Mushtaq Ahmed vs Farooq Ahmed

Mr. Janak Raj Kotwal, J.(Oral)—In the charge sheet filed by the police for commission of offence under Section 307 RPC in FIR No.

142/2013, of Police Station, Ramban against herein Respondent No. 1, learned Sessions Judge, Ramban vide his order dated 01.02.2014 held

that offence under Section 307 RPC is not made out and further that prima facie offence under Section 323 RPC is made out and transferred the

case to the Chief Judicial Magistrate, Ramban for trial. Respondent No. 1 in effect stands discharged of offence under Section 307 RPC though

formal order of discharge was not passed. Petitioner, on whose information FIR was registered, questions the discharge of Respondent No. 1 of

offence under Section 307 RPC by invoking inherent jurisdiction of this Court under Section 561-A Cr.P.C. to seek quashing of the order passed

by learned Sessions Judge and issuing a direction to him to frame charge under Section 307 RPC against Respondent No. 1.

Heard learned counsel for the parties and perused the record.

Prosecution case, briefly, is that Respondent No. 1 was nourishing enmity towards the petitioner. On 19.09.2013 petitioner was standing at the

side of the National Highway in wait of boarding a vehicle. Respondent No. 1 came driving a car and as soon as he saw the petitioner he steered

his car towards him at a fast speed with criminal intention of causing his death by running him under his car. Petitioner could hardly save his life by

jumping over and running away.

Learned Sessions Judge on perusal of the record took the view that the circumstances under which the occurrence had taken place do not

constitute offence under Section 307 RPC as the occurrence allegedly took place on a National Highway and had the accused (Respondent No.

1) intended to cause death of the informant (petitioner) he would have succeeded in running over him but the informant did not receive any injury

on his person.

Before taking the aforementioned view, learned trial court recorded a statement of law, which I may reproduce verbatim:

Offence under Section 307 RPC deals with attempt to murder and in order to make out the said offence, the prosecution is obliged to prove

overt act on the part of the accused with intention or knowledge and under the circumstances that if he by that act caused death, he would be guilty

of murder. Therefore, intention or knowledge on the part of the accused is condition precedent to constitute offence under Section 307 RPC.

Intention being a state of mind cannot be proved by direct evidence, and it is gathered from various factors including nature of injuries, kind of

weapon, part of the body over which injuries are allegedly are caused and the circumstances under which the occurrence is alleged to have taken

place.

The statement of law recorded by the learned Sessions Judge is in line with the provision of Section 307 RPC which provides inter alia that the

act done by the accused should have been done 'with such intention or knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder.'

It hardly needs to be stated that the question in regard to framing of charge against or discharging the accused in session trials is taken up by the

trial court at the initial stage of the trial in terms of Sections 268 and 269 of Cr. P.C. Reading these two sections in juxtaposition would show that

in terms of Section 268 if, upon consideration of the record of the case and documents submitted therewith and after hearing submissions of

prosecution and by or on behalf of the accused, the trial judge 'considers that there is no sufficient ground for proceeding against the accused,' he

shall discharge the accused after recording reasons for so doing. In terms of Section 269, if, however, after such consideration and hearing, the trial

judge 'is of the opinion that there is ground for presuming that the accused has committed an offence' he shall frame the charge if the case is

exclusively triable by the Court of Session and proceed with the trial of the case and may transfer the case to the court of Chief Judicial Magistrate

or any judicial magistrate competent to try the case if the case is not exclusively triable by the Court of Session.

Discharge of the accused under section 268 contemplates a reasoned finding of the trial judge and recording of the reasons as to how he

considers that there is no sufficient ground for proceeding against the accused. The trial judge has to record as to how on consideration of the

evidence proposed by the prosecution the commission of offence for which accused has been sent for trial or any other offence is not made out.

On the other hand, in terms of Section 269 Cr.P.C. what suffices for framing of charge against the accused for the offence he has been sent for trial

or any other offence is the opinion of the trial judge that there is ground for presuming that such an offence has been committed by him. The trial

judge neither is required to record reasons in support of his opinion nor to record positive finding that the evidence proposed by the prosecution

makes out commission of offence by the accused. It is only the prima facie opinion of the trial judge that there is ground for presuming that offence

has been committed by the accused.

The standard of proof and the principles of appreciation of evidence as they are applied at the time of final judgment in a case do not apply at

the stage of consideration under Section 268 and 269 Cr.P.C. nor the court has to see whether there is sufficient ground for conviction of the

accused. Proposed evidence is to be taken on its face value and there is no scope for substituting opinion by the trial judge other than that based

upon the proposed evidence. Nonetheless, I may hasten to add that the trial judge has not simply to endorse the view taken by the Investigating

Agency and must apply mind to satisfy himself whether the material collected by the I.O. comprises of legal evidence and prima facie discloses

commission of any offence by the accused or not.

Two important ingredients of offence under Section 307 RPC are, firstly, the doing of an act by the accused and secondly, doing that act with

such intention or knowledge and under such circumstances that if by that act death is caused accused would be guilty of murder. The impugned

order would show that the learned trial court found prima facie case against the accused (Respondent No. 1) to the extent of commission of the

act, that is, steering his car towards the petitioner at a fast speed when the latter was standing at the side of the road. Learned trial court, however,

seems not to have found a prima facie case to the extent that the said act was done with the intention of causing death of the petitioner and

recorded a finding that the circumstances under which occurrence took place do not constitute offence under Section 307 RPC because had the

intention been to cause death, accused would have succeeded in running over the petitioner but he did not receive any injury on his person. In

taking such a view learned trial court clearly exceeded the ambit of consideration at this initial stage and even has ignored contention of the

petitioner that he had saved his life by jumping over and running away. I may not discuss this aspect much lest that may not cause prejudice to the

stand of the accused at trial I, nonetheless, would say that after having found a prima facie case about the commission of the act in the manner and

circumstances as alleged by the prosecution, there was no case for recording a positive finding in regard to intention of the accused in doing that

act in that manner, which aspect should have been left for consideration in light of the evidence to be recorded at trial.

I would, thus, hold that learned trial judge has fallen in error in holding that offence under Section 307 RPC was not constituted and that there

is sufficient ground to presume prima facie commission of offence under Section 307 RPC by the accused.

For aforementioned, impugned order is set aside and learned Sessions Judge, Ramban is directed to frame charge under Section 307 RPC

against the accused (Respondent No. 1) and proceed with the trial.

Record of the trial Court be sent to the court of the Sessions Judge, Ramban along with a copy of this order forthwith. A copy of this order be

sent to the court of the Chief Judicial Magistrate, Ramban as well.