ORDER
Rajendra Saxena, J.
1. This revision petition has been preferred against the order dated 17-7-1991 passed by the learned Special Judge, SC & ST (Prevention of Atrocities) Act Cases cum Addl. Sessions Judge, Bikaner, whereby he discharged the accused respondent Vikram Singh for the offence under Section 307, I.P.C, and transferred the case under Section 228(1)(a) Cr. P.C. to the learned C.J.M. to try the remaining offences; in accordance with law.
2. Now briefly the factual matrix of this case. It appears that on the 'Parcha bayan' of injured Kishan Singh recorded by Shri Bhan Singh A.S.I, on 10-7-1986 at 1.10 a.m., in P.B.M. Hospital, Bikaner, a case under Sections 307 and 324, I.P.C, was registered at Police Station, Kotgate, Bikaner. The petitioner, in his 'Parcha bayan' stated that on that night at about 12-15 a.m., while he was going to his house and came near the Old Petrol Pump situated near Public Park, Bikaner, on his scooter, a person whose face was rapped-with cloth, came in front of his scooter; that he tried to avoid him that the said person dealt a blow by some sharp object on the back side of his head with the result that he fell down. Thereafter, the assailant inflicted another blow causing injuries on his right palm and fingers. The assailant also caused injuries on his right and left belows that meanwhile he caught hold of the weapon of the assailant, which was found to be a 'Khukhari' that he also snatched the cloth wrapped around the face of the assailant, which was untied and he identified that the assailant was Vikram Singh that thereafter, Vikram Singh, with an intention to kill him, inflicted five-six 'Khukhari' blows on the head causing extensive injuries to him. On the alarm raised by him, Shankerlal came there and that thereupon Vikram Singh fled away. The petitioner also stated in his 'Parcha bayan' that thereafter somebody informed the police; that he was lifted in a police jeep and admitted in the hospital. He also stated that he has taken on rent the house of Vikram Singh for his Company; that Vikram Singh forcibly wanted to eject him therefrom and for that reason, Vikram Singh inflicted injuries to him with an intention to commit his murder. On the same day at about 3.15 a.m., petitioner's dying declaration was also recorded by the learned A.M.J.M., Bikaner. The doctor found as many as seventeen injuries on the person of Kishan Singh including the following six injuries, which were found on various parts of his head:
'1. Incised wound 10 cm. X 0.5cm. x bone deep on both occipital region is of scalp across the mid line and on the left parietal region of scalp obliquely placed;
2. Incited wound 2.8 cm. x 0.5 cm. x bone deep on both parietal regions of scalp distal 1/2 obliquely placed across the mid line & just medial to the parietal part of injury No. 1;
3. Incised wound! 3.6 cm. x 0.5 cm. x bone deep on both parietal regions of scalp across the mid line;
4. Incised wound 3.5 cm. x 0.3 cm. x bone deep on right parieto occipital region;
5. Incised wound 2.5 cm. x 02. cm. x bone deep on right fronto parietal region; and
6. Incised wound 2.5 cm. x 0.3 cm. x bone deep on the right frontal region of scalp.'
There were multiple incised wounds on his right little finger, right upper arm, left little ring, middle and index fingers or the palmar aspect and left little, ring, middle and index fingers cutting tendons of the left index finger.
3. The petitioner, who was admitted in the P.B.M. Hospital on 10-7-1986 as an indoor patient left that hospital on [19-7-1986 without permission of the doctor. Thereafter, he was admitted in the Military Hospital from 19-7-1986 to 28-7-1986 and from there, he was referred and admitted in S.M.S. Hospital, Jaipur from 29-7-1986 to 11-8-1986, where he was operated upon by Dr. V. M. Pande for multiple incised wounds in both hands, which had impaired sensation in his two fingers and inner side of the palms. The X-ray examination of petitioner's skull and right elbow, however, did not disclose any fractures. The accused respondent Vikram Singh was arrested on 3-3-1987 and it is alleged that in pursuance to his information, he got recovered a partly blood stained 'Khukhari' and his blood stained clothes from his house on 4-7-1987. After completion of the investigation, a challan was filed against him for the offences under Sections 307, 326, 324 and 323, I.P.C. in the Court of learned CJM, Bikaner, who committed the case on 23-7-1987 to the learned Sessions Judge, Bikaner. On 8-3-1989, the learned Sessions Judge framed charges for the offences under Sections 307 and 326, I.P.C, against the accused respondent Vikram Singh, who filed S. B. Criminal Misc. Petition No. 298/891 in this Court, which was allowed vide its order dated 18-9-1989 setting, aside the order of the learned Sessions Judge framing charge on the ground that it was not a speaking order. The learned Sessions Judge was directed to again consider the matter of framing of charge and to pass a speaking order after going through the material on record. The learned Sessions Judge thereafter transferred this case to the Court of learned Special Judge, S.C. & S.T (Prevention of Atrocities) Act Cases cum Addl. Sessions Judges, who by his impugned order dated 17-7-1991 discharged the accused respondent Vikram Singh for the offence under Section 307, I.P.C, and transferred the case to the learned C.J.M., Bikaner. Hence this revision petition.
4. I have heard S/Shri Pradeep Shah learned counsel for the petitioner, Daulat Singh Rathore learned Public Prosecutor and M. K. Garg learned counsel for the accused respondent at length and carefully perused the record of the lower Courts in extenso.
5. Mr. Pradeep Shah has strenuously canvassed that the accused respondent had inflicted as many as half a dozen injuries by repeated 'Khukhari' blows on the head of the petitioner that it was his good luck that the petitioner was saved and this fact itself manifestly speaks the intention of the accused had the intention to kill the respondent that he had the intention to kill the petitioner. He has asserted that the petitioner was not being satisfactorily looked-after and treated at the P.B.M. Hospital, Bikaner and, as such, he was shifted to the Military Hospital and thereafter to the S.M.S. Hospital Jaipur. According to him, the learned trial Judge has not considered the evidence collected by the Investigating Office in this case in right perspective and committed a grave error in discharging the accused respondent for the offence under Section 307, I.P.C.
5A. Mr. D. S. Rathore, learned Public Prosecutor, has not supported the impugned order. He has urged that keeping in view the totality of the facts and circumstances and the evidence collected by the 1.0. in this case, there is sufficient ground to presume that the accused respondent has committed an offence punishable under Section 307, I.P.C.
6. On the other hand, Mr. M. K. Garg, learned counsel for the accused respondent, has asserted that the radiological examination of the skull of the petitioner did not reveal any fracture and, as such, all the six head injuries sustained bay the petitioner were simple in nature; that there is no opinion of the doctor to the effect that the petitioner's injuries were dangerous to life; that after the alleged incident, the condition of the petitioner was not serious, who left the P.B.M. Hospital at his own accord without any advice of the doctor. According to him offence under Section 307, I.P.C., is not made out and the impugned order does not warrant any interference.
7. I have given my careful consideration to the rival submissions. Section 227 Cr. P.C. lays down 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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 of the Code proclaims that if after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused is committed an offence, which is not exclusively triable by the Court of Session, he may frame a charge against the accused by his order transferring the case for trial tot he C. J.M. If the offence is exclusively trial by the Court of Session then he shall frame a charge against the accused.
8. In State of Bihar v. Ramesh Singh, : 1977CriLJ1606 interpreting the relevant factors and duty elf the Court for discharging or framing of charge, the Apex Court has formulated the following guidelines;:
'Reading Section 227 and 228 together in juxtapsition, 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 proposes to adduce are not to be meticulously judged. Nor is any 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 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 Section 227 or Section 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 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 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 be no sufficient ground for proceeding with the trial.
If the scales of pan is to the guilt or innocence of the accused are something like even at the conclusion of the trial, then on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.'
9. In Stree Atyabhar Virodhi Parishad v. Dilip Nathumal Chordia, : [1989]1SCR560 , it has been observed that Section 227 itself contains enough guidelines for the scope of inquiry for the purpose of discharging an accused; that the word 'ground' used in the said section is net 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 ^it the time of framing of charge. The Court, therefore, need not undertake an elaborate inquiry in sifting land weighing the materials. Nor is it necessary to delve deep into the various aspects. All that the Court has to consider is whether the evidentiary material in record, if generally accepted, would reasonably connect the accused with the rime. Under Section 227 I.P.C, a duty is cast on the Judge to apply his mind to [the material on record and if on examination of the record, he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand, if after such considerations and hearing, the Court is satisfied that a prima facie case is made out against the accused or there is ground for presuming that the accused has committed offence, a charge should be framed in accordance with the (provisions of Section 228 of the Code.
10. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, : 1990CriLJ1869 , the Apex Court has clarified that at the stage of Sections 227 and 228 Cr.P.C. the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence and that for this limited purpose, the Court may sift the evidence.
11. Now keeping in view the aforementioned guidelines, let us find out whether in this case. There is ground for presuming that the accused has committed an offence under Section 307, I.P.C, or whether there is sufficient ground for proceeding against him for the said offence. The alleged incident took place in the dead hour of the night at about 12-15 a.m. near an isolated place adjacent to public park. It is alleged that the accused respondent had covered his face by wrapping a cloth, which, during the scuffle, was snatched by the petitioner, who identified that the assailant was accused respondent Vikram Singh. It is alleged that the accused respondent gave repeated blows from 'Khukhjari', which is a formidable lethal weapon, on the head of the petitioner causing aforementioned six incised wounds on his head, which is a vital part. Besides this, the petitioner received eleven other injuries on his both hands and fingers cutting tendons. The blade of the 'Khukhari' alleged to have been recovered at the instance of the accused respondent, was 18.7 cm. in length, whose breadth at its tip was 0.5 cm., which extended to 5.5 cm. in the middle and 4 cm. near its handle. The handle of the 'Khukhari' was 9.4 cm. in length. In the 'Parcha bayan', the F.I.R. and the police statement, the petitioner had specifically stated that accused Vikram Singh had inflicted multiple injuries to him with an intention !to commit his murder because he had declined to vacate the premises let out to him. The alleged eye witness;, Shankerlal, who came to the place of the occurrence on the alarm raised by the petitioner, in his! statement dt. 10-7-1986 recorded under Section 161, Cr.P.C. has stated that the had seen Vikram Singh inflicting five-six Khukhari blows on the head of Kishan Singh, who had fallen down and that when he asked Vikram Singh as to what was he doing, the latter exclaimed 'he has to kill Kishan Singh today'. It is true that the X-ray examination of the petitioner's skull did not reveal fracture of any skull bone and that the Investigating Officer did not procure the opinion of the doctor that the injuries sustained by the petitioner were dangerous to life. But a bare perusal of the indoor patient ticket of the P.B.M. Hospital, Bikaner as also of Military Hospital and the operation notes and progress record of the petitioner maintained in the S.M.S. Medical College and Hospital, Jaipur, prima facie show that the condition of the petitioner was serious and that he was hospitalised from 10-7-1986 to 11-8-1986.
12. In State of Maharastra v. Balram Bama Patil, : 1983CriLJ331 it has been held that to justify a conviction under Section 307, I.P.C, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assitance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be, ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned but still there may be cases in which the culprit would be liable under this section. The Apex Court has further observed that it is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted and that what the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances enumerated iii Section 307, I.P.C. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. In that case, the learned Sessions Judge after trial, convicted the accused persons under Section 307, I.P.C, but the Bombay High Court set aside their conviction and sentence for the said offence. The Apex Court allowing the State appeal held that the High Court was not correct in convicting the accused persons of the charge under Section 307, I.P.C., merely because the injuries inflicted on the victims were in the nature of simple hurt and found those accused persons guilty for the said offence.
13. At this stage there is no reason to disbelieve the 'Parcha bayan' and the police statement of the petitioner and that of alleged eye witness Shankerlal who have specifically stated that accused respondent had inflicted multiple 'Khukhari' blow to the petitioner with an intent to kill him. Therefore, there is sufficient ground for presuming that the accused has committed an offence under Section 307, IPC.
14. In State of Rajasthan v. Jagmal, 1983 Raj LW 681, the victim received eight injuries on parieto occipital region. His skull bone was fractured and the weapon used was 'dhariya'. It was reiterated that it was altogether] another matter whether ultimately a conviction under Section 307, IPC will follow or not for framing the charges because the ultimate result is not to be taken into consideration. What is required to be seen at stage of framing the charge is whether a prima facie case is or is not made out to frame the charge under Section 307, IPC.
15. In Ghanshyam v. State of Rajasthan, 1988 Cri LJ (Raj) 428, in the FIR, it was clearly alleged that the accused persons had come with an intention of killing the members of the complaint party. One grievous injury was caused on the head with an axe. It was held that prima facie case was made out for framing charge under Section 307, IPC.
16. Mr. M.K. Garg, learned counsel for the accused respondent has relied on the case of Mani Ram v. State of Rajasthan, 1988 Cri LR (Raj) 342. In that case, the learned Sessions Judge after trial convicted the accused for the offences under Sections 307 and 458, IPC and under Section 27, Arms Act and sentenced him against; which Mani Ram filed an appeal in this court. In that case, pistol shots caused simple injuries on non vital parts of the body. Taking into consideration the evidence recorded in that case, it was held that the accused was guilty of the offence under Section 324, IPC rather than under Section 307, IPC. Apparently, it was not a case for discharging the accused under Section 227, Cr.P.C. or for framing charge under Section 228, Cr.P.C. for the offence under Section 307, IPC. Therefore, the facts of Mani Ram's case (supra) are clearly distinguishable and the same does not render any substantial assistance to the accused respondent.
17. In the premise of the above discussion, I am of the considered opinion that the learned trial Judge has not taken into consideration the record of the case and the evidence collected by the I.O. in a right perspective and has committed a grave error in ignoring the specific assertion of the petitioner and the alleged eye witness Shankerlal that the accused respondent Vikram Singh had inflicted injuries by inflicting repeated 'Khukhari' blows on the head and other parts of his body with an intention to kill him. In my considered opinion, there is sufficient ground for presuming at this stage that the accused respondent has committed an offence punishable under Section 307, IPC. Therefore, the impugned order is neither legal nor correct nor appropriate and the same cannot be sustained.
18. This revision petition is, therefore, allowed and the impugned order dated 17-7-1991 is hereby set aside and the learned trial Judge is directed to frame charge under Section 307, IPC and other appropriate offences against the accused respondent Vikram Singh and to proceed with the trial in accordance with law. The record of the learned lower court be sent back immediately.