Jharkhand High Court
Kaushal Kishore Singh @ K.K. Singh And ... vs The State Of Jharkhand And Anr. on 14 August, 2006
Equivalent citations: [2007(1)JCR491(JHR)], 2007 CRI. L. J. (NOC) 123 (JHAR.) = 2007 (1) AIR JHAR R 2, 2007 (1) AIR JHAR R 2, (2007) 1 EASTCRIC 117, (2006) 4 JLJR 487, (2007) 1 JCR 491 (JHA)
ORDER D.K. Sinha, J.
1. The petitioners herein have preferred this Cr. Revision against the order impugned dated 27.3.04 passed by the Additional Judicial Commissioner, F.T.C. IX, Ranchi, in Sessions Trial No. 312/02, arising out of Ratu P.S. Case No. 50/02 whereby and whereunder the discharge petition filed by the petitioners under Section 227 of the Code of Criminal Procedure was rejected.
2. The brief fact of the case as stands narrated in the written report of the informant Lal Kishore Nath Sahdeo presented before the Ratu Police on 19.5.2000 is that one Siya Ram Singh & Sheo Kumar Singh with other 5 to 6 persons entered in their premises and after exchange of hot words, Siya Ram Singh took out a revolver from his waste and pointed it on the informant and as soon as he attempted to fire shot his brothers intervened and in course of scuffle his revolver fell down. In same sequence Siya Ram Singh commanded and his men resorted indiscriminate firing from their rifles etc. Upon hearing the firing of shots a large number of villagers rushed there and snatched their rifles. In the same sequence the villagers assaulted them causing injuries. Police on information on mobile phone rushed there, arrested the culprits with their firearms and on the written report, Ratu P.S. Case No. 50/02 was instituted for the offence under Sections 147, 148, 149, 452 and 307 I.P.C. as also under Section 27 of the Arms Act on 19.5.2000 against two named accused and 5/6 unknown (Annexure-1).
3. Mr. Ganesh Prasad Singh, Senior Counsel appearing on behalf of the petitioners submitted that the present case was brought about by the informant with a view to save his skin. As a matter of fact, informant as well as his men had brutally assaulted the petitioners and snatched their valuables and licencee firearms and for their injuries, petitioners were admitted to RMCH for about a month. The counter case was lodged against the informant and 9 other named accused persons for the offence under Sections 342/323/324/307/363/379/427/34 I.P.C. as also under Section 27 of the Arms Act vide Ratu P.S. Case No. 51/2000 (Annexure-2).
4. Mr. Singh pointed out that it can well be gathered from the counter case that the petitioners were being harassed regularly by the informant and his men by extortion and other illegal demands which were objected to by the petitioners since the sole object was to destroy the business of petitioners. As such one of the petitioners was assaulted by the informant and on the alleged date of occurrence the petitioners were called upon by the O.P. No. 2 Lal Kishore Nath Sahdeo for negotiation. In response to such call the petitioners, went to the informant with their licencee arms and ammunitions in their self defence sensing the ulterior motive of the informant but the informant and his party on their arrival not only snatched their licencee arms but also snatched their valuables and brutally assaulted them indiscriminately with an intention to commit their murder. However, on timely arrival of the police the lives of the petitioners could be saved and they were removed to RMCH for the treatment of their grievous injuries. The police after investigation submitted charge-sheet against the informant and his party men.
5. Advancing his argument Mr. Singh submitted that curious enough, none of the members of informant's party sustained injury which substantiate their criminal intention that, petitioners were first, called upon to negotiate the dispute and when they arrived in the premises of the informant, an attempt was made on their lives. The sole intention of the informant and his party men was to terrorize the petitioners and to destroy their business since the petitioners had refused to fulfil their illegal demands as narrated in the statement of the informant/petitioner No. 5 giving rise to Ratu P.s. Case No. 51/2000 on 20.5.2000.
6. Mr. Singh further submitted that arms and ammunitions of the petitioners were snatched by the informant O.P. No. 2 and his men and the same were made over to the police. The said arms and ammunitions were examined by the expert. However, a clear report came in favour of the petitioners that no shot was fired from those arms alleged in the F.I.R. Mr. Singh submitted that since the expert report negatived the allegation of shots having been fired, the prosecution of the petitioners under Section 307 I.P.C. and under Section 27 of the Arms Act is unsustainable. The seized firearms such as Rifle, Revolver were subsequently released in favour of the petitioners after the report of the expert was submitted. As no single shot was fired from the licencee rifles and revolver of the petitioners, no offence under Section 27 Arms Act is attracted against any of them. The police after investigation in Ratu P.S. Case No. 51/2000 submitted charge-sheet against 8 named accused persons, all related to each other and as such it can well be inferred that only the informant and the members of his family had assaulted the petitioners, snatched their arms and valuables and attempted to commit their murder. Neither the villagers nor any outsider has been charge-sheeted so as to attract that the petitioners were assaulted by the villagers also.
7. On the point of law Mr. Singh submitted that there was no evidence in the case diary that the petitioners had fired a single shot from their licencee arms and they had carried the same in the exercise of right of their private defence and therefore, the offence under Section 307 I.P.C. is not attracted against any of them.
8. Reliance has been placed on the decision . In Om Prakash v. State of Punjab, the Hon'ble Supreme Court held, It may, however, be mentioned that in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under Section 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act necessary to commit murder. Such expressions, however, are not to be taken as precise exposition of the law, though the statements in the context of the cases are correct.
9. The Hon'ble Court further observe:
I think that what Section 307 really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events.
10. Further reliance has been placed on . The Hon'ble Supreme Court in Sagayam v. State of Karnataka held, There are different stages in a crime. First, the Intention to commit it; second, the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.
11. Mr. Singh submitted that admittedly the firearms were carried by the petitioners in their self-defence on apprehension of being assaulted but they could not get opportunity to fire a single shot in their self-defence. On the other hand they were caught under such circumstance all of a sudden that barbourous attack was made on their lives by the informant and his men. If at all, for the argument sake, the firearms were carried by the petitioners for using the same for an offence, their acts cover the first and second stage of intention as well as preparation but no attempt to commit any offence.
12. In the same decision the Hon'ble Apex Court further held:
To justify conviction under Section 307 I.P.C., it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it: third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.
13. Mr. R.S. Mazumdar, learned Counsel appearing on behalf of the Opposite Party No. 2 strongly opposed the contention and submission made on behalf of the petitioners and submitted that while rejecting the prayer of the petitioners under Section 227 Cr.P.C. vide order impugned dated 27.03.04 learned Trial court below had meticulously examined the prima facie materials on the record including the case diary and he found that there was sufficient ground for proceeding against the petitioners for the offence under Sections 147/148/149/452/307 I.P.C. as also under Section 27 Arms Act. Learned Trial Court fixed the case for framing of charge against the petitioners by a detailed order. He further submitted that there is no scope for the Trial Court under Section 227 Cr.P.C. to determine as to whether the materials on the record may culminate in the conviction of the accused or not except to examine the materials prima facie to proceed against the accused by putting him/them on trial.
14. Reliance has been placed upon the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Anr. the Supreme Court of India held, Section 227 Itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that "the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused." The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate inquiry in sifting and weighing the materials. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime.
15. Having regard to the facts and circumstances of the case, I find that the argument on behalf of the petitioners is centered mainly around the core issue as to whether a prima facie offence under Section 307 I.P.C. is made out against the petitioners or not ? To substantiate the argument, the petitioners have mainly relied upon Annexure-6 which is the report of the Forensic Science Laboratory which indicates that no shot was fired from the Rifles and the Revolver which were seized from the possession of the petitioners. The fired cartridges, which were recovered from the place of occurrence were reported to be not fired either from the rifles or from the Revolver alleged to be in possession of the petitioners. Similarly there is no material in the case diary that any person, had sustained gun shot injury fired from the firearms of the petitioners as pointed out on behalf of the petitioners so as to attract offence Under Section 307 I.P.C. which can safely be said as the minimum legal requirement.
16. The Hon'ble Supreme Court in State of Orissa v. Debendra Nath Padhi, observed:
Further, the scheme of the code when examined in the light of the provisions of the old Code of 1898, makes the position more clear. In the old Code, there was no provision similar to Section 227 Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged.
17. It would not be out of place to mention that the Hon'ble Supreme Court in Om Prakash v. State of Punjab reported in A.I.R. 1961 S.C.C. 1782 observed which still holds goods.
It may, however, be mentioned that in cases of attempt to commit murder by firearm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under Section 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act necessary to commit murder. Such expressions, however, are not to be taken as precise exposition of the law, though the statements in the context of the cases are correct.
18. In the circumstances, I find that the learned Trial Court below without appreciating the materials on record and the proposition of law as laid down by the Supreme Court by the order impugned dated 27.3.04 in Sessions Trial No. 312/02, directed the charge to be framed against the petitioners for the offence as also under Section 307 and allied Sections of I.P.C. besides under Section 27 of the Arms Act which is unsustainable and it calls for intervention in criminal Revision. For the grounds as shown by the petitioners and the propositions of law referred to herein above I find that the Trial Court below erred by not appreciating the petition Under Section 227 Cr.P.C. on behalf of the petitioners in its right perspective and therefore, the order impugned dated 27.3.04 is not sustainable and hence it is set aside. The learned Trial Court is directed to pass an appropriate order afresh under Section 227 Cr.P.C. in accordance with law and the propositions of law laid down by the Apex Court in various decisions taking into consideration the material facts on record.
19. However, it is to clarify that any expression or observation made in this order will not in any way prejudice the case of the defence/petitioners or the case of the prosecution and that the Trial Court below shall pass appropriate order in accordance with law.
20. With the aforesaid observation, this Cr. Revision is accordingly allowed.