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HIGH COURT OF DELHI
JUDGMENT
THE STATE (GNCT OF DELHI) .....Petitioner
For the Petitioner : Mr. Sunil Kumar Gautam, APP for the
State.
SI Hanspreet Singh, PS Timarpur.
For the Respondents : Mr. M.K. Duggal, Adv. through V.C. through V.C. for R-1.
Mr. Archit Upadhaya, Adv. DHCLSC & Mr. R. Raj Mishra, Adv along with R-2 in person.
1. The present petition is filed challenging the order dated 17.11.2022 (hereinafter ‘the impugned order’), passed by the learned Trial Court, in Sessions Case No. 575/2021 arising out of FIR NO. 198/2019, registered at Police Station Timarpur.
2. By the impugned order, the learned Trial Court has discharged the respondents of the offence under Section 308 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’). The learned Trial Court found that there was sufficient material on record to presume that both the accused persons had committed the offences punishable under Sections 323/325/34 of the IPC. Considering that the offences are not exclusively triable by the Sessions Court, the learned Trial Court had directed for the file to be put up for assigning of the trial to the concerned learned Chief Metropolitan Magistrate (‘CMM’).
3. The brief facts of the present case are as follows:
3.1. On 21.10.2019, at around 12:30AM, the complainant’s younger brother Manoj, parked his car outside the gate due to which the same was not closing. It is alleged that the complainant’s elder brother Satish Kumar asked Manoj to move his car so that the gate could be closed. At that point, Respondent No.2 (wife of Manoj) came to the spot. Respondent No.2 threatened that the car will not move and called her nephew, that is, Respondent No.1, to the spot as well. Respondent No.1 came with 2-3 unknown boys and started beating Satish. It is alleged that Respondent No.1 kicked and punched Satish, due to which he fell down, and some other boy hit the head of Satish with a brick. The complainant’s sister in law Poonam, his son Priyam and his other brother Ved intervened and tried to pacify the situation. Thereafter, Respondent No.2 told Respondent No.1 to not spare the said persons and Respondent No.1 beat them with sticks, kicks and punches along with the unidentified assailants.
3.2. The victims sustained injuries during the incident which led to the registration of the FIR No. 198/2019 on 24.10.2019 for the offences under Sections 308/323/506/34 of the IPC.
3.3. During investigation, the complainant, his younger brother Manoj, his elder brother Satish and his sister-in-law Poonam were medically examined. It was opined that the victim Satish sustained grievous injuries while the rest of the victims sustained simple injuries.
3.4. Chargesheet was filed against Respondent No.1 for the offences under Sections 308/323/325/506/34 of the IPC. Respondent No.2 was charge sheeted for the offences under Sections 308/109/34 of the IPC
4. The learned Trial Court, by the impugned order, remanded the matter to the learned CMM after finding that there was only sufficient material for proceeding against the accused persons for the offences under Sections 323/325/34 of the IPC. It was observed that the entire incident has been captured on CCTV, where both the parties can be seen engaged in a physical altercation. It was observed that it appeared from the CCTV footage that the injured Satish was the aggressor in the incident. It was also noted that the members of the accused party had also sustained injuries. The learned Trial Court also took into account the nature of the injuries suffered by the victims. The relevant portion of the impugned order is reproduced hereunder:
10. Further, the injuries of the complainant and other injured persons except Satish are opined to be simple in nature and are not sufficient in ordinary course of nature to cause their death. The injured Satish is seen in the said CCTV footage and appears to be an aggressor, who entered the arena/fight armed with a wooden plank and started assaulting the accused persons and their associates with it. Till then, cross fight between the parties was going on with the bare hands and he introduced a weapon to outweigh the opponents. The brick was hurled towards him to neutralize his said undue advantage. In respect of mens rea of knowledge as contained in Section 299 IPC, in the given facts and circumstances, by no stretch of reasonable imagination, it can be attributed to the accused persons that they had knowledge that the injuries sustained by the injured persons were such that they are likely to cause death. Thus, the alleged act of the accused persons does not fall within the purview of attempt to culpable homicide not amounting to murder. Hence, there is no grave suspicion or reason to presume that the accused persons attempted to commit culpable homicide not amounting to murder of the complainant and the other injured persons. Accordingly, both the accused persons are discharged for the offence punishable u/s. 308/34 IPC.”
5. The learned Additional Public Prosecutor for the State submitted that the learned Trial Court wrongly concluded that a prima facie case under Section 308 of the IPC is not made out against the accused persons without appreciating the material on record.
6. He submitted that the learned Trial Court failed to appreciate the statements of prosecution witnesses who have stated that the unidentified assailant had hit the injured Satish with a brick at the instance of Respondent No.1. He submitted that the same shows the intent of the accused persons to cause death of the injured Satish.
7. He submitted that, the merits of the allegations against the respondents cannot be determined at the stage of framing of charges and any such determination can only take place at the completion of the trial.
8. He submitted that the learned Trial Court erroneously concluded that the injuries were caused in the heat of the moment. He further submitted that the brick was hit with huge force due to which the victim Satish suffered grievous injuries.
9. The learned counsel for the respondents submitted that the learned Trial Court has passed a well-reasoned order after considering the material on record and there is no infirmity in the same which would warrant any interference.
10. They submitted that the learned Trial Court had rightly discharged the accused persons of the offence under Section 308 of the IPC and there was no pre-meditation between the accused persons.
11. They submitted that the incident was captured on CCTV camera and one of the unidentified assailants hurled a brick towards the victim Satish to dissuade him from attacking the accused persons who were bare handed.
12. They submitted that the victim Satish was clearly the aggressor and the remaining victims suffered simple injuries in the altercation.
ANALYSIS
13. At the outset, it is relevant to note that the scope of interference by High Courts while exercising revisional jurisdiction in a challenge to order framing charge is well settled. The power ought to be exercised sparingly, in the interest of justice, so as to not impede the trial unnecessarily. It is not open to the Court to misconstrue the revisional proceedings as an appeal and reappreciate the evidence unless any glaring perversity is brought to its notice. In the case of Amit Kapoor v. Ramesh Chander: (2012) 9 SCC 460, the Hon’ble Supreme Court, adverting to a catena of precedents, has noted that the test is whether the allegations, as made from the record of the case, taken at their highest, constitute the offence or not. The Hon’ble Supreme Court also noted that the Court may interfere if the allegations are patently absurd and the basic ingredients of the offence, for which the charge is framed, are not made out.
14. Since the petitioner State has assailed the impugned order whereby the respondents have been discharged of the offence under Section 308/34 of the IPC, it will be apposite to succinctly discuss the statutory law with respect to framing of charge and discharge as provided under Sections 227 and 228 of the Code of Criminal Procedure, 1973 (‘CrPC’). The same is set out below:
(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 subsection (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.”
15. It is trite law that the learned Trial Court while framing charges is not required to conduct a mini-trial and has to merely weigh the material on record to ascertain whether the ingredients constituting the alleged offence are prima facie made out against the accused persons. The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI: (2010) 9 SCC 368, has culled out the following principles in regards to the scope of Sections 227 and 228 of the CrPC:
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 disclose 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 gives 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.” (emphasis supplied)
16. In a recent decision in State of Gujarat v. Dilipsinh Kishorsinh Rao: 2023 SCC OnLine SC 1294, the Hon’ble Apex Court has discussed the parameters that would be appropriate to keep in mind at the stage of framing of charge/discharge, as under:
12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.”
17. In view of the above, it is clear that this Court, at this stage, is not required to revaluate the evidence or hold a mini trial as the same would tantamount to this Court assuming appellate jurisdiction. Thus, all that has to be seen is whether the learned Trial Court has adequately appreciated the material on record and whether, given the material placed before it, there is grave suspicion against the accused which is not properly explained.
18. It is the case of the prosecution that Respondent No.2 called Respondent No.1, who is her nephew, to the spot after a quarrel had ensued between her and the injured party in relation to parking of the car by her husband in front of the gate. It is alleged that Respondent No.1 along with the unidentified assailants had attacked the victims at the instance and instigation of Respondent No.2.
19. The main thrust of the prosecution in the present case is on the nature of injury suffered by the injured Satish. While the other victims suffered simple injuries, the injured Satish suffered grievous injuries. It is the case of the prosecution that one of the unidentified assailants hurled a brick at the head of the injured Satish.
20. Section 308 of the IPC prescribes the punishment for attempt to commit culpable homicide. The same reads as under:
21. This Court in the case of Shiv Singh v. State: 1983 SCC OnLine Del 163 had set aside the conviction of the accused therein for the offence under Section 308 of the IPC and discussed the ingredients of the said offence. The relevant portion of the judgment is reproduced hereunder:
17. ‘Knowledge’ as observed by Supreme Court in Basdev v. State of Pepsu, AIR 1956 S.C. 488, means awarenss of the consequences of the act. It means the knowledge that specified consequences would result or could result by doing an act.”
22. The learned Trial Court in the present case has adequately appreciated the CCTV footage of the incident and observed that it appears that the injured Satish was the aggressor who had brought a wooden plank into the fight while the accused persons and the injured persons were brawling with their bare hands. It is only thereafter that one of the unidentified assailants had attacked the injured Satish with a brick. The unidentified assailant, at best, in a fit of rage hurled the brick at the injured Satish to neutralize the advantage. It has been rightly appreciated by the learned Trial Court that the assault was not pre-meditated. As rightly noted, the conduct of the accused party during the incident does not seem to indicate that they had any intention to commit culpable homicide. It is also not the case of the prosecution that the accused persons deliberately and incessantly kept attacking the vital parts of the injured persons so as to cause fatal injuries. In view of the aforesaid discussion, in the opinion of this Court, the prosecution has failed to prima facie establish that the accused persons had caused the injuries to the victim with the requisite knowledge or intention to cause culpable homicide not amounting to murder.
23. Merely because one of the injured persons suffered injuries that were opined to be grievous in nature, the same alone is not sufficient to cast grave suspicion against the accused persons that they had the intention or knowledge to commit the offence under Section 308 of the IPC. This Court in the case of Ramesh v. State: Crl. Appeal NO. 965/2009 had altered the conviction of the accused therein to Sections 323/34 of the IPC from Sections 308/34 of the IPC after observing that a sudden quarrel had broken out between the parties and it could not be said that the assault was premeditated. It was noted that merely because the injury was caused to the head of the victim, it cannot be said that the injury was caused with the intention to commit culpable homicide not amounting to murder.
24. It is also relevant to note that the learned Trial Court has not exonerated the accused persons in the present case. The matter has been put before the learned CMM for proceeding against the accused persons for offences under Sections 323/325/34 of the IPC. Section 325 of the IPC deals with offence for voluntarily causing grievous hurt. While the offence under Section 308 of the IPC is tethered on the intention or knowledge of the accused to cause culpable homicide not amounting to murder, however, to constitute the offence under Section 325 of the IPC, it is sufficient to show that the accused has willfully inflicted the victim with grievous hurt.
25. This Court is of the opinion that the learned Trial Court has evidently applied its judicial mind and considered the totality of the acts before discharging the respondents of the offence under Section 308/34 of the IPC. Having found that the circumstances in the present case do not prima facie show commission of the offence under Section 308 of the IPC, the same cannot be attracted against Respondent No.2 even with the aid of Section 109 of the IPC. In view of the foregoing discussion, no ground is made out to warrant any interference with the impugned order.
26. The petition is dismissed in the aforesaid terms.
27. It is clarified that the observations made in this order are only for the purpose of deciding the present petition and shall not influence the outcome of trial. AMIT MAHAJAN, J