RAKESH KUMAR GUPTA Vs. STATE

JUDGEMENT

(1.) THE present petition has been filed under Section 397 of the Code of Criminal Procedure, 1973, and is directed against the order dated

(2.) 06.2004 passed by the learned Additional District and Sessions Judge, Delhi, framing charges against Rakesh Kumar Gupta (petitioner herein). 2. The brief facts of the case are that on 14.02.2003, a case was registered on a statement made by Virender Singh Rawat under Sections 323/341/34 IPC, Police Station New Ashok Nagar, Delhi, wherein it was stated that the complainant (Virender Singh Rawat) runs a medical store along with his elder brother, Balbir Singh Rawat, under the name of Rawat Medicos and that the owner of the said shop was Sh. Mukesh Gupta. About two months prior to the date of the incident, Sh. Mukesh Gupta had asked the complainant and his brother to vacate the shop, at once. As per the complainant, his family members had sought time, however, the owner was adamant that the shop be vacated in one or two days and whereupon the complainant had filed a civil suit. On 13.02.2003 at about 10:15 p.m., when the complainant and his elder brother were in the process of closing the shop, his elder brother went ahead at some distance from the shop. Suddenly, the complainant heard the cries of his brother and he saw that opposite to Seema Sweets one Parmohan, Mukesh, Rakesh @ Ballu, whom the complainant knew very well and two other unknown persons had surrounded his brother and were beating him mercilessly with dandas and sarias. By the time the complainant reached the spot, the three had run away. One, Chaudhary Karan Singh had witnessed the entire incident and after hearing the noise, he had come to the spot. After some time, the PCR vehicle reached the spot and brought the injured to LBS Hospital and the complainant also came in the said vehicle to the hospital.

(3.) LEARNED senior counsel for the petitioner submits that a false case has been registered against the petitioner. It is submitted that the date of the incident is 13.02.2003 and admittedly the deceased (Balbir Singh) was running a Chemist Shop as a tenant of Sh. Mukesh Gupta. Reading of the FIR would show that the petitioner herein was not named as the accused, only three persons were named, Parmohan, Mukesh and Rakesh @ Bablu. Learned senior counsel submits that the FIR was made in such a manner so as to have flexibility to rope any two persons at a subsequent stage inasmuch as the FIR states that besides these three persons, two other persons were also present at the spot. However in the same breath it is stated in the FIR that three persons ran away, and nothing has been said about the other two persons. It is further contended that Balbir Singh died five (5) days after the incident. The MLC, copy of which has been filed at page 42 of the paper book, suggests that he was conscious/oriented, his blood-pressure was 120/80 and still neither any dying declaration nor any other statement of Balbir Singh was recorded, nor he named any other person. The FIR would also show that sections 147 and 149 of the IPC were not included.