(1.) In the present revision filed by the complainant, challenge is to the legality, validity and propriety of the order impugned dated 2-4-11 (AnnexureA/1) passed by the Additional Sessions Judge, Balod, district Durg in S. T. No. 36/08 whereby the learned Court below has framed charge under Section 326/34 of the Indian Penal Code against the respondents No. 2 & 3.
(2.) Brief facts of the case are that on 10-1-2007, complaint case was filed by the applicant against the respondents 2 & 3 alleging that on 13-7-2005, respondent No.2 Ashok Kumar had asked him to accompany him for having dinner at Balood Gehan Dhaba and they proceeded towards the Dhaba in a Maruti Car owned by respondent No.2. It is alleged that on the way respondent No.3 Rajkumar Tolani also accompanied them. Further case of the applicant is that he had his meals at Balood Gehan Dhaba along with respondents 2 & 3 and in an isolated place, near Jagtara Mandir, respondent No.2 requested him to stop the vehicle saying that he had to ease himself and when he got down for the same, respondent No. 1 assaulted him with some sharp edged weapon from his backside and number of injuries were caused to him as a result of which he fell down and became unconscious. It is further alleged that after about 14-15 days of the incident, at Ram Krishna Surgical Hospital, Raipur, the applicant regained consciousness, but on account of the grievous injuries sustained by him, he lost his memory and was under treatment for about five months. He has alleged that during this period he regained his memory and came to know that in the incident, he sustained number of injuries and there was 50 stitches on his head, his right ear was amputated. He has also alleged that in the incident, his eardrum was also damaged and likewise, on account of injury on his right eye, it turned blackish. It is alleged that on recovery and after regaining his memory, he came to know about the fact that initially he was hospitalized in the Christian Hospital, Dhamtari by respondent No. 2 himself who tried to dub the incident as an accident and lodged the report. The complainant had further stated that he never met with an accident as shown by respondent No.2 and in fact respondent No.2 had assaulted him with an intention to cause his death and respondent No.3 was also one of those involved in the conspiracy. It has also been alleged that after partial recovery, on 23-4-2006 and 24-4-2006, the complaint was made by the applicant to the higher officers and to the Home Ministry. The complainant has also alleged that despite his complaint, offence under Sections 279, 337 & 338 of the Indian Penal Code was registered against respondent No.2 whereas registration of the said offence against him was not in accordance with law and the police had offered undue protection to him. It has also been alleged that by resorting to conspiracy, attempt was made by respondent Nos. 2 & 3 to kill him and therefore they be punished in accordance with law. In support of his complaint, the applicant had examined himself, his wife Deepa Lalwani (complainant's witness No.2), Tejram Sahu (complainant's witness No.3), Rakesh Ratlani (complainant's witness No. 4), son Ajay Kumar Lalwani (complainant's witness No.5), Dr. Roshan Upadhyay (complainant's witness No. 6), Kanhaiya Lal Lalwani (complainant's witness No. 7), Dr. Sunil Kalda (complainant's witness No. 8), Dr. Kamlesh Kumar Dhruv (complainant's witness No. 9), Vijay Agrawal, Additional Superintendent of Police (complainant's witness No. 10) conducted the enquiry, Dr. Sandeep Dave (complainant's witness No.11), Vikas Lalwani (complainant's witness No.12) and Dr. S. M. Madhariya (complainant's witness No. 13). All the witnesses of the applicant were duly cross-examined by respondents No.2 & 3. After considering the complaint and the evidence as adduced by the complainant, the Court below vide impugned order dated 2-5-2011 has framed the charge under Section 326/34, IPC against respondents 2 & 3, thereafter the matter has been remanded to the trial Court for trial.
(3.) Contention of Shri Minhaj, counsel for the applicant is that from the complaint, the statements of the witnesses in particular that of Dr. Kamlesh Kumar Dhruv (complainant's witness No. 9) and the medical report of the complainant, prima facie offence under Section 307, IPC is made out and the Court below has erred in law in not framing the charge under Section 307, IPC. He submits that the Court below has arrived to a particular conclusion that the statements of the witnesses are not contradictory to each other and from the evidence it is clear that the complainant was assaulted with a sharp edged weapon, he was treated for a long period in the hospital and therefore the offence under Section 326/34, IPC is made out. It has been argued that the Court below has erred in law in not framing the charge under Section 307/34 of the Indian Penal Code by assigning a reason that in the statement of the complainant it is not stated that the injuries were caused with an intention to cause death. He submits that in the complaint and in his Court statement, the applicant has categorically stated that the injuries were caused to him with an intention to cause his death and once the injuries have been found to be grievous in nature and dangerous to his life, the Court below ought to have framed charge under Section 307/34 of the Indian Penal Code against the accused persons.