Delhi District Court
Cr No. 46/14. Jagbir Singh & Another vs . State & Other. on 12 September, 2014
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 46/2014.
1. Jagbir Singh,
S/o Sh. Bhoop Singh,
2. Ranbir Singh,
S/o Jagbir Singh,
Both R/o House No. 56,
EBlock, Prem Nagar,
Najafgarh, Delhi. ... Revisionists.
Vs.
1. The State,
(NCT of Delhi).
2. Shri Kishan Kumar,
S/o Puranmal,
3. Puranmal,
S/o Sh. Prem Raj,
4. Subhash,
S/o Sh. Puranmal,
Respondents No. 1 to 4:
Page No. 1. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
R/o RZ26, New Roshanpura, Main Paprawat Road, Najafgarh, New Delhi43.
5. Ramphal, S/o Late Daryao Singh,
6. Sanjay @ Nanha, S/o Late Daryao Singh,
7. Dilbagh Singh, S/o Late Daryao Singh, Respondents No. 5 to 7: R/o RZ1, Prem Nagar, Main Paprawat Road, Najafgarh, New Delhi43.
8. Hoshiar Singh, S/o Surat Singh, R/o RE22, Roshanpura Extn., Main Paprawat Road, Najafgarh, New Delhi43. ... Respondents.
Date of Institution. : 29.8.2014. Arguments Advanced On. : 3.9.2014. Date of Order. : 12.9.2014. 12.9.2014. Present: Both the revisionists (original complainant/injured
and the other victim/injured before the ld.
Page No. 2. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
Magisterial Court at the time of passing of impugned order) are present in person. Sh. V.K. Swami, ld. Addl. PP for State/respondent no. 1.
Respondents no. 2 to 8 are in person.
Today the present criminal revision petition is fixed for order.
Arguments on the present criminal revision petition were addressed by Ms. Nisha Narayanan, ld. counsel for revisionists, Sh. V.K. Swami, ld. Addl. PP for State/respondent no. 1 and Sh. Anirudh Yadav, ld. counsel for respondents no. 2 to 8.
I have perused the entire record including TCR and case laws relied upon by the ld. counsel for revisionists, carefully.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 r/w/s 399 CrPC filed by the revisionists is to the impugned order dated 21.9.2011 passed by Sh. Naresh Kr. Laka, the then ld. MM, Dwarka Courts, Delhi, for framing of charge u/s 324/452/341 r/w/s 34/149 IPC against all the seven accused persons (respondents no. 2 to 8 herein), in case titled Page No. 3. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
as "State Vs. Krishan Kumar & Others", bearing now SC No. 52/12, PS Najafgarh.
2. The background facts necessary for disposal of the present criminal revision petition are that initially on the complaint of accused Shri Kishan Kumar (respondent no. 2 herein) a cross case titled as "State Vs. Jagbir & Another", bearing SC No. 50/12, FIR No. 221/04, u/s 302 IPC, PS Najafgarh, was registered against both the victims herein regarding the same incident on counter version and the said sessions case is pending trial before this Court. The original case pertaining to this revision petition is also pending trial before this Court, as after recording of pre charge evidence and framing of charge for magisterial triable offences, ld. Magisterial Court committed the said case to this Court (as per order of ld.
ASJ), in view of Section 323 CrPC, since the said case was on counter version, regarding same incident, so as to avoid conflict of judgments.
3. Initially in the original case pertaining to this revision petition, the accused persons were summoned for the offences u/s 324/452/341 r/w/s 34/149 IPC vide order dated 21.9.2011.
In the revision petition filed by the revisionists against the said Page No. 4. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
impugned order, the then ld. ASJ vide his order dated 7.5.2007, had observed that there is no material to summon the accused persons for the offences u/s 307/308/326 IPC on the premise that the opinion of doctor on the MLCs of complainant was sharp, simple and blunt and the injuries on the persons of complainants were not caused by deadly weapons and it was not on different vital parts of the body. It was further observed by the ld. ASJ in the said order that if any further evidence comes on record, graver sections can be added.
4. However vide impugned order, the ld. Magisterial Court opined that from the material placed on record, it is clear that no new evidence came on record, which warrants framing of charge against accused persons for offences u/s 308/326/120B IPC as there does not appear any intention or knowledge on the part of accused persons to kill complainants keeping in view the nature of weapon used, parts of bodies where injuries were inflicted and the opinion of doctor on the MLCs. It was further observed by the ld. MM in the impugned order that the Section 326 IPC cannot be attracted as there is no grievous injury on the persons of complainants.
5. Ld. counsel for revisionists had drawn my attention to Page No. 5. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
the following specific deposition of CW1 (complainant/injured) in his pre summoning evidence: "... ... ... I heard some noise and I came outside to my house. My brother is having a shop outside out house. The accused persons Puranmal, Krishan Kumar, Sanjay, Dilbagh, Hoshiyar Singh and Dariyav Singh have also their shops in front of our house. When I get out of my house, I saw Sanjay, Dilbagh and Hoshiyar Singh were beating my brother Ranbir Singh who was lying on the floor. I saw that the Krishan Kumar was having an iron rod in his hand, Ramphal and other persons were having danda/lathis. Some of them were holding my brother Ranbir Singh and some of them were hitting. I identify the accused persons as they were our neighbours. ... ... ... I saw that Krishan Kumar hit on the head of my brother with iron rod. When I tried to rescue my brother, Dilbagh and Sanjay caught me hold from behind and Ramphal hit me at my head from a lathi. I could not exactly see at that time but all the above said persons also started beating me also. ... ... ... My wife rang to the police from our land line number 25019624. ... ... ... After some time PCR van reached. On seeing the PCR van all the accused persons fled away. I was conscious but my brother was unconscious at that time. ... ... ...".
6. She had further drawn my attention to the following specific deposition of CW2 (other injured) in his pre summoning evidence: Page No. 6. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
"... ... ... After 510 minutes, 8 persons namely Puran Mal, Daryao Singh, Hoshiyar Singh, Kishan, Subhash, Sanjay, Dilbagh Singh and Ram Phal came armed with iron rod and lathis. The Kishan Kumar was leading the group. After entering in my shop, he broke the bottles of cold drink and hit on my head one of the bottle. All these persons thrashed me out of my shop and they were saying that they will kill me. Accused no. 1 hit me on my head with an iron rod and other accused persons hit me with lathi, dande etc. At that time, my mother also came at the spot and she even tried to save me. The accused persons shouting that "aaj isko khatam karke iski kahani khatam kar dete hain". ... ... ... In the meantime, my brother Jagbir also came to the spot. Thereafter, I fell unconscious. ... ... ...".
7. She had also submitted that as per MLC Ex CW6/A of Ranbir Singh, he sustained S/E laceration in RT temporal region 1 - 2½, ... ... ... - 2'', Rt Frontal - 2'', Lt Parietal 2'' and the nature of injury was opined by the concerned doctor as simple by sharp weapon. She had further contended that as per MLC Ex CW6/B of Jagbir Singh, he sustained "(1) Laceration in RT temporal region, (2) ... ... ... occipital parietal junction, (3) Bruise up of Lt shoulder with and with swelling"
and the nature of injuries were opined by the concerned doctor as simple, one injury by sharp weapon and two injuries were from blunt weapons. She has further submitted that relying Page No. 7. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other. upon the statements of CW1, CW2 and CW5 in pre summoning evidence and MLCs of both injured, clearly offence u/s 308 IPC is also made out against all the accused persons and accordingly the ld. Magisterial Court ought to have committed the case to the Court of Sessions for framing of charge accordingly. Ld. counsel for revisionists had relied upon the following judgments:
(i) Vasant Vithu Jadhav Vs. State of Maharashtra, 2004 (2) ACR 1047 (SC).
(ii) Samar Singh Puri Vs. The State (NCT of Delhi), MANU/DE/2346/2011.
8. Per contra, ld. Addl. PP for State/respondent no. 1 and ld. counsel for respondents no. 2 to 8 have submitted that there is no infirmity or illegality in the impugned order and the same has been passed by the ld. Magisterial Court after properly considering the records and on sound principles of law. They have accordingly prayed that the present criminal revision petition may be dismissed.
9. From the material on record including the testimony of Page No. 8. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
CW1, CW2 and CW5, it is clear that both the injured persons received injuries including on their vital parts of body i.e. head with dangerous weapons like lathi/iron rod etc. and CW2 also received injury on his head from the same weapon as well as from broken cold drink bottle and the injuries were allegedly inflicted in furtherance of the common object of all the accused persons and the MLCs of the injured persons also prima facie corroborates the injuries suffered by them.
10. At the stage of summoning of accused persons, the Magisterial Court was merely supposed to opine, on the basis of material available before it, as to what offences were prima facie committed and whether there were sufficient grounds to proceed against the accused persons or not. Accordingly the revision petition filed by the revisionists/victims against the impugned order for summoning of accused persons for graver offences, was dismissed by the ld. ASJ vide his aforesaid order, opining that if new material/evidence comes, then charge for graver Sections can be attracted. However at the stage of charge, the ld. Magisterial Court was supposed to opine as to for what offences grave suspicion existed against the accused persons or a prima facie case for the said offences existed against them.
Page No. 9. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
11. The level of examination of the material and the degree of culpability of accused persons at the stage of summoning and at the stage of charge are different. An accused can be summoned for certain offences, but can very well be discharged in the same case if strong suspicion or prima facie case does not exist against him. In similar fashion, an accused can be summoned for lessor offences and charge can be framed against him for grave offences, if strong suspicion exists against him from the material on record.
12. In case "State of Orissa Vs. D.N. Padhi", 2005 SCC (Cri) 415, the Hon'ble Supreme Court, in para no. 18, has held as under: "18. ... ... ... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is wellsettled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi Page No. 10. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state (stage ?) of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
13. Further, in the case of "Onkar Nath Mishra & Others Vs. State (NCT of Delhi) & Another", 2008 (1) JCC 65, the Hon'ble Supreme Court has observed, as under: "It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, Page No. 11. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
14. Further, in the case titled as "Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra", 2008 (2) RCR (Criminal) 896, in para nos. 14 and 15, it was held as under: "14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
Page No. 12. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other.
15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See : State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 and Prafulla Kumar Samal (supra)]"
15. At the stage of charge, the ld. MM should have taken the testimony of CW1 and CW2 on face value without meticulously examining the same. Once CW1 and CW2 stated that said injuries were inflicted by accused persons in premeditated manner with iron rods, dandas and also by broken Page No. 13. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other. cold drink bottle (as per CW2), on their heads (vital part), and same are corroborated by their MLCs, the ld. MM ought to have prima facie considered the same on face value without going into the intensity of injuries or veracity of depositions. The version of respondents no. 2 to 8 could not have been considered at that stage.
16. In the light of the aforesaid discussions, I am of the considered opinion that after prima facie considering the material on record and the testimony of original complainant's witnesses in pre charge evidence, specially of CW1, CW2 and CW5, the ld. MM ought to have framed the charge for the offences u/s 149 IPC, u/s 452 r/w/s 149 IPC, u/s 341 r/w/s 149 IPC and u/s 308 r/w/s 149 IPC, but rather he had merely framed charge for the offences u/s 324/452/341 r/w/s 34/149 IPC. The judgments cited by the ld. counsel for revisionists also supports the framing of charge for aforesaid offences as discussed hereinabove. Resultantly the impugned order is held to be not sustainable and is accordingly set aside. Consequently the revision petition is accordingly allowed.
17. Since the original case is also now pending before this Court, therefore a copy of this order be also placed in the Page No. 14. Contd... ... ...
CR No. 46/14. Jagbir Singh & Another Vs. State & Other. original case file for framing of charge for the offences u/s 149 IPC, u/s 452 r/w/s 149 IPC, u/s 341 r/w/s 149 IPC and u/s 308 r/w/s 149 IPC.
18. Revision petition file be consigned to record room. Announced in the open Court on 12.9.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 15. Contd... ... ...