Chattisgarh High Court
Chandrapal Sinha vs State Of Chhattisgarh on 17 April, 2025
1
2025:CGHC:17757
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 493 of 2025
1 - Chandrapal Sinha S/o Rohit Kumar Sinha Aged About 36 Years R/o
Village- Sarkada, P.S.- Pithoura, District- Mahasamund (C.G.)
2 - Dhanat @ Dhanak Sinha S/o Rohit Sinha Aged About 33 Years R/o
Village- Sarkada, P.S.- Pithoura, District- Mahasamund (C.G.)
3 - Vinod Sinha S/o Late Parasram Sinha Aged About 50 Years R/o Village-
Sarkada, P.S.- Pithoura, District- Mahasamund (C.G.)
... Petitioners
versus
State Of Chhattisgarh Through- S.H.O., P.S.- Pithoura, District-
Mahasamund (C.G.)
... Respondent
(Cause title taken from Case Information System)
For Petitioners : Mr. Rajesh Kumar Kesharwani, Advocate
For Respondent/State : Smt. Sunita Manikpuri, Deputy G.A.
Hon'ble Shri Justice Ravindra Kumar Agrawal
VEDPRAKASH
Order on Board
DEWANGAN
17/04/2025
1. The petitioners have filed the present petition under Section 438 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short 'BNSS
2023') read with Section 442 of the BNSS, 2023 against the
impugned order dated 18.03.2025 passed by learned 2 nd Additional
Sessions Judge, Mahasamund, in Sessions Case No. 17 of 2025,
whereby the charge for the offence under Section 109, 296, 115(2),
351(3) read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023
(in short "the BNS 2023") have been framed against the petitioners.
2. The brief facts of the case are that the petitioners are the accused
persons in the Sessions Case No. 17 of 2025 pending before the
learned 2nd Additional Sessions Judge, Mahasamund for the offence
under Sections 109, 296, 115(2), 351(3) read with Section 3(5) of the
BNS, 2023, which has been arising out of the Crime No. 186 of 2024
registered at Police Station Pithoura, District Mahasamund on the
complaint made by the complainant Deepak Dadsena.
3. The allegation against the present petitioners/accused persons are
that on 09.09.2024, at about 10:00-11:00 AM, when the injured
Deepak Dadsena was talking with his wife near Hanuman Mandir, at
that time the petitioners came there and assaulted the injured
Deepak Dadsena by iron rod and Danda, by which he received
multiple injuries on his head, eye, chest, and back including fracture
of right 7th and 8th ribs. He was immediately taken to hospital, and
ultimately the FIR has been registered against the
petitioners/accused persons for the offence under Sections 296,
115(2), 351(2) and 3(5) of the BNS, 2023. During the investigation,
the injured was medically examined by the doctor at CHC, Pithoura,
on 09-09-2024, who found the following injuries on his body:-
"-Bleeding around left eye.
-Abrasion right elbow 2 cm.
-Abrasion right forearm (multiple dim.)
-Abrasion right knee 1 x 1 cm.
-LW 4 x 0.5 right side of scalp parietal region.
-Multiple abrasion back side.
-Multiple pattern abrasion 10 x 03 size.
The doctor has found fracture of two ribs and opined
that the fracture of the ribs is grievous injury."
The injured was referred for examination report of the injuries
from the expert doctor from Govt. Medical College Hospital,
Mahasamund, where the injured was medically examined by a team
of doctors and found the following injuries:-
"-Pain in right side of chest.
-Pain on lower back and Lt. leg posterior aspect.
-Pain on head.
-Pain on BIL shoulder. ,
-Old contusion marks on Rt. side of chest with deep
pressure tender on chest area.
-Contusion over Lt. Lower abdomen 15 x 6 cms.
-Contusion over lateral aspect of Lt. Thigh. 14 x 14
cms.
-Healed would with laceration over Rt. parietal aspect
of head with size 4 cms.
-Multiple contusion on back of Lt. Side chest and Lt.
upper arm back side."
On CT scan of head and chest of the injured, the following injuries
were found by the doctors:-
"CT - Head - WNL Normal.
-CT - Chest- S/O - Rt. 3rd Rib and 4th Rib and 6, 7 8th
Rib and Mild Hemothorax and No SIO presumption.
- Tenderness present on Rt. side of chest due to
fracture of ribs."
As case was finally reserved by surgery department as no active
intervention was required at present & sent for final opinion and then the
following conclusion have been drawn by the doctors:-
"1. Multiple ribs fracture right side of chest 6, 7, 8
and 3 are S/O grievous hurt, but not dangerous
rd
enough to cause life threatening complication as no
vitals are suggestive of life threatening situation.
2. Injury over head has already heals and no
intracranial structures are damages and now patient
is conscious, oriented, so no dangerous injury to
head is observed.
3. Patient is having pain on right side of chest
due to fracture of ribs, but was admitted earlier for 05
days and at present he is ambulatory.
4. As final opinion given by department of
surgery, no active intervention is required except the
prescribed consumption of medicines and routine
check ups.
Hence the fracture over right 3, 4, 6, 7, 8 th ribs with
pain is S/O grievous hurt, but not dangerous enough
to endanger his life at present."
4. A query was also made from the doctor on 11.09.2024 and
14.09.2024, in which the doctor has opined that the injured had
received fracture of right 7th and 8th ribs, which are grievous injuries
and if the injured would not be treated immediately, death might have
been possible and the death can also be possible from the injuries
caused to him by seized rod. After investigation, charge sheet has
been filed against the petitioners/accused persons before the learned
Judicial Magistrate First Class, Pithoura, District Mahasamund for the
offence under Sections 296, 115(2), 351(3), 109 and 3(5) of the BNS
2023 which has been committed for its trial to the learned trial court.
5. During the proceeding of the case, an application under Section 250
of BNSS 2023 has been filed by the petitioners/accused persons
stating therein that the offence under Section 109 of the BNS 2023 is
not made out, as the injuries were initially not opined as grievous in
nature and the team of doctors has opined that the injuries found on
the body of the injured are simple in nature, therefore, no charge
under Section 109 of BNS 2023 can be framed. The application of
the petitioners/accused persons has been dismissed by the learned
trial Court vide order dated 18.03.2025, and the charge has been
framed against them, which is under challenge in the present
petition.
6. Learned counsel for the petitioners/accused persons would submit
that from the material annexed with the charge sheet, there is no
ingredient of the offence under Section 109 of BNS 2023. The
injuries found on the body of the injured are not grievous, and the
team of doctors has not opined that the fracture of the ribs would be
fatal to the life of the injured. In the absence of any report with
respect to the grievousness of the injuries, the charge under Section
109 of BNS 2023 cannot be framed. He would also submit that the
doctor, who gave the query report, is a relative of the injured, who
gave the report to make the offence more severe and therefore, the
impugned order may be set aside and the petitioners/accused
persons may be discharged from the offence under Section 109 of
BNS 2023.
7. On the other hand, the learned counsel for the State opposes and
has submitted that the nature of injuries received by the injured,
which reflects from the MLC report as well as medical treatment
report and further that from the query report obtained from the doctor,
there is prima facie evidence on record to show that the injuries are
grievous in nature. Even otherwise, for commission of the offence
under Section 109 of the BNS 2023, the nature of injuries is not
necessary to be of grievous in nature and it is only the intention
coupled with some overt act is relevant for consideration for the
offence under Section 109 of the BNS 2023. Therefore, there is
sufficient prima facie evidence against the petitioners/accused
persons in the charge sheet to frame charge and to proceed with the
trial of the case.
8. I have heard learned counsel for the parties and perused the material
annexed with the petition.
9. In the matter of State v. S. Selvi and another, 2018 (13) SCC 455,
Hon'ble Supreme court has decided the issue that while framing of
charge in a case, the Court has power to sift and weigh the evidence
for limited purpose of finding out whether or not, a prima facie case
against the accused has been made out. In the case of S. Selvi
(supra), at para 6 and 10 of its judgment, it has held that:
"6. It is well settled by this Court in catena of
judgments including the cases of Union of India v.
Prafulla Samal, (1979) 3 SCC 4; Dilawar Babu vs.
State of Maharashtra (2002) 2 SCC 135; Sajjan Kumar
vs. CBI (2010) 9 SCC 368; State v. A.Arun Kumar
(2015) 2 SCC 417; Sonu Gupta vs. Deepak Gupta
(2015) 3 SCC 424; State of Orissa v. Debendra Nath
Padhi (2003) 2 SCC 711; Niranjan Singh Karam Singh
Punjabi etc. vs. Jitendra Bhimraj Bijjayya (1990) 4
SCC 76 and Superintendent & Remembrancer of
Legal Affairs, West Bengal vs. Anil Kumar Bhunja
(1979) 4 SCC 274 that the Judge while considering the
question of framing charge under Section 227 of the
Code in sessions cases (which is akin to Section 239
Cr. P.C. pertaining to warrant cases) 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; where the material placed before the Court
disclose grave suspicion against the accused which
has not been properly explained, the Court will be
fully justified in framing the charge; by and large 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 rights
to discharge the accused. The Judge cannot act
merely as a Post Office or a mouth piece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
statements and the documents produced before the
Court, any basic infirmities appearing in the case and
so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons
of the matter and weigh the materials as if he was
conducting a trial.
10. If on the basis of the material on record, the
Court would form prima facie opinion that the
accused might have committed offence, it can frame
charge, though for conviction it is required to be
proved beyond reasonable doubt that the accused
has committed the offence. At the time of framing of
charges, the probative value of the material on record
has to be gone into and the Court is not expected to
go deep into the matter and hold that the materials
would not warrant conviction. The Court is required
to evaluate the material on record at the stage of
Sections 227 or 239 of the Code, as the case may be,
only with a view to find out if the facts emerging
therefrom taken at the face value discloses the
existence of all the ingredients constituting the
alleged offence. It is trite that at the stage of
consideration of an application for discharge, the
Court has to proceed with the presumption that
material brought on record by the prosecution are
true and evaluate such material with a view to find out
whether the facts emerging therefrom taken at their
face value disclose existence of the ingredients of the
offence."
10. At the stage of framing of charge, the court is not required to
meticulously examine the evidence on record and not to conduct mini
trial. The court would only consider whether prima facie material is
there or not to proceed with the trial. The Hon'ble Supreme Court
has laid down the principles in the case of State of M.P. vs. Deepak,
2019 (13) SCC 62, wherein the Hon'ble Supreme Court has held that
at the stage of framing of charge, the court has to consider the
material only to find out if there is a ground for presuming that the
accused had committed the offence. It is also held that the Court is
required to evaluate the material and documents on record to find out
that if facts emerging therefrom are taken at their face value disclose
the existence of all the ingredients constituting the alleged offence
and at the stage of framing of charge, the court is not required to
appreciate the evidence on record and consider the allegations on
merits and to find out on the basis of evidence recorded is likely to be
convicted or not. In the matter of Deepak (Supra), in its judgment,
the Hon'ble Supreme Court has held that:-
"16. It was also noted that at the stage of framing of
charges, the Court has to consider the material only
with a view to find out if there is a ground for
"presuming" that the accused had committed the
offence : (Chitresh Kumar Chopra case [Chitresh
Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC
605 : (2010) 3 SCC (Cri) 367] , SCC p. 613, para 25)
"25. 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, disclose the existence
of all the ingredients constituting the alleged
offence or offences. For this limited purpose,
the court may sift the evidence as it cannot be
expected even at the initial stage to accept as
gospel truth all that the prosecution states. At
this stage, the court has to consider the material
only with a view to find out if there is ground for
"presuming" that the accused has committed an
offence and not for the purpose of arriving at
the conclusion that it is not likely to lead to a
conviction."
11. In the matter of Manjit Singh Virdi vs. Hussain Mohammad
Shattaf, 2023 (7) SCC 633, the Hon'ble Supreme Court has held in
para 12 of its judgment that:-
"12. The law on the point has been summarised in a
recent judgment of this Court in State of Rajasthan v.
Ashok Kumar Kashyap [State of Rajasthan v. Ashok
Kumar Kashyap, (2021) 11 SCC 191 : (2022) 1 SCC
(Cri) 286] . Relevant paras are extracted below : (SCC
pp. 197-98, para 11)
"11. ... 11.1. In P. Vijayan v. State of Kerala [P.
Vijayan v. State of Kerala, (2010) 2 SCC 398 :
(2010) 1 SCC (Cri) 1488] , this Court had an
occasion to consider Section 227CrPC. What is
required to be considered at the time of framing
of the charge and/or considering the discharge
application has been considered elaborately in
the said decision. 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. It is observed that in other
words, the sufficiency of grounds 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. It is further
observed that if the Judge comes to a
conclusion that there is sufficient ground to
proceed, he will frame a charge under Section
228CrPC, if not, he will discharge the accused. It
is further observed that while exercising its
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.
11.2. In the recent decision of this Court in State
of Karnataka v. M.R. Hiremath [State of
Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 :
(2019) 3 SCC (Cri) 109 : (2019) 2 SCC (L&S) 380] ,
one of us (D.Y. Chandrachud, J.) speaking for the
Bench has observed and held in para 25 as
under : (SCC p. 526)
"25. The High Court [Hiremath v. State of
Karnataka, 2017 SCC OnLine Kar 4970]
ought to have been cognizant of the fact
that the trial court was dealing with an
application for discharge under the
provisions of Section 239CrPC. The
parameters which govern the exercise of
this jurisdiction have found expression in
several decisions of this Court. It is a
settled principle of law that at the stage of
considering an application for discharge
the court must proceed on the assumption
that the material which has been brought
on the record by the prosecution is true
and evaluate the material in order to
determine whether the facts emerging
from the material, taken on its face value,
disclose the existence of the ingredients
necessary to constitute the offence. In
State of T.N. v. N. Suresh Rajan [State of
T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 :
(2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S)
721] , adverting to the earlier decisions on
the subject, this Court held : (N. Suresh
Rajan case [State of T.N. v. N. Suresh
Rajan, (2014) 11 SCC 709 : (2014) 3 SCC
(Cri) 529 : (2014) 2 SCC (L&S) 721] , SCC
pp. 721-22, para 29)
"29. ... At this stage, probative value of the
materials has to be gone into and the court
is not expected to go deep into the matter
and hold that the materials would not
warrant a conviction. In our opinion, what
needs to be considered is whether there is
a ground for presuming that the offence
has been committed and not whether a
ground for convicting the accused has
been made out. To put it differently, if the
court thinks that the accused might have
committed the offence on the basis of the
materials on record on its probative value,
it can frame the charge; though for
conviction, the court has to come to the
conclusion that the accused has
committed the offence. The law does not
permit a mini trial at this stage."
12. Further, in the matter of State by SP through the SPE, CBI vs. Uttamchand
Bohra, 2022 (16) SCC 663, the Hon'ble Supreme Court has held in para 21 of its
judgment that:-
"21. In CBI v. K. Narayana Rao [CBI v. K. Narayana
Rao, (2012) 9 SCC 512 : (2012) 4 SCC (Civ) 737 :
(2012) 3 SCC (Cri) 1183] this Court, after reviewing the
previous decisions that dealt with the question of the
applicable standard relating to discharge of accused
in a criminal case, summarised the principles in the
following terms : (SCC pp. 520-23, paras 12-14)
"12. The first decision in Ramesh Singh [State of
Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977
SCC (Cri) 533] relates to interpretation of
Sections 227 and 228 of the Code for the
considerations as to discharge the accused or
to proceed with trial. Para 4 of the said judgment
is pressed into service which reads as under :
(SCC pp. 41-42)
'4. Under Section 226 of the Code while
opening the case for the prosecution the
Prosecutor has got to describe the charge
against the accused and state by what
evidence he proposes to prove the guilt of
the accused. Thereafter comes at the initial
stage the duty of the Court to consider the
record of the case and the documents
submitted therewith and to hear the
submissions of the accused and the
prosecution in that behalf. The Judge has
to pass thereafter an order either under
Section 227 or Section 228 of the Code. If
"the Judge considers that there is no
sufficient ground for proceeding against
the accused, he shall discharge the
accused and record his reasons for so
doing", as enjoined by Section 227. If, on
the other hand, "the Judge is of opinion
that there is ground for presuming that the
accused has committed an offence which -
... (b) is exclusively triable by the court, he
shall frame in writing a charge against the
accused", as provided in Section 228.
Reading the two provisions together in
juxtaposition, as they have got to be, it
would be clear that at the beginning and
the initial stage of the trial the truth,
veracity and effect of the evidence which
the Prosecutor proposes to adduce are not
to be meticulously judged. Nor is any
weight to be attached to the probable
defence of the accused. It is not obligatory
for the Judge at that stage of the trial to
consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
Section 227 or Section 228 of the Code. At
that stage the Court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there is
a strong suspicion which leads the Court
to think that there is ground for presuming
that the accused has committed an offence
then it is not open to the Court to say that
there is no sufficient ground for
proceeding against the accused. The
presumption of the guilt of the accused
which is to be drawn at the initial stage is
not in the sense of the law governing the
trial of criminal cases in France where the
accused is presumed to be guilty unless
the contrary is proved. But it is only for the
purpose of deciding prima facie whether
the Court should proceed with the trial or
not. If the evidence which the Prosecutor
proposes to adduce to prove the guilt of
the accused even if fully accepted before it
is challenged in cross-examination or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial. An
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more example.
If the scales of pan as to the guilt or
innocence of the accused are something
like even, at the conclusion of the trial,
then, on the theory of benefit of doubt the
case is to end in his acquittal. But if, on
the other hand, it is so at the initial stage
of making an order under Section 227 or
Section 228, then in such a situation
ordinarily and generally the order which
will have to be made will be one under
Section 228 and not under Section 227.'
13. Discharge of the accused under Section 227
of the Code was extensively considered by this
Court in P. Vijayan [P. Vijayan v. State of Kerala,
(2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488]
wherein it was held as under : (SCC pp. 401-402,
paras 10-11)
'10. ... 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. Further, the words "not
sufficient ground for proceeding against
the accused" clearly show that the Judge is
not a mere post office to frame the charge
at the behest of the prosecution, but has to
exercise 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. In assessing this fact, 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.
11. 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.'
14. While considering the very same provisions
i.e. framing of charges and discharge of the
accused, again in Sajjan Kumar [Sajjan Kumar v.
CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] ,
this Court held thus : (SCC pp. 375-77, paras 19-
21)
'19. It is clear that at the initial stage, if
there is a strong suspicion which leads the
court to think that there is ground for
presuming that the accused has
committed an offence, then it is not open
to the court to say that there is no
sufficient ground for proceeding against
the accused. The presumption of the guilt
of the accused which is to be drawn at the
initial stage is only for the purpose of
deciding prima facie whether the court
should proceed with the trial or not. If the
evidence which the prosecution proposes
to adduce proves the guilt of the accused
even if fully accepted before it is
challenged in cross-examination or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial.
20. A Magistrate enquiring into a case
under Section 209CrPC is not to act as a
mere post office and has to come to a
conclusion whether the case before him is
fit for commitment of the accused to the
Court of Session. He is entitled to sift and
weigh the materials on record, but only for
seeing whether there is sufficient evidence
for commitment, and not whether there is
sufficient evidence for conviction. If there
is no prima facie evidence or the evidence
is totally unworthy of credit, it is the duty
of the Magistrate to discharge the
accused, on the other hand, if there is
some evidence on which the conviction
may reasonably be based, he must commit
the case. It is also clear that in exercising
jurisdiction under Section 227CrPC, the
Magistrate should not make a roving
enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.
Exercise of jurisdiction under Sections 227
and 228CrPC
21. On consideration of the authorities
about the scope of Sections 227 and 228 of
the Code, the following principles emerge:
(i) The Judge while considering the
question of framing the charges under
Section 227CrPC 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. 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 or 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 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.' "
13. The Hon'ble Supreme Court has further held in its judgment in the
case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, 2023 SCC
Online SC 1294, that:-
"10. It is settled principle of law that at the stage of
considering an application for discharge the court
must proceed on an assumption that the material
which has been brought on record by the
prosecution is true and evaluate said material in
order to determine whether the facts emerging from
the material taken on its face value, disclose the
existence of the ingredients necessary of the offence
alleged.
11. This Court in State of T.N. v. N. Suresh Rajan
[State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 :
(2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721]
adverting to the earlier propositions of law laid down
on this subject has held : (SCC pp. 721-22, para 29)
"29. We have bestowed our consideration to the
rival submissions and the submissions made by
Mr Ranjit Kumar commend us. True it is that at
the time of consideration of the applications for
discharge, the court cannot act as a mouthpiece
of the prosecution or act as a post office and
may sift evidence in order to find out whether or
not the allegations made are groundless so as to
pass an order of discharge. It is trite that at the
stage of consideration of an application for
discharge, the court has to proceed with an
assumption that the materials brought on record
by the prosecution are true and evaluate the said
materials and documents with a view to find out
whether the facts emerging therefrom taken at
their face value disclose the existence of all the
ingredients constituting the alleged offence. At
this stage, probative value of the materials has
to be gone into and the court is not expected to
go deep into the matter and hold that the
materials would not warrant a conviction. In our
opinion, what needs to be considered is whether
there is a ground for presuming that the offence
has been committed and not whether a ground
for convicting the accused has been made out.
To put it differently, if the court thinks that the
accused might have committed the offence on
the basis of the materials on record on its
probative value, it can frame the charge; though
for conviction, the court has to come to the
conclusion that the accused has committed the
offence. The law does not permit a mini trial at
this stage."
12. The defence of the accused is not to be looked
into at the stage when the accused seeks to be
discharged. The expression "the record of the case"
used in Section 227CrPC is to be understood as the
documents and articles, if any, produced by the
prosecution. The Code does not give any right to the
accused to produce any document at the stage of
framing of the charge. The submission of the accused
is to be confined to the material produced by the
investigating agency.
13. The primary consideration at the stage of framing
of charge is the test of existence of a prima facie
case, and at this stage, the probative value of
materials on record need not be gone into. This Court
by referring to its earlier decisions in State of
Maharashtra v. Som Nath Thapa [State of Maharashtra
v. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri)
820] and State of M.P. v. Mohanlal Soni [State of M.P.
v. Mohanlal Soni, (2000) 6 SCC 338 : 2000 SCC (Cri)
1110] has held the nature of evaluation to be made by
the court at the stage of framing of the charge is to
test the existence of prima facie case. It is also held
at the stage of framing of charge, the court has to
form a presumptive opinion to the existence of
factual ingredients constituting the offence alleged
and it is not expected to go deep into probative value
of the material on record and to check whether the
material on record would certainly lead to conviction
at the conclusion of trial."
14. Further in the matter of State (NCT of Delhi) Vs. Shiv Charan
Bansal and Others, 2020 (2) SCC 290, the Hon'ble Supreme Court
has held that at the stage of framing of charge, the trial court is not
required to conduct a meticulous appreciation of evidence or a roving
inquiry into the same and has the power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima
facie case has been made out against the accused. The probative
value of evidence cannot be looked into, at the stage of framing of
charge.
15. From perusal of the FIR as well as the MLC report, it reflects that the
numerous injuries have been found on the body of the injured
including fracture of right ribs, which are grievous in nature as opined
by the doctor at the time of MLC of the injured on 09.09.2024 itself.
Although, there is an opinion that the injury was not dangerous
enough to endanger his life at present, but looking to the injury i.e.
the fracture of 03 ribs of right side of the chest, it definitely comes
under the grievous injuries as defined under Section 116 of BNS,
2023 (Section 320 of the IPC). Further, from perusal of the query
report, which has been annexed with the petition at Page Nos. 51
and 52, it clearly reveals that the doctor has opined that fracture
injuries are grievous in nature and death might have been possible if
he would not be treated within time.
16. Section 109 of the BNS, 2023 define the attempt to murder which
reads as under :-
Attempt to murder.
109. (1) 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
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.
(2) When any person offending under sub-section (1)
is under sentence of imprisonment for life, he may, if
hurt is caused, be punished with death or with
imprisonment for life, which shall mean the remainder
of that person's natural life."
17. From perusal of the definition of Section 109 of BNS, 2023, it is quite
vivid that if "hurt" is caused to any person by such act, the offender
shall be liable to be punished. The word used in the definition is
"hurt" and not the "grievous hurt". In the present case, the injuries
have been found on the body of the injured at the time of his medical
examination on 09.09.2024, including the fracture of the ribs. The
fracture of ribs was opined by the doctor that the nature of the rib
fracture injury is grievous injury.
18. In the matter of "Hari Mohan Mandal v. State of Jharkhand" 2004
(12) SCC 220, the Hon'ble supreme Court has held in para 10 to 14
of its judgement that :-
"10. In the factual scenario noted above, it has to be
seen whether Section 307 IPC has application. The
said provision reads at follows:
"307. 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 murder, shall be punished with
imprisonment of either description for a term
which may extend to ten yeses, 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."
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 by any result so far
as the person assaulted is concerned, but 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.
11. 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. If the injury inflicted has been with the
avowed object or intention to cause death, the ritual
nature extent or character of the injury or whether
such injury is sufficient to actually causing death are
really fac tors which are wholly irrelevant for
adjudging the culpability under Section 307 IPC. 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 sec lion. Therefore, it
is not correct to act an accused of the charge under
Section 307 IPC merely became the injuries inflicted
on the victim were in the nature of a simple hurt.
12. This position was highlighted in State of
Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28
and in R. Prakash v State of Karnataka (2004) 9 SCC
27.
13. In Sarju Prasad State of Bihar, AIR 1965 SC 843,
(1965) 1 Cri LJ 766 it was observed in para 6 that mere
fact that the injury actually inflicted by the accused
did not cut any vital organ of the victim, is not by itself
sufficient to take the act out of the purview of Section
307.
14. 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
circumstance 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."
19. In the instant case also, there is allegation that the
petitioners/accused persons have assaulted the injured by iron rod
and danda by which he received multiple injuries including fracture
of ribs and as per the report of the doctor, the fracture of ribs are the
grievous injury. From perusal of the statement of the injured and
witnesses and the entire material available in the charge sheet, there
appears to be sufficient prima facie material for framing of the
charge under Section 109 of the BNS, 2023 along with other
offences against the petitioners/accused persons. At this stage, the
defence of the petitioners/accused persons cannot be considered as
no mini-trial of the case is permissible at the stage of framing of the
charge.
20. From the aforesaid facts and circumstances of the case as well as
the law laid down by the Hon'ble Supreme Court, I do not find any
ground to interfere with the order impugned. The petition being
devoid of merits liable to be and is hereby dismissed.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
