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2005 DIGILAW 457 (MP)

Mehboob Haji v. State of M. P.

2005-03-30

U.C.MAHESHWARI

body2005
ORDER U.C. Maheshwari, J. 1. This revision is directed under section 397/401 of Criminal Procedure Code against the order dated 18-10-2004 passed by IV Additional Sessions Judge, Sagar in S. T. No. 97/02, whereby the order for framing the charge under section 307/34 and 324/34 of Indian Penal Code against the applicants has been passed and the same are framed. 2. According to prosecution, factual matrix of the case are like that on 3-11-2001 at about 2.15 in the noon the complainant Baddu @ Raghuvir Vishwakarma and his friend Annu @ Anil Tiwari were discussing family matter in front of New Road Lines, Sagar at the same time accused Jamil and Jabbar came there and abusing in filthy language and asked them that they were creating lot of bossism and the present applicants had also came to that place out of them Mehboob Haji armed with Chhura, a sharp edge weapon and Sattar armed with iron rod and said like other accused persons and told "Maro salon ko" and with the intention to cause death of the complainant one blow of Chhura was given by Pamma by which the complainant received injury on his thigh and immediately he failed down and one blow of iron rod was given by Sattar and when said Annu @ Anil Tiwari came to rescue the complainant then he was also attacked with the intention to cause death and gave a blow of Chhura on his buttocks by applicant No. 1 Mehboob Hazi and one blow of iron rod was given on the head to Annu by Sattar. The incident was immediately reported to police on which an offence was registered and after investigation charge-sheet submitted against Jamil, Jabbar and Sattar but at the initial stage present applicants were not sent for trial as investigation officer has not found any allegation against them as per police report filed under section 173 of Criminal Procedure Code. 3. But on committal charges were framed against other accused and during the trial in view of recorded evidence present applicants were directed to implead as accused in and on their appearance the same charges like other accused were framed against them, which under challenge in this revision. 4. 3. But on committal charges were framed against other accused and during the trial in view of recorded evidence present applicants were directed to implead as accused in and on their appearance the same charges like other accused were framed against them, which under challenge in this revision. 4. Having heard the learned Senior counsel Shri S. C. Dutt assisted by Shri Alok Tapikar for applicant and Shri J. K. Jain, learned Government Advocate for respondent State and on perusing copy of charge-sheet and the impugned order. I am of the considered view that sufficient ingredients for framing charges were available on record and this revision has no merit, deserves to be dismissed. 5. Counsel of the applicant submitted that on perusing the entire charge-sheet the intention to cause death of the complainant and injured are not made out and whatever injures have been caused to the complainant and other person those were not sufficient to cause death in ordinary course of nature. In this connection he referred the medical report of concerning injured. He further submitted that at the stage of framing charges the intention or knowledge to commit the offence should not be considered only on the basis of submission of prosecution but on perusal and considering all the facts and circumstances and if the material ingredients of concerning offence are not made out then charge of such offence should not be framed against the accused. In support of this contention some case laws are taken into consideration one by one as follows: (i) 1943 NLJ 90 : AIR 1943 Nag 145 , Provincial Government, C.P. and Berar v. Abdul Rahman, in which held as under: In this case initially charge of section 307, Indian Penal Code was framed and after recording evidence at the stage of appreciation the accused was acquitted from 307, Indian Penal Code and convicted under section 324, Indian Penal Code which is not the situation in the case at hand because evidence is yet to be recorded then the stage of appreciation would come later. Beside this in the cited case factual matrix are also different as in said case immediately purpose of assailant was release himself and run away from the custody of constable who caught him, but in the case at hand accused intentionally went to said injured and voluntarily caused injuries with intention to cause death. Beside this in the cited case factual matrix are also different as in said case immediately purpose of assailant was release himself and run away from the custody of constable who caught him, but in the case at hand accused intentionally went to said injured and voluntarily caused injuries with intention to cause death. In the said Nagpur case some principles are laid down to examine the intention which is as under: For the purpose of section 307, Indian Penal Code what is material is the intention or knowledge not the consequence of the actual act done for the purpose of carrying out the intention. That section clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence. On account of the intervention of a cause operating independently of the violation of agent. It is clear that to bring a case within the purview of section 307, Indian Penal Code it is necessary to show two things (i) intention to cause death and (ii) failure of that intention on account of intervention of some agency operating independently of the agent violation.When the facts of the case at hand are examined in the light of said two principles then it is found that the intention of applicant to cause death of the complainant was apparent because after one blow the second blow was given against the when Annu @ Anil Tiwari the act of applicant. So on intervening of Annu complainant was saved. Therefore, prima facie ingredients of offence 307, Indian Penal Code are made out for farming the charge in view of said principles. Therefore because forgoing reasons said Nagpur case does not give any profit to the applicants. (ii) AIR 1990 SC 1962 , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja: In this case some principles are laid down regarding framing charges in criminal case. At this juncture I do not dispute any principle laid down in it but on consideration of the charge sheet of the case at hand with above said enumerated principles then sufficient ingredients are made out for framing the charges against the applicants. Therefore, this Apex Court decision does not give any strength to the case of the applicants. At this juncture I do not dispute any principle laid down in it but on consideration of the charge sheet of the case at hand with above said enumerated principles then sufficient ingredients are made out for framing the charges against the applicants. Therefore, this Apex Court decision does not give any strength to the case of the applicants. (iii) 1995 MPU 669, Ramchandra v. State of M.P. In this case the apparent intention of the accused was cutting the hands and legs of the injured only but in the case at hand the intention to cause death is apparent from the FIR and other papers of charge-sheet. Therefore, this cited case also not fruitful for the applicant. (iv) 1995 MPU 823 : 1995 JU 577, Sant Ram v. State of M.P. In this case it was held that intention to be gathered from the circumstances of each case and in that case the intention to cause death was not stated by any of the injured person and on that basis the charge of section 307 of Indian Penal Code was not framed while in the present case the factual matrix are completely different as stated above. Therefore, this citation also does not help the applicant. (v) AIR 2002 SC 564 , Dilawar Babu Kurane v. State of Maharashtra : In this decision prosecution was not able to show any ingredients of the concerning grievous offence and there was only remote chance of concerning charge to culminate into conviction then such charges were not found correct but the facts and circumstances of the case at hand are very different than the above cited case because in the case at hand the entire scenario of the incident speaks itself that the complainant was standing at road and discussing with his friend Annu @ Anil Tiwari and alleged incident was not expected by them and suddenly they asked and assaulted by the applicants and in continuation of it the complainant was subjected to injury of Chhura and after falling down became victim of iron rod while other injured Annu received one injury by Chhura and another by iron rod and immediately after the incident on lodging the FIR the interrogatory statement were recorded and in addition injured were medically examined. While in the aforesaid Apex Court case FIR was lodged after 7 days while interrogatory statements were recorded after 10 months of the occurrence and prosecution was not able to show any suspicion against accused. But in the case at hand after causing one injury when complainant was felled down again he was given a blow if the intention of the applicants was different then they never caused other injuries but after felling down the complainant one more blow was given and person who came for rescue, he was also subjected to cause injuries by implements, it shows apparent intention and knowledge of the applicants to cause death of complainant although he may be or may not be convicted but at the stage of framing the charge sufficient grounds are made out. At this juncture, I would like to refer a case of Apex Court in the matter of R. Prakash v. State of Karnatka, AIR 2004 SCW 815 : 2004 (9) SCC 27 , in which held as under: 8. Therefore the only question which needs to be dealt with relates to the applicability of section 307, Indian Penal Code. The evidence of the eye-witnesses goes to show that they tried to intervene and save P.W, 3 from being assaulted by the appellant A-l, but he continued to assault PW 3. The first blow was on as vital part that is on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigor of section 307, Indian Penal Code. It is to be noted that in spite of interference by five persons, appellant continued to assault P.W. 3. This clearly indicates the intention of the appellant A-l. 9. It is sufficient to justify a conviction under section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. 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 deducted from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. 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 deducted from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The sections made a distinction between the act of the accused and its result, if any, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section 307, Indian Penal Code merely because the injuries inflicted on the victim were in the nature of a simple hurt. The above referred case of the Apex Court is directly applicable to the present case. 6. On examining the entire facts and circumstances of the present case, I am of the considered view that trial Court has not committed any error of jurisdiction or any perversity in framing the charges against the applicants. Therefore, this revision does not have any merit and the same is dismissed. 7. However, trial Court would be at liberty to decide the case on merit without influencing any observations made in this order and applicants would also be at liberty to raise all the available defence at trial. Revision petition is dismissed.