Criminal Revision No.1047/2003 19.02.2014 Shri Akhil Sinha, Advocate for the applicant.
Shri Akshay Namdeo, Panel Lawyer for the respondent No.2-State.
Heard on PUD received from Additional Sessions Judge, Rewa.
The PUD is sent by the Additional Sessions Judge, Rewa vide letter dated 26.11.2013 that the matter was registered in the year 1993 and the record of the trial Court was requisitioned by this Court in the year 2003 and in such circumstances the trial is held up.
Looking to the delay in the trial whereas no proceeding was proceeded further in the present revision, it would be proper to send the record of the trial Court back to the trial Court so that the trial Court may proceed with the trial.
Consequently, PUD dated 26.11.2013 is hereby disposed off with a direction that the record of ST No.58/1993 be immediately sent back to the trial Court.
At this stage, as prayed by learned counsel for the parties, the matter is finally heard.
The applicant has challenged the order dated 21.7.2003 passed by the learned FiRs.Additional Sessions Judge, Rewa whereby the charge under Section 307/34 of IPC was appended against the present applicant.
The brief facts of the case are that initially an FIR was lodged by Lalmani Pathak against four persons and out of those four persons, name of the present applicant was not there.
The charge sheet was filed and the case was committed to the trial Court.
Thereafter Lalmani Pathak lodged a private complaint against the applicant and one Ram Bahore.
The trial Court vide order dated 25.8.1995 directed that unregistered complaint be called and be annexed with the case file and show cause notices be issued to the applicant and Ram Bahore to submit reply as to why their names be not added as an accused.
Thereafter an application under Section 319 of Cr.P.C.was also moved by the complainant and ultimately vide order dated 19.10.2000 the learned Additional Sessions Judge returned the unregistered complaint to the committal Court to proceed with the complaint and if it is found to be registered, then it could be committed to the Sessions Court according to the provisions and thereafter the right was reserved on the application under Section 319 of Cr.P.C.On 11.3.2003 the learned Additional Sessions Judge passed an order that the complaint was also committed at Sessions Trial No.35/2003 which was tried simultaneously with the present case and it was directed that Sessions Trial No.35/2003 is consolidated with the previous Sessions Trial.
It was further directed that all the witnesses examined prior to that consolidation shall be recalled for cross examination of the applicant.
Thereafter the charges were framed.
After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the FIR was lodged on 11.11.1992 against the four persons including the applicant Bhailal Tiwari.
Similarly, in the statements under Sections 200 and 202 of Cr.P.C.the complainant has stated that the applicant was present with a stick.
At the time of framing of the charges, the defence evidence cannot be considered.
As contended by the learned counsel for the applicant that on the date of incident, he was working at State of Tripura in the Army and he was not present at the spot, but such evidence cannot be considered at the time of framing of the charges.
If the evidence collected by the prosecution is considered as it is and if any of the accused can be convicted for any offence, charge of that offence be framed.
According to the FIR and statements under Sections 200 and 202 of Cr.P.C.given by the witnesses, it would be apparent that initially the complainant lodged an FIR against the four persons whereas the complaint was filed against five persons including one Ram Bahore.
In both the documents, he did not mention the overt-act of the present applicant Bhailal Tiwari.
Simply his presence with a stick was shown.
The victim Lalmani Pathak sustained injuries due to fire caused by co-accused Samaylal.
No other injury was found to the victim except gun shot injuries.
Under such circumstances, by presence of the applicant, it cannot be said that he had any common intention.
On the basis of the evidence collected by the prosecution, it would be apparent that neither the applicant assaulted the victim by any weapon nor his common intention was established prima facie by the complainant.
Hence, after the investigation, name of the applicant was deleted in the charge sheet.
Since the FIR was lodged against the applicant also and complaint case consolidated with the Sessions Trial, and charges are framed under the ST No.59/1993, therefore there is no need to call the complainant before passing of this order.
On the basis of the aforesaid discussion, by the documents and evidence collected by the prosecution, it is nowhere established that the applicant assaulted the victim Lalmani Pathak or he had any common intention with the co-accused Samay, therefore no offence under Section 307 read with Section 34 of IPC is made out against the applicant Bhailal Tiwari.
Therefore, the present revision filed by the applicant namely Bhailal Tiwari can be accepted.
Hence it is hereby accepted.
The impugned order dated 21.7.2003 passed by the FiRs.Additional Sessions Judge, Rewa in ST No.58/1993 is hereby set aside.
The applicant is discharged from the charge of offence punishable under Section 307/34 of IPC.
A copy of this order be sent to the trial Court along with its record with a direction of speedy trial in the present case, because it is a very old case.
(N.K.Gupta) Judge Ansari