Delhi High Court
State vs Abdul Samad & Anr. on 11 February, 2016
Author: Pratibha Rani
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 11th February,2016
+ CRL.REV.P. NO.78/2010
STATE ..... Petitioner
Through: Ms.Alpana Pandey, APP for the State
versus
ABDUL SAMAD & ANR. ..... Respondents
Through: None.
PRATIBHA RANI, J. (Oral)
Crl. M.A.1676/2010
1. For the reasons stated in the application, the delay of 51 days in filing
the revision petition is condoned.
2. Application stands disposed of.
CRL.REV.P. NO.78/2010
1. The State has preferred this revision petition in the year 2010
impugning the order dated 04.08.2009 whereby the learned ASJ formed an
opinion that prima facie no offence under Section 308/34 IPC is made out
against the accused persons. The other offences mentioned in the
chargehsheet being triable by the Court of Magistrate, the file was ordered to
be sent to the learned ACMM, Dwarka.
2. Ms. Alpana Pandey appearing on behalf of the State has submitted
that in this case the offence committed by the accused persons is prima facie
established from the statement of Smt. Saroj Devi as well as statement of the
injured. Thus, learned ASJ erred in discharging the accused persons for the
offence punishable under Section 308/34 IPC.
3. At the outset it is necessary to mention that the date of occurrence
in this case is 01.07.1996. The FIR in this case has been recorded on
28.09.1998 i.e. after the period of more than 2 years. On filing of the
chargesheet and after compliance of Section 207 Cr.P.C. the case was
committed to the Court of Sessions but the learned ASJ in his order dated
03.02.2005 noted that the learned MM has not complied with Section 475
Cr.P.C. and Rule 36 (F) Central Reserve Police Force 1955.
4. Thereafter, learned MM complied with the requirements of Section
475 Cr.P.C. and Rule 36 (F) Central Reserve Police Force 1955 and
committed the case to the Court of Sessions.
5. Learned ASJ after hearing the State and the accused persons on the
point of charge, ordered discharge of the accused persons for the offence
punishable under Section 308/34 IPC for the following reasons:
"As per facts pleaded by prosecution in instant case, the scuffle
was going on between the accused persons when one of the
accused suddenly moved the girl to his front to avoid the fist
blow of his opponent. Thereafter the girl was thrown on the
other accused who threw her back. The entire episode occurred
on spur of moment and there was admittedly no premeditation
to commit any such injury as is envisaged under Section 308
IPC on the injured. Neither the accused persons were armed
with any weapon nor there is anything to show that they had
acted with such intention or knowledge and under such
circumstances, that if by their act they had caused her death,
they would be guilty of culpable homicide not amounting to
murder. The major injury sustained by the girl was only on her
leg which appears to have got fractured when accused persons
while fighting fell on her.
In view of these facts, I am satisfied that no offence under
Section 308 IPC is attracted against both the accused persons.
The other offences for which the accused persons have been
sent for trial are exclusively triable by the Court of a
Magistrate. Hence, the file be placed before the learned
ACMM, Dwarka Courts, Delhi for 06.08.09 with directions to
either keep the same with him for trial or to assign it to the
Court of any other Metropolitan Magistrate for trial as per law.
Both the accused are also directed to appear before the Court
of Ld. ACMM, Dwarka Courts on 06.08.09 at 10 AM."
6. In the year 2010, the State impugned the order on charge on the
ground that the case under Section 308/34 IPC was prima facie made out
against both the accused persons. The revision petition had been pending for
almost 6 years and has now come up for hearing.
7. During the pendency of this revision petition LCR was also attached,
as a result of which trial could not proceed. Thus, as on date in respect of an
incident that had taken place on 01.07.1996, even after two decades though
the charge has been framed by learned MM on 10.08.2009, prosecution is
yet to lead its evidence.
8. The question now to be considered by this Court is whether on the
basis of material adduced by the prosecution the offence under Section
308/34 IPC is prima facie made out against the accused persons.
9. The reasons given by learned ASJ for discharging the accused persons
for the offence under Section 308/34 IPC have already been noted above.
10. The MLC of the injured child reveals as under:
"fracture in shaft femur right leg.
Shaft femur till radiologic callus formation and proper fracture
alientment. The Pt was given 1½ hip spica after 3 wks of 90/90
traction.
# BB rt. leg was treated by B/K pop cast for the first 3 wks. B/K
cast was incorporated in spica in 3 wks."
11. The history of the injured recorded on the MLC is of fall of one
person on the child. FIR has been registered after a period of 2 years on
the basis of statement of mother of the injured child wherein she has stated
that on 01.07.1996 she has gone to the milk booth, CRPF alongwith her 5½
years daughter. Two persons namely Ct. Naveen Kumar and Ct. Abdul
Samad were scuffling with each other and during scuffle, to avoid a fist
blow Ct.Naveen Kumar lifted her daughter and put her in front of him. As a
result of which her daughter received injuries.
12. It may be noted that on the basis of statement made by the mother of
the injured, FIR was registered for the offence under Section 325/336/34
IPC. Perusal of the MLC shows that the child received grievous injuries i.e.
fracture in shaft femur right leg.
13. The history of fall of a person on a girl given to the doctor after the
occurrence, the nature of injury suffered by the injured child, it cannot be
said that the act of the accused was with intention or knowledge to commit
culpable homicide not amounting to murder so as to justify framing the
charge under Section 308/34 IPC.
14. After taking into consideration the MLC as well as the statement of
victim and her mother, I am of the considered view that the ingredients for
framing of charge under Section 308/34 IPC against the respondents are not
even prima facie made out.
15. Since, the impugned order passed by learned ASJ does not suffer any
illegality, infirmity or irregularity, no interference is warranted by this Court
in exercise of revisional jurisdiction.
16. CRL. Revision Petition 78/2010 is hereby dismissed.
17. Copy of the order be sent to the Trial Court alongwith LCR
immediately through special messenger.
18. Both the accused persons are members of paramilitary forces and may
be posted in distant area. Learned Trial Court is directed to conclude the
trial within one year from the date of receiving the order and if necessary,
may grant exemption to the accused persons, if so prayed and if they do not
dispute their identity, so that trial is concluded expeditiously and both the
accused persons are also able to discharge their official duties at the place of
their posting.
PRATIBHA RANI, J.
FEBRUARY 11, 2016
'aky'
