Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 875 (HP)

State of H. P. v. Narottam Singh

2016-05-20

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The State of Himachal Pradesh stands aggrieved by the rendition of the learned Addl. Sessions Judge (1), Kangra at Dharamashala, Himachal Pradesh, Circuit Court at Nurpur whereunder on committal to him by the Committal Magistrate of the accused/respondents for theirs committing offences exclusive triable by the Court of Sessions Judge, the learned Addl. Sessions Judge on an analysis of the material placed before him by the prosecution concluded of the offences constituted by the prosecution against the accused not falling within the ambit of Section 307 of the Indian Penal Code rather theirs falling within the ambit of Section 324 of the IPC, hence, with the latter offence standing exclusively triable by the learned Magistrate, he remanded the case to the committal Court for trial of the accused by it. 2. The learned Additional Advocate General has with pain staking efforts contended on the strength of allegations constituted in the FIR recorded in the Police Station concerned with a portrayal therein of the accused wielding a 'Kripan' with user whereof he attempted to strike blows at the victim, blows whereof stood thwarted by the victim twice by putting his hands against the “kirpan' act whereof his to baulk its striking him sequelled his sustaining injuries on his right thumb whereupon the accused repeated his concert to strike a blow of 'kripan' at him which successive blow of 'Kripan' also stood thwarted by the victim projecting his hand sequelling his sustaining injuries on his index finger. The aforesaid echoing in the FIR by the victim of the genesis of the occurrence per se prima facie at this stage stands corroborated by the MLC of the victim prepared in quick spontaneity to the occurrence by the doctor concerned who in the apposite MLC has reflected of the victim sustaining injuries on his right thumb besides on his index finger. On anvill whereof, the learned Additional Advocate General contended of satisfaction standing begotten qua the ingredients of Section 307 of the IPC of the accused endangering the life of the victim constituted by his wielding a “Kripan' qua user whereof he struck two abortive blows on the person of the victim of hence the learned Additional Sessions Judge committing a gross error in concluding of the offences constituted against the accused respondent rather falling within the ambit of Section 324 of the IPC. 3. 3. The learned counsel appearing for the accused has contended with vigour on the strength of a decision of the Hon'ble Apex Court reported in Sajjan Kumar versus Central Bureau of Investigation, 2010(9) SCC 368 , the relevant paragraph whereof extracted hereinafter, to contend of the sifting of evidence besides material by the learned Additonal Sessions Judge not suffering from any gross frailty nor his order impugned before this Court at the instance of the State of Himachal Pradesh stands ingrained with any vice of any legal impropriety, as the nature of the injuries ultimately suffered by the victim were aptly taken into consideration by the learned Additional Sessions Judge, while concluding of the offences constituted against the accused not falling within the ambit of Section 307 of the IPC rather hence rendering the penal misdemeanors, if any, committed by the accused/respondents to fall within the ambit of Section 324 of the IPC. He also contended thereupon of the learned Additional Sessions Judge in remanding the matter to the committal Magistrate for his proceeding to record charges against the accused for theirs committing offence punishable under Section 324 of the IPC is tenable. “17. Exercise of jurisdiction under Sections 227 and 228 of Criminal Procedure Code. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (I) The judge while considering the question of framing the charges under Section 227 of the Criminal Procedure 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. The test to determine prima facie case would depend upon the facts of each case. (ii) Whether 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 inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, at this stage, there cannot be a roving inquiry into the pros and cons 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. (vi) At the 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 discloses 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 give 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.” 4. Having considered the rival submissions addressed before this Court by the learned Additional Advocate General as also by the learned counsel appearing for the accused/respondents herein, this Court is of the considered view that the submissions addressed before this Court by the learned Additional Advocate General ought to merit theirs standing accepted by this Court. There is a palpable display in the FIR lodged qua the occurrence by the victim, of the accused at the relevant time wielding a kripan. There is a palpable display in the FIR lodged qua the occurrence by the victim, of the accused at the relevant time wielding a kripan. With its user as aforestated he struck successive abortive blows on the victim, yet the factum of the victim thwarting the blows of kripan successively struck at him by the accused, begot his hence sustaining injuries initially on his right thumb and later on his right index finger when stands as referred aforestated corroborated by the apposite MLC prepared by the doctor concerned, who subjected the victim to medical examination in quick spontaneity to the occurrence, is of predominant significance. Moreover, since the recovery of the 'Kripan' wielded by the accused stands recovered under a recovery memo, as a corollary, at this stage it would be in-sagacious to accept the submission addressed before this Court by the learned counsel appearing for the accused of the factum of the injuries sustained by the victim being a preeminent factor as stood tenably borne in mind by the learned Additional Sessions Judge for concluding of the penal misdemeanors committed by the accused standing constituted within the ambit of Section 324 of the IPC and theirs not falling within the ambit of Section 307 of the IPC. The reason for discountenancing the submission of the learned counsel for the accused is of his having slighted the effect besides the import of the provisions of Section 307 of the IPC which mandate the preeminent factor relevant for concluding whether the offence as alleged to be committed by the accused stands constituted within its ambit not being the nature of the injuries ultimately sustained by the victim in sequel to the assault perpetrated on her/his person by the accused rather the stark factor for concluding whether the offence stands constituted within its ambit is of the endangerment emanating or the imminent threat accruing to the life of the victim spurring from the nature of the weapon wielded by the accused dehors the fact that even on its user the victim ultimately sustains simple injuries . In aftermath, at this stage prima facie material when is connotative of the accused wielding a 'kripan' which per se meted on its standing used by the accused an imminent threat to the life of the victim hence aroused endangerment to his life besides when with its user he attempted to inflict fatal blows on the person of the victim which stood thwarted by the latter in the manner aforestated, naturally, the learned Additional Sessions Judge while remanding the case to the committal Magistrate has committed a grave legal fallacy while discarding the factum of the accused at the relevant time wielding a 'Kripan' and its user begetting endangerment to the life of the victim rather his contrarily and inaptly meteing reverence to the injuries meted to the victim by the accused while striking him with blows of kripan has gone off the mark in capturing the subtle nuance and spirit of the provisions of Section 307, IPC, ingredients whereof for reasons aforestated stood satiated. In aftermath, this Court is of the view that the learned Additional Sessions Judge, has committed a legal impropriety by remanding the matter to the Committal Magistrate for framing a charge against the accused for theirs committing an offence punishable under Section 324 of the IPC. 5. The learned counsel appearing for the accused/respondents has with much vigour on the anvil of the judgement of the Hon'ble Apex Court, the relevant paragraphs whereof stands extracted hereinabove, contended of the learned Additional Sessions Judge having rendered an apt order. However, with the relevant paragraph which stand extracted hereinabove foisting a jurisdiction upon the Court concerned to weigh and sift the evidence, nonetheless, when the manner of weighing or sifting besides appraising the probative worth of the material on record by the learned Additional Sessions Judge suffers from a perversity and absurdity, the contention of the learned counsel for the accused would not stand countenanced by this Court. 6. For the foregoing reasons, the instant petition is allowed and the order impugned before this Court is quashed and set aside. However, it is made clear that the findings rendered by this Court hereinabove shall have no bearing on the merits of the case. All pending applications stand disposed of.