IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 19 of 2009 Reserved on: 11.09.2009 Date of decision: 30.10.2009 Ranjeet Singh … Petitioner Versus Beant Singh and others …Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. M.S. Guleria, Advocate. For the respondents: Mr. Baldev Singh, Advocate, for respondents No. 1 & 2. Mr. P.K. Sharma, Addl. Advocate General and Ms. Shubh Mahajan, Deputy Advocate General, for respondent No. 3. V.K. Ahuja, J.: This a revision petition filed by the petitioner under Section 397 read with Section 401 Cr.P.C. against the order of learned Additional Sessions Judge dated 10.2.2009, vide which respondents No. 1 and 2 have been discharged for the offence under Section 307 I.P.C. and the case has been remanded to the Court of learned Chief Judicial Magistrate, Una, holding trial under Section 326 I.P.C. and other sections, Briefly stated, the facts of the case are that on a complaint filed by the petitioner, an FIR No. 43/3008 was registered initially under Sections 341, 323, 324 read with Section 34 I.P.C. against respondents No. 1 & 2. On completion of the investigation, the challan 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 was filed in the Court of Judicial Magistrate for offence punishable under Sections 307 I.P.C. and other sections. The case was committed to the Court of learned Sessions Judge and was assigned to the learned Additional Sessions Judge, who heard the arguments on framing of charge and observed that prima facie, case under Section 307 I.P.C. was not made out, though it was made under Section 326, 341, 324, 323 read with Section 34 I.P.C. and, therefore, he remanded the case to the Court of learned Chief Judicial Magistrate, Una, for trial. Being aggrieved by the order passed by the learned Additional Sessions Judge discharging respondents No. 1 and 2 of the offence under Section 307 I.P.C. and not framing a charge under Section 307,the complainant has preferred the present revision petition. I have heard the learned counsel for the parties and have also gone through the record. The submissions made by the learned counsel for the petitioner were that the act of the accused was pre-planed and the weapon used was Kulhari and intention or knowledge was there that the injury can cause the death of the injured and, therefore, the ingredients of the offence under Section 307 I.P.C. were proved and accordingly, the charge should have been framed by the learned trial Court under Section 307 I.P.C. It was further submitted by the learned counsel for the petitioner that there is statement of the injured Gurmaj Kaur that a grievous injury was caused on her neck, shoulder and her husband also sustained simple injuries in this incident. To substantiate his submission that the charge under Section 307 I.P.C. was made, the learned counsel for the petitioner placed reliance upon the decision of the Apex Court in State of Madhya Pradesh Vs. Imrat & Anr., 2009(1) CRIMINAL COURT CASES 107 3 (S.C.). In that case, the observations made in Para-10 are relevant and are being reproduced below:- “To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” In that case, it was held by their Lordships that the accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. The main question for consideration was that intention and knowledge and under what circumstances the act was committed. It was clearly observed that it is sufficient in law that if there is present an intent coupled with some overt act in execution thereof. To substantiate his plea that the order discharging the respondents of the offence under Section 307 IPC is not a interlocutory 4 order and the revision petition is maintainable, the learned counsel for the petitioner had placed reliance upon a decision of this Court in State of Himachal Pradesh Vs. Harbans Singh and another, 1976 CRI. L.J. 894, wherein it was observed by this Court that prima facie case was made out for framing of a charge under Section 302 I.P.C. and in case the accused are discharged under Section 302 IPC and the charge has been framed under Section 326 and 324 IPC, the revision petition is maintainable and it was not barred under the provisions of Section 397(2) of the Code. On the other hand, learned counsel for the respondents No. 1 and 2 had submitted that from the perusal of the statements of the witnesses, no case under Section 307 IPC was made out and the powers of revision are to be sparingly used. To substantiate his submission, the learned counsel for respondents No. 2 and 3 had relied upon the decision in Khajjansingh and others Vs. State of Madhya Pradesh, 1996 CRI. L.J. 3774. It was held that the assessment of sufficiency of material for basing conviction for a particular charge is not within the domain of High Court when revisional jurisdiction is being exercised. The question to be considered was whether an injury in parietal region with a lathi would fall within the scope of Section 307 of Penal Code. I have considered the statement of injured Gurmaj Kaur and that of her husband Gurdyal and it is clear that the respondents took out a Kulhari, gave beatings to Gurmaj Kaur on her neck and shoulder and she became unconscious. The injuries in question were opined to be grievous in nature by the Medical Officer. A perusal of the decision of the Apex Court in State of M.P. Vs. Imrat (supra), clearly shows that the Court has to see whether the 5 act was done with the intention or knowledge and that intention or knowledge has to be gathered from the facts and circumstances of the case, keeping in view the weapon used, the nature of injuries also as well as the injury caused by the accused. The intention and knowledge that it can lead to the death of person can be gathered from the fact that Kulhari was used and injury was also caused on a vital part. Thus, there was the knowledge which can be attributed to the accused that the injury may cause the death of injured. Therefore, the ingredients of the offence under Section 307 I.P.C. were attracted to the present facts. I may also mention that in the observations made by this Court in State of Himachal Pradesh Vs. Harbans Singh and another, in Para-7, it was clearly observed that if there was prima face case for a charge under Section 302 I.P.C. It is a different matter whether witnesses would stand the test of cross-examination or not and what is the offence later on proved. It was further observed that if the accused has been charged for a minor offence and later on it turns out that the accused are guilty of a major offence then the Magistrate cannot punish them and it is, therefore, more proper for the Sessions Judge to have framed a charge under Section 302 I.P.C. and after recording of evidence, it was established that only an offence under Section 326 I.P.C. was only proved, then the accused could be held guilty accordingly. A perusal of the impugned order passed by the learned Additional Sessions Judge shows that he has given three reasons for holding that the offence under Section 307 I.P.C. It was observed as under:- “Thus the comulative reading of the M.L.C., the statements of the witnesses recorded U/S 161 Cr.P.C. and the fact that the cross FIR has been registered regarding the same 6 occurrence I am of the considered opinion that a charge U/S 307 I.P.C. is not prima facie made out.” It is, therefore, clear that one of the reasons given by the learned trial Court was that a cross case has been registered regarding the same occurrence, which consideration cannot in my opinion come in way in coming to the conclusion that if the charge framed under Section 307 I.P.C. was made out or not. No specific reason has been given as to how offence under Section 307 I.P.C. was not made out and once the evidence prima facie suggested that the provisions of Section 307 I.P.C. are attracted to the facts of the case. A charge ought to have been framed under that Section and it is on conclusion of the trial, the Court can determine if the offence was proved under Section 307 I.P.C. or some lesser was made out, but if the accused are tried for lesser offence and later on, they are to be held guilty for serious offence, it will not be possible for the Magistrate to hold him guilty and impose sentence warranted for a more serious offence. In view of the above discussion, I accordingly hold that the impugned order is liable to be set aside. The case is remanded to the Court of learned Additional Sessions Judge, who shall frame fresh charge as against the respondents under Section 307 I.P.C. as well as under other sections and shall proceed with the trial in accordance with law. It has been observed by the learned Additional Sessions Judge that another cross case was registered against the complainant for the same occurrence and according to law both the cases are to be decided by the same Court. The said file shall be sent by the learned Chief Judicial Magistrate, Una, to the Court of learned Additional Sessions Judge, who shall try both the cases and shall dispose of the same in accordance with law. The order passed by the Court of learned 7 Sessions Judge is set aside. The revision petition stands allowed accordingly. The observations made above are relevant for disposal of the present revision petition and the learned trial Court shall decide the case on merits not influenced by any observations made in this judgment while deciding the case. Parties to put up appearance before the Court of learned Additional Sessions Judge on 23rd November, 2009. ( V.K. Ahuja ), October 30, 2009 Judge (BSS)