Full Judgment
K.S. Gupta, J.
1. This order will govern the disposal of Crl. Revision Nos. 286/2001 filed by Smt. Ved Kumari and Veena, 287/2001 filed by Kapil and 226/2001 filed by Harish which arise out of the same order dated 15th February 2001 passed by an Additional Sessions Judge in Crl. Rev. No. 58-99 - Sushil Kumar v. State and Anr..
2. In short, the facts giving rise to the petitions are these. S.K. Bhalla, respondent No. 2 herein filed a complaint pertaining to the occurrence dated 12th December 1998 against petitioners and three others under Sections 147, 148, 149, 452, 307, 308 and 506 (Part I) IPC and after recording statements of respondent No. 2, CW-1 and Sudershan Kumar, CW-2, petitioners and there others were summoned to face trial for offences under Sections 279/323/34 IPC by the order dated 16th March 1999 by a Metropolitan Magistrate. Feeling aggrieved, respondent No. 2 preferred Criminal revision No. 58/99 and while allowing revision and remanding the case back, Metropolitan Magistrate was directed to summon Harish, Kapil, petitioners and Amit under Sections 452/308/34 IPC and Smt. Ved Kumari, Veena (petitioners), Rani and Suraj under Sections 452/323/34 IPC by the order dated 15th February 2001 by an Additional Sessions Judge. It is this order which is being impugned by the petitioners.
3. Respondent No. 2 is the owner/lessee of House No. XVI/70, Gali No. 2, Joshi Road, Karol Bagh, New Delhi. Smt. Ved Kumari, one of the petitioners in Crl. Rev. No. 286/2001 is alleged to be the co-owner/lessee to the extent of 2/3rd of adjoining house No. XVI/72, situated in said Gali. Occurrence dated 12th December 1998 is stated to have taken place on a piece of open land in between the said houses. Respondent No. 2 who argued in person, contended that said piece of land is owned by him. In support of the submission, he drew by attention to the photostat copies of sale deed dated 12th March 1975, conveyance deed dated 21st January 2000, admission made on behalf of DDA, defendant in Para No. 3 of the written statement in Suit No. 92/2001/97 and observations made in the order dated 11th December 1998 passed by a Senior Civil Judge in MCA No. 131/98. On the other hand, it was urged by Sh. Siddarth Luthra for petitioners that said land, in fact, is a public street. He invited my attention to the prayer made by respondent No. 2 in Crl. W.No. 3987/99, order dated 9th July 1999 whereby the writ was dismissed as withdrawn and order dated 17th April 2000 passed in Civil Revision No. 616/98 whereby Civil Revision No. 268/99 filed by Smt. Ved Kumari, petitioner was also disposed of. In said writ wherein MCD was imp leaded as respondent No. 4, one of the reliefs claimed by respondent No. 2 was that it be declared that piece of land delineated in red colour in the site plan Annexure A-9 and shown as public street in the layout plan Annexure A-1 by respondent No. 4 together with any order, direction, notification etc framed/passed/issued by it for declaring the same as public street, are illegal, void, invalid, ineffective and not binding on respondent No. 2 and the land exclusively belongs to respondent No. 2. To be only noted that in aforesaid Civil revision, pending suit, the parties have been directed to maintain status quo as of date with regard to nature of passage (land) in question by the order dated 17th April 2000 by this court. In my view, issue of ownership of land in question need not be gone into for deciding these petitions.
4. Para No. 9 of the complaint filed by respondent No. 2 (copy with site plan at pages 41 to 49 on file of Crl. Rev. No. 286/2001) which is material, is reproduced below:-
'That again at about 3.30 PM on 12.12.98 all the accused persons, mentioned above, collected as they were instigated by the inaction of the ASI Ram Kumar Tyagi and got prompted to take law into their own hands, thereforee, accused Harish came on a two wheeler scooter Along with his son Kapil as pillion rider holding a Belcha in his hands in a very fast speed and wanted to dash against Deepak, complainant's son who was also standing at the passage in question Along with the complainant and one Sudershan Kumar his client, who were busy in discussing with some court work. Accused Harish immediately applied his brake but his scooter slipped and due to which Harish accused struck his head against the wall and fell down. He received head injuries. His son helped him to get up and both of them started beating Sudershan Kumar. Suraj and his son Amit started shouting 'Maro Maro'. Ved Kumari, Rani, Veena started beating Sudershan Kumar with fists and blows. They also started beating the complainant. Amit, accused picked up a piece of brick and hit it at the complaint's left side of his head. All the accused were shouting indiscriminately that the complainant, his son and Sudershan Kumar, above named, be beaten to death. The complainant received injuries on his neck, ear, hand and leg. Several persons collected at the spot and they separated the accused persons.
5. It was argued on behalf of petitioners that Section 452 IPC is inapplicable and offence under Section 308 on the facts alleged in complaint, is prima facie not made out. In support of submission, reliance was placed on the decision in Shiv Singh v. State, : 24(1983)DLT158 and Brahm Dutt and Ors. v. State and Ors., 1996 JCC 183. On the other hand, respondent No. 2, a practicing advocate contended that offence under Section 308 IPC is made out against Harish and Kapil, petitioners as Harish wanted to dash the two wheeler scooter he was driving at a very fast speed, against Deepak who was also standing in the passage. Reliance was placed on the decisions in Om Prakash v. State of Punjab, : [1962]2SCR254 and Sanjeev Nanda v. State, 1999 2 AD (Del) 857.
6. Said Section 452 provides for punishment for house trespass having made preparation for causing hurt or for assaulting any person. House trespass has been defined in Section 442 IPC as under:-
'Whosoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit 'house-trespass.'
Explanationn.-The introduction of any part of the criminal trespasser's body in entering is sufficient to constitute house-trespass.
7. Needless to repeat that as per allegations made in complaint, occurrence dated 12th December 1998 took place on piece of open land in between houses No. XVI/70 of respondent NO. 2 and No. XVI/72 of Smt. Ved Kumari, petitioner. Place of occurrence not being a building, Sections 442/452 will have no application in this case.
8. Coming to Section 308, in Shiv Singh's case which was followed in Brahm Dutt's case (supra) it was held that in order to constitute an offence under Section 308 it must be proved (i) that the accused committed an act; (ii) that the said act was committed with the intention of or knowledge to commit culpable homicide not amounting to murder and (iii) that the offence was committed under such circumstances if the accused by that act had caused death he would have been guilty of culpable homicide. It was further ruled that intention is a question of fact which is gathered from the acts committed by the accused and knowledge means awareness of the consequences of the act. As is manifest from averments made in Para No. 9 of complaint, extracted above, before Harish (petitioner) who received head injuries, fell down from two wheeler scooter he was allegedly driving, he had applied brake. If his intention had been to dash the scooter against Deepak, he would not have applied brake to the scooter. Thus, offence under Section 308 IPC is, prima facie, not made out against Harish and Kapil, petitioners. To be only noticed that on a chargesheet based on the report lodged by Harish submitted by the police, respondent No. 2, Deepak and Sudershan Kumar are facing trial under Section 325/94 IPC. Harish alleges that in the occurrence dated 12th December 1998 he received injuries at the hands of accused as a result of assault by them with a saria. Om Prakash and Sanjeev Nanda's case (supra) have no applicability to the facts of this case. It was an improper exercise of power under revisional jurisdiction to have directed the Metropolitan Magistrate to summon Harish, Kapil and Amit under Sections 452/308/34 IPC and Smt. Ved Kumari, Veena, Rani and Suraj under Section 452 IPC in terms of aforesaid order dated 15th February 2001 by the Additional Sessions Judge and this order to that extent deserves to be set aside. Offence, it any, committed by 4 petitioners, Amit, Rani and Suraj was under Sections 323/34 IPC.
9. For the foregoing discussion, Criminal Revision Petition Nos. 286, 287 and 226 of 2001 are allowed and aforesaid order dated 15th February 2001 is set aside to the extent noted in preceding para of the judgment. Petitioners, Amit, Rani and Suraj will face trial only for the offences under Sections 323/34 IPC.