State of H.P. vs Sanjay Kalyani & Anr.

Chander Bhusan Barowalia, J.

The present revision petition is maintained by the petitioner under Section 397/401 of the Code of Criminal Procedure, against the order dated

30.7.2016, passed by the learned Sessions Judge (Forests), Shimla, H.P. in Case No.55Â2/16/14, FIR No.09/2014, dated 16.01.2014, registered in

Police Station Sadar,District Shimla, H.P., whereby the accused/respondents (hereinafter referred to as ‘the Accused’) were discharged of the

offence under Section 307 of the Indian Penal Code.

Briefly stating the facts giving rise to the present appeal are that the complainant/injured Bablu Gupta, in his statement, under Section 154 Cr.P.C.

alleged that on 16.01.2014, at about 4.30 P.M., while he was sitting on his Thadi (Counter), three boys, namely Sunil, Kalyani and third boy whose

name he does not know, came there. They were stated to be the residents of Krishna Nagar, against whom he had already lodged a complaint with

the police. Sunil and Kalyani were having rods in their hands and Kalyani inflicted a blow with the rod on the backside of his head with the intention to

kill him and Sunil dishonestly removed Rs.22,000/Â from the cash box of the complainant (Bablu Gupta). All those three boys gave beatings to the

complainant for 10Â15 minutes with iron rods, fist and leg blows and thereafter ran away from the spot. Due to the beatings, he received injuries on

his both hands, left arm, left leg and left shoulder and also on the backside of his head.

It has been alleged that the injured (complainant) was referred to the D.D.U. Hospital, Shimla, where he was medically examined on 16.01.2014, at

6:55 P.M. by Dr. B.S. Rathour, who, on local examination, noticed three injuries on the person of the complainant and referred him for CT Scan of his

shoulder and XÂray of elbow and wrists. In the C.T. Scan of head, no fracture seen. In the XÂray of elbow, no fracture seen whereas in the XÂray

of wrists, fracture of 5th phalanx with displaced fracture fragment seen. It has been alleged that after going through the reports, the doctor opined that

injury No.1 and 2 were simple in nature and injury No.3 was of no risk to life.

It has been alleged that the FIR No.09/14, dated 16.01.2014, was registered against the accused persons at Police Station, Sadar, District Shimla,

under Sections 307, 392, 506, 323, 325 read with Section 34 I.P.C. Further, it has been alleged that the impugned order is against the law and facts on

record and the same is based on conjectures and surmises, hence the impugned order is liable to be set aside.

It has been contended that the learned lower Appellate Court has failed to take judicious view as per the settled law and has not appreciated the

prosecution evidence in its right perspective and has discharged the accused persons in a mechanical way merely on hypothesis, conjectures and

surmises and the same is liable to be set aside.

It has been contended that the reasons for discharged given by the learned Sessions Judge(Forests), Shimla are not sustainable in the eyes of law

and the accused persons have been discharged on the unreasonable grounds, which has resulted in grave miscarriage of justice. Further, it has been

alleged that the vital evidence of the prosecution has been overlooked by the learned Appellate Court and has been dealt in a slip shod manner,

whereas the complainant, in his statement, has categorically stated that he was brutally beaten by the accused persons with iron rod with the intention

to kill him and also gave threat to his life.

It has been alleged that the learned Court below has not properly appreciated the material on record and the inference and the conclusion arrived at

by the learned Court below are patently erroneous, which has caused prejudice and grave injustice. Hence, the impugned order is liable to be set

aside. It has also been alleged that the learned Court below has wrongly brushed aside the statement of the complainant under Section 161 and 154

Cr.P.C.

It has been alleged that the learned Court below has grossly erred while discharging the accused persons for commission of offence under Section

307 of the Indian Penal Code by giving the reasons that injuries sustained by the complainant are not on the vital part of his body, whereas, for framing

of charge under Section 307 IPC, only intention of the accused persons and weapon of offence used by the accused persons is to be seen and

considered not the injury sustained by the injured/complainant.

Heard.

The learned Additional Advocate General appearing for the petitioner/State, has argued that the learned Court below has committed illegality while

not framing charge under Section 307 IPC. He has further argued that charge is made out under Section 307 IPC. On the other hand, the learned

counsel appearing for the respondents has argued that there is no ingredient after going through the whole of the record, which spell out anything to

charge the respondents under Section 307 IPC.

The injured was medically examined on 16.01.2014 by Dr. B.S. Rathour, who, on examination, noticed three injuries on the person of the

complainant (injured) and referred him for CT Scan of his shoulder and XÂray of elbow and wrists. In the C.T. Scan, no fracture was seen. In the

XÂray of elbow also, no fracture was seen, whereas in the XÂray of wrists, fracture of 5th phalanx with displaced fracture fragment was seen. The

doctor opined that injuries No.1 and 2 were simple in nature and injury No.3 was of no risk to life.

The FIR No.09/14, dated 16.01.2014, was registered against the accused persons at Police Station, Sadar, District Shimla, under Sections 307, 392,

506, 323, 325 read with Section 34 I.P.C., but the medical evidence coupled with the other factors, which have come on record nowhere shows that

injury on the person of the complainant was dangerous to life or there was any intention of the respondents to cause death.

As discussed hereinabove, the Medical Officer in the MLC has not mentioned any of the injury, which was dangerous to life, rather, he has

mentioned that injury No.3 was of no risk to life and injury No.1 and 2was simple in nature. Consequently, this Court finds no illegality in the order

passed by the learned Court below.

The petition is accordingly dismissed. Parties, through their counsel are directed to appear before the learned Court below on 25th July, 2018.

Pending application (s), if any, also stand disposed of.