2010 ALL MR (Cri) 408
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
A.V. POTDAR, J.
Shaikh Javed Sk. Osman & Ors.Vs.State Of Maharashtra & Anr.
Criminal Revision Application No.219 of 2009
17th December, 2009
Petitioner Counsel: Mr. S. V. CHILLARGE
Respondent Counsel: Mr. N. B. PATIL
Penal Code (1860), Ss.147, 148, 149 r/w. Ss.452, 326, 324, 307 - Criminal P.C. (1973), Ss.227, 228 - Framing of charge - Accused charged under Ss.147, 148, 149 r/w Ss.452, 326, 324 and 307 - Injuries are simple in nature and not as such that had not been treated immediately would have caused death - In the premise, held, though there is prima facie evidence to proceed against the applicants yet not for the charge under S.307 of the I.P.C., but for the remaining charges under Ss.147, 148, 149 r/w. Ss.452, 326 and 324 or other charges along with Arms Act - In the premise, the charge framed against the applicant requires to be altered or modified. AIR 1990 SC 1962 - Ref. to. (Para 8)
Niranjan Singh Karan Singh Punjabi Vs. Jitendra Bhimraj Bijja, AIR 1990 SC 1962 [Para 7]
2. By the present revision application, the applicants have approached this Court challenging the order dated 24.07.2009 passed by the Additional Sessions Judge, Beed below Exhibit-9 thereby rejecting the application of the applicants for modification in the charge to be framed.
3. Heard learned counsel for the applicants followed by the submissions of learned APP. None appears on behalf of respondent No.2, though duly served. Perused the copy of the charge-sheet made available by learned counsel for the applicants.
4. With the assistance of learned counsel for the applicant and learned APP, perused the statements of the witnesses recorded u/s.161 of the Criminal Procedure Code and the evidence collected during the investigation. It appears that the Sessions Case No.35/2008 is an offshoot of CR No.23/2007 registered with Paith Beed Police station on the complaint of respondent No.2, on 23.02.2007. Perusal of the complaint shows that the incident occurred in the evening of 23rd February 2007, at the residential premises of respondent No.2. It is alleged that when the complainant was taking meal, all of a sudden, door of the house was broke opened and two accused entered in the house holding revolver and swords. The complainant was brought outside the residential premises, on the point of revolver where the other accused were present holding deadly weapons. After the complainant was dragged out side the house all the accused assaulted him with the deadly weapons. It is alleged that when the assault was in progress, other family members of the complainant attempted to rescue the complainant, however they were also assaulted. The neighbours intervened and rescued the complainant and his family members and they were taken to hospital for treatment. After completion of investigation, charge-sheet was filed against the applicants.
5. During the course of submissions, it is urged that the entire evidence collected during the investigation was placed before the learned Additional Sessions Judge and the charge is framed u/s.147, 148, 149 r/w section 452, 326, 324 and 307 against the present applicants. It is also urged that the trial court has not considered the medical evidence, which is placed before it. The medical certificate of all the four injured persons indicate that the injuries sustained by the complainant and his relatives are neither grievous in nature nor they were on the vital parts of the body. The medical officer has not opined that the injuries sustained were of the nature that if had not immediately treated, would have caused death. In the premise, it is urged that the charge u/s.307 of the Cr.P.C. will not sustain, however it may sustain u/s 326 or 324 r/w other sections of the IPC.
7. A reference of judgment in the matter of "Niranjan Singh Karan Singh Punjabi Vs. Jitendra Bhimraj Bijja" reported in AIR 1990 SC 1962 found in the judgment of the trial court. In para 5 and 6 of the reported judgment, criterion are given as to how to deal with the application u/s.227, if filed by the defence, at the time of framing of the charge. Considering the submissions, though the application is moved u/s.227 of the Cr.P.C. for discharge, however the same has to be considered for modification of the charge and not for total discharge.
8. Perusal of the complaint as well as statements of the witnesses recorded during the investigation prima facie indicate that the accusation against the applicants in respect of forcible entry in the house and dragging the complainant out of the house on the point of revolver and deadly weapons, stands sustained. However, so far as injuries sustained by the complainant and his family members, required to be considered in the light of the weapons recovered at the instances of the applicants. The weapons recovered are deadly, however at the same time, considering the nature of the injuries sustained by the injured are also required to be taken into consideration. The medical officer has described the injuries as simple in nature and not as such that had not been treated immediately would have caused death. In the premise, it is clear that though there is prima facie evidence to proceed against the applicants, yet not for the charge u/s.307 of the I.P.C., but for the remaining charges u/s.147 to 149 r/s 452, 326 and 324 or other charges along with Arms Act. In the premise, the charge framed against the applicant requires to be altered or modified. Hence, the application (Exhibit-9), which was rejected, requires to be sent back for reconsideration in the light of the evidence collected during the investigation.
9. In the result, the revision application succeeds. The Additional Sessions Judge, Beed, on whose file the Sessions Case No.35/2009 is pending is directed to reconsider the charges to be framed on the basis of material available on record and frame the charge against the applicants accordingly.