Delhi District Court
Asif Khan vs The State (Govt. Of Nct Of Delhi) on 8 January, 2020
IN THE COURT OF MS MANJUSHA WADHWA
ADDITIONAL SESSIONS JUDGE-3 (SHAHDARA)
KARKARDOOMA COURTS, DELHI
Crl. Revision No. 82/19
Asif Khan
S/o Mohd. Murtaja Khan
R/o A-1/T-F-4, Shivanam Building
Shalimar Garden, Extn.-2,
Sahibabad, Ghaziabad,
Uttar Pradesh. ... Revisionist
Versus
1. The State (Govt. of NCT of Delhi)
2. Saleem Khan
S/o Shokat Ali
3. Afroz Khan
S/o Saleem Khan
4. Sameer
S/o Sh. Saleem Khan
R-2 to 4 R/.o H. No. 89, Vikrma Enclave,
Shalimar Garden, Sahibabad,
Ghaziabad, UP.
5. Rajeev Goel
S/o Sh. S.P. Goel
R/o D-1/76, Near Aggarwal Sweets,
DLF, Sahibabad, Ghaziabad,
Uttar Pradesh.
C.R.No82/19 Asif Khan vs. State & Ors. Page 1 of 6
6. Himanshu @ Honey
S/o Sh. Hans Raj
7. Chandra Kanta @ Guddo
W/o Late Sh. Hansraj
R-6 & 7 R/o C-1/22, DLF Flats,
Bhopura Chowk,
Ghaziabad, UP. ...Respondents
Date of assignment : 14.03.2019 Date of Arguments : 22.11.2019 Date of Pronouncement : 08.01.2020 ORDER ON REVISION PETITION
1. Revisionist has filed the present revision petition against impugned order dated 16.10.2018 whereby protest petition of the revisionist was dismissed for summoning accused persons under Section 302/34 IPC, however, the respondents- accused persons were summoned under Section 323 IPC.
2. Notice of the revision petition was issued to the State as well as other respondents. Trial Court record was requisitioned.
3. Ld. counsel for the revisionist has submitted that shoddy investigation has been carried out in this case; all the accused knew that deceased Javed was a heart patient and despite that beating was given to the deceased; deceased died due to beating given by accused persons; order dated 11.07.2016 passed by the ld. ASJ has not been considered by the ld. Trial C.R.No82/19 Asif Khan vs. State & Ors. Page 2 of 6 court wherein direction was given to IO to investigate the case keeping on view the fresh evidence brought by the complainant. It is submitted that offence under section 302/34 IPC is made out against the accused persons and accused persons should have been summoned for offence under Section 302/34 IPC.
4. On the other hand, Ld. Addl PP for the State as well as Ld. counsel for respondent nos. 2 to 7 have submitted that impugned order is based on facts, reasons and correct appreciation of law and it does not call for any interference by this Court.
5. Heard Ld. counsel for the revisionist as well as ld. counsel for the respondents and perused the record.
6. Background facts of the present case are that FIR no. 1005/15 was registered at PS Seema Puri under Section 302/34 IPC against accused persons Saleem Khan, Afroz Khan, Sameer, Rajeev Goel, Himanshu @ Honey and Chandra Kanta @ Guddo for allegedly beating Javed, who died in the hospital due to above beatings. After investigation of the FIR, closure report was filed by the IO in the Ld. Trial Court. The complainant/revisionist Asif Khan filed a protest petition to the cancellation report and Ld. Trial Court disposed of the same vide impugned order dated 16.10.2018 by observing that in the chargesheet filed by the police, cause of death of deceased Javed was cardiomyopathy, which is natural cause of death. Perusal of record shows that subsequent opinion was sought C.R.No82/19 Asif Khan vs. State & Ors. Page 3 of 6 regarding possibility of death as a result of assault by anyone, which was opined to be not as a result of assault. The Ld. Trial Court also placed reliance upon the subsequent opinion and held that offence under section 323 IPC is made out against the accused persons as the complainant has specifically stated that the accused persons, who have not been chargesheeted, gave beatings to the deceased Javed in his presence.
7. In Pitambar Buhan And Anr. vs State 1992 Cri.LJ 645, the Hon'ble High Court of Orissa has observed that taking cognizance is the threshold act of judicial proceeding relating to an offence and cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. The Magistrate is not supposed to act in mechanical manner to take cognizance.
8. Again while issuing process against the accused under Section 204 of the Cr.P.C. the Magistrate has to see whether there is sufficient ground for proceeding against him. In the statement of Asif Khan under Section 154 Cr.P.C. on the basis of which, present FIR was recorded, it is only mentioned that ac- cused persons gave beatings to Javed, who died in the hospital because of such beatings. There is no averment that deceased Javed was suffering from heart disease and accused persons knew the said fact. The fact of deceased Javed suffering from C.R.No82/19 Asif Khan vs. State & Ors. Page 4 of 6 heart ailment and that accused persons knew said fact surfaced only in the statement of Asif Khan and Murtaza under Section 161 Cr.P.C.
9. Indeed, there is no primafacie material to infer that the respondents-accused persons had knowledge of health con- dition of the deceased Javed. Pertinently, as per postmortem re- port, no external antemortem injury was seen and regarding cause of death, it is stated that opinion shall be given after the re- ceipt of histopathological report of heart and chemical analysis of the viscera sent to Central forensic science laboratory. FSL result of viscera was positive for ethyl alcohol. The Histopathology re- port dated 03.10.2015 mentions as "Microscopy shows features consistent with cardiomyopathy, possibly alcoholic." After obtain- ing FSL result and histopathological report, IO sought opinion vide application dated 16.12.2015 regarding cause of death from Autopsy surgeon, GTB Hospital. The subsequent opinion dated 15.07.2015 was given stating that death in this case is due to car- diomyopathy however deceased had consumed alcohol prior to death. After obtaining subsequent opinion, IO had written a letter dated 27.12.15 requesting the Autopsy Surgeon to opine specifi- cally whether it was a result of assault by anyone; whether it was a result of any disease and whether it was a natural cause of death and in response thereto Shalney Razdan, Senior Demon- strator, who had given subsequent opinion regarding cause of C.R.No82/19 Asif Khan vs. State & Ors. Page 5 of 6 death had opined on 30.12.2015 that cardiomyopathy is a result of disease of the heart which is a natural cause of death and that there is no evidence of assault as mentioned in the post-mortem report and thus is not as a result of assault by anyone.
10. Perusal of opinion dated 30.12.2015 makes it amply clear that cause of death was cardiomyopathy, which is a result of heart disease. Ld. Counsel for the revisionist also contended that the respondents-accused had motive to kill the accused as the deceased had taken a loan of Rs. 2,00,000/- from Guddo for purchasing I-10 car and there was dispute between them. In this regard, suffice is to state that the dispute between the parties is not sufficient to infer that the respondents-accused persons had intention to kill the deceased. Further, there is no primafacie material that the respondents-accused persons had killed the deceased Javed.
11. In view of foregoing discussion, the impugned order dated 16.10.2018 does not suffer from any illegality and impropriety. Revision petition is accordingly dismissed being devoid of any merit. TCR be sent back along with copy of the order.
File be consigned to record room. Digitally signed by MANJUSHA
MANJUSHA WADHWA
Location: Shahdara District,
WADHWA Karkardooma Courts, Delhi
Date: 2020.01.09 11:54:07 +0530
Announced in the open Court (MANJUSHA WADHWA)
Dated: 08.01.2020 Addl. Sessions Judge-3 (Shahdara)
Karkardooma Courts, Delhi
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