KAMRUDEEN Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS revision petition is directed against framing charge under section 302 read with Section 34, Indian Penal Code by additional Sessions Judge, Faridabad, on May 25, 1988 against Kamrudeen Jhanu accused. The FIR was lodge on September 29, 1987, the date of occurrence at about 4.30 P.M. Mst. Fazri and her brother Fazardin went to the Police Station to lodge the report. 15-16 years ago, Fazri was married. Her husband left Fazri and she has been residing in the village of her father with her brother and her children. At about 12.00 Noon she was at the house. Her brother's Children were playing outside with the children of Kamrudeen,petitioner . Kamrudeen approached her and lodged a protest regarding quarrel of the children and enquired about Fazru. She replied that Fazru had gone out. It was at about 2.00 P.M. that Kamrudeen came to the house. By that time her brother Fazru had also come. Kamrudeen started giving him slaps and fist blows. When she tried to rescue her brother, then Jhanu son of Lila, brother of Kamrudeen gave a stick blow hitting her head. She raised alarm, then Katrana, son of Mev Din and Samme Khan were attracted to the spot. After lodging the report, she went to her house as she was feeling headche. On the following day, she went to the hospital where she was medically examined. She was referred to Safdarjang Hospital where she ultimately died on the third day of the occurrence.

(2.) DURING the investigation of the case, statements of witnesses were recorded. Both the witnesses stated that Kamrudeen took hold of Fazri when Jhanu alias Jan Mohd. gave a blow on the head of Fazri with the stick. The police presented the report under Section 173, Code of Criminal Procedure, under Section 304 read with section 34, Indian Penal Code. As already noticed above, charge was framed under section 302 read with section 34, Indian Penal Code which is under challenge in this revision petition.

(3.) SINCE the blow was given with the stick, an ordinary weapon and was not repeated, no intention could be attributed to the accused that they knew that the injury which was going to cause would prove fatal. Further more, when Fazri and her brother went to the Police Station, no complaint was made of any pain suffered by Fazri on account of the injury caused to her by Jhanu. It was only on the following day that she went to the hospital and got herself medically examined and it was on the third day that she succumbed to the injury. This was a case where prima facie offence made out was under Section 304 read with section 34, Indian Penal Code. Hence charge framed by the additional Sessions Judge, Faridabad, on May 25, 1988 under Section 302 read with section 34. Indian Penal Code is quashed. He will frame charge under Section 304 read with Section 34, Indian Penal Code and proceed with the trial of the case. This revision petition is, therefore, allowed with the directions as above.