Bihari Lal vs The State Of Rajasthan

CRIMINAL APPEAL No. 676 OF 2019 (Arising out of S.L.P.(Crl.) No.8823 of 2018)

Bihari Lal ….Appellant(s)

VERSUS

The State of Rajasthan & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 12.09.2018 passed by

the High Court of Judicature for Rajasthan at Signature Not Verified Digitally signed by ANITA MALHOTRA Jodhpur in S.B.Criminal Revision No.708 of 2018 Date: 2019.04.15 16:53:00 IST Reason:

whereby the Single Judge of the High Court

1 dismissed the criminal revision filed by the

appellant herein and affirmed the order dated

02.06.2018 passed by the Additional Sessions

Judge, Bhadra, District Hanumangarh in Sessions

Case No.40 of 2017.

3. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. Respondent Nos. 2, 3 and 4(accused persons)

are facing prosecution for commission of the

offences punishable under Sections 307, 323, 325,

336, and 341 read with Section 34 of the Indian

Penal Code, 1860 (hereinafter referred to as “IPC”)

in the Court of Additional Sessions Judge, Bhadra

District Hanumangarh.

5. Learned counsel for respondent Nos. 2 to 4

herein (accused persons) argued that while framing

the charges, no offence under Section 307 IPC is

made out against them, therefore, no charge should

2 be framed against them under Section 307 IPC.

Respondent Nos.2­4 argued this point by referring

to and placing reliance on the two medical reports,

which were filed by the prosecution along with the

charge sheet in support to their case.

6. The Additional Sessions Judge, by order dated

02.06.2018, accepted the argument of respondent

Nos. 2 to 4(accused persons) and accordingly

discharged them from the commission of the offence

punishable under Section 307 IPC and proceeded to

frame the charges in relation to other offences

mentioned above. In other words, the Additional

Sessions Judge was of the view that there is no

prima facie case made out against respondent Nos.

2 to 4 (accused persons) so far as the offence under

Section 307 IPC is concerned.

7. The appellant (complainant) felt aggrieved and

filed a criminal revision before the High Court. By

3 impugned order, the High Court dismissed the

criminal revision which has given rise to filing of

this appeal by way of special leave by the appellant

(complainant) in this Court.

8. So, the short question, which arises for

consideration in this appeal, is whether both the

Courts below were justified in discharging

respondent Nos. 2 to 4 (accused persons) insofar as

the offence under Section 307 IPC is concerned.

9. Heard Mr. H.D. Thanvi, learned counsel for the

appellant and Mr. Samar Vijay Singh, learned

counsel for respondent Nos.2­4(accused persons) &

Mr. Anish Maheshwari, learned counsel for

respondent No.1(State).

10. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow this appeal and set aside

the impugned order.

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11. In our considered opinion, both the Courts

below erred in discharging respondent Nos. 2 to 4

from the charge of Section 307 IPC. In other words,

both the Courts below erred in holding that no

prima facie case is made out against respondent

Nos. 2 to 4 under Section 307 IPC and hence no

charge can be framed for their prosecution for

commission of the offence under Section 307 IPC.

12. Indeed, the manner in which both the Courts

below proceeded to discharge respondent Nos. 2 to

4 from facing the charge of Section 307 IPC and

holding that no prima facie case is made out against

them is faulty and hence cannot be sustained.

13. In our view, both the Courts below wrongly

went on to appreciate the two medical reports,

found fault and inconsistencies therein and then

came to a conclusion that no prima facie case is

5 made out against respondent Nos. 2 to 4 insofar as

the offence under Section 307 IPC is concerned.

14. The stage to appreciate the evidence with a

view to find fault or/and inconsistencies in the two

medical reports would arise only when the

prosecution leads evidence by examining the

doctors in support of the medical reports. That

stage is yet to come in this case.

15. Mere perusal of the medical reports filed by the

prosecution would prima facie show that a case

under Section 307 IPC is made out against

respondent Nos. 2 to 4 and, therefore, the charge

under Section 307 IPC should have been framed

against respondent Nos. 2 to 4 along with the other

charges.

16. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside. The Additional Sessions Judge,

6 who is seized of the trial, is directed to frame the

charge under Section 307 IPC against respondent

Nos. 2 to 4 herein.

17. We, however, make it clear that respondent

Nos. 2 to 4 will be entitled to argue after the

evidence is adduced that no case is made out

against them under Section 307 IPC and the Court

will decide the matter on the basis of evidence

adduced by the prosecution on its merits strictly in

accordance with law without being influenced by

any observations made by this Court.

………...................................J. [ABHAY MANOHAR SAPRE]

....……..................................J. [DINESH MAHESHWARI] New Delhi;

April 15, 2019.

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