Rajasthan High Court - Jodhpur

Dinesh Kumar vs State Of Rajasthan (2023:Rj-Jd:44500) on 19 December, 2023

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

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       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
            S.B. Criminal Revision Petition No. 1569/2023

1.       Dinesh Kumar S/o Shri Dhanpat, Aged About 34 Years,
         R/o Karadwali, Raisinghnagar, Dist. Anoopgarh.
2.       Dhanpat S/o Shri Lalchand, Aged About 60 Years, R/o
         Karadwali, Raisinghnagar, Dist. Anoopgarh.
3.       Satendra Kumar Alias Aman Alias Jitendra S/o Shri
         Sheshkaran,     Aged      About        25    Years,       R/o   Karadwali,
         Raisinghnagar, Dist. Anoopgarh.
4.       Sheshkaran S/o Shri Lalchand, Aged About 57 Years, R/o
         Karadwali, Raisinghnagar, Dist. Anoopgarh.
                                                                     ----Petitioners
                                    Versus
1.       State Of Rajasthan, Through Pp
2.       Ramchander      S/o      Shri      Omprakash,             R/o   Karadwali,
         Raisinghnagar, Dist. Anoopgarh.
                                                                   ----Respondents


For Petitioner(s)         :     Mr. Mahaveer Bishnoi
For Respondent(s)         :     Mr. Anil Joshi, GA-cum-AAG assisted
                                by Mr. Pallav Sharma



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

19/12/2023

The instant criminal revision has been filed by the petitioners

under Section 397/401 Cr.P.C against the order dated 20.09.2023

passed by learned Additional Session Judge No.2, Raisinghnagar,

District Sriganganagar in Sessions Case No.02/2023 pertaining to

FIR No.129/2021 of Police Station Muklawa, District

Sriganganagar whereby the learned trial Court framed the charges

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against the petitioners for offence under Sections 307/34, 323/34,

325/34, 447/34 & 341 of IPC.

Learned counsel for the petitioner submits that there are

cross cases between the parties and injured Subhash and

Ramchander each received only two injuries in all. According to

injury report of Ramchander, he received injury on his left knee

which is non-vital part of his body and another one is simple in

nature. As per injury report of Subhash, he received two injuries

out of which, injury No.1 is found to be grievous in nature that is

on skull and temporal region. Counsel further argued that there

was free fight between the parties and there was no repetition of

blows, therefore, offence under Section 307 IPC is not made out.

Counsel submitted that previously the doctor opined that none of

the injuries were dangerous to life, later on, Doctor opined that

injury No.1 is dangerous to life, therefore, charge for offence

under Section 307/34 of IPC may be set aside against the

petitioners.

Per contra, learned Public Prosecutor has submitted that the

injuries were received on the skull of one of the injured, which

was found to be grievous in nature and dangerous to life. The

learned trial court has considered each and every aspect of the

matter and has rightly framed the charges which does not call for

any interference.

Heard learned counsel for the parties and perused the

impugned orders as well as carefully gone through the material

available on record.

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While framing charge for offence under Section 307 IPC, the

Court has to satisfy itself that prima-facie, the act by accused

irrespective of its result was done with such intention or

knowledge and under the circumstances, as mentioned in the

section 307 IPC. There may be cases where no injury is suffered

by the victim but the act done by the accused would still fall within

the ambit of Section 307 as the act alone coupled with intention or

knowledge is sufficient. In the present case, from the material

available on record it is evident that according to the injury report,

injured Subhash received two injuries, out of which one injury is

on his skull. Earlier, the doctor opined that head injury was

grievous in nature but later upon seeking fresh opinion, the doctor

opined that injury No.1 was grievous in nature and also dangerous

to life. Therefore, the offence under Section 307/34 is prima facie

made out against the petitioners.

It is settled law that at the time of framing the charges, the

truth, veracity and the effect of the evidence, which the

prosecution proposes to produce are not to be meticulously

examined. At this stage, the Court has only to see whether the

unrebutted evidence, which the prosecution is to adduce, make

way for conviction and if it is so then the charge can be framed.

The Court, while framing the charges, is required to evaluate the

materials and documents on record with a view to find out if the

facts emerging therefrom disclose the presence of all the

ingredients constituting the alleged offence.

In the case of Sajjan Kumar v. Central Bureau of

Investigation reported in (2010) 9 SCC 368, Hon'ble Supreme

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Court in para 21 of the judgment has laid down the principles

which are to be kept in mind by the Court while exercising

jurisdiction under Sections 227 & 228 Cr.P.C., which are as below :

"(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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 state of Sections 227 & 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

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evidence as it cannot be expected even at that initial stage to accept al 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 at this stage, he is not to see whether the trial will end in conviction or acquittal."

In the case of Amit Kapoor v. Ramesh Chander & Anr.

reported in (2012) 9 SCC 460, Hon'ble Supreme Court has held

that at the initial stage of framing of a charge, the Court is

concerned not with the proof but with a strong suspicion that the

accused has committed an offence, which, if put to trial, could

prove him guilty. All that the Court has to see is that the material

on record and the facts would be compatible with the innocence of

the accused or not. The final test of guilt is not to be applied at

that stage.

In the case of Sheoraj Singh Ahlawat & Ors. v. State of Uttar

Pradesh & Anr. reported in (2013) 11 SCC 476, the Hon'ble Apex

Court has held as below :

"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of

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accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge."

Hon'ble Apex Court in yet another case of Vaneet Mahajan

Vs. State of Punjab & Ors (Criminal Appeal No. 718/2017) decided

13.04.2017 while allowing the appeal filed by the complainant,

ordered to try the accused for offence under Section 307 IPC with

the following observations :-

Further the question as to whether there was an 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 which has to be attributed on evidence by the Trial Court. We would like to reproduce paragraphs 15 and 16 of the judgment incorporating the aforesaid principles:

15 . The relative portion of the statement of FIR witness Gautam Chaudhary reads as follows:

"... Soon after, Sunil Sahni along with Ramesh Sahni, Deepak Sahni, Mohan Sahni and Buchchu Sahni after variously armed with farsa, talwar, iron rod, lathi, paipa (small size of lathi) came there and Sunil Sahni soon after his arrival told "aaj vrakilwa ko sabak sikha dena hai' (today we have to teach a lesson to the advocate)

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"sala paisa nahi diya hai" stating this he having armed with farsa, gave farsa-blow with intent to kill him over his head to which the informant wanted to save him but the said farsa-blow inflicted near his right ear and Mohan Sahni gave talwar-blow over the throat of the informant which resulted in injury over his throat and the informant fell down and even then Deepak Sahni having iron rod in his hand assaulted the informant with iron rod which inflicted injury over the left wrist of the informant and the other Accused persons Ramesh Sahni, Dinesh Sahni and Shunbhu Sahni assaulted with lathi, feet, slaps in the meantime. Asbari Sahni, Laxmi Sahni, Santosh Sahni, Jagdish Sahni and four to five unknown persons came there and abused the informant with intent to provoke breach of the peace and they stated to teach lessons to the advocate who is partaking much."

16. The statements of the witnesses Baiju and Manoj Chaudhary are also in the same lines. What is discernible from the above statements is that the first Accused and Ors. while committing the alleged offence, had exhorted that they would kill the Appellant if the money was not paid. Open announcement by the Accused and Ors. that the Appellant would not be alive to practise in the High

Court, would prima facie indicate that the intention of the Accused was, what he had spoken, followed by the infliction of injuries. Further, when several persons attack an unarmed person with deadly weapons, it is reasonable to presume that they had knowledge or intention that such an attack would result in death.

In the instant case, as per the statements, the weapons used were lathi, rod, farsa, talwar, etc., and when we look at the nature of the injuries, it is clear that the injuries were caused by using sharp-cutting weapons and also with hard blunt substance. Injuries were inflicted on the right temporal region of scalp at the base of the right ear, right side of occipital region of scalp, left side

of occipital region of scalp, etc. Open declaration by the Accused that a person would be killed, indicates his intention and, as held by this Court in Vasant Vithu Jadhav v. State of Maharashtra, the question as to whether there was an intention to kill or knowledge

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that death will be caused is a question of fact and would depend on the facts of a given case which has to be attributed on evidence by the trial court. The above facts would indicate that the ingredients of Section 307 Indian Penal Code are made out.

In the opinion of this Court, no plausible ground exists for

interfering in the impugned order. There is no illegality or

perversity in the impugned order dated 20.09.2023 passed by

learned Additional Session Judge No.2, Raisinghnagar, District

Sriganganagar. Hence, the present criminal revision petition is

dismissed. Stay petition also stands dismissed.

(MANOJ KUMAR GARG),J 8-raksha/-