Back
IN THE HIGH COURT OF ALLAHABAD
UMESH CHANDRA SHARMA, J.
Nazim and Others - Applicants
Versus
State of U.P. and Another - Opposite Parties
Application U/S 482 No. 19835 of 2019
Decided On : 18-04-2023
Indian Penal Code,1860 - Section 147, 323, 324, 504, 506 and 326 – Offence of Voluntarily causing hurt - Criminal intimidation – Charged - Petitioner no. 1 was married with opposite party no. 2 as per Muslim rites and ritual and she left her matrimonial house without any sufficient cause and started living separately with her parents whereupon applicant no. 1 filed a petition for restitution of conjugal rights being case no. in Court of Principle Judge Family Court, but opposite party no. 2 did not appear and petition was later on dismissed as withdrawn - Divorce petition between petitioner no. 1 and opposite party no. 2 took place and petitioner no. 1 was again married with Allia D/o Shamshad as per Muslim rites and rituals - It appears that opposite party no. 2 got annoyed after hearing news of second marriage of petitioner with Allia and lodged a false report - Petitioner no. 1 is husband of opposite party no. 2 (as per para 8 of affidavit, she was divorced - Petitioner nos. 2 and 3 are Dewar, petitioner no. 4 is mother-in-law and petitioner no. 5 is sister-in-law (nanad) of opposite party no. 2
Finding of Court : Court is of considered view that if an stick is used in causing hurt or grievous hurt on ear of a victim, Section 326 I.P.C would not be attracted, if such injury would have been caused by knife, or by other means mentioned in Section 326 I.P.C, such injury would be covered under Section 326 I.P.C provided there is hundred percent loss of hearing capacity of concerned ear - Court is of considered view that learned A.C.J.M. Ist Aligarh and the then learned Sessions Judge, have been failed in appreciating the facts, medical reports and law in right perspective and have wrongly concluded that there was a grievous hurt defined under Section 320 (3) I.P.C. to opposite party no. 2, and punishable under Section 326 I.P.C - Power of taking cognizance regarding taking cognizance has been considered by Apex Court and High Courts, and it has been concluded that at time of taking cognizance, concerned Magistrate has limited power and at this stage learned Magistrate or concerned Court can not add or alter Section(s), considering case diary and the charge-sheet - If concerned Magistrate or Sessions Judge are of view that some Section(s) have been left by the I& Ors., it has power to add or alter Section(s) at the time of framing charge, but not at the stage of taking cognizance.
Result : Application under Section 482 Cr.P.C., is allowed
JUDGMENT :
1. Heard Sri Sanjay Mishra, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State as none appeared for opposite party no. 2 and perused the material available on record.
2. This application under Section 482 Cr.P.C has been moved by the applicant-accused persons to quash the order dated 26th July, 2018 passed by A.C.J.M. Ist, Aligarh in Criminal Case no. 1021 of 2018 arising out of Criminal Case No. 222 of 2017 and order dated 16.04.2019 passed by the learned Sessions Judge, Aligarh in Criminal Revision No. 331 of 2018 - Shahnawaz and others Vs. State of U.P. under Section 147, 323, 324, 504, 506 and 326 I.P.C, Police Station Kotwali City, District Aligarh, pending in the Court of A.C.J.M. Ist, Aligarh, by which both the courts below have passed the order against the applicant and the learned A.C.J.M. Ist, Aligarh took the cognizance under the aforesaid Sections and the learned Sessions Judge dismissed the criminal revision against such order on 16.04.2019.
3. In brief, facts of the case are that opposite party no. 2 lodged N.C.R No. 58 of 2017, under Sections 323 and 506 I.P.C on 15.05.2017 at 11:40 p.m. against the applicant nos. 2 to 5, later on, which was converted into F.I.R on 26.05.2017 under Sections 323, 324 and 506 I.P.C as Crime No. 222 of 2017 against them. The opposite party No. 2 was medically examined on 16.05.2017 and supplementary medical report was prepared on 09.06.2017. Evidences were recorded under Section 161 Cr.P.C and a charge-sheet no. 194 of 2018 dated 29.06.2018 under Sections 147, 323, 324, 326, 504 & 506 I.P.C was submitted in the Court of A.C.J.M Ist Aligarh, who took cognizance by the order dated 26th July, 2018.
4. The petitioner no. 1 was married with opposite party no. 2 as per Muslim rites and ritual on 22.04.2014 and she left her matrimonial house without any sufficient cause and started living separately with her parents whereupon applicant no. 1 filed a petition for restitution of conjugal rights being case no. 873 of 2014 - Naazim Vs. Smt. Rukhsana in the Court of Principle Judge Family Court, Aligarh, but opposite party no. 2 did not appear and the petition was later on dismissed as withdrawn. The divorce petition between the petitioner no. 1 and opposite party no. 2 took place on 13.06.2017 and the petitioner no. 1 was again married on 11.05.2017 with Allia D/o Shamshad as per Muslim rites and rituals.
5. It appears that the opposite party no. 2 got annoyed after hearing the news of second marriage of the petitioner with Allia and therefore lodged a false report. The petitioner no. 1 is the husband of opposite party no. 2 (as per para 8 of the affidavit, she was divorced on 13.06.2017). The petitioner nos. 2 and 3 are Dewar, petitioner no. 4 is mother-in-law and petitioner no. 5 is sister-in-law (nanad) of opposite party no. 2. The petitioner no. 1 lodged a report against opposite party no. 2, Ayyub and Kaisar sons of Saeed, Parvez and Belal sons of Abrar Ahmad on 15.05.2017 in Case Crime No. 207 of 2017 under Sections 147, 148, 307, 452 and 504 I.P.C at P.S Kotwali Nagar, Aligarh. In the aforesaid incident Sharfaraz petitioner no. 2 sustained grievous injury and was medically examined on 15th May, 2017 and an x-ray report was also prepared on 16.05.2017.
6. The J.M Ist, Aligarh, summoned the accused persons including opposite party no. 2 by order dated 09.04.2018 as well as one Sultan for facing trial in the aforesaid Sections and rejected the final report no. 13 of 2017 dated 20th November, 2017. The opposite party no. 2 and other accused persons filed criminal revision no. 230 of 2018 - Rukhsana and others Vs. State of U.P and others which was dismissed on 17.09.2018.
7. Opposite party no. 2 and three others filed criminal misc. application no. 37751 of 2018 in the High Court, challenging both the above orders passed by A.C.J.M. Ist and the Revisional Court and further proceedings of the aforesaid case has been stayed vide order dated 22.10.20
Point of Law : Court is of considered view that the injuries caused by stick in right ear of the victim by Naazim can not be said to be a grievous hurt as there is no medical report that there has be....
Court emphasized that personal vendetta not motivated by caste does not support charges under SC & ST Act; conviction modified from grievous to simple injury under IPC based on nature of the injuries....
The court emphasized that to establish grievous hurt under the IPC, intent or knowledge of causing such harm must be proven; otherwise, a conviction can be modified to lesser charges.
The court established that for a charge under Section 307 IPC to be sustained, there must be clear evidence of intent to kill, which was not present in this case due to the nature of injuries and the....
The prosecution failed to prove the charges of attempted murder and grievous hurt due to lack of evidence regarding intent and the nature of injuries.
Conviction upheld for grievous hurt under IPC 326, but quashed for attempted murder under IPC 307 due to lack of evidence of intent.
The appellate court must show compelling reasons to overturn an acquittal, and mere witness testimony without corroboration is insufficient to establish intent for assault.
The court established that injuries must meet specific legal definitions to constitute grievous hurt, and mere allegations without corroborative evidence are insufficient for conviction.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
