RAJBIR sr-.JGH

STATE OF U.P. AND ANR.

MARCH 8, 2006

[ARUN KUMAR AND G.P. MATHUR, JJ.)

Penal Code, 1860---Sections 201, 301 and 302--Criminal Procedure Code, 1973-Sections 227 and 228(1) (b)-Scheduled Castes and Scheduled C Tribes (Prevention of Atrocities) Act-Section 3(2) (iv)--Charges framed against respondent for involvement in murder of a Schedule Caste girl and running away with firearm from site of occurrence-High Court quashed the charges on the ground that the respondent never intended to kill the girl due to her caste and that she accidentall:y received injuries--.Correctness a/- Held, the respondent is clearly guilty under section 301 lPC-On facts, the D respondent is prima facie involved in commission of crime under section 20 I

!PC-Trial Court directed to proceed against respondent after framing appropriate charges.

Appellant-complainant lodged an FIR with police alleging that accused came to his shop armed with firearms and fired at him and his E family members. His father and a girl, belonging_ to Schedule Caste community who was in the shop to purchase some articles, sustained firearm injuries and fell down. Both of them died on way to hospital. On the basis of the FIR, a case was registered under section 302 IPC and section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention F of Atrocities) Act. During the course of investigation, the name of respondent no. 2 also appeared as some witnesses stated that one of the accused handed over his firearm to him who ran away from the spot with it. The trial court framed charges against respondent no. 2 under section 302 read with Section 34 IPC and under section 3(2) (v) of the SC/ST Act.

Respondent no. 2 filed a criminal revision under section 397/401 Cr.P.C.

G before High Court challenging the order of the trial court framing charges against him. The High Court allow1d the revision by quashing the charges framed against respondent no. 2 under the SC/ST Act on the ground that the respondent never intended to kill the girl on the ground of her caste and that she accidentally received injuries.

H 1134

RAJBIRSINGHv. STATEOFU.P. 1135

Allowing the appeal, the Court

HELD: I.I. The High Court completely ignored the provisions of section 301 IPC. The 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. The fact that there was no intention to cause B injury to the girl and she was accidentally hit can make no difference as according to the version of the prosecution, the accused intended to cause t injuries by firearm to the father of the complainant 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 wholly erroneous in law and C cannot be sustained. (1137-G; 1138-B; F-G]

Shankarlal Kacharabhai and Ors. v. State of Gujarat, AIR (1965) SC 1260, relied on.

1.2. The High Court did not at all apply the relevant test, namely, D 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 the affirmative, an order of discharge cannot be passed and the accused has to face the trial. Section 301 IPC have been completely ignored by the High Court and the relevant criteria for judging the validity of the order passed by the trial court directing framing of E charges have not been applied. (1140-D, F]

1.3. The prosecution case that one of the accused handed over his rifle to 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 F 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. The trial court before whom the trial of the other co-accused is pending, is directed to proceed against respondent no. 2 after framing appropriate charges and G try him in accordance with law. [1140-G, H; 1141-AI

State of Bihar v. Ramesh Singh, AIR (1977) SC 2018 and Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Anr., (1989[ 1 SCC 715, referred to.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303 of 2006.

From the final Judgment and Order dated 9.7.2004 of the Allahabad High Court in Criminal Revision No. 2769/2004.

B Dinesh Kumar Garg and Manzoor Ali Khan for the Appellant.

Uday U. Lalit, D.S. Choudhary, Ajay Choudhary, M.R. Shishodia, V.N.

Raghupathy, Suresh Shishodia, Pramod Swarup, Ms. Shalini Kumar and Jatinder Kumar Bhatia for the Respondents.

C The Judgment of the Court was delivered by

G.P. MATHUR, J. 1. Leave granted.

2. This appeal, by special leave, has been preferred by the complainant (first informant) against the judgment and order dated 9.7.2004 of Allahabad D High Court by which the charges framed against Akhilesh Chauhan (respondent No. 2) were set aside.

3. 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 E Rathore. On account of this incident, exchange of hot words took place between his father Ho ti 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 F 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 G 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 H Atrocities) Act (for short 'SC/ST Act') at the police station. The name of

RAJBIRSINGHv. STATEOFU.P. [G.P.MATHUR, J.] 1137

Akhilesh Chauhan (respondent no. 2) was not mentioned in the FIR. During A 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.

4. After the case had been committed to the Court of Sessions, the B learned Special Judge (SC/ST Act) by his order dated 11.5.2004 framed charges under Section 302 read with Section 34 !PC 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 C 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 D 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.

5. 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 G the injuries as she was passing through that way and was hit. The High Court completely ignored the provisions of Section 30 I !PC which reads as under

30 I. Cu{pab/e homicide by causing death of person other than person whose death was intended.--If a person, by doing anything which he H

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.

6. The contents and scope of Section 30 I !PC were examined in Shankarla/ Kacharabhai and Ors. v. The State of Gujarat, AIR (1965) SC

1260 and the same were explained as under :

".............. h 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 8, 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. 30 I, 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. ,,

F 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, G wholly erroneous in law and cannot be sustained.

7. 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 H witnesses stated that one of the accused handed over his rifle to Akhilesh

" .!

RAJBIRSINGHv.STATEOFU.P. (G.P.MATHUR, J.] 1139

Chauhan who ran away from the spot. Chapter XVIII of Code of Criminal A 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, B he shall discharge the accused and record his reasons for so doing. Section 22 8(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 C

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 to adduce are not to be meticulously judged. Nor is any D 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 E 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 F

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 G 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 H

A be no sufficient ground for proceeding with the trial."

8. In Stree Atyachar Virodhi Parishad v. Dilip Nathuma/ Chordia and Anr., [1989] I 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 affinnative an order of discharge cannot be passed and the E 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 F be no manner of doubt that the provisions of Section 301 !PC 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.

G I 0. 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 20 I 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/ H ST Act. The charges framed against the accused who are alleged to have

RAJBIR SINGH v. STATE OF U.P. [G.P. MATHUR, J.] 1141

resorted to firing should be amended accordingly.

11. 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 B 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

7 merits of the case. The learned Special Judge shall decide the case striclty on the basis .of evidence adduced by the parties and in accordance with law.

B.S.

Appeal allowed. C