Crl.Rev.No. 2452 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 2452 of 2009 (O&M) Date of decision: 15.9.2010 Liyakat Ali ......Petitioner Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.V.K.Chaudhary, Advocate, for the petitioner. Ms.Shubhra Singh, DAG, Haryana. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure (Cr.P.C. for short) challenging order dated 20.8.2009 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhari, whereby charge was not framed against the accused under Sections 302 and 307 of the Indian Penal Code. The prosecution case, in brief, as noticed by the trial Court in para 1 of the impugned judgment, reads as under. “The case of the prosecution is that on 29.11.2008 when complainant Liyakat Ali resident of Naharpur was coming to his village from outside, he received a call on his mobile that Rafakat and others had Crl.Rev.No. 2452 of 2009 (O&M) 2 launched an attack at the house of his brother Akhtar. He rushed to the house of Akhtar. When he reached near the house he heard commotion. Then he heard gun shots. In an instant he saw Rafakat and Riyasat dragging Akhtar out of the house. They were armed with swords. Bhura, Shokat, Furkan, Abid, Farman, Irshad, Yasin, Mehmood and Mohsin armed with swords, lathis and hockies were accompanying Rafakat and Riyasat. Meharban who was armed with gun. Popin and Dilshad who were armed with country made pistols were also members of the assailing party. Rafakat and Riyasat gave sword blows on the neck and head of Akhtar. As several villages gathered there, the assailants fled with weapons hurling threat that in future Akhtar would be done to death. When Liyakat Ali entered the house, his brother Dilshad, son Javed and Imran son of Akhtar met him. They informed that all the assailants had given beatings to Akhtar and had also damaged the windows, doors and other fixtures. Liyakat Ali found some empty cartridges from the spot.” Learned counsel for the petitioner has submitted that at this stage, learned trial Court had erred in framing the charge against the accused under Section 304 IPC by basing reliance on the medical evidence. The accused had inflicted injuries on the person Crl.Rev.No. 2452 of 2009 (O&M) 3 of the deceased. It could only be seen during trial as to whether it was a case under Section 302 IPC or Section 304 IPC. The deceased had suffered eight injuries with sharp as well as blunt weapon. Dilshad son of Gafoor Khan had also made a statement that during investigation Dilshad son of Adrish had fired at him with a country made pistol with intention to kill him but the same crossed over his head. He had hidden in a nearby house out of fear. However, no charge had been framed under Section 307 IPC. Learned State counsel, on the other hand, has opposed the petition. A perusal of the record reveals that deceased Akhtar had suffered eight injuries, the same, as reproduced in para 2 ( c) of the grounds of petition, read as under: “(i) Incised wound on right occipital region of the size of 8x 0.5 x 10 cm near the right ear, bone deep. (ii)Incised wound 10 cm x 4 x 0.5 cm on right elbow bone deep. (iii) Incised wound 10 x 5 cm on the right leg. (iv) Lacerated wound on the basis of left hand 5 x 5 cm. (v) Lacerated wound 3 x 2 cm on the tip of right little finger. (vi) Contusion 10 x 5 cm on the right thigh. Crl.Rev.No. 2452 of 2009 (O&M) 4 (vii) Incised wound 12 x 5 cm on the vault of the skull. (viii) Reddish blue bruise on the back of buttocks 5 x 3 cm and 7 x 3 cm obliquely placed.” A perusal of the said injuries reveals that the deceased had been inflicted injuries with sharp as well as blunt weapons. Two injuries are on the head of the deceased with sharp edged weapon. As per the postmortem report, the deceased had suffered multiple injuries including head and had medical problem. Heart of the deceased had been sent for pathological examination. The cause of death would be given after the receipt of the said report. The report of the department of Pathology, as reproduced in the impugned order, reads as under:- “GROSS DESCRIPTION: Heart: Received a specimen of heart weighing 360 gms and measuring 14 x 10 x 7 cms. On cutting open thickness of right ventricular wall, left ventricular wall and interventricular septum is 0.6, 2.1and 1.3 cms. Respectively. The tricuspid, mitral, pulmonary and aortic valve circumference measure 10.5, 11.5, 9.5 and 8.5 cms respectively. Stump of aorta measure 2.5 cms. The apex and interventricular septum show gray white areas. Both the coronaries show narrowing of lumen. The Crl.Rev.No. 2452 of 2009 (O&M) 5 left coronary artery bears a stent. MICROSCOPIC DESCRIPTION Heart: Representative sections examined from different areas of heart show patchy areas of fibrosis in the interventricular septum and apex. Sections from both the arteries show complicated atherosclerosis. – Chronic ischaemic heart disease with coronary artery disease.” On the basis of the said report, the following medical opinion was given by the Civil Hospital, Yamuna Nagar, which as reproduced in the impugned order reads as under:- “After considering the Pathologist report No.Path/08/1 dated 3.1.2009 of Akhtar Ali son of Gafoor Khan at department of Pathology PT.B.D.Sharma PGIMS, Rohtak. The cause of death in this case is due to chronic Ischamemic heart disease.” On police request, Medical Officer gave the following opinion, as reproduced in para 13 of the impugned order, :- “The possibility of precipitating myocardial infraction in chronic heart disease by the injuries as shown in MLR, cannot be ruled out.” Thus, as per the medical opinion, cause of death of the Crl.Rev.No. 2452 of 2009 (O&M) 6 deceased in this case was due to chronic heart disease. As per the opinion of the Medical Officer, the possibility of precipitating myocardial infraction in chronic heart disease by the injuries as shown in the MLR could not be ruled out. Thus there was possibility that the heart disease suffered by the deceased had been precipitating due to the injuries caused by the accused. The fact that as to whether the case would fall under Section 302 IPC or Section 304 IPC can be determined only during trial. At the stage of framing of the charge, the trial Court was expected to see as to whether a prima facie case was made out against the accused or not but was not required to test the medical evidence in a manner tested by the trial Court. It can be only established during trial as to whether the accused were aware of the condition of the deceased and with what intention they had inflicted the injuries on the person of the deceased. Learned trial Court has not made any reference to offence under Section 307 IPC in the impugned order. In these circumference, this petition is allowed. The impugned order is set aside and the trial Court is directed to pass a fresh order qua framing of the charge against the accused in accordance with law. SABINA) JUDGE September 15, 2010 anita