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2017 DIGILAW 611 (JK)

Ram Raj v. Ravinder Singh

2017-08-11

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner-Ram Raj seeks quashing of order dated 22.03.2017 passed by learned Principal Sessions Judge Bhaderwah in case File No.02/Sessions titled State Vs. Ravinder Singh and ors., whereby accused- respondents stand discharged of offence under Section 307 and have been charged of offences under Section 325/336/452/34 RPC. 2. Facts giving rise to the instant petition are that on 12.09.2016 at about 6:30 am, the accused armed with an iron rod and a stick with an intention to cause hurt pelted stones towards the house of the complainant/petitioner and then trespassed into the house and attacked the complainant and his wife Indra Devi with rod, stick, kicks and blows on head and other parts of the body causing serious injuries. On raising hue and cry some members came to the rescue of the injured, who were shifted to PHC Bhala from where they were referred to District Hospital Doda. On the strength of written report lodged by the complainant, an FIR No. 104 of 2016 for the commission of offences punishable under sections 307/452/34 RPC was registered in Police Station Bhadarwah. On conclusion of the investigation, the police filed the charge sheet against the accused for the commission of offences under 307/452/336/34 RPC. The final report was committed for trial by learned Special Mobile Magistrate Bhadarwah to Court of Sessions Judge for disposal under law. 3. It is averred in the petition that the learned Sessions Judge Bhadarwah while framing charges by virtue of order impugned has held that prima facie offence under section 307 RPC is not disclosed against the accused and the offences disclosed against the accused are punishable under sections 325/336/452/34 RPC which are not exclusively triable by the Court of Sessions. As such transferred the case to the Court of learned Special Mobile Magistrate Bhadarwah for trial of warrant cases instituted on police report. 4. Learned counsel for the petitioner seeks quashing of the order impugned dated 22.03.2017 by virtue of which the accused have been charged for the offences under section 325/336/452/34 RPC instead of Section 307 RPC, inter alia, on the following grounds:- (a) That the order impugned is against the facts and law laid down by the Hon’ble Supreme Court from time to time and it is not sustainable in the eye of law. (b) That the learned Sessions Court on the one hand has admitted the fact that the accused were armed with an iron rod and a stick and attacked the complainant and his wife with iron rod, stick and kicks and blows on head. But on the other hand the learned Sessions Court has discharged the accused u/s 307 RPC by holding that the nature of the injuries inflicted and the weapons used to cause those injuries would show that the accused did not have the intention to murder the injured. It is submitted that hitting a person with iron rod on head is nothing but a clear intention to murder. (c) That the learned Sessions Court while passing the order impugned has held that the counsel for the complainant in order to bring home charge under section 307 PRC, has relied upon the Apex Court’s judgment reported in AIR 2014 SC 2740 and 2014 (2) SCC (Cri.) 584 and vehemently argued that it is not necessary that the injury must have been caused on the vital part of the body. What is to be seen is that the injuries that were intended and not that were caused. The Court in order impugned very strangely had held that the Court is in agreement with the learned Counsel for the complainant but cannot have a straight jacket formula for the purpose of framing of charges. On this ground alone the order impugned deserves dismissal. (d) That section 307 IPC provides for the imprisonment for life if the act causes “hurt”. It does not require that the hurt should be grievous or of any particular degree. That is what has been held by the Hon’ble Apex Court. Further it is only a prima facie view to decide as to whether the FIR and the statements of witnesses contain averments so as to chargesheet the accused under section 307 IPC and ultimately it is for the Trial Court to decide whether the offence under section 307 IPC has made during trial which ought to be ultimately decided on the basis of evidence tendered before the Criminal Court. Further when several persons attack unarmed person with deadly weapons, it is reasonable to presume that they had knowledge or intention that such an attack would result in death. Further when several persons attack unarmed person with deadly weapons, it is reasonable to presume that they had knowledge or intention that such an attack would result in death. In the present case, the contents of the FIR as well as statement of the complainant and witness clearly depicts that the accused three in number were armed with deadly weapons like iron rod and stick and attacked the injured on head, causing lacerated wound over right cheek and forehead just above right eyebrow, tenderness and swelling over right angle of mandible, conjuctival hemorrhage etc. As such there is a prima facie case to proceed against the accused under section 307 RPC. The question as to whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case which has to be attributed on evidence by Trial Court. Above facts would clearly indicate that the ingredients of section 307 IPC are made out. On this ground alone the order impugned needs to be set aside. (e) That there was a fracture of rib of the complainant and this fact has been evidenced in the discharge card of the complainant/victim as issued by the hospital authorities. The fracture of rib is fatal in nature for which the accused needs to be tried u/s 307 RPC, as such the order impugned needs to be quashed in the interest of justice. (f) That at the time of framing of charge, the Court has to prima facie come to the opinion whether there is sufficient material to entertain grave and serious suspicious regarding complicity of the accused in the alleged offence. At that stage, the question of determination of guilt or culpability is not required to be examined. 5. Per contra, learned counsel for the respondents vehemently argued that the order impugned is a well reasoned order based on appreciation of facts and circumstances of the case and no other view is possible that the one already taken by the learned trial Court. The present petition is without merit and is required to be dismissed out-rightly. 6. I have heard learned counsel for the parties and gone through the order impugned minutely. 7. The present petition is without merit and is required to be dismissed out-rightly. 6. I have heard learned counsel for the parties and gone through the order impugned minutely. 7. In order to appreciate the contentions of the parties, it may be noticed that Section 268 and 269 of Cr.P.C. relate to the trial of cases before the Court of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote Sections 268 and 269 of Cr.P.C. as under: - “268. 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 no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing. 269. 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 Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on 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.” 8. (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.” 8. A conjoint reading of section 268 and 269 of Cr.P.C. would reveals that upon consideration of the record of the case and documents submitted, if Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and hearing, Judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused or transfer the case to CJM or Judicial Magistrate if he is of the opinion that offence made out against the accused is triable by a Magistrate. 9. For appreciating the above contentions, provisions of Section 307 RPC are required to be reproduced as under:- “307. Whoever does 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.” 10. It is noticed from the perusal of Section 307 RPC that important thing to be borne in mind in determining the question whether offence under section 307 is made out or not, is the intention or knowledge, besides intention or knowledge of the accused must be such as necessary to constitute murder .What I mean to say that Section 307 of RPC is of two parts .The part -1 envisages such intention or knowledge in such circumstances the act done by an offender that would cause death and he would be guilty of murder .2nd part relates to causing of hurt by such act that is having such intention or knowledge and under such circumstances that by such act death cannot be caused. Substance of offence is intention or knowledge that acts done as such, death would be caused and offender will be guilty of murder and actually death is not caused. Substance of offence is intention or knowledge that acts done as such, death would be caused and offender will be guilty of murder and actually death is not caused. This would amount to an offence of attempt to murder. 11 For elucidating the question as to whether there was intention or knowledge that act committed by accused would have caused death and they would be guilty of murder. From the perusal of order of framing of charge, it is evident that allegations against the accused-respondents is that on 12.09. 2016 at about 6.30 AM, the accused Ravinder Singh, Sanjay Kumar both sons of Hans Raj and Preeta Devi, their mother, armed with iron rod and stick with intention to cause hurt started pelting stones toward the house of Ram Raj at village Tensana and then trespassed into the house; attacked the complainant Ram Raj and his wife Indra Devi. They inflicted various injuries, on raising alarm VDC members came to rescue, thereafter injured were shifted to PHC Bhalla. Accordingly police registered FIR and concluded the investigation and produced challan u/s 307/452/34 RPC. 12. So from above facts, it is evident that two persons Ram Raj and Indra Devi have been injured. As per medical report, mention of which, is in the order, all the injuries sustained by them are simple in nature except injury no.6 ‘Tenderness and swelling over left lower chest and back’ sustained by Ram Raj injured is grievous in nature. As per Doctor, this injury has been caused by blunt force by wooden stick/rod as mentioned in order of court below. The weapon of offence is thus wooden rod/stick. From perusal of FIR, it further reveals that there was no premeditation or preplanned for commission of crime by accused. 13. In view of what has been discussed above, I don’t find any infirmity of law and facts in the order of Court below while framing the charge u/s 325 RPC instead of 307 RPC. This petition is, thus, dismissed.