Gopal Johari son of Shri Bhanwar Lal Johari vs The State of Rajasthan

The factual matrix being the same, but different legal

consideration arising for adjudication in two revision petitions;

because of commonality in the factual matrix the two are being

decided together.

Govind Johari is aggrieved by Gopal Johari (his brother)

being discharged for having committed an offence punishable

under Section 307 IPC vide impugned order dated February 17,

2006 passed by the learned Court of Sessions, requiring the

charge-sheet to be transmitted to the Court of the learned

Magistrate with a direction to the learned Magistrate to frame the

appropriate charges keeping in view the findings returned and

observations made by the Court of Sessions.

The grievance of Gopal Johari is to the learned Court of

Sessions directing the learned Magistrate to frame the charges. As

per him the charges had to be framed by the Court of Sessions.

As per the impugned order discharging Gopal Johari for

the offence punishable under Section 307 IPC, the learned

Magistrate would have to consider whether the charges have to be

framed for offences punishable under Section 324, 427 and 504

IPC.

As per the complaint which resulted in registration of

the FIR and statements of the witnesses which were recorded, the

case of the prosecution laid for trial would be that on January 27,

2005 at about 3.15 PM when Govind Johari was in his house C-7,

Prithviraj Road and was in the company of his friends and

relatives, the accused Gopal Johari entered his house and started

abusing him. He branded a revolver and threatened to kill him and

his family members. He broke the windowpane, picked up a piece

of glass and assaulted Govind Johari. The injury caused has been

opined to be a simple injury. This aspect has been noted by the

learned Court of Sessions to bring home the point that the overt

act in question would not attract the offence punishable under

Section 307 IPC and emphasis has been laid on the nature of the

injury caused.

Learned counsel for Govind Johari cites AIR 1983 SC

305, State of Maharashtra Vs. Balram Bama Patil & Ors. to urge

that for a conviction under Section 307 IPC it is not essential that

bodily injury caused was capable of causing death. It is the

intention which has to be seen.

The said judgment cited itself highlights that although

the nature of injury actually caused may often give considerable

assistance 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. In said case during

the election proceedings an unlawful assembly, armed with guns,

axes and sticks had assaulted one person who died at the spot.

Some have received non-grievous injuries. With reference to those

victims the Supreme Court was looking at the issue whether

acquittal of some of the accused for offences punishable under

Section 307 IPC, merely with reference to the injuries was

sustainable.

Learned counsel also cites the decision reported as JT

2009(6) SC 166, Ratan Singh Vs. State of M.P. & Anr. to bring the

same point.

In the instant case, it is prima facie apparent that

Gopal Johari entered the house of Govind Johari to settle some

business related family dispute. As per allegation against him he

branded a revolver but did not fire nor use the same as a weapon

of offence to hit. The windowpane which was broken was used by

him to pick up a piece of glass and then assault his brother. The

nature of the weapon of offence coupled with injuries caused, the

contemporaneous utterances completely rule out the intention to

cause death by a brother of a brother. The impugned order insofar

it discharges Gopal Johari for having committed an offence

punishable under Section 307 IPC is correct.

As regards whether the learned Court of Sessions

should have framed the charge or not, Section 228 Cr.P.C. reads

as under:-

"228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

The word used is ''may''. It means that a Court of

Sessions has the discretion to frame the charge or not to frame

the charge.

From the nature of the discussion in the impugned

order, it is apparent that the Court of Sessions was concerned with

whether a charge under Section 307 IPC was made out for the

reason if none could be made out the Court of Sessions was clear

in its mind that qua the rest the consideration has to be by the

learned Magistrate.

Under the circumstances, I do not fault the learned

Court of Sessions in not framing a charge for offences punishable

under Sections 324, 427 and 504 IPC. The learned Court of

Sessions has correctly opined that it would be for the learned

Magistrate to look into this aspect.

The result being that both the revision petitions

deserve dismissal. Both are dismissed.