Dismissed

Pawan Kumar Tomar v. State of Chhattisgarh

Chhattisgarh HC1 Apr 2022CRR/346/2022

Case brief

AI extract

What is this about?

The High Court dismissed the applicant's revision petition challenging the trial Court's framing of charges for attempted murder and illegal possession of arms. It held that prima facie materials suffice for framing charges and the weapon's condition is not determinative at this stage.

What did the court decide?

Revision petition dismissed at the stage of admission holding the framing of charges to be in accordance with law.

Pawan Kumar Tomar Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Cr.R. No. 346 of 2022

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Pawan Kumar Tomar S/o Ramchandra Tomar, Aged About 52 Years Resident Of Village Badaut Ward No.21, Chaudaran Patti, Near Shiv Mandir (U.P.) At Present Village Bailkota, Gud Factory, Sanchalak, P.S. Batauli, District - Surguja Chhattisgarh (Accused)

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---- Applicant Versus • State Of Chhattisgarh Through Station House Officer, Police Station - Batauli, District Surguja Chhattisgarh. ---- Non-applicant ______________________________________________________________ For Applicant: Shri Sunil Tripathi, Advocate For State/Non-applicant: Ms. Binu Sharma, Panel Lawyer.

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Single Bench:Hon'ble Shri Sanjay S. Agrawal, J

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Order On Board

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01.04.2022

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Challenge to this petition is the order dated 09.03.2022 passed in Session Trial No.196/2021, whereby the learned Fifth Additional District and Sessions Judge, Ambikapur, District Surguja (C.G.) (hereinafter referred to as the 'trial Court') has framed the charges against the applicant with regard to the offence punishable under Sections 294, 506 Part-II, 307 of IPC along with Section 25 (1B)(a) and 27 of the Arms Act, 1959.

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From perusal of the record, it appears that on the basis of the written complaint lodged by the complainant Ankur Hada on 28.12.2020, an FIR was registered and the offence punishable under sections 294, 506 and 307 of IPC along with Section 25 of the Arms Act has been registered by the Police Station, Batauli in connection with Crime No.107/2020. According to the prosecution, when the complainant was purchasing the sugarcane on

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28.12.2020 at about 2:00 p.m., the Applicant reached there and started abusing him with filthy words and threatened him to kill on the point of country made pistol ( katta) near the head of the complainant. Based upon the said incident, the aforesaid offence was registered and after completion of investigation, the Investigation Officer has submitted its final report before the trial Court with regard to the aforesaid offence. It appears from the charge sheet that as many as 10 witnesses of the prosecution were recorded by the Investigating Officer and a pistol ( katta) was recovered from the Applicant. It appears further that after considering the aforesaid evidence collected during investigation, the trial Court has framed the alleged charges against the applicant with regard to the offence punishable under Sections 294, 506 PartII, 307 of IPC along with Section 25 (1B)(a) and 27 of the Arms Act.

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Shri Tripathi, learned counsel appearing for the applicant, while referring to the charge sheet, submits that even if the entire materials available in the charge sheet is accepted, no offence as such, in particular, under Section 307 of IPC and Section 27 of the Arms Act would be attracted as ingredients provided therein are not satisfied. In support, he placed his reliance upon the principles laid down by the Supreme Court in the matter of Union of India v. Prafulla Kumar Samal and another reported in AIR 1979 S.C. 366 .

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While opposing the aforesaid contention, it is stated by Ms. Binu Sharma, learned counsel appearing for the State, that the manner in which the offence is committed by the Applicant while using the pistol ( katta ) seized from him, it cannot be said at this stage that the offence punishable under Section 307 of IPC and Section 27 of the Arms Act are not attracted. According to her, only the materials placed before the Court on the basis of investigation alone

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are to be seen at the time of framing charges and after considering the same, the Court below has not committed any illegality in framing the alleged charges. In support, she placed her reliance upon the decisions rendered by the Supreme Court in the matters of Sadakat Kotwar and another v. State of Jharkhand and Parsuram Pandey and Others v. State of Bihar reported in AIR 2021 S.C. 5747 and (2004) 13 SCC 189, respectively.

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I have heard learned counsel for the parties and perused the entire papers annexed with the petition carefully. 6. From perusal of the charge sheet, it appears that based upon the complaint lodged by the complainant, an F.I.R. was registered on 28.12.2020 and during investigation, the alleged weapon ( katta ) used at the time of incident which took place on 28.12.2020 was recovered from the Applicant and, it appears further that upon examination of the witnesses, the Investigating Officer has submitted its final report under Sections 294, 506 and 307 of IPC along with Section 25 of the Arms Act and based upon the materials placed before the Court, the alleged charges have been framed.

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According to learned counsel for the Applicant, the intention and knowledge of the Applicant at the time of occurrence of incident is to be seen in order to bring home the offence punishable under Section 307 of IPC and, since the Applicant was aware at that particular time that the used weapon, i.e., pistol ( katta ) was unloaded, therefore, in absence of ingredients provided either in Section 307 of IPC or Section 27 of Arms Act, no offence as such ought to have been framed. The contention of him is, however, rather prematured to be accepted at this stage as it was reflected from the investigation that he (Applicant) threatened the complainant to kill him by using the alleged weapon which was recovered from him. At this juncture, the principles laid

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down by the Supreme Court in the matter of Parsuram Pandey and Others v. State of Bihar (supra) are to be seen, wherein, while dealing with the ingredients provided under Section 307 of IPC, it was held by the Supreme Court at para 15 as under:-

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15. To constitute an offence under Section 307 two ingredients of the offence must be present: ( a ) an intention of or knowledge relating to commission of murder; and

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( b ) the doing of an act towards it.

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For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence “of attempt to murder”. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place...................

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8. In the case of Sadakat Kotwar and another v. State of Jharkhand

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(supra), the Supreme Court has recently observed in this aspect at para 4.1,

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which reads as under:-

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4.1 …..................As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused........................

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As far as framing of charge under Section 27 of the Arms Act is concerned, it appears from a bare perusal of the charge sheet that the Applicant with the aid of alleged weapon, i.e., pistol ( katta ) has threatened the complainant while pointing it near his head with intention to kill him. Therefore, it cannot be said at this stage that the offence under the said provision has

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wrongly been framed.

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Now, in so far as the principles laid down in the matter of Union of India v. Prafulla Kumar Samal and another (supra), as relied upon by Shri Tripathi, is concerned, the same would, however, not be any useful for him. As in the said matter, the accused persons were discharged by the trial Court as well as by the High Court from the offence punishable under Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act read with Section 120-B IPC and that by considering the scope and ambit of an order of discharge under Section 227 of the Code of Criminal Procedure, it was observed at paras 6 &

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10(4) are as under:-

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6. Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior court, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced court so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.

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10.

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(1) xxxx xxxx xxxx (2) xxxx xxxx xxxx (3) xxxx xxxx xxxx (4) ….........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.

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That apart, it is settled principles of law that the prima facie materials placed before the Court alone are required to be seen at the time of framing of charges as held by the Supreme Court in the mater of Akbar Hussain v. State of Jammu and Kashmir and another, reported in (2018) 16 SCC 85 , wherein, it has been held at para 5, as under:-

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5. ………….“ At the time of framing the charge, the trial court has to consider the material before it by the investigating officer and

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form a prima facie opinion thereupon as to whether it is a fit case for framing of charge under a particular provision. The standard of proof test, which is to be applied at the final stage, in order to find out as to whether the accused is guilty or not on the basis of actual evidence produced is not to be applied at the stage of framing of the charge. Charge can be framed even when there is a strong suspicion founded upon materials before the Court, which leads the court to form a presumptive opinion as to existence of the factual ingredient constituting the offence alleged.”

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In the light of aforesaid principles, it is evident that the Court has to consider the materials brought before it by the Investigating Officer at the time of framing charges and who is to form a prima facie opinion as to whether the alleged offence has been made out or not and, after considering the materials placed before it, the learned trial Court has not committed any illegality in framing the charges vide its order impugned dated 09.03.2022.

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In view of above, this revision petition being devoid of merit is accordingly dismissed at the stage of admission itself.

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Sd/-

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(Sanjay S. Agrawal) JUDGE

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Nikita

Pawan Kumar Tomar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Pawan Kumar Tomar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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