Asad Siddiquie vs State (N.C.T. of Delhi)

S. Ravindra Bhat, J.—The present Revision Petition is preferred against an order dated 24.07.2006 of the Additional Sessions Judge,

charging the petitioner accused of committing offences under Sections 307/34, Indian Penal Code (""IPC"").

The brief facts essential to decide this petition are that one Vishal Gupta complained to the Police Station, Sangam Vihar alleging that one Asad,

the Petitioner along with Tarun Sharma went to his shop; he alleged that they had a prior animosity, with him. They started abusing him resulting in

physical altercation. Asad allegedly put an iron punch in his fingers and started giving fist blows and Tarun caught hold of complainant''s hair, on

which the latter raised an alarm. At that stage, the complainant''s father reached the spot, to rescue him, caught hold of Asad; the latter however,

freed himself and took out a sword with which he allegedly attacked complainant''s neck. Anand Gupta, the father of complainant caught hold of

the sword; in the process his palm and right thumb were injured.

On the basis of this complaint, a First Information Report (FIR) was registered; the complainant, and his father were medically examined. The

police filed a charge sheet after investigation, in court. By its order, dated 24.7.06, the court rejected the plea that offence u/s 307 was not made

out against accused. Accordingly charge u/s 307 IPC was framed against the petitioner.

Mr. K.K. Sud, learned senior counsel contended that the charge for attempted murder could not have been framed, having regard to all the

circumstances and materials presented to the court. Counsel submitted that the injuries upon the person of the complainant were undisputedly

simple in nature. The allegations were that the petitioner had sought to use an ""iron punch"" and was restrained from doing so. Such allegations

could not under any circumstances result in suspicion, much less grave suspicion that he was attempting a murderous attack on the complainant.

Learned senior counsel submitted, by relying on the decision in State of Karnataka Vs. L. Muniswamy and Others, , that for the purpose of

determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the

exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be

said reasonably to be possible. According to the decision, the order framing a charge affects a person''s liberty substantially and Therefore it is the

duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the

prosecution that the accused be asked to face a trial. Similarly, counsel relied on the decision in Union of India (UOI) Vs. Prafulla Kumar Samal

and Another, that the court, while considering the question of framing the charge u/s 227 of the Code 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, and where the

materials placed before the court disclose grave suspicion against the accused which has not been properly explained to the Court which would be

justified in framing a charge.

Learned senior counsel next contended that investigation in this case was unfair, and did not disclose that on the date of commission of the

offence, the petitioner accused was in the Swami Dayanand Hospital. He relied upon the order dated 2-3-2005, enlarging the petitioner on

anticipatory bail.

It was lastly contended that the circumstances, taken as a whole, on the materials disclosed, could never result in conviction of the petitioner for

the offence u/s 307. The argument was that the petitioner, was restrained from using the iron punch; the intended victim did not receive any injury;

Therefore, the question of any attempted murder could not have arisen.

Learned Counsel for the respondent State, on the other hand, submitted that the order on charge was justified. He drew attention of the court to

the complainant''s version, the nature of injury inflicted on his father, and the choice of weapon allegedly used, to say that had the injury been

inflicted, as intended, it was likely to cause death. He relied on the judgment of the Supreme Court in Bipin Bihari Vs. State of M.P., , in this

regard.

Section 307 IPC reads as follows:

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 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.

According to the allegations in the charge sheet filed in court, the complainant was assaulted by the Petitioner and Tarun Sharma; the latter

allegedly caught hold of the complainant, whereas the petitioner allegedly took an iron punch, and started assaulting him on the face and head. The

complainant raised an alarm; his father rushed to the spot, sought to restrain the petitioner, from the back. The petitioner freed himself, and

allegedly took out a small sword from his bag, and started to assault the complainant; his father caught the sword with both hands; the petitioner

pulled away the weapon. The complainant''s father sustained injuries on the finger, and was badly wounded. The medical report suggested that the

injuries on the petitioner''s person were not so serious; they were simple. However, the injuries on his father''s hands were caused by a sharp

weapon.

There is no doubt that the court should not act as a mouthpiece of the prosecution; it is expected to apply its mind, sift the materials presented

to it, and ascertain whether they indicate a prima facie commission of the offence alleged. Charges should be framed if prima facie, grave suspicion

of the accused''s involvement in the offence is made out; the grave suspicion should not be that of a ""weak mind"". If two views are possible, the

one giving benefit to the accused has to be adopted. The question is, whether in the facts of this case, the court was unjustified in issuing the order,

charging the petitioner of the offence u/s 307.

In Bipin Bihari''s case (supra) the Supreme Court held that the offence of attempt to murder, u/s 307 is made out if the intent coupled with an

overt act, in execution of it, is proved. It was held that bodily injury capable of causing death was not a sine qua non for conviction. The court has

to, in such cases, see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the

section. Gauging intent, specially at the charge framing stage, has to be on a broad overview of the materials, such as the attendant circumstances

narrated by the complainant, the inherent probabilities of the incident, the kind of injuries, the weapon used or attempted to be used, etc. Tested

from this perspective, the submissions of the petitioner are defenses. Without sifting the materials minutely, the incident, the nature of weapon, the

nature of injury, particularly of the complainant''s father''s injuries, and the circumstances are indicative of grave suspicion of commission of the

offence, by the Petitioner.

In view of the above findings, I am of the opinion that there is no infirmity with the order on charge issued by the trial court. It is however,

clarified that nothing stated in this judgment shall be construed as an expression on the merits of the facts; all contentions of the parties, and

defenses of the petitioner are reserved.

The petition is accordingly dismissed.