1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Shankar Agrawal Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.1242/2010) 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.Rajesh Goswami, for the petitioner. Mr.Javed Chaudhary, Public Prosecutor. Mr.Pankaj Gupta, for the complainant. REPORTABLE 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-respondent No.2, Rakesh Kumar, lodged a report at Police Station Chandwaji, District Jaipur, wherein he leveled various allegations against the present petitioner along with the other co-accused 2 persons. In the report, he alleged that during the course of a meeting in between the partners of a firm, suddenly the petitioner, along with the other co-accused persons, assaulted Mukesh, Umesh and Mahesh with lethal weapons. Consequently, these three persons sustained a large number of injuries. The Police registered a FIR for offences under Sections 143, 323, 307, 147, 148 and 149 IPC. On completion of the investigation, the Police submitted a charge-sheet before the trial court only against four persons, including the present petitioner, and the matter was kept pending under Section 173(8) Cr.P.C. against one Ramesh Patidar and others. Vide order dated 2nd November, 2010, the learned trial court framed the charges against the petitioner, along with other co-accused persons, for the above mentioned offences, while discharging the co-accused, Neeraj Verma. Hence, this petition before this Court. Mr. Rajesh Goswami, the learned counsel for the petitioner, has vehemently contended that 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, the present petitioner, Rajendra Sharma Master, Rizwan and Neeraj Verma. 3 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 [(2002) 8 SCC 381] and on Dhupa Chamar and Ors. Vs. State of Bihar [AIR 2002 SC 2834]. Secondly, 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, although Umesh had suffered fifteen injuries, but only a single injury has been assigned to the present petitioner. Furthermore, Mahesh has suffered a single grievous injury. The injuries are neither “sufficient in the ordinary course of nature to cause death”, nor 4 “dangerous to life”. Therefore, the offence under Section 307 IPC is not made out against the petitioner. Thirdly, 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 sword. 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. 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 eleven persons were named in the FIR and the complainant claimed that there were other five to six persons who were strangers. Moreover, the Investigating Agency has clearly stated in the summary of the charge-sheet that it is keeping the investigation pending not only against Ramesh Patidar, but also against other 5 named accused-persons. Thus, the learned counsel for the petitioner is not justified in claiming that the investigation is pending only against Ramesh Patidar. Moreover, he is unjustified in claiming that there are only four accused-persons who would be put on trial. Considering the fact that both in the FIR and in the statement of the witnesses, at least eleven persons were involved, the learned Judge was certainly justified in framing the charge for offences under Section 307 read with Section 149 IPC. Secondly, in the injury report of Umesh, one injury is already shown to be 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. 6 Thirdly, in the case of direct evidence, the court need not look for corroboration. Merely because the sword has not been recovered from the petitioner, the non-recovery would not be fatal to the prosecution case. For, the statements of the injured witnesses are corroborated by their injury reports. Moreover, the injured witnesses have clearly attributed overt-act to the present petitioner. 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 against the accused person. 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. Heard the learned counsel for the parties, perused the impugned order, the charge- sheet, and the case law cited at the Bar. 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 7 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 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. 8 (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. Thus, this Court needs to examine the evidence produced by the Investigating Agency in light of the principles mentioned above. The complainant, Rakesh Kumar, has named the petitioner along with others in the FIR lodged by him. According to him, Ramesh Patidar, Neeraj Verma, Rizwan, Rajendra Sharma Master, Mahesh Sharma, Babu, Prateek, Devanand, Manoj, Guddu, Pankaj, Shankar Lal and five & six other boys had come together in different cars. He further claimed that upon a signal given by Ramesh Patidar, two boys brought two swords; one sword was given to Ramesh Patidar and the other to the present petitioner, Shanker Lal. According to him, Sharnkar Lal struck Umesh with a sword. He further claimed that Ramesh Patidar told other co-accused persons “to finish off Mahesh”. Consequently, 9 others, carrying hockey, iron rods, attacked Mahesh. They also attacked Umesh and Mukesh. Umesh in his statement, recorded under Section 161 Cr.P.C., also claims that other co- accused had brought two swords of which one was given to Ramesh Patidar and the other to the present petitioner. He clearly states that the present petitioner “hit him with the sword on his head”. Mukesh in his statement, recorded under Section 161 Cr.P.C., states that initially Ramesh Patidar, Sharnkar Agrawal, Neeraj Verma and few others came into the room and were discussing the dispute with regard to the money. Later on, Ramesh Patidar opened the door and signaled the other accused-persons. They brought two sword, one of which was given to Ramesh Patidar, and the other to the present petitioner. He also claims that the present petitioner hit Umesh with the sword, while he was attacked by Ramesh Patidar. Similar statement was also given by Mahesh in his statement recorded under Section 161 Cr.P.C. These statements are further corroborated by the injury reports. According to the injury report of Umesh, he has suffered fifteen injuries, 10 one of which is grievous in nature. Similarly Mahesh has suffered eighteen injuries, one of which is also grievous in nature. Mukesh has suffered eighteen injuries. Since it is a case of direct evidence, and since the statements of the injured witnesses are further corroborated by the injury reports, therefore, non-recovery of the sword from the petitioner would not be fatal to the case of the 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 11 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 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”. Containing 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 12 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 persons. The learned counsel for the petitioner is unjustified in claiming that the Investigating Agency had submitted charge-sheet only against four persons and is keeping the investigation pending only against Ramesh Patidar. A bare perusal of the charge-sheet clearly reveals that according to the Investigating Agency, they are keeping the investigation pending both against Ramesh Patidar, and against other named accused- persons. Therefore, even if one of the charge- sheeted accused-person has been discharged by the learned trial court, it would not make any difference. For, besides the three persons who have been charge-sheeted, the investigation is pending against other six persons who have been named in the FIR. Thus, according to the Investigating Agency, prima facie ten known 13 persons are still involved. Hence, the contention raised by the learned counsel that with the discharged of Neeraj Verma, the number of persons has been reduced to less than five, therefore, the petitioner cannot be roped in with the aid of Section 149 IPC, such a contention is baseless. The learned counsel has relied upon 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 14 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 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 15 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 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 16 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 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 17 the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been