RAM KISHOR Vs. STATE

JUDGEMENT

(1.) THIS revision petition Is directed against the order dated 20-12-2007 passed by the learned Additional District judge, Laxmangarh, District, Alwar whereby the accused respondents were discharged of the offence under Section 308 and the matter was remanded to the Court of Additional chief Judicial Magistrate, laxmangarh for their trial for rest of the offences , namely under Sections 341, 323 and 325 of IPC.

(2.) SHRI Girish Khandelwal, learned counsel for the petitioner has argued that the trial court has committed an illegality in discharging the accused respondents of the offences under Section 308, IPC. In doing so, the learned Court below has not attached due importance to the opinion of the doctor wherein he stated that fracture of the skull could be dangerous to life. Such an opinion was required to be analyzed in the light of the fact that injury No. 1 sustained by the injured Ram Kishore was not only opined to be grievous in nature but on being subjected to X-ray examination was also found to be a fracture. Learned Court although has considered the submission of Rakesh and lekhraj recorded u/s. 161, but has virtually ignored the statement of injured Ram kishore and that of the other three witnesses, namely Prem Prakash, Laxman and tunda. All of them have consistently stated that accused Manoj was armed with an iron pipe and caused the head injury on the person of the injured Ram Kishore and another accused Kailash was having lathi and caused injury on his shoulder which also was eventually found to be fracture. While citing the provisions of Section 308, IPC, learned counsel argued that according to the aforesaid provision if an accused is found to be having mere knowledge, not necessarily the intention, of the fact that he by his act would cause death of the injured, he would be guilty of culpable homicide not amounting to murder. In order to buttress his arguments, learned counsel relied on the judgment of Sunil Kumar v. N. C. T. of Delhi, (1998) 8 SCC 557.

(3.) PER contra, Shri Bhagyamal Sharma, learned counsel appearing for the accused respondents argued that mere fact that the injury No. 1 sustained by the injured Ram kishore was found to be grievous in nature would not be sufficient to bring his act within the purview of Section 308, IPC. Learned counsel submitted that even after this injury was found to be a fracture, the Medical officer has not given conclusive opinion of the fact that it was sufficient in the ordinary course of nature to have caused death of the injured. It was argued that in the subsequently given opinion by the Medical Officer on 16-10-2007, he has not given any definite opinion about the head injury, but only additionally stated that in the event of the head injury being found to be fracture, it could be dangerous to life. No significance can be attached to such opinion because the medical Officer has advised that further opinion on this aspect should be taken from the neuro-surgeon, which was done by the prosecution. Learned counsel for respondents cited the judgment of this Court in mohanlal v. State, AIR 1961 Rajasthan 24 : (1961 (1) Cri LJ 155) and that of the Supreme court in Niranjan Singh Karam Singh punjabi, Advocate v. Jitendra Bhimraj bijjaya, (1990) 4 SCC 76 : (1990 Cri LJ 1869)and argued that at the time of framing of charges, the Court was merely required to see that there was sufficient ground for proceeding against the accused for offence u/s. 308, IPC and in doing so, total effect of the evidence has to be seen. It was therefore not imperative for the Court below to discuss entire other evidence of the matter.