Prithvi Singh And Ors vs State And Anr

Instant criminal revision petitions have been filed under Section 397 & 401 Cr.P.C against the order dated 13.01.2020 passed by the learned Special Judge, SC/ST (Prevention of Atrocities Act Cases), Barmer in Sessions Case No. 297/2018 whereby, the learned trial court has framed charges against the petitioners for offences under Section 308 read with 308/34, 326 read with 326/34, 325 read with 325/34, 323 read with 323/34, 341 read with 341/34, 452 read with 452/34 IPC.

Brief facts of the case are that the complainant respondent filed a written report before the S.H.O Police Station Kotwali, Barmer stating therein that on 31.07.2018 at about 6:00 PM in the evening, he was sitting alongwith his son Jitender, the petitioners came and demanded money for liquor. Upon refusing, the petitioners gave beating to Jitender causing multiple injuries on his body including grievous injury.

On this report, FIR No. 338/2018 was registered at Police Station, Kotwali Barmer for offence under Section 452, 341, 323, 327, 308 & 392 IPC. After thorough investigation, police submitted chargesheet against the petitioners and now charges have been framed against them as mentioned above.

Counsel for the petitioners while assailing framing of charge under Section 308 IPC submits that no offence whatsoever is made out against the petitioners as stated in the FIR, as from the injury report of the injured Jitender, he received total five injuries and grievous injuries have been found on his right and left forearm. Both these injuries are on non-vital parts of the body, therefore, the offence under Section 308 IPC is not at all made out against the petitioners. It is argued that it cannot be said that the petitioners had any intention or knowledge that they by their act would cause death of Jitendra.

Per contra, learned Public Prosecutor supported the order passed by the learned Trial Court. It is submitted that out of five injuries, one injury is on skull and another injury is found to be on chest of the injured, therefore, prima facie case under Section 308 IPC is clearly made out against the petitioners. Therefore, the order of framing charge passed by the learned Court below does not suffer from any infirmity and all other questions raised in regard to the present case are to be considered by the learned Trial Court at the appropriate stage.

I have thoughtfully considered the arguments advanced on behalf of the parties and perused the material available on record.

In statement of injured Jitender, he has specifically mentioned that the accused came armed with iron rod and voluntarily caused injuries to him. He received injuries on his head, both shoulders, both legs, both hands as well as on his abdomen. Upon shouting, Jagdish and Rajesh Kumar reached there. The statement of injured Jitendra is corroborated by the witnesses Rajesh Kumar and Jagdish. Both these witnesses have categorically stated that the accused came armed with iron rod and caused injures to Jitendra. Upon perusal of the injury report, the injured has received total five injuries out of which two injuries are on his right fore arm and left forearm found to be grievous in nature and there are injuries on his skull and his chest also. After perusing the statements and injury report, this Court is of the opinion that trial court has not committed any error in framing charges for offence under Section 308 read with 308/34, 326 read with 326/34, 325 read with 325/34, 323 read with 323/34, 341 read with 341/34, 452 read with 452/34 IPC. Section 308 IPC is as under:

308: Attempt to commit culpable homicide:

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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

A bare perusal of the provision clearly reveals that even if "hurt" has been caused, the case would fall within the latter part of Section 308 IPC. Admittedly, according to the medical evidence, injured Jitendra had suffered a injury on his head as well as on his chest and grievous injuries on his forearm. Thus, "hurt" was caused to him. Thus, prima facie there is sufficient evidence to show that an offence under Section 308 IPC has been committed.

It is settled law that at the time of framing the charges, the truth, veracity and the effect of the evidence, which the prosecution proposes to produce are not to be meticulously examined. At this stage, the Court has only to see whether the unrebutted evidence, which the prosecution is to adduce, make way for conviction and if it is so then the charge can be framed. The Court, while framing the charges, is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom disclose the presence of all the ingredients constituting the alleged offence.

In the case of Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 9 SCC 368, Hon'ble Supreme Court in para 21 of the judgment has laid down the principles which are to be kept in mind by the Court while exercising jurisdiction under Sections 227 & 228 Cr.P.C., which are as below :

"(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The court 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 etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept al that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused at this stage, he is not to see whether the trial will end in conviction or acquittal."

In the case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460, Hon'ble Supreme Court has held that at the initial stage of framing of a charge, the Court is concerned not with the proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.

In the case of Sheoraj Singh Ahlawat & Ors. v. State of Uttar Pradesh & Anr. reported in (2013) 11 SCC 476, the Hon'ble Apex Court has held as below :

"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge."

Hon'ble Apex Court in the case of 'State of Rajasthan Vs. Fatehkaran Mehdu' reported in AIR 2017 SC 796, while dealing with the scope of interference under Section 397 Cr.P.C when the charge had been framed, has held as under :-

"26. The scope of interference and exercise of jurisdiction Under Section 397 of Code of Criminal Procedure has been time and again explained by this Court. Further, the scope of interference Under Section 397 Code of Criminal Procedure at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the Accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the Accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.

Now, reverting to the limit of the scope of jurisdiction Under Section 397 Code of Criminal Procedure, which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.

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The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under Section 228 Code of Criminal Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:

"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction.

However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction Under Section 397 or Section 482 of the Code or together, as the case may be:

27.1) Though there are no limits of the powers of the Court Under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.13) Quashing of a charge is an exception to the Rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously."

Recently, Hon'ble Apex Court in the case of 'Bhawna Bai Vs. Ghanshyam & Ors' reported in 2020 Cr.L.R (SC) 5, while considering the judgment rendered in the case of Amit Kapoor (Supra) dealing with the scope of interference when the charges had been framed, held as under :-

"16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the Accused has committed the offence punishable Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges Under Section 228 Code of Criminal Procedure, the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen.

As held in Knati Bhadra Shah and Anr. v. State of West Bengal : (2000) 1 SCC 722, while exercising power Under Section 228 Code of Criminal Procedure, the judge is not required record his reasons for framing the charges against the Accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the Accused and framed the charges against the Accused- Respondent Nos. 1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the Accused- Respondent Nos. 1 and 2 Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code and the High Court, in our view, erred in quashing the charges framed against the Accused. The impugned order cannot therefore be sustained and is liable to be set aside.

In the result, the impugned judgment dated 25.02.2019 passed by the High Court of Madhya Pradesh at Indore Bench in Criminal Revision No. 402 of 2019 is set aside and this appeal is allowed. Sessions Trial Case No. ST/150/2018 is restored and Second Additional Sessions Judge, Mandleswar, West Nimad, Madhya Pradesh shall proceed with the matter in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter."

Thus, it is well settled legal position that at the stage of framing charge for an offence against an accused only prima facie has to be seen whether sufficient grounds are available on record to proceed against him and even strong suspicion is enough to frame charge and at this stage of the proceedings evidence is not required to be analyzed, as it is required to be done at the final stage after trial. It is also well settled that at this stage of the proceedings only the charge-sheet and evidence collected during investigation which has been produced alongwith the charge-sheet is required to be considered.

Hon'ble Supreme Court in the case of Sunil Kumar Vs. N.C.T. of Delhi & Ors reported in (1998) 8 SCC 557 while considering the charges framed under Section 308 IPC observed as under :-

"The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law."

The co-ordinate Bench of this Court in the case of Mangla Ram & Ors Vs. State of Raj. & Ors reported in 2017(2) RLW 1175 (Raj.) observed as under :-

"9. But in the case in hand, four scalp deep injuries have been found on the head of Megha Ram. Thus, the judgments relied upon by learned counsel for the petitioners are not applicable in the facts and circumstances of this case. Even otherwise, the nature of injury is not the relevant criterion to decide upon the question whether the charge can be framed for the offence under Section 308 I.P.C. or not.

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Other judgments relied upon by learned counsel for the respondent mention the basic principles regarding framing of charges which postulate that the strong suspicion founded upon the material before the trial Court is sufficient on the basis of which charge can be framed. At the stage of framing charge, the Court is not required to appreciate the evidence and to arrived at the conclusion that the materials produced are sufficient or not for convicting the accused.

On perusal of the order impugned dated 06.08.2016, it is apparently clear that taking these legal principles into consideration, learned trial Court has ordered to frame charge for the offence punishable under Section 308 IPC. Thus, no infirmity or lacuna is found in the order impugned. Resultantly, the revision petition is found to have no substance and is accordingly dismissed."

In view of above, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 308 read with 308/34, 326 read with 326/34, 325 read with 325/34, 323 read with 323/34, 341 read with 341/34, 452 read with 452/34 IPC against the petitioners.

The revisions thus being bereft of any force, are hereby rejected. The stay petition also stands rejected.