Patna High Court - Orders
Anjani Kumar Chaudhary vs State Of Bihar & Anr on 23 February, 2012
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No. 676 of 2008
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Anjani Kumar Chaudhary Son of Sri Gauri Kant Chaudhary, resident of
Village- Nehra, P.S. Manigachhi, District- Darbhanga.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Sunil Sahni Son of Ram Narain Mukhia, resident of Village- Nehra, P.S.
Manigachhi, District- Darbhanga.
.... .... Opposite Parties
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Appearance :
For the Petitioner/s : Mr. Md. Khurshid Alam, Advocate
For the Opposite Parties No. 2 : Mr. Jai Prakash Verma, Advocate
For the State : Mr. Z. Hoda, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL ORDER
5. 23-02-2012Heard Mr. Khurshid Alam, learned counsel for the petitioner, Mr. Jai Prakash Verma, learned counsel for opposite party no. 2 and Mr. Z. Hoda, learned A.P.P. for the State.
This application is directed against the order dated 27.05.2008 passed in Sessions Trial No. 350/2007 by the Additional District and Sessions Judge, F.T.C. V Darbhanga. By the impugned order the opposite party no. 2 has been given the benefit of charges not being framed against him under Sections 307 and 386 of the Indian Penal Code and only charges under Sections 147, 148, 504, 323 and 324 of the Indian Penal Code have been framed and the case transferred to the Court by the Chief Judicial Magistrate for trial. The impugned order has been passed on the petition filed by the opposite party no. 2 and others Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 who are accused in the case on 15.01.2008 under Sections 227 and 228 of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as the 'Code'). Earlier the opposite party no. 2 and others had moved this Court in Cr. Misc. No. 13987 of 2007 in which the order taking cognizance dated 16.01.2007 under Sections 147, 148, 504, 323, 324, 307, 386/34 of the Indian Penal Code was challenged. By order dated 05.11.2007 this Court has permitted the application to be withdrawn with a liberty to the petitioners of the said case to agitate their grievances on the basis of materials available on record before the trial Court at the time of framing of charge or during the trial. The opposite party no. 2 and others preferred to file a petition under Sections 227 and 228 of the Code and the impugned order was the result thereof.
Learned counsel for the petitioner submits that there are strong indications from the materials collected during investigation that the opposite party no. 2 and others had assaulted the informant with the intention to kill which is reflected by the statement of various witnesses as well as the fact that repeated blows by sharp weapon as well as lathi was inflicted upon the informant by opposite party no. 2 and others on the vital part of the body, that is, head. This according to him, is a sound ground for framing of charge under Section 307 of the Indian Penal Code. Learned Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 counsel also points out that the portion of the impugned order in which the Court has stated that from the evidence of the witnesses at paragraphs no. 5, 6, 17 and 19 in the case diary it was evident that they had not supported the version of the prosecution as far as the ingredients required to be fulfilled under Section 307 of the Indian Penal Code are concerned, is erroneous. He has assisted this Court on the basis of the statements made in the case diary which earlier had been called for by this Court and since been received.
On the basis of the statements it is submitted that all those witnesses have made categorical statement that opposite party no. 2 and others assaulted with the intention to kill. Learned counsel has relied on the following decisions in support of his contention:
(1) State of Bihar Vs. Ramesh Singh reported in (1977) 4 S.C.C. 39, the relevant being at paragraphs no.
5, 6 and 8.
(2) Yogesh Vs. State of Maharashtra reported in (2008) 10 S.C.C. 394, the relevant being at paragraph no. 16.
(3) Supdt. and L. R. Vs. Anil Kumar Bhunja reported in (1979) 4 S.C.C. 274.
Learned counsel for the opposite party no. 2 on the other hand has defended the order and has submitted Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 that the basic ingredients required for framing of charge for putting the person on trial under Section 307 of the Indian Penal Code is the intention or knowledge that such act can cause death to the person on whom the same is inflicted. He submits that in the present case from the F.I.R. as well as the statement of the witnesses recorded in the case diary it is apparent that the specific exhortation by the opposite party no. 2 was that he wanted to teach a lesson to the informant. He submits that in view of the fact that the intention was very clear, from the speech itself where it was stated that the same was with the intention only to teach a lesson, there cannot be any shadow of doubt that whatever occurred thereafter by way of assault was not with the intention and knowledge to kill the informant. He submits that though intention is an abstract word but the same has to be gathered from the attending circumstances as well as the conduct of the parties which can reasonably point out to the fact as to whether there was an intention and knowledge of the person who is alleged to have made overt act, to kill the victim. He submits that from the facts of the present case though there may have been blows, even repeated sblows, which hit the informant on the head, but because there was no intention to kill, charge under Section 307 of the Indian Penal Code would be inappropriate and even inapplicable. He submits that even the injury report shows Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 that all the four injuries are simple in nature. Though injury no. 1 is said to have been caused by a sharp cutting weapon, but the Medical Board report has stated that injury no. 1 was curved which according to him could not have been caused by the Farsa blow, as alleged in the F.I.R. as well as in the subsequent statement of the witnesses examined. Learned counsel thus submits that the nature of injury as well as the specific and categorical statement of the informant in the F.I.R. as well as the statement made before the police where it is only stated that at the very beginning and before assaulting the accused had stated that they wanted to teach the informant a lesson, there cannot be any doubt in the mind of any person including the Court that intention to kill was clearly lacking.
Learned counsel for the petitioner by way of reply reiterated the points urged by him earlier and has added submitting that no prejudice is being caused to the accused if Section 307 of the Indian Penal Code is also one of the Sections for which trial is held. He submits that in view of the fact that in the present case all other sections are triable by the Court of Judicial Magistrate but if Section 307 of the Indian Penal Code is added then it has to be tried by the Court of Sessions and in that view of the matter if at all at a later stage during enquiry and trial it transpires that there are sufficient materials for charging the accused under Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 Section 307 of the Indian Penal Code also, then the Magistrate shall have to commit the case to the Court of Sessions and this would cause undue delay and is not in the interest of justice.
Learned counsel for the opposite party no. 2 has countered this proposition by stating that in fact the same goes in favour of the accused since from the beginning there cannot be any presumption about the offence which is not borne out from the records and on which the Court, after applying its Judicial mind, has taken a decision. On the contrary, he submits that if at all sufficient materials do come during the course of trial the matter can be appropriately dealt with as the Code has provided sufficient scope for the same.
Learned A.P.P. for the State has assisted from the case diary and has submitted that the submissions made by learned counsel for the opposite party no. 2 appear to be correct based on the materials collected during the investigation as recorded in the case diary.
Upon considering the rival contentions as well as the materials available on record and taking into consideration the decision of the Court relied upon by the parties, this Court finds that there is not much substance in the contention of learned counsel for the petitioner. From the F.I.R. as well as from the statement of the witnesses it is Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 apparent that at every place in the F.I.R. as well as in the statement of the witnesses examined by the police the said witness begins with the statement that initially the intention was only to teach a lesson and whatever followed by way of subsequent assault clearly cannot be held to be one to kill. There cannot be an intention to kill in the background of the incident since the same has taken place, as alleged by the informant himself, because informant did not pay amount as demanded by the opposite party no. 2 on the occasion of Holi.
The facts in the case of State of Bihar Vs. Ramesh Singh (Supra) are materially different inasmuch as the accused was discharged completely without having to face trial. In the present case the accused have been charged under various sections of the Indian Penal Code and only under Sections 307 and 386 of the Indian Penal Code charges have not been framed against them. Similarly in the case of Yogesh Vs. The State of Maharashtra (Supra) the issue was whether the accused was rightly directed to face trial or should have been discharged. In the present case the issue is not whether the accused should face trial or be discharged but whether Section 307 of the Indian Penal Code should be added to the charges framed against them. The ratio in the case of Supdt. and L.R. Vs. Anil Kumar Bhunja (Supra) are also not applicable in the Patna High Court CR. REV. No.676 of 2008 (5) dt.23-02-2012 facts and circumstances of the present case. Thus, the decisions relied upon by learned counsel for the petitioner are not applicable and do not come to his aid in the present case.
For the reasons aforesaid, this Court does not find any merit in this application and the same is accordingly dismissed.
(Ahsanuddin Amanullah, J.) Anand Kr.