Jasbir Singh vs Baljinder Singh And Others

Crl.R.No.611 of 2012(O&M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Crl.R.No.611 of 2012(O&M) Date of Decision: September 24, 2013

Jasbir Singh .....Petitioner v. Baljinder Singh and others ......Respondents

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

Present: Mr.S.S.Brar, Advocate for for the petitioner.

Mr.A.S.Kalra, Advocate for respondents no.1 to 5.

Mr.Raja Sharma, AAG, Haryana. .....

RAM CHAND GUPTA, J.

The present revision petition has been filed against order dated 14.2.2012 passed by learned Additional Sessions Judge, Fast Track Court, Sirsa, vide which respondents-accused no.1 to 5 were ordered to be charged for offences under Sections 326, 325, 324, 323, 148 read with Section 149 IPC.

I have heard learned counsel for the petitioner and have gone through the whole record carefully.

The grievance of the present petitoner-complianant is that respondents-accused should also have been charged for offence under Section 307 IPC alongwith other offences for which they have been charged.

Briefly stated, petitoner-complainant Jasbir Singh lodged a report with the police to the effect that on 4.8.2011 at about 7.30 a.m., he was cleaning the drain in front of his house and his brother Lakhbir Singh @ Kala and his son Yadwinder Singh were also returning to their house from the side of village Rangari. They were at a distance of about 2- 2½ Meenu killas from the complainant on the road. In the menatime, a Maruti car of 2013.09.27 12:32 I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -2-

white colour came from the side of village Rangari and a motorcycle occupied by Mandeep Singh and Gurjant Singh also came there from the side of village Begu. Both the vehicles were stopped there. All of them started quarrelling with his brother Lakhbir Singh and his nephew Yadwinder Singh. Complainant also reached there and observed that Balwinder Singh-accused inflicted injuries to Yadwinder Singh from the blunt side of Kassia; accused Gurjant Singh,who was armed with gandasa, inflicted its blow on the head of Lakhbir Singh @ Kala; accused- Mandeep Singh son of Darbara Singh, who was also armed with gandasa, inflicted its blow on the left arm of Yadwinder Singh. Accused Darbara Singh, who was armed with lathi, gave many blows of lathi to Yadwinder Singh, which hit on his arms and feet. Accused Bhopal @ Pal Singh, who was armed with a sua, inflicted three sua blows to Yadwinder Singh on his feet and left arm. The motive for the offence was that a civil litigation was pending between the parties. Many people collected there and hence all the accused ran away.

On this statement, initially a case was registered for offences under Sections 323, 324, 148, 307 readwith Section 149 IPC at Police Station Sadar Sirsa, i.e., FIR No.145 dated 4.8.2011. Accused Gurjant Singh was arrested on 1.9.2011, however, remaining accused could not be arrested. Challan was presented against Gurjant Singh accused only for the said offences including offence under Section 307 IPC.

Learned trial Court ordered for framing charge against respondent no.3 for offences under Sections 326, 325, 324, 148 read with Section 149 IPC on the plea that injuries on the person of Yadwinder Singh were declared grievous in nature by Board of Doctors and that there is no medical evidence that any injury received by Yadwinder Singh was dangerous to life.

Law is well settled that for the purpose of framing of charge, only prima facie case is to be seen and that charge can be framed if strong suspicion for committing offence is shown against the accused.

Law is also well settled that veracity and effect of the evidence which the proseuction proposes to adduce are not to be meticulously gone Meenu into at that stage. On the point authoritative ponouncement of Hon'ble Apex 2013.09.27 12:32 I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -3-

Court in Supdt. and Remembrancer of Legal Affiars, West Bengal v. Anil Kumar Bhunja anothers, 1980 AIR (SC) 52 can be referred, relevant paragraph of which reads as under:-

"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence."

In State of Maharashtra v. Som Nath Thapa, etc. 1996 (2) RCR (Criminal) 480, Hon'ble Apex Court observed as under:-

"33. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be Meenu accepted as true at that stage."

2013.09.27 12:32 I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -4- In State of M.P. v. Sudhir Pingle, 2000(1) RCR (Criminal) 523, it was observed as under:

"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the state of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceedings against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. 1991 (1) RCR (Crl.) 89: 1990 (4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability Meenu thereof. The Court referred to earlier decisions in State of 2013.09.27 12:32 I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -5-

Bihar v. Ramesh Singh, 1977 (4) SCC 39, Union of India v. Prafulla Kumar Samal, 1979 (3) SCC 4 and Supdt. and Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 (4) SCC 274, and held thus:"

"From the above discussion it seems well settled that at the Sections 227-228 stage 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 disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the 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."

In another judgment of Hon'ble Apex Court in Sanghi Brothers (Indore) Pvt.Ltd., v. Sanjay Chaudhary and ors. 2008 (4) RCR (Criminal) 640, on the question of framing of charge, the Hon'ble Apex Court observed as under:

"11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."

Hence, in view of the aforementioned authoritative pronouncements of Hon'ble Apex Court, learned trial court is only to see prima facie case at the time of framing of charge and even if the Court thinks that the accused might have committed the offence, it can frame the Meenu charge though for conviction the conclusion is required to be that the 2013.09.27 12:32 I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -6-

accused has committed the offence and probative value of the material on the record cannot be gone into and that the material brought on the record by the prosecution has to be accepted as true at that stage.

It is also pertinent to reproduce Section 307 IPC, which relates to attempt to murder, which reads as under:-

"Section 307. Attempt to murder: Whoever does any act with such intention or knowledge, and under such cirucmstances that, if he by that act caused death, he would be guilty of 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."

A bare perusal of the aforementioned provision shows that it is not essential that bodily injury capable of causing death should have been inflicted to justify conviction for offence under Section 307 IPC. However, if on the facts and circumstances of the case an inference can be drawn that there is an intent coupled with some overt act in execution thereof, which is sufficient to justify conviction under Section 307 IPC, the court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. On this point observation of Hon'ble Apex Court in State of M.P. v. Kashiram and others AIR 2009 SC 1642 is very material, relevant paragraphs of which are as under:-

"9. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended Meenu 2013.09.27 12:32 by any result so far as the person assaulted is concerned, but I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -7-

still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

11. This position was highlighted in State of Maharashtra v. Balram Bama Patil and ors. 1983(2) SCC 28, Girija Shanker v. Stateof Uttar Pradesh 2004(3) SCC 793; R.Parkash v. Stateof Karnataka, JT 2004(2) SC 348 and State of Madhya Pradesh v. Saleem @ Chamaru and Anr. 2005 (5) SCC 554.

12. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury."

Meenu 2013.09.27 12:32 Hence, in the light of aforementioned legal proposition this I attest to the accuracy and integrity of this document chandigarh Crl.R.No.611 of 2012(O&M) -8-

Court is to see as to whether learned trial Court was justified in not framing the charge for offence under Section 307 IPC against respondents-accused.

In the present case, as already stated above, all the accused were armed with deadly weapons. They caused injuries to Yadwinder Singh and Lakhbir Singh @ Kala. Injured Yadwinder Singh received eight injuries as described in Annexure P5. Very serious injuries were received by Lakhwinder Singh on his head with sharp edged weapon, which was caused by accused Gurjant Singh in furtherance of common object of unlawful assembly. The Neurosurgeon, Jindal Hospital, Hisar, Annexure P6, has given the opinion regarding head injury on the person of Lakhbir Singh @ Kala as under:-

"Patient had fractured occipital. Injury is grievous in nature. The possibility of this injury being dangerous cannot be ruled out."

In view of these facts, I am of the view that trial Court has committed illegality in coming to the conclusion that prima facie no case for offence under Section 307 IPC is made out against the respondents-accused. Rather charge for offence under Section 307 IPC read with Section 149 IPC should have been framed against all the accused alongwith other charges, already framed.

As a sequal to my above discussion, the present revision petiton is allowed and the impugned order passed by learned Additional Sessions Judge, Sirsa, is modified to the extent that respondents-accused should also have been charged for offence under Section 307 read with Section 149 IPC alongwith other charges, already framed. Hence, learned trial Court is directed to proceed further in the case as per law.

However, it is made clear that nothing observed in this order shall be construed as an expression of opinion of this Court on decision of this case on merit.

24.9.2013 (Ram Chand Gupta) meenu Judge

Note: Whether to be referred to Reporter? Yes/No. Meenu 2013.09.27 12:32 I attest to the accuracy and integrity of this document chandigarh