IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.2656 of 2009 Date of Decision: January 14, 2011 Subhash Chand. …Petitioner Versus State of Haryana and others. … Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Parminder Singh, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana. Mr. Akshay Bhan, Advocate, for respondent Nos. 3 and 4. Alok Singh, J. Complainant has invoked the revisional jurisdiction of this Court, assailing the order dated 31.07.2009 passed by learned Additional Sessions Judge, Karnal, in criminal case No.445 of 2009 pertaining to FIR No. 9 dated 08.01.2009, under Sections 323, 325, 452, 506, 307 read with Section 34 IPC, Police Station Butana. CRR No. 2656 of 2009 The brief facts of the present case, inter-alia, are that the complainant has lodged an FIR with the Police Station Butana, Nilokheri, District Karnal, which is reproduced as under:- “It is submitted that on 06.01.2009, I was present at Prem Sachdeva son of Shri Amar Nath’s residence House No. 106-A, School-cum-Canal Area, Neelokheri. It was about 7.00 p.m., time in the evening and on their land line telephone, I received a call from my daughter-in-law who told me to come to the shop immediately. Akhil alias Ashi son of Brij Mohan, resident of 17-G Hospital Area, Neelokheri has given serious injuries to Ajay. He had four other persons with him, who had wooden Bindas in their hands. I, immediately left that place and reached my shop and I saw that my son Ajay is lying in the road in front of my shop in an injured condition. I lifted him from there and got him admitted in the Civil Hospital, Nilokheri and when his condition did not improve there, then I made a request to the doctor that he may please discharge him. Then the doctor sahib, on the next day i.e. on 07.01.2009, discharged him and thereafter I took my son to Dr. Parveen Garg’s hospital at Karnal. He is still admitted there and is 2 CRR No. 2656 of 2009 lying unconscious and my daughter-in-law told me that Akhil and the above mentioned persons with him, on saying of Akhil, entered in the shop and after giving injuries to Ajay, they all tried to take him away by putting him in the car, but my daughter-in-law reached there at the spot and those persons ran away from the spot and while leaving the place of occurrence the said Akhil and his companion persons openly said that this time, he has been saved and it they got next opportunity, then they will kill him and Akhil and his father Brij Mohan, about 1-1/2 years ago, during the Ram- Leela days had given beating to my wife Raj Rani. Case in this regard is pending in the Court. There is a property dispute pending in the Court, between us and Brij Mohan father of Akhil. They put pressure on us to compromise the matter. On refusal to do so, they have committed the above occurrence. My son is in a very serious condition. Till today Akhil and his father have been putting pressure on us, that we should come to a compromise. I felt that my son will survive. But his condition is very serious. And on checking the Galla (Cash box) it is revealed that a sum of Rs. 40- 45 thousand is missing from there, which amount 3 CRR No. 2656 of 2009 has been taken away by the above said accused persons. It is therefore, requested to your honour that after taking stern legal action against above mentioned Akhil and his four companions, justice may kindly be done to my son and it shall be a great kindness of yours.” Having investigated the matter, police has submitted challan before the learned Magistrate under Sections 323, 325, 452, 506, 307 read with Section 34 IPC. The learned Magistrate committed the case for trial to the Sessions Court. Learned Additional Sessions Judge has heard the arguments of prosecution, as well as, the accused party on the question of framing of charge/discharge. Learned Additional Sessions Judge vide impugned order dated 31.07.2009 has opined that case under Section 307 IPC is not made out, hence, case be sent back to the learned Magistrate for trial under Sections 323, 325, 452 and 506 read with Section 34 IPC. Feeling aggrieved, complainant has filed present revision petition assailing the order dated 31.07.2009. Perusal of the record reveals that Ajay injured received head injury and was taken to the Civil Hospital, Nilokheri. When his condition was not improved, he was taken to private Hospital at Karnal. In the Civil Hospital it 4 CRR No. 2656 of 2009 was found that although, Ajay Kumar injured having head injury but there was no external injury in scalp & skull area, however, to rule out component of head injury, CT Scan and Neurosurgeries opinion is required. A medical Board was constituted and CT Scan was also conducted and it was found that there were some internal injuries on the skull, however, some changes are reported in pre-existing lesion or some unrelated pathology. Again MRI was suggested and report dated 02.03.2009 found that there is partial decrease in size of the lesions as compared to the previous MRI and these changes could be because of demyelization or trauma or secondary to vascular changes and it is opined that nature of injury is grievous, but not dangerous to life. On the basis of the statement recorded under Section 161 Cr.P.C., as well as, on the basis of medical opinion, prosecution has filed challan under Section 173 Cr.P.C. before the Magistrate and the matter was committed to the learned Magistrate for trial. The role attributed to the accused in the FIR is Akhil @ Ashi having a `binda’ (kassi) in his hand has inflicted injury on the head of the injured and one binda blow was given on the right hand of the injured. It is specifically mentioned in the statement under Section 161 Cr.P.C. of the injured that these injuries were caused with intend to kill the injured Ajay Kumar. 5 CRR No. 2656 of 2009 Learned Additional Sessions Judge while sending the case back to the Magistrate for trial after dropping Section 307 IPC has observed as under:- “From the reports of the Board and the fact that the injured was conscious and co-operative on 06.01.2009 the date of occurrence and MR of the brain conducted at Karnal shows that there was diffuse axonal injury. The injury who was having diffuse axonal injury, will be unconscious from the beginning. Hence, no prima facie case under Section 307 IPC is made out and a prima facie case under Sections 323, 325, 452 and 506 read with Section 34 of the Indian Penal Code is made out. The case file is being sent to the learned Chief Judicial Magistrate, Karnal, for disposal as per law by self or by assigning the same to any other competent court.” I have heard learned counsel for the parties and perused the record. From the perusal of the record, it is revealed that injured has in his statement under Section 161 Cr.P.C. attributed a specific role to the Akhil that he has given binda (Kassi) blow on his head and one binda blow on his right hand. He has also attributed role to the other accused. From the record, it reveals that injured was taken for first 6 CRR No. 2656 of 2009 time to Civil Hospital and thereafter taken to private hospital and twice MRI was conducted on his skull and it was found that there were some internal injuries, however, diffusion was noticed in both the MRIs. In the opinion of this Court, at the stage of framing of the charge, learned Additional Sessions Judge is not satisfied to drop the Section 307 IPC only on the ground that as per the medial opinion, injury found was of the grievous nature and not dangerous to life. At the time of framing of charge, learned Court should be satisfied from the material available on the record as to whether some act was done by the accused with intend to cause death of the injured. If injury is caused with intend to cause death, then prima facie charges under Section 307 IPC should not be dropped and accused must be put on trial. In the present case, injured has specifically stated under Section 161 Cr.P.C. that with intend to kill him injury was caused on his body by the accused-persons. Hon’ble Apex Court in the matter of Girija Shankar vs. State of U.P., reported in 2004 Crl. L.J., 1388 has observed as under:- “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 7 CRR No. 2656 of 2009 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.” From the verdict of Hon’ble Apex Court in the matter of Girija Shankar (supra), I find support that injury caused should be with intend to kill and it is not necessary that bodily injury capable of causing death should be found on the body. 8 CRR No. 2656 of 2009 In the facts and circumstances of this case, judgment of the learned Additional Sessions Judge cannot be sustained in the eyes of law. Order impugned is quashed. Learned Additional Sessions Judge is directed to frame the charges and to proceed with the trial in accordance with law. January 14, 2011 ( Alok Singh ) vkd Judge 9