IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.176 OF 2008 1. Shamsher S/o Rafeeq @ Rasheed 2. Matloob S/o Rasheed 3. Yousuf S/o Rasheed 4. Shamshad S/o Rasheed All resident of Village Chandpur Police Station Pathri District-Haridwar ……… Revisionists Versus State of Uttarakhand & another …... Respondents Dated: November 26, 2008 Sri Manish Arora, learned counsel for the revisionists. Sri M.A. Khan, learned brief holder for the State. HON. DHARAM VEER, J. This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the order dated 27.8.2008 passed by Additional Sessions Judge/Ist F.T.C., Haridwar in Sessions Trial No.458/07, State Vs. Shamsher and others, whereby the learned Additional Sessions Judge/Ist F.T.C. has framed the charge of offence punishable u/s 323 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC), and u/Ss 304 and 308 IPC against the revisionists. 2. I have heard Sri Manish Arora, learned counsel for the revisionists and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on file. 3. In brief, the facts of the case are that on 13.9.2007 at about 6 P.M. construction work of drain was going on under the supervision of Salim (member of Panchayat) in which flowing of water was stopped due to which the water entered into the house of Gaffar 2 (complainant). Then the complainant opened the incoming of water meanwhile the revisionists-Shamsher, Matloob, Shamshad and Yousuf gathered at the place of occurrence and caused the injuries to the mother-Wahidan and brother- Rijwan of the complainant with LATHI and SARIAS due to which his brother and mother got serious injuries on the head. His mother and brother were taken for the treatment in the Government Hospital by the brother and nephew of Gaffar (complainant). The condition of his mother and brother was serious. This incident was witnessed on the spot by Sabeer, Mangta and also by other people of the village, who have saved their lives. With these averments, F.I.R. was lodged by Gaffar at Police Station Pathri on 13.9.2007 at 9:20 P.M. Later on Wahidan has died and her postmortem was conducted on 14.9.2007 at 3:30 P.M. Rijwan and Sarajul were also medically examined by Medical Officer at HMG Hospital, Haridwar on 13.9.2007 at 8:40 P.M. and 9:00 P.M. respectively. On the basis of this evidence, the Investigating Officer has conducted the investigation of the case and after completing the investigation he filed the charge sheet against the revisionists. 4. After considering the entire evidence available on record and after examining all the documents, injury reports and the statement of the witnesses recorded by the I.O., learned Additional Sessions Judge/Ist F.T.C. has framed the charge against the revisionists u/Ss 323 r/w 34, 304 and 308 IPC. Feeling aggrieved by the order dated 27.8.2008, the revisionists have come up in revision before this Court. 5. State counsel has filed the counter affidavit annexing the statements of Gaffar(complainant), Sarajul and Rijwan recorded by the Investigating Officer u/s 161 Cr.P.C. 6. From the perusal of the statement recorded u/s 161 Cr.P.C. and the injury reports and the postmortem 3 report filed by the parties before this Court at this stage it is proved that there is sufficient evidence for framing the charge u/Ss 323 r/w 34, 304 and 308 IPC against the revisionists. Learned Additional Sessions Judge/Ist F.T.C. has committed no illegality and impropriety while framing the charge against the revisionists for the above said offence. It is a settled legal position that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. From the above said discussion and from the evidence available on record, at this stage there is ample evidence to frame the charge against the revisionists u/Ss 323 r/w 34, 304 and 308 IPC. 7. In view of the aforesaid facts, I am of the view that the order dated 27.8.2008 passed by Additional Sessions Judge/Ist F.T.C., is correct & justified and I do not find any illegality, incorrectness or impropriety in the said order. 8. For the reasons recorded above, the revision is devoid of merits and is accordingly dismissed in-limine. (Dharam Veer, J.) 26.11.2008 RG