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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
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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.
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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
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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 :
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(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
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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
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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
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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
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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
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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
