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2012 DIGILAW 467 (HP)

Chuhru Ram v. State of Himachal Pradesh

2012-08-29

Kuldip Singh

body2012
JUDGMENT Kuldip Singh, J. The order dated 28.4.2012 of learned Addl. Sessions Judge, (Fast Track Court), Chamba, H.P. in Sessions trial No.12/12/2011 framing charge under Section 307 read with Section 34 IPC against petitioners has been assailed in the revision. 2. The further facts are that on the statement under Section 154 Cr.P.C. of Kartar Singh initially a case under Sections 279, 338 IPC was registered against the petitioners on the basis of which FIR dated 17.3.2010 was recorded. Kartar Singh was got medically examined. 3. The supplementary statement of Kartar Singh was recorded and the case was converted into Section 307 IPC. The prosecution case is that on 17.3.2010 police received secret information that Alto car and Mohindra Pick-Up were coming from Chamba side carrying some articles. A naka was put up at Sukdain Bain. Mohindra Pick-Up No.HP-73-0625 came in high speed. It was signaled to stop. instead of stopping the vehicle the accused negligently and rashly negotiated a turn in such a manner that the front tyre rammed the right leg, left shoulder and neck of the complainant who fell down. The accused sped away from the place in high speed. The complainant was medically examined. The case was registered, on completion of investigation challan was presented. 4. The trial Court instead of framing of charge under Section 279 read with Section 337 IPC, framed a charge under Section 307 IPC vide order dated 28.4.2012 which has been assailed in the revision. It has been stated that Kartar Singh instead of getting himself examined either at Banikhet or Dhalhousie or Chamba hospitals procured a forged certificate from Trauma and Spine Centre Pathankot which is a private hospital. The trial Court has erred in framing charge under Section 307 IPC. According to Investigating Officer the offence under Section 279 read with Section 337 IPC was made out but learned trial Court of his own framed a charge under Section 307 IPC without any material in support of framing of charge under Section 307 IPC 5. Heard and perused the record. The statement of H.C. Kartar Singh was recorded under Section 154 Cr.P.C. He has stated that on 16.3.2010 he was at Banikhet alongwith other police officials. At about 3.30.a.m on 17.3.2010, a secret information was received that one Alto car and one Mohindra Pick-Up coming from Chamba side carrying some contraband. Heard and perused the record. The statement of H.C. Kartar Singh was recorded under Section 154 Cr.P.C. He has stated that on 16.3.2010 he was at Banikhet alongwith other police officials. At about 3.30.a.m on 17.3.2010, a secret information was received that one Alto car and one Mohindra Pick-Up coming from Chamba side carrying some contraband. At about 5.15 a.m. a naka was put up at Sukdain Bain, a Pick Up No.HP-73-0625 came in high speed which was signaled to stop. 6. The driver rashly and negligently turned the vehicle in such a way that the driver side and front tyre hit the complainant on his right leg. He sustained injuries on left shoulder and neck also and fell down and became unconscious. The driver of Pick-Up No.HP-73-0625 sped away the vehicle. Alto Car No.HP-44-1851 was also following Pick-Up No.HP-73-0625. The driver of Alto car reversed the vehicle and sped away. The complainant stated that he was not aware of the name of the driver of Pick-Up No.HP-73-0625 but he can recognize him. The driver of Pick-Up No.HP-73-0625 in high speed rashly and negligently while turning the vehicle injured the complainant. 7. In supplementary statement of Kartar Singh he has stated that he singled the Pick-Up No.HP-73-0625 to stop. The driver of Pick- Up at once took turn in high speed and tried to run over the complainant, constable Anuj Kumar pulled the complainant but despite that Pick-Up hit the complainant causing injuries in the right leg, left shoulder and neck. The complainant fell down, both the vehicles returned towards Chamba and sped away. The complainant became unconscious. The driver of Pick-Up with intention to kill the complainant tried to run over under the vehicle. He attempted to kill the complainant. 8. Kartar Singh complainant made another supplementary statement and has stated that Pick-Up No.HP-73-0625 was being driven by Yash Pal on 17.3.2010. Chuhru Ram was sitting with him. He identified both of them. Yash Pal in high speed reversed the vehicle took turn backwards and attempted to kill the complainant. The other man Chuhru Ram was sitting in the vehicle. They sped away in the vehicle. 9. Constable Sanjay Kumar in his statement has stated that Pick-UP was driven with the intention to run over HC Kartar Singh. He identified both of them. Yash Pal in high speed reversed the vehicle took turn backwards and attempted to kill the complainant. The other man Chuhru Ram was sitting in the vehicle. They sped away in the vehicle. 9. Constable Sanjay Kumar in his statement has stated that Pick-UP was driven with the intention to run over HC Kartar Singh. Constable Sanjay Kumar in his supplementary statement has stated that Yash Pal was driving Pick-Up and Chuhru Ram was sitting with him. Yash Pal tried to run over HC Kartar Singh. Chuhru Ram and Yash Pal sped away in the vehicle. Constable Anuj Kumar and Constable Mohd. Aslam made similar statements. 10. In the MLC of Kartar Singh some injuries were found, injuries No.1,2 were found grievous. It has also been stated that as per opinion of the Ortho Surgeon some fractures were found as observed in the MLC. The requirement of Section 307 IPC is, if a person commits 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. The allegations against Yash Pal petitioner No.2 are that he was driving Mahindra Pick-Up No.HP-73-0625 at the relevant time. He tried to run over complainant Kartar Singh, constable Anuj Kumar pulled the complainant and saved him otherwise he would have been run over by petitioner No.2. On the basis of material on record, it cannot be said that there are no allegations for commission of offence under Section 307 IPC against petitioner No.2 Yash Pal. 11. The charge against petitioner No.1 Chuhru Ram has been framed under Section 307 read with Section 34 IPC. The vehicle No.HP-73-0625 at the relevant time was being driven by petitioner No.2 Yash Pal. Some witnesses have stated that petitioner No.1 was sitting at the relevant time in the vehicle but no witness has stated any over tact of petitioner No.1 from which it can be inferred that he had common intention with petitioner No.2 to run over complainant by the vehicle or petitioner No.1 independently did something to run over complainant. The prosecution witnesses in their statements are absolutely silent about the part played by petitioner No.1 for causing injuries to complainant. 12. The prosecution witnesses in their statements are absolutely silent about the part played by petitioner No.1 for causing injuries to complainant. 12. Simply a person sitting in the vehicle without anything more cannot be said that he shared common intention for driving the vehicle in a particular manner for committing specific offence. No doubt, the common intention can develop at the spur of the moment but it depends upon the facts and circumstances of the case. There is not even a remote allegation or other circumstances to infer from the material on record that petitioner No.1 shared common intention with petitioner No.2 to commit an offence under Section 307 IPC for running over complainant when he signaled petitioner No.2 to stop the vehicle. 13. The Supreme Court in Union of India v. Prafulla Kumar Samal and another AIR 1979 SC 366 has held as follows:- “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 case 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”. 14. In State of M.P. v. Mohan Lal Soni (2000) 6 SCC 338 , it has been held if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. On the contrary, 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 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. 15. In the present case prima facie, even if, material produced by the prosecution is taken at its face value and read in that case also, it cannot be said that offence under Section 307 IPC is made out against petitioner No.1. There is no sufficient material on record to frame charge against the petitioner No.1. The learned Addl. Sessions Judge (Fast Track Court) has erred in framing charge against the petitioner No.1 under Section 307 IPC read with Section 34 IPC. The charge under Section 307 read with section 34 IPC against petitioner No.1 is not sustainable, however, no fault can be found for framing charge against petitioner No.2 under Section 307 IPC. The impugned order framing charge under Section 307 read with Section 34 IPC against petitioner No.1 is thus liable to be set aside. 16. In view of above, revision is partly allowed. The order dated 28.4.2012 passed by learned Addl. Sessions Judge (Fast Track Court), Chamba in Sessions Trial No. 12/12/2011 framing charge against petitioner No.1 Chuhru Ram for offence punishable under Section 307 read with Section 34 IPC is set aside, however, charge against petitioner No.2 under Section 307 IPC is upheld. The record be sent back immediately so as to reach before the date already fixed by the trial Court below.