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2010 Supreme(Raj) 1042
[Citation : 2011(2) RLW 1104 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Shankar Agrawal Vs. State of Rajasthan & Anr. (Chauhan, J.)
HON'BLE R.S. CHAUHAN, J.
Shankar Agrawal
Versus
State of Rajasthan & Anr.
S.B. Criminal Revision Petition No.1242 of 2010, decided on 23.12.2010
Rajesh Goswami, for Petitioner;
Javed Chaudhary, Public Prosecutor;
Pankaj Gupta, for Complainant
Headnote:Penal Code, Secs. 149 and 307 — Vicarious liability — Unlawful assembly — Application of Sec. 307 IPC — 11 persons were named in the FIR —Police submitted charge-sheet against 4 persons and out of them one person was discharged — Investigation against rest of the accused was kept pending — Injuries were not sufficient in ordinary course of nature to cause death — Held — When prima facie case is made out that more tan five persons are still involved in the case, the petitioner can be roped with the aid of Sec. 149 IPC —"Hurt" as defined in Sec. 319 IPC as merely causing pain is sufficient to bring the case within the fold of Sec. 307 IPC — An act which reveals the intention and knowledge, through an act of attempt to cause death is punishable under the law — Justified in framing charges for offences u/Sec. 307 and 307/149 IPC against the petitioner. (Paras 24, 27, 31 & 35)
Petition dismissed.
n.M lafgrk] /kkjk 149 ,oa 307 & LFkkUukiUu nkf;Ro & fof/k fo:) teko Fks & iqfyl us pkj ds fo:) vkjksi i= is'k fd;k ftlesa ls ,d dks fueqZä fd;k & 'ks"k vfHk;qäksa ds fo:) vUos"k.k yfEcr j[kk x;k & {kfr iz—fr ds lkekU; vuqØe esa e`R;q dkfjr djus gsrq i;kZIr ugha Fkh & vfHkfu/kkZfjr & tc izFke n`"V;k ;g ekeyk curk gS fd ik¡p ls vf/kd O;fä bl izdj.k esa 'kkfey gS rks izkFkhZ dks Hkk-na-la- dh /kkjk 149 dh lgk;rk ls ck¡/kk tk ldrk gS & /kkjk 319 esa ;Fkk ifjHkkf"kr ^^pksV** ftlls nnZ gksrk gks og ml izdj.k dks Hkk-na-la- dh /kkjk 307 ds nk;j esa ykus gsrq i;kZIr gS & dksbZ Hkh —R; tks e`R;q dkfjr djus ds —R; ds tfj;s vk'k; ,oa Kku izdV djrk gS og bl fof/k ds rgr n.Muh; gS & izkFkhZ ds fo:) Hkk-na-la- dh /kkjk 307 ,oa 307@149 ds rgr vijk/k gsrq vkjksi fojfpr djus esa U;k;ksfpr gSA
;kfpdk [kkfjt dhA ¼in la- 24] 27] 31 o 35½
Hon'ble CHAUHAN, J.—Aggrieved by the order dated 2nd November, 2010, passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, whereby the learned Judge has framed the charges for offences under Sections 148, 323, 324, 324/149, 325, 325/149, 307, 307/149 IPC against the petitioner, the petitioner has approached this Court.
2. Briefly, the facts of the case are that on 24th October, 2008, the complainant-respondent No.2, Rakesh Kumar, lodged a report at Police Station Chandwaji, District Jaipur, wherein he leveled various allegations against the present petitioner along with the other co-accused persons. In the report, he alleged that during the course of a meeting in between the partners of a firm, suddenly the petitioner, along with the other co-accused persons, assaulted Mukesh, Umesh and Mahesh with lethal weapons. Consequently, these three persons sustained a large number of injuries. The Police registered a FIR for offences under Sections 143, 323, 307, 147, 148 and 149 IPC.
3. On completion of the investigation, the Police submitted a charge-sheet before the trial court only against four persons, including the present petitioner, and the matter was kept pending under Section 173(8) Cr.P.C. against one Ramesh Patidar and others. Vide order dated 2nd November, 2010, the learned trial court framed the charges against the petitioner, along with other co-accused persons, for the above mentioned offences, while discharging the co-accused, Neeraj Verma. Hence, this petition before this Court.
4. Mr. Rajesh Goswami, the learned counsel for the petitioner, has vehemently contended that although eleven persons were named in the FIR, the Police had submitted charge-sheet only against four persons. The said charge-sheet was submitted against Shankar Agrawal, the present petitioner, Rajendra Sharma Master, Rizwan and Neeraj Verma. While submitting the charge-sheet against four persons, it has kept the investigation pending, under Section 173(8) Cr.P.C., only against Ramesh Patidar. However, vide order dated 2nd November, 2010, while the petitioner has been charged for the aforementioned offences, the learned Judge has discharged Neeraj Verma. Therefore, presently there are only three accused-persons who have been charged and the investigation against the fourth accused-person is still pending. Since there are only four accused-persons, therefore, no “unlawful assembly” was formed. Thus, the roping of the petitioner with the aid of Section 149 IPC is unjustified. In order to buttress this contention, the learned counsel has relied upon the cases of Gangadhar Behera & Ors. vs. State of Orissa ((2002) 8 SCC 381) and on Dhupa Chamar and Ors. vs. State of Bihar (AIR 2002 SC 2834).
5. Secondly, according to the prosecution, there are three injured persons, namely Umesh, Mukesh and Mahesh. Although injured persons have suffered a large number of injuries, but most of the injuries are simple in nature. According to the injury report, although Umesh had suffered fifteen injuries, but only a single injury has been assigned to the present petitioner. Furthermore, Mahesh has suffered a single grievous injury. The injuries are neither “sufficient in the ordinary course of nature to cause death”, nor “dangerous to life”. Therefore, the offence under Section 307 IPC is not made out against the petitioner.
6. Thirdly, since nothing has been recovered from the petitioner, during the course of investigation, there is no corroborative evidence to prove the fact that the petitioner had assaulted the injured persons with a sword.
7. Lastly, the complainant himself has submitted an affidavit wherein he has claimed that he had lodged the FIR under pressure. In fact, in his affidavit, he has resiled from the contents of the FIR. According to the learned counsel, since the complainant has backtracked from the FIR, the very foundation of the prosecution is demolished. Therefore, according to the learned counsel, the learned Judge w
