Crl.Rev.Pet.No. 3264 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932** **Crl.Rev.Pet.No. 3264 of 2010() -------------------------------------------** **SC.395/2008 of ADDITIONAL SESSIONS COURT- (ADHOC) III, MANJERI** **....................** ## **REVN. PETITIONER(S): REVISION PETITIONER/DEFACTO COMPLAINANT** **---------------------------------------------------------------------------------------------------------** **E.MOIDEENKUTTY, AGED 58 YEARS, S/O.ABDUL KAREEM, ELIKOTTIL HOUSE, KADANNAMANNA P.O., (VIA) MANKADA, MALAPPURAM-679 324.** **BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH) SRI.T.PRAVEEN SMT.LAKSHMI RAJAN** **RESPONDENT(S): COMPLAINANT** **-------------------------------------------------** **1. ABDULLA HAJI, AGE NOT KNOWN, S/O.ONNEEN HAJI, KALATHINGAL VEEDU, VERUMPILAKKAL, KADANNAMANNA, MANKADA, MALAPPURAM-679 324.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.M.SATHYANATHA MENON R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **V.K.MOHANAN,J.** ## **---------------------------------------------------------Crl.R.P.No. 3264 of 2010 --------------------------------------------------------Dated this the 22[nd] day of February,2011** ## **O R D E R** This Criminal Revision Petition is preferred by the de facto complainant in S.C.No.395 of 2008 of the court of the Additional Sessions Judge, Fast Track Court No.III (ADHOC), Manjeri. The above sessions case was instituted in pursuance of the committal order dated 3.12.2008 of the Judicial First Class Magistrate Court-I, Perinthalmanna in C.P.No.34 of 2008, which was originated on the basis of the report filed by the Police after investigation in Crime No.727 of 2008 of the Perinthalmanna Police Station. As per the impugned order, the learned Sessions Judge found that the offence under Section 308 of I.P.C. is not attracted and the only offence revealed from the prosecution materials is under Section 324 I.P.C., which is an offence triable by the Magistrate Court. Accordingly, the learned Sessions Judge, transferred the case under Section 228 Cr.P.C. to the Judicial First Class Magistrate-I, Perinthalmanna. It is the above order which is ## **Crl.R.PNO.3264 of 2010** ## **:-2-:** under challenge. 2. I have heard Sri.A.Mohammed Mustaque, learned counsel appearing for the revision petitioner and Sri.K.M.Sathyanatha Menon, learned counsel appearing for the first respondent. 3. Learned counsel for the petitioner submitted that the order of the learned Sessions Judge is not sustainable either on law or on facts involved in the case and the learned Sessions Judge exceeded his jurisdiction and came to a wrong conclusion that Section 308 I.P.C. is not attracted. According to the learned counsel, the court, while framing a charge, is not expected to weigh the evidence and materials, but in the present case, the learned Sessions Judge came to a conclusion that the injury is not fatal and therefore, no sessions offence is disclosed and therefore, the order of the learned Session Judge is liable to be set aside. 4. On the other hand, learned counsel appearing for the contesting respondent submitted that the injury allegedly ## **Crl.R.PNO.3264 of 2010** ## **:-3-:** inflicted by the first respondent/accused is not sufficient to attract Section 308 of I.P.C. and therefore, the learned Sessions Judge is perfectly correct in issuing the impugned order. In support of the above contention, the learned counsel very much placed reliance upon the decision of the Honourable Supreme Court reported in **Tukaram Gundu Naik** v. **State of Maharashtra** [(1994)1 SCC 465]. 5. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner as well as the contesting respondents. I have also perused the order impugned. 6. The allegation against the sole accused, who is the first respondent herein, is that at about 5.30 p.m. at Mankada, the accused on account of his enmity in connection with a dispute regarding the demolition of a compound wall beat on the head of CW1 with a hammer knowing that it is likely to cause death of the de facto complainant. Thus, according to the prosecution, the accused has committed the offence ## **Crl.R.PNO.3264 of 2010** ## **:-4-:** punishable under Section 308 I.P.C. The Police also after investigation came to the conclusion that the offence disclosed connected with the above incident is under Section 308 I.P.C. So they have filed a report to that effect after investigation in Crime No.727 of 2008 of the Perinthalmanna Police Station. Thus on receiving the report, the committal court instituted C.P.No.34 of 2008 and after verification of the prosecution materials, the committal court is of the opinion that the offence disclosed against the accused is exclusively triable by the Sessions Court and accordingly, by order dated 3.12.2008 in C.P.No.34 of 2008, the learned Magistrate committed the case to the Sessions Court. Accordingly, S.C.No.395/2008 was instituted in the court of Additional Sessions Judge, Fast Track Court No.III (ADHOC), Manjeri. The specific case of the de facto complainant is that the accused was inimical to the complainant connected with the dispute regarding the demolition of compound wall of the accused and out of that animosity, the accused, by using a hammer, inflicted injury on ## **Crl.R.PNO.3264 of 2010** **:-5-:** the right parietal part of the head of the victim-de facto complainant. The statement recorded by the Police by way of First Information Statement as well as the additional statement would show that the accused has inflicted four blows, out of which one alone is on the head of the de facto complainant. The other blows were prevented by himself. At the time of framing of charge, the trial court is not expected to weigh the evidence or materials produced by the prosecution or the complainant. The only test to be adopted by the court which frames the charge is that if the evidence and materials of prosecution are not rebutted whether a conviction would be warranted or not. In the present case, the learned Sessions Judge is of the opinion that the injury sustained by the defacto complainant is not fatal and it can only be inferred that the blow by the accused is not with such a force so as to inflict grievous hurt and cause death to the victim. The above approach of the learned Sessions Judge, according to me, is out of context and without jurisdiction. The decision relied on ## **Crl.R.PNO.3264 of 2010** ## **:-6-:** by counsel for the first respondent cited supra is not applicable in the present case because of the factual difference between two cases, particularly in that case, the injury was sustained during a scuffle in the dark night and the part of the body where the injury sustained is a non-vital part. 7. Having regard to the facts and circumstances of the case, especially the stage of the trial is concerned, I myself is restrained from entering into any detailed discussion and finding on merit. However, the order of the learned Sessions Judge is not sustainable in law and the facts involved in the case and therefore, the same is liable to be set aside. In the result, this Criminal Revision Petition is disposed of setting aside the order dated 29.1.2009 of the Additional Sessions Judge in S.C.No.395 of 2008 and remitting the matter back to the same court for fresh consideration in accordance with law, after hearing the prosecution as well as the accused. The Judicial First Class Magistrate Court-I, Perinthalmanna is directed to re-transfer the files pertaining to ## **Crl.R.PNO.3264 of 2010** **:-7-:** C.P.No.34 of 2008 in Crime No.727 of 2008 of the Perinthalmanna Police Station to the court of Additional Sessions Judge, Fast Track Court No.III(ADHOC), Manjeri, forthwith. **V.K.MOHANAN, Judge.** MBS/ ## **Crl.R.PNO.3264 of 2010** **:-8-:**