ORDER
A.S. Godara, J.
1. This Criminal Revision Petition, under Section 397 read with Section 401, Code of Criminal Procedure, 1973 (for short 'the Cr. P.C) has been filed against the order dated 28-3-97 passed by the learned Addl. District Judge, cum- Special Judge, SC/ST (Prevention of Atrocities) Act, Bikaner in Sessions Case No. 91/96.
2. Briefly stated, for the disposal of the present petition, the facts giving rise to this petition are that Hazari Ram resident of Chak 19 B. D. lodged FIR No. 129/95 at the Police Station, Khajuwala, District Bikaner on 25-10-95 at 12.30 p.m. reporting at about 7.30 a.m. that he had gone to the field of his son-in-laws Heera Lal and Bhagirath etc. whereat mustard was to be sown with the tractor of Maniram Bishnoi. The accused Ram Kumar resident of Chak 3 B. D. accompanied by his co-accused persons, came armed with a D.B.B.L. who was exclaiming that Randhir Singh and Jagdish should remain there and that he would kill both of them with his gun. He (informant) ran,into the 'dhani' of another Hazari Ram and Jagdish returned to his field and the accused-persons rounded up Jagdish who was given beatings with lathis by the co-accused persons of the accused Ram Kumar and, to enable Ram Kumar to shoot Jagdish to death, his co-accused persons released Jagdish and the accused Ram Kumar aimed at and fired a gun-shot towards Jagdish and, meanwhile, Hazari Ram and his son Rameshwar Lal came running for intervention and, as a result, though the gun-shot so dischargd by Ram Kumar missed Jagdish but, anyhow, Hazari Ram, who so came running to the rescue of Jagdish, was hurt with pellets resulting in simple injuries. Hazari Ram asked Ram Kumar as to why did he fire to which Ram Kumar told that he would kill Jagdish, Randhir Singh, Bhagirath and Heera Lal to death. However, some more persons came to the site and, consequently, the accused-persons along with their weapons escaped from the scene.
3. On registration of case, investigation was taken up. Hazari Ram was sent to the hospital for examination of injuries whereat he was examined and the Medical Jurist, examining the injuries on 26-10-95, found three bruises on the posterior aspect of the right forearm, right, iliac 'bone and anterior aspect of the right, thigh caused within a duration of 48 hours from the time of examination of the injuries. A licensed 12 bore D.B.B.L. gun was recovered from the possession of accused Ram Kumar. The police registered an FIR for alleged commission of offences punishable under Sections 336, 323,307, 147,148 read with Section 149, I.P.C. as well as under Section 27 of the Indian Arms Act and, on completion of investigation, a charge-sheet under Sections 307, 323 and 341, I.P.C. as well under Section 27 of the Indian Arms Act was filed against the accused-Ram Kumar while Ram Swaroop, Jora Ram and Mala Ram had been charge-sheeted under Sections 307, 341, 323 read with Section 34, I.P.C. in the Court of Addl. Chief Judicial Magistrate, Bikaner who, in turn, committed the case to the Court of Session, Bikaner wherefrom, lastly, the same stands transferred to the present trial court.
4. The learned trial Judge, before commencing trial, heard both sides for framing of charges against the accused-persons and, on consideration of record of the case and the documents submitted therewith, vide impugned order dated 28-3-97, ordered that Ram Kumar was prima facie liable for commission of offences punishable under Sections 307, 323 and 341 as well as' under Section 27 of the Indian Arms Act whereas the rest of the accused persons were liable for commission of offences punishable under Sections 307, 341 and 323 read with Section 34, I.P.C. and hence in exercise of power under Section 228(1), Cr. P. C. it was ordered that since the accused-persons are also liable for commission of an offence exclusively triable by the Court of Session and, accordingly, the accused-persons be formally charged with commission of the aforesaid offences so as to be tried according to law and, subsequently, formal charges have also been framed and the plea of the accused-persons has also been recorded who have pleaded not guilty to the charges and, being so aggrieved, the accused-persons, have preferred this revision petition, as above.
5. I have heard the learned counsel for the petitioners as well as the learned P. P. and have also gone through the impugned order besides the record of the case and the documents filed there along with before the lower Court.
6. The learned counsel for the petitioners reiterating all the contentions as have been raised in the petition itself, while assailing the impugned order, submitted that due to animosity, Hazari Ram has lodged a false and exaggerated report about the incident and, besides, the learned trial Judge conveniently overlooked the fact that the medical evidence relied upon by the prosecution in support of the allegations that the informant Hazari Ram, while pellets of gun-shot fired by the accused-petitioner Ram Kumar who had targeted Jagdish to be killed to death and the Medical Officer has clearly opined that there were only three simple bruises caused by a blunt weapon and not by any fire-arm, instead, in case there was any penetration of pellet in any part of the body of the injured Hazari Ram, there ought to have been marks of lacerations at the site of injuries whereas there was none. Besides, the medical evidence does not support the prosecution case that Hazari Ram received these injuries with any fire-arm and the prosecution also did not send the gun alleged to have been recovered from the possession of Ram Kumar for examination by a ballistic expert who could have reported that the gun was recently used and fired and that the alleged small holes found on the 'dhoti' and shirt of Hazari Ram also bore any fire-arm marks. Besides, though the prosecution has based its story on the allegations that Ram Kumar and his associates were intending to kill Jagdish to death and, therefore, as alleged, initially the co-accused persons of Ram Kumar, allegedly, armed with lathis had rounded up Jagdish and he was being beaten with lathis though there is not a single mark of injury much less any having been caused with a athi on the person of Jagdish and that the Jagdish was targeted to be shot at fatally but not a single pellet struck/hit Jagdish and, instead, it has been alleged that Hazari Ram came running to the rescue of Jagdish and, as a result of gun-shot fire released by Ram Kumar few pellets of the gun-shot fire hit Hazari Ram on his right side of the body but, in the circumstances, Jagdish having escaped scot-free and hurtless and, instead, when there was no intervention or any other factor disabling Ram Kumar to have yet aimed at again and to fire to kill him to death but there is even no allegation as such and the prosecution case is that after a single fire from the gun by Ram Kumar, all the accused-persons escaped jointly from the scene of occurrence and, therefore, it has been submitted that the learned trial Judge blindly proceeded to frame a charge under Section 307, I.P.C. against accused Ram Kumar and under Section 307/34, I.P.C. against his few accused persons whereas there is not an iota of evidence that the injuries alleged to have been received by Hazari Ram were a result of any gunshot fired by Ram Kumar and that he had actually with an intent to kill, Jagdish, Randhir Singh, Bhagirath and Heera Lal, aimed at and fired in an attempt to murder any of the said persons and, consequently, intrinsically judged, even if the prosecution story is accepted on its face value, there is no justification for framing of any charge under Section 307 or 307/34, I.P.C. since the prosecution has not been able to show that the accused Ram Kumar was in fact armed with a fire-arm and that he had, in an attempt to kill Jagdish, actually fired his gun towards Jagdish which missed the target and instead caused hurt to Hazari Ram.
7. Therefore, the contention of the learned counsel for the petitioner is that there did not exist any ground for proceeding further against the accused-petitioner for alleged commission of offence of attempted murder and, consequently, the charge under Section 307, I.P.C. and, similarly, under Section 307/34, I.P.C. is not made out and the impugned order has resulted in causing great injustice to the accused-petitioners who have been unnecessarily required to face baseless charge for alleged commission of attempted murder of either Jagdish or Hazari Ram whereas, in the aforesaid circumstances, there was no gun-shot injury nor did Ram Kumar attempt to commit murder else he had enough opportunity and the weapon available with him to have immediately resorted to repeated fires at Jagdish who could not have been otherwise spared and, resultantly, the learned trial Judge failed to appreciate the material borne out of the case record and the connected documents so relied upon and produced by the prosecution resulting from the investigation and, therefore, it warrants acceptance of this revision petition and quashing of the consequential charges so framed against the accused-persons.
8. However, the learned P. P. has vehemently submitted that on the face of statement of numerous witnesses claiming to be eye-witnesses, at present, there is nothing to disbelieve the statements of the witnesses specially Hazari Ram (informant) himself that the accused-persons so came armed to the spot whereat Ram Kumar aimed at and fired from his gun towards Jagdish but, anyhow, Jagdish saved himself from being targeted and, instead, Hazari Ram coming to the rescue of Jagdish, got himself injured receiving pellet injuries and, consequently, at present, there is no reason to disbelieve ocular testimony collected during the course of investigation and, therefore, this revision petition was liable to dismissal.
9. I have given my considerate thought to the rival contentions and have also gone through the record specially the statement of the witnesses including Hazari Ram (informant) and others who claim to be the eye-witnesses of the occurrence along with medical evidence and the relevant record and have considered the same carefully.
10. The core question to be considered is as to whether there is no sufficient ground for proceeding against the accused-persons for their alleged commission of offences under Section 307 or 307/34, L.P.C. thereby justifying setting aside of the impugned order and, consequently, framing of charges against the accused-persons.
11. Besides Hazari Ram (informant), being injured, statements of Randhir Singh, Jagdish, Heera Lal, Krishna Ram, Bhagirath and Rameshwar Lal have been recorded. Besides, undeniably the Medical Officer examined injuries of Hazari Ram on 26-10-95 at 2 p.m. The alleged incident took place on 25-10-95 at 7.30 a.m. and the distance between the Police Station, Khajuwala and the place of occurrence is 22 kms. and so the injuries were allegedly examined after more than 16 hours of the incident. Besides, no X-ray to trace-out any presence of any foreign body on the body of Hazari Ram was taken. All these injuries have been opined to have been caused by a blunt weapon while there is no evidence to show as to under what circumstances the pellets of a gun-shot fire would have resulted in causing bruises instead of lacerations. The Investigating Officer also did not examine the Medical Officer as to whether these bruises were possible to have been caused by pellets of a gunshot fire. Besides, there is no report of ballistic expert to conclude that the licensed gun of Ram Kumar recovered from his possession was in fact, prior to incident, fired and used and that the clothes so recovered from his person also bore any mark of fire-arm pellets having pierced the same. Thus, there is absence of evidence of ballistic expert to support the prosecution story and so also there is absence of medical evidence to support the prosecution allegations that the injuries so alleged to have been received by Hazari Ram were caused by a fire-arm.
12. Besides, there is delay of more than 16 hours in examination of the injuries and, yet, in absence of any report of ballistic expert or a radiologist, specially on the face of report of the Medical Officer that only bruises caused by a blunt weapon were existing on the person of Hazari Ram, all these circumstances cumulatively, specially when the prosecution has not been able to get the fire-arm, as yet, examined from the ballistic expert and, in absence of any report in respect of the fire-arm as well as the alleged clothes worn by Hazari Ram at the time of the incident, are not shown to be linked with commission of any incident involving use of firearm and, resultantly, though all the aforesaid witnesses have, with little variations stated that Ram Kumar carrte armed with fire-arm and he though challenged to kill Jagdish, Randhir Singh, Bhagirath and Heera Lal to death tut none was killed to death nor any, excepting even Jagdish, was made on their lives in spite of the fact that nobody restrained or intervened while Ram Kumar was allegedly attempting a fire towards Jagdish. Had Jagdish been caught hold of and rounded up by the alleged associates of Ram Kumar, when he was freed, in case Ram Kumar intended to kill him, there was no obstruction or intervening factor to have faulted Ram Kumar from targeting Jagdish but Jagdish escaped without any injury. Even there is no injury from blunt weapon, in absence of any medical evidence.
13. Besides, when Harzari Ram came out of the 'dhani' while the alleged gun-shot fired by Ram Kumar was exactly aimed at in case he so intended Jagdish to kill him to death but not a single pellet had struck him. Consequently, the prosecution allegation that Hazari Ram while approaching towards Jagdish got hurt with pellets also does not fit in with the prosecution story. Besides, Ram Kumar could have very well fired again to hurt or kill Jagdish but he did not. Besides, he is also not alleged to have fired at or attempted on the lives of Randhir Singh, Heera Lal or Bhagirath and, instead, all the accused-persons are alleged to have made a retreat without any further role on the spot. Therefore, even the alleged injuries being in the nature of bruises have not caused any serious injury on any vital part of the body of Hazari Ram and, besides, even as per the prosecution story Ram Kumar and his associates did not intend to kill Hazari Ram and, resultantly, when the prosecution story does not get any support from the belatedly obtained injury report, and, instead, the nature of the injuries being categorized as bruises and having been caused with a blunt weapon, run counter to the prosecution allegations that the injuries of Hazari Ram were inflicted with a gun-shot fire and there is absence, of report of any armourer or ballistic expert, besides, the radiologist and there was also a delay of about 4 hours in lodging FIR at the Police Station whereat it took more than 16 hours to get Hazari Ram examined at the hospital and, consequently, as a result of aforesaid discussion, there is absence of sufficient grounds to hold that Ram Kumar formed any shared common intention to kill any of the aforesaid persons along with his co-accused persons and he did fire from his gun with intention or knowledge and, under these circumstances that, if, hip had by that act caused death of Jagdish, Hazari Ram or any other person, he would have been guilty of murder punishable under Section 307, I.P.C.
14. 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, he shall discharge the accused and record his reasons for doing so. On the contrary, if after such consideration and hearing as aforesaid, the Judge is of the 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. In the instant case, as borne out of the aforesaid discussion, the Court is required to evaluate 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 offences but, presently, for the limited purposes, sift and weigh the evidence as it cannot be expected even at the initial stage to accept all the prosecution states as gospel truth even if it is opposed to common sense and the broad probabilities of the case, it cannot be held that the record and documents connected therewith and relied upon by the prosecution disclosed existence of all the ingredients constituting offence under Section 307, I.P.C. and, consequently, as also held in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja AIR 1990 SC 1962 : 1990 Cri LJ 1869 and, resultantly, there is no escape from arriving at the conclusion that the impugned order has completely overlooked the provisions of Sections 227 and 228, Cr. P. C. referred to above.
15. The learned trial Judge superficially considered the material and documentary evidence for the purposes of framing charges and, consequently, the material and documents relied upon by the prosecution, intrinsically and on its face, when considered in its right perspective in the aforementioned circumstances, do not furnish sufficient grounds for proceeding against the accused-persons for the alleged commission of offence of attempted murder, there cannot be any justification for still framing charge for alleged commission of attempted murder and, conser quently, the impugned order cannot be held to be justified by the facts and circumstances as are borne out of the prosecution story.
15.1 In Union of India v. Prafulla Kumar Samal AIR 1979 SC 366: 1979 Cri LJ 154, the Hon'ble Apex Court observed that (at page 157 of Cri LJ):
The Judge while considering the question of framing the charges under Section 228 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. Whether 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. But if two views are equally possible and the Judge is satisfied that the evidence produced before him while it gives rise to some suspicion but does not give rise to 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 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.
16. Though at the stage of framing of charges meticulous consideration of evidence and materials by the Court is not required as held in Radhey Shyam v. Kunj Behari AIR 1990 SC 121 : 1990 Cri LJ 668 but, in view of the aforesaid settled legal position, for the limited purpose of exercise of discretion to proceed either under Section 227 or 228, Cr. P. C, the trial Court 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 and, at present, in the aforesaid circumstances, the impugned order does not stand scrutiny to the aforesaid conclusion and, consequently, the impugned order is liable to be set aside.
17. However, it may be observed that the learned trial Judge instead of charge-sheeting the accused-persons under Section 324 or 324/34, I.P.C., since Ram Kumar is alleged to have used the fire-arm using explosives in causing simple injuries to Hazari Ram and, according, causing of simple injuries voluntarily by instrument for shooting, being a fire-arm or by means of any explosive substance, is squarely covered by Section 324, I.P.C. and so also the accused-persons in case of having caused any injury with fire-arm in furtherance of their common intention, ought to have been charge-sheeted under Section 324 or 324/34, I.P.C. instead of under Section 323 or 323/34, I.P.C.
18. However, presently, since there is no serious challenge from the side of accused-persons themselves as regards framing of charges under Sections 341 and 323 or under Section 323/34, I.P.C., besides, under Section 27 of the Arms Act against Ram Kumar and, therefore, so far as framing of charges under these sections, in case thought necessary, the trial Court, whichever it be, shall be at liberty to amend or add or delete any charge at appropriate time before proceeding further with the trial of the case for the remainder of the offences.
19. For the present, as regards the impugned order and consequential framing of charges under Sections 307 and 307/34, I.P.C., as above, is concerned on the basis of aforesaid discussion, since it is found that the learned trial Judge proceeded further and ordered for framing of charges under Sections 307 and 307/34, I.P.C. as well holding that there were grounds for presuming that the accused-persons also committed these offences, whereas, on consideration of the male- rial and documents submitted therewith, there is absence of sufficient grounds for proceeding further to try the accused-persons for commission of these offences as well and, consequently, the impugned order is liable to be set aside and so this revision petition deserves to be accepted.
20. Resultantly, this revision petition is accepted in part and, as a result, consequently charges so framed under Sections 307 and 307/34, I.P.C. against the accused-persons are hereby quashed and set aside and the accused-petitioners stand discharged from these offences. However, as regards the impugned order in relation to framing of charges against other offences and consequential framing of charges existing against the accused-petitioners, the same are left undisturbed and the learned trial Judge shall be at liberty to proceed further according to the provisions of Clause (b) of Sub-section (1) of Section 228, Cr. P. C. henceforth for commission of offences with which the accused-persons have been charged and left undisturbed by this Court.
21. This petition along with its connected stay petition is disposed of accordingly.