Rohit v. State

1 By way of this revision petition, challenge has been made to the order of framing charge dated 03.08.2013 passed by learned Additional Sessions Judge in FIR No.79/2013 under Sections 392/394/397/411/34 IPC P.S. Mahendra Park.

2. There are two accused persons in this case i.e. the present petitioner and one Shekhar. The alleged occurrence is of 29.03.2013 at about 8.15 P.M. The allegations are that on the aforesaid date and time when the complainant was going to his home from the office and had reached Anar Gate near railway line underpass, the accused persons had caught hold of him from behind. When he tried to get himself free from them, the petitioner had attacked him with a blade several times and pushed him on the ground. Further allegations are that the accused persons had taken Rs. 10,500/- from the right pocket of his pant and his mobile phone was also taken and thereafter they ran away from the spot. On CRL RE V.P. 623/2013 2013:DHC:8496 the basis of statement of complainant Jai Prakash aforesaid FIR was registered. On 3 1.03.2013, the petitioner and co-accused were arrested. During investigation, the petitioner and co-accused refused to participate in the TIP. After completion of the investigation, charge-sheet has been filed against them.

3. On 03.08.2013 charge was framed by the learned ASJ against the present petitioner and the co-accused under Section 392/394/34 IPC and additional charge under Section 392 read with Section 397 IPC was framed against the present petitioner.

4. Learned counsel appearing for the petitioner has contended that the offence under Section 397 IPC is not made out against the petitioner as there is no recovery of blade, alleged to have, been used in the occurrence by the petitioner. It is further submitted that the blade is not a deadly weapon.

5. The order passed by the learned Additional Session Judge while framing the charge against the accused as well as co-accused is as under:- "Arguments on charge heard. I have gone through the report under Section 173 Cr.P.C., statements of witnesses and other material available on record. I have also gone through the statement of complainant wherein he has specifically alleged that accused persons robbed Rs.10,500/- and one LG mobile from him and also caused hurt to him. I have also gone through the MLC of injured/complainant Jai Prakash wherein it has been specifically mentioned that the patient was brought to the hospital with the alleged history of physical assault and injuries on his person have been opined as simple by the doctor. Both the accused persons refused to participate in TIP proceedings. After going through the entire material available on record, I am of the view that prima facie case U/s 392/394/34 IP is made out against the accused Shekhar and Rohit and prima facie case U/s 392 R/w Sec 397 IPC is made out against accused Rohit. Accordingly charge is served upon the accused persons to which they pleaded not guilty and claimed trial. Now to come up forPE on 07.11.2013." CRL.REV.P. 623/2013 Page2of[3] S

6. The case of the prosecution is that the blade was used by the appellant at the time of alleged occurrence. The complainant in his statement on the basis of which FIR has been registered has alleged that the blade was used several times. Reading the material on record it can't be said that in the absence of recovery of alleged blade charge under Section 397 of IPC could not have been framed against the appellant. Nothing has also been placed on record by appellant to substantiate that blade is not a deadly weapon. Further, the evidence of complainant and the medical evidence is yet to be recorded in the present case. It is settled law that at the stage of framing of charge the court has only to take a prima facie view on the basis of material on record. The learned ASJ has framed the charge under Section 397 IPC against the appellant after considering the material on record.

7. No illegality is seen in the impugned order which calls for interference of this court. The revision petition is dismissed. CRL.M.A. 16716/2013 (stay) In view of above order, no orders are required on this application. The same stands disposed of accordingly.

VEENA BIRBAL, J NOVEMBER 19, 2013 srb