Indian Kanoon - Search engine for Indian Law

4. I have been informed that against said order, the petition is pending before this Court for quashing of the said order dated 24 th April, 2015.

5. As already recorded by the trial court, the case of prosecution is based upon ocular testimony of Vinay Srivastav, who claims to be an eye witness of the incident. Perusal of statement of Vinay Srivastav reveals that on 27th October, 2014 at 11.15 P.M he was present at his house when Aruna Gupta, mother of his friend Amit, came to his house and told that accused Vaibhav along with other two associates were abusing Amit outside the house of Amit. At that time, Amit was not in his house. Vinay accompanied Aruna to her house. Outside the house of Aruna and Amit, all the three accused Vaibhav, Love and Sahil were found standing at that time. Immediately thereafter Love went away in his vehicle. Vinay questioned accused Sahil and Vaibhav as to why they were abusing Amit, upon which Sahil and Vaibhav purportedly informed Vinay that Amit was to be set right as it appeared that Amit was not in his proper senses. When Vinay Srivastav enquired with Sahil and Vaibhav, they too left. Thereafter, Amit returned to his house and he was told about the incident. Upon it, Amit said that he would go and talk to the accused persons and asked his mother to go inside the house. Mother of Amit went in the house. Amit and Vinay went to nearby located market complex. When they reached near complex, accused Sahil and Vaibhav also reached there on a scooty. It was Amit who signaled the scooty to stop. Vaibhav and Sahil stopped their scooty. Thereafter, Amit questioned them and objected to abusing in front of his house. Upon it, Vaibhav and Sahil both' got enraged and purportedly exhorted saying that they would teach Amit a lesson. Thereafter, Sahil assaulted Amit with his belt, whereas accused Vaibhav gave leg and fist blows to Amit. It is claimed that in this process the ignition key of the scooty of the accused came in the hand of Amit and in the consequent grappling the key struck cheeks of Vaibhav. The eye witness intervened in the fight. Meanwhile, accused Sahil and Vaibhav called Love, telephonically. Love also came to the spot. On reaching the spot. Love also started assaulting Amit. All the three accused pounced upon Amit and during that process, Vaibhav and Love were exhorting to finish Amit. All three accused threw Amit on the ground as a result of which Amit's head struck the footpath. All the three accused continuously gave leg and fist blows upon Amit. Eye witness Vinay called PCR from his mobile.

In the case of Suraj Dev (Supra) even there was an exhortation by one of the accused and even when the wooden log was hit on the head, the said case was found U/s 304 and not U/s 302 of IPC. Similarly in the case of Randhir Singh (Supra) despite exhortation to kill, it was held that it would be Sec. 304 of IPC which applies and not Sec. 302 of IPC.

Keeping in view the above mentioned facts & circumstances in the present matter also, even if statement of eye witness is taken as unrebutted, still prima facie Sec. 304 of IRC gets only attracted and not Sec. 302 of IPG. Therefore, let charges be framed U/s 304 of IPC r/w 34 against all the three accused."

15. Mr. Mittal has also relied upon the following cases :

a) In the case of Randhir Singh &Ors. vs. State decided by Division Bench of High Court on 12th July, 2013 in CrI. Appeal No. 403/1997. In that case, on the issue of demand of some money a quarrel took place suddenly in which one accused picked up a brick lying nearby and hit the witness and then brought a danda from nearby. Meanwhile, other two accused also came armed with lathies and they hit the complainant with lathi on his head. One lathi blow was given on the head and one on the shoulder. During the incident, one of the accused also exhorted and shouted to kill the victim. Thereafter, the accused took out a knife and stabbed the victim on left side of his chest as a result of which injured fell down and the assailants fled from the spot, it was held by High Court that the incident occurred at the spur of moment in a sudden fight without pre meditation and infact at the beginning of the fight, neither the deceased nor two of the accused were present. It was held by High court that there was no previous enmity between the parties to carry out the assassination of the deceased and that other accused were not aware that one was carrying knife in his pocket. Mere exhortation on the part of the accused was hold not to mean necessarily that he wanted the accused armed with knife to kill the deceased. In the facts & circumstances, the conviction of the accused was converted to under Section 304 part-I of IPC.