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Judgment
Sneh Prashar, J.
CRM-45194-2013 in CRR-3364 of 2013
After hearing the learned counsel for the parties and perusing the application supported by affidavit of the petitioner, delay of 48 days in filing the appeal is condoned.
By way of this judgment, I shall dispose of CRR No. 3364 of 2013 (O&M) and CRR No. 2995 of 2013 as both had arisen out of the order dated 05.06.2013 passed by learned Additional Sessions Judge, Chandigarh, whereby the case bearing First Information Report No. 324 dated 02.12.2012 under Sections 323/325/506/307/34 of the Indian Penal Code (for short, "I.P.C.") was transferred back to the court of Area Magistrate for trial as offence under Section 307 I.P.C. was not made out.
The complaint lodged by Devinder Kumar Dhiman, was registered vide First Information Report No. 324 dated 02.12.2014. His allegations were that he was a building contractor and was awarded contract for construction of Kothi No. 3348, Sector 27-D, Chandigarh by Ashwani Kumar and Krishan Kumar, who were joint owners of the site. In April, 2012 when construction upto second floor was almost complete, twice quarrel had taken place between him and both the brothers on the issue of payments because of which tension was going on. On 29.11.2012 in the morning at about 9:30 a.m. when he was present at the construction site and both the brothers (Ashwani Kumar and Krishan Kumar) were watching the under construction drawing room. An altercation pursued when Ashwani Kumar remarked that the construction work was going slow and he (complainant) replied that the payments were not being made in time. He came to the first floor and started talking the mason working there. In the meantime, both Ashwani Kumar and Krishan Kumar also came there abusing him and said that he was not constructing the Kothi free. Krishan Kumar caught him and slapped him and said "JA ISDA SIYAPA HI MUKADENDE HAN". From his back side, Ashwani Kumar hit on the right side of his head with some heavy object. Mason Ram Navasatar tried to intervene and in order to save himself he ran away. Ashwani Kumar intimidated threatening to kill him.
On the statement of the complainant, a First Information Report under Section 323/506 read with Section 34 I.P.C. was registered. The complainant was radio-logically examined and on the basis of the X-ray report which showed fracture in the right parietal bone and the injury was declared grievous in nature, section 325 I.P.C. was added to the case. After completion of investigation, final report/challan was filed by the police alleging commission of offence under Sections 307/325/323/506 read with Section 34 I.P.C.
The case was committed to the Court of Sessions. After hearing learned counsel representing the respondents and learned Public Prosecutor and considering the material placed on record, learned Additional Sessions Judge, Chandigarh came to the conclusion that prima facie a case for commission of offence under Section 325/323/506 read with Section 34 I.P.C. was made out which was triable by a Judicial Magistrate. Accordingly, the case was sent to learned Area Magistrate directing to frame charges and to try the offence in accordance with the procedure for the trial of a warrant case instituted on a police report.
Feeling aggrieved by the order dated 05.06.2013 passed by learned Additional Sessions Judge, Chandigarh, CRR-3364 of 2013 was filed by complainant Devinder Kumar Dhiman and CRR-2995 of 2015 was filed by the State of U.T. Chandigarh.
Heard the submissions made by Mr. A.K. Gupta, Advocate for the petitioner, Mr. Gagandeep Singh Wasu, Standing Counsel for U.T. Chandigarh and Mr. B.S. Sewak, Advocate for respondents Ashwani Kumar and Krishan Kumar.
Learned State counsel as well as learned counsel for the petitioner-complainant Devinder Kumar Dhiman submitted that from bare perusal of the allegations commission of offence under Section 307 I.P.C. was made out against the respondents. Their intention to kill the petitioner was quite clear from the way they inflicted injuries on him. It was mentioned by the complainant while lodging the First Information Report that earlier also on two occasions quarrel had taken place between him and the respondents-accused on the issue of payments and a tension was going on between them. Respondent Krishan Kumar slapped the complainant and exhorted to finish him and in the meantime respondent Ashwani Kumar inflicted an injury on the head of the complainant with a heavy object. Apparently, there was a common intention of the respondents to kill the complainant and it was with the said intention that they had attacked on him and had caused injuries on a vital part of the body.
Learned counsel contended that at the stage of charge the standard of test regarding guilt and otherwise of the accused cannot be applied. The court has to be satisfied only about the prima facie existence of the factual ingredients constituting the offence. The injury suffered by the complainant was grievous. It had been caused with some heavy object and with an intention and knowledge that it was likely to cause death. In such circumstances, essential ingredients of section 307 I.P.C. were complete. To support his arguments, learned counsel relied upon Sanjay Mishra vs. State, 2009(4) Crimes 726 ; State of Madhya Pradesh Vs. Imrat and Another, AIR 2008 SC 2967 : (2008) CLT 1108 : (2008) CriLJ 3869 : (2008) 10 SCALE 143 : (2008) 11 SCC 523 : (2008) AIRSCW 4993 ; and State of M.P. Vs. Kashiram and Others, AIR 2009 SC 1642 : (2009) CLT 522 : (2009) CriLJ 1530 : (2009) 2 JT 140 : (2009) 2 SCALE 118 : (2009) 4 SCC 26 : (2009) 1 SCR 806 : (2009) 3 UJ 1141 : (2009) AIRSCW 1125 .
Controverting the arguments of learned State counsel as well as learned counsel for the petitioner-complainant, learned counsel for the respondents submitted that simply for the reason that the complainant suffered injury on his head would not bring the offence under Section 307 I.P.C. when intention or the requisite knowledge to cause death was missing. He submitted that as per allegation of the prosecution the respondents were not armed with any weapon. The altercation between the respondents and the victim took place spontaneously and it was not the allegation that the injuries were caused by the respondents with an intention to kill the complainant. The doctor also did not opine that the injury on head suffered by the complainant was dangerous to life or was sufficient to cause death in the ordinary course of nature. That being the state of facts, commission of offence under Section 307 I.P.C. was not made out.
Indeed, section 307 I.P.C. postulates that whoever does any act with such ''intention or knowledge'' and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished as mentioned therein. Section 300 IPC posits that except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse or incurring the risk of causing death or such injury as aforesaid.
On the conjoint and meaningful reading of the above provisions, it transpires that in order to invoke the penal provision of section 307 I.P.C., the ''intention'' or the requisite ''knowledge to cause death'' are the essential ingredients of the said section. For invoking section 307 I.P.C., it is necessary that the act had been committed with a specific intention to commit murder. In other words, an act though sufficient in the ordinary course of nature to cause death, would not always constitute an offence under this section, if the necessary intention or knowledge on the part of the accused is lacking.
Coming to the facts in hand, it may be the version of the complainant that twice there had been quarrel between him and the respondents-accused on the issue of payments but narrating the occurrence in question he stated that on the relevant day he was present at the site of construction for checking the work being done and Ashwani Kumar and Krishan Kumar were standing and seeing the under construction drawing room. It means that till that time both the parties were calm and busy in their respective work. It is after respondent Ashwani Kumar said that the work was going slow and the complainant replied that the payments were not being made in time, that suddenly an altercation erupted, pursuant to which Krishan Kumar gave a slap to the complainant and Ashwani Kumar inflicted an injury on the right side of his head with some heavy object. Admittedly, the respondents were not armed with any weapon. The allegation indicates that Ashwani Kumar picked up some heavy object from the spot and hit with the same on the head of the complainant. Apparently, the occurrence was not result of any pre-meditation and it took place in the spur of the moment.
As far as the medical evidence is concerned, the CT scan report was as under:-
"Depressed fracture right parietal bone is seen, small ill defined hyper density with surrounding edema is seen in right parietal region S/I hemorrhagic contusion, small hypodense air foei sen in right parietal region s/o pneumocephalus, no other definite abnormality is seen."
On the basis of the above report, the doctor gave his opinion that the injury suffered by the complainant was grievous in nature. He neither opined that the injury was dangerous to life nor said that the injury was sufficient to cause death in ordinary course of nature. In the backdrop of the facts discussed above coupled with the medical evidence, it cannot be said that prima facie commission of offence under Section 307 I.P.C. was made out. There was no intention to cause death and the requisite knowledge that the act committed in all probabilities would be sufficient to cause death in ordinary course of nature was also missing. The surrounding circumstances in which the occurrence took place also did not suggest that the respondents had any intention to murder the complainant. The incident originated at a spur of moment which enraged the respondents and they inflicted injury on the complainant with a blunt weapon which turned out to be grievous in nature. Learned Additional Sessions Judge rightly held that no prima facie case of commission of offence under Section 307 I.P.C. is made out.
Thus, finding no illegality or perversity in the order dated 05.06.2013 passed by learned Additional Sessions Judge, Chandigarh, warranting intervention by this court, both the petitions are dismissed.