MOHAMMAD RAFIQ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Vide petition under section 482 Cr.RC. the impugned order dated 25.7.1996, whereby the learned Additional Sessions Judge, Bundi, framed charges under section 307, in the alternative under section 307/34 Penal Code against the three accused persons including the accused petitioner has been challenged.

(2.) Brief facts giving rise to this petition are the Parchabayan of the complainant injured Zakir Hussain was recorded at 9.30 p.m. on 1.6.1994, in which it was stated by Zakir Hussain that at about 8.30 p.m accused Liyakat, Azaz and Rafiq s/o Mohammad Zaki, came and inflicted knife blows upon his chest and other parts of the body. Upon hue and cry made by him, his brother Shakir Hussain and Shiraj Ali came, on seeing them all the accused ran away. After investigation challan under section 307 read with section 34 Penal Code was filed and charges were farmed as stated herein-above. The accused petitioner Rafiq s/o Mohammad Zaki has filed this petition. Learned counsel for the accused petitioner first challenged the identity of this accused. He referred the statement of three eye-witnesses including injured Zakir Hussain, his brother Shakir Hussain and cousin brother Siraj Ali, which were recorded on the next day under section 161 Cr.RC. and in all the three statements, it was stated that it was not Rafiq son of Zaki but Rafiq s/o Chunia, who inflicted injuries on the person of Zakir Hussain and not the present accused alongwith two other persons. It was also contended that subsequent statements of these witnesses have no evidentiary value in view of earlier statements of these, witnesses which were recorded near about six months after the incident. Another ground canvassed is that this accused went to Delhi on 21.5.1994, next day he met with an accident and he was discharged from the hospital on 30th May 1994 and was advised bed rest so he was not is a position to take part in such incident. Third argument on merits is that in view of injuries according to medical report, no offence under section 307 Penal Code is made out and at the most offence under section 324 Penal Code can be made out. Per contra, learned Public Prosecutor and learned counsel for the complainant contended that when there are two sets of evidence, the accused petitioner can not be discharged at this stage and it is a fit case to be proceeded with trial. It was also argued that stab wounds were caused on the chest alongwith other parts of the body, therefore, prima facie no illegality was committed in framing the charge under section 307 IPC.

(3.) I have considered the rival submissions. No doubt three witnesses Zakir Hussain, Shakir Hussain and Siraj Ali stated in their statements under section 161 Crimial P.C., recorded on the next day of the occurrence that it was accused Rafiq s/o Chuniya and not Rafiq s/o Zaki but only on this ground it can not be decided finally at this stage that the accused petitioner was not involved in this incident because there is specific mention of the accused petitioner Mohammad Rafiq in the Parchabayan, which was recorded just after the occurrence. The statements of these witnesses under section 164 Crimial P.C. were recorded on 20.12.94. They have named all the three accused. Although, the father's name of the accused petitioner is not mentioned in the statements of Shakir Hussain and Siraj Ali but injured Zakir Hussain specifically stated that accused petitioner Rafiq caused injuries with knife. The Investigating Officer recorded their additional statements under section 161 Crimial P.C. and according to those statements and statement of one Mushtaq, recorded on 26.10.94, it was accused Rafiq s/o Mohammad Zaki, who inflicted injuries. Therefore, it is seen that there are two sets of evidence. Therefore, at this stage, in view of this, the accused petitioner can not be discharged and it is a matter of trial. It can be finally decided at the time of final submissions as to who are the actual culprits. As far as the offence under section 307 is made out or not, there are four stab wounds, including stab wound on the chest. Learned counsel for the accused petitioner referred Raja Alias Rajendra Prasad Vs. State of Rajasthan, Cri. L.R. (Raj.), 1984, 151 wherein it has been held that according to doctor, injuries were not dangerous to life and there was no material to show that injuries were dangerous to life and no reasons were recorded, therefore, cognizance under section 307 Penal Code could not be sustained. Learned counsel for the complainant referred the judgment of this court delivered in Richpal Singh Vs. The State of Rajasthan, (1994) 19 R.Cr.C. 63 , wherein it was held that even in case of simple injuries, this fact has no importance at the time of framing charges including charges under section 307 IPC. In yet another judgment, State of Maharashtra Vs. Balram Bama Patil and other, AIR 1983 SC 305 , it was held that to constitute an offence u/s section 307 IPC, it is not necessary to cause bodily injury.