Interim Order 13

Order Details: COPY OF ORDER
Pdf Text: SC No. 350/2024
STATE Vs. PANKAJ & ORS
FIR No. 233/2024
PS Harsh Vihar
14.01.2025
Present:- Sh. Sobit, Ld. Additional PP for the State.
All accused persons produced from JC.
Sh. R K Kochar, Ld. Counsel for all the
accused persons.
ORDER ON CHARGE
1. It is argued by Ld. Counsel for the accused persons
that they have been falsely implicated by the police and they have
no role in the commission of crime and they had not inflicted any
injury to deceased Harsh and no charge has been made out against
them. The present FIR was registered on 24.04.2024 on the basis of
GD No. 28A dt. 23.04.2024 and the incident took place on
20.04.2024 to 21.04.2024, however, the FIR has been registered on
24.04.2024 after an unexplained delay of three days. It is further
submitted that as per the statement of brother of deceased Abhishek
that the injured Harsh got admitted in GTB Hospital on 21.04.2024
and at that time, the concerned doctor had provided medical
treatment to the deceased Harsh and at that time, the injured Harsh
and his brother Abhishek did not make any allegations against the
accused persons before the concerned doctor and IO has collected
the said MLC from the GTB Hospital, but IO has not placed the
same on judicial file with malafide intention and the doctor had
discharged the injured Harsh as he was healthy and hearty and in
the MLC of Harsh, no proper date and time has been mentioned,
which creates doubt on the case of prosecution.
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2. It is further submitted that injured Harsh was again got
admitted in GTB Hospital by his brother Abhishek and as per MLC,
the patient was fit to make statement, but he did not disclose the
name of accused persons or manner of the incident to the doctor
and his brother Abhishek has also not disclosed the name of
accused persons and the manner of incident, disclosed by Harsh and
IO had visited the hospital on 23.04.2024 and recorded the
statement of injured Harsh and he had not levelled any allegations
against any of the accused persons nor he disclosed the name of
assailants, so that the said statement was deliberately and
intentionally concealed by the IO/SI Deval.
3. It is further submitted that in both MLCs, the doctor
had not found any injury on the body of deceased and thus, injury is
not mentioned therein and concerned doctor did not find any bodily
injury to the deceased as per PMR, so allegations levelled by the
prosecution that accused persons had beaten the deceased
mercilessly, is prima facie found false and the death of deceased
had happened due to septic and the parents as well as the doctors
are responsible for the death of the deceased because they had not
provided proper treatment to the deceased.
4. There is no previous enmity or ill will to cause the
injury to the deceased in the alleged incident, which happened in
spur of moment, so there was no intention or knowledge to cause
the injury to deceased by accused persons. The police has not found
any CCTV footage of the alleged offence. Police has recorded the
statement of the witnesses after death of deceased and prior to this,
the witness had not informed the police on 100 number or by any
other mode, so their veracity is doubtful and suspicious.
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5. Ld. Addl. PP for the State has argued that accused
persons have played an active role in the crime and death of
deceased was caused after giving beating by the accused persons,
who inflicted injuries to Harsh on his abdomen and spine
intentionally due to which he died after some days and there was no
external injury, rather there was an internal injury as his intestine
got damaged and he died as a result of the same and prima facie
charge u/s 304/34 has been made against them as PW Abhishek has
specifically named the accused persons, who caused injury to
Harsh.
6. I have heard the rival contentions and perused the
record.
7. As per the case of prosecution, on 23.04.2024, a PCR
call vide DD No. 28A was received that injured Harsh was admitted
in GTB Hospital after the quarrel. On 24.04.2024, the patient was
on ventilator at the said hospital and he was declared unfit by the
doctor and IO recorded the statement of brother of deceased namely
Abhishek, who alleged that injured Harsh was his brother, who told
him that on 20.04.2024, he had gone in the marriage of his known
at Jail Road, Harsh Vihar, Delhi and when he returned on
21.04.2024, he told that 3-4 persons namely Rocky, Pankaj and
Bittu, who were residents of Saboli, had beaten him mercilessly and
the complainant had not made any police complaint as there was
low visible injuries, but conditions of Harsh was deteriorating with
time as he had suffered internal injuries due to which, he was
admitted to GTB Hospital on 22.04.2024 and the doctor declared
him unfit and the FIR was registered u/s 308 IPC at PS Harsh Vihar
and later on, when he died during the investigation, charge-sheet
was filed u/s 304/34 IPC.
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8. The reason for delay in FIR is explained that since
there were no visible injury, immediately the FIR was not lodged,
but it was lodged after the deceased suffered some discomfort/ pain
in abdomen due to internal injuries caused by the accused persons
and accused persons are named in the statement given by
complainant Abhishek on 28.04.2024. Ld. Counsel has highlighted
that there is no date and time in the MLC of deceased Harsh at GTB
Hospital wherein he was declared fit. IO must have recorded the
statement of injured, if he was fit, but IO submitted that it was the
late MLC, so doctor would have failed to record the date and time,
but it is mentioned in the MLC that there was alleged history of
physical assault on injured Harsh on 20.04.2024 at about 12:00 am
near Harsh Vihar, Delhi and there was pain in abdomen for two
days and FIR was registered on 24.04.2024, from which it can be
implied that MLC was done on 22.04.2024. In the FIR also,
accused persons are named. IO had recorded the disclosure of
accused persons and prepared the pointing out memo of place of
incident and deceased was beaten mercilessly by accused persons,
which led to internal injuries and they were named in the statement
of eye-witness Priyanshu @ Pingu and other prosecution witnesses.
9. During treatment, deceased had expired on 28.04.2024
and as per PMR, cause of death is “septic shock as a result of
peritonitis due to traumatic perforation of duodenum consequent
upon blunt force trauma to the abdomen”. There were 3 ante
mortem injuries in the form of abrasions and bruise and there was
also extravasation of blood in the scalp corresponding to injury and
brain was congested and there was perforation of 2x2 cm in the
duodenum in the intestines, which shows the internal injury caused
to the deceased. All the accused persons acted in furtherance of
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their common intention in the commission of crime.
10.
Hon'ble Supreme Court in Union of India Vs. Prafulla
Kumar Samal, 1979 (3) SCC 4 laid down the principle of law
applicable at the stage of framing of charge. It was held that:
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made out.
(2)Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceedings with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the Judge is satisfied that the evidence adduced before
him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227
of the Code of Judge which (sic) under the present Code
is a senior and experienced Judge cannot act merely as a
Post Office or a mouth-piece of the prosecution, but has
to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the
case and so on. This however does not mean that the
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Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.”
11. In
Dinesh Tiwari Vs. State of Uttar Pradesh and
Another (2014) 13 SCC 137, Hon’ble the Supreme Court held that
for framing charge u/s 228 Cr.PC, the judge is not required to
record detailed reasons as to why such charge is framed. On perusal
of record and hearing of parties, if the judge is of the opinion that
there is sufficient ground for presuming that the accused has
committed the offence triable by the Court of Session.
12. In
Kanti Bhadra Shah & another Vs. State of West
Bengal (2000) 1 SCC 722, Hon’ble Supreme Court held that
while
exercising power u/s 228 Cr.PC, the judge is not required to record
his reasons for framing the charges against the accused.
13. Considering the charge-sheet and other materials on
record, prima-facie charge u/s 308/34 IPC is made out against the
accused Pankaj, Rohit @ Bitto, Rocky and Ankit @ Sanju.
14. Formal charge is framed accordingly, to which
accused persons pleaded not guilty and claimed trial.
15. Let PW/Complainant Abhishek (mentioned in the list
of witnesses at Sl. No. 1) be summoned through SHO concerned for
the next date.
IO and MHC (M) with case property be also
summoned for the next date.
Put up for PE on 11.02.2025.
(Kumar Rajat)
ASJ-07/SHD/KKD Courts/Delhi
14.01.2025
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