Suresh Kumar vs State of Haryana and Others

Mahesh Grover, J.—This revision petition is directed against order dated 2.1.2009 of the Additional Sessions Judge, Gurgaon vide which he discharged respondent Nos. 2 to 4 for the offence u/s 307 of the I.P.C. and ordered framing of charge against them under Sections 323/34, 325/34 and 120-B of the I.P.C.

The petitioner had filed a criminal complaint under Sections 147, 148, 149, 323, 307 and 120-B of the I.P.C. against twelve persons including respondent Nos. 2 to 4 alleging that on 1.2.2007, all of them armed with various weapons came to his shop and gave injuries to him. After recording preliminary evidence, the Judicial Magistrate Ist Class, Gurgaon, vide his order dated 7.3.2008, held that prima facie case under Sections 147, 148, 149, 323, 307, 120-B of the I.P.C. was made out against respondent Nos. 2 to 4 and one Anil. Therefore, he ordered their summoning through bailable warrants. Later on, the said Anil died and after securing the presence of respondent Nos. 2 to 4, the learned Magistrate committed the case to the Court of Sessions vide order dated 20.9.2008.

After hearing the parties on the point of charge, the learned Additional Sessions Judge to whom the case was assigned for disposal, vide his order dated 2.1.2009, came to the conclusion that no case u/s 307 of the I.P.C. was made out against respondent Nos. 2 to 4 and, therefore, discharged them of the said offence. However, he directed the framing of charge against respondent Nos. 2 to 4 for the offences under Sections 323/34, 325/34 and 120-B of the I.P.C.

Feeling aggrieved, the complainant has filed the present petition.

While assailing the impugned order, learned Counsel for the petitioner drew the attention of this Court to the injuries which the petitioner had received at the hands of respondent Nos. 2 to 4 and others. He referred to the statement of PW3-Dr.Ashwani Kumar Bose, who had examined the complainant, which was recorded in the preliminary evidence.

The relevant part of the same is extracted below:

On examination, patient was conscious, apprehensive having fracture bleeding from skull and face with multiple deep lacerated deep wound on face and skull.

Left Tempero parietal region;

Left frontal parietal region behind left ear;

Small laceration over right hand and left leg; On examination, pulse BP 110/80 P.R. 90 P/M, chest and heart no abnormal phases Palevomane soft.

History of the case: Fight (The victim was assaulted by a sharp iron rod on the head and body).

If patient would not have received any medical treatment urgently, patient would have bled to death.

The nature of injuries was grievous.

Learned Counsel for the petitioner submitted that in view of the statement of the doctor, who medico-legally examined the petitioner wherein the description of injuries has been mentioned, it is clear that respondent Nos. 2 to 4 had attacked him with an intent to commit his murder and, therefore, the provisions of Section 307 of the I.P.C. were clearly attracted. It was further submitted that the learned Additional Sessions Judge has completely ignored the factum of the fracture of skull and has merely referred to the lacerated injuries. He referred to paragraph 11 of the impugned order, which is reproduced below, wherein the factum of the injuries having been received by the petitioner has been mentioned:

In the present case, we have with us the complainant- injured himself i.e. Suresh Kumar and the alleged eye witness Naresh Kumar (PW5), both of whom have stated about causing of injuries by the accused on him on 1.2.2007 by means of lathi, pharsa, iron rod etc. Medicolegal report of the complainant is Ex.PW3/A which shows multiple lacerated deep wounds on the head i.e. tempro parietal region, frontal region and left parietal region behind left ear and a small laceration over right hand and right leg. Radiological report Ex.PW2/A shows fracture base of terminal phalanx of middle finger and fracture mid shaft of 3rd meta carpal. Dr. Ashwani Kumar (PW3) while appearing into the witness box on 17.11.2007 testified that if the patient would not have received any medical treatment urgently, patient would have bled to death.

He, thus, contended that this has resulted in passing of an erroneous order and respondent Nos. 2 to 4 deserved to be charged for the offence u/s 307 of the I.P.C.

On the other hand, learned Counsel for the State as well as learned Counsel for respondent Nos. 2 to 4 contended that there was no fracture of skull and a small fracture of terminal phalanx of middle finger and mid shaft of 3rd meta carpal was there which could not be termed to be dangerous to life so as to warrant the attraction of the provisions of Section 307 of the I.P.C. In view of this, they submitted that the impugned order is perfectly correct.

I have thoughtfully considered the rival contentions and have perused the file.

Section 307 of the I.P.C. reads as under: 307. Attempt to murder.-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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempt by life-convicts-When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. A reading of the above reproduced provisions of law shows that it is the manner and intent or knowledge of the commission of offence which is the predominant consideration for attracting a charge u/s 307 of the I.P.C.

In the instant case, respondent Nos. 2 to 4 had come to the shop of the petitioner and were carrying weapons, like Pharsa, iron rod, lathi etc. and caused injuries to him. Serious blows were inflicted on the head of the petitioner, as a result of which, bleeding was present from skull and face with multiple deep lacerated wounds. Such injuries on the vital part of the body can, prima facie, show the intent or knowledge of the assailant that their such act can cause death of a person.

In Union of India (UOI) Vs. Prafulla Kumar Samal and Another, , their Lordships of the Supreme Court held as under: The Judge while considering the question of framing the charges u/s 227 of the Code 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.

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.

The test to determine a prima facie case could naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

In exercising his jurisdiction u/s 227 the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. It is true that mere description of injuries cannot form the basis of framing of charge u/s 307 of the I.P.C. and the most crucial ingredient is the intention or knowledge to cause death by such infliction of the injuries. When this is tested in the back-drop of the facts of the instant case, then it becomes abundantly clear that the learned Additional Sessions Judge has erred in not framing the charge against respondent Nos. 2 to 4 for the offence u/s 307 of the I.P.C.

This Court in Dimpey Gujral and Ors. v. Union Territory, Chandigarh and Anr. Crl.Revision Petition No. 337 of 2008, decided on 28.3.2008 along with Crl.Revision Petition No. 539 of 2008, observed as under:

The Court, while framing a charge, is not precluded or rather, it is required to take a bird''s eye view of the entire gamut of the allegations against the accused persons and has also to examine the nature of injuries and the manner in which the offence has been committed, to conclude whether a particular offence is attracted to the facts of the case or not so as to warrant the framing of charge for the said offence.

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At the time when the charge is framed, concededly, the person accused of committing an offence is in the zone of suspicion and, therefore, the Court is saddled with a responsibility to establish some sense of proportion while evaluating that suspicion in relation to the conceptualizing of an offence, its execution, and the ruthlessness of the perpetrator. If these factors do not reveal a diabolism of intent and ruthlessness in execution, then the charge necessarily has to be toned down in proportion with the aforesaid factors. As face is the index of mind, similarly these factors mirror prima facie the latent intent of the perpetrator of the offence.

An accused cannot be burdened under the yoke of a charge of inflated offence when the facts, the injuries, and the manner of commission of the offence point otherwise. Having regard to the facts of the instant case and the observations quoted above, I am of the considered opinion that the learned Additional Sessions Judge has committed an illegality in not framing the charge against respondent Nos. 2 to 4 for an offence u/s 307 of the I.P.C.

Accordingly, this petition is accepted and the portion of the impugned order by which the learned Additional Sessions Judge has refused to charge respondent Nos. 2 to 4 for committing an offence u/s 307 of the I.P.C. is set aside and it is directed that he will frame an appropriate charge against them under the said Section as well.