Allahabad High Court
Mohammad Safique Alias Guddu And 3 ... vs State Of U.P. And Another on 29 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- CRIMINAL REVISION No. - 1553 of 2023 Revisionist :- Mohammad Safique Alias Guddu And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ishwar Kumar Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionists and learned A.G.A. for the State and perused the record.
This criminal revision is directed against impugned order dated 18.01.2023 passed by learned Special Judge (Gangster Act)/ Additional Sessions Judge, Court No.5, Ballia in Session Trial No.111 of 2019 (State Versus Safique and others) arising out of Case Crime No.204 of 2012 under Sections 308, 323, 504 and 506 I.P.C., Police Station Ubhaon, District Ballia.
By the impugned order, learned trial court has rejected the discharge application filed by the revisionists.
An N.C.R. was registered on 03.07.2012 with regard to the incident of the same date at 17.20 O'clock. According to the allegations of the NCR, the complainant Mohammad Naseem and his son Mohd. Azmal were vacating their house, then Guddu, Sadab, Shahjad and others with intention to kill, threatened, abused and assaulted them with lathi and danda, causing head injuries. Mohd. Azmal and Naseem Ahmad injured were medically examined. During investigation Section 308 I.P.C. was added and charge-sheet was submitted under Sections 308, 323, 504 and 506 I.P.C. The revisionists-accused filed application 10-Kha alleging therein that the case was registered as N.C.R. under Sections 323, 504 and 506 I.P.C. with the allegations that assault was made by lathi and danda causing head injuries. After investigation, the Investigating Officer without any material has added Section 308 I.P.C. According to the prosecution, two persons have suffered injuries. The complainant Naseem Ahmad had suffered two injuries on the head and one on back while other injured Mohd. Azmal has suffered three injuries on head, one injury on the finger of right hand and another injury on the finger of left hand. All the injuries are simple in nature and in X-ray no abnormality has been detected. There is no grievous injury or any fracture. The Investigating Officer has intentionally added Section 308 I.P.C. and has recorded statement of complainant and witnesses. According to their statement the injured became unconscious. The injured was never admitted in any hospital. X-ray was conducted after many days which casts suspicion on the prosecution case. On the aforesaid ground, it was prayed that no offence under Section 308 I.P.C. is made out, hence charges only under Sections 323, 504 and 506 I.P.C. be made. Learned trial court, after hearing both the parties, by the impugned order, has rejected discharge application.
It is contended by learned counsel for the revisionists that an N.C.R. was lodged by opposite party no.2 under Sections 323, 504 and 506 I.P.C. Opposite party no.2 and his son were medically examined at P.H.C. Siar on 03.07.2012. The X-ray of skull of opposite party no.2 was conducted at District Hospital, Ballia on 06.07.2012 in which no abnormality has been detected. The Investigating Officer, after receiving injury report without getting any oral statement recorded, added Section 308 I.P.C. The Investigating Officer has recorded statement of opposite party no.2 under Section 161 Cr.P.C. in which he reiterated the version of N.C.R. that he became unconscious. Thereafter, names of independent witnesses were added. All the injuries of the injured are simple in nature, hence no offence under Section 308 I.P.C. is made out. The impugned order passed by trial court is wholly illegally, arbitrary and not sustainable in the eye of law. The opposite party no.2 has not received any bony or grievous injury. He was fully conscious during the course of medical examination, but only related witnesses have stated that opposite party no.2 became unconscious when he received injuries. No independent witness or doctor has stated that opposite party no.2 became unconscious on account of head injury. The trial court has not recorded any finding or reasoning under which the charge under Section 308 I.P.C. is to be made. The trial court has acted like a post office to frame charge against the revisionists at the behest of prosecution and not applied its judicial mind. It has overlooked the apex court decision in the case of P. Vijayan Versus State of Kerala 2010 (2) SCC 398.
Learned A.G.A. opposed the prayer and submitted that both the injured have received head injuries. On the basis of evidence collected during the course of investigation, charge-sheet has been submitted adding Section 308 I.P.C. There is sufficient evidence to frame charge under Section 308 I.P.C. So there is no illegality in the impugned order.
In the N.C.R. it is alleged that accused with intention to kill have assaulted with lathi and danda causing head injuries. Mohd. Azmal and another person Naseer Ahmad have suffered injuries. One of the injuries of Naseem Ahmad is on the head which is lacerated wound 7 cm x 1 cm x Bone deep right side of skull.
Section 308 I.P.C. provides as under:
"308. Attempt to commit culpable homicide.?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."
Section 308 I.P.C. consists of two parts. First part deals with no injury case while second part deals with where injury has been caused. So, even if no injury has been caused Section 308 I.P.C. can be invoked. So what is relevant is intention or knowledge and not injuries while in the present case head injury has been caused with lathi and danda according to the prosecution case. So at this stage it cannot be observed that no offence under Section 308 I.P.C. is made out. It is matter of trial. It is settled principles of law that at this stage only prima facie case is to be seen. Learned trial court in the impugned order has described and analyzed all the facts and evidence available on record, thereafter came to the conclusion that offence under Section 308, 323, 504 and 506 I.P.C. is made out and has rejected the discharge application. There is no infirmity or illegality in the impugned order.
The criminal revision is devoid of merits and is hereby dismissed.
Order Date :- 29.3.2023 MN/-