Rajiv Sharma vs State Of Nct Of Delhi & Anr
2015 Latest Caselaw 7043 Del

$~28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : AUGUST 28, 2015
                           DECIDED ON : SEPTEMBER 17, 2015

+              CRL.REV.P. 34/2015 & Crl.M.A.768/2015

       RAJIV SHARMA
                                                         ..... Petitioner
                           Through :   Mr.Abhijat with Mr.Mukesh Vatsa,
                                       Mr.Puneet Mittal, Mr.Neeraj Dev
                                       Gaur and Mr.Arush Sen Gupta,
                                       Advocates.

                           versus

       STATE OF NCT OF DELHI & ANR
                                                        ..... Respondents
                           Through :   Mr.Amit Ahlawat, APP.
                                       Mr.M.R.Singh Sirodia, Advocate,
                                       for R-2.

+              CRL.REV.P. 131/2015 & Crl.M.A.3233/2015

       TEJESHWAR SHARMA
                                                         ..... Petitioner
                           Through :   Mr.Abhijat with Mr.Mukesh Vatsa,
                                       Mr.Puneet Mittal, Mr.Neeraj Dev
                                       Gaur and Mr.Arush Sen Gupta,
                                       Advocates.

                           versus

       STATE(NCT OF DELHI) & ANR
                                                        ..... Respondents
                           Through :   Mr.Amit Ahlawat, APP.
                                       Mr.M.R.Singh Sirodia, Advocate,
                                       for R-2.
Crl.Rev.P.34/15, 3233/15                                   Page 1 of 7
         CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Instant revision petitions have been preferred by the

petitioners to challenge the legality and correctness of an order dated

28.10.2014 by which they along with Sunder Bhati and Jitender Bhati

were charged for committing offences under Sections 452/506/308/34

IPC. Status report and complainant‟s response are on record.

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

examined the file. FIR in question was lodged by an order dated 25.03.09

of learned Metropolitan Magistrate under Section 156 (3) Cr.P.C. In the

complaint case, it was averred by the complainant that he was residing at

House No.152, Ground Floor, Hari Nagar Ashram, New Delhi as a tenant

under one Jyotsna Das. On 22.02.1009 at about 9.45 p.m., the petitioners

along with other assailants while armed with dandas, iron rods, sticks and

revolver committed trespass. After breaking open the door of the house,

they started abusing him and his family members. The petitioners who

were armed with iron rods hit his son Pradeep on his head. They also hit

him on his right arm as a result of which he suffered fracture. Sunder

Bhati having a revolver hit him by a „danda‟. When his daughter

attempted to intervene, she was also mercilessly beaten by the assailants.

All of them fled the spot after extending threats. Upon calling the Police

at 100, PCR van arrived and took the injured to AIIMS. The police,

however, did not take any action.

3. The investigating agency recorded statements of witnesses

conversant with the facts. Upon completion of investigation, a charge-

sheet was filed against the petitioners and two others for committing

offences under Sections 451/506/324/34 IPC. By an order dated

16.10.2012 , learned ACMM took cognizance of the offence against the

petitioners and others for commission of the aforesaid offences. Being

aggrieved, the complainant filed revision petition No.202/12 which was

disposed of by an order dated 29.04.2014 by the learned District and

Sessions Judge and the petitioners and others were directed to be charged

under Section 308 IPC instead of Section 324 IPC. The case was

committed to the Court of Sessions. By the impugned order, the Trial

Court charged the petitioners for committing offences among others also

under Section 308 IPC.

4. To proceed under Section 308 IPC, it is not essential that the

injury actually caused to the victim should be sufficient under ordinary

circumstances to cause the death of the person assaulted. What the Court

has to see is whether the act, irrespective of its result, was done with the

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. If an accused does not intend to cause death or any bodily

injury, which he knows to be likely to cause death or even to cause such

bodily injury as is sufficient, in the ordinary course of nature to cause

death, Section 308 IPC would not apply. It depends upon the facts and

circumstances of each case whether the accused had the intention to cause

death or knew in the circumstances that his act was going to cause death.

The nature of weapon used, the intention expressed by the accused at the

time of the act, the motive of commission of offence, the nature and size

of the injuries, the parts of the body of the victim selected for causing

injuries, severity of the blow or blows and the conduct of the accused are

important factors which may be taken into consideration in coming to a

finding whether in a particular case, the accused can be proceeded under

Section 308 IPC.

5. In the instant case, the complainant was residing as a tenant

in premises in question under one Jyotsna Das. It appears that

subsequently the said premises were purchased by the petitioners.

Apparently, there was no previous animosity or hostility between the

parties before the incident. It is alleged that the petitioners‟ intention was

to get the tenanted premises vacated forcibly. No complaint, whatsoever,

was lodged by the complainant against the petitioners before 22.02.2009.

On that day too, both the parties were booked under Sections 107/150

Cr.P.C. Pradeep and complainant Ram Avtar Sharma sustained injuries

„simple‟ in nature on their bodies. They were medically examined at

AIIMS soon after the quarrel and were discharged on the same day after

prescribing certain medicines. The injuries were „simple‟ in nature caused

by a blunt object. None of the victims was found to have suffered any

fracture. Subsequently, the Investigating Officer sought specific opinion

from the concerned examining doctor who informed that the injuries

sustained by Ram Avtar were "contusion on scalp, abrasion and swelling

on left eye, swelling on lower lip and tenderness on out aspect of right

eye." X-ray report mentions „no fracture seen‟. MLC pertaining to

Pradeep mentions "lacerated wound on scalp on left perital region 2.5 cm,

swelling and tenderness on left shoulder, contusion on left shoulder,

abrasion of upper lip, abrasions on right elbow." X-ray report mentions

„no fracture seen‟. He further informed that the injuries mentioned in both

MLCs were possible in a fight. These were caused by blunt

force/weapon. All the injuries were „simple‟ in nature and were not

sufficient to cause death in the ordinary course of nature.

6. No weapon of offence was recovered during investigation.

No repeated forceful blows were inflicted on any vital body parts.

Revolver allegedly in possession of one of the assailants was not used.

Sharp-side of the weapons allegedly in possession of the assailants were

not used to inflict injuries. In 161 Cr.P.C. statement, Pradeep Kumar

disclosed that in December 2008 Rajeev Sharma had asked to pay rent to

him as he had purchased the premises in question. Apparently, after

purchase of the house, the petitioners had intended to get the rent from the

tenant. Before 22.02.2009 and even on the day of occurrence, no attempt

was made to get the rented premises vacated by throwing the goods out.

Identity of unknown assailants accompanying the petitioners could not be

established or ascertained. Under these circumstances, it cannot be

inferred that injuries were inflicted with the avowed object or intention to

cause death or bodily injury capable of causing death. Merely because a

superficial injury was found on the head of the victim, it cannot be said

that such an injury was caused with the intention to commit culpable

homicide. The materials before the learned Trial Court was deficient to

attract Section 308 IPC. It was a simple case of scuffle/quarrel between

the parties where injuries were inflicted voluntarily and for that the

assailants can be proceeded for causing hurt under Section 323/324 as is

applicable.

7. In the light of the above discussion, the impugned order

framing charge under Section 308 IPC being unsustainable is set aside.

The Trial Court shall proceed against the petitioners for commission of

offences charged by the learned ACMM.

8. The revision petitions stand disposed of accordingly. Trial

Court record be sent back forthwith along with copy of this order.

(S.P.GARG) JUDGE SEPTEMBER 17, 2015 sa