Delhi District Court
Surender Klumar vs The State on 19 December, 2013
Surender Klumar vs The State
CR No.51/13
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
Surender Kumar s/o Sh. Bansi Lal
R/o H.No. 87A, Gali No.5,
Harijan Basti, Nasirpur,
New Delhi. ... Revisionist
VERSUS
1. State
Government of NCT of Delhi,
New Delhi110001.
2. Dinesh Kumar s/o Sawal Ram
3. Pradeep Kumar s/o Sawal Ram
4. Bharat s/o Sawal Ram
5. Vinod Kumar s/o Sawal Ram
6. Sawal Ram s/o Gatthi Ram
All R/o A86, Gali No.5, Harijan Basti,
Nasirpur, New Delhi.
7. Sunil Kumar s/o Suresh Chand
B98, Gali No.8, Harijan Basti,
Nasirpur, New Delhi.. ... Respondents
CR No.51/13
Date of Institution: 28.02.2013
Reserved for order on:22.11.2013
Judgment announced on:19.12.2013 ( allowed)
JUDGMENT
1. Vide this order I shall dispose off this Revision filed by revisionist against impugned order dt. 01.02.2013.
CR No. 51/13 -:1:-Surender Klumar vs The State CR No.51/13
2. Stating briefly, as per the story of the prosecution the FIR was lodged by the petitioner/complainant Surender Kumar stating therein that on 16.6.2012, at about 5 pm, he was checking the water pipe line and he reached near house No.85 A, where one boy namely Sunil was sitting on a bike who is on visiting terms with his neighbour Dinesh and said Sunil started staring him and stopped him and thereafter started abusing him, in the meanwhile, his neighbour Dinesh came there armed with an iron pipe and exhorted that the complainant had created hurdles in the construction of the house of Dinesh and he should be taught a lesson and said Sunil caught hold of the complainant/petitioner and respondent accused Dinesh hit him with iron pipe on his head and blood started oozing out from his head and he became unconscious and on hearing the noise, his wife Bimla and his sons and daughters came to his rescue, in the mean time, father and brother of Dinesh armed with iron pipes came at the spot, who had beaten him as well as his wife, sons and daughters and his wife also sustained injuries but, thereafter, his nephew Deepak came at the spot and helped them. On the statement of the complainant, the FIR No.160/12 u/s 323/341/34 IPC was lodged. Thereafter the complainant/petitioner as well as his wife Bimla examined in terms of MLC No. 11616/12 and 11617/12 and following injuries were observed on the body of the petitioner:
1. Laceration over scalp around vertex, (2)contusion over left lower chest, tenderness on palpation and (3) laceration superficial over left forearm, just above wrist; and the wife of petitioner CR No. 51/13 -:2:- Surender Klumar vs The State CR No.51/13 suffered (1) abrasion over both elbow, (2) Mild tenderness over left parietal region and (3) on examination tenderness positive over left clavicle. The nature of injuries suggested that these injuries have been caused with iron rods as weapon.
3. It is further stated that ld. trial court vide order dated 29.8.2012 has framed a charge u/s 323/341/34 IPC against accused/respondent and no charge has been framed u/s 354/307/149 IPC which are made out from the bare perusal of the charge sheet. It is further contended that the wife of the petitioner Bimla has received injuries near her breasts and, therefore, on account of the brutal beatings given by accused/respondent at a public place, to the wife of the petitioner, the provisions of Section 354 IPC are attracted as the modesty is the state of mind of a woman and the circumstances relevant to prima facie conclude whether the modesty of a woman has been violated or not are to be taken into consideration. In this regard he has relied upon Roop Deol Bajaj Vs. K.P.S. Gill, AIR 1996 SC 309, Samar Singh vs State Cri. Revision 129/2009 passed by Delhi High Court, Shakuntla Devi Vs. Suneet Kumar 1997 Crl. L. J 335 (Del).
4. It is further stated that offence u/s 307/149 IPC is also made out from bare perusal of the material on record and ld. trial court has not framed any charge u/s 307/149 IPC as the injuries suffered by complainant and his wife have been received only on the vital parts of the body including head and a charge u/s 307 IPC is made CR No. 51/13 -:3:- Surender Klumar vs The State CR No.51/13 out because the act of the accused so committed with an intention coupled with some overt act in execution thereof is sufficient to frame a charge u/s 307 IPC and it is not essential that bodily injury capable of causing death should have been inflicted. Therefore, if the injury inflicted has been caused with the object or intention to cause death, then such injury whether sufficient to cause death in the ordinary course of nature are present or not will attract a charge under section 307 IPC. In this regard he has relied upon Hari Mohan Mandal Versus State of Jharkhand, AIR 2004, SC 3687 and Sarju Prasad vs State of Bihar AIR 1965 SC 843.
5. It is further contended that ld. trial court has erred in law in not appreciating the law that at the stage of charge only, prima facie, view is to be taken and the material so placed is to be sift and weighed for the limited purpose whether there is grave suspicion against the accused persons for commission of the offence involved in the charge sheet and from the chargesheet, offences under section 307/149 IPC is made out. In this regard he has relied upon Joginder Singh vs. State of Punjab AIR 1979 SC 339 and Kishun Singh vs. State of Bihar, 1993 (1) JT (SC) 1773.
6. It is further contended that the complainant moved an application for the alteration and addition of the charge and the said application has been dismissed by way of impugned order without assigning any reason and it has been only observed that CR No. 51/13 -:4:- Surender Klumar vs The State CR No.51/13 considering the fact that the predecessor of the Ld. M.M court has passed a reasoned order while framing a charge against the accused persons, neither any new evidence has come up and nor evidence has recorded so far , so there is no ground to alter the charge. It is settled law that charge can be altered at any stage before pronouncement of judgment and surfacing of new material on record is not a sine qua non for altering or adding of the charge. In this regard he has relied upon Jasvinder Saini & Ors. Vs. State 186 (2012) DLT 411 and Habib Vs. State of MP & Ors. 2000 (3) MPHT 464.
7. It is further contended that the ld. trial court has not appreciated the fact that charge can be altered at any stage and such alteration will also help the accused to prepare their defence and prevent the delay and in some circumstances, as in the present case, the ld. High Court of Delhi in case titled as Bade Lal Prashad & Ors. vs. State Crl. Rev. 207/2010 Samar Singh Puri vs. State Crl. Revision P. No.129/2009 has allowed the alteration/addition of the charge. It is further contended that the impugned order is not an interlocutory order and as such revision is maintainable against the said order. In this regard he has relied upon Haryana Land Reclamation & Development Corporation Limited Vs. State of Haryana (1990) 3 SCC 588 and Poonam Chand Jain & anr. vs. Fazru AIR 2005 SC 38 and Rajinder Pal vs. State. Judgment passed by Hon'ble High Court of Delhi in Crl. M.C. 269/2007.
CR No. 51/13 -:5:-Surender Klumar vs The State CR No.51/13
8. Per contra, ld. counsel for the respondent/accused has contended that the impugned order is interlocutory order and as such revision is not maintainable as, even if, the charge is altered or added that would not culminate the proceedings and, therefore, revision petition is not maintainable. In this regard he has relied upon Akbar A. Puthen Veedu vs. State of Kerala & Ors. 2011 (6) RCR (Crl.) 2089.
9. It is further contended that the complainant has no right to file the revision petition and has no locus standi to file an appeal or revision against the order passed in any inquiry or trial and only the State can move such application. As the accused is pitted against the State and not against the complainant, in this regard he has relied upon Bhupinder Kumar vs. State of Rajasthan 1996(3) RCR 108 and Nazim Khan & anr. vs. State 2001 (1) CC Cases HC 103, It is further contended that a charge can be altered at any stage by the trial court as the trial court is fully empowered to alter the charge properly depending upon the evidence led before it and if during trial the ld. trial court come to the conclusion that some more charges are to be added, the court shall proceed to do so, without being hindered in any manner. In this regard, he has relied upon State of Maharashtra vs. Salman Salim Khan & Ors. 2004 Crl. L.J. (SC) 920. It is further contended that provision of section 216 Cr.PC is not applicable to summon case and in the present case summary trial has commenced after framing of notice under section 251 Cr.PC, so this application was CR No. 51/13 -:6:- Surender Klumar vs The State CR No.51/13 not maintainable and rightly dismissed by Ld. Trial Court and this petition deserves to be dismissed.
10.I have heard the ld. counsels for the parties and have gone through the record. The Ld. Counsel for the State Sh. Alok Saxena has also supported the contention of the counsel for the petitioner and contended that charges under section 354/307/149 IPC be added.
11.The first contention raised by the counsel for the petitioner is that the impugned order is not an interlocutory one as such revision lies against the impugned order whereas the ld. counsel for the respondent while relying upon the case law Akbar A. Puthen Veedu (supra) has contended that the impugned order is an interlocutory one and no revision lies against it. Although it is the gist of these judgments relied upon by counsel for the respondents that framing of charge may or may not amount to interlocutory order as it depends upon the facts of the case and it is further observed that the impugned order, whereby charge was sought to be altered, is interlocutory in nature and as such it is not revisable.
12. It may be noted that interlocutory order is not defined in the code but it is used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or adjudicate the CR No. 51/13 -:7:- Surender Klumar vs The State CR No.51/13 important rights or liabilities of the parties and any order which substantially affects the rights of the accused or decide certain rights of the parties cannot be said to be an interlocutory order because they would be against the very object which found the basis for insertion of this particular provision in section 397 Cr.PC, therefore, an interlocutory order is made or given during the progress of an action, but which does not finally dispose of the rights of the parties. It appears that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'. There may be an order passed during the course of a proceeding which may not be final but yet it may fell in between the two and by a rule of harmonious construction I think that the bar in section 397(2) Cr.PC is not meant to be attracted to such kinds of intermediate orders.
13.It may be noted here that in Jarnail Singh (supra) the term interlocutory has been discussed and the relevant portion is reproduced herein under: " To sum up , we find that an order framing charge is an order of moment; it deprives the liberty of a citizen and puts him to jeopardy of a trial. Such an order finally rejects the plea of the accused that he is entitled to a discharge or that he is not liable to be tried. Such an order concludes the enquiry and the pre trial proceedings against the accused. The order framing charge takes away a very valuable right CR No. 51/13 -:8:- Surender Klumar vs The State CR No.51/13 of the accused. Hence, in our considered opinion, an order framing charge is not an interlocutory order within the meaning of Section 397 (2), Cr.P.C. and such an order is amenable to the supervisory jurisdiction of the court of Sessiion and the High Court under S. 3,97 (1) Cr.P.C . We answer the reference accordingly."
14.So is the ratio of case titled Poonam Chand Jain (Supra) and HLRDCL (supra) also. Therefore, the order framing the charge cannot be treated as interlocutory order. The Hon'ble High Court of Delhi in Rajinder Pal Singh (supra) after dealing with the contentions that order passed on the application u/s 216 Cr.P.C. is not an interlocutory order has observed in para 26 as under.
"Mr. Burman?s preliminary objection that the Revision Petition filed by the CBI was not maintainable, is also not tenable in law as the order of the Magistrate dated 17th November, 2004 was not an interlocutory order and it has to be read in conjunction with the order framing charges"
15. Therefore, I am of the opinion that neither the order of framing of charge nor the orders on the applications for alteration/addition of charge is an interlocutory order and, therefore, this revision petition is maintainable.
16.Now coming to the next contention of ld. counsel for the applicant that, prima facie, offences u/s 354/307/148/149 IPC is CR No. 51/13 -:9:- Surender Klumar vs The State CR No.51/13 made out from the perusal of the charge sheet. It may be noted here that none of the witnesses including the petitioner as well as his wife Bimla and her children stated that Bimla was being caught hold of by accused/respondent and her modesty was outraged by the accused in any manner, otherwise, all the statements of the witnesses recorded u/s 161 Cr.P.C. are verbatim reproduction of the statement of the petitioner disclosing that Bimla also received injuries in the scuffle at the spot on the fateful day. Even Bimla has not levelled any allegations in her statement u/s 161 Cr.P.C. that her modesty was being outraged or she was caught hold of by her hair or, otherwise, she was touched by any of the accused. The allegations in case law relied upon by the petitioner are specific that the victim was being caught hold of by her hairs and was being dragged by the accused persons. Therefore the case law relied upon by the petitioner is distinguishable to the facts of the present case. No such allegations are there in the present case, so I am of the opinion that no offence u/s 354 IPC is made out.
17.So far as Offence u/s 307 IPC is concerned, it may be noted here that none of the injured namely petitioner as well as his wife has received any grievous injury over their head and even from the statement of the witnesses recorded by the IO during investigation, it appears that no offence u/s 307 IPC is made out. But from the perusal of the record so far as offence under section Sec. 308 IPC is concerned, i.e. attempt to cause culpable CR No. 51/13 -:10:- Surender Klumar vs The State CR No.51/13 homicide is, prima facie, made out in the present case. There is no dispute about the proposition of law that at the stage of framing of charge, a, prima facie, view must be taken and it will depend upon the fact of each and every case. In the present case, the petitioner as well as his wife were beaten with iron rods/pipes and they have been attacked on their head and the injury suffered by them, prima facie, established that the accused/respondent had not only intention but also knowledge that the injury which they are likely to be caused on the vital part of the petitioner as well as the wife is likely to cause even death, therefore, offence of attempt to commit culpable homicide against respondent/accused is made out. So far as charge u/s 308 IPC is concerned, nature of injury is not to be taken into consideration while finding out whether any offence u/s 308 IPC is made out or not, it is mandatory that the injured should claim that they were attacked by the accused persons with intention to cause death as the intention or knowledge about the possible consequences of their acts has to be inferred from the manner of attack as well as weapon used in causing injury. In the same manner, a mere fact that the injuries are found to be simple would not mean that the accused had no knowledge about the consequences of the injury caused on the body of the petitioner as well as his wife. The offence u/s 308 IPC consists of doing an act with such intention or knowledge and under such circumstances that if accused person by that act caused the death, he would be guilty of culpable homicide not amounting to murder. Therefore, an attempt of this nature may CR No. 51/13 -:11:- Surender Klumar vs The State CR No.51/13 actually result in hurt or not. Therefore, there is material on record that atleast offence u/s 308 IPC/34 IPC is made out against the accused/respondent.
18. It may be noted here that in Samar Singh (supra) para 11, it has been observed as under.
" so far as the charge under Section 308, IPC, i.e attempt to cause culpable homicide is concerned, the same is prima facie made out in the instant case. There is no dispute about the fact that at the stage of framing of the charge, only a prima facie case must be made out and this will depend upon the facts of each case. The facts of no two cases are comparable. Rather the facts of the reported judgments are distinguishable from the present case. Admittedly, there is a relationship of landlord and tenant between the victim and the assailant and it has also come on record that there was an on going feud between the petitioner and the victim. This is further supported by the fact that the petitioner had allegedly uttered the words that his life has been made miserable and therefore, he would not spare the complainant. Seen in the light of these facts, the hitting of the victim by the Crl. Rev. P. No. 129/2009 page 6 to 9 present petitioner with the help of a brick that too a cemented brick on the head not once but twice and the injuries being suffered by him in the rear portion of the head prima facie establishes that the petitioner not only CR No. 51/13 -:12:- Surender Klumar vs The State CR No.51/13 had intention but also the knowledge that the injury which he is likely to cause on the vital part of the body of the injured is likely to cause even death and, therefore, the offence of attempt to commit culpable homicide against the present petitioner has been rightly framed by the learned Additional Sessions Judge"
19. And also in Bade Lal, ( Supra) para 8, it has been observed:
"8. In my view this revision petition deserves to be allowed as the learned Additional Sessions Judge has committed patent illegality in discharging the accused of the charge under Section 308 IPC. The learned Additional Sessions Jude has come to the conclusion that offence under Section 308 is not made out on the ground that the injuries caused by the accused on the person of the injured were simple and also because none of the witnesses had claimed that the injured were attacked with the intention of causing their death. Nature of injuries is not significant while finding out whether offence under Section 308 IPC is made out or not. Similarly, it is not the requirement of law that the injured persons should claim that they were attacked by the accused with the intention to cause their death. Their intentions or the knowledge about the possible consequences of their acts has to be inferred from the manner of attack, weapons used in causing injuries etc. In the present case, the accused persons were armed with iron rods and bricks. Prior to the said incident on CR No. 51/13 -:13:- Surender Klumar vs The State CR No.51/13 the same day accused Pintu had abused the wife of the complainant when she had objected to the throwing of garbage by accused Prema Devi in front of her house. The accused persons had decided to assault the complainant and his family members and that is evident from the fact that they were armed with rods etc. The Sessions Court has itself found that accused persons had caused injuries with weapons which were likely to cause death and that is why charge under Section 324 IPC was ordered to be framed. The mere fact that the injuries were found to be simple would not show that the accused had no knowledge about the consequences of causing injuries on the heads of the two injured. The judgment of this Court in Surender Kumar‟s case(supra) relied upon by the learned Sessions Court is distinguishable. The judgment of the Supreme Court in Surender Kumar‟s case(supra) cited by the counsel for the petitioners, on the other hand, fully helps the petitioners here. That was a case where the trial Court had framed charge under Section 308/34 IPC but the High set aside that charge in revision at the instance of the accused and found it to be a case of Section 323 only but that charge was not framed because the police could not have investigated that offence without the permission of the Magistrate. The Supreme Court in appeal against that order of the High Court set aside that order and restored the order of the trial Court.
xxxxxxxxxxxxxx "4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such CR No. 51/13 -:14:- Surender Klumar vs The State CR No.51/13 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. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different."
20. So far as the offence u/s 149 IPC is concerned, there is not an averment in the statement of any of the witnesses recorded u/s 161 Cr.P.C. that accused persons/respondents attacked the victims/petitioner and were having a common object therefore, there is no evidence on record to infer that the accused persons had assaulted the complainant and his family by forming an un lawful assembly and attacked the victim/petitioner having a common object to cause injury on them. Therefore, offence u/s 149 IPC is not made out.
21. Lastly, so far as, applicability of section 216 Cr.PC to the summon case trial is concerned, it may be noted that Section 216 Cr.P.C is applicable to summon case trials and it has been observed in Tola Ram ( Supra) in para 13 as under:
"Viewed in this light the provisions of Section 216, Cr. P.C. are applicable to summons cases in the same manner in which they are applicable to sessions cases and warrant cases. The provisions of Section 216, Cr. P.C. CR No. 51/13 -:15:- Surender Klumar vs The State CR No.51/13 are general and their object is to protect the rights of the accused persons to be informed about the offence of which he is accused, so that he may exercise his right to defend. A Magistrate may if he thinks fit, in appropriate cases frame a formal charge in summons trial cases, if mere reading over of accusation to the accused is not likely to serve the object of informing the accused about the particulars of the offence or offences of which he is accused. I, therefore, hold that in this case the application of the learned Assistant Public Prosecutor was maintainable Under Section 216, Cr. P.C. and the learned Additional Chief Judicial Magistrate had the legal authority to exercise his powers Under Section 216, Cr. P.C. if that was necessary.
22. Therefore, this contention is also rejected. Similarly in view of the case law in judgment Shiv Shankar, Tola Ram and Samer Singh ( Supra), the complainant has a right to file revision even if not sponsored by State.
23. From the above discussion, I am of the opinion that this petition that this petition deserves to be allowed so far as offence u/s 308/34 IPC is concerned, as such, this petition is allowed. The impugned order dated 01.02.2013 is set aside and framing of charge u/s 308/34 IPC in addition to the charge already framed against all the accused persons is ordered. The Ld. MM is to add CR No. 51/13 -:16:- Surender Klumar vs The State CR No.51/13 the said charge u/s 308 IPC and will proceeds further as per law.
24.Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case.
25.TCR and copy of the order be sent to the Ld. trial court for information.
26. Revision File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya) on the 19th day of December 2013 ASJ/ Dwarka Courts/New Delhi CR No. 51/13 -:17:-