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2009 DIGILAW 2822 (ALL)

ZAKIR HUSSAIN v. STATE OF U. P.

2009-08-12

RAJESH CHANDRA

body2009
JUDGMENT Honble Rajesh Chandra, J.—This application under Section 482, Cr.P.C. has been filed for quashing the order dated 8.6.2009 passed by the Addl. Sessions Judge/F.T.C. III, Rampur, framing charges under Sections 307/34, 504, 506, IPC in S.T. No.135/09, State v. Zakir Husain and others of P.S. Kotwali, District Rampur. It has further been prayed that the proceedings of the aforesaid Sessions Trial may be stayed. 2. In brief the facts of the case are that one Rafat Yar Khan submitted a report at the police station Kotwali, District Rampur on 23.10.2006 at 12.20 a.m. alleging therein that on 23.10.2006 at about 11.15 p.m. when he was returning to his house and reached near the graveyard, accused Zakir Husain Khan and Wasim met him. They enquired from the complainant as to why he is not giving divorce to his wife. They stated that they will marry her somewhere else. The complainant refused to divorce her and stated that he wants to keep his wife with him. The accused-persons then used abusive language. Accused Zakir Khan fired, but the fire missed. Thereafter the accused Imran fired causing injuries on the arm and chest of the complainant. On an alarm being raised by the complainant, witnesses Wasim Khan, Naseem Khan were attracted to the scene of occurrence. After seeing the witnesses the accused persons stated “abki to bach gaya, dobara mauka milte hi mar denge” and fled away from the spot. 3. After the charge-sheet was submitted, the Fast Track Court-III, Rampur charged the accused persons for the offence under Sections 307 read with 34, IPC and Sections 504, 506, IPC, vide order dated 8.6.2009 and it is against this order that the present application has been filed before this Court. 4. I have heard the learned counsel for the accused-applicants as well as the learned AGA. 5. The contention of the learned counsel for the applicants is that in the FIR it has nowhere been mentioned by the complainant that the fire was opened upon him with an intention to commit his murder. Similarly no such statement was given under Section 161, Cr.P.C. His contention is that in the absence of any such averment in the FIR and the statement recorded during investigation, the learned lower Court could not have framed the charge under Section 307, IPC. 6. I have considered over this argument and I feel that it is misplaced. Similarly no such statement was given under Section 161, Cr.P.C. His contention is that in the absence of any such averment in the FIR and the statement recorded during investigation, the learned lower Court could not have framed the charge under Section 307, IPC. 6. I have considered over this argument and I feel that it is misplaced. The impression or the perception of the injured as to whether the assailants wanted to cause his death or some bodily injury is not the determining factor to decide the nature of offence. It is the intention of the accused coupled with some overt act which decides the offence committed. Thus if the victim has not mentioned in the FIR or has not stated under Section 161, Cr.P.C. that the injury was caused by the accused with an intent to commit his murder, it does not conclude that the intention of the accused was not to commit his murder. What is material is the intention of the accused which may be gathered from the words spoken by the accused, weapon used by him and some time the nature of injury sustained by the victim. In this connection a Division Bench judgment of Rajasthan High Court in Ramchander and others v. State of Rajasthan, 1970 Cri LJ 653 may be referred in which the following was observed : “In cases of attempt to commit murder by fire-arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires and something happens to prevent the shot taking serious turn, offence under Section 307, IPC is brought home. If a person fires at another, it would ordinarily mean that he wants to kill that person. The fact that the person fired at was not killed does not necessarily mean that he had no intention to kill that man. A person may at times be excited and for that a reason he may not be able to hit properly, or the aim may be missed because the person aimed at may move aside. That does not however, mean that Section 307, IPC will have no application to a case like this. A person may at times be excited and for that a reason he may not be able to hit properly, or the aim may be missed because the person aimed at may move aside. That does not however, mean that Section 307, IPC will have no application to a case like this. When the persons fired at received only minor injuries the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to them was one of the three kinds referred to in Section 300, IPC. Unless the prosecution discharges the burden, offence under Section 307, IPC cannot possibly be brought home to the accused.” 7. Hon’ble the Supreme Court in Sarju Prasad v. State of Bihar, AIR 1965 SC 843 , observed as under : “The mere fact that the injury actually inflicted by the appellant did not cut vital organ of Shankar Parsad is not by itself-sufficient to take the act out of the purview of Section 307, IPC.” 8. On the strength of above two judgments, it may be held that the act may fall within the definition of attempt to commit murder even if the bodily injury caused to the victim was not capable to causing death of the victim. 9. At the stage of charge the Court has to see the prima facie case. In the present case the victim has sustained injuries—one on the lateral aspect of right shoulder and forearm whereas the other injury is on the right side chest 4 cm. Right below axilla. Thus from the evidence on record a prima facie case under Section 307, IPC is made out. In this connection the judgment of the Supreme Court in Hem Chand v. State of Jharkhand, (2008) 5 SCC 113 may be referred : “The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concerned of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.” 10. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.” 10. In the above said judgment Hon’ble Apex Court also referred its another judgment in State of M.P. v. Mohan Lal Soni, 2000 ACC (Cri) 1110 in which the following was observed : “7. The crystallised judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient found for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the material produced are sufficient or not for convicting the accused. 11. It was furthermore observed : (SCC 344 para 11) “11. As is evident from the paragraph extricated above if the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed.” 12. In the case at hand the accused-applicants have opened fire causing injuries to the complainant Rafat Yar Khan. The accused also stated at the time of leaving the place of occurrence that “abki to bach gaya, dobara mauka milte hi mar denge”. These words further indicate the intention of the accused to commit the murder of Rafat Yar Khan. 13. In view of the above judgments it is clear that the lower Court after going through the evidence available on record has passed a legal order by framing the charges against the accused persons and has not committed any illegality or irregularity. 14. The application under Section 482, Cr.P.C. therefore, dismissed. ————