Piyush Kaushik vs State Of Uttarakhandand Another
2022 Latest Caselaw 3126 UK

 HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Revision No. 455 of 2022

Piyush Kaushik                                ...Revisionist

                            Versus

State of Uttarakhandand Another               ...Respondents


Present:-
            Mr. Shailabh Pandey, Advocate holding brief of Mr.
            Harshpal Sekhon, Advocate for the revisionist.
            Mr. Lalit Miglani, A.G.A. for the State.

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the order

dated 18.07.2022, passed in Sessions Trial No. 301 of 2021,

State Vs. Rajeev Joshi and Others, by the court of Additional

Sessions Judge, Haldwani, District Nainital ("the case"). By

the impugned order, after hearing the parties, the court

directed that there are sufficient grounds to frame charge

under Sections 302, 201, 202 and 34 IPC against the

revisionist and other co-accused. On the same date, charge

under Section 302 read with Section 34 IPC, Section 201

read with Section 34 IPC and Section 202 read with Section

34 IPC were framed against the revisionist and other co-

accused.

2. Heard learned counsel for the revisionist and

perused the record.

3. On 23.10.2020, the informant got his son

admitted in Adarsh Jeevan Nashamukti Kendra,

Kamluaganja Road, Haldwani ("the centre"). On 02.11.2020,

the informant was told that his son had died. His dead body

was taken in an ambulance. When he got the dead body of

his son Praveen, he could notice multiple marks of injuries.

An FIR was lodged alleging therein that the revisionist and

other co-accused, including the owner of the centre killed the

deceased. It is this FIR, in which after investigation,

chargesheet was submitted and the revisionist and others

were summoned. At the stage of framing of charge, on behalf

of the revisionist and other co-accused, arguments were

made and, in fact, the impugned order reveals that written

arguments were also given. After hearing the parties, by the

impugned order, as stated, the court concluded that there is

evidence available to frame charge under Sections 302, 201,

202 and 34 IPC against the revisionist and other co-accused.

4. Learned counsel for the revisionist would submit

that no prima facie case is made out against the revisionist;

the revisionist had no intention to cause any injury on the

deceased; he had no intention to kill him. Learned counsel

for the revisionist would raise the following points in his

submission:-

(i) The chargesheet reveals that a

piece of plastic pipe was recovered as a

weapon of offence and witness Raj Mohan

Aswal, who is a Counsellor at the centre has

told it to the Investigating Officer ("IO") that

on multiple occasions, the deceased was

beaten up. Based on it, it is argued that it

can safely be presumed that the force of

assault must have been different on different

occasions and from it; it may be inferred that

the revisionist did not have any intention to

kill him.

(ii) The deceased was violent in the

centre. He wanted to attack the guards.

Therefore, it is a case of sudden provocation,

which falls under Section 300 Exception 1 of

IPC, which, at the best, may be covered

under Section 304 IPC.

(iii) The conduct of the revisionist and

other co-accused reveals that they had no

intention to kill the deceased because it is

they, who took the deceased to hospital.

They, in fact, tried to revive his breath by

providing breath from mouth.

5. Learned counsel for the revisionist has also placed

reliance on the principles of law, as laid down in the case of

Sarwan Singh and Others Vs. State of Punjab (1978) 4 SCC

111 and Sarman and others Vs. State of Madhya Pradesh,

AIR 1993 Supreme Court 400.

6. In the case of Sarwan (Supra), the Hon'ble

Supreme Court discussed the circumstances under which

offence under Section 302 IPC may be made out/ the

circumstances, which may make out an offence under

Section 304 IPC. In Para 7 of the judgment, the Hon'ble

Supreme Court observed as hereunder:-

"The cumulative effect of injuries was no doubt found to have been sufficient in the ordinary course of nature to cause death. If the injuries that are sufficient in the ordinary course of nature to cause death are traced to particular accused, he will be guilty of an offence under Section 302 without the aid of Section

149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under Section 302 read with Section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 IPC would be committed in prosecution of the common object. In order to determine this question, it is necessary to refer to the injuries caused in some detail."

7. Further, after discussion, in Para 8, the Hon'ble

Supreme Court observed as hereunder:-.

"Though the doctor has stated that the injuries were sufficient in the ordinary course of nature to cause death, we find it difficult to hold that the

injuries, cumulatively, were sufficient in the ordinary course of nature to cause death. The common object of the assembly in the circumstances can only be said to cause injuries which are likely to cause death which will be an offence under Section 304(1) of the Penal Code, 1860. In the circumstances we set aside the conviction under Section 302 read with Section 149 IPC but find the appellants guilty of an offence under Section 304(1) read with Section 149 IPC and sentence them to five years' rigorous imprisonment and a fine of Rs 3500 each."

8. In the case of Sarman (Supra), the Hon'ble

Supreme Court, inter alia, observed that, "if any of the

accused exceeded the common object and acted on his

own, that would be his individual act."

9. It may be noted, at the very outset, that both the

judgments were against conviction and the court has the

benefit of the evidence and cross-examination of the

witnesses, including the doctors.

10. On the other hand, learned State Counsel would

submit that the deceased was beaten up; the post-mortem

report reveals injuries; the impugned order is well reasoned

and it does not warrant any interference.

11. Charge is basically one stage ahead of taking

cognizance and far behind the stage of judgment. The level of

satisfaction is quite different at each stage. Section 228 of

the Code of Criminal Procedure, 1973, inter alia, provides for

framing of charge, if the Judge is of the opinion that there is

ground for presuming that the accused has committed an

offence, charge is framed. Whether the satisfaction in the

instant case meets the requirement of law?

12. It is a stage of charge. In a revision, the Court

should be much slow to interfere with the order framing

charge. In the case of Amit Kapoor Vs. Ramesh Chander and

Another, (2012) 9 SCC 460, the Hon'ble Supreme Court

discussed this aspect. The Hon'ble Supreme Court, inter alia,

observed that " The object of this provision is to set right

a patent defect or an error of jurisdiction or law. There

has to be a well-founded error and it may not be

appropriate for the court to scrutinise the orders, which

upon the face of it bears a token of careful consideration

and appear to be in accordance with law. If one looks

into the various judgments of this Court, it emerges that

the revisional jurisdiction can be invoked where the

decisions under challenge are grossly erroneous, there is

no compliance with the provisions of law, the finding

recorded is based on no evidence, material evidence is

ignored or judicial discretion is exercised arbitrarily or

perversely. These are not exhaustive classes, but are

merely indicative. " The Hon'ble Supreme Court further

observed that, "Where the Court is dealing with the

question as to whether the charge has been framed

properly and in accordance with law in a given case, it

may be reluctant to interfere in exercise of its revisional

jurisdiction unless the case substantially falls within the

categories aforestated. Even framing of charge is a much

advanced stage in the proceedings under the CrPC."

13. The trial is yet to proceed, but since the

arguments have been advanced on some aspect, the Court

would examine the material to the limited extent.

14. It is true that according to the chargesheet, a

piece of plastic pipe was recovered as a weapon of offence,

but it is not the case of the prosecution that this is the sole

weapon by which the assault was made. Therefore, based on

this statement, which is written in the chargesheet, it cannot

be said that the offence does not fall under Section 302 IPC.

15. It is also true that if many persons assault one

person on different occasions, the use of force may not be

similar. It may depend on various factors. We need not go

into those aspects also. But from those aspects, it cannot be

said that the revisionist and the co-accused did not have any

intention.

16. There are many witnesses, who have stated against

the revisionist and other co-accused in their statements to the

Investigating Officer ("IO"). The informant is categorical in his

statement given to the IO as to how he noticed injuries on

the person of his son. In fact, according to him, in an

ambulance, the dead body was sent and it was told that the

deceased had fallen down from his chair, due to which he

expired. There were multiple injuries on the dead body of the

deceased. They are noted in the post-mortem report. It

includes multiple contusions, swellings. In fact, injury no. 5

is swelling and contusion on the back of the neck. In the

post-mortem report, doctor writes that when the incision was

made on those contusions, extraveseted blood was seen in

surrounding tissues. It definitely means that force applied

was not light. It was grave. It ruptured the veins.

17. The conduct, as argued, may not be said to be so

as to make the case fall under Section 304 IPC. In fact, the

driver of the ambulance, in which the dead body was taken

to Pithoragarh, has told it to the IO that 3 persons

accompanied him from Haldwani to a place near Pithoragarh

and, thereafter, they told the driver that he may drop the

dead body individually, but the driver of the ambulance did

not agree to it. He called the owner. Thereafter, one person

accompanied him. According to the driver, Fahim, the

revisionist and one of his associates left the ambulance

before Pithoragarh and they drove in a private car. The

question of conduct does not help.

18. Many witnesses, including inmates and others of

the centre have stated as to how on the fateful day, the

deceased was asked to join the cleaning exercise. When he

declined, he was told to do so, he hold one Nikhil from his

neck. Thereafter, he was beaten up not by one person, but by

many persons. He was tied with a pillar and beaten up by

Dandas. There were multiple injuries on his person.

19. Witness Ranjan Kumar has categorically stated

that during the whole day, when the deceased was given

beating. At about 4:00-5:00 in the evening, he was tied with

a pillar and the revisionist and other co-accused assaulted

him with a Danda. They asked others also to assault him

and he was left tied with the pillar. Witnesses Rohit Singh,

Khemraj Sagar, Rahul Arya, Sushil Chandra Ojha, Ranjan

Kumar, Neeraj Singh Jaggi, Himanshu Mehta, Manoj Kumar

Pandey, Chander Prakash Fularia, Anurag Kholia, Rajmohan

Aswal and others have stated it. The post-mortem supports

it.

20. Although, it has also been submitted by learned

counsel for the revisionist that there is no grievous injury on

any vital part. The injury on the back of the neck, in

contusion and swelling, when given incision had extraveseted

blood in it. Can it be said non-vital part? Can it be said that

it is not a grievous injury?

21. In the case of Surendra and Others Vs. State of

Uttar Pradesh (2012) 4 SCC 776, a person was beaten to

death. There were multiple injuries on the person. They were

on the non-vital parts. In that case, in Para 9 of the

judgment, the Hon'ble Supreme Court has reproduced the

injuries, which were found on the person of the deceased.

They were 21 in numbers on different parts of the body. In

that case, the Court has taken reference to the judgment in

the case of Sarwan Singh (supra), and in Para 13, observed

as hereunder:-

"13. The legal position is well established that inference of common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the result. We are satisfied that the prosecution, from the entirety of the evidence, has been able to establish that all the members of the unlawful assembly acted in furtherance of the common object to cause the death of Ramchandra Singh."

22. As stated, the deceased was allegedly mercilessly

beaten. There have been injuries, which caused his death.

These circumstances definitely make ground to opine that

there are grounds for presuming that the revisionist has

committed an offence under Section 302 read with Section

34 IPC, Section 201 read with Section 34 IPC and Section

202 read with Section 34 IPC. The court below has not

committed any error while passing the order. There is no

reason to make any interference and the revision deserves to

be dismissed at the stage of admission itself.

23. The revision is dismissed in liminie.

(Ravindra Maithani, J.) 24.09.2022 Ravi Bisht