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2010 DIGILAW 2031 (RAJ)

Jai Singh v. State of Rajasthan

2010-12-07

R.S.CHAUHAN

body2010
Hon'ble CHAUHAN, J.—Aggrieved by the order dated 11.8.2010 passed by the Special Judge, SC/ST (Prevention of Atrocities) Jhunjhunu, whereby the learned Judge has framed the charge of offences under Section 304 IPC read with Section 34 IPC against the petitioner Nos. 1 to 3, and the charge of Section 304 IPC against petitioner No.4, and the charges under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act (hereinafter referred to as "the Act") against all the petitioners, the petitioners have approached this Court. 2. In brief, the fact of the case are that on 22.1.2010, the complainant, Inder Raj Singh, had lodged a written report with the Police Station Sadar, Jhunjhunu. According to the complainant, due to an old animosity, on 22.1.2010, the petitioners had abused the complainant on mobile. Thereafter, the petitioners came to his house and threw stones and bricks. When his father came out of the bathroom, petitioner No.4 threw a brick at him. His father as struck and died. Charge sheet was filed against the petitioners. Vide order dated 11.8.2009, the learned Judge has framed the charges, as men-tioned above, against the petitioners. Hence, this petition before this Court. 3. Mr. S.N. Shah, the learned counsel for the petitioners, has strongly contended that the complainant has come up with an unbelievable story. According to complainant, Under Raj Singh, there is an old animosity between the family of the complainant and the family of the petitioners. According to him, on the fateful day, the petitioners had initially called him on his mobile and had abused him with regard to his caste. At about 8.00 p.m., while the complainant and his family members were inside their house, the petitioners came to his house and started verbally abusing the complainant party with regard to their caste. The father of the complainant, who was answering the call of nature, came out from the bathroom. Thereupon, the petitioners hurled stones at his father. According to the complainant, one of the cement bricks hit his father on his head, and his father collapsed. Subsequently, his father died. According to the learned counsel, the site plan clearly shows that the bricks and the stones were thrown from quite a distance. According to the Post-Mortem Report, the deceased had suffered a single injury on the head. According to the complainant, one of the cement bricks hit his father on his head, and his father collapsed. Subsequently, his father died. According to the learned counsel, the site plan clearly shows that the bricks and the stones were thrown from quite a distance. According to the Post-Mortem Report, the deceased had suffered a single injury on the head. therefore, it is an unbelievable story that from some distance, Vinod, petitioner No.4, aimed to hit the complainant's father on his head, and threw and brick. Moreover, it is unbelievable that they would have the knowledge that the complainant's father would come out from the bathroom and they will have an opportunity to hit him. 4. Secondly, even the Post-Mortem Report does not show the duration of the injury suffered by the deceased. Thus, prima facie, no offence under Section 304 IPC is made out. 5. Thirdly, in order to frame charge under Section 3(2)(v) of the Act, the prosecution has to prove the fact that the offence was committed "on the ground" that the victims are members of the Scheduled Caste/Scheduled Caste community. In order to buttress this contention, the learned counsel has relied upon the case of Dinesh @ Buddha vs. State of Rajasthan ( AIR 2006 SC 1267 ), Kalasika Prashanta Kumar vs. State of Andhra Pradesh (2004(3) Crimes 102), Bablu @ Abdul Akhtar & Anr. vs. State of Madhya Pradesh ( 2004(4) Crimes 558 ), Naresh vs. State of Haryana (1997(2) Crimes 587). According to the learned counsel, there is no allegation that, in fact, the deceased was hit on the head "on the ground" that he belongs to a member of SC/ST. Therefore, offence under Sec.3(2)(v) of SC/ST Act is not made out against the petitioners. 6. Fourthly, according to the learned counsel, the most serious the offence, the more meticulously the evidence should be scrutinized. According to him, there is no evidence on record to show the existence of a "common intention" which was shared by he petitioners for committing the offence either under Section 304 IPC, or under Section 3(2)(v) of the Act. In absence of any cogent and reliable evidence, charge could not be framed for Section 34 IPC. In order to buttress this contention, the learned counsel has relied upon the case of Ramashish Yadav & Ors. In absence of any cogent and reliable evidence, charge could not be framed for Section 34 IPC. In order to buttress this contention, the learned counsel has relied upon the case of Ramashish Yadav & Ors. vs. State of Bihar ( (1999) 8 SCC 555 ), Badruddin vs. State of U.P. ( (1998) 7 SCC 300 ), Kadapagunta Swaminatha Reddy vs. State of Andhra Pradesh (1996 Cr.L.J. 1387) and Putti Lal vs. State (1969 Cri.L.J. 531 (All.)). 7. Lastly, while dealing with the principles which should be kept in mind while framing the charge, the learned counsel has relied upon the case of Nenu Ram & Ors. vs. State of Rajasthan (1999(2) RCC 1208). 8. On the other hand, the learned Public Prosecutor has contended that whether the story is believable or unbelievable, this issue can be adjudicated only after the prosecution submits its evidence and the defence, in turn, leads it evidence. At the stage of framing of charge, the learned Judge is not permitted to meticulously examine the evidence. Instead, he is supposed to merely see whether a strong prima facie exists which shows that the alleged offence was committed by the accused, or not? Therefore, at this initial stage, the learned Judge was justified in not meticulously examining the statements recorded under Section 161 Cr.P.C. as well as the documentary evidence produced by the Investigating Agency in the form of the charge-sheet. 9. Secondly, there is no evidence to show that the injury caused to the deceased was an old one. Immediately after the incident, the "Panchnama" clearly reveals that the deceased had suffered an injury on his head. Thereafter, the deceased was taken to the hospital and the post-mortem was performed. Both, Panchnama and the Post-Mortem Report corroborated the statements of the complainant that his father had suffered a single injury that too caused by a brick thrown by Vinod. Thus, offence under Section 304 IPC does exist. 10. Thirdly, the complainant, in his statement, recorded under Section 161 Cr.P.C., clearly states that there was an animosity between the two families. Even on earlier occasion, they had been abused with regard to their caste. Thus, he fact was well known to the petitioners that the victims are members of the Scheduled Caste. 10. Thirdly, the complainant, in his statement, recorded under Section 161 Cr.P.C., clearly states that there was an animosity between the two families. Even on earlier occasion, they had been abused with regard to their caste. Thus, he fact was well known to the petitioners that the victims are members of the Scheduled Caste. Whether the offence was committed "on the ground" that the complainant belonged to the Scheduled Caste or not, this matter is to be tested and adjudicated during the course of trial. At the initial stage of framing of the charges, no judicial finding can be given on this point. Moreover, the judgments relied upon by the learned counsel do not deal with the framing of the charges. Instead, they deal with conviction. Therefore, the observations of the Hon'ble Supreme Court are not applicable to the present case. 11. Lastly, the issue whether the element of common intention really existed in the mind of the assembly or not or was shared by the petitioners can also be adjudicated upon only after the trial is complete. Therefore, it is too early in the day for the learned Judge to decipher the common intention as required by Section 34 IPC. 12. Heard, the learned counsel for the petitioners as well as the learned Public Prosecutor, perused the impugned order and also examined the charge-sheet submitted before this Court. 13. According to the complainant, allegedly there is animosity between the two families with regard to certain piece of land. He further states that even two and half years ago, there was a dispute that had arisen and a case was instituted between the parties. He further claims that at about 8.00 p.m., the petitioners had come and when his father came out from the bathroom, they threw stones and bricks at him. He clearly states that his father had suffered a single injury. Lastly, he claims that the petitioners had came to his house and had insulted he family with regard to their caste status. Similar statements have been given by the other members of the complainant's family. 14. The issue whether the brick, allegedly hurled by Vinod from a distance, could possibly have hit the deceased, or the issue whether such an injury would have led to his death, these issues could not be dealt with by the learned Judge at the time of framing of the charges. 14. The issue whether the brick, allegedly hurled by Vinod from a distance, could possibly have hit the deceased, or the issue whether such an injury would have led to his death, these issues could not be dealt with by the learned Judge at the time of framing of the charges. After all, these issues can be adjudicated only after the prosecution has submitted its complete evidence and the defence has led its evidence. Therefore, at the stage of framing of the charges, merely because the petitioners claim that the complainant had narrated a unbelievable story, such a contention cannot be accepted. At this juncture, what can be concluded is that the statement of the complainant and of other witnesses are prima facie corroborated by the "Panchnama" and the Post-Mortem Report. Both Panchnama and Post-Mortem Report clearly show the existence of a single injury on the head of the deceased. 15. According to the Post-Mortem Report, the deceased had suffered a injury, swelling of 10 cm x 8 cm on right occipital parietal region of the scalp. On dissection, there was fracture of right parietal and occipital bone vertically about 8 cm long, with inward displacement of lateral edge of fractured bone. There was lacerated wound of 6 cm x 1 cm x 2 cm deep on right parietal and occipital bone of cerebrum. There was accumulation of about 2.5 C.C. of dark colored blood in cranial brain. This injury was anti-mortem in nature. 16. According to the opinion of the medical report, the death was due to the shock suffered by the deceased due to head injury No.1. Thus, prima facie, the statement of the complainant is corroborated by the post-mortem report. Hence, obviously there is a strong, prima facie, case for offence under Section 304 IPC. 17. In the case of Vishwa Kumar Sharma vs. State of Rajasthan ( 2006(2) WLC 268 = RLW 2006(2) Raj. 1123), this Court had an occasion to deal with the distinction between taking of cognizance and framing of the charges. This Court observed as under: 16. Thus, there are differences between "taking of cognizance" and "framing of charge". Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. This Court observed as under: 16. Thus, there are differences between "taking of cognizance" and "framing of charge". Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. In the latter, the Judge examines he commission of the alleged crime by the accused. In the former, mere 'suspicion about the commission of an offence' is enough for taking of the cognizance. In the latter, "grave suspicion about the commission of the crime by the accused" should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the later, a limited sifting of the evidence is permissible. Therefore, when the phrase "prima facie evidence" is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere 'suspicion', at the stage of framing of charge it is 'grave suspicion', and at the end of trial, it is a critical analysis and a meticulous examination of the entire evidence produced by the Prosecution and the accused'. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one. 18. The judgment relied upon by the learned counsel for the petitioners to support his contention that the prosecution must prove that the offence under SC/ST Act was committed "on the ground" that the victims belonged to SC/ST community, these judgments, in Dinesh @ Buddha (supra), Kalasika Prashanta Kumar (supra) Bablu @ Abdul Akhtar (supra), deal with the conviction of the accused person. Therefore, what has been laid down by the Hon'ble Supreme Court is inapplicable at the stage of framing of the charges. Therefore, what has been laid down by the Hon'ble Supreme Court is inapplicable at the stage of framing of the charges. After all, it is for the prosecution to prove during the course of trial that, in fact, the offence under SC/ST Act was committed "on the ground that the victim belonged to a Scheduled Caste Community". It would be too early in the day to deal with the said issue while framing the charges. 19. Be that as it may, a bare perusal of the statement of the complainant clearly reveals that the petitioners were well aware of the fact that the deceased and his family members belonged to the Scheduled Caste Community. Even on an earlier occasion, allegedly, they had abused the victim and his family members and had insulted them with regard to their caste status. Even on the fateful day, they abused them with regard to their caste status. Prima facie, it seems that the offence under Section 3(2)(v) of the Act was committed on the ground that the victims, who happen to be member of Scheduled Caste, could be oppressed by the petitioners. 20. As far as the existence of common intention, a requirement of Section 34 IPC, is concerned, it is too early to disbelieve the existence of common intention. After all the Hon'ble Supreme Court has repeatedly held that the common intention can developed at the spur of the moment. Therefore, what was the common intention of the petitioners can only be adjudicated after the entire trial is complete. Thus, at the initial stage, the learned judge is certainly justified in framing the charge under Section 34 IPC considering the fact that the petitioners were less than five in number. 21. The scope and ambit of powers under Sections 227 and 228 Cr.P.C. is no longer res integra. Only recently in the case of Sajjan Kumar vs. Central Bureau of Investigation ( (2010) 9 SCC 368 = 2010(4) RLW 3435 (SC)), the Hon'ble Supreme Court has reiterated the settled principle of law with regard to the exercise of the said powers. The scope and ambit of powers under Sections 227 and 228 Cr.P.C. is no longer res integra. Only recently in the case of Sajjan Kumar vs. Central Bureau of Investigation ( (2010) 9 SCC 368 = 2010(4) RLW 3435 (SC)), the Hon'ble Supreme Court has reiterated the settled principle of law with regard to the exercise of the said powers. The Apex court, in para 21 of the report, has observed as under : On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge :- (i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The 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 etc. However, at this stage, there cannot be a roving enquiry into the pros and cons and of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 22. Applying these principles to the present case, as mentioned above, a strong case does exist against the petitioner. 23. Hence, this Court does not find any illegality or perversity in the impugned order. Thus, this petition is devoid of any merit; it is, hereby, dismissed.