Crl.Rev.No.1959 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Rev.No.1959 of 2008
Date of Decision:- 2nd .09.2009
Fauja Singh and others ....Petitioner(s)
vs.
State of Punjab ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Padam Jain, Advocate,
for the petitioner.
Mr.Amandeep Singh Rai, AAG, Punjab.
***
AUGUSTINE GEORGE MASIH, J.
In the present petition, challenge is to order dated 14.8.2008
passed by the learned Sessions Judge, Kapurthala, framing charge under
Section 302 IPC against the petitioners.
Briefly, the facts of the case are that FIR no.183 dated
18.12.2007 under Sections 302, 148 and 149 IPC came to be registered
against the petitioners at Police Station Subhanpur, District Kapurthala.
This FIR came into existence on the statement of Balwinder Singh son of
Surjit Singh wherein he alleged that on 10.12.2007 at about 4.00 P.M.,
petitioner No.2 Kuldeep Singh armed with Datar, petitioner No.3-Jasvir
Singh armed with Sota and Kashmir Singh @ Lalli armed with Sota along
with their wives, namely, Rajwinder Kaur wife of Kuldeep Singh, Rani
wife of Kashmir Singh and Amandeep Kaur wife of Jasvir Singh carrying
Sotas came from their house in the fields of Surjit Singh along with
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complainant Balwinder Singh and their servant Mahimanand where they
were cutting their crop. Fauja Singh raised a Lalkara and Kuldeep Singh
inflicted first blow upon the father of the complainant, namely, Surjit Singh
who raised his right arm for saving the blow and in that process, the blow
hit his right hand’s back side. Kashmir Singh then inflicted a Sota blow
which hit Surjit Singh on the right elbow. Then the complainant raised
noise and the persons who were passing on the road, namely, Bakhtawar
Singh and Joga Singh son of Balbir Singh reached the spot and in their view
Jasvir Singh inflicted a Sota blow upon Surjit Singh which landed on his
left elbow due to which he fell down. While he was lying on the ground, all
three wives of the accused inflicted Sota blows upon Surjit Singh which
landed on his buttocks and other parts of the body. On hearing the noise
being raised by the complainant, the villagers and neighbours got attracted
to the spot, whereafter all the accused ran away from there with their
respective weapons. Surjit Singh was then taken to Civil Hospital, Dhilwan
and got admitted. He remained in the hospital and his medical examination
was got conducted and thereafter, he was discharged from the hospital. At
that time, no FIR or DDR was lodged with the police and the explanation
which has been given for non-recording of the FIR is that the neighbours
and villagers of the village were intervening for a compromise between the
parties. Surjit Singh (father of the complainant) died on 18.12.2007 and
only then the present FIR was got registered by the complainant. The post-
mortem on the dead body of Surjit Singh was got conducted wherein it was
mentioned that the cause of death would be given after the receipt of report
of the Chemical Examiner and HPE Report and Heart from Pathology
Department of the Medical College, Amritsar. The post-mortem was
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conducted on 18.12.2007 itself. On conclusion of investigation, challan
was presented against Fauja Singh and Kuldeep Singh. Thereafter, a
supplementary challan under Section 173 Cr.P.C. was presented in Court on
7.3.2008 in which third accused, Jasvir Singh, was also named. As per the
said supplementary challan, Joginder Kaur wife of Fauja Singh, Rajwinder
Kaur wife of Kuldeep Singh, Rani wife of Kashmir Singh and Amandeep
Kaur wife of Jasvir Singh and Kashmir Singh son of Fauja Singh were
found innocent and Fauja Singh, Kuldeep Singh and Jasvir Singh were
found involved in the brawl. On consideration of the initial challan and the
supplementary challan, learned Sessions Judge, Kapurthala, framed charge
against the accused-petitioners under Section 302 IPC vide order dated
14.8.2008 which is under challenge in the present petition.
Counsel for the petitioners contends that the charge framed
against the petitioners is not sustainable as offence under Section 302 IPC is
not made out even on the face of the evidence so produced by the
prosecution before the Court. He submits that firstly, there is a delay of 8
days in registering the FIR as the incident is of 10.12.2007 while the FIR
was registered on 18.12.2007. He further submits that the medical
examination of the deceased Surjit Singh was conducted on 10.12.2007
when he was admitted at Civil Hospital, Dhilwan. The Medico Legal
Report (Annexure P-1) indicates that all the injuries found on the person of
the deceased were simple in nature. As per the MLR, injury No.1 was
found to have been by a sharp edged weapon while injuries No.2,3 and 4
were found to have been caused with a blunt weapon. All the injuries were
kept under observation for which a medical report was sought and on
receipt of the said report, all the injuries were found to be simple in nature.
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Counsel submits that as per the report of the Chemical Examiner (Annexure
P-4) no poison had been detected and according to the report (Annexure P-
5) in regard to the Pathology examination of the heart of the deceased,
Surjit Singh, Myocardium showed no pathology and left coronary artery
shown narrowing of its lumer with thickened calcified atherosclerotic wall.
On the basis of the said report, the doctor who had conducted the post-
mortem gave a final report declaring the cause of death as follows:-
“After going through both the above mentioned reports,
pathological report and heart which shows that left coronary
artery narrowing of its lumen with thickened and calcified
athero sclerotic wall, is suggestion of fact that death in this
case may be due to sudden cardiac death.”
Counsel on the basis of the afore-stated evidence submits that
the offence under Section 302 IPC is not made out as the deceased had
died after 8 days of the occurrence and that too, not because of the injuries
stated to have been inflicted upon him by the petitioners. He submits that
only offences under Section 323 and 324 IPC can be said to have been
prima facie made out against the petitioners and, therefore, the charge under
Section 302 IPC framed against them by the learned Sessions Judge vide
order dated 14.8.2008 is not sustainable. He submits that the ingredients for
an offence of murder as has been defined under Section 300 IPC are not
made out from the material which has been brought on record and,
therefore, the test as laid down under Section 227/228 of the Code of
Criminal Procedure for framing of charge under Section 302 IPC is not
fulfilled. He further submits that no sufficient evidence for proceeding
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against the accused and charging them under Section 302 IPC is available
on the record which would sustain the order of charge framed under Section
302 IPC. He, on this basis, submits that the impugned order deserves to be
set aside. His further contention is that the challan which was initially
presented against Fauja Singh and Kuldeep Singh was merely on the basis
of the post-mortem examination conducted on the body of the deceased
Surjit Singh and on the basis of the statement of the complainant and other
witnesses. However, supplementary challan which has been presented by
the police on completion of the investigation wherein the report of the
Chemical Examiner and the report of the Pathology examination of the heart
of the deceased Surjit Singh as also the final report declaring the cause of
death by the Doctor who had conducted the post-portem on the deceased
had been taken into consideration and on that basis it has been clearly stated
that offence under Section 302 IPC is not made out and instead offence
under Section 324/323 IPC is made out and, therefore, challan has been
presented under these sections. He submits that when the prosecution itself
is accepting this position, the Court should not have proceeded to charge the
petitioners under Section 302 IPC. For the broad principles which are to be
taken into consideration by the Court at the time of framing of the charge,
he relies upon the judgment of the Hon’ble Supreme Court in the case of
State of Madhya Pradesh vs. Mohan Lal Soni, 2000(3) RCR 452 and
Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra, 2008(2) RCR
(Criminal) 896. On the basis of these judgments, counsel for the petitioners
submits that the order passed by the learned Sessions Judge, cannot be
sustained and deserves to be set aside.
On the other hand, counsel for the respondent-State submits
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that the learned Sessions Judge while framing the charge was not bound by
the challan which had been presented by the prosecution wherein it has
given an opinion with regard to the offences committed by the accused. He
submits that it is only on consideration of the material so placed before it,
the learned Court below prima facie, has come to a conclusion that which
offence has been committed by the accused and accordingly, has framed
charge for that offence. He, on this basis, supports the order passed by the
learned Sessions Judge, Kapurthala, which has been impugned herein.
I have heard counsel for the parties and have gone through the
records of the case. The broad parameters which the Court has to take into
consideration while framing the charge have been culled out by the Hon’ble
Supreme Court in the case of Mohan Lal Soni’s case (supra) which can be
stated hereinbelow:
(i) Court has to prima facie consider whether there is
sufficient ground for proceeding against the accused – Court
is not required to appreciate evidence to conclude whether
materials produced are sufficient or not for convicting the
accused.
(ii) Court is required to evaluate the material and documents
on record with a view of finding out if the facts emerging
therefrom taken at their face value disclose existence of all
the ingredients constituting the offence.
(iii) Court may for this limited purpose sift the evidence as it
cannot be expected even at initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
Crl.Rev.No.1959 of 2008 -7-common sense or broad probabilities of the case.
(iv) Sessions judge is not expected to hold a roving enquiry
into the pros and cons of the case at the stage of framing
charges by weighing the evidence as if he was conducting the
trial.
(v) If the evidence which the prosecution possesses to prove
the guilt, even if fully accepted without rebuttal, cannot show
that accused committed the particular offence, then charge
can be quashed.
The Hon’ble Supreme Court in Yogesh @ Sachin Jagdish
Joshi’s case (supra) has in paras 14 and 15 held as follows:-
“14. Chapter XVIII of the code lays down the procedure for
trial before the court of Sessions, pursuant to an order of
commitment under Sections 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.
15.It is trite that the words “not sufficient ground for
proceeding against the accused” appearing in the Section
Crl.Rev.No.1959 of 2008 -8-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.”
Having broadly understood the above parameters, it is now
proposed to decide and evaluate and weight the submissions made by the
counsel for the petitioner. There can be no dispute with regard to the
presentation of the challan. The opinion expressed by the police in its
report has no binding effect on the Court. The Court has to form its own
independent opinion on the basis of the material produced before it by the
police. There is no obligation on the Court to accept the report if it does not
agree with the opinion formed by the police. The power to take cognizance,
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notwithstanding the formation of opinion by the police, ultimately vests
with the Court. Therefore, merely because a supplementary challan has
been presented by the police where it is stated that no offence under Section
302 IPC is made out against the accused, would not in itself be sufficient to
come to a conclusion that the order passed by the Court framing the charge
is not sustainable. However, the sufficiency of the grounds for proceeding
against the accused primarily and thereafter by weighing and sifting the
material which has been produced before the Court, to find out whether a
prima facie case against the accused has been made out for an offence for
which the accused is to be charged, would be open for the Court to consider
and come to a definite conclusion. The Court is not required to evaluate the
material and the documents which have been brought on record in such a
manner so as to find out the sufficiency of evidence or otherwise for
convicting the accused. What is, therefore, required is that even if the
material which has been brought on record by the prosecution is taken on its
face value as it is, all ingredients constituting the offence are present and in
existence. If this test is cleared, the charge framed by the Court for a
particular offence would be fully justified and would not call for any
interference. However, if the evidence which the prosecution has
produced on record to prove the guilt against the accused, even if `fully
accepted without any ifs and buts cannot show that the accused committed
that particular offence, then the charge deserves to be quashed. At the
stage of consideration for framing of the charge, it is not to be seen as to
whether the trial will end into conviction or not but if a prima facie case for
an offence against the accused is made out for which the charge has been
framed and there is reasonable possibility of his conviction for the said
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offence then no interference with the charge framed by the Court is called
for.
In the present case, the injuries which are alleged to have been
inflicted by the petitioners have been found to be all simple in nature. They
are all on the non-vital parts of the body. The deceased was admitted in
hospital on 10.12.2007 and thereafter, was discharged from there. He
remained in his house and died after 8 days. The report of the Chemical
Examiner does not indicate any poison and the report of the Pathology of
heart of deceased Surjit Singh clearly indicate that he was suffering from a
heart disease as left coronary artery shows narrowing of its lumer with
thickened calcified atherosclerotic wall and thereafter the final report
declaring the cause of death by the Doctor, who has conducted the post-
mortem report which has been reproduced above, clearly suggests that the
cause of death may be due to sudden cardiac arrest. All the injuries being
simple in nature, the period of death being after eight days from the date of
the occurrence, the medical report showing a heart disease of the deceased
and then the opinion of the doctor going on to show that the death of the
deceased could not be related to the incident especially when no poison had
been found in the report of the Chemical Examiner, the ingredients of
murder as defined in Section 300 IPC are not made out from the material so
produced on record by the prosecution for consideration of the Court. That
being so, the charge under Section 302 IPC framed against the petitioners
cannot be sustained.
Accordingly, order dated 14.8.2008 passed by the Sessions
Judge, Kapurthala, framing charge against the petitioners-accused and the
charge-sheet are hereby set aside. A direction is issued to the Court below
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to consider the matter afresh and pass appropriate orders in accordance with
law.
The criminal revision petition stands allowed with the above
directions and observations.
September 2nd , 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters Yes/No.