Rajbir Singh Vs. State of U.P. & Anr [2006] Insc 122 (8 March 2006)
Arun
Kumar & G.P. Mathur
(Arising
out of S.L.P.(Crl.) No.5896 of 2004) G. P. MATHUR, J.
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Leave granted.
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This appeal, by
special leave, has been preferred by the complainant (first informant) against
the judgment and order dated 9.7.2004 of Allahabad High Court by which the
charges framed against Akhilesh Chauhan (respondent No.2) were set aside.
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The appellant, Rajbir
Singh, lodged an FIR at 5.10
p.m. on 29.9.2003 at
P.S. New Agra, alleging that a day before some
brickbats were thrown in the compound of his brother's house from the house of
his neighbour Ramraj Rathore. On account of this incident, exchange of hot
words took place between his father Hoti Lal and accused Ramraj Rathore, but
the matter was pacified due to intervention of some persons of the locality. At
about 4.00 p.m. on 29.9.2003 Ramraj Rathore and his relations Geetendra Singh
and Prem Narain who were armed with firearms came near the shop of the
complainant where his father was standing and all of them exhorted that Hoti Lal
should be killed. Ramraj Rathore started firing towards Hoti Lal who after
receiving the injuries fell down. Pooja Kumari, a girl belonging to Scheduled
Caste community, who had come to purchase some articles from the shop, also
sustained firearm injuries and fell down. Both the injured were taken to the
hospital but they died on the way. The accused continued to fire from their
weapons and tried to kill the complainant and his family members as well. On
account of the firing resorted to by the accused, a feeling of terror spread
and people started running towards their houses. On the basis of the FIR lodged
by the appellant a case was registered under Section 302 IPC and Section 3(2)(v)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
(for short 'SC/ST Act') at the police station. The name of Akhilesh Chauhan
(respondent no.2) was not mentioned in the FIR. During the course of
investigation, the police recorded statement of some persons under Section 161 Cr.P.C.,
wherein his name appeared and the allegation made against him was that after
the incident of firing, one of the accused handed over his rifle to him and
then he ran away from the spot.
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After the case
had been committed to the Court of Sessions, the learned Special Judge (SC/ST
Act) by his order dated 11.5.2004 framed charges under Section 302 read with
Section 34 IPC and Section 3(2)(v) SC/ST Act against Akhilesh Chauhan
(respondent no.2). Akhilesh Chauhan then filed a criminal revision under
Section 397/401 Cr.P.C. before the High Court challenging the order by which
charges had been framed against him. The High Court by a very brief order set
aside the order passed by the learned Special Judge and the relevant part of the
order passed by the High Court is being reproduced below :
"It
was argued by the applicants counsel that the deceased has received injuries by
way of accident as the firing was aimed at the other persons and accidently the
deceased Pooja Balmiki was passing through that way and she was hit. The
applicant neither intended to kill the deceased nor she was aimed out because
of the reason that she was scheduled caste. The charges framed by the learned
Special Judge (SC/ST Act), Agra is liable
to be quashed as no offence under the said Act is made out against him.
In
view of the aforesaid discussion this revision is allowed and the order
impugned dated 11.5.04 is set aside." Feeling aggrieved by the order
passed by the High Court, the complainant has filed the present appeal by
special leave.
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We have heard
learned counsel for the appellant (complainant), learned counsel for Akhilesh Chauhan
(respondent no.2) and have perused records. The only reason given by the High
Court for setting aside the order passed by the learned Special Judge framing
charges against respondent no.2 is that the firing was not aimed at Pooja Balmiki
but she accidently received the injuries as she was passing through that way
and was hit. The High Court completely ignored the provisions of Section 301
IPC which reads as under :
301.
Culpable homicide by causing death of person other than person whose death was
intended.--If a person, by doing anything which he intends or knows to be
likely to cause death, commits culpable homicide by causing the death of any
person, whose death he neither intends nor knows himself to be likely to cause,
the culpable homicide committed by the offender is of the description of which
it would have been if he had caused the death of the person whose death he
intended or knew himself to be likely to cause.
The
aforesaid provision clearly shows that if the killing took place in the course
of doing an act which a person intends or knows to be likely to cause death, it
ought to be treated as if the real intention of the killer had been actually
carried out.
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The contents and
scope of Section 301 IPC were examined in Shankarlal Kacharabhai & Ors. v.
The State of Gujarat AIR 1965 SC 1260 and the same were
explained as under :
"...............
It embodies what the English authors describe as the doctrine of transfer of
malice or the transmigration of motive.
Under
the section if A intends to kill B, but kills C whose death he neither intends
nor knows himself to be likely to cause, the intention to kill C is by law
attributed to him. If A aims his shot at B, but it misses B either because B
moves out of the range of the shot or because the shot misses the mark and hits
some other person C, whether within sight or out of sight, under S.301, A is
deemed to have hit C with the intention to kill him.
What
is to be noticed is that to invoke S.301 of the Indian Penal Code A shall not
have any intention to cause the death or the knowledge that he is likely to
cause the death of C. ............." The fact that there was no intention
to cause injury to Pooja Balmiki and she was accidently hit can make no
difference as according to the version of the prosecution, the accused intended
to cause injuries by firearm to Hoti Lal and in attempting to carry out the
same, also caused injuries to her. The reasons given by the High Court for
quashing the charges are, therefore, wholly erroneous in law and cannot be
sustained.
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The FIR of the
case shows that the three accused named therein came on the spot armed with
firearms and after giving a exhortation to kill Hoti Lal and others resorted to
firing. During the course of investigation, the name of Akhilesh Chauhan
(respondent no.2) also appeared and some witnesses stated that one of the
accused handed over his rifle to Akhilesh Chauhan who ran away from the spot.
Chapter
XVIII of Code of Criminal Procedure (for short 'Cr.P.C.') gives the procedure
of trial before a Court of Session. Section 227 Cr.P.C. says that 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.
Section
228(1)(b) says that 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 is exclusively triable by the Court, he shall frame
in writing a charge against the accused.
The scope
of these provisions have been considered in a catena of decisions of this
Court. In State of Bihar v. Ramesh Singh AIR 1977 SC 2018,
it was held :
"Reading
Ss. 227 and 228 together in juxtaposition, as they have got to be, it would be
clear that at the beginning and the initial stage of the trial the truth,
veracity and effect of the evidence which the prosecutor proposes to adduce are
not to be meticulously judged. Nor is any weight to be attached to the probable
defence of the accused. It is not obligatory for the Judge at that stage of the
trial to consider in any detail and weigh in a sensitive balance whether the
facts, if proved, would be incompatible with the innocence of the accused or
not. The standard of test and judgment which is to be finally applied before
recording a finding regarding the guilt or otherwise of the accused is not
exactly to be applied at the stage of deciding the matter under S. 227 or S.
228 of the Code. At that stage the Court is not to see whether there is
sufficient ground for conviction of the accused or whether the trial is sure to
end in his conviction.
Strong
suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the conclusion of the
trial. But at the initial stage if there is a strong suspicion which leads the
Court to think that there is ground for presuming that the accused has
committed an offence then it is not open to the Court to say that there is no
sufficient ground for proceeding against the accused.
If the
evidence which the prosecutor proposes to adduce to prove the guilt of the
accused even if fully accepted before it is challenged in cross-examination or
rebutted by the defence evidence, if any, cannot show that the accused
committed the offence, then there will be no sufficient ground for proceeding
with the trial."
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In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia & Anr. (1989) 1 SCC
715, the Court while examining the scope of Section 227 held as under :
"Section
227 itself contains enough guidelines as to the scope of inquiry for the
purpose of discharging an accused. It provides that "the judge shall
discharge when he considers that there is no sufficient ground for proceeding against
the accused". The 'ground' in the context is not a ground for conviction,
but a ground for putting the accused on trial. It is in the trial, the guilt or
the innocence of the accused will be determined and not at the time of framing
of charge. The court, therefore, need not undertake an elaborate inquiry in
sifting and weighing the materials. Nor is it necessary to delve deep into
various aspects. All that the court has to consider is whether the evidentiary
material on record, if generally accepted, would reasonably connect the accused
with the crime." The High Court did not at all apply the relevant test,
namely, whether there is sufficient ground for proceeding against the accused
or whether there is ground for presuming that the accused has committed an
offence. If the answer is in affirmative an order of discharge cannot be passed
and the accused has to face the trial. The High Court after merely observing
that "as the firing was aimed at the other persons and accidently the
deceased Pooja Balmiki was passing through that way and she was hit" and
further observing that "the applicant neither intended to kill the
deceased nor she was aimed out because of the reason that she was scheduled
caste" set aside the order by which the charges had been framed against
respondent no.2.
There
can be no manner of doubt that the provisions of Section 301 IPC have been
completely ignored and the relevant criteria for judging the validity of the
order passed by the learned Special Judge directing framing of charges have not
been applied. The impugned order is, therefore, clearly erroneous in law and is
liable to be set aside.
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The prosecution case that one of the
accused handed over his rifle to Akhilesh Chauhan (respondent no.2) and
thereafter he ran away from the scene of occurrence prima facie shows
commission of an offence under Section 201 IPC. Since two persons have been
killed there should be separate and distinct charge for each murder besides the
charge under Section 3(2)(v) SC/ST Act. The charges framed against the accused who
are alleged to have resorted to firing should be amended accordingly.
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In the result, the appeal is allowed
and the impugned order dated 9.7.2004 of the High Court is set aside. The
learned Special Judge (SC/ST Act), Agra,
before whom the trial of the other co- accused of the case is pending, is
directed to proceed against respondent no.2 after framing appropriate charges
and try him in accordance with law. It is made clear that any observation made
in this order is only for the limited purpose of deciding the appeal and shall
not be construed as an expression of opinion on the merits of the case. The
learned Special Judge shall decide the case strictly on the basis of evidence
adduced by the parties and in accordance with law.
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