Naveen Singhania vs Rajkumar @ Raja Saravgi

This revision petition has been preferred against the order dated 24.12.2016 passed by First Additional Session Judge, Camp at Burhar, District Shahdol in S. T. No.170/14 whereby learned Sessions Judge has held that no offence under Section 307/149 of the IPC is made out against the respondents / accused and only the offence punishable under Sections 147, 148, 294 and 325/149 of the IPC is made out which is not exclusively triable by the Session court. Hence, the Sessions Judge remitted the case to the CJM, Shahdol.

The facts giving rise to this revision petition are that on 23.12.2013 the respondents beaten the applicant by kicks and fists and also with lathi or rod and thereafter they threw him on the road in front of running vehicle with a view to kill him. Immediately FIR was lodged by the victim at Police Station Burhar where crime no.876/13 was registered for the offence punishable under Sections 147, 148, 307 and 294 of the IPC. During the investigation, it was found that the victim sustained grievous injury on his hand and charge sheet was filed under Sections 294, 147, 148 and 325/149 of the IPC before the JMFC. Where an application under Section 190 read with 209 of Cr.P.C. was filed by the applicant for taking cognizance under Section 307/149 of the IPC against the accused/respondents, which was allowed and the case was committed before the Session Judge and the learned First Additional Sessions Judge, link court Burhar, District Shahdol passed the impugned order which is under challenge here on the ground that the impugned order is contrary to law. At the stage of framing of charges appreciation of evidence is not required but the learned Additional Sessions Judge has appreciated the evidence and recorded finding that there is no prima facie reliable evidence with regard to commission of offence punishable under Section 307/149 of the IPC. While at the stage of framing of charge it has to be seen that whether prima facie sufficient material is available or not for prosecuting the accused persons. The victim and eye witness Durgesh Kumar have categorically stated in their statement under Section 162 of Cr.PC. and the victim in the FIR also has stated that during the incident the respondents / accused threw him on the road in front of running vehicles with a view to kill him. Father of the victim Kailash also reached at the spot to whom the victim disclosed the same fact. The aforesaid material evidence cannot be ignored merely on the ground that other witness have not stated the same thing about the aforesaid act of the respondents. Therefore, the impugned order be set-aside and the learned Session Judge be directed to frame charge under Section 307/149 of the IPC.

Having considered the contentions of learned counsel for the applicant and on perusal of the case diary, it is found that the statements of the applicant / victim and eye witness Durgesh and the averments of the FIR and the statement of father of the victim Kailash disclosed the fact that in the incident after beating the victim he was thrown on the road in front of running vehicles with a view to kill him. This circumstance shows that the applicant was assaulted with an intention to kill him. Therefore, in the present case, prima facie material is available on record to prosecute the respondents for commission of attempt to murder in furtherance of common object of unlawful assembly punishable under Section 307/149 of the IPC and the learned trial court has committed legal error by appreciating the evidence at this stage as the appreciation of evidence is not permissible, while the impugned order shows that learned trial court has appreciated the evidence in the light of the statements of other witnesses and other material available on record. With regard to framing of the charge it is settled law that even two contrary set of evidence are available, the charges should be framed as at this stage it cannot be decided that which set of evidence is wrong or which set of evidence is true. If at this stage one set of evidence, which is in favour of the accused is accepted then the version in favour of other party cannot be examined ever and it would cause injustice to the other party. Therefore, at this stage, on the basis of one set of evidence which is against the accused charge should be framed.

Hence, the impugned order is set-aside and the Magistrate is directed to send back the case to the concerned Session Judge and the concerned Sessions Judge shall frame the charge under Section 307/149 of the IPC along with other offences.

With the aforesaid, this revision petition is disposed of.

CC as per rules