Smt Narinder Kaur Oberoi & Ors. vs State & Anr.
2015 Latest Caselaw 1887 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : FEBRUARY 23, 2015
                          DECIDED ON : MARCH 04, 2015

+      CRL.REV.P. 289/2014 & CRL.M.A.No.7916/2014
       SMT NARINDER KAUR OBEROI & ORS.                  ..... Petitioners
                          Through :   Mr.Sanjeev Anand, Advocate with
                                      Mr.Yakesh Anand, Mr.Arush
                                      Khanna, Mr.Murari Kumar &
                                      Ms.S.Anand, Advocates.

                          VERSUS

       STATE & ANR.                                    ..... Respondents
                          Through :   Mr.Navin K.Jha, APP.
                                      Mr.Mohit Mathur, Advocate with
                                      Mr.Gurbaksh Singh, Advocate for
                                      R2.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The instant revision petition has been preferred by the

petitioners to impugn the legality and correctness of an order dated

11.04.2014 of learned Additional Sessions Judge by which charge under

Sections 323/325/341/308/34 IPC was ordered to be framed against them.

The petition is contested by respondent No.2.

2. I have heard the learned counsel for the parties and have

examined the filing including the authorities relied upon by them.

3. Admitted position is that both the parties are closely related

to each other and live separately in the same building. A religious

function was organized on 18.05.2012 and many relatives including both

the parties participated therein. It appears that a dispute arose between the

parties over possession of mezzanine floor. Both the parties claimed

themselves to be the owner-in-possession of mezzanine floor in the

building. Undisputedly, in the said quarrel people from both sides

sustained injuries and they were taken to Jai Parkash Narayan Apex

Trauma Centre (AIIMS) for medical examination. After requisite

treatment, injured persons from both the sides were discharged. Injuries

sustained by respondent No.2 were opined 'simple' in nature whereas

injuries sustained by his son Bhupender Singh were opined as 'grievous'.

Other injured persons sustained 'simple' injuries on their body. It is also

not denied that the incident was reported to the police. However, when

the police went to the hospital, they declined to record their statements.

The police was informed that they would settle the dispute amicably on

their own. Apparently, no proceedings were initiated against any of the

parties that day.

4. It seems that the matter could not be resolved/settled and on

21.05.2012, both the sides lodged complaints with the police.

Consequently, two cross FIRs bearing Nos.65/12 and 66/12 were

registered at Police Station Greater Kailash, Part-I. The instant revision

petition pertains to FIR No.66/12 registered under Sections

323/325/341/34 IPC. Investigation was carried out. After recording

statements of the witnesses conversant with the facts, a charge-sheet for

commission of the aforesaid offences was filed in the court of learned

Metropolitan Magistrate. It is relevant to note that respondent No.2 also

filed complaint No.62-A/01/2012 under Section 190 Cr.P.C. before the

learned Metropolitan Magistrate. Status report was called from the police

which revealed that no offence under Section 308 IPC was made out

against the petitioners. The learned Metropolitan Magistrate was of the

view that, prima facie, offence under Section 308/34 IPC was made out

against the petitioners and by an order dated 06.03.2013, they were

summoned accordingly. The petitioners did not challenge the summoning

order. After committal of the case to the Court of Sessions, by the

impugned order, the petitioners were charged under Section 308 IPC also.

5. The petitioners' counsel urged that ingredients of Section 308

IPC are not attracted. There was no material before the Trial Court to

proceed against the petitioners for commission of offence under Section

308 IPC. Learned counsel for respondent No.2 vehemently urged that

there is no illegality or irregularity in the impugned order and the

petitioners have been rightly charged under Section 308 IPC. The

petitioners along with their associates were armed with various weapons

including an iron rod. A blow was given on the complainant's head with

the iron rod. The fatal blow could be averted due to turban on the head.

The petitioners had planned attack on the complainant to eliminate him

and had associated 'outsiders' also. Respondent No.2 was attacked with

an iron rod and his son was beaten severally as a result of which he lost

his teeth. Summoning order of learned Metropolitan Magistrate remained

unchallenged and has attained finality. At the stage of framing of charges,

the trial court is enjoined to assess, evaluate and weigh the prosecution

evidence only to see if a prima facie case exists. Physical hurt is not a

necessary pre-requisite for invoking the provisions of Section 308 IPC.

6. Offence punishable under Section 308 IPC postulates doing

of an act with such intention or knowledge and under such circumstances

that if one by that act caused death, he would be guilty of culpable

homicide not amounting to murder. An attempt of that nature may

actually result in hurt or may not. What the court is to see whether the act

irrespective of its result, was done with the intention or knowledge and

under circumstances mentioned in Section 308 IPC. It depends upon the

facts and circumstances of each case whether the accused had the requisite

intention or knowledge. The nature of weapon used, the intention

expressed by the accused at the time of act, the motive for commission of

offence, the nature and size of injuries, parts of the body of the victim

selected for causing the injuries and severity of blow and blows are main

factors that may be taken into consideration in coming to ascertain the

requisite intention or knowledge. In the instant case as discussed above,

the parties were closely related to each other and had participated together

in a religious function organized by the petitioners in the said building. A

dispute occurred all of a sudden over possession of mezzanine floor which

both the parties claimed that it belonged to them. A sudden quarrel took

place at the spot in which both the parties sustained injuries. They were

taken to hospital and were medically examined. All of them were fit to

make statements. Despite that, none of the parties opted to lodge any

complaint with the police and decided to resolve the dispute amicably

through the intervention of the relatives. FIRs were lodged after a

considerable delay of three days when the matter could not be settled.

None of the parties sustained injuries on any vital organ by a deadly

weapon. No weapon of offence whatsoever was recovered during

investigation. Injuries sustained by the complainant's son opined

'grievous' were on his nose and because of loss of teeth. Charge-sheet

was filed for various offences excluding Section 308 IPC. Statements of

material witnesses i.e.Bhupender Singh recorded on 22.05.2012; Ravneet

Kaur, his wife on 06.08.12 and Ravinder Kaur- complainant's wife on

06.08.12 under Section 161 Cr.P.C. did not reveal use of iron rod by the

petitioners to inflict injuries on the complainant's head. There was no

previous enmity between the petitioners and respondent No.2 and there

was no pre-mediation. It was a sudden scuffle between the parties. No

repeated blows on vital body parts were inflicted.

7. Considering all the above referred circumstances, it can

safely be inferred that the petitioners at no stage had intention or

knowledge to commit offence under Section 308 IPC. In the clash that

occurred without any pre-planning, injuries were inflicted for which the

petitioners can be prosecuted for voluntarily causing hurt to the victims.

Apparently, there was no cogent material on record before the trial court

to charge the petitioners under Section 308 IPC. Consequently, they are

discharged for the offence punishable under Section 308 IPC. However,

they shall face trial for the other offences for which they have been

charged.

8. The revision petition stands disposed of in the above terms.

CRL.M.A.No.7916/2014 also stands disposed. Trial Court record (if any)

along with a copy of this order be sent back forthwith.

(S.P.GARG) JUDGE MARCH 04, 2015 sa