Jalam Singh Patel & Another vs State Of MP

Petitioners/accused have filed this criminal revision under Section 397/401 of Cr.P.C. against the order dated 12.10.2018 passed by 21st Additional

Sessions & Special Judge (MP & MLA) District Bhopal in SCPPM No. 50/2018 whereby learned Sessions Judge has framed the charge under

Section 307 of IPC and in alternate, under Section 307/34 of IPC against the petitioners.

As per dehati nalishi dated 18.11.2014, the prosecution case in short is that, the complainant-Govind Ketale, who is a representative of Danik Hindi

newspaper, on 18.11.2014 at about 02:00 pm, got an information through mobile phone that petitioner No. 2 and his supporters are beating one Mukesh

Chouksey. Thereafter he went there to collect the news where he saw that the petitioners/accused and other persons have formed an unlawful

assembly and are beating the above named person with wooden stick and kick & fist and left him alamort. Thereafter, the petitioners and their

supporters proceeded towards the hospital where treatment of Mukesh Chouksey was going on. The complainant chased them and saw that the

petitioners and thier supporters were scuffling with one relative of Mukesh Chouksey i.e. Devendra Chouksey. Complainant took some photos of all

the incident. Petitioner No.1 is a member of Legislative Assembly and petitioner No. 2 is his son. They saw the complainant taking photographs and

chased him, on reaching him, they started beating him with wooden stick. When the complainant tried to run away, security officer of petitioner No.1

caught him and snatched his camera. Petitioners/accused inflicted injuries to him which resulted into various injuries on various parts of his body.

According to the complainant, the petitioner No.2 crushed his camera. Complainant lodged the FIR, thereafter case was registered under Sections

147, 148, 149 and 307 of IPC. During investigation, complainant was examined by the doctor and his dying declaration has been recorded by the

Tahsildar in front of the doctor. Further, statements of witnesses have also been recorded under Section 161 of Cr.P.C. Thereafter, charge-sheet was

filed for the offence under Sections 323, 325, 427, 201 read with Section 34 of IPC.

After considering the statements of witnesses and documents available on record, learned Sessions Judge framed the charge against the

petitioners/accused under Section 307 of IPC and in alternate, under Section 307/34 of IPC.

Learned counsel for the petitioners submits that even if the allegations made in the complaint are taken at their face value and accepted in toto,

prima facie no offence under Section 307 of IPC or 307/34 of IPC is made out against the petitioners. Allegations made in the complaint are so absurd

and improbable, on which basis, no prudent person can ever reach to a conclusion that there is reasonable ground for proceeding against a person. The

motive of the petitioners has also not been found in the case. There is also no evidence on record so as to indicate that the petitioners were involved in

commission of the aforesaid offence. In the first information report as well as statement under Section 161 of Cr.P.C., no overt act has been

attributed to the petitioners. There is no sufficient ground to proceed against the accused. The test regarding determination of prima facie case

depends upon the facts of each case, but in the present case, at the stage of framing of charge, learned judge cannot merely act as a mouthpiece of

the prosecution but has to consider the total effect of the evidence and the documents produced before the Court. He further submits that the learned

trial Court has not considered the provision of Sections 227 and 229 of Cr.P.C. No case under Section 307 of IPC is made out against the petitioners,

therefore learned trial Court has erred in framing the charges against the petitioners. With the aforesaid submissions, he prays for allowing the revision

and quashing the aforesaid charges.

Learned counsel for the State as well as counsel for the objector oppose the submissions made by learned counsel for the petitioners and submit

that there is sufficent prima facie material available on record for framing the aforesaid charges against the petitioners. The petitioners assaulted the

complainant with an intention to kill him. Apart from that, charges can also be framed on grave suspicion, therefore, they pray for dismissal of this

revision petition.

Heard both the parties and perused the case diary.

It is evident from the record that learned trial judge has framed the charges against the petitioners-accused under the aforesaid charges, so it must

be seen that what is the evidence against the petitioners-accused. Before embarking on the facts of the case, it would be necessary to consider the

legal aspects first. Since, by way of filing this revision petition, the petitioners have challenged the charges framed by the learned trial Court, therefore,

I would prefer to deal with the provision of Section 227 of Code Of Criminal Procedure, 1973, the same reads as under:

“227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions 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.â€​

If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure,

1973, comes into role, provision of the same is also quoted as under:

“228. Framing of charge.(1) 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-

(a) 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, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a

police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked

whether he pleads guilty of the offence charged or claims to be tried.â€​

The Hon’ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990 SC

1962) has held as under:-

“7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) 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 227-228 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.â€​

Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366, )the Hon’ble Supreme Court again has held

as under:-

 “Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 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:

(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 produced before him while giving rise to some suspicion but not

grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced 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 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.â€​

Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-

“23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to

produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of

Section 227 of the Code has not been correctly decided.â€​

The Hon’ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322 h,as also held as

under:-

“4………..It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding

against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for

convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be

quashed 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 defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground

for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering

the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the

materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily

be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records

for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v.

Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar

Bhunja (1979) 4 SCC 274 and held thus:

“From the above discussion it seems well settled that at the Sections 227-228 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 shift the evidence as it cannot be expected even at the 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. (emphasis supplied)

In Asian Resurfacing of Road Agency Pvt.Ltd and Anr. v. Central Bureau of Investigation reported in (2018)16 SCC 29,9 the Hon'ble Supreme

Court has held that petitions challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and

not to re-appreciate the matter.

Therefore, it is manifest that while framing the charges, the Court is required to evaluate the material and documents on record with a view to find

out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The

accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents

annexed with the charge-sheet. The petition challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of

jurisdiction and not to re-appreciate the matter.

Now, it is also necessary to read the relevant provisions of IPC, of which charge is framed against the petitioners. The trial Court has framed the

charge of offence under Section 307 IPC, same is reproduced hereinunder:-

 “307. Attempt to murder.â€"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

1[imprisonment for life], or to such punishment as is herein before mentioned.

Attempts by life convicts.â€"2[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is

caused, be punished with death.]â€​

In the case of State of M.P. v. Kanha reported in (2019) 3 SCC 605, after considering earlier pronouncements, the Hon'ble Apex Court held as

under :

Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. Balram Bama Patil [State of

Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 : 1983 SCC (Cri) 320] , this Court held that it is not necessary that a bodily injury sufficient

under normal circumstances to cause death should have been inflicted: (SCC p. 32, para 9)

“9. … 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 this 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.â€​ (emphasis supplied)

This position in law was followed by subsequent Benches of this Court.

In State of M.P. v. Saleem [State of M.P. v. Saleem, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329] , this Court held thus: (SCC pp. 559-60, para 13)

“13. 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. 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 section. Therefore, an

accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.â€​

In Jage Ram v. State of Haryana [Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] , this Court held that to establish the

commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted: (SCC p. 370, para 12)

“12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the

accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended

to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential

that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as

to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the

circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury

was caused and the nature of injury and severity of the blows given, etc.â€​

The above judgments of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section

307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other

things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

Therefore, in consonance with the aforesaid legal verdicts, I find the principle settled that for framing the charge under Section 307 IPC, it is not

essential that bodily injury capable of causing death should have been inflicted. 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 section. An accused charged with under Section 307 IPC cannot be

acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. For establishing the case under Section 307 IPC, the

prosecution has to establish first the intention to commit murder; and second, the act done by the accused. The intention of the accused is to be

gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused,

parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.â€​

Now keeping in mind the aforesaid legal position for framing the charges as well as applicability of Section 307 IPC, I proceed to examine the

facts of the case. On perusal of the case diary, it is found that on the dispute regarding covering the news, the petitioners along with their supporters

have beaten the complainant with wooden stick which resulted into injury on his body. The police has written a dehatil nalishi and subsequently

registered the FIR. The medical examination of complainant was also conducted by the police and on perusal of M.L.C report dated 18.11.2014, an

injury on right eye of the complainant was found. Since, the complainant wanted to go higher centre for further treatment, the medical examiner did

not opine the nature of injury. Further, it is evident from the case-diary that the complainant was admitted in Jabalpur Hospital on the same day of

incident. CT-Scan was performed and injury was found to be grievous in nature. Although, there is no opinion that the injury was dangerous to life but

same is not a condition precedent for framing the charge of Section 307 of IPC. The petitioners have also chased the deceased for beating him.

Moreover, it is well settled principle of law that only on the basis of grave suspicion, the Court can frame the charge. In the case of Union of India v.

Prafulla Kumar Samal reported in (1979) 3 SCC 4, the Hon'ble Apex Court has held that while considering the question of framing the charges, the

court may 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

whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained. In such an

eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the

total effect of the evidence and the documents produced before the court but the Court should not make a roving enquiry into the pros and cons of the

matter and weigh evidence as if it is conducting a trial.

Therefore, there is sufficient prima facie material available in the case for framing the charge of Sections 307 and 307/34 IPC against the

petitioners and the trial Court did not make any error while passing the impugned order.

Accordingly, this Criminal Revision is dismissed.