O R D E R

% 18.04.2012

1. This Criminal Revision Petition has been filed by the petitioner impugning the order dated 21.2.2012 vide which he was charged for having committed the offence punishable under Section 302/34 IPC passed by learned Additional Sessions Judge.

2. Learned counsel for the petitioner Shri Jitender Sethi submitted that he is not praying for quashing of charge but limiting his submissions to the extent that from the allegations made in the charge sheet, prima facie an offence under Section 304/34 IPC is made out and petitioner should have been charged for the said offence.

3. Referring to the charge sheet and the post mortem report, learned counsel for the petitioner submitted that as per the complaint, the assailants were armed with danda, lathi, kirpan and rod. The post mortem and FSL report reveal that injury No.1 is on a non-vital part i.e. thigh and could be caused with ‘kirpan’ Cause of death, as per post mortem report is haemorrhagic shock subsequent to injury to left femora vessels by stab injury. The post mortem report does not mention that the injuries mentioned were sufficient to cause the death in the ordinary course of nature. Learned counsel for the petitioner has referred to the judgment Gokul Parashram Patil v. State of Maharashtra 1981 Crl.L.J. 1033 wherein, in the case of solitary blow given by the accused to the deceased on a non-vital part, was considered not sufficient to convict the appellant for the offence punishable under Section 302 IPC but under Section 304 Part II IPC.

4. Counsel for the petitioner further relied upon the judgment Union of India v. Prafulla Kumar Samal & Anr. 1979 Crl.J. 154 to buttress his contention that if two views are possible, the one favourable to the accused should be taken by the Court. He has relied upon the following observations of the Apex Court in support of his contention that if two views are possible, the benefit should be given to the accused:-

“The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.”

5. On behalf of the State, it has been submitted that from the statement of the complainant as well as the nature of injuries, post mortem report and the FSL result as prima facie case under Section 302/34 IPC is made out, the petitioner has rightly been charged for the said offence.

6. FIR No.82/2011, P.S. Moti Nagar was registered on the basis of statement of a minor child aged 13 years who is son of the deceased and an eye witness. As per the statement made by the son of the deceased, his two sisters along with his mother reside separately at his maternal grandmother’s house whereas he used to reside with his father. On the day of occurrence, he along with his father returned from the factory situated in Anand Parbat and let out by his father. After reaching home, while his father was still on the motor cycle, he started opening the lock. At that time, his cousins Amritpal Singh and Harsimranjit Singh who were armed with hockey and rod along with 2-3 other persons, one of them was armed with kirpan and another with danda, reached there. While uttering the words “is saale ne hamara jeena dubhar kar rakha hai roz hamen aakar gaaliyan deta hai aur jab se iski rakhel Gursharan Kaur ise chod kar gayi hai tab se yeh hamen bahut pareshan kar raha hai aaj hamne iska khel khatam kar dena hai” and started assaulting his father. In order to save his life, his father rushed to the house of their neighbour Balbir Singh but the offenders chased him and managed to catch hold of him in the verandah of that house. When he (complainant) tried to save his father, one of those boys assaulted him, pressed his throat and