Rahim Khan @APPELLANT@Hash State of Rajasthan

All these revision petitions are arising out of a common order passed in Sessions Case No.112/2017 by Sessions Judge, Jaisalmer (for short,

‘learned trial Court’), therefore, all are heard together and disposed of by the common order.

Succinctly stated, the facts of the case are that complainant lodged FIR No.07 on 29th of February, 2016 at Police Station, Sam, District Jaisalmer,

against 31 accused person, including all the petitioners, castigating them for offence punishable under Sections 147, 148, 341, 323, 324, 325, 326, 307,

336, 427 read with Section 149 IPC.  Police after investigation submitted charge-sheet against accused-petitioners for offence punishable under

Sections 147, 148, 341, 323, 324, 325, 326, 307/149, 336 and 427 IPC and for other accused persons, viz., Mochare Khan and Mubin Khan, cognizance

was taken on the application of complainant under Section 190 Cr.P.C. Subsequently, the case was committed to learned trial Court by Judicial

Magistrate, Jaisalmer, by resorting to Section 209 Cr.P.C. The learned trial Court, thereafter, heard arguments before framing charges and while

resorting to Section 228 Cr.P.C. framed charges against 22 persons including all the petitioners for offence punishable under Sections 147, 148, 341,

323, 324, 325, 326, 307, 336, 427 read with Section 149 IPC.

Challenging the impugned order, it is contended by learned counsel for the petitioners that learned trial Court has completely overlooked the basic

ingredients of Section 149 IPC and the requisite material available on record has not been scrutinized in right perspective. It is submitted by learned

counsel that very edifice of offence under Section 149 IPC is common object of the members of unlawful assembly but the same is not discernible

from the evidence collected during investigation besides other materials. Learned counsel further contends that the learned trial Court, while

framing charges, has not made any endeavor to examine true purport of Sections 227 & 228 Cr.P.C. and has mechanically exercised power under

Section 228 Cr.P.C. in framing the charges. While confining his grievances against charge Nos.7 & 8, it is contended by learned counsel that the

learned trial Court has not at all cared to examine the injury report of Sodde Khan (injured) inasmuch as though injury No.1 is an incised wound at the

left temporal region, but surprisingly no injury is seen on the right temporal region. Mr. Bohra has further argued that medical opinion in this regard

is full of infirmities and furthermore other injured Amal Khan, Munad Khan, Allahrakha Khan, Shobha Khan and Gulam Khan have not suffered

grievous injuries. It is also argued by learned counsel that the incised wound at left temporal region of injured Sodde Khan is only 3 cm. deep, and

therefore, the opinion of doctor showing it dangerous to life is prima facie infirm and cannot satisfy the test of prudency. In support of his

arguments, Mr. B.P. Bohra, learned counsel for the petitioners, has placed reliance on following judgments:

P. Vijayan Vs. State of Kerala & Anr. [(2010) 2 SCC 398]

Vijay Pandurang Thakre & Ors. Vs. State of Maharashtra [(2017 4 SCC 377].

Learned Public Prosecutor, Mr. L.R. Upadhyay, submits that earlier on behalf of petitioners order of cognizance was challenged but the Court has

rejected their petitions. It is also submitted by learned Public Prosecutor that involvement of more than 20 persons in scuffle coupled with the fact

that five persons suffered injuries and grievious injury was suffered by one Sodde Khan, duly supported by a medical report that it appears to be

dangerous to life, is sufficient to prima facie prove common object of all the petitioners. It is further submitted by learned Public Prosecutor that, at

this stage, medical report showing injury of Sodde Khan to be grievous and dangerous to life cannot be eschewed and learned trial Court has,

therefore, rightly relied on the same for framing charge under Section 307 read with Section 149 IPC. Learned Public Prosecutor has also

submitted that at the stage of framing charge Court is required to examine prima facie case against accused persons showing possibilities of the

commission of crime as against certainty and the same is clearly discernible from the impugned order.

Learned counsel, appearing for the complainant, while reiterating the submissions of learned Public Prosecutor, contends that learned trial Court has

examined the material available on record for framing charge, and therefore, no interference with the impugned order is warranted.

I have bestowed my consideration to the arguments of learned counsel for the parties advanced at Bar, perused the impugned order and thoroughly

scanned the materials available on record.

There remains no quarrel that at the stage of framing charge Court is required to examine both the Sections, i.e., Section 227 & 228 Cr.P.C. and if the

Court considers that no sufficient grounds exist for proceeding against accused, then the accused can be discharged after recording reasons for doing

so. Thus, the emphasis under Section 227 Cr.P.C. is on insufficiency of grounds for proceeding against accused. Per contra, Section 228 Cr.P.C.

envisages that if in the opinion of Court, there is ground for presuming that the accused has committed offence, then the Court may proceed to frame

charge against him. Thus, a reading of Section 227 & 228 together in juxtaposition, makes it clear that at the beginning of trial, the truth, veracity

and effect of evidence, which the prosecutor proposes to adduce, need not be meticulously judged.

The Supreme Court, in State of Bihar Vs. Ramesh Singh [(1977) 4 SCC 39], while considering relative scope of Sections 227 & 228 Cr.P.C., has

held:

“The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not

exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether

there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the

matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a

strong suspicion 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. The presumption of the guilt of the accused which is to be drawn at

the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the

contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which

the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in 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.

An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just

illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the

conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of

making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one

under section 228 and not under section 227.â€​

The Supreme Court in a later case, State of A.P. Vs. Golconda Linga Swamy & Anr. [(2004) 6 SCC 522], while examining power of the Court at the

time of framing charge, has held:

“At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and

involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on

direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against

certainty.

The Court further held:

“Ultimately, the acceptability of the materials to fasten culpability on the accused persons is a matter of trial.â€​

Same view is reiterated by the Supreme Court in case of Sajjankumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368], the Court held:

“At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for

the Magistrate of a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge

concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision

one way or the other.â€​

The same principle is further reiterated by Supreme Court in a later judgment in case of State through Inspector of Police Vs. A. Arun Kumar & Anr.

[(2015) 2 SCC 417].

In P. Vijayan (supra), a judgment on which learned counsel for the petitioners has placed reliance, same principle is reiterated by Supreme Court by

relying on its earlier decision in Soma Chakravarty Vs State through C.B.I. [(2007) 5 SCC 403]. Therefore, the legal position adumbrated by the Court

in said judgment is not at variance with the earlier judgment and virtually it is the reiteration of relative powers of the Court under Sections 227 & 228

Cr.P.C. while agreeing with the proposition laid down in the aforesaid judgment. In my opinion, in the factual backdrop of instant case, the said

judgment cannot render any assistance to the cause of petitioners. Likewise, in the context of judgment in Vijay Pandurang Thakre & Ors. (supra),

suffice it to observe that the said judgment was rendered by Supreme Court while considering an appeal against conviction of accused appellants, and

therefore, the ratio decidendi of that judgment cannot be pressed into service at the stage of framing charge.

 The contention of the learned counsel for the petitioners against framing of charge under Section 307 or 307 read with Section 149 IPC solely on

the basis of gravity and magnitude of injury suffered by the victim Sodde Khan and lack of evidence to show common object of all the accused-

petitioners appears to be quite alluring but not of substance. Suffice it to observe in this behalf that intention is to be gathered from all the

circumstances, and not merely from the consequences that ensue. In the instant case, allegedly axe blow was given on the head of injured Sodde

Khan causing fracture at left temporal region. Moreover, injury is also reported to be dangerous to life by doctor. That apart, all the assailants

were armed with lathis and axe at the time of alleged commission of offence, thereby causing injuries to 5-6 persons is also prima facie sufficient to

frame charge under Section 149 IPC. In common parlance, common object has to be inferred from various factors like weapons with which the

members were armed, their movements, the acts of violence committed by them and from the result thereof.  For proving common object, burden

lies on the prosecution to adduce requisite evidence during trial and therefore while framing charge it would be inappropriate to discard available

material. Thus, in my opinion, at this stage, prima facie, material is available to frame charge under Sections 307 and 326 IPC or alternatively under

Sections 307/149 and 326/149 IPC.Â

In totality, the evidence and other material available on record have been examined by learned trial Court and, while recording its satisfaction about

grave suspicion showing possibilities of commission of crime by the accused persons, it has framed charge, which in my opinion, by no stretch of

imagination, can be categorized as illegal or improper exercise of discretion.Â

The whole endeavor of the petitioners in these revision petitions is for considering the materials available on record meticulously, which, I am afraid, is

wholly uncalled for. As prima facie case is made against the petitioners, learned trial Court has rightly exercised its jurisdiction in framing charge.Â

The arguments advanced by learned counsel for the petitioners are precisely aimed against sufficiency of evidence which may or may not result into

conviction as well as defence to be put forth by them, which in my opinion, has rightly not been considered by the learned trial Court at the stage of

framing charge.

In view of foregoing discussion, I am unable to find any illegality, infirmity or impropriety in the impugned order requiring interference in exercise of

revisional jurisdiction.

Consequently, all these revision petitions fail and hereby rejected.