Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 409 (MP)

Prakash v. State of M. P.

2001-05-09

FAKHRUDDIN

body2001
Short Note This revision is directed against the order dated 2.9.1999, passed by the Second Addl. Sessions Judge. Dabra, in S.T. No. 269/99, whereby the learned Judge has framed the charges against the petitioner/accused for the offence under Sec. 302 and in the alternative under section 302/34 of IPC. after hearing both the parties. As per the prosecution story, the incident had occurred on 25.2.1999, while complainant Raghvendra Singh with his brother was standing at the bus stand. at that moment. it is alleged that accused Gajendra Mudgal @ Banti and Jaisingh s/o Rohtesh, r/o Usha Colony, came there and after some talks with his brother Pappu, they had taken Pappu away on the Scooter No. 07-KB 2421 towards Govt. School. When the complainant got some apprehension because of the enmity which formed hardly two days before the date of incident between his brother Pappu and the accused-persons. he started to chase the vehicle. He found that at the School gate, the scooter was stopped by one Prakash (present applicant) and then Jaisingh took out his katta and fired at Pappu which hit below his shoulder causing injuries. Thereafter, accused Gajendra Mudgal fired by his katta. which hit on his temple. resulting in his death. The report of the incident was lodged by the complainant along with one Sureshsingh at the police station on the basis of which crime was registered against the accused persons and the investigation started. After due investigation, the challan was filed against the accused persons before the Court. The learned trial Court after considering the entire material and the evidence on the record. found that the offence has been committed by the accused. as such they have been charged for this alleged offence. Learned counsel for the petitioner-accused stated that the Court below was not Justified in framing the charge against the petitioner-accused. He submitted that it was Jaisingh and Gajendra. who had fired and the allegation appearing against the present petitioner is that of stopping the vehicle. He stated that even according to the prosecution case itself, so far as present petitioner is concerned, the offence at the most can be said to have been made under section 302/34 of IPC and not for the substantive offence under section 302 of IPC. He stated that even according to the prosecution case itself, so far as present petitioner is concerned, the offence at the most can be said to have been made under section 302/34 of IPC and not for the substantive offence under section 302 of IPC. Learned counsel for the petitioner further submitted that it was the duty of the prosecutor to have pointed out the prosecution case and had that been done the Court would not have come to such a conclusion. Learned counsel for the petitioner referred to section 226. CrPC which runs as under; "226. Opening case for prosecution -- When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209. the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.". Shri Vivek Tankha, learned Advocate General for the State. submitted that normally the prosecutor contends the case as per requirement of section 226. CrPC. He stated that might be in some cases this practice is not followed. He stated that due instructions shall be issued. So far as the material in the instant case regarding framing of the charge is concerned. it is pertinent to quote the FIR lodged by the complainant Raghvendra Singh. CrPC. He stated that might be in some cases this practice is not followed. He stated that due instructions shall be issued. So far as the material in the instant case regarding framing of the charge is concerned. it is pertinent to quote the FIR lodged by the complainant Raghvendra Singh. It reads as under; ^^Qfj;knh us e; gekjk gh lqjs'kflag ds gkftj Fkkuk vkdj tckuh fjiksVZ dh fd vkt fnukad 25-2-1999 dh lqcg nl cls eSa o esjk HkkbZ iIiw jkstkuk dh rjg cl LVS.M ij viuh cl jokuk dj [kM+s Fks rHkh xtsUnz eqnxy mQZ cUVh o t;flag iq= jksgrk'kk fuoklh m"kk dkyksuh ds vk, vkSj esjs HkkbZ iIiw ds LdwVj uaŒ ,eih&7&dsch&2421 ij cSBdj xoZuesaV Ldwy dh rjQ ys x, rks eq>s 'kd gqvk D;ksafd nks fnu igys budk iIiw ls fookn gks x;k Fkk rks eSa Hkh LdwVj ds ihNs&ihNs x;kA gk;j lsd.Mjh Ldwy ds xsV ij Ádk'k us LdwVj jksd fy;k rks LdwVj ij cSBs t;flag us dV~Vk fudky dj iIiw ds ekjk tks nkfguh rjQ da/ks ds uhps o vU; txg xksyh yxhA rks og fxj iM+k oSls gh xtsUnz eqnxy us dV~Vs ls duiVh ij yxkdj tku ls ekjus dh xtZ ls xksyh ekjh tks duiVh ij b/kj vkjikj fudy x;hA ?kko ls [kwu cgus yxk vkSj iIiw ekSds ij gh [kRe gks x;k gSA ?kVuk uhysUnzflag] c|flag] lqjs'kflag us ns[kh gSA eSa fpYyk;k rks xtsUnz eqnxy cksyk fd lkys rq>s Hkh [kRe dj nsaxs vkSj esjs HkkbZ iIiw dk LdwVj mBkdj ml ij cSBdj rhuksa Hkkx x,A vr% fjiksVZ djrk gaw dk;Zokgh dh tkosA** A perusal of the FIR goes to show that so far as the offence against the present petitioner is concerned. it. prima facie. will be under section 3021/14 of IPC on the basis of material on record, and not for substantive under section 302 of IPC In view of what has been stated above. the revision is allowed. The charge of the substantive offence under section 302 of IPC framed against the petitioner/accused. by the impugned order, so far he is concerned, is quashed. and instead the matter is remanded back to the trial Court to re-hear both the parties and frame the charge in accordance with the provisions of sections 211 and 212 of the Cr PC. The charge of the substantive offence under section 302 of IPC framed against the petitioner/accused. by the impugned order, so far he is concerned, is quashed. and instead the matter is remanded back to the trial Court to re-hear both the parties and frame the charge in accordance with the provisions of sections 211 and 212 of the Cr PC. containing such particulars as to the time and place of the alleged offence and the persons (if any) against whom or the thing (if any), in respect of which it was committed. As learned counsel for the parties submitted that one of the accused namely Jai Singh is in jail custody from March. 1999 and requested for direction of early decision. it is directed that the trial Court shall decide the matter as early as possible, subject to due cooperation of both the parties.