Allahabad High Court
Taukeer Husain And Others vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 5 July, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:46007 Court No. - 13 Case :- APPLICATION U/S 482 No. - 5827 of 2024 Applicant :- Taukeer Husain And Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Lko. And Another Counsel for Applicant :- Anand Dubey,Ayush Kumar Verma,Saurabh Verma Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard Sri Anand Dubey, counsel for the applicants and learned A.G.A. for the State and perused the record.
2. The present application has been filed challenging the order dated 10.04.2024 passed by Additional District and Sessions Judge, Court No.13, District- Sultanpur, in S.T. No. 273 of 2023 (State Vs. Gullu and Others) whereby the trial court framed charges against the applicants under Section 147, 323 read with Section 149, 504, 506, 308 read with Section 149 I.P.C.
3. Brief facts of the case are to the effect that with regard to an altercation/ scuffle which took place on 15.08.2011 at about 21:15 hrs between the side of the applicant and the side opposite, an F.I.R. was lodged as Case Crime No.739 of 2011 on 15.08.2011 by the present applicant No.1 namely Taukeer Husain, under Section 147, 148, 323, 504, 506 and 306 IPC, Police Station- Purwar, District- Sultanpur. In this F.I.R. under Section 304 IPC was indicated after taking note of the fact that one Badre Alam on account of the injury sustained died in the incident.
4. In regard to the aforesaid F.I.R., the trial is pending and in this trial, charges have already been framed, as submitted by the counsel for the applicant Sri Anand Dubey.
5. In the incident/ altercation which took place on 15.08.2011, the injuries were also sustained to the opposite party No.2 namely Smt. Tameem Bano and her husband namely Sri Ali Samad, who were duly examined by the doctor namely Sri Dinesh, who was posted at relevant point of time at District Hospital, Sultanpur, and he referred both these injured persons for X-ray and to surgeon.
6. The reference aforesaid was on account of the injuries sustained by these injured over head, chest and thigh, as appears from Annexure No.14 to the present application, which is a copy of the statement of the said doctor recorded during investigation by the investigating officer.
7. From the copy of the injury report, annexed as Annexure No.15 to the present application, it appears that opposite party No. 2/ informant sustained following injuries:
Contusion 4 cm x 3 cm on left parietal area of head.
Adv- X-ray skull.
Opinion- Injury No.1 referred to surgeon.
8. Ali Safdar, husband of the opposite party No.2, as appears from Annexure No.15 to present application, sustained the following injuries:
1) 5 cm x 0.5 cm lacerated wound on Rt. parital area of head 8. cm above Rt. mastroid bone. Adv. X-Ray Skull- Ap/Lat.
2) 3 cm x 0.5 cm lacerated wound on Rt. parital area of head 10 cm above Rt. mastoid bone. Adv. X-Ray Skull- Ap/Lat.
3) 3 cm x 1 cm abrasion on left side of chest. Adv. X- Ray Chest- Ap/Lat.
4) 6 cm x 2 cm contusion on left thigh. Adv. left thigh- Ap/Lat.
9. Further, it appears from the record that the F.I.R. of opposite party No. 2 was not lodged and accordingly an application under Section 156(3) CrPC was preferred, which was allowed and thereafter the police lodged the F.I.R. against the applicants and thereafter the investigating officer submitted the charge sheet under Section 323, 504, 506, 308 I.P.C. against the applicants and thereafter the trial court took cognizance on 23.08.2011 and summoned the accused-applicants.
10. It appears from Annexure No.19 to the present application that the applicant No. 1 namely Taukeer Husain approached this Court by means of Application u/s 482 No. 4007 of 2022 and after some arguments, counsel for the applicant withdrew the said application with liberty to file the discharge application and based upon the statement of the said counsel, this application was dismissed with liberty as prayed for.
11. After the aforesaid, a discharge application was filed by the accused-applicants before the trial court in S.T. No.273/23 (State Vs. Gullu and Others), which was rejected vide order dated 15.01.2024. The relevant portion of the said order reads as under:
"???????? ?? ?????? ?? ????? ?? ?? ???????? / ?????????? ???? ??? ??? ?????? ????????????? 8? ?????? ???? ???????? ???????? ??????? ???? ?? ????? ????????? 4007 / 2022 ????? ??? ???? ????? ????? ?? ?????? ????? ??????-739?/23 ????? ???? ?????? ??? ???????? ????-308,147,323,504,506 ????????? ?? discharge ???? ???? ???? ???? ??? ?????????? ?????? discharge ????????????? ??? ?? ???? ???? ??? ?? ?? ???? ??????? ????? ????????? ??? ??????? ??????? ?? ?????? ???? 308 ????????? ?? ??? ????? ??? ???? ?? ??? ???????? ?? ????? ??????? ????????? ??????? ?? ??? ??? ????? ?????????? ?????? ?????? ??????? ??? ?????? ??? ?? ?????????? ?? ??????? ????? ??? ????? ??? ?????? ?? ????-308 ????????? ?? ?????? ???? ??? ??? ???? ?????? ?????? ?????? ???? ??????? ??????? ????????? ?? ??????? ????? ??? ??? ???????? ????? ?? ??????? ?? ??? ????? ??? ????? ?? ??? ???? ??? ??????? ??? ??? ?????????? ?????? ???? ??????? ????????????? ??? ??? ?????? ?? ???????? ???? ???? ?? ????? ?? ??? ??, ?? ?? ???????? ??????? ??? ?? ??????? ?????? ?????? ??? ?????????? ?????? ???? ??? ??????? ???? ??????? ??????? ?? ?????? ?????? ???????? ????? ??? ?????? ?????? ???? ???? ?????? ???????? ??? ???? ??? ????????????? ???????? ???? 156 (3) ?????????? ?? ???? ?? ?????????? ?? ??????? ???? ??????? ???? ????????? ??? ????? ????? ??????? ?????? ????? ??????-739?/23 ????? ???? ?????? ??? ???????? ????-308,147,323,504,506 ????????? ????? ?? ??? ??? ??? ??????? ?????? ?????? ??? ???????? ???????? ??? ???????? ???? ??? ??? ???? ?? ????????? ????????? ?? ?? ???? ?????? ???? ???? ???? ???????? ?? ????? ????? ??????? ???? ????? ???? ??? ?????? ?????? ????? ??????? ?????? ????????? ? ????????? ?? ???? ?? ?????????? ?? ??????? ????? ???????? ??????? ???????? ?????? ??? ??????? ????? ???? ??? ??????? ????????????? ??????? ???? ???? ?? ??? ??? ???? ???? ??? ?????????? / ?????????? ?? ????????? ????????????? ?????? ???? ???? ????? ???
????
???????? ?????????? ???? ??? ??? ?? ?? ?? ???????? ????????? ????????????? ?????? ???? ???? ??? ???????? ?????? ?????? ???? ???? ???? ?????? 08/2/2024 ?? ??? ??? ???? ???? ?? ??? ?????????? ????????? ??? ?? ??????? ???????"
12. The aforesaid order dated 15.01.2024 was challenged by the accused-applicants before this Court by mean of the Application u/s 482 No.2199 of 2024 (Taukeer Husain and Others Vs. State of U.P. and Another) and as no interim protection was granted, the trial court framed charges against the applicants vide order dated 10.04.2024, which is in issue in the present application.
13. While impeaching the order dated 10.04.2024, it is stated that no offence under Section 308 I.P.C. is made out. To substantiate this, counsel for the applicants says that the injuries are simple in nature and accordingly the trial court, after due application of mind over the material available on record, ought to have framed charges under Sectio 323/324 I.P.C. in view of the fact that in further investigation, the investigating officer in its report bearing No.6 (Parcha dated 15.04.2012) indicated that the offence under Section 308 I.P.C. is not attracted.
14. Learned A.G.A. for the State opposed the present application stating that the charges have been properly framed as required under the law and the trial court at the stage of framing of charges is not under obligation to minutely consider the material evidence available on record and the trial court at the stage of framing of charges has to consider the evidence and material available on record only prima-facie and as such no interference is required in the matter.
15. Considered the aforesaid and perused the record.
16. In order to appreciate the aforesaid, it would be appropriate to take note of Section 308 IPC, which reads as under:
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
17. From a bare reading of Section 308 IPC, it is apparent that the same is in two parts. First part relates to the case where hurt/injury is not caused and second part relates to the case where hurt/injury is caused and for both these types of cases different punishment(s) have been provided. In this view of the matter, causing hurt/injury is not an essential condition/ingredient to attract the provision of Section 308 IPC. Injury case and no injury case both are covered under Section 308 IPC.
18. Section 308 IPC indicates that if an act should have been done with such intention or knowledge and under such circumstances that in case the said act cause death, he would be guilty of culpable homicide not amounting to murder. This is relevant.
19. Thus, the totality of the circumstances of the case will determine the nature of the offence and not the fact that whether injury has been caused or not or injury is simple or grievous.
20. The intention or knowledge and the circumstances under which the act has been done is to be gathered from the allegations of the FIR, the evidence and other material and all other attending circumstances of the case.
21. There are allegations in the FIR lodged on 17.10.2011 by the opposite party No.2 that the accused persons were armed with lathi and danda. As per the FIR, on account of blows of lathi and danda the opposite party No.2 and her husband namely Ali Safdar sustained head injuries, which have already been indicated above.
22. It is also settled that at the stage of framing charge the test of prima-facie case has to be applied. If there is ground for presuming that accused has committed the offence, a court can justifiably say that a prima-facie case exists and framing of charge is justified. If on the basis of materials on record, the courts comes to the conclusion that commission of offence is a probable a case for framing charge exist. Further, an order of discharge would be warranted only in those cases where the court is satisfied that there are no chances of conviction and the trial court would be an exercise infutility.
23. In view of the aforesaid, this Court is of the view that submissions of the counsel for the applicants, based upon the nature of injuries sustained by the opposite party No.2 and her husband namely Ali Safdar, have no force.
24. Accordingly, the present application is dismissed.
Order Date :- 5.7.2024 (Manoj K.)