Allahabad High Court
Jamshed And 6 Others vs State Of U.P. And Another on 4 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 Neutral Citation No. - 2023:AHC:157003 A.F.R. Judgment reserved on 19.5.2023 Judgment delivered on 04.08.2023 Court No. - 50 Case :- CRIMINAL REVISION No. - 1526 of 2023 Revisionist :- Jamshed And 6 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Harish Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the revisionists, learned counsel for the private respondent and learned A.G.A. for the State.
2. Instant criminal revision has been preferred against order dated 1.3.2023 passed by learned Additional Sessions Judge, Court No. 4, Baghpat in S.T. No. 344 of 2022 (State Vs. Jamshed and others), arising out of Case Crime No. 759 of 2021, under Sections 147, 148, 149, 452, 323, 506, 354, 354B, 324, 325, 308 IPC, P.S. Badaut, District Baghpat, whereby learned court below has dismissed the discharge application 8B filed by the revisionists.
3. Factual matrix of the case relevant for the purpose of present revision are that informant Irfan lodged an F.I.R. with P.S. concerned on 1.7.2021 at 18:06 hours by filing written report before S.H.O. concerned with averment that on 30.6.2021 at around 10:00 PM he was sitting at his home along with family members, accused persons who harbour enmity with him, prior to the incident and suddenly emerged without any reason armed with sharp edged weapons, clubs and sticks and attacked him with intention to kill. Informant, his son Danish and Amir received serious injuries in the incident. Accused persons had also torn clothes of his wife and daughter and molested them. On hearing cries of informant side, neighbours emerged and thereupon accused persons left the place of incident after giving threat to informant and his family. Injured were examined at C.H.C., Badaut on the date of incident at around 11:00 PM and main injured Amir sustained four injuries which are described as below.
(I) Incised wound of size 4 x 0.5 cm into bone deep. Margin is clear on lateral to left Eyebrow on lt. Side of face. K.U.O. X-ray forehead (skull) Ap-Lat.
(ii) Contusion of size 2 x 1 cm on Rt. Side of face just below Rt. Eye.
(iii) Contused swelling of size 4 x 2 cm on verntral aspect of Rt. Forearm.
(iv) Contused swelling of size 05.0.5 cm on dorsal aspect of Rt. Hand. KUO X-ray Rt. Hand AP-oblique. Duration Fresh.
4. In the opinion of doctor, injury no. 1, kept under observation, which was caused by sharp edged object. Injury no. 4, kept under observation. Injury nos. 2 and 3 were found simple in nature.
4. Injured Irfan suffered three injuries out of which one injury on left shoulder joint, which was kept under observation. Injury was found to be caused by hard and blunt object.
5. Injured Danish Sustained six injuries out of which two injuries were kept under observation and rest were found simple. In X-ray of skull of injured Amir, no bone injury was seen, however, in X-ray of right hand of Amir, fracture on second and fourth of metacarpal bone seen. Doctor prepared supplementary report of injured Amir and termed the injuries of finger of right hand as grievous. In x-ray report of left hand of Irfan, fracture on fifth metacarpal bone was seen. These injuries was found to be grievous. In x-ray report of left hand of injured Danish, fracture in distal end of second metacarpal bone was seen which was found grievous.
6. Injured persons in their statement under Section 161 Cr.P.C. and aggrieved ladies of the family of the informant Nurnisha and Sazia in their statement under Section 164 Cr.P.C. supported the F.I.R. version. Injured Amir in statement under Section 161 Cr.P.C. stated that accused persons have attacked him with sharp edged weapons, lathi and danda in which he has suffered injuries on his head and spinal cord and referred to district hospital Baghpat from C.H.C., Badaut for treatment. Independent witnesses also supported the F.I.R. version in their statements under Section 161 Cr.P.C. CT-Scan of head of injured Amir was conducted on 1.7.2021 and concerned doctor/radiologist found a linear fracture involving anterior lateral wall of left maxillary sinus, however, no abnormality was detected, parenchyma.
7. The investigating officer recorded statement of doctor Pravendra Chaurasiya, who conducted MLC of injured persons and submitted supplementary report, who has stated in his statement that no offence under Section 308 IPC is made out on the basis of supplementary report of all three injured persons including Amir and in X-ray report of Amir, no bone injury was seen. On the basis of medical evidence, investigating officer dropped charge under Section 308 IPC, however, in charge sheet, section 308 IPC was also added later on, on the basis of medical report after further investigation carried out on orders of Circle Officer.
8. Learned court below took cognizance of the offence on the basis of charge sheet and summoned the accused persons to face trial inter alia under Section 147, 148, 149, 452, 323, 324, 325, 308, 506, 354, 354B IPC.
9. Accused, who are revisionist before this Court, moved an application for discharge with prayer to discharge qua charge under Section 308 IPC stating that no case under Section 308 IPC is made out against them as in X-ray of skull of main injured Amir, no fracture was found, however, in CT Scan report of doctor Jain of Jeewan Jyoti Nursing Home, Badaut, linear fracture was only found in anterior lateral wall of left maxillary sinus and none of the injury of accused persons appears to be dangerous for life. There is also no statement of any doctor that any of the injury of Amir were dangerous to life. Inasmuch as, original CT Scan film was not placed on record.
10. There is cross case instituted on complaint of Sameena, wife of Momin on criminal complaint which is registered as Crl. Complaint Case No. 3394 of 2021 (Sameena Vs. Danish and others), P.S. Badot, District Baghpat, wherein Irfan, Gulfam, Javed, Arshad, Danish and Amir of prosecution side of present case are summoned as accused by the court below vide order dated 1.7.2022 under Sections 147, 148, 452, 323, 307, 506 IPC.
11. Section 308 IPC reads as under:-
"308. Attempt to commit culpable homicide.--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 of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
12. Hon'ble Supreme Court in Crl. Appeal No. 2204 of 2010, Roop Chand @ Lala Vs. State (NCT) of Delhi considered the scope of Section 308 IPC in an appeal against conviction and held that to secure conviction under Section 308 IPC, prosecution must prove that the accused had requisite intention or knowledge to cause culpable homicide which in turn can ascertain the actual injury as well as other surrounding circumstances. Section 308 IPC necessarily requires proving intention or knowledge. It is thus, crucial to determine whether the accused had intention or knowledge that injury inflicted on the victim could cause the later death and as a result thereto the accused could be guilty of committing culpable homicide not amounting to murder.
13. In matter of plea seeking discharge under Section 227 Cr.P.C., some judicial pronouncements of Hon'ble Apex Court deserve to be mentioned.
14. Hon'ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal (1979) 3 SCC 39, on the question of discharge has held as follows:-
" That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) 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.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused."
15. Hon'ble Apex Court in the case of P. Vijayan vs. State of Kerala & Another (2010) SCC 398, on the question of discharge has held as follows:-
" At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
16. In recent judgment, Hon'ble Supreme Court in Captain Manjit Singh Virdi (Retd.) v. Hussain Mohammed Shattaf & Ors., 2023 LiveLaw (SC) 462, held that truthfulness, sufficiency and acceptability of material produced, can be examined only at the stage of trial. If the facts of the case are examined in the light of law laid down by this Court on the subject, it is evident that High Court has not even referred to the evidence collected by investigating agency produced along with charge sheet in its identity, rather there is selective reference to the statements of some of persons recorded during investigation. It shows that there was total non application of mind. The High Court had exercised the jurisdiction while discharging to murder accused persons in a manner which is not vested in it to scuttle the trial of a heinous crime. At the stage of charge, court had to satisfy that a prima facie case is made out against accused persons. Interference of the court at that stage is required only if there is strong reason to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the court.
17. In State of Rajasthan Vs. Ashok Kumar Kashyap, (2021) 11 SCC 191, Hon'ble Supreme Court placed reliance on its previous judgment in P. Vijayan vs. State of Kerala (supra), wherein it is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. It is further observed that while exercising his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.
18. In present case although Dr. Pravendra who conducted M.L.C. of injured persons and submitted supplementary report stating that no offence under Section 308 IPC is made out on the basis of supplementary report as no bone injury was seen on the skull of injured, however, in CT scan report of injured Amir, a linear fracture involving anterior lateral wall of left maxillary sinus was detected, although there is no opinion of the doctor regarding the nature and effect of this injury, however, this injury is on vital part of the body, just below the skull. Injured Amir has also stated in his statement that accused persons had assaulted him and his father and brother Danish by clubs, sticks and inside weapons in which he received injuries on his head and spinal cord.
19. In injury report of Amir, one Incised wound of size 4 x 0.5 cm into bone deep. Margin is clear on lateral to left Eyebrow on lt. Side of face and one contusion of size 2 x 1 cm on Rt. Side of face just below Rt. Eye, were found apart from two contused swelling on right forearm and right forehand, thus keeping in view the nature of injury no. 1 of Amir, which is in the opinion of the doctor has been caused by some sharp edged object and the statement of injured and other witnesses recorded under Section 161 Cr.P.C., it cannot be held at the stage of framing of charge that there is no sufficient ground for proceeding against accused under Section 308 IPC in the light of pronouncement of Hon'ble Apex Court as stated above as a charge can also be made against accused on grave suspicion of commission of offence. Prima facie case envisaged for framing of charge is prima facie formation of opinion by trial court that there is sufficient ground to put accused on trial for said charge and not the formation of opinion that the said material collected during investigation, if proved, during trial, the same would be sufficient to convict the accused for said charge.
20. Considering rival submissions of learned counsel for the parties, material on record and totality of the facts and circumstances of the case, I find no fault. Learned court below in passing impugned order, whereby discharge application moved by accused revisionist for charge under Section 308 IPC has been dismissed. No illegality, irregularity or perversity is found in impugned order passed by learned court below. Revision is devoid of merit and deserves to be dismissed in the light of foregoing discussions.
21. Accordingly, impugned order passed by learned court below is affirmed and revision stands dismissed.
Order Date :- 04.8.2023 A.P. Pandey