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Rajasthan High Court · body

2007 DIGILAW 1455 (RAJ)

Jai Singh v. State of Rajasthan

2007-08-01

H.R.PANWAR

body2007
Honble PANWAR, J.–This criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, ``the Code hereinafter) is directed against the order dated 23.2.2005 passed by the Additional Sessions Judge (Fast Track), Parbatsar, district Nagaur (for short, ``the trial Court hereinafter), whereby the trial Court discharged the accused-respondents No. 2 to 7 for the offence under Section 307 IPC and directed to frame charges for the offences under Sections 147, 148, 149, 323, 324, 325 and 326 IPC and sent the matter to the Additional Chief Judicial Magistrate, Parbatsar under Section 228 of the Code. Aggrieved by the order impugned, to the extent of discharging the accused-respondents of the offence under Section 307 IPC, the complainant-petitioner has filed the instant revision petition. (2). I have heard learned counsel for the petitioner, Public Prosecutor for the State and the counsel for the accused- respondents. Carefully gone through the order impugned, as also the Challan papers, statements of witnesses, the injury reports of injured Kishore Singh, Bhagwan Singh, Narbahadur Singh, Daulat Singh and Jai Singh, as also the report of the Senior Medical Officer, Community Health Centre, Kuchaman City dated 28.9.2004. (3). It is contended by the learned counsel for the petitioner that injured Kishore Singh suffered as many as six injuries by sharp-edged weapon, i.e. incised wounds, many of which are on the skull and apart from these six incised wounds, there are other numerous injuries suffered by him. Injured Bhagwan Singh suffered as many as six injuries by sharp-edged weapon, i.e. incised wounds, may of which are on the skull and grave in nature. Injury No. 1 suffered by injured Kishore Singh was found to be dangerous to life as per the medical opinion. So also is the case of other injured persons, who suffered grave injuries on vital parts of their body, i.e. skull and, therefore, the trial Court fell in error in discharging the accused-respondents of the offence under Section 307 IPC on the ground that the injuries were not dangerous to life and, therefore, the impugned order of the trial Court is contrary to the record. (4). Learned counsel for the opposite side has supported the order impugned. (5). I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. (6). (4). Learned counsel for the opposite side has supported the order impugned. (5). I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. (6). Injured Kishore Singh suffered (1) incised wound 16 cm x 8 cm x scalp deep on the left occipital, temporal portion of the scalp; (2) incised wound 8 cm x 1 cm x scalp deep vertically on left parietal part of scalp; (3) incised wound 7 cm x 1 cm x scalp deep vertically on right parietal region of scalp; (4) incised wound 12 cm x 1 cm x bone deep on the first wep space between thumb and index finger of left hand; (5) incised wound 3 cm x 1 cm x muscle deep vertically on extension surface of left writ in mid part; and (6) incised wound 2 cm x 1/2 cm x pinna deep on upper part of left ear. All these injuries, as per the injury report, were caused by sharp edged weapon and they were bleeding. The condition of injured Kishore Singh, at the time of medical examination, was shown as semi-conscious. (7). Injured Bhagwan Singh suffered (1) incised wound 8 cm x 1 cm x scalp deep on the right side of occipital region of scalp placed vertically; (2) incised wound 3 cm x 1/2 cm x scalp deep vertically on left side of occipital region of scalp; (3) incised wound 5 cm x 1 cm x muscle deep on thenor part of left hand (adjacent to left thumb); (4) Incised wound 6 cm x 4 cm x bone deep on front of left leg (bony fragments coming out through the wound; (5) incised wound 8 cm x 2 cm x bone deep placed horizontally on right scapular region; bleeding and fracture deformity felt by finger; (6) swelling on left scapular region; (7) swelling on right cheek; (8) abrasion 2 cm x linear on outer side of left ankle joint; (9) abrasion 4 cm x 1/4 cm below left scapular region; and (10) abrasion 8 cm x 1/4 cm on outer side of left arm vertically. Injuries No. 1 to 5 were opined to be caused by sharp-edged weapon and the remaining by blunt object. Injuries No. 4 and 5 were shown to be grievous in nature. Injuries No. 1 to 5 were opined to be caused by sharp-edged weapon and the remaining by blunt object. Injuries No. 4 and 5 were shown to be grievous in nature. As per the injury report, the condition of injured Bhagwan Singh, at the time of medical examination, was noticed to be semi-conscious. (8). Injured Narbahadur Singh suffered (1) lacerated wound 4 cm x 1 cm x scalp deep on right side of occipital region of scalp; simple by blunt; (2) incised wound 2 cm x 1/2 cm x muscle deep on extensor surface of right elbow joint, simple by sharp; (3) swelling surrounding right elbow joint with fracture deformity by blunt object, however, the nature of the injury has not been mentioned; (4) swelling on left elbow joint, bruise red in colour 4 cm x 4 cm by blunt object, however, the nature of the injury has not been mentioned; (5) abrasion-multiples 10 to 15 on left foot and 15 to 20 on right foot, simple by blunt; (6) bruise red in colour 6 cm x 3 cm on front left mid thigh; (7) abrasion 4 cm x 1/2 cm with bleeding; and (8) abrasion 2 cm x 2 cm on front and back of left arm. (9). Injured Daulat Singh suffered (1) lacerated wound 4 cm x 1/2 cm x scalp deep placed vertically on right parietal region of scalp; (2) swelling on upper 1/3 part of extensor surface of right forearm, red bruise 4 cm x cm; (3) lacerated wound 1 cm x 1/2 cm x muscle deep on flexor surface of left mid forearm; and (4) swelling on extensor surface of left mid forearm, bruise red in colour 3 cm x 3 cm. (10). Injured Jai Singh suffered abrasion on extensor surface of left elbow 1.5 cm x 1.5 cm x muscle deep. (11). As per the opinion of the Senior Medical Officer, Community Health Centre, Kuchaman City, the injury No. 7 suffered by injured Kishore Singh is grevious in nature and injury No. 1 suffered by him is dangerous to life and injuries No. 1, 2, 3, 4 and 7 are also dangerous to life as a cumulative effect. (11). As per the opinion of the Senior Medical Officer, Community Health Centre, Kuchaman City, the injury No. 7 suffered by injured Kishore Singh is grevious in nature and injury No. 1 suffered by him is dangerous to life and injuries No. 1, 2, 3, 4 and 7 are also dangerous to life as a cumulative effect. In respect of injured Bhagwan Singh, the Senior Medical Officer opined that injuries No. 4, 5 and 6 suffered by injured Bhagwan Singh are grievous in nature; though it has been opined that none of the injury is dangerous to life. Likewise, injury No. 2 suffered by injured Narbahadur Singh has been opined to be grievous in nature, though none of the injuries suffered by him has been opined to be dangerous to be; however, the injured was referred to S.M.S. Hospital, Jaipur for surgical procedure. In respect of injuries suffered by injured Daulat Singh, without expressing the opinion on the nature of injures No. 1 and 3, the doctor has opined that injuries No. 2 and 4 suffered by injured Daulat Singh are simple in nature. (12). Thus, from the medical evidence on record, there is prima facie evidence to the effect that the injured persons sustained numerous injuries by sharp-edged and blunt weapons on the vital parts of their body and as per the medical opinion of Senior Medical Officer, the injury No. 1 suffered by injured Kishore Singh was dangerous to life and injuries No. 1, 2, 3, 4 and 7 were dangerous to life as a cumulative effect. The other injured suffered injuries by sharp or blunt weapons on the their scalp region, which is vital part of the body. (13). I have carefully gone through the statements of the injured persons recorded by the police under Section 161 of the Code, wherein they have specifically stated that the accused- respondents inflicted them injuries by using deadly and lethal weapons with an intention to kill them and caused numerous injuries, including the injuries on their vital parts and had Bhanwar Kanwar, Sartaj Kanwar, Narsi Ram Jat, Rampal Singh not come, the accused-respondent would have done them to death. (14). (14). Even otherwise, for constituting the offence under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted and what is relevant is the intention and/or knowledge of the accused which is of paramount consideration for constituting such an offence. (15). In Girja Shankar vs. State of U.P., JT 2004 (2) SC 140, the Honble Supreme Court observed that for constituting an offence under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. The Apex Court further held as under:- "It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section." (16). In Sarju Prasad vs. State of Bihar, AIR 1965 SC 843 , the Honble Supreme Court held that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not itself sufficient to take the act out of the purview of Section 307 IPC. the same view has been reiterated by the Honble Supreme Court in State of Maharashtra vs. Balram Bama Patil & Ors. (1983) 2 SCC 28 , wherein the Honble Apex Court held as under:- "It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. (1983) 2 SCC 28 , wherein the Honble Apex Court held as under:- "It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307 merely because the injuries inflicted on the victim were in the nature of a simple hurt." (17). In Bappa alias Bapu vs. State of Maharashtra, AIR 2004 SC 4119 , the accused along with victim had gone to cinema to witness movie and were coming back by bicycle. Suddenly accused got down from bicycle, stabbed the victim on his stomach and back and pressed his neck. It was contended that keeping in view the nature of the injuries sustained, the offence cannot be said to be one covered by Section 307 IPC. While affirming the conviction under Section 307 IPC, the Honble Supreme Court held as under:- "It is sufficient to justify a conviction under Section 307 IPC if there is present an intent couple with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (18). In Vasant Vithu Jadhav vs. State of Maharashtra, (2004) 9 SCC 31 , the accused opened fire from a gun from a very close range at victim when he was sleeping on a cot. The shot hit the springs of the cot. The bullet broke into pieces and three such pieces struck the victim. Upholding the conviction under Section 307 IPC, he Honble Supreme Court held as under:- "It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, Irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt." (19). In R. Prakash vs. State of Karnataka, (2004) 9 SCC 27 , the Honble Supreme Court observed that intent coupled with some overt act in execution thereof is sufficient for constituting an offence under Section 307 IPC. The Apex Court further held as under:- "It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. Although the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt." (20). Keeping in view the law culled out from the aforesaid decisions of the Honble Supreme Court and considering the facts of the instant case, as discussed above, there is prima facie evidence against the accused-respondents, supported by the medical evidence, to the effect that the accused-respondents caused numerous injuries to the injured by using deadly and lethal weapons, sharp as well as blunt, on various parts of their body including the vital part like scalp. Therefore, prima facie there is evidence that they inflicted the injuries to the injured persons with such an intention or knowledge and under such circumstances that if they, by their act, caused death, they would be guilty of murder. In this view of the matter, the learned court below grossly erred in law as also on facts in discharging the accused-respondents of the offence under Section 307 IPC. (21). In this view of the matter, the learned court below grossly erred in law as also on facts in discharging the accused-respondents of the offence under Section 307 IPC. (21). It is very relevant to mention here that the trial Court has passed the impugned order discharging the accused-respondents of the offence under Section 307 IPC without taking trouble to peep on the injury reports, particularly the injury report of injured Kishore Singh, wherein the Senior Medical Officer, in explicit terms, has opined that injury No. 1 suffered by injured Kishore Singh was dangerous to life and the cumulative effect of injuries No. 1, 2, 3, 4 and 7 suffered by him were dangerous to life, whereas the trial Court while discharging the accused respondent noticed as under:- ^^fpfdRlh; lk{; ls Hkh fdlh Hkh ?kk;y vfHk;kstu i{k ds O;fDr ds izk.k/kkrd pksV gksuk o kjhj ds uktwd Hkkx ij ,slh dksbZ pksV gksuk ftlds ifj.kkeLo:i izd`fr ds lkekU; dkjckj esa izd`fr ds lkekU; vuqdze esa e`R;q dkfjr djus ds fy, pksV iz;kl gksus dh Li"V jk; ugha gSA** (22). The trial Court over-looked the legal proposition that for constituting an offence under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted; though there is specific evidence on record, supported by the medical evidence, that the accused-respondents inflicted injuries to the injured with an intention and knowledge, by using deadly weapons and choosing vital parts, and as such, there is prima facie evidence for framing the charge under Section 307 IPC. (23). It is settled law that at the stage of framing charge, the Court is not required to meticulously consider the evidence and material. (24). In Mohd. Akbar Dar & Ors. vs. State of Jammu and Kashmir & Ors. AIR 1981 SC 1548 while considering the scope of framing the charge, the Honble Apex Court held that it is true that the High Court has not gone into the details or the pros and cons of the matter. This was obviously because that is not the stage when the Court could enter into meticulous consideration of the evidence and materials. (25). In Radhey Shyam vs. Kunj Behari & Ors. AIR 1990 SC 121 , the Honble Supreme Court held that at the stage of framing of charges, meticulous consideration of evidence and materials by court is not required. (26). (25). In Radhey Shyam vs. Kunj Behari & Ors. AIR 1990 SC 121 , the Honble Supreme Court held that at the stage of framing of charges, meticulous consideration of evidence and materials by court is not required. (26). In State of Bihar vs. Ramesh Singh 1977 Cr.L.R. (SC) 375, the Honble Supreme Court held that at the beginning and the initial stage of the trial the truth, veracity an effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at the stage of the trial to consider in any detail and weight 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 judgment 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 matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But 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 same view has been reiterated by Honble Supreme Court in Catena of decisions. (27). In this view of the matter, the criminal revision petition is allowed; the impugned order, to the extent of discharging the accused-respondents of the offence under Section 307 IPC, is set aside and the matter is remanded to the trial Court to frame the charge under Section 307 IPC against the respondents apart from the other charges.