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2013 DIGILAW 1454 (ALL)

MANOJ KUMAR SHARMA v. STATE OF U. P.

2013-05-17

KARUNA NAND BAJPAYEE

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JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—Learned counsel for the revisionist is present. The counsel for the respondent No. 2 does not appear. I have heard learned counsel for the revisionist and learned AGA and perused the whole record. It seems that vide order dated 27.3.2008 this revision was admitted and notice was issued for filing counter-affidavit. 2. A counter-affidavit on behalf of the State has been filed, but respondent No. 2 has not chosen to file any counter-affidavit. Since admission of this revision, the proceedings of lower Court have been kept in abeyance, in this situation the Court proceeded to decide the revision on merits after hearing the revisionists counsel as well as the counsel representing the State. 3. This revision challenges the validity of the impugned order dated 23.2.2008 passed by learned ADJ, Court No. 2, Bijnor in S.T. No. 703 of 2007 State of U.P. v. Jai Bhagwan and others, whereby the Court framed charges against all the three accused under Section 307, 323, 324, 452, 427, 386 and 506 IPC. 4. I have gone through the record and feel that the counsel for revisionist is right in his contention that so far as Section 307 IPC is concerned it is not borne out from material produced by the prosecution. There are some crucial relevant statements given by the injured first informant Smt. Rajnees Sharma and other witness namely Sanjeev Kumar, Indrapal and Sanjay Tyagi which shall be germane to adjudicate upon the point in question. From the perusal of the first informant’s statement given to the I.O. it is very clear that accused Manoj who was allegedly armed with country made pistol, never fired any shot at her. According to the statements of all other witnesses he did not use his fire arm against any body at all. It is stated that after the incident was over, this accused fired in the air without aiming any body. It was obviously an attempt to scare away the crowd and make his escape good. It also transpires from the statements that when the three accused were trying to flee away the first informant tried to hold and stop them. The first informant has stated that while she tried to hold back the accused, all the three accused started beating her with their fists and legs. It also transpires from the statements that when the three accused were trying to flee away the first informant tried to hold and stop them. The first informant has stated that while she tried to hold back the accused, all the three accused started beating her with their fists and legs. Other witnesses Sanjeev Kumar, Sudarshan, Indrapal and Sanjay Tayagi, whose statements have also been annexed in the revision, also did not allege any act of firing made on the first informant or any body else even after the resistance was offered by the first informant. 5. It is true that the first informant in her statement had stated that knives were used by the accused Bhagwan and Nakul with the intention to kill her, but the appertaining circumstances and details of the incident given by her completely rule out any such intention. It is very obvious that if any one of the accused had the intention to cause any serious injury to her, much less than causing her death, there was nothing to stop them from firing at the first informant whom they had completely over powered. The very fact that the accused did not choose to fire upon the first informant even though they had all the opportunity to do so, is not an innocuous circumstance and the same goes a long way to suggest about the nature of intention possessed by the accused. Even subsequently when the first informant tried to hold back the accused, none of the two accused, neither Bhagwan nor Nakul, made any further use of their knives. There is yet another startling fact to be noted that even though two knives and one country made pistol are said to have been carried by the accused, the lady was still beaten with legs and fists when she offered resistance! It is quite a pregnant circumstance which speaks volumes about the extenuated intentions of the accused. Such an extremely restrained and restricted use of the weapons cannot be reconciled with the claim of the prosecution that accused had the intention to kill the first informant. 6. I have also perused the injuries received by Smt. Rajnees Sharma, which are only two in number, both of them muscle deep, one on the Scapular area and another on left arm. 6. I have also perused the injuries received by Smt. Rajnees Sharma, which are only two in number, both of them muscle deep, one on the Scapular area and another on left arm. Not even an X-ray was advised by the doctor as both the injuries were simple in nature and were not on any vital part of the body. The Court is quite conscious about the position of law in this regard. Even though the number of blows, the site of the injury, the nature of weapons used, and the extent or gravity of the injury inflicted, none of them may be termed as irrelevant considerations, yet it is true that in a given case where even no injury has been caused, the offence under Section 307 IPC may still be made out. It all depends upon the totality of surrounding circumstances of the case in which the incident took place and not the nature of the injury alone. But the perusal of the statement of the first informant and of other three witness of the present case make it very clear that the offence under Section 307 IPC is not made out on the basis of allegations contained therein. 7. The lower Court seems to have completely missed the obvious implications of the statements of witnesses and seems to have been swayed away, by the statement of the first informant that the accused “assaulted her with the intention to kill”. The maximum that can be said on the basis of this statement that such was the inference drawn by the first informant about the intention of the accused. But with what intention the offence has been committed has to be inferred by this Court after taking into stock the totality of circumstances in which the offence has been committed. The ipsit-dixit of the witness regarding the inference drawn by him about the intention of the accused is often not the sure basis for the Court to base its conclusion. 8. In the last the learned AGA has attempted to justify the framing of charge under Section 307 on the ground that it is always open for the Court to frame additional charge against the accused as it does not cause any serious prejudice to him. If at the time of judgement the Court finds that offence charged has not been made out, the accused shall be acquitted. If at the time of judgement the Court finds that offence charged has not been made out, the accused shall be acquitted. Therefore, according to the submissions placed before the Court on behalf of the State, the charges under various offences should be liberally framed even if there is only faint evidence on the record to support it. The Court is not impressed by this argument as it is specious and untenable both. It shall be useful to refer to the relevant provisions of Cr.P.C. in this regard, which are as follows : 227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 9. Even if we cast a fleeting glance on the aforesaid relevant provisions it shall be manifestly clear that if there is no sufficient ground to proceed against the accused he has to be discharged by the Court. Charge shall be framed only if the Court finds ground for presuming that accused has committed the offence. 9. Even if we cast a fleeting glance on the aforesaid relevant provisions it shall be manifestly clear that if there is no sufficient ground to proceed against the accused he has to be discharged by the Court. Charge shall be framed only if the Court finds ground for presuming that accused has committed the offence. It is true that in order to see the sufficiency of material to proceed against the accused the Court shall not enter into a roving enquiry about the various pros & cons of the intricate details of the case, nor shall the Court sift and evaluate the material furnished by the prosecution to adjudge whether on the basis of the same a conviction can be validly recorded or not. The standard of evaluation of evidence while sitting in judgement on the point of guilt or innocence of the accused is necessarily different and is of a much higher standard. The Court shall not apply the same yard-stick at the stage of framing of the charges. Nevertheless it does not mean to say that act of framing of the charges on the accused ought to be taken casually by Courts or that they should blind themselves to the material placed before them and should in a slip-shod manner proceed to frame charges even when there is no adequate material to sustain the same. The Court is quite cautious about the position of law on the point that it is also not advisable to form an opinion about the ultimate reliability of material furnished by the prosecution at the time of framing of the charges. The allegations may be true or false, but allegations there must be. What is further required that there must be some such material in support of the allegations which is capable of being converted into the evidence at the proper stage of the trial. It is impossible to accede to the contention of the learned AGA that the charge should be framed even when the material in support of it is scanty or insufficient. “The ground for presuming that accused has committed an offence” must emanate from such material which is capable of proof and not the material which is hearsay or hit by any other rule of admissibility. “The ground for presuming that accused has committed an offence” must emanate from such material which is capable of proof and not the material which is hearsay or hit by any other rule of admissibility. There cannot be any ground for presuming that accused has committed an offence in the absence of sufficient admissible material collected by the prosecution agency in support of the charge. 10. If the charge under Section 307 is framed it entails serious implications. The forum of trial of the case, the extent and gravity of punishment, all radically change. The accused may be deported for his whole life. Obviously such an exercise cannot be casually undertaken and the charge cannot be framed even if there is no corresponding material to support the same. In the present case what has been stated by the witnesses is repugnant to any kind of murderous intention of the accused. All the material taken together does not furnish grounds to nurture even a strong suspicion that the accused could have had any intention to kill. 11. In view of the aforesaid discussions the Court finds that there is no adequate material on record which may furnish sufficient ground to proceed against the accused under Section 307 IPC and therefore to that extent this revision succeeds and stands allowed. All other sections are borne out on the basis of material collected by the investigating officer. The order framing the charges under another sections cannot be faulted with. In the light of aforesaid observations, the lower Court is directed to proceed further according to law. The interim order, staying the proceedings, stands vacated. Let the copy of this order be sent to the lower Court forthwith. —————