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2002 DIGILAW 1353 (PNJ)

Gurmit Singh v. U. T. , Chandigarh

2002-12-04

S.S.SARON

body2002
Judgment 1. is Revision Petition is against the order dated 12-11-1990 passed by the learned Additional Sessions Judge, Chandigarh, to the limited extent that charge has also been framed under Section 307 of the Indian Penal Code (in short I.P.C.). 2. The facts leading to the case are that case FIR No. 126 dated 3-11-1989 under Sections 147, 149, 324 and 506, I.P.C. was registered against the accused, who are petitioners in this case, at Police Station North, Chandigarh, at the instance of Haraj Singh Sidhu, complainant. It is only at the time of filing challan that the offence under Section 307, I.P.C. was also added. Accordingly, the case was committed to the Court of Session, and by the impugned order dated 12-11-1990 charge under Section 307, I.P.C. in addition to other offences has been framed against the petitioners. The occurrence in the case relates to an incident at the Chandigarh Club on 3-11-1989. The complainant alleges that he was abused without any rhyme or reason by the petitioner Gurmeet Singh alias Nikka on 2-11-1989. The reason for abusing him was that the complainant was opposing him in the Club elections. The complainant ignored the incident. However, on 3-11-1989, at about 10 p.m. the complainant went to the club where Jaswinder Singh Bhaika and Narinder Singh Sandhu met him and Jaswinder Singh invited him for a drink. In the bar the accused petitioners along with three other companions were standing and a scuffle ensued. Gurmeet Singh alias Nikka tripped the complainant who fell down. Then his younger brother Binny who was holding a beer bottle in his hand broke it by hitting on the ground and hit the complainant on his left arm. Nikka who was holding a soda bottle in his hand broke it by hitting it on the ground and hit the complainant twice on his head. Nikkas brother-in-law gave fist blows on the face of the complainant and the other three companions kicked and hit the complainant with fist blows. On account of which the complainant was injured and he was shifted to P.G.I. where he was medically examined. Five injuries were found on the person of the complainant. These injuries were simple in nature. 3. I have heard the learned counsel for the parties. 4. On account of which the complainant was injured and he was shifted to P.G.I. where he was medically examined. Five injuries were found on the person of the complainant. These injuries were simple in nature. 3. I have heard the learned counsel for the parties. 4. Shri Baldev Singh, learned senior Advocate appearing on behalf of the petitioners contends that the injuries being simple in nature, the charge under Section 307, I.P.C. was not liable to be framed against them. He further contends that from the circumstances and material on record it is evident that there is no motive or intention on the part of the petitioners to murder the complainant. He also contends that the police initially registered the case for the offences under Sections 147, 149, 324 and 506, I.P.C. and it is only at the time of filing challan that the offence under Section 307, I.P.C. was added. Lastly it is contended that the Court is not to act as a post office, simply to charge the accused for the offences for which they have been challenged by the police. 5. The learned counsel appearing for the Union Territory, Chandigarh Administration, however, contends that at the time of framing charge only the substance of the allegations are to be seen and that the question whether the offence is liable to be ultimately established or not, is not to be gone into. He further contends that there was an intention on the part of the petitioners to commit murder and, therefore, the learned Additional Sessions Judge, has rightly also framed charge under Section 307, I.P.C. 6. I have considered the respective submissions of the parties. In order to appreciate the contentions of the respective parties, it may be noticed that in terms of Sections 227 and 228 of the Cr.P.C. which relate to trial before a Court of Session, it is to be seen whether a prima facie case has been made out before framing a charge. The present is a case in which the learned Additional Sessions Judge, has framed charge against the petitioners for various offences including Section 307, I.P.C. Sections 227 and 228 deal with the situation where the accused has to be discharged or charges have to be framed. The present is a case in which the learned Additional Sessions Judge, has framed charge against the petitioners for various offences including Section 307, I.P.C. Sections 227 and 228 deal with the situation where the accused has to be discharged or charges have to be framed. In this regard if the Judge considers that there is no sufficient ground for proceeding against the accused, he is to discharge them and record his reasons for doing so. If the Judge is of the opinion that there is ground for presumption of the offence the charge can well be framed. Similar is the position under Sections 239 and 240 of the Cr.P.C. which deal with trial of warrant cases on police report. In both the situations the Court has to afford the prosecution and the accused opportunity of being heard, besides considering the police reports and documents sent therewith. This position has been fully and elaborately dealt with by the Hon ble Supreme Court in Satish Mehra V/s. Delhi Administration, 1996 3 RCR(Cri) 410 wherein it has been held that at the stage of framing a charge, the provisions of Section 226 of the Cr.P.C. obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. Therefore, in the light of the observations made therein it is incumbent upon the prosecution to describe the charges brought against the accused and for the Judge to decide whether there is sufficient ground to proceed against accused. This would necessarily imply that in case a decision is taken to proceed against the accused, it would include as to for what charge is he to be proceeded against on the basis of the records of the case and the documents as also the description of the charge by the prosecution. 7. This would necessarily imply that in case a decision is taken to proceed against the accused, it would include as to for what charge is he to be proceeded against on the basis of the records of the case and the documents as also the description of the charge by the prosecution. 7. In the matter of consideration for framing charges against the accused a reference may be made to the judgment of the Hon ble Supreme Court in the case titled Union of India V/s. Praffulla Kumar Samal, AIR 1979 SC 366, wherein the provisions of Section 227 of the Cr.P.C. were considered and the Hon ble Supreme Court enunciated the following broad principles to be kept in view for the purpose of framing charge :- "Thus, on a consideration of the authorities mentioned above, the following principles emerge : (1) That the Judge while considering the question of framing the charges under Section 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 cases against the accused has been made out ; (2) 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. (3) The test to determine a prima facie case would 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. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth piece 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." 8. In State of Bihar V/s. Ramesh Singh, AIR 1977 SC 2018 it was held that the truth, veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. 9. In Satish Mehras case (supra) after referring to the judgment in Prafulla Kumar Samals case (supra), it was reiterated that while considering the question of framing the charge, the Judge has; "the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out." Besides, it was pointed out that the test to determine in a prima facie case would naturally depend upon the facts of each and it was difficult to lay down a rule of universal application. 10. Coming to the present case in the context of the above referred observations the limited question, that is to be seen is whether the petitioners had an intention to commit murder which would render them liable for trial and prosecution for the offence under Section 307, I.P.C. also in addition to other offences. 11. In order to appreciate this contention the provisions of Section 307, I.P.C. may be adverted to, which read as under :- "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 within death." 12. The perusal of the above shows that the important thing to be borne in mind in determining the question whether an offence under Section 307, I.P.C. is made out or not, is the intention or knowledge. The perusal of the above shows that the important thing to be borne in mind in determining the question whether an offence under Section 307, I.P.C. is made out or not, is the intention or knowledge. Besides, the intention or knowledge of the accused must be such as is necessary to constitute murder. Section 307, I.P.C. is in two parts. The first part envisages such intention or knowledge and such circumstances that the act done by the offender would cause death and he would be guilty of murder. This would constitute an offence of attempt to murder and is punishable for a term which may extend to ten years and also fine. The second part relates to causing of hurt by such act i.e. having intention or knowledge and under such circumstances that by such an act death would be caused and the offender would be guilty of murder. This also constitutes an offence of attempt to murder. In this case, however, the punishment is upto imprisonment for life or to such extent as mentioned earlier. The substance of the offence is the intention or knowledge that the act done is such that death would be caused and the offender would be guilty of murder but death actually is not caused. This would amount to an offence of attempt to murder under Section 307 of the I.P.C. 13. For appreciating the question as to whether there was intention or knowledge that by the act done by the accused death would be caused, the material on record may be perused. 14. As already noticed above, the Court can at the time of framing the charge sift and weigh the evidence for the purposes of charge and also see the totality of the circumstances as to whether there was an intention or knowledge to cause murder. In this situation it is also to be seen whether there was a motive to murder. In the circumstances of the case, it may be noticed that there was only a scuffle which happened on account of the chance meeting of the accused and the complainant, who is the victim, in the Club premises. The grouse as per the complainants version is that the accused had abused him without any reason on 2-11-1989 and on asking he (accused) said that the complainant was opposing him in the elections. The grouse as per the complainants version is that the accused had abused him without any reason on 2-11-1989 and on asking he (accused) said that the complainant was opposing him in the elections. Therefore it is on the next day i.e. on 3-11-1989 that the complainant was at the club and was accosted by the accused petitioners who caused injuries. Therefore, it was chance meeting at the club which resulted in the scuffle and the reason is the opposition of the complainant in the club elections. There is no motive or mens rea discernible from the record on the part of the accused to murder the complainant. The nature of injuries, though not decisive for attributing the offence of attempt to murder in view of first part of Section 307, however, in the circumstances is a relevant factor to be taken into account to surrounding facts and circumstances of the situation. Where injuries have been attributed the same are also to be taken into account to see the attending circumstances as to whether the accused had the knowledge or intention to cause murder. 15. The medical examination of the injured and the opinion of the Doctor is as follows:- "Injuries 1. 6 cm incised wound muscle deep over the medial aspect of L forearm near elbow joint. 2. 2 cm superficial incised wound over the medial aspect of L arm near the elbow, no nuro-vascular deficit. 3. 15 cm superficial cut over the R arm near the elbow on the medial as aspect. 4. Lacerated wound over the vault region of scalp = 3 cm long. 5. 1 cm shaped laceration just posterior to wound No. 4. All the above wound were simple wounds patient was discharged on 4-11-1989. MLR given to police on request. " 16. The perusal of the above nature of injuries and the medical opinion show that the injuries on the person of the complainant are simple in nature. Besides, the patient was discharged on 4-11-1989 i.e. one day after the occurrence of 3-11-1989, which took place at 10.00 p.m. It may be noticed any hurt which endangers life can be "grievous hurt." Section 320, I.P.C. defines the various kinds of hurt which are designated as "grievous". Clause Eighthly of Section 320 refers to any hurt which endangers life. Besides, the patient was discharged on 4-11-1989 i.e. one day after the occurrence of 3-11-1989, which took place at 10.00 p.m. It may be noticed any hurt which endangers life can be "grievous hurt." Section 320, I.P.C. defines the various kinds of hurt which are designated as "grievous". Clause Eighthly of Section 320 refers to any hurt which endangers life. Therefore, hurt which endangers life is a grievous hurt apart from other kinds of hurt designated as "grievous in Section 320, I.P.C. The prosecution itself has not made a case of "grievous hurt" within the meaning of Section 320, I.P.C. so as to prosecute the petitioners for an offence under Section 325, I.P.C. 17. The Hon ble Supreme Court in Sarju Prasad V/s. State of Bihar, AIR 1965 SC 843 held that to attract the provisions of Section 307, I.P.C. it is necessary for the prosecution to establish that intention of the accused in causing the injury was of any of the three kinds Referred to in Section 300, I.P.C. and unless the prosecution discharges the burden, the offence under Section 307, I.P.C. cannot possibly be brought home. In the said case, the accused had caused an injury with the knife in a vital region but no vital organ of the injured was cut as a result of injury. However, he was convicted by the Court below for an offence under Section 307 of the I.P.C. The Hon ble Supreme Court held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. Taking the totality of the circumstances, it was held that there was no intention of murder or to cause any injury which may result in death could be inferred. Accordingly, it was held that the prosecution had not established that the offence committed fell squarely under Section 307, I.P.C. and that in its opinion it amounted to an offence under Section 324 of the I.P.C. In the case of Kundan Singh V/s. State of Punjab, AIR 1982 SC 62 , the victim received simple injuries from gun shots fired by the accused. The injured were in the courtyard of their house, when the accused fired the gun shots. It was held that accused could not have intended to injure them. The injured were in the courtyard of their house, when the accused fired the gun shots. It was held that accused could not have intended to injure them. The conviction of the appellant for the offence under Section 307, I.P.C. was held to be not justified and it was altered to that of an offence under Section 324 of the I.P.C. since the victim received simple injuries. 18. Keeping in view of the totality of the circumstances and sitting and weighing the material for the limited purposes of charge. I am of the view that the charge framed by the learned Additional Sessions Judge, for offence under Section 307, I.P.C. is not sustainable. The state of mind of the petitioners and the surrounding circumstances do not make out a case that there was an intention on the their part to murder the complainant. Neither are the injuries of the kinds Referred to in Section 300 of the I.P.C. The charge framed for the offence under Section 307, I.P.C. is not commensurate but rather disproportionate to the gravity of situation and the offence. Therefore, I am of the view that there is no prospect of the case ending in conviction of the petitioners for the offence of attempt to murder within the ambit of Section 307, I.P.C. As such no purpose would be served by going through the ritual of completing the procedure and then merely pronouncing the judgment at the end of the trial. As held in Satish Mehras case (supra) the object of providing an opportunity to the accused at the time of consideration of charge is to enable the Court to decide whether it is necessary to proceed to conduct the trial and if the case ends there it gains a lot to time of the Court and saves much human efforts and cost. The ratio of the said judgment would enjoin upon the Court to examine that if the accused is to be tried, then for what offences is he to be tried. This is moreso where the offences relate to cases triable by Court of Session or the Magistrate. In the present case by holding that charge for the offence under Section 307, I.P.C. is not made out, the case would be triable by the Chief Judicial Magistrate/Illaqa Magistrate. 19. This is moreso where the offences relate to cases triable by Court of Session or the Magistrate. In the present case by holding that charge for the offence under Section 307, I.P.C. is not made out, the case would be triable by the Chief Judicial Magistrate/Illaqa Magistrate. 19. Therefore, the Revision Petition is accepted and the order dated 12-11-1990 passed by the learned Additional Sessions Judge, Chandigarh, is set aside to the extent that charge has been framed under Section 307 of the I.P.C. The other charges as framed i.e. under Section 324/34 and 506 of the I.P.C. which in any case have not been assailed by the petitioners, shall stand. 20. This Court vide order dated 28-1-1991 had passed an order to the effect that the trial Court shall exempt the petitioners from personal appearance till the decision of the Revision Petition. Therefore, the parties through their counsel are directed to appear before the learned Additional Sessions Judge, Chandigarh on 31-1-2003 and the learned Additional Sessions Judge, shall take appropriate steps to remit the case to the Court of competent trial Magistrate, for trial of the accused, in accordance with the provisions of Section 228(1)(a) of the Cr.P.C. The case is pending since considerable time, therefore, the learned trial Magistrate shall take effective steps to dispose of the case expeditiously. Any observation made herein shall not be taken as an expression on merit of the case and the learned trial Court shall proceed to decide the case by taking into account and weighing the evidence as produced in the trial.