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Krishan & Others v/s The State of Rajasthan & Another

    S.B. Criminal Revision Petition No. 589 of 2018

    Decided On, 04 May 2022

    At, High Court of Rajasthan Jodhpur Bench


    For the Petitioners: H.S.S. Kharlia, Senior Advocate, assisted by Kinjal Purohit, Advocate. For the Respondents: Sumer Singh Rajpurohit, PP, Moti Singh, Advocate.

Judgment Text

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This criminal revision petition under Section 397/401 Cr.P.C. has been preferred claiming the following reliefs:

“It is, therefore, most respectfully and humbly prayed that the Revision Petition kindly be allowed and the Order dated 30.04.2018 and framing the charges against the petitioners in pursuance of such order passed by Learned Additional Session Judge, Rajgarh, District Churu, in Sessions Case No.5/2010 (State Vs. Dhanraj & Ors.) may kindly be quashed and set aside.”

3. Brief facts of this case, as noticed by this Court, are that on 27.12.2009, a written report was submitted by Anil @ Kala (respondent No.2/complainant) alleging therein that on 26.12.2009 at about 7-7:30 p.m., when he was at Murga Farm, he was intercepted by accused/petitioner-Krishan, who thereafter, hit and abused him. After the scuffle went on, resulting into injury to present petitioner-Krishan, an FIR bearing No.278/2009 was lodged by him against the present complainant Anil @ Kala. After some time in a vehicle, Krishan, Jagatpal, Dhanraj and their wives, and one person named Bagdi, alongwith 10-12 other persons came and attacked the complainant party, which resulted into death of the complainant’s father (Chandram) and also injuries to the complainant-Anil @ Kala.

4. Thereafter, the FIR No.279/2009 (lodged by the present complainant Anil @ Kala) was registered at Police Station, Hamirwas District Churu for the offences under Sections 302, 323, 341, 147, 148, 149, 447 & 427 IPC; after investigation, the charge-sheet was filed against the present petitioners on 18.01.2010 for the offences under Sections 148, 341, 447, 323, 325, 302 & 120-B & Section 427 read with Section 149 IPC; whereafter, vide the impugned order dated 30.04.2018, the learned trial court framed charges against the petitioners for the offences under Sections 148, 341, 447, 323/149, 325/149, 302/149 read with Section 120-B and Section 427 IPC. Aggrieved by the said order, the present petition has been preferred.

5. Mr. H.S.S. Kharlia, learned Senior Counsel assisted by Ms.Kinjal Purohit, appearing on behalf of the petitioners submits that the earlier incident, as a result whereof, the present petitioner-Krishan was badly injured, which included a fracture in his leg, whereafter he lodged an FIR (earlier FIR); thus, petitioner-Krishan was not present at the site of the incident in question, since he was taken to the Hospital at Rajgarh for medical treatment on count of the injury sustained by him during the earlier incident; he remained admitted in the hospital at Rajgarh during the time when the incident in question took place. Thus, it cannot be said that more than four persons (Ramesh, Indra Singh @ Bagdi, Dhanraj & Mahipal) were present there. Therefore, as per learned Senior counsel, the alleged offences supported by Sections 148 & 149 IPC cannot be made out.

6. Learned Senior Counsel for the petitioners further submits that there is consistency in the statements, in which only four persons have been named, and thus, the elementary requirement of Section 141 IPC is not fulfilled in the present case. Section 141 IPC reads as under:

“141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is—

(First) — To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

(Second) — To resist the execution of any law, or of any legal process; or

(Third) — To commit any mischief or criminal trespass, or other offence; or

(Fourth) — By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(Fifth) — By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”

7. Learned Senior Counsel for the petitioners also submits that at best petitioner-Krishan could be made to face charge for the offence under Section 302 read with Section 120B IPC, if it is fully proved that he was present at the site of the alleged incident in question, which was not proved by the prosecution at all; thus, since he was not present at the site of the incident in question, and the presence of not more than four persons could be there, therefore, in such circumstances, the charges in this case could not include Sections 148 & 149 IPC.

8. Learned Senior Counsel for the petitioners further submits that the serious injuries were received by petitioner-Krishan, during the first phase of violence, which resulted into the first FIR and the fact that Krishan remained admitted in the hospital during occurrence of the incident in question as mentioned above, and the same clearly reflects that Krishan was not present at the site of the incident in question; thus, the ingredient necessary as per Section 141 IPC, was not present at all, in the present case.

9. Learned Senior Counsel for the petitioners further submits that the general allegation levelled by complainant-Anil @ Kala does not mean anything because consistently his wife, labour and the other independent witnesses have deposed that Krishan was not at the site of the incident in question.

10. Learned Senior Counsel for the petitioners also submits that the learned trial court should have gone through the complete record, before passing the impugned order of framing of charges against the petitioners.

11. Learned Senior Counsel for the petitioners relied upon the earlier intervention of this Hon’ble Court in Krishan & Ors. Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.83/2017, decided on 13.10.2017), whereby, while quashing and setting aside the order dated 26.11.2016 impugned therein, the matter was remanded back to the learned trial court to hear the parties on the aspect of charges afresh and thereafter proceed to pass a fresh reasoned order, after complying with the requirements of Section 227/228 Cr.P.C.

11.1 Learned Senior Counsel for the petitioners also submits that it is an admitted case that after the aforementioned order was passed by this Hon’ble Court, the impugned order has merely repeated the same charges, without due application of mind.

12. Learned Senior Counsel for the petitioners further submits that on a conjoint reading of the complete record, the absence of Krishan at the site of the incident in question, which resulted into the death of complainant-Anil @ Kala’s father (Chandram) and injury to Anil @ Kala, has to be segregated from the first incident in which present petitioner-Krishan himself has received serious injuries, and once such segregation is done, the charges framed vide the impugned order, deserve interference by this Court.

13. On the other hand, learned Public Prosecutor as well as learned counsel for the complainant, while opposing the aforesaid submissions made on behalf of the petitioners, drew the attention of this Court towards the parcha bayan dated 07.05.2018 of Anil @ Kala (at Page 44 of the paper-book), in which he has clearly mentioned the names of Krishan, Jagatpal, Dhanraj, and their wives as well as a person named Bagdi alongwith 10-12 other persons; thus, as per learned counsel, once the narration and contents of the FIR and the parcha bayan are consistent in naming the presence of the pre

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sent petitioners, alongwith others at the time of the incident in question, then any interference of this Court at the stage of framing of the charges would not be appropriate. 14. After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that the FIR and the parcha bayan of Anil @ Kala fulfill the requirement of more than five persons being present at the site of the incident in question, as an essential ingredient at the threshold of the case, and thus, framing of charges, as done vide the impugned order, is perfectly justified. Hence, no case for making any interference by this Court is made out at this stage. 15. Consequently, the present petition is dismissed. However, the petitioners shall be permitted to raise all their legal issues subsequently, during the trial at the appropriate stage. All pending applications stand disposed of.