Rajasthan High Court - Jodhpur
Subeg Singh & Ors vs State & Anr on 24 May, 2011
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Subeg Singh & Ors. Vs. The State of Rajasthan & Anr.
(S.B. Criminal Revision Petition No.371/2011)
S.B. Criminal Revision Petition under Section
397 read with Section 401 Cr.P.C.
Date of Order :- May 24, 2011
PRESENT
HON'BLE MR. JUSTICE R.S. CHAUHAN
Mr.Trilok Joshi, for the petitioners.
Mr.Mahipal Bishnoi, Public Prosecutor.
BY THE COURT:
Aggrieved by the order dated 05.03.2011, passed by the Additional District & Sessions Judge, Raisinghnagar, District Sriganganagar, whereby the learned Judge has framed the charges for offences under Sections 147, 307, 307/149, 332, 353 IPC and for offence under Section 3 PDPP Act, the petitioners have knocked at the doors of this Court.
2. Shortly, the facts of the case are that on 05.06.2009 around 10:15 AM, the accused-petitioners formed an unlawful assembly with a common object of preventing the officers of Excise Department and the Police 2 Department from raiding their illegal distillery. It is claimed by the Investigating Agency that Subeg Singh, petitioner No.1, in order to kill the officers, started the tractor and started chasing the officers on his land. In this process, he hit a jeep which belonged to the officers. Three officers were also hurt.
3. On the basis of the complaint lodged by Hukam Singh, the SHO, Police Station Raisinghnagar, registered a formal FIR, FIR No.217/2009 for offences under Sections 307, 332, 353, 341, 147, 148, 149 IPC and for offence under Section 3 PDPP Act. Subsequently, the Police filed a charge-sheet against all the accused-petitioners. Vide order dated 05.03.2011, the learned Judge framed the charges as aforementioned. Hence, this petition before this Court.
4. Mr. Trilok Joshi, the learned counsel for the petitioners, has vehemently raised the following contentions before this Court : firstly, the Police has falsely roped in the accused-petitioners in a case under Section 307 IPC. For, according to the Police, there are three persons, who have suffered injuries, namely Rajendra Kumar, Jaskaran Singh and Gurlal Singh. According to their injury reports, all the three persons have suffered merely bruises and abrasions on non-vital parts of their body. 3 Thus, the case does not fall within the ambit of Section 307 IPC. Yet, the learned Judge has not only charged Subeg Singh, petitioner No.1, for offence under Section 307 IPC, curiously he has charged the other co-accused persons also for offence under Section 307 IPC and in the alternative for offence under Section 307/149 IPC. Secondly, the Police has recorded the statements of eye-witnesses, who were officers of the Police Department itself, or officers of the Excise Department. However, they have failed to record the statement of independent witnesses. Since the Police has not recorded the statements of independent witnesses, therefore, an adverse inference should be read against the Investigating Agency.
5. On the other hand, Mr. Mahipal Bishnoi, the learned Public Prosecutor, has strenuously contended that Section 307 IPC punishes the "intention" or "knowledge" which manifest itself in an act which has failed to cause the death of a person. Section 307 IPC is divided into two parts. The latter part of the Section clearly states that if "hurt" is caused by an act of an accused, under such circumstances where his intention and knowledge is clear, even then the case would fall within the ambit of Section 307 IPC. Thus, this case falls squarely under the ambit of Section 307 IPC. Secondly, the trial court has charged the 4 petitioners Nos.2 to 5 for an offence under Section 307 only as an alternative charge. Such a charge does not prejudice the case of the petitioners as on the other hand, they have been charge-sheeted for offence under Section 307/147 IPC. Thirdly, at the time of framing of the charge, the learned trial court is not permitted to weigh the pros and cons of the prosecution case. Therefore, the issue whether independent witnesses have been withheld by the Investigating Agency, the issue as to what would be the effect of such withholding, are issues which would be decided by the trial court at the end of the trial. Such issues can neither be debated, nor decided at the initial stage of framing of the charge. Hence, he has supported the impugned order.
6. Heard the learned counsel for the parties and perused the impugned order.
7. Recently in the case of Sajjan Kumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368], the Apex Court has summarized the scope and ambit of Sections 227 and 228 IPC as under :
On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge :5
(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weight the evidence for the limited propose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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 proceeding with the trial.
(iii) The court cannot act merely as a post office and a mouthpiece 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) if on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited 6 purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
8. Thus, the learned trial court was required to examine whether a grave suspicion exits that the petitioners have committed the offence under Section 307 IPC or under Section 307/149 IPC or not.
9. Section 307 IPC read as under :
Section 307. Attempt to murder Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.- When any person offending under this section is under sentence of[imprisonment for life] he may, if hurt is caused, be punished with death].
Illustrations.
(a) A shoots at Z with intention to kill him, under such circumstances that, if death 7 ensued, A would be guilty of murder, A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensure.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph of ] this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.
10. Illustration (c) deals with the latter part of Section 307 IPC. The said illustration clearly makes a distinction between "preparation" and "attempt". But most importantly, while the illustration uses the word "wounds" as a verb, it does not differentiate between an injury of "simple nature" or "grievous nature". All it requires is that "hurt", as defined in Section 319 IPC, as merely causing pain, is sufficient to bring the case within the fold of Section 307 IPC. At the time of framing of a charge for offence under Section 307 IPC what the court is concerned about is to decipher if an act was committed with an 8 intention or knowledge under such circumstances that by such an act death would be caused, or not ? Interestingly, the said provision makes intention and knowledge, as expressed through a failed act, as punishable. For, even if the ultimate act is not achieved, even then the intention and knowledge, as manifested in the attempt, is punishable. Since the act of causing death, i.e. murder, is the most heinous offence, an act which reveals the intention and knowledge, through an act of attempt to cause death, is punishable under the law. Therefore, the said provision is divided into two parts : the first part, where no hurt has been caused by the act, for which the persons would be liable for imprisonment upto ten years; the second part, where "hurt" is caused, the accused person would be liable to a sentence upto life imprisonment.
11. According to the eye-witnesses, three persons have suffered bruises and abrasions. Thus, clearly "hurt" has been caused to them as defined under Section 319 IPC. Thus, prima facie the case does fall under the latter part of Section 307 IPC.
12. A bare perusal of the charges framed against the petitioners clearly reveals that the learned Judge has framed the charge of offence under Section 307 IPC merely 9 as an alternative charge; the other charge being under Section 307/149 IPC. A clear cut distinction has to be made between an individual liability and a vicarious liability. In the former, the person is responsible for his own action, wherein in the latter, he is responsible for the actions of others, who were members of the unlawful assembly. Section 149 IPC does not require any overt act. Mere presence in an unlawful assembly is sufficient to impose a criminal liability upon an offender. Therefore, the issue whether the petitioner Nos.2 to 5 have committed any overt act causing injuries to the victims is irrelevant. The fact that allegedly they were members of an unlawful assembly is sufficient for the learned Judge to frame a charge against them for offence under Section 307/149 IPC.
13. In the case of Sajjan Kumar (Supra), the Hon'ble Supreme Court has firmly opined that while framing the charges, the learned trial court cannot weigh pros and cons, cannot meticulously examine the lacunae in the prosecution case. Such an assessment of the evidence is part of the trial which is yet to be opened by the prosecution and rebutted by the defence. Therefore, the issue whether the Investigating Agency has withheld the recording of the statements of independent witnesses, the issue as to what would be the effect of withholding the 10 independent witnesses, such issues cannot be adjudicated upon at the time of framing of the charges. Therefore, the contention raised by the learned counsel for the petitioners is unacceptable.
14. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merit, is hereby dismissed. The stay petition also stands dismissed.
(R.S. CHAUHAN) J.
Manoj solanki