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Judgment
Shacheendra Dwivedi, J.
This revision petition has been preferred by the complainant-injured persons against the accused persons-non-petitioners, being aggrieved by the order of not framing charge against the non-petitioners for offence u/s 307, Indian Penal Code. The order that has been challenged by the complainant-petitioners is of framing of charges against the non-petitioners by the 3rd Addl. Sessions Judge, Vidhsha, under Sections 323/149, 324/149 and 326/149, Indian Penal Code.
Briefly stated the facts leading to filing of this revision petition are that an incident of marpit took place in village Bhatoli, District Vidisha over at dispute of an agricultural land. On the date of the incident, the Revenue Inspector and a patwari had gone to the village for spot inspection and for verification of possession on the land. For that purpose, when a notice was being given to the non-petitioner Hariram and Jaswantsingh, they refused to sign the notice and all the accused attacked the complainant party shouting nobody be spared alive ''. The Patwari and the Revenue Inspector, under fear, left the spot. In the assault, all the eight petitioners were injured. Ghumansingh suffered number of injuries including a stab wound on his abdomen, due to which his intestines came out with multiple perforations. He also suffered another grievous injury on the right frontal area of head which caused fracture resulting in his brain matter coming out. All other petitioners viz. Nos. 2 to 8 also suffered multiple injuries, many on vital parts of their bodies. It would be relevant to mention here, only the injuries of Komalsingh, Raghuveersingh and Mazbootsingh : -
Komalsingh:
(1) An incised wound over left parietal region 5 X 2 X bone deep bleeding.
(2) One contusion in lumber region of back 1 cm X 3 cm red in colour.
(3) One contusion on left side of back in lumber region 8 cm X 3 cm.
(4) One abrasion on left leg 2 X .2 X .2 cm.
(5) One contusion over thigh left side 5 X 3 cm.
General condition of the patient was not satisfactory due to head injury since there was bleeding through mouth and nose.
Raghuveersingh:
(1) One penetrating wound over left side of back in lumber region.
(2) One incised wound over chest left side.
(3) Swelling over root of right thumb.
Mazbootsingh:
(1)Lacerated wound over left temporal region 4 X 2 X bone deep.
(2) Contusion over left thigh.
(3) Multiple contusions over left leg.
(4) Contusion over right leg 5 X 2 cm.
(5) Contusion over right thigh 12 X 3 cm.
(6) Contusion over right ankle joint 4 X 2 cm posteriorly.
It is only with the grace of God that nobody died due to those injuries. The condition of Ghumansingh Raghuversingh and Komalsingh was precarious. They were referred to Hamidia Hospital Bhopal.
The first information report of the incident was lodged by shersingh and an offence u/s 307, Indian Penal Code, was registered against the non-petitioners. After due investigation, a challan was filed by the police for offence under Sections 147, 148 and 307, Indian Penal Code. After enquiry, the case was committed to the Court of Session, for trial.
The learned 3rd Addl. Sessions Judge, by the impugned order held that from the material on record no case exclusively triable by the Court of Session was made out and consequently he framed the charges under Sections 323/149, 324/149 and 326/149, Indian Penal Code and transferred the case for trial to Chief Judicial Magistrate Vidisha u/s 228(l)(a), Criminal Procedure Code. Aggrieved by this order, the petitioners-injured persons have preferred this revision petition.
Section 227 Criminal Procedure Code provides that if, upon consideration of the record of the case and the documents, submitted therewith, and after hearing the submission of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 enumerates that if, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate. Both these sections when read together make it clear that at the stage of framing of the charges only the sufficiency of ground for presuming the commission of the offence has to be seen. The assessment of sufficiency of material for basing a conviction is not within the competence of the Court at this Stage, as that can only be determined after the trial is held.
In this connection reference to the provisions of Section 307 Indian Penal Code would be useful: -
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 of murder, he 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 imprisonment as is herein before mentioned.
''Attempt" has been mentioned u/s 511, Indian Penal Code and ''murder'' is defined in Section 300, Indian Penal Code. For the purpose of constituting an offence u/s 307, two ingredients are required : first such an intention or knowledge and secondly an Act done. The phrase ''under such circumstances'' must be read in conjunction with such intention or knowledge and these words would mean that the act must be done in such a way and with such ingredients that if it succeeded and death was caused by it, the result would be murder, according to Sections 299 and 300. Thus there should be an intention to murder or the knowledge that injuries caused would result in death, although the injured by God''s grace may luckily escape death. In order to determine the intention of the assailant, various factors and circumstances are to be considered such as the nature of the injury caused, severity of the blow or its persistence, sufficiency of time and opportunity for causing more injuries, intervention by others, the nature of weapon and the seat of injuries and many other factors may afford assistance in determining the intention.
But, for the appreciation of Section 307, Indian Penal Code, it is not necessary that the injury, capable of causing death, should have been actually inflicted. The section makes a distinction between the act of the accused and its result. What is material to attract the provisions of Section 307, Indian Penal Code is the guilty intention or knowledge with which the act was doen, irrespective of its result. The intention precedes the act and is independent of the act not to be merely gathered from the consequences that ensue. Thus, once such guilty intention is established, the nature of the Act would be immaterial. Intention and knowledge are matters of inference from totality of circumstances and cannot be measured merely from the results. But again if by the result of ultimate death, the accused is not to be found guilty of murder, but only of culpable homicide not amounting to murder, the act of accused would not fall within the purview of ''an attempt of murder''. The accused might have so acted under the right of his private defence. But these would be the considerations only after the trial is held, and not at the stage of charge, where such an assessment is premature. The accused would be entitled to explain the circumstances of his act, and the court would be within its powers to extend him such benefit. At the stage of trial as is held by the Apex Court in Mohd. Akbar Dar and Others Vs. State of Jammu and Kashmir and Others, that at the stage of framing of charges, meticulous consideration of evidence and material by Court is not required.
Each case depends upon the facts that are involved in it and there can be no universal formula, but, ''the standard test proof and judgment which are to applied finally before finding the accused guilty or otherwise, are not exactly to be applied at the stage of Sections 227 and 228, Criminal Procedure Code''. (See Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, . This Court also following the verdit of the Apex Court in State of Bihar Vs. Ramesh Singh, and the subsequent decisions, in State of M.P. v. Ramdeen, 1989 JLJ 310 found that : -
"The distinction is thus : While recording the ultimate findings there is every presumption in favour of the innocence of the accused in the matter of determining his guilt and even in the matter of determining his intention or knowledge affecting the gravity of the crime, but at the stage of framing the charge, even a strong suspicion of course founded upon material, and a presumptive opinion, would enable the Court in framing a charge against the accused."
In the instant case, the allegations made in the F.I.R., the statements of witnesses recorded by the police during investigation and the nature and number of injuries received by the complainant party, prima facie, make out a case u/s 307, Indian Penal Code and the Court, while framing charge is not supposed to weigh the evidence at the stage of charge. The intention of the assailants, the arms involved and the result of those facts are only to be prima facie assessed. u/s 228, Criminal Procedure Code, the Sessions Judge is empowered to transfer the case to the Chief Judicial Magistrate only when in his opinion, there is no ground for presuming that the accused has committed an offence u/s 307, Indian Penal Code. It was no stage where it could be said that there was no ground for presuming that an offence u/s 307 was not committed. On the contrary, there is overwhelming material on record which is amply corroborated from the number and nature of injuries suffered by the complainant party, that an attempt on life of the complainant was made. If by the grace of God and the timely medical aid, the life of the complainant was saved, that would not mean that no attempt was made on his life. Survival of the injured after receiving injuries which are dangerous to life, even to a common-man, the absence of specific opinion of the doctor that the injuries were dangerous to life, would not take out the case from the purview of the offence u/s 307, Indian Penal Code. The court can also take judicial notice of the nature of the injuries from the medical report and in the instant case, where injured Ghumansingh sustained two such injuries, when as a result of an injury, there was fracture of parietal bone and the brain matter was coming out and from the other injury on abdomen, the intestines were coming out with multiple perforations, it is really surprising that the learned 3rd Addl. Sessions Judge, formed an opinion that no such offence which is exclusively triable by the Court of Session, was committed.
Their Lordships of the Supreme Court in a recent decision in Radhey Shyam Vs. Kunj Behari and Others, set aside the order of the High Court of quashing the charge framed u/s 302 read with Section 120B, Indian Penal Code by the Sessions Judge observing that:
"We find that the High Court''s conclusion about the inadequacy of the evidence against respondents 1 to 3, besides being a premature assessment of evidance, is also attributable to the wrong premises on which the High Court''s reasoning is based."
Learned counsel Shri T. C. Bansal appearing on behalf of the non-applicants submitted that on the side of the accused party also, injuries have been suffered. He further submitted that it was a case of free-fight and on a report from the accused party, a case has also been registered against the complainant party, but as discussed herein above, that aspect is entirely different and has to be separately considered only at the trial with regard to the extent of liability in commission of the offences. The vicarious or the constructive liability is to be determined after the full dressed trial. In the facts and circumstances, the impugned order of the 3rd Addl. Sessions Judge Vidisha, holding that no offence triable by the Court of Session was made out and of framing charges under Sections 323/149, 324/149 and 326/149, Indian Penal Code and making over the case to Chief Judicial Magistrate, Vidisha, for trial under the above offences, cannot be allowed to stand.
As a result of the aforesaid discussion, the revision petition succeeds and is allowed. The order is set aside and it is directed that the third Additional Sessions Judge, Vidisha, would frame the charges against the non-petitioners and hold the trial according to law under the above directions.