Sanwal Ram and Others vs The State of Rajasthan

Rajendra Saxena, J.—Heard. Perused the record the trial court.

This revision petition has been directed against the order dated 4.2.94 passed by the learned Addl. Sessions Judge, Pali in Sessions Cases No. 76 and 77 of 1993, whereby she ordered for consolidation of the aforementioned cases and while discharging the accused petitioners for the offence under Section. 307 IPC, instead of remitting the case to the Chief Judicial Magistrate for trying them for the offences under Sections. 148, 323 and 325 and in the alternative 323/323 and 325/323, ordered for commencing trial against them before herself.

Briefly, the relevant facts for disposal of this revision petition are that on 19.8.92 at about 3 PM when Puna Ram was grazing his cattle in the ''sarhad'' of village Nawa Guda, accused Girdhari alongwith Nimba, Bhima, Chainiya and Ratiya came there; that Girdhari was armed with a ''Kunt'' (a sharp edged weapon); that other accused persons caught hold of his brother Bhunda Ram, who was sitting in the ''Bada'' of his field; that Girdhari inflicted injuries by ''Kunt'' and other accused persons also caused injuries with the result that Bhunda Ram became unconscious and while he was being carried to the hospital, he breathed his last. Puna Ram stated that Smt. Morki wife of his brother Narayan, who came to the place of the occurrence, had also informed him that the aforementioned accused persons alongwith accused petitioners Hariya, Ratiya s/o Sanwal and Sanwal had also inflicted injuries to Narayan, Dhagla and Pema Ram with an intention to commit their murder. On the report of Puna Ram, Crime No. 89/92 was registered at Police Station, Siriyari, Distt. Pali for the offence under Sections 147, 148, 323, 324, 307, 302 and 323 IPC. During investigation it transpired that the aforementioned eight accused persons had formed an unlawful assembly and inflicted grievous and simple injuries to Narayan, Dhagla and Pema Ram between 12 noon and 1 PM on the ''Paratgochar'' land of ''sarhad'' village Nawa Guda and that on the same day at about 3 PM, five accused persons namely Girdhari, Ratia s/o Joga, Nimba, Bhima and Chainiya came to the ''Bada'' of Bhunda Ram''s field, inflicted fatal injuries to him and committed his murder. The Investigating Officer, therefore, submitted two separate challans; one against the five accused persons for the murder of Bhunda Ram and another against the aforementioned five accused persons and accused petitioners for the offences under Sections 147, 148, 307, 324, 323 and 149 IPC in the Court of learned M.J.M., Marwar Junction, which were registered as Criminal Case Nos. 1224 and 1223 of 1992 respectively, who in turn, committed those cases to the learned Addl. Sessions Judge, Pali, which were registered as Sessions Cases No. 76 and 77 of 1993. The learned trial Judge by her impugned order dt. 4.2.94 held that offence u/s 307 IPC was not made out against the eight accused persons including the present petitioners and accordingly, discharged them for the said offence but framed charges against them for the offences under Sections 148, 323 and 325 and in the alternative 323/149 and 325/149 IPC She further framed charges against the five accused persons namely Girdhari, Ratiya son of Joga, Nimba, Bhima and Chainiya for the offences under Sections 148, 323, 325, 302 read with Section 149 IPC and consolidated both the sessions cases and ordered for commencing their trial. Hence this revision petition.

Mr. Sandeep Mehta, learned Counsel for the petitioners, has strenuously contended that apparently, there were two distinct incidents, which are alleged to have occurred at different places at different points of time and that after investigation, the police also submitted two separate challans in respect of those incidents. According to him, both the incidents had not occurred in the same course of transaction and when the learned Addl. Sessions Judge discharged all the eight accused persons for the offence under Section. 307 IPC in respect of the first incident which occurred between 12 noon and 1 PM, she ought to have remitted that case to the learned C.J.M. because the offences under Sections 147, 148, 323 and 325 read with 149 IPC were not exclusively triable by a Court of Session and, thus, the impugned order is illegal, incorrect and inappropriate.

Mr. Thakur, learned Public Prosecutor, has not been able to support the impugned order.

I have carefully considered the contentions raised before me and have gone through the record of the lower court in extenso. As per the police statements of injured Narayan, Dhagla and Pema Ram, the first incident took place on 19.8.92 between 12 noon and 1 PM on the ''Padatgochar'' land near the boundary of village Nawa Guda, wherein it is alleged that eight accused persons including the three petitioners, armed with sharp and blunt edged weapons, formed an unlawful assembly and inflicted simple and grievous injuries to Narayan, Dhagla and Pema Ram, which was witnessed by a separate set of witnesses. On the same day at about 3 PM, it is alleged that five accused persons which did not include the petitioners armed with sharp and blunt edged weapons, came to the ''Bada'' of Bhunda Ram''s field situated in village Nawa Guda; that accused Girdhari dealt ''Kunt'' blows while other accused persons caused fatal injuries to Bhunda, who succumbed to his injuries and died while he was being carried to the hospital. The site plans prepared by the I.O. also reveal that both the incidents had taken place at different places and at different points of time. There is not a fringe of evidence collected by the I.O. to indicate that the unlawful i assembly was formed by all the eight accused persons, including the present petitioners with a common object to commit the murder of Bhunda Ram. The second incident was witnessed by a separate set of witnesses. Therefore, by no stretch of imagination, it can be held that the aforementioned incidents and the offences were committed in the course of same transaction. Hence, in view of the provisions of Section 223(a) and (d) Cr.P.C, the accused persons cannot be charged and tried jointly in respect of the aforementioned two distinct and separate incidents, which had occurred at different places and at different points of time.

The learned Addl. Sessions Judge after hearing the parties and perusing the challan papers, had also come to the conclusion that offence u/s 307 IPC in respect of the first incident, wherein Narayan, Dhagla and Pema Ram had sustained injuries, was not made out against the eight accused persons including the petitioners and as such, she discharged them for the said offence. The other offences pertaining to the first incident were not exclusively triable by a court of Session. In such circumstances, u/s 228(1)(a) Cr. P.C., she was duty bound to have transferred the case pertaining to the first incident for trial to the court of leamed Judicial Magistrate First Class. Thus, the learned trial Magistrate has committed grave illegality in consolidating both the cases. Besides this, if the petitioners are compelled to face trial before the learned Sessions Judge a considerable hardship and great prejudice will be caused to them in formulating their defence properly and they will also be deprived of their right of appeal. Hence reflected from any angle, the impugned order dt. 4.2.94 is patently illegal, incorrect and inappropriate and the same deserves to be quashed.

The result is that this revision petition is allowed and the order dated 4.2.94 passed by the learned Addl. Sessions Judge Pali, to the extent whereby she ordered for the joint tried of both the incidents before her is hereby set aside and it is directed that the case pertaining to Sessions Case No. 77/93 against the eight accused persons including the petitioners for the offences under Sections 147, 148, 323, 325 and in the alternative 323/149 and 325/149 IPC be transferred to the learned CJM, Pali for trial in accordance with law. The record of the case be immediately sent back.