Gokul Yadav v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Revision No. 587 of 2015

1. Gokul Yadav S/o Jhhunu Yadav, aged about 24 years;

2. Jhhunu Yadav S/o Shankar Yadav, aged about 50 years,

3. Munnu Yadav S/o Shankar Yadav, aged about 40 years,

4. Tiju Yadav S/o Shankar Yadav, aged about 48 years; All above R/o Ward No.3, Manpur, Police Station- Bemetara, Civil and Revenue District Bemetara (CG) ---- Applicants

Versus

State of Chhattisgarh, Through - S.H.O., Police Station - Bemetara, Civil and Revenue District Bemetara (CG) ---- Respondent For Applicants :

Mr.Vaibhav Goverdhan, Advocate For Respondent :

Mr.Anupam Dubey, Dy.Govt.Advocate, on advance copy Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 13/08/2015 1.

Heard on the question of admission.

2.

By this criminal revision, the applicants assail the order dated 18.6.2015 passed by the Sessions Judge, Bemetara, in S.T.No.05/2015, whereby the Sessions Judge has framed the charge under Section 307 read with Section 34 of the IPC against the applicants.

3.

The applicants have been charge-sheeted for an offence under Section 307 read with Section 34 of the IPC and by the impugned order, charge has been framed for an offence under Section 307 read with Section 34 of the IPC.

4.

Learned counsel for the applicants would submit that victim Durga Yadav has suffered only one injury in his body, whereas four accused persons alleged to have assaulted him was no intention to cause death and the injuries were not sufficient to cause death, therefore, one of the important ingredient i.e. intention is lacking in the charge-sheet filed by the prosecution and charge has been framed against the present applicants, therefore, charge deserves to be set aside and the applicants deserve to be discharged from the aforesaid charge. Learned counsel would further submit that at the most, offence under Section 323 of the IPC is made out against the applicants. 5.

On the other hand, learned counsel appearing on behalf of the State, on advance copy, would oppose the revision and submit that the present applicants with common intention have assaulted victim Durga Yadav by wooden stick i.e. 45"x3"x10" by which Durga Yadav remain unconscious for long time and suffered lacerated wound over mid parito occipital region. Wooden stick (chiran patiya) has been seized from the possession of applicants No.1 and 3 and pursuant to the query report, medical opinion submitted by treating physician Dr.Nidhi Meshram that injuries caused by the present applicants were sufficient to cause his death and as such, charge for offence under Section 307/34 of the IPC has rightly been framed against the applicants.

6.

I have heard learned counsel appearing for the parties and perused the documents filed along with the criminal revision. 7.

The question in the present case is, as to whether, considering and accepting the entire material available on record a prima-facie case for framing charges for alleged commission of offence punishable under Section 307 of IPC is made out against the present applicants or not? 8.

To resolve the controversy, it appears necessary first of all to have a look on the provisions of Section 307 of IPC, which reads as under- "307. Attempt to murder.- 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." 9.

The essential ingredients required to be proved in the case of an offence under Section 307 of IPC are as under:- "(i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing

an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury." 10.

To justify conviction under Section 307 of IPC, it is not necessary that the bodily injury capable of causing death should have been actually inflected but injuries sustained, the manner of assaults and the weapons used would clearly make out a case of Section 307 of IPC. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

11.

The Supreme Court in Parsuram Pandey and others v. State of Bihar1, while dealing with the ingredients of Section 307 of IPC observed as under:- "15. To constitute an offence under Section 307 two ingredients of the offence must be present:

(a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it.

For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence "of 1 (2004) 13 SCC 189

attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place.............." 12.

In State of Maharashtra v. Priya Sharan Maharaj and others2, the Supreme Court has held that at the stage of framing charge, Criminal Court has to find out whether there is ground for presuming that accused has committed offence or not to following effect:- "8. The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi vs. Jitendra Bijjaya (1990) 4 SCC 76, that at Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken in their face value disclose the existence of all the ingredients constituting the alleged offence.

The Court may, 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. Therefore, at the stage of framing of charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction." 13.

Very recently in Vinay Tyagi v. Irshad Ali alias Deepakand Ors.3, the Supreme Court while considering Section 227 of the Cr.P.C. held as under:- 2 (1997) SCC (Criminal) 584 3 2013 Cri.L.J. 754

"12. On analysis of the above discussion, it can safely be concluded that 'presuming' is an expression of relevancy and places some weightage on the consideration of the record before the Court. The prosecution's record, at this stage, has to be examined on the plea of demur. Presumption is of a very weak and mild nature. It would cover the cases where some lacuna has been left out and is capable of being supplied and proved during the course of the trial. For instance, it is not necessary that at that stage each ingredient of an offence should be linguistically reproduced in the report and backed with meticulous facts. Suffice would be substantial compliance to the requirements of the provisions."

14.

In Amit Kapur v. Ramesh Chander and another4, the Supreme Court while considering the scope of jurisdiction of this Court in revision against the order of charge held as under:- "The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code.

Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge.

in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."

15.

In the aforesaid decisions, their Lordships of the Supreme Court have clearly held at the stage of framing of charge, the Court has to consider the material with a view to find out if there is ground for presuming that an accused had committed offence and not for the purpose of arriving at a conclusion that it is not likely to lead a conviction. The learned Fifth Additional Session Judge, Raipur after considering the material on record clearly came to the conclusion that there is ground for presuming that applicants have committed offence under aforesaid Sections and framed charge for commission of aforesaid offences.

16.

It is the case of the prosecution that on 17.10.2014 at about 10 p.m. the applicants with common intention of committing murder of complainant Durga Yadav assaulted him by wooden stick ((chiran patiya) and made assault in his head by which he became unconscious on account of head injury inflicted by the present applicants in his mid parito occipital region and the treating doctor on query made has submitted report that the injuries were sufficient to cause death. 17.

Considering the manner in which the applicants with common intention have assaulted the complainant by wooden stick i.e. chiran

patiya and caused injury in his head, it cannot be held that there was no intention on the part of the applicants to commit murder and it cannot be concluded that there is no material for framing charge. 18.

I do not find any illegality in the impugned order warranting interference by this Court in its revisional jurisdiction. The criminal revision deserves to be and is accordingly dismissed at the admission stage itself. No order as to cost(s).

Sd/- (Sanjay K. Agrawal) JUDGE B/-