Decided on May 25,1999

BIKRAM SINGH Respondents


ARUN KUMAR GOEL, J. - (1.) THIS revision is directed against the order dated 30 -06 -1997 passed by learned session judge, Jammu in case No.263/sessions, whereby charge under section 304 part II R.P.C. was framed against the respondent, state questioned this order as according to it at this stage keeping in view the materials on record, a prima facie case for charging the respondent under Section 302 RPC, is clearly made out.
(2.) FACTS giving rise to this revision need to be briefly referred to. As per prosecution case, deceased Gurbachan Singh alongwith his brother Darshan Lal was carrying on utensils shop at Janipura, Jammu. Deceased owed Rs. 900/ - to the respondent No. 1 for supply of stoves.
(3.) WITH a view to make demand of this amount, respondent is stated to have visited the shop of the deceased and demanded money. Deceased did not make the payment and informed the respondent that these are earlier hour of the day and he is not in a position to make the payment. At such point of time, further case of the prosecution is that the deceased was threatened by the respondent to the effect that in case his payment is not made by the evening, he will not leave the deceased to live. In this background respondent is stated to have visited the shop of the deceased around 6.15 P.M. for effecting recovery of his outstanding dues from latter, again when demand was made, deceased is stated to have informed the respondent that because of end of the month he is not in a position to pay the amount outstanding, however, he will soon pay the same. At this point of time, respondent is stated to have taken out a screwdriver measuring 25 Cms its handle was 9 Cms and length of the portion below, it was 15 Cms. front portion of the screw driver was 3 Cms and 1/2  wide, with this screw driver hit a single blow on the left temporal region above the roof of the ear, this resulted in causing injury to the deceased. Before causing this injury, because of non -payment of his outstanding dues, respondent is stated to have hurled abuses on deceased. After the injury has been caused to the deceased by the respondent, his brother Darshan kumar raised an alarm and the people from nearby rushed to the spot, when respondent fled away from the spot. Gurbachan Singh was removed to the Hospital in an injured and precarious condition, finally on 24.01.1997, he succumbed to injury afore -mentioned and thus died. After completion of the investigation of the case, respondent was sent to face the trial under section 302/452 R.P.C and after having been commentated to the Court of Sessions, in the course of proceedings impugned order has been passed by the learned Sessions Judge below. Learned counsel for the parties were heard at length and with their assistance record of the case has also been examined. Learned Government Advocate submitted that in the circumstances as well as the back -ground of this case, learned court below has fallen into error while passing the impugned order. Prima facie statement of Darshan Lal brother of the deceased, who being the eye witness of the incident clearly indicated that it was not a case of sudden injury having been inflicted by the respondent upon the deceased, but it was a clear cut case of premeditated act on his part, when he came duly prepared as well as armed with the weapon of offence, a screw driver and when money was not forth -coming, he with a view to do away with the life of the deceased caused injury on a vital part of the body knowing fully well that it is likely to cause death in the ordinary course of nature. Thus he urged for setting aside the impugned order and directing the Court below to frame charge under section 302RPC and out the respondent to trial there under. Mr. Bakshi, learned counsel appearing for the respondent, while cotroverting all the pleas urged on behalf of the State has supported the impugned order and also placed reliance on 1997 Cr. L.J. 831, Mavial Thomban Nambir, Appellant Vs. State of Kerala, Respondent and 1995 CRIL.J 4168, Saurp Singh, Appellant Vs. State of Haryana, represented by the Home Secretary, Respondent, WITH Giani Ram, Petitioner Vs. State of Haryana and others. Respondents and on the basis of these decisions of the Supreme Court urged the impugned order neither suffers from any impropriety nor illegality, as such it deserves to be upheld and revision dismissed.;

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