Ram Nivas vs State of Haryana

S.S. Dewan, J.

This order of mine will dispose of Criminal Revision Nos. 380 and 478 of 1980 filed by Ram Nivas complainant and the State of Haryana respectively since common question of law and fact have arisen.

The relevant facts as disclosed in the First Information Report are these :

That on the fateful day of about 1 pm Hira Lal and his son Sube Singh were constructing a small parda wall in their own plot at village Supatheri with a view to make it a secured place for ladies to take bath. Makhan accused came there and stopped them from doing so. Hira Lal told him that they were constructing the wall on their own land which led to an exchange of hot words between them and in the meanwhile, Suraj Bhan, Parkash and Bir Singh accused also came there. It is said that Murli Dhar PW reached there and during the course of altercation Makhan got enraged, lifted a brick bat and struck it on the chest of Hira Lal and that thereafter Suraj Bhan caught hold of Hira Lal and Parkash and Bir Singh gave him fist and slap blows. Immediately thereafter Hira Lal succumbed to his injury. After necessary investigation, the accused were challaned and committed.

It would appear that the Sessions Judge, Narnaul, was influenced by the argument of the defence that initially Makhan Singh came to the place of occurrence and started an altercation with Hira Lal while objecting to the construction of a wall and on hearing the commotion the other three accused namely Bir Singh, Parkash and Suraj Bhan came there and they only caught hold of Hira lal and gave him fists and slap blows. The learned Sessions Judge accordingly charged Makhan of the offence under S. 302 and the others under S. 323 read with Section 34 Indian Penal Code. Feeling aggrieved the complainant as well as the State of Haryana have challenged the order of the Sessions Judge on the ground that the learned Sessions Judge has committed an illegality in not framing the charge against the aforesaid three accused under S. 302/34, Indian Penal Code.

I have heard the parties and given my due consideration to all the circumstance. At the stage of framing of charge the court has not to minutely & meticulously go into the merits of the evidence collected by the prosecution and consider in details and weigh in a sensitive balance whether the facts if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgement 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 mater under section 227 or 228 of the Code of Criminal Procedure. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or the trial is sure to end in his conviction.

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 crucial consideration for purpose of determining whether there is sufficient ground for proceeding against an accused is whether the material on record, if unrebutted is such on the basis of which a conviction can be said reasonably to be possible. All this would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (See in this regard the decision reported as State of Karnataka v. L. Muniswamy and others : 1977 Cr. L.J. 1125 (S.C.); State of Bihar v. Ramesh Singh 1977 Cr. L.J. 1606 (S.C.) : Union of India v. Profulla Kumar Samal and another 1979 Cr. L.J. 154 (S.C.) and Hari Shankar Gaur v. State (Delhi Administration) (1981 Cr. L.J. NOC 137).

Now in the present case the First Information Report itself reverals that when Makhan was exchanging hot words with Hira lal deceased in the meanwhile Suraj Bhan, Parkash and Bir Singh accused also came there and then Makhan lifted a brick bat and struck it on the chest of Hira Lal and thereafter the aforesaid three accused gave him fist and slap blows. It is primarily the existence of prima facie evidence against the aforesaid three accused which has to be taken into account for framing the charge. In my opinion, it is not possible to answer this entirely in the negative at this stage. The learned Sessions Judge was right in so far as framing of charge against Makhan accused but he seems to have slipped into a grave error by charging the other three accused under S. 323/34 Indian Penal Code. He could not at this stage have discussed the evidence as if he was convicting or acquitting the accuse. At the time of charge, if there are grounds for presuming that the accused have committed offence, charge is necessarily to be framed. It is not the question of vicarious liability which is introduced by the Sessions Judge in his order. It on the other hand, is principle of Section 34, Indian Penal Code that each member is to share the common intention of other member. Therefore, the findings of the learned Sessions Judge in this regard are perverse and are liable to be set aside. After recording the evidence, the trial Court woudl be at liberty to scan the evidence and then hold that common intention was not formed. that would mean each person would be responsible for his individual act. But when common intention is believed to have been formed, there is no scope for holding that the aforesaid three accused are liable for individual acts. The order impugned in these revision petitions suffers from illegal infirmities and is liable to be set aside.

The revision petition are accordingly allowed and the order of the Session Judge dated 4th February, 1986, in so far as it relates to Parkash, Suraj Bhan and Bir Singh accused is set aside. It is ordered that they shall also be chargesheeted for an offence under Section 302/34, Indian Penal Code and they should be tried along with Makhan accused. Nothing said or observed in this order shall ever cause any reflection in the matter of the case at the eventual trial. Rule discharged.