Punjab-Haryana High Court
Balwinder Kaur vs State Of Haryana And Others on 4 February, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Revision No.2762 of 2012 (O&M) -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Revision No.2762 of 2012 (O&M)
Date of decision: February 04, 2013.
Balwinder Kaur
... Petitioner(s)
v.
State of Haryana and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Shri S.S. Virk, Advocate, for the petitioner.
Shri Sandeep S. Mann, Senior Dy. Advocate General, Haryana.
Shri S.S. Rana, Advocate for respondents No.2 and 4 to 7.
Paramjeet Singh, J. (Oral):
Instant petition has been filed challenging the order dated 25.8.2012 passed by the learned Additional Sessions Judge, Kurukshetra whereby the charge under Section 308 IPC has not been framed against respondents No.2 to 7 in case FIR No.57 dated 31.5.2011 registered at Police Station Babain, District Kurukshetra, under Sections 148, 149, 323, 325, 452, 506 IPC.
Brief facts of the case are that on 28.12.2010, petitioner Balwinder Kaur purchased 10 marlas of land for residential purposes from one Shingara Singh, Charanjit Singh and Paramjit Singh sons of Shingara Crl. Revision No.2762 of 2012 (O&M) -: 2 :- Singh were not happy with this transaction. On 30.5.2011 at about 2.30 p.m. when Balwinder Kaur petitioner and her daughters-in-law Jaspreet Kaur and Prabhjot Kaur were sitting in the house, a Scorpio vehicle, whose number plate was covered with tape, stopped in front of the house of the petitioner. Hardev Singh and Dalip Singh and 8-9 other persons armed with hockey, swords and bindas entered her house. Simultaneously, Charanjit Singh came on a motorcycle and also entered her house. Charanjit Singh raised a lalkara to teach a lesson for purchasing their land. At this stage, Paramjit Singh, Sukhpal Singh also entered the house of the petitioner and started abusing. Charanjit Singh gave a binda blow on the petitioner's head; Hardev Singh gave hockey blow on left arm which was fractured. Dalip Singh gave binda blow on back and other persons also assaulted with dandas and bindas. She fell down and was rescued by her daughters-in-law. The assailants also entered the petitioner's sister Labh Kaur's house and inflicted injuries on her shoulder and breast.
The police, after investigation, filed challan under the aforesaid Sections and sent the respondents for trial. Learned Additional Sessions Judge vide the impugned order framed charge under Sections 148, 323, 325, 452 and 506 IPC read with Section 149 IPC, however, held that no charge under Section 308 IPC is made out. Against this, the petitioner felt aggrieved and hence this petition.
Learned Counsel for the petitioner vehemently contended that the learned Additional Sessions Judge has failed to appreciate the evidence on record. The seat of the injury is admittedly on head although the injury is simple. Learned Additional Sessions Judge has not framed the charge Crl. Revision No.2762 of 2012 (O&M) -: 3 :- under Section 308 IPC only on account of the injury not being in the middle of the head but on the temporal region.
Learned Counsel for the petitioner referred to a part of the impugned order, which reads as under:-
"... There is no lalkara that she be done to death. Also injury with binda blow is shown to have been given on temporal region and not in the middle of the head. Only one injury is attributed to Charanjeet. Had the accused persons any intention to kill Balwinder Kaur then they had weapons and sufficient men power to cause death but only three injuries are there on the person of Balwinder Kaur as per MLR. Injury No.2 is grievous whereas injuries No.1 and 3 on head and on the back are simple in nature. So, the circumstances do not suggest that the accused persons had any intention or knowledge that their act of causing injury would result in death of Balwinder Kaur. Also in this case no injury has been caused to Japsreet Kaur and Prabhjot Kaur, who were present with Balwinder Kaur. No attempt has been made to cause with sword carried by the accused persons. The authorities relied upon by the learned counsel for the complainant are not applicable to the facts of the present case. So, in the circumstances placed on reocrd, no prima facie case for the commission of offence under Section 308 IPC is made out. However, only prima facie case under Sections 148, 323, 325, 452 and 506 read with Section 149 IPC is made out and these Crl. Revision No.2762 of 2012 (O&M) -: 4 :- offences are triable by Judicial Magistrate 1st Class. ..."
Learned Counsel for the petitioner vehemently contended that nautre of the injury is not conclusive to determine whether the offence under Section 308 IPC is made out. The intention to kill or knowledge that death will be caused is a question of fact and would depend upon the facts of a given case. In the present case, injury is on the temporal region which is a part of head and it cannot be said that if the injury is inflicted in the middle of the head only then offence under Section 308 IPC would be made, rather, the temporal region is more sensitive and injury on temporal region can cause death.
I have considered the rival contentions of the parties. Admittedly, injury was caused on head, i.e., temporal region which is also part of head. Learned Additional Sessions Judge has not taken this fact into consideration, rather had stated that since the injury is not in the middle of the head but on the temporal region, so charge under Section 308 IPC is not made. This finding is erroneous. Nature of injury is not conclusive proof. The totality of the injuries inflicted, the number of persons inflicting injuries, as well as the seat of injury etc shall be taken into consideration. This Court cannot lose sight of the fact that in present case, number of injuries were inflicted by various persons with different weapons. Moreover, injury was inflicted on the temporal region which is part of head. Hon'ble Supreme Court in Sunil Kumar v. NCT of Delhi & Others (1998)8 SCC 557 has held that to make out an offence under Section 308, the nature of injury is not conclusive. Relevant para 4 of the judgment in Sunil Kumar's (supra) is reproduced herein-below:-
Crl. Revision No.2762 of 2012 (O&M) -: 5 :-
"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 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. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law."
Similarly, the Hon'ble Supreme Court in the case of State of M.P. v. Kashiram and others, JT 2009(2) SC 140 has reiterated that whether there was intention to kill or knowledge that death will be caused, is a question of Crl. Revision No.2762 of 2012 (O&M) -: 6 :- fact and would depend on the facts of a given case. The circumstance that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. Consequently, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
In view of the aforesaid judgments of the Hon'ble Supreme Court, this Court is of the opinion that the order of learned Additional Sessions Judge is not sustainable in the eyes of law. The learned Additional Sessions Judge has not made a distinction between the stage of framing of charge and the stage of conviction, rather based on the nature of injuries had come to a conclusion that no offence under Section 308 IPC is made out. This is absolutely not sustainable in view of the settled proposition of law that nature of injury is not a conclusive proof to make out an offence under Section 308 IPC.
Consequently, the impugned order is set aside. A direction is issued to learned Judicial Magistrate to send the file to Additional Sessions Judge who will frame charge under Section 308 IPC read with other Sections. Accordingly, the present petition is allowed.
[ Paramjeet Singh ] February 04, 2013. Judge kadyan