IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.09.2006
CRL. REV. 286/1997
22.09.2006
VIJAY KUMAR and NAVEEN KUMAR ..... Petitioners
versus
THE STATE and OTHERS ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. K.K. Sareen
For the State : Mr Pawan Sharma
For the Complainant : Mr K.K. Manan.
CORAM:-
THE HON'BLE MR. JUSTICE BADAR DURREZ AHMED
1. Whether Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest YES
BADAR DURREZ AHMED, J (ORAL)
1. This revision petition has been filed inasmuch as the
petitioners are aggrieved by the order on charge dated 30.5.1997 as well as the
formal charge framed on the same date by the learned Additional Sessions Judge.
The charges have been framed against the petitioners under Sections 308/427/34
IPC. The learned counsel for the petitioners stated, at the outset, that he is
not challenging the order insofar as the charge under Section 427/34 IPC is
concerned. However, he is aggrieved by the framing of the charge under Section
308/34 IPC and it is to this limited extent that this revision petition is being
argued.
2. The learned counsel for the petitioners straightaway drew my
attention to the impugned order on charge and to paragraph 7 thereof wherein the
following is recorded:
? 7. In the present case it is appearing on record in the testimony of
witnesses examined u/s 161 Cr.P.C. and the other material available on record
that the parties did have a quarrel earlier on 5.7.95. The matter was
compromised before the police. It cannot, thus, be said that there was no
previous enmity.?
3. With reference to the aforesaid extract, the learned counsel for
the petitioners submitted that the purported quarrel of 05.07.1995 is not
mentioned in any of the statements of the witnesses taken under Section 161
CrPC. He further submitted that there is no record of any matter being
compromised before the police. In view of this, he submitted that the very
basis of framing the charge under Section 308/34 IPC is taken away because it is
only on the basis of these purported allegations that the learned Additional
Sessions Judge came to the conclusion that there was previous enmity between the
parties.
4. The learned counsel for the petitioners then referred to the
portion of the impugned judgment wherein the following is recorded:
? The perusal of record go to show that it is true that initially the nature of
injury as declared on the MLC by RML hospital is shown a ?Simple? with blunt
object. However, there is a certificate dated 16.4.1996 being a letter
addressed to SHO of P.S. by the RML hospital. It is reported in the said
letter that the case had been reviewed by the team of Neuro-surgeons namely Dr.
L.N. Gupta and Dr. A.K. Srivastava regarding the nature of injuries on the
person of injured. It has been opined by them that the nature of injuries is
`Grievious'.?
5. He submits that the purported certificate dated 16.04.1996 did
not form part of the documents filed by the prosecution along with the challan
nor did it form part of the record of the court nor was there any witness cited
by the prosecution who would prove this document. Furthermore, he submits that
the signature on the purported document dated 16.4.1996, a copy whereof is
placed at page 35 of the paper book, is that of one Kuldeep Kumar, for Medical
Superintendent, RML Hospital, New Delhi. The original of this purported letter
is available on the file of the trial court and I have examined the same. When
the same is put against the light, the name of one Dr. Bhushan appears and the
same has apparently been concealed by white fluid and on top of it the signature
of the said Kuldeep Kumar for the Medical Superintendent has been indicated. In
any event, it has further been submitted by the learned counsel for the
petitioner that this document is not a part of the record as there is no order
passed by the court taking such document on record.
6. The learned counsel for the petitioners lastly submitted that in
paragraph 8 of the impugned order, there is reference to a photocopy of a letter
dated 19.4.1996. The relevant paragraph reads as under:
? 8. Ld. complainant's counsel Shri R.K. Jain during arguments has filed
before me a photocopy of the letter dated 19.4.96. The same goes to show that
injured can do simple memorizing but not difficult. He failed on long turn
memory span function.?
7. The learned counsel for the petitioner referring to the
aforesaid extracts submitted that the purported letter dated 19.4.1996, firstly,
is not the original and, secondly, it has been introduced by the complainant at
the time of arguments on charge before the learned Additional Sessions Judge and
the same ought not to have been looked into as the document did not come from
the prosecution. The learned counsel for the petitioners, therefore, submitted
that the charge under Section 308/34 IPC which has been framed against the
petitioners has so been framed because the learned Additional Sessions Judge has
considered all the aforesaid materials which he could not have looked at the the
time of framing of charge and, therefore, the order requires to be set aside to
this extent.
8. The learned counsel for the State was also heard. He could not
controvert the fact that nowhere in the statements of witnesses recorded under
Section 161 CrPC is it mentioned that there was a quarrel between the parties
on 05.07.1995. He was also unable to show that the matter was allegedly
compromised before the police. According to him, there is no record of the
same. This being the case. The conclusion of the learned Additional Sessions
Judge that there was previous enmity between the parties is without any basis.
9. The learned counsel for the State also fairly stated that the
purported certificate dated 16.4.1996 did not form part of the challan. He also
submitted that no supplementary challan under Section 173(8) CrPC was filed.
However, this certificate dated 16.04.1996 was filed alongwith an application
moved by the IO requesting that this letter be taken on record. But, there is
no order of the court taking this document on record. He also submits that no
witness has been cited on behalf of the prosecution who would go to prove this
document. Therefore, in my view, under these circumstances, the purported
document dated 16.04.1996 ought not to have been considered by the learned
Additional Sessions Judge while framing the charge under Section 308/34 IPC
against the petitioners. The fact that he did so clearly demonstrates that the
order is erroneous and requires to be set aside on this question.
10. As regards the letter dated 19.04.1996, a photocopy of which
was handed over by the complainant counsel, the counsel for the State has
nothing to state inasmuch as this document did not proceed from the prosecution.
The learned counsel submits that the prosecution is not relying upon this letter
at all. The fact that the learned Additional Sessions Judge took note of this
letter and was, to some extent, influenced by the same, also goes to show that
the order, insofar as the charge under Section 308/34 IPC is concerned, is
erroneous.
11. At the time of framing charges, the trial court is required to
consider only the material produced by the prosecution alongwith its charge
sheet and/or supplementary charge sheet. It is not even to look at the
documents which the accused may produce in its defence. In the present case, I
find that the learned Additional Sessions Judge has transgressed his arena of
jurisdiction by looking at documents that do not form part of the record. The
learned Additional Sessions Judge has also erred on facts in recording that in
the Section 161 statements of the witnesses, there is mention of a quarrel
having taken place on 05.07.1995. He has also committed a gross error in noting
that the matter was compromised before the police when, even according to the
prosecution, there is no such record of any such fight or compromise.
12. In these circumstances, the impugned order is set aside insofar
as the charge under Section 308/34 IPC is concerned. As regards the charge
framed under Section 427/34 IPC, the same is maintained. Since a proper
consideration in respect of the allegations under Section 308 IPC has not been
undertaken by the learned Additional Sessions Judge, I am of the view that this
matter should be remanded on this question to the learned Additional Sessions
Judge for considering arguments afresh on the basis of material on record.
This revision petition is allowed in part as indicated above.
Interim orders stand vacated.
BADAR DURREZ AHMED
(JUDGE)
September 22, 2006
M
