Important PointAt the stage of charge if there is a strong suspicion which leads the Court to think that there is ground for presuming that accused has committed offence then it is not open to Court to say that there is no sufficient ground for proceeding against accused.

Headnote:Indian Penal Code, 1860—Section 301—Criminal Procedure Code, 1973 —Sections 227 and 228—Order for framing of charge under Section 302/34 IPC and under Section 3(2)(v) of SC and ST (Prevention of Atrocities) Act—High Court set aside the order against respondent No. 2—Appeal—Three accused named in FIR came armed with fire-arms and fired shot at father of complainant-informant appellant who died on spot—Another shot hit a girl belonging to Scheduled Caste standing there and she also died—Investigation revealed that one of three accused named in FIR, after murder, handed over his rifle to respondent No. 2 who ran away from spot—High Court in impugned order observed that fire-arm shot which hit the girl was by accident and was not aimed at her—High Court ignored provisions of Section 301 I.P.C. and fact that there was no intention to cause death of Balmiki girl and she was accidently hit made no difference—Impugned order was erroneous in law and was liable to be set aside.
Held : The High Court did not at all apply the relevant test, namely, whether there is sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed an offence. If the answer is in affirmative an order of discharge cannot be passed and the accused has to face the trial. The High Court after merely observing that "as the firing was aimed at the other persons and accidently the deceased Pooja Balmiki was passing through that way and she was hit" and further observing that "the applicant neither intended to kill the deceased nor she was aimed out because of the reason that she was scheduled caste" set aside the order by which the charges had been framed against respondent no.2. There can be no manner of doubt that the provisions of Section 301 IPC have been completely ignored and the relevant criteria for judging the validity of the order passed by the learned Special Judge directing framing of charges have not been applied. The impugned order is, therefore, clearly erroneous in law and is liable to be set aside. The prosecution case that one of the accused handed over his rifle to Akhilesh Chauhan (respondent no.2) and thereafter he ran away from the scene of occurrence prima facie shows commission of an offence under Section 201 IPC. Since two persons have been killed there should be separate and distinct charge for each murder besides the charge under Section 3(2)(v) SC/ST Act. The charges framed against the accused who are alleged to have resorted to firing should be amended accordingly. (Paras 9 & 10)

Judgment

G.P. Mathur, J.—1. Leave granted.

2. This appeal, by special leave, has been preferred by the complainant (first informant) against the judgment and order dated 9.7.2004 of Allahabad High Court by which the charges framed against Akhilesh Chauhan (respondent No. 2) were set aside.

3. The appellant, Rajbir Singh, lodged an FIR at 5.10 p.m. on 29.9.2003 at P.S. New Agra, alleging that a day before some brickbats were thrown in the compound of his brother’s house from the house of his neighbour Ramraj Rathore. On account of this incident, exchange of hot words took place between his father Hoti Lal and accused Ramraj Rathore, but the matter was pacified due to intervention of some persons of the locality. At about 4.00 p.m. on 29.9.2003 Ramraj Rathore and his relations Geetendra Singh and Prem Narain who were armed with firearms came near the shop of the complainant where his father was standing and all of them exhorted that Hoti Lal should be killed. Ramraj Rathore started firing towards Hoti Lal who after receiving the injuries fell down. Pooja Kumari, a girl belonging to Scheduled Caste community, who had come to purchase some articles from the shop, also sustained firearm injuries and fell down. Both the injured were taken to the hospital but they died on the way. The accused continued to fire from their weapons and tried to kill the complainant and his family members as well. On account of the firing resorted to by the accused, a feeling of terror spread and people started running towards their houses. On the basis of the FIR lodged by the appellant a case was registered under Section 302 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short ‘SC/ST Act’) at the police station. The name of Akhilesh Chauhan (respondent no. 2) was not mentioned in the FIR. During the course of investigation, the police recorded statement of some persons under Section 161 Cr.P.C., wherein his name appeared and the allegation made against him was that after the incident of firing, one of the accused handed over his rifle to him and then he ran away from the spot.

4. After the case had been committed to the Court of Sessions, the learned Special Judge (SC/ST Act) by his order dated 11.5.2004 framed charges under Section 302 read with Section 34 IPC and Section 3(2)(v) SC/ST Act against Akhilesh Chauhan (respondent no. 2). Akhilesh Chauhan then filed a criminal revision under Section 397/401 Cr.P.C. before the High Court challenging the order by which charges had been framed against him. The High Court by a very brief order set aside the order passed by the learned Special Judge and the relevant part of the order passed by the High Court is being reproduced below :

"It was argued by the applicants counsel that the deceased has received injuries by way of accident as the firing was aimed at the other persons and accidently the deceased Pooja Balmiki was passing through that way and she was hit. The applicant neither intended to kill the deceased nor she was aimed out because of the reason that she was scheduled caste. The charges framed by the learned Special Judge (SC/ST Act), Agra is liable to be quashed as no offence under the said Act is made out against him.

In view of the aforesaid discussion this revision is allowed and the order impugned dated 11.5.04 is set aside."

Feeling aggrieved by the order passed by the High Court, the complainant has filed the present appeal by special leave.

5. We have heard learned counsel for the appellant (complainant), learned counsel for Akhilesh Chauhan (respondent no. 2) and have perused records. The only reason given by the High Court for setting aside the order passed by the learned Special Judge framing charges against respondent no. 2 is that the firing was not aimed at Pooja Balmiki but she accidently received the injuries as she was passing through that way and was hit. The High Court completely ignored the provisions of Section 301 IPC which rea

Click Here to Read the rest of this document

2006 Supreme(SC) 207

Important PointAt the stage of charge if there is a strong suspicion which leads the Court to think that there is ground for presuming that accused has committed offence then it is not open to Court to say that there is no sufficient ground for proceeding against accused.

Cases Referred (3)