquidating the

complaint.

11. I have carefully considered the submissions of all the parties

and have also gone through the impugned order as well as

the relevant documents.

12. At the outset, it may be stated that the present petition itself

has become infructuous on account of the fact that it has

been brought to my notice that as on date, the statement of

all the material witnesses including that of the complainant

has already been recorded by the Trial Court, therefore, on

this ground itself, the revision petition can be treated to have

become infructuous because it becomes a question of

appreciation of evidence whether a case of attempt to

homicide is made or not.

13. Having said so, let us examine on the merits of the case as to

whether prima facie case for sustaining the charge under

Section 308 IPC is made out or not.

14. It may be pertinent here to mention that this is not in dispute

that the petitioner had hit with all force with the baseball bat

over the head of the complainant on account of which he

suffered two injuries. The placement of injuries are given in

the MLC as the mid frontal region of the scalp and if a person

is hit with a baseball bat over the head, it can very well be

said that if not the intention the assailant ought to have the

knowledge that the head being the vital part of the body, if hit

on the head with a force, it may cause hemorrhage and the

person concerned may die. The nature of injuries cannot be

decisive factor to decide as to whether an attempt to homicide

is made. As a matter of fact, the injured in a given case may

not yet receive even a single injury yet he may be charged for

attempt. Reliance is placed on Sunil Kumar Vs. NCT of

Delhi 1998 (8) SCC 557.

15. In the instant case, the attending circumstances, namely the

call given by the father of Raj Kumar, the grandfather of

complainant and the injuries clearly show that he had given a

"Lalkara" that Raj Kumar should liquidate the complainant

once and for all. The reason given by him is that the

complainant was chasing the litigation between the assailant

and the family of the complainant. This perhaps has led to

the extent where the Uncle wanted to take the life of his own

Nephew. All these attendant circumstances, notwithstanding

the fact that the nature of injury has been opined to be simple

clearly make out a prima facie case u/S 308 IPC. The attack

on the complainant was not on the spur of moment.

16. Unlike, in the cases which have been relied upon by the

petitioner in the case of Surinder Kumar(supra) where there

was a definite view taken by the learned Judge that it was a

scuffle on the spur of moment between the two parties

resulting in simple injuries. It was in this background that

the learned Single Judge in the case of Surinder Kumar

(supra) observed that the nature of injuries sustained by the

complainant could not have in any manner resulted in the

death of the injured person as the injuries were caused with a

blunt object.

17. The facts of no two cases are similar and merely because in

one particular case in view of the facts of that case and the

attendant circumstances, as well as the nature of injuries

being simple, the Court has taken a view that no case under

Section 308 IPC is made out, does not necessarily mean that

in all cases, where there are simple injuries a case under

Section 308 IPC could not be made out. Such a

generalization would make the job of the Courts to act in a

mechanical manner.

18. Similarly in P.K. Ghosh's case (supra) in the peculiar facts of

that case where the complainant was simply walking, he was

stopped abruptly and hit with hard object on the face and the

head. Thereafter, one of the accused was alleged to have

taken up a stone and started hitting on the petitioner on the

head with a view to kill him, was held as not sufficient to

warrant framing of a charge under Section 308 IPC as the

injuries on the person were simple and were not considered

sufficient to warrant the framing of a charge under Section

308.

19. Facts of the two cases are slightly different than the case in

hand. The intention and knowledge of the offender is to be

gathered from the facts which transpired at the time of

incident and then co-related with the injuries which in every

case need not be grevious, but must necessarily on the vital

part of body which likely to cause death.

20. For the above mentioned reasons, I am of the considered

opinion that both on the question of lapse of time and the

material witnesses being already examined as well as on

merits of the case, I feel that there is no impropriety, illegality

or incorrectness in the order passed by the learned Sessions

Judge, directing the framing of charge against the petitioner

under Section 308 Cr.P.C. Accordingly, the petition is

dismissed.

V.K. SHALI, J.

MAY 20, 2011 RN