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2023 DIGILAW 1851 (RAJ)

Durga Shanker v. State of Rajasthan

2023-09-29

ASHOK KUMAR JAIN

body2023
JUDGMENT : Mr. Ashok Kumar Jain, J. - Instant Revision Petition is preferred aggrieved from order dated 20.7.2023 in Sessions case No. 57/2022 passed by learned Additional Sessions Judge No. 1, Kekri, District Ajmer, Whereby charge under Sections 341, 323, 324 & 304/34 IPC were framed against the petitioners. 2. Learned Counsel for the petitioners while relying upon judgment of this Court in cases of Brahmanand & Ors. v. The State of Rajasthan, AIR 1970 (Raj.) 220 , Shambhudayal & Ors. v. The State of Rajasthan & Anr., in S.B. Criminal Revision Petition No. 1035/2021 on 30.9.2022, Magha Ram Meghwal & Ors. v. State of Rajasthan, 2017 (3) Cri.LR (Raj) 1352 and Mohammad Salman @ Sukz @ Kabootar v. State of Rajasthan & Anr. In S.B. Criminal Appeal No. 408/2023 on 08.05.2023 submitted that FIR was registered on 24.6.2022, which indicate: that all of a sudden a fight erupted between two neighbors resulting in injuries on complainant-Bhag Chand. He further submitted that injured was medical examined on 24.6.2022, wherein injury No. 1 was allegedly caused by sharp weapon but on 30.6.2022, medical jurist specifically opined that this injurys simple in nature and not dangerous to life. He further submitted that even fro-the statement of witnesses, no charge under Section 307 IPC was established, He further referred the material on record to submit that learned Trial Court acted a Post Office and framed the charge without application of mind. 3. Aforesaid contentions were opposed by learned Public Prosecutor and learned Counsel for respondent/complainant. 4. Learned Counsel for the respondent/complainant submitted that after investigation, Police has forwarded charge-sheet under Section 307 IPC and if charge is not proved then petitioners may be acquitted from aforesaid charge. 5. Heard learned Counsel for the parties, learned Public Prosecutor and also perused the material available on record and the judgments submitted by learned Counsel for the petitioners. 6. A perusal of injury report of injured Bhag Chand indicated that injury No. 1 was caused on frontal region to vertex and sized about 12cm X 3cm X Bone deep and same was caused by sharp weapon but since it was not a fracture so termed as simple. Further, Medical Officer opined that the same was not dangerous to life. 7. Further, Medical Officer opined that the same was not dangerous to life. 7. The matter has arisen out of oral statement (Parcha Bayan) of Bhag Chand recorded at 9.15 AM on 24.6.2022, wherein, he alleged that in his agricultural eld the petitioners were harvesting through tractor and when stopped on the basis of stay, Durga Shanker and Sajjan assaulted with stick and axe. Thereafter, Rajendra also joined and he also indulged in assault. In this Parcha Baya, no intention was alleged to attract Section 307 IPC. Bhag Chand was examined under Section 161 of Cr.P.C. on 25.6.2022, therein he stated that all the three petitioners with common intention to kill him assaulted with stick and axe resulting in grievous injuries and he was rescued by Anil and Guman. Guman was also examined under Section 161 Cr.P.C., wherein, he stated that injured was saving a sword and he was assaulted by three petitioners. Anil Bairwa was also examined under Section 161 Cr.P.C., therein, he also supported the version of Guman but he stated that firstly, Bhag Chadn assaulted Sajjan and then this witness Anil Kumar picked up pipe but thereafter, the three petitioners assaulted injured-Bhag Chand. 8. Record further revealed that a cross FIR was also registered by petitioner-Durga Shanker against Bhag Chand and same is also a part of the record. 9. We have gone through the material available on record and also the order passed by learned Trial Court. 10. The only ground on which charge under Section 307 IPC was framed was that injury No. 1 is caused by sharp object on head of injured. No other grounds were mentioned by the Trial Court. Learned Trial Court also referred FIR and statement under Section 161 Cr.P.C. In FIR, nowhere it was mentioned that the petitioners have common intention to kill injured-Bhag Chand. The opinion of Medical Officer was no considered by learned Trial Court. 11. At the stage of charge is concerned, the learned Trial Court is required to consider entire material on record with an object that there is sufficient ground for proceeding against the accused on the basis of material placed on record. It clearly means that the Trial Court is obliged to see that there are sufficient grounds value and from the documents produced before it whether ex-facie discloses that there are suspicious circumstances against the accused so as to frame a charge against him. It clearly means that the Trial Court is obliged to see that there are sufficient grounds value and from the documents produced before it whether ex-facie discloses that there are suspicious circumstances against the accused so as to frame a charge against him. While considering the material on record, it is not necessary for the Court to enter into pros and cons of the matter or into weighing and balancing of evidence and probably these, which is really the function of the Court after the trial begins. 12. Hon'ble Supreme Court in the cases of P.Vijayan v. State of Kerala, (2010) 2 SCC 398 and State by Karnataka Lokayukta Police Station, Bengluru v. M.R. Hiremat, (2019) 7 SCC 515 , laid down that at the stage of 227 and 228 Cr.P.C., the Court must proceed on the assumption that the material which is brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, discloses the existence of key ingredients necessary to constitute the offence. At the stage of charge, probative value of the material has to be gone into and the Court is not expected to go deep into the matter an hold that the material would not warrant a conviction. 13. Thus, the learned Trial Court was obliged to consider the material available on record an on the basis of material on record, if a particular offences made out then it will proceed to frame charge otherwise not. In the instant casa learned Trial Court has referred FIR and statement of injured under Section 161 Cr.P.C. which we have also considered but in FIR, nowhere it was mentioned that petitioners with common intention assaulted injured. Even the statements on record were also considered by us. Similarly, the injury report and opinion r Medical Officer is also available on record but it appears that learned Trial Court just avoided to consider aforesaid statements and medical reports. 14. A Co-ordinate Bench of this Court in case of Brahmanand & Ors. v. The State (supra) laid down that on the basis of material on record, conviction under-Section 307 IPC could not be sustained but this principle is not applicable now but as regard to principle of law laid down in Magha Ram Meghwal & Ors. 14. A Co-ordinate Bench of this Court in case of Brahmanand & Ors. v. The State (supra) laid down that on the basis of material on record, conviction under-Section 307 IPC could not be sustained but this principle is not applicable now but as regard to principle of law laid down in Magha Ram Meghwal & Ors. v. State (supra) and Mohammad Salman @ Suka @ Kabootar v. State (supra) concerned, learned Trial Court is duty bound to consider material or evidence on record while framing charge under Section 307 IPC in instant matter. There has to be evidence or material to justify charge of attempt to murder. In any criminal trial, charge is very crucial stage and on the basis of material forwarded to to the learned Trial Court, it is duty of the Court to apply its own mind before framing the charge. 15. In sessions cases, provisions under Sections 227 and 228 Cr.P.C. were inserted just to avoid unnecessary dragging of people for a long criminal trial and same is required to be considered by learned Trial Court. The analogy to insert specific chapter on charge further justify the fact that these provisions were inserted only to give due importance to the stage of charge, therefore, framing of charge is not an empty formality. 16. Here in this case it appears that learned Trial Court not only failed to consider the material on record but with stereotype language it avoided to consider the grounds raised by the petitioners herein. Therefore, the order passed by learned Trial Court is perverse and illegal and not according to principle of law settled to consider the material at the state of charge. 17. In view of aforesaid discussions, the instant provision petition is allowed and the order dated 20.7.2023 is hereby set aside. The matter is remanded back to learned Trial Court to rehear the parties and pass appropriate order within four weeks of receipt of copy of this order. Miscellaneous application, if any, stands disposed.