1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Rajendra Sharma Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1200/2010) S.B. Criminal Revision Petition Under Section 397 read with Section 401 Cr.P.C. Date of Judgment: December 23rd, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Rajendra Kumar Sharma, for the petitioner. Mr.Javed Chaudhary, Public Prosecutor. Mr.Pankaj Gupta, for the complainant. Aggrieved by the order dated 2nd November, 2010, passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, whereby the learned Judge has framed the charges for offences under Sections 148, 323, 324, 324/149, 325, 325/149, 307, 307/149 IPC against the petitioner, the petitioner has approached this Court. Briefly the facts of the case are that on 24th October, 2008, the complainant, Rakesh Kumar, filed a FIR at Police Station Chandwaji, District Jaipur, wherein he leveled various allegations against the present petitioner and against the other co-accused with regard to an incident which occurred on 23.10.2008. In the complaint, he alleged that during the course of a meeting in 2 between the partners of firm, suddenly the petitioner, along with the other co-accused, assaulted Mukesh, Umesh and Mahesh with lethal weapons. Consequently these persons sustained a large number of injuries. The Police registered a case for offences under Sections 143, 323, 307, 147, 148 and 149 IPC. On completion of the investigation, the Police submitted charge-sheet against the petitioner and other co-accused persons before the trial court. Vide order dated 2nd November, 2010, the learned trial court framed the charges against the petitioner and the other co-accused, for above mentioned offences, while discharging co-accused, Neeraj Verma. Hence, this petition before this Court. Mr. Rajendra Kumar Sharma, the learned counsel for the petitioner, has raised the following contentions before this Court : firstly, the case of the petitioner, Rajendra Sharma, is on equal footing as the case of Neeraj Verma. For, neither of them have been assigned any overt-act; from neither of them any article was recovered. Therefore, while discharging Neeraj Verma, the learned Judge should have also discharged the present petitioner. Secondly, according to Mahesh, the petitioner had come with two other persons in a Logan Jeep. According to Mahesh, even prior to the 3 beginning of the incident of assaulting the victims, the Logan Jeep had left the scene of crime. Therefore, according to Mahesh, the petitioner was not present when the assault occurred. Therefore, the learned Judge was not justified in framing the charges for offence under Section 307 read with Section 149 IPC. Thirdly, although eleven persons were named in the FIR, the Police had submitted charge- sheet only against four persons. The said charge- sheet was submitted against Shankar Agrawal, Rajendra Sharma Master, Rizwan and Neeraj Verma. While submitting the charge-sheet against four persons, it has kept the investigation pending, under Section 173(8) Cr.P.C., only against Ramesh Patidar. However, vide order dated 2nd November, 2010, while the petitioner has been charged for the aforementioned offences, the learned Judge has discharged Neeraj Verma. Therefore, presently there are only three accused-persons who have been charged and the investigation against the fourth accused-person is still pending. Since there are only four accused-persons, therefore, no “unlawful assembly” was formed. Thus, the roping of the petitioner with the aid of Section 149 IPC is unjustified. In order to buttress this contention, the learned counsel has relied upon the cases of Gangadhar Behera & Ors. Vs. State of Orissa 4 [(2002) 8 SCC 381] and on Dhupa Chamar and Ors. Vs. State of Bihar [AIR 2002 SC 2834]. Fourthly, according to the prosecution, there are three injured persons, namely Umesh, Mukesh and Mahesh. Although injured persons have suffered a large number of injuries, but most of the injuries are simple in nature. According to the injury report, Umesh had suffered fifteen injuries. Furthermore, Mahesh has suffered a single grievous injury. Since none of the injuries, of any of the injured persons, are dangerous to life, therefore, the offence under Section 307 IPC is not made out against the petitioner. Fifthly, since nothing has been recovered from the petitioner, during the course of investigation, there is no corroborative evidence to prove the fact that the petitioner had assaulted the injured persons with a weapon. Lastly, the complainant himself has submitted an affidavit wherein he has claimed that he had lodged the FIR under pressure. In fact, in his affidavit, he has resiled from the contents of the FIR. According to the learned counsel, since the complainant has backtracked from the FIR, the very foundation of the prosecution is demolished. 5 Therefore, according to the learned counsel, the learned Judge was unjustified in framing the charges as aforementioned. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously contended that according to the injured, Mukesh, the petitioner was present when the assault had taken placed. Moreover, three independent witnesses, namely Pramod Kumar, Mahendra Kumar and Rajendra claim that the petitioner was present at the scene of crime when the alleged offence occurred. Therefore, merely because a single witness claimed that the petitioner had left, it would not dilute the case of the prosecution. Considering the fact that Mahesh was attacked and was injured, his memory may have been affected and he may have made a statement that the petitioner was not present. But there are other injured persons and independent witnesses who categorically state that the petitioner was very much present at the time of the occurrence. Secondly, already a revision petition has been filed challenging the discharge of Neeraj Verma by the learned trial court. This Court has already issued notices in the said case. Therefore, merely because Neeraj Verma has been discharged by the trial court, such a discharge would not strengthen the case of the petitioner. 6 Thirdly, according to Mukesh and Umesh, the injured persons, the petitioner had joined other co-accused persons in assaulting them. Therefore, he has rightly been charged for offence under Section 307 read with Section 149 IPC and other aforementioned offences. Fourthly, in the injury report of Umesh, one injury is already shown as grievous in nature. Moreover, according to the medical opinion, Mahesh has also suffered a grievous injury. According to the learned Public Prosecutor, in order to bring a case under Section 307 IPC, it is not necessary that the nature of injury should be either “sufficient in the ordinary course of nature to cause death”, or “should be dangerous to life”. According to the learned Public Prosecutor, Section 307 IPC also deals with a case where “hurt” has been caused. Hurt can be caused even by a simple injury. In the present case, since two injured persons have suffered grievous injuries, the offence under Section 307 IPC is clearly made out. Fifthly, in the case of direct evidence, the court need not look for corroboration. Merely because nothing has been recovered from the petitioner by the Police, such non-recovery would not be fatal to the prosecution case. For, the 7 statements of the injured witnesses are corroborated by their injury reports. Moreover, two injured witnesses, and three independent witnesses clearly claim about the petitioner's participation. Hence, a strong prima facie case does exist against the present petitioner. Thus, the learned Judge was certainly justified in framing the charges for the aforementioned offences. Lastly, at the time of framing of the charges, the learned trial court is concerned only with the existence of a strong prima facie case. According to the learned Public Prosecutor, sufficient evidence does exist to establish a strong prima facie case against the present petitioner. Thus, the learned Public Prosecutor has supported the impugned order. In rejoinder, the learned counsel for the petitioner has contended that most of the injuries are simple in nature. Only two injuries are grievous in nature. Neither of these injuries are dangerous to life. Therefore, offence under Section 307 IPC is not made out. Heard the learned counsel for the parties and perused the impugned order as well as the charge-sheet. 8 The scope and ambit of powers under Sections 227 and 228 Cr.P.C. is no longer res integra. Only recently in the case of Sajjan Kumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368], the Hon'ble Supreme Court has reiterated the settled principle of law with regard to the exercise of the said powers. The Apex Court, in para 21 of the report, has observed as under : On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on 9 record cannot be gone into but before framing a 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. Applying these principles to the present case, as mentioned above, a strong case does exist against the petitioner. It is, indeed, a settled principle of law that different people have different memories. While one may recall certain incident, the other persons may not remember the circumstances. Therefore, merely because, Mahesh claims that the petitioner had left, presently the statement cannot be taken as the gospel truth. After all, contrary to his statement are the statements of the independent witnesses like Pramod Kumar, 10 Mahendra Kumar and Rajendra. These three witnesses in their statements, recorded under Section 161 Cr.P.C., clearly state that the petitioner was not only present, but had also assaulted the injured persons along with other accused-persons. Even other two injured persons, namely Mukesh and Umesh, also state that the petitioner was present when the offence was allegedly committed. In light of the overwhelming evidence of the injured persons and the independent witnesses, the statement of Mahesh looses its significance. Moreover, at the time of framing of the charge, the learned trial court is not expected to meticulously examine the prosecution evidence to discover a few contradictions which may exist in the story of the prosecution. At the initial stage, the trial court is concerned only to see if the evidence is sufficient to create a strong suspicion in the mind of the court that the alleged offence may have been committed by the accused-persons. Therefore, if the learned Judge has ignored Mahesh's statement for the time being, he cannot be faulted for the same. Moreover, it is a case of direct evidence. Since the statements of the injured witnesses are further corroborated by the injury reports, non-recovery of an article from the petitioner would not be fatal to the case of the 11 prosecution. The statements and the injury reports make out a strong prima facie case against the petitioner. However, the moot questions before this Court are two-fold : firstly, whether the petitioner could be charged for offence under Section 149 IPC or not ? Secondly, whether he could be charged for the offence under Section 307 IPC or not ? Section 141 IPC is as under : Section 141. Unlawful assembly An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First-To overawe by criminal force, or show of criminal force, [the Central or any State Government of Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second-To resist the execution of any law, or of any legal process; or Third-To commit any mischief or criminal trespass, or other offence; or Fourth-By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth-By means of criminal force, or show of criminal force, to compel any 12 person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. Section 141 IPC defines the term unlawful assembly as an assembly of five or more persons, who share a common object. Section 142 IPC defines what it means to be “a member of an unlawful assembly”. Bring in the concept of vicarious liability, Section 149 IPC is as under : Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. A bare perusal of these three provisions clearly reveal that in order to form an unlawful assembly five or more persons are needed who share a common object. In the present case, according to the FIR, there were eleven known persons and six unknown persons who had invaded the room with lethal weapons. Thus, according to the complainant, an unlawful assembly was formed which trespassed into the room and assaulted the injured 13 persons. The scope and ambit of Section 149 IPC has been discussed in the case of Gangadhar Behera & Ors. (Supra). However, in the said case, the Hon'ble Supreme Court has observed as under : (21) Another plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the 14 assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. (23) 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act a an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must 15 be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti. (24) Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may 16 reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction betweens the two parts of Section 149 cannot be ignored or obliterated. In every case is would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC 731.) (25) The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench of this Court in Masalti's case (supra) observed as follows: "Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to 17 commit an offence of murder in pursuance of the common object of the unlawful assembly,