Hon'ble CHAUHAN, J. - (1.) AGGRIEVED by the order dated 19.02.2011, passed by the Additional Sessions Judge (Fast Track), Nagaur, whereby the learned Judge has framed the charges for offences under Sections 447, 323, 323/34, 325, 325/34, 307 and 307/34 IPC, the petitioner has approached this Court.
(2.) SHORTLY the facts of the case are that the SHO, Police Station Khimasar, District Nagaur, recorded the Parcha Bayan of Rikhab Chand, wherein he claimed that he and his family members are co-joint owners of a land in khasra No.595 measuring 57 biga 11 biswa. Half of the said land belongs to him, his brothers, namely Ramesh, Hariram and to their mother, Smt. Kamla Devi. The other half of the land belongs to his cousin brothers, Om Prakash and Chaturbhuj, who are the children of his elder uncle. While the northern portion belongs to Om Prakash and Chaturbhuj, the southern portion belongs to them. He further claimed that southern portion is in their possession, while the northern portion is in possession of Om Prakash and Chaturbhuj. He further claimed that on their land, he and his brothers had sown Bajara and sesame seeds (Til). On 12.09.2010, while he himself, his brother, Ramesh and their mother, Smt. Kamla Devi, had just entered the farm, they found Chaturbhuj, Om Prakash, wife of Chaturbhuj, Ishwar and Dinesh, sons of Chaturbhuj, Smt. Gita, wife of Om Prakash, their daughter Kaushaliya, two of their brother-in-laws and their wives, hiding in their farm. These persons were armed with Sickle (Kassi) and Koot. The moment, the complainant and his family members entered their farm, they were assaulted by these persons. According to him, Chaturbhuj hit him on his head with Sickle (Kassi) and Om Prakash hit him with a koot on his right eye. He further alleged that the wife of Chaturbhuj and wife of Om Prakash, the petitioner before this Court, hit him on his hips, back and legs with lathies. He further alleged that the son of Chaturbhuj, hit his brother with Sickle (Kassi) on his head and Orn Prakash's brother-inlaws hit his brother, Ramesh, with lathies on his back. He further alleged that Dinesh also hit his brother with lathi on his legs. He further claimed that Ishwar, son of Chaturbhuj, had hit his brother, Ramesh, with a Sickle (Kassi) on his head. When their mother shouted for help, the assailants ran away. On the basis of the said Parcha Bayan, a formal FIR, FIR No. 103/2010, was chalked out for offences under Sections 143, 447, 323, 379, 307 IPC. After a thorough investigation, the police filed a charge-sheet only against Chaturbhuj, Ishwar Chand and the present petitioner, Geeta Devi. Vide order dated 19.02.2011, as mentioned above, the learned Judge has framed the charges for the aforementioned offences. Hence, this petition before this Court. Mr. Vinay Kothari, the learned counsel for the petitioner, has vehemently raised the following contentions before this Court : firstly, the complainant, Rikhab Chand, had named a large number of persons as the assailants in the FIR. However, after a thorough investigation, the Police has submitted a charge-sheet only against three persons. Thus, clearly the complainant has falsely implicated a large number of innocent persons. Therefore, the veracity of his statement, recorded under Section 161 Cr.P.C, cannot be believed. Secondly, the falsity of his statement is apparent from the fact that Rikhab Chand claims that Om Prakash was not only present, but he had also struck him with a Koot on his right eye. However, Om Prakash happens to be a driver with Rajasthan State Road Transport Corporation; according to log book dated 12.09.2010, he was driving Bus No.2033 from Nagaur to Jaipur. Realizing the falsity of Rikhab Chand's statement, the Police has not filed a charge-sheet against Om Prakash. Thirdly, the only allegation against the present petitioner is that she had hit Rikhab Chand on his hips, back and legs with a lathi. According to the injury report, the injuries on his legs are simple in nature and have been caused by a blunt weapon. Therefore, the offence under Section 307 IPC is clearly not made out against the petitioner. Yet, the petitioner has been charge-sheeted for offence under Section 307 IPC simplicitor. Fourthly, before framing the charge, the learned trial court is duty bound to consider the entire evidence collected by the prosecution as well as the evidence produced by the defence. In order to substantiate this contention, the learned counsel has relied upon the case of State of Madhya Pradesh vs. Sheetla Sahai & Ors. ((2009) 8 SCC 617). Lastly, in case two views are possible of the same evidence, then the accused-offender deserves to be discharged. According to the learned counsel, in the present case, since the offence under Section 307 IPC is not made out and a grave possibility does exist that the offence may not travel beyond Section 325 IPC or at worse beyond Section 326 IPC, the petitioner should have been discharged from the offence under Section 307 IPC. In order to buttress this contention, the learned counsel has relied upon the case of Union of India (UOI) vs. Prafulla Kumar Samal & Anr. (AIR 1979 SC 366). On the other hand, Mr. Mahipal Bishnoi, the learned Public Prosecutor, has strenuously contended that the charge under Section 307 IPC is only an alternative charge framed against the petitioner. There is ample evidence to establish the fact that the petitioner was not only present at the scene of the crime, but had also assaulted Rikhab Chand with a lathi on his hips, back and legs. Since the petitioner had accompanied the other two persons, who were carrying lethal weapons and she herself carried a lathi, obviously she shared a common intention with them for assaulting, and for attempting to murder Rikhab Chand. Thus, the learned Judge was certainly justified in framing the charge in the alternative for offences under Sections 307, 307/34 IPC. Secondly, at the time of framing of the charge, although the learned trial court is permitted to sift through the evidence, but in an extremely limited manner. At the initial stage, the learned trial court cannot microscopically examine the lacunae in the case of the prosecution. For, that is the realm of trial court during the course of trial and not at the stage of framing of the charge. Therefore, even if other alleged offenders have not been charge-sheeted by the Police, but only three persons have been charge-sheeted, it would not be fatal to the case of the prosecution. Furthermore, the courts in India have not relied upon the doctrine that "once a liar, is always a liar". Therefore, even if for the sake of arguments, it is taken that Rikhab Chand is lying about the presence of Om Prakash, it cannot be presumed in law that he is equally lying about the presence and participation of the petitioner. Fourthly, the petitioner, having participated and having shared a common intention with the other co- accused, is vicariously liable for offence under Section 307/34 IPC. Therefore, the contention that she is liable for her own act of having hit the complainant with a lathi on his hips, back and legs does not carry much water. Hence, he has supported the impugned order. Heard the learned counsel for the parties and perused the impugned order.
(3.) RECENTLY in the case of Sajjan Kumar vs. Central Bureau of Investigation ((2010) 9 SCC 368 = 2010(4) RLW 3435 (SC)), the Apex Court has summarized the scope and ambit of Secs. 227 and 228 Cr.P.C. 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 weight the evidence for the limited propose 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 and 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. (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. Although it is true, as held by the Apex Court in the case of Sheetla Sahai (Supra), that the trial court is duty bound to consider the entire evidence collected both by the prosecution and pleaded by the defence, but simultaneously it is equally true that the learned trial court cannot meticulously and microscopically examine the evidence in order to find faults with the prosecution case. As mentioned above, proper assessment of evidence is the realm of the trial court during the course of the trial. Therefore, at this initial stage, the trial could not have considered the effect of alleged false statement, vis a vis, Om Prakash and the effect of the fact that the Police did not charge-sheet Om Prakash, but only charge-sheeted three accused- persons. The issue whether the petitioner has been falsely implicated in the present case, cannot be decided at the initial stage. Therefore, the first contention raised by the learned counsel for the petitioner that the petitioner is being falsely implicated is unacceptable. Criminal Law distinguishes between individual liability of a person and vicarious liability of an offender. Section 34 of IPC is abundantly clear that in case four or less number of persons share a common intention and do an act in furtherance of their common intention, then each of them is liable vicariously for the acts of other co-accused persons. According to the prosecution, the petitioner was not only present at the scene of crime, but she also participated and assaulted the complainant with a lathi on his hips, back and legs. Since she went along with two other co-accused persons, who were armed with lethal weapons, since she herself carried a lathi, prima facie she shared a common intention with the other co-accused persons to attempt to commit murder of Rikhab Chand. ;