- (1.) VINOD Prasad, J. The applicant Latoori Singh who is the informant of Crime No. 184 of 2004 has approached this Court with the prayer that the order dated 5-4-2005 passed by the Additional Chief Judicial Magistrate, Court No. 9, Aligarh in Case No. 266 of 2005, State v. Bhagat Singh and Ors. , be quashed alongwith the order dated 31-10-2005 passed by Additional Sessions Judge, Court No. 1, Aligarh passed in Criminal Revision No. 313 of 2005, Latoori Singh v. State of U. P. and Ors. By the impugned order, the Additional Chief Judicial Magistrate has rejected the prayer of the applicant-informant for summoning the accused under Section 308 I. P. C. The lower Revision Court by the order dated 31-10-2005, aforesaid, has rejected the revision filed by the applicant-informant. Hence, this application invoking the inherent jurisdiction of this Court under Section 482 Cr. P. C. for the relief mentioned above.
(2.) THE factual aspect of the case are that the daughter-in-law of the informant Latoori Singh, namely Smt. Gajno Devi wife of Padam Singh was present in her house when the co-villager accused persons Bhagat Singh, Guddu, Prem Chandra and Smt. Katura, w/o Bhagat Singh, were blocking the drain of the house of the informant on 16-12-2004 at 1. 20 p. m. THE objection raised by Smt. Gajno Devi resulted in assault on her by lathi, danda and saria preceeded by vetuparisation as a result of which, she sustained injuries. Smt. Gajno Devi was medically examined on the same date at 3 p. m. having four injuries on her person and for injury No. 1, she was advised X- ray and was referred to M. S. Hospital, Aligarh. In doctor's opinion all the injuries were caused by hard and blunt object. X- ray report of Smt. Gajno Devi dated 17- 12-2006 indicated fracture of her skull bone in interior part. On the basis of X-ray report, the Medical Officer C. H. C. , Kahir, Aligarh gave a supplementary report that injury No. 1 of the injured was grievous in nature, therefore, offence was altered and Investigating Officer engineered the investigation and after completion of it submitted a charge-sheet for offences under Sections 323, 325, 504 I. P. C. in the Court of A. C. J. M. , Court No. 9, Aligarh, on the basis of which, Case No. 266 of 2005, State v. Bhagat Singh and Ors. was registered in the Court. Informant Latoori Singh thereafter filed an application in Court for taking cognizance of offence under Section 308 IPC against the accused. THE said application was considered and rejected by the Magistrate vide his impugned order dated 5-4-2005 who was pleased to summon the accused only for offences under Sections 323, 325, 504 IPC and fixed 6-5-2005 for their appearance. Aggrieved by the aforesaid order dated 5-4-2005, the informant Latoori Singh, preferred Criminal Revision No. 313 of 2005 before the Additional Sessions Judge, Aligarh which was heard and rejected by Additional Sessions Judge, Court No. 1, Aligarh, vide his impugned order dated 31-10-2005. Hence, informant has invoked the power of this Court under Section 482 Cr. P. C. for the prayed relief. I have heard Sri Raj Singh, learned Counsel for the applicant at a great length as well as learned A. G. A. As agreed between both the parties, this application is being disposed of finally at the admission stage itself. Learned Counsel for the applicant contended that since there was fracture of skull bone of the victim, the offence under 308 IPC is made out against the accused persons and the Magistrate without any application of mind followed the opinion of the police and rejected the application of the informant for summoning the accused under Section 308 IPC. He contended that the assault was made by the accused with the knowledge that if death will insue, the accused will be guilty for offence under Section 304 IPC and hence, the offence under Section 308 IPC is made out against the applicants. He further contended that lower Revisional Court in a cursory manner has rejected the revision filed by the informant.
(3.) LEARNED AGA on the other hand submitted that the impugned orders are absolutely justified and deserved to be upheld. Considering the rival submission, it is to be seen that prima facie there was the opinion of the doctor that the victim Smt. Gajno Devi had sustained a fracture of her skull bone. In the opinion of the doctor, therefore, the said injury was grievous. For making out of an offence of attempt to commit culpable homicide, under Section 308 IPC it is necessary that the Act be done with the knowledge and under such circumstances that if death will insure the accused will be guilty of culpable homicide not amounting to murder under Section 304 IPC. On such proposition when I cogitate over the facts of the present case, it transpires that four persons jointly attacked the injured and caused her grievous injury a fracture of her skull bone. Consequently, under the facts of the case if the death would have resulted the accused would have been guilty for offence of culpable homicide not amounting to murder. In this view of matter, the Magistrate as well as the lower Revisional Court was not justified in not accepting the prayer of the applicant to summon the accused under Section 308 IPC. It is to be noted that the application of the applicant was rejected by the Magistrate on the ground that the knowledge cannot be imputed to the accused which in my view was a pre-mature judgment by the Magistrate. If the injury dangerous to life would have been caused knowingly the accused would have been guilty for offence under Section 307 IPC and not 308 IPC. For making out of an offence under Section 308 IPC what is important is the knowledge. On the facts of the present case, the same can, for the purposes of summoning, be presumed and is culled out.;