Thakur Rajesh Rana vs State & Ors
2014 Latest Caselaw 440 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Judgment:23.01.2014
+      CRL.REV.P. 404/2013
       THAKUR RAJESH RANA                            ..... Petitioner
                            Through:      Mr.R.P.Luthra and Mr. Sourabh
                                          Luthra, Advocates.
                            versus
       STATE & ORS.                                  ..... Respondents
                            Through:      Ms.Fizani Huaain, APP along
                                          with SI Prakash for the State.
                                          Mr.Madhur Mukul Tripathi, Adv.
                                          for R2 to R- 7 with Mr.Vinod
                                          Sharma, Adv. for R-3.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Petitioner is aggrieved by the impugned order dated 04.6.2013 wherein the accused persons had been discharged for the offence under Section 302 of the IPC.

2 Submission of the learned counsel for the appellant being that there was ample evidence collected by the prosecution to charge the accused persons under Section 302 IPC and if not under Section 302 of the IPC a case under Section 304 was clearly made out. The trial court has on conjectures and surmises discharged the accused persons. 3 Record shows that the FIR had been registered under Sections

307, 302/34 IPC read with Sections 27 and 25 of the Arms Act on the complaint of Thakur Rajesh Rana. As per his version, the grand- daughter of their neighbor Shiv Raj Sharma was friendly with his nephew Thakur Atul Rana due to which the family of Shiv Raj Rana had a grudge with the complainant family. At around 5.30 p.m. on the fateful day i.e. on 18.5.2009 when he had gone to visit his uncle at the Saint Stephens Hospital on telephone he was informed by his mother that Shiv Raj Sharma had come to their shop and had threatened to kill Atul, Rajesh and Anil; a PCR call at 100 number was made his mother. 2-1/2 hours later i.e. at about 8.00 p.m. when the complainant returned to his house and was standing with Anil and Atul, he saw that Shiv Raj Sharma, Kishan Kumar Sharma, Pawan Sharma, Avinash Sharma, Vinod Sharma and Anil Sharma armed with lathies and dandas came their house; Kishan Kumar was also having a revolver; they started beating them. Pawan and Anil hit the complainant with dandas and lathies; Anil Rana was beaten on his head; Atul Rana was attacked with an Ustra. When their brother-in-law Rajesh Kumar (deceased) tried to intervene the accused persons attacked him with rods and dandas and the deceased received injury on his head.

4 The MLC of Rajesh Kumar evidenced that he was brought to the hospital in a dead condition. His MLC has recorded the time as 10.45 p.m. The record however otherwise shows that Rajesh Kumar (deceased) had been brought to the hospital by Atul Rana; Atul Rana had been medically examined at 9.50 p.m. Thus it is clear that the conclusion by the trial court that the deceased was apparently not

present at the spot as his MLC shows time of 10.45 p.m. whereas the MLC of Atul Rana reflects the time of 9.50 p.m. is patently incorrect. The time in the MLC could the time when the patient was actually examined. The opinion on the cause of death is cardiac arrest. This has weighed in the mind of the trial judge to discharge the accused. 5 The oral testimony of the complainant which was recorded prior in time to the opinion given by the doctor had recorded the factum of the deceased having been attacked by the accused with rods and dandas; he had also suffered a head injury. He was a man of 45 years. There is also no evidence which has come on record to show that he was suffering from any previous ailment.

6 As rightly pointed out by the learned counsel for the petitioner, the opinion of a doctor is only one piece of evidence under Section 45 of the Evidence Act; at the same time the statement of the complainant and all other witnesses cannot be ignored; they had testified to the presence of Rajesh at the scene and at his intervention he having been attacked by the accused with rods and dands on his head.

7 The incident as has been built up may not reflect intention/mens rea on the part of the accused persons to have caused the murder of Rajesh Kumar. There was no pre-design or premeditation. However the essential ingredients of Section 304 IPC are prima facie made out. Intention/knowledge on the part of the accused who had been armed with rods and dandas that by their act, attacking the victim on his head (as is evident from the statement of the complainant), this is clearly a case where the trial court has exceeded its jurisdiction and has by

discharging the accused committed an illegality. 8 Reliance by the trial judge upon the judgment reported as 2011 (1) JCC 115 Satya Prakash Vs. State is also misplaced as this was a case where after conviction at the appellate stage the court had made the said observations. This is only the stage of framing of charge. Trite it is to state that at the stage of framing a charge a prima facie view of the case alone has to be taken into account.

9 Impugned order is set aside. The case is remanded back to the Sessions Judge who shall frame charge against the accused persons under Section 304 IPC. It is left to the wisdom and discretion of the trial judge to consider whether the charge be framed under Section 304 Part I or Part II of the IPC.

10 With these directions petition stands disposed of.

INDERMEET KAUR, J

JANUARY 23, 2014 ndn