IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. .... (1) Crl. Revision Petition No. 337 of 2008 .... Dimpey Gujral and others. ....... Petitioners through Shri Vikram K.Chaudhri, Advocate. Versus Union Territory, Chandigarh and another. ....... Respondent no.1 through Shri R.S.Rai, Senior Advocate assisted by Shri Gautam Dutt, Advocate. Respondent no.2 through Shri Baldev Singh, Senior Advocate assisted by Shri Arshwinder Singh, Advocate. .... (2) Crl. Revision Petition No. 539 of 2008 .... Iqroop Singh Sekhon and another. ....... Petitioners through Shri Rohit Sud, Advocate. Versus Union Territory, Chandigarh. ....... Respondent no.1 through Shri R.S.Rai, Senior Advocate assisted by Shri Gautam Dutt, Advocate. Crl.Revision No.337 of 2008 -2- .... Date of Decision: 28.3.2008 .... CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This common order will dispose of the above mentioned two Criminal Revision Petitions as both of them have been preferred for setting aside order dated 11.1.2008 vide which the Additional Sessions Judge, Chandigarh (hereinafter referred to as `the trial Court') concluded that a prima facie case was made out against the petitioners for framing of charge against them for the offences punishable under Sections 147, 148, 149, 323, 307, 452, 506 of the I.P.C. A further prayer has also been made for quashing the charge sheet of the same date. The grievance of the petitioners lie in a very narrow compass. They are aggrieved by the charge which has been framed under Section 307 of the I.P.C. According to the petitioners, the complainant had received six injuries on his person, the seats and gravity of which have been reflected in the medical report, which has been placed on the record of both the Crl.Revision No.337 of 2008 -3- .... petitions, as Annexures P3 and Annexure P4, respectively and the same are reproduced below for ready reference:- “1. Abrasion- contusion rt. forearm mid 1/3 dorsal 3 x 2 cm reddish in colour. Adv- x-ray. 2. C/o pain rt. Shoulder Adv. X-ray. 3. Abrasion 1 x 1 cm lower 1/3 of rt. Legal swelling. Adv. X- ray ( R ) leg. < AP – LAT. 4. Abrasion over lf. Ankle medial aspect 1 x 1 cm red in colour. 5. Laceration 3 x 05 cm. Over lt. Parietal region, fresh blood present. Adv. X-ray. Skull ,AP – LAT. Advise surgical opinion. 6. Radish contusion 3 x 1 cm over Lt. Elbow.” The facts of the case reveal a dispute between two intolerant neighbours, who feuded over the dog of the petitioners in Crl. Revision Petition No.337 of 2008 littering in front of the house of the complainant- Darashjit Singh resulting in exchange of hot words and subsequent injuries being inflicted to him at their behest (i.e. petitioners in Crl.Revision No.337 of 2008) by the petitioners in Crl. Revision Petition No.539 of 2008. The complainant lodged the F.I.R. on 26.10.2006 and the police, after investigation of the matter, submitted a report under Section 173 of the Cr.P.C. against the petitioners and one Bahadur Singh on 21.11.2006 for the offences punishable under Sections 147, 148, 149, 323, 307, 452 and 506 of the I.P.C. The petitioners, feeling acutely aggrieved with the aforesaid Crl.Revision No.337 of 2008 -4- .... array of offences and submission of challan, made a representation to the Home Secretary of the Union Territory, Chandigarh, who, directed further investigation in the matter. Thereafter, a supplementary challan was submitted on 10.9.2007 and the offence punishable under Section 307 of the I.P.C. was deleted from the array of offences, leaving the petitioners to fend for themselves in the remaining offences. However, the Chief Judicial Magistrate, Chandigarh before whom the matter came up for trial, upon an argument raised on behalf of the complainant that the offence punishable under Section 307 of the I.P.C. stood made out which is triable exclusively by the Court of Sessions and that the case ought to be committed to that Court for trial, concluded, vide his order dated 10.10.2007, that once the report under Section 173 of the Cr.P.C. had been submitted in which the offence punishable under Section 307 of the I.P.C. was one of the offences alleged to have been committed by the petitioners, the only logical course left with him was to commit the matter to the Court of Sessions which was competent to try the said offence and that subsequent investigation under Section 173(8) of the Cr.P.C. in which the said offence was deleted from the array of offences had no impact because of the earlier report. The reasoning given by the Chief Judicial Magistrate was that there was no new material before the police to have arrived at a conclusion that the offence punishable under Section 307 of the I.P.C. was not made out against the petitioners. He accordingly committed Crl.Revision No.337 of 2008 -5- .... the matter to the Court of Sessions for trial. The trial Court, to whom the case was assigned for disposal, passed the impugned order and framed the aforesaid charge sheet against the petitioners and Bahadur Singh. Hence, these revision petitions. Learned counsel for the petitioners contended that the offence punishable under Section 307 of the I.P.C. could not be said to have been made out against the petitioners for the reason that the injuries which were found on the person of the complainant were simple in nature and were stated to be caused by a blunt weapon. They further contended that the only injury which was found on the head of the complainant, being injury no. 5, was also declared to be simple and, therefore, there was no occasion for the trial Court to have framed the charge under Section 307 of the I.P.C. According to the learned counsel for the petitioners, the nature of injury and the manner in which it has been caused, certainly become relevant factors to be considered by the Court at the time of framing of charge. They extensively referred to the provisions of Section 307 of the I.P.C. and the illustrations given thereunder to emphasize their point. Learned counsel for the petitioners argued that the intention and knowledge which are the basic constituents of the offence punishable under Section 307 of the I.P.C. can be inferred from both the nature of injuries and the manner in which the offence has been committed, as also the manner in which the injuries have been inflicted and it is not necessary Crl.Revision No.337 of 2008 -6- .... for the Court to wait for the ultimate evidence to conclude whether the provisions of the said Section are attracted or not. They placed reliance on a judgment of the Supreme Court reported as AIR 1979 S.C. 366 – Union of India Versus Prafulla Kumar Samal and another, wherein it was held as under:- “The Judge while considering the question of framing the charges under Section 227 of the Code 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. 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. The test to determine a prima facie case could naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot Crl.Revision No.337 of 2008 -7- .... 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” On the other hand, learned counsel for the Union Territory, Chandigarh and the complainant, while refuting the arguments/ submissions of the learned counsel for the petitioners, contended that at the time of framing of charge, the Court is only to see the prima facie evidence before it to come to a conclusion as to whether a charge qua a particular offence is made out against the accused or not. They submitted that in the peculiar circumstances of the instant case, when the petitioners had been deliberating for three days, i.e., on 23rd, 24th and 25th of October,2006, before the actual occurrence, revealed a pre-meditated intent on their behalf and, therefore, from all this, it has to be inferred that intention to cause death was certainly there and in any eventuality, the factum of intention being present or absent, has to be determined on the basis of evidence which is likely to come on record during the course of trial. Therefore, at this stage, it cannot be said as to whether the offence punishable under Section 307 of the I.P.C. stood established or not. They further submitted that if an accused person is found guilty of a lesser offence, then the Crl.Revision No.337 of 2008 -8- .... conviction can be made accordingly by the Court, but in the event of it coming to a conclusion that an offence of higher magnitude was committed, then the conviction will not be awarded for that offence because of the fact that he was not charged for the same. Learned counsel for the Union Territory and the complainant argued that the nature of injuries has no relevance to attract the provisions of Section 307 of the I.P.C. as even in a case of no injury, the said offence can, very well, be made out. They pointed out to the conduct of the petitioners in Crl. Revision Petition No.337 of 2008 by referring to paragraph 4 thereof wherein a categoric averment has been made that no such or similar petition has earlier been filed, but it has conveniently been omitted to mention that petitioner no.1-Dimpy Gujral had filed Crl.Misc.No.47095-M of 2007 on the verbatim allegations as have been made in the instant petition. To support their arguments/ submissions, learned counsel for the Union Territory and the complainant placed reliance on the judgments of the Supreme Court reported as AIR 2004 S.C. 3687 – Hari Mohan Mandal Versus State of Jharkhand; JT 2004 (3) S.C. 267 – Vasant Vithu Jadhav Versus State of Maharashtra; and an unreported judgment dated 30.11.2005 of this Court passed in Crl.Revision No.1853 of 2004 - Mehar Singh etc. Versus The State of Haryana. In the aforementioned judgment, this Court, while relying on the above referred judgments of the Supreme Court, categorically held that Crl.Revision No.337 of 2008 -9- .... it is not necessary that an injury has to be described as dangerous to life to attract the charge under Section 307 of the I.P.C. and whether there was intention to kill or knowledge that death will be caused, is a question of fact in individual cases and is to be gone into on the basis of evidence. I have heard the learned counsel for the parties and have perused the record. There is, indeed, no doubt about the proposition of law propounded by the learned counsel for the Union Territory and the complainant that at the time of framing of charge, it is only the prima facie material that has to be seen and the Court need not weigh pros and cons of the evidence as it is likely to do at the time of conclusion of trial when the entire evidence is to be appraised. Similarly, the nature of injuries and the description thereof are not a conclusive indicator of a charge under Section 307 of the I.P.C. which is to be framed against an accused person. However, the knowledge and intention to cause death are the factors which have to be established by way of adequate evidence on record. At the same time, the proposition as propounded by the learned counsel for the petitioners is also meaningful when it was contended on the basis of the law laid down by the Supreme Court in Union of India Versus Prafulla Kmar Samal and another (supra) that the Court, while exercising its power under Section 227 of the Cr.P.C. is not merely to act as a post-office or as a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents Crl.Revision No.337 of 2008 -10- .... produced before it in order to see as to whether there is any basic infirmity appearing in the case. In view of the above, it becomes clear that all these propositions, which hold enough water, have to be churned together and applied to the facts of a case before determining as to whether an order of framing of charge against an accused person for a particular offence is justified or it has resulted in miscarriage of justice to him. It is true that mere description of injuries cannot form the basis of framing of charge under Section 307 of the I.P.C. and the most crucial ingredient is the intention or knowledge to cause death by such infliction of the injuries. When this is tested in the back-drop of the facts of the instant case, then it becomes abundantly clear that the trial Court certainly gave a miss to the essentials of the case and charged the petitioners with a formidable offence punishable under Section 307 of the I.P.C. Admittedly, a supplementary challan had been submitted pursuant to the provisions of Section 173(8) of the Cr.P.C., which absolved the petitioners of the offence punishable under Section 307 of the I.P.C., but for no apparent reason, the said supplementary challan and the findings contained therein were not accepted and the matter was committed to the Court of Sessions, pursuant to which the trial Court framed the impugned charge sheet against them. The Court, while framing a charge, is not precluded or rather, it is required to take a bird's eye view of the entire gamut of the allegations Crl.Revision No.337 of 2008 -11- .... against the accused persons and has also to examine the nature of injuries and the manner in which the offence has been committed, to conclude whether a particular offence is attracted to the facts of the case or not so as to warrant the framing of charge for the said offence. If the contentions of the learned counsel for the Union Territory and the complainant are accepted in toto, then in every case, be it a case of simple hurt or of a grievous hurt, the offence which is of higher amplitude can be attracted because the intention has to be inferred on the basis of evidence. The Court, which frames the charge, has a pious duty cast upon it to examine the material on record to conclude as to whether an offence punishable under a particular Section of the I.P.C. stands, prima facie, established or not. At the time when the charge is framed, concededly, the person accused of committing an offence is in the zone of suspicion and, therefore, the Court is saddled with a responsibility to establish some sense of proportion while evaluating that suspicion in relation to the conceptualizing of an offence, its execution, and the ruthlessness of the perpetrator. If these factors do not reveal a diabolism of intent and ruthlessness in execution, then the charge necessarily has to be toned down in proportion with the aforesaid factors. As face is the index of mind, similarly these factors mirror prima facie the latent intent of the perpetrator of the offence. An accused cannot be burdened under the yoke of a charge of Crl.Revision No.337 of 2008 -12- .... inflated offence when the facts, the injuries, and the manner of commission of the offence point otherwise. In my view, the nature of injuries, the manner in which the offence has been committed and the number of blows that have been inflicted, cumulatively are the matters to be considered at the time of framing of charge because these factors throw a shadow on the intent, pre- meditative intent and the knowledge which, when seen together, enhance the magnitude of the offence. The Court is also always required to remain vigilant and conscious of the fact that the complainant will be interested in seeing that an offence of higher magnitude is arrayed against the accused person as it addresses his sense of injury. In the instant case, the sparring neighbours have led themselves into this unfortunate situation over a trivial issue of a dog littering in front of the house of the complainant. The subsequent events alleging that simple injuries were caused which resulted in the slight hospitalization of the complainant does not indicate or point to the wider amplitude of the offence which is sought to be arrayed against the petitioners. Thus, in my opinion, the trial Court has erred in taking such a mammoth view of a trivial matter. It has wrongly framed the charge against the petitioners under Section 307 of the I.P.C. by completely ignoring the fact that simple injuries were caused to the complainant and a solitary blow was given on his head, which was not repeated, and also by completely ignoring the supplementary challan submitted by the police. Crl.Revision No.337 of 2008 -13- .... In the result, these revision petitions are accepted only to the limited extent that the order framing charge against the petitioners under Section 307 of the I.P.C., as also the charge sheet to that effect, are set aside because no offence punishable under that Section has been made out from the facts and circumstances of the case. The petitioners shall, however, continue to face trial in so far as other offences are concerned for which they have been accused of. March 28,2008 ( Mahesh Grover ) “SCM” Judge