Hukam Chand vs State of Punjab and ors.

S.D. Bajaj, J.

There are two occurrences. In the first incident occurring at 8.00 p.m. on February 5, 1987 near Sindawani crossing at Barnala Sham Lal and Tara Chand accused are alleged to have abused Hukam Chand and inflicted some injuries on his hands. In the second incident occurring inside the factory on the same day shortly thereafter both the accused aforesaid are alleged to have given injuries to Birbal Dass (now deceased) with their hands only. In the post mortem report the cause of death given out is, "The cause of death in our opinion in this case was due to shock and as a result of sudden cardiac arrest which is sufficient to cause death in the ordinary course of nature." Dr. Suresh Kumar Singla, Medical Officer, Civil Hospital, Barnala PW 1 stated in cross examination "The possibility is that without manhandling or excitement, the man would have died due to sudden heart attack." On external examination, the man would have died due to sudden heart attack." On external examination, the doctor performing the post mortem detected only an abrasion 1/2 x 1/4 cm on the left surface of the nose 1 cm from the medial end of left eye brow and 1/2 cm away from the mid line.

On these facts the learned trial court framed the charge under Section 323 of the Indian Penal Code against two accused named Tara Chand and Sham Lal, under Sections 323 read with Section 149 of the Indian Penal Code against the remaining three accused besides them named Mahesh, Malkiat Singh and Karnail Singh and under section 452 of the Indian Penal Code against all the five accused aforesaid and remitted the case to learned Chief Judicial Magistrate, Sangrur for trial vide its impugned order dated September 22, 1987. Feeling aggrieved against it complainant party has filed Criminal Revision No. 1132 of 1987 in this Court.

I have heard Shri J.N. Kaushal, Sr. Advocate with Shri Ashok Jindal, Advocate, for the petitioner Shri Randhir Singh, AAG Punjab for respondent No. 1, Sarv Shri H.L. Sibal, R.S. Ghai and S.C. Sibal, Senior Advocates with Sarv Shri H.R. Bansal, J.S. Chahal and Vinod Ghai, Advocates for respondents No. 2 to 6 and perused the file very carefully.

Learned counsel for the petitioner has read before me the opinion expressed by the Medical Officer, Civil Hospital, Barnala on February 6, 1987 on police application. The query made in the application is, "whether the cardiac arrest could be due to vascovasal stimulation arising from manhandling of the victim by the accused", and the answer is, "The possibility is there."

Explanation 1 to Section 229 of the Indian Penal Code reads, "A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death." Basing his argument on the observations made by the Apex court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2013 learned counsel for the petitioner stated that on the basis of opinion and explanation aforesaid there was sufficient ground for presuming that the accused had committed the offence under Section 302 of the Indian Penal Code and therefore learned trial court ought to have proceeded against them under clause (b) of sub section (1) of Section 228 Criminal Procedure Code, 1973 i.e. framed the charge under Section 302 of the Indian Penal Code against the accused and proceeded to try it itself as prescribed in Sub Section (2)of Section 228 of the Code ibid.

The arguments is wholly without merit. The cause of death set out in the post mortem report is, "The cause of death in our opinion in this case is due to shock as a result to sudden cardiac arrest which is sufficient to cause death in the ordinary course of nature." Speaking on behalf of three doctors team who conducted postmortem examination on the dead body of Birbal Dass deceased Dr. Suresh Kumar Singla PW 1 categorically asserted, "The abrasion which was found by me as mentioned in injury No. 1 was not sufficient to cause death. The infraction was due to grievous heart attack or attacks. The infraction was in considerable area of the heart. The possibility is that without any manhandling or exitement, the man would have died due to sudden heart attack. Injury No. 1 could have been caused by scratch of a nail of a human hand. Cardiac arrest means sudden stoppage of the beating of the heart. The injury on the nose could have been caused 1/4 hours before the death." Since the deceased could have breathed his last without any manhandling or excitement due to sudden heart attack. the injury allegedly caused by the accused to him could not possibly accelerate his death or contribute thereto. In State of Karnataka v. L. Muniswamy and others, AIR 1977 SC 1489 their Lordships of the Supreme Court observed, "On the other hand, the decisions cited by learned counsel for the respondents in Vaidlal Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 1113 and Century Spinning and Manufacturing Co. v. State of Maharashtra, AIR 1972 SC 545 show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person''s liberty substantially and therefore it is 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. In Vadilal Panchal''s case Section 203 of the Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show 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.

Again in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and ors., 1991(1) Recent Criminal Reports 89 their lordships of the Supreme Court observed. "6 The next question is what is the scope and ambit of the `consideration'' by the trial Court at the stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed ? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for his limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh, (1988) 1 SCR 257, this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion/evidence 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. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by 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. In Union of India v. Pragulla Kumar Samal, (1979) 2 SCR 29 : AIR 1999 SC 365, this Court after considering the scope of Section 227 observed that the words no sufficient ground for preceding against the accused clearly shows that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that 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 weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deducted as under :

"(1) That the Judge while considering the question of framing the charges under Section 207 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.

(2) 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.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced 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.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which (sic) under the present Code is a senior and experienced Judge 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 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 evidence as if he was conducting a trial."

Again in Superintendent and Remembrance of Legal Affair, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, this court observed in paragraph 18 of the judgment as under :

"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence"

From the above discussion, it seems well settled that at the Sections 227228 stage 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. The Court may 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."

In this view of the matter the Criminal Revision gets completely bereft of any merit therein and is consequently dismissed.