Ramkishore Sharma vs State of Madhya Pradesh

G.D. Saxena, J.—Being aggrieved by an order dated 9th May 2012 in Sessions Case No. 131/2012 passed by the Second Additional Sessions Judge, Guna (M.P.), framing thereby charges against the petitioner-accused for commission of offences punishable under Sections 307/34 and 323 of I.P.C., this revision petition u/s 397/401 of the Code of Criminal Procedure 1973 has been preferred. The facts in brief and relevant for decision of this petition are that on 2nd February, 2012 at around 11 p.m., in night, co-accused Keshav Sharma went to the house of injured who fell in love with the daughter of the petitioner-accused and knocked the door. The door was opened by Shanu, complainant, sister of injured. It is alleged that thereafter, accused Keshav Sharma alongwith one other person dragged her brother Shajid and fired two shots by his country-made pistol causing serious injuries to injured. The report of the incident was lodged by Shanu, sister of injured. After investigation, the charge-sheet was filed before the Criminal Court. On committal, the sessions trial was commenced and by the impugned order, the aforesaid charges are framed against the petitioner, hence this revision.

The learned counsel appearing for the petitioner contended that the F.I.R. was lodged by the sister of injured in which she mentioned that her brother had love affairs with the sister of accused Keshav Sharma. It is submitted by him that on a fateful day, the accused Keshav Sharma with one other person came to her house and knocked the door. When she opened the door, the accused dragged her brother Shajid out side the room and fired shots by his country-made pistol which caused injuries. It is argued that during investigation, the Investigating Officer recorded the statements of eye-witnesses in which most of the witnesses named one person as unknown who was with accused Keshav. However, in dying declaration of injured Shajid, accused-petitioner Ram Kishore Sharma, father of co-accused Keshav was said to be present on the spot. Witness Raj Bahadur Singh in his statement also named the petitioner. However no specific role in crime is assigned to the petitioner while filing charge sheet by the investigation.

The contention of the learned counsel for the petitioner is that as per the settled principles of law to frame and prove the charge of offence punishable u/s 307 of I.P.C., the main ingredient of attempt to commit murder, i.e., the intention of the accused is to be gathered and seen from the circumstances appeared from the evidence produced before the trial court. According to him, in the absence of clear intention to kill the injured established against the accused/petitioner, no charge for offence punishable u/s 307/34 of I.P.C. can be framed. Hence, it is prayed that by allowing the revision, the accused/petitioner be discharged of the offence.

On the other hand, learned Panel Lawyer for the respondent/State opposed the prayer and requested to dismiss the petition.

Heard the learned counsel appearing for petitioner and the learned Panel Lawyer for the respondent/State. Also perused the charge-sheet, statements of witnesses recorded by the investigation, alleged dying declaration coupled with the medical report of the injured, recovery of weapon and other documents filed by the prosecution in the light of the law applicable to the present case.

To apply Section 34, IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked, in every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

In the case of Sajjan Kumar Vs. Central Bureau of Investigation (2011 AIR SCW 3730), the Hon. Apex Court held that:

It is clear that 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 only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce 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. A Magistrate enquiring into a case u/s 209 of the Cr.P.C. is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction u/s 227 of Cr.P.C., the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Exercise of jurisdiction under Sections 227 and 228 of Cr.P.C.

On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges u/s 227 of the 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 of 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 stage of Sections 227 and 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 discloses 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 all 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 and at this stage, he is not to see whether the trial will end in conviction or acquittal.

At the stage of framing of charge u/s 228 of the Cr.P.C. or while considering the discharge petition filed u/s 227, it is not for the Magistrate or 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.

In Virendra Singh v. State of Madhya Pradesh (2011 AIR SCW 31), the Hon. Apex Court held:-

The vicarious or constructive liability u/s 34, IPC can arise only when two conditions stand fulfilled, i.e., the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.

The common intention postulates the existence of a pre-arranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention u/s 34, IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver, then, the one originally designed, during execution of the original plan, should be clear and cogent.

The dominant feature of section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert

Section 34, IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a pre-arranged and pre-meditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. In order that section 34, IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34.

Now, reverting to the facts of the present case, it appears that there are two set of case-diary statements of eye witnesses on record. At first instance, the complainant Shanu and other witnesses present on spot stated that accused Keshav Sharma accompanied with one other person went to complainant''s house and knocked the door and on opening the door, her brother Shajid who was inside the room was dragged out and shot by pistol by accused Keshav Sharma. In these statements, no specific role about the person who accompanied accused Keshav was assigned. Another set of eye-witnesses is that injured Shajid in his dying declaration and Raj Bahadur Singh in his case diary statement, respectively, mentioned the presence of the petitioner-accused Ram Kishore Sharma on the spot with accused Keshav Sharma, but with no specific role such as exhortation etc. It is tried in law that at the stage of framing charge, 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 and at this stage, he is not to see whether the trial will end in conviction or acquittal.

On considering the overall evidence of the complainant and other eye-witnesses, it clearly appears that accused-petitioner joined the incident without any arm and was merely present. No specific role was assigned to him. The grave injuries on vital part of the injured were inflicted by the co-accused Keshav Sharma. For an inference of common intention to be drawn for the purpose of Section 34 of I.P.C., the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas have taken place amongst different accused and in prosecution of it the overt acts of the accused persons had flowed out as if in obedience to the command of a single mind. Under such circumstances, as discussed above, the present accused could not be charged for offence punishable u/s 307/34 of I.P.C. Therefore, the charge for offence punishable u/s 307/34 framed against the petitioner/accused is not sustainable in the eyes of law. However, the charge framed against him for commission of offence u/s 323 of I.P.C. is well found established from the material on record. Consequently, the revision petition stands allowed in part. The charge for commission of offence punishable u/s 307/34 of I.P.C. framed against the petitioner/accused by the impugned order stands quashed, however, he shall be tried for the other offence u/s 323 of I.P.C., as held above.