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2009 DIGILAW 1035 (MP)

Sanjay Mishra v. State of M. P.

2009-08-26

INDRANI DATTA

body2009
ORDER 1. With the consent of the parties, the matter is heard finally at motion stage. 2. This petition has been preferred by the petitioner under section 482 of Code of Criminal Procedure against the order dated 3.7.2009 passed by Additional Sessions Judge, Sevdha in Case No.3 of 2009 ST by which, charges under section 307/34, 325/34 and 324/34 of IPC have been framed against present petitioners. 3. As per prosecution case complainant Ajay Mishra is Pujari in Gopurush Mandir, Indergarh, distt. Datia. On the date of incidence, he was in the temple with his wife Manju. In the evening on 8.4.2008 at about 6 PM present petitioner and co-accused reached there and abused him. Present petitioner was armed with luhangi. He caused injury to Ajay by means of luhangi. Ajay sustained injury in his head, chest, left shoulder, wrist, fingers and left leg. Manju tried to rescue, complainant then co-accused inflicted knife blow on the head of Manju and she suffered injuries on different parts of body. Co-accused Vijay Mishra was exhorting petitioner and other co-accused to kill complainant and his wife. 4. On the report lodged by Ajay, crime No.66 of 2008 was registered at PS Indergarh against present petitioner and co-accused for commission of above mentioned offences. Copy of the FIR is Annexure A/2. 5. It is contended on behalf of the petitioner that cross case has been registered on the report of Shivangi against injured Ajay Mishra, Manju Mishra and others in connection with Crime No.65 of 2009 for offence punishable under section 302, 307, 294 and 323/34 of IPC and in the incidence, Shivangi's brother Vijay died. Thereafter, present report is lodged which is registered at Crime No.66 of2oo8. It is further submitted that it is a case of free fight and incidence occurred all of a sudden. Injured Ajay Mishra and Manju Mishra are aggressors and co-accused Raju and Umesh inflicted knife blow to deceased Vijay and Ajay Mishra inflicted luhangi blows to deceased Vijay and committed his murder. It is further submitted that as it is a case of sudden fight, there was no pre meditation and there was no intention to kill injured Ajay and Manju who sustained injury in that incidence, so case under section 307 of IPC is not made out. It is further submitted that as it is a case of sudden fight, there was no pre meditation and there was no intention to kill injured Ajay and Manju who sustained injury in that incidence, so case under section 307 of IPC is not made out. It is further submitted that as per MLC report of injured Ajay Mishra, he sustained three incised wounds on perietal and occipital region and two contusions and in skiagraphy report, .no bone injury has been detected on his head and only fracture of terminal. phalanx and 5th MC. base on left hand have been detected which are not on vital part of the body. Injured Manju has sustained one incised wounds on right parietal region and lacerated wound on occipital region and some contusions and lacerated wounds on elbow, chin, arm and little finger and as per her skiagraphy report, no bone injury has been detected on skull and only fracture of RV l/3rd and little finger has been detected which are not on vital part of the body. Therefore, prayed to quash the charge under section 307 of IPC framed against petitioner. 6. Learned PP opposed the petition and submitted that petitioner and co-accused caused injuries to Manju and Ajay in futherance of their common intention to kill them. They sustained injuries on parietal and occipital region of head that is on vital part of body and at this stage, it cannot be decided whether, petitioner never intended to kill Manju and Ajay as the act was done in furtherance of common intention of petitioner and co-accused. It is further contended that it can't be decided at this stage that who was aggressor and whether incidence was a result of sudden free fight or not, it can be decided only after evidence is recorded. 7. Learned counsel for the petitioner placed reliance on Pundalik Mahadu Bhane and others v. State of Maharashtra 1998 SCC (Cri) 202 which was a case of sudden free fight in two groups, it was held that each of the persons involved therein would be liable for his individual act and not vicariously and in that case, appellants assaulting the deceased with sticks resulting in grievous injuries, were held liable to be convicted under section 325 and not section 148 and 302/34 IPC. 8. 8. Abdul Hamid v. State of U.P. MPWN 1991 (Volume I) 119 was also a case of free fight. Persons of both groups received injuries and reports also lodged by both parties and individual act was not shown, it was held that none can be punished. Both these cases cited by the petitioner are distinguishable as final conclusion was drawn after scrutiny of evidence produced in that cases. Morever each case is to be examined on the basis of it's own facts and circumstances. It is difficult to lay down rule of universal application, however, if two views are equally possible and Judge is satisfied that the evidence produced before him gives rise to grave suspicion against accused, he will be fully within his right to frame charge. At this stage of charge, the standard of tests regarding guilt or otherwise of accused cannot be applied. The Court has to be satisfied about the prima facie existence of the factual ingredients constituting the offence. 9. Perused the FIR, statements of injured witness and other witnesses recorded under section 161 of Cr. P.C. as well as MLC and X-Ray report. As per MLC report, injured have sustained lacerated wounds on parietal occipital region of head though in skiagraphy report, no bony injury is detected on skull. Essential ingredients of section 307 of IPC are as follows: (i) That accused did an act; (ii) that, act was done with intention or knowledge and under such circumstances to cause bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death or that accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all possibility cause death or such bodily injury as is likely to cause death; and (iii) that the accused had no excuse for increasing the risk of causing such death or injury. On bare reading of section 307 of IPC, it is apparent that to prove offence under section 307 of IPC, the most important factor is intention or knowledge to cause death which must be established in the case. On bare reading of section 307 of IPC, it is apparent that to prove offence under section 307 of IPC, the most important factor is intention or knowledge to cause death which must be established in the case. In the present case, whether petitioner and co-accused in furtherance of their intention have caused injury to injured Ajay and Manju on vital part of their body with intention or knowledge to cause death, is to be established after evidence is recorded in the case. 10. Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others (2008) 10 SCC 681 has held that while framing charge, only prima facie test is to be applied strong suspicion about the comnlission or offence and the involvement of the accused is sufficient for the" Court to frame a charge. At that stage, formulating the opinion about the prospect of conviction is not necessary. 11. Over and above the earlier citations Apex Court in the case of State of Haryana and others v. Bhajan Lal and others 1992 SCC (Cri) 335 has held that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. The Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. 12. Further Apex Court in the case of State of Orissa v. Debendra Nath Padhi 2005 SCC (Cri) 415 has held that at the stage of framing charge roving and fishing inquiry is impermissible and a mini-trial cannot be conducted at such stage. 13. 12. Further Apex Court in the case of State of Orissa v. Debendra Nath Padhi 2005 SCC (Cri) 415 has held that at the stage of framing charge roving and fishing inquiry is impermissible and a mini-trial cannot be conducted at such stage. 13. Further more in the case of Bharat Parikh v. Central Bureau of Investigation and others (2008) 10 SCC 109 , the apex Court has held with regard to the High Court's powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge evidence has to be held on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and/or charges and claims to be tried. It is only in the exceptional circumstances enumerated in State of Haryana v. Bhajan Lal (supra) that a criminal proceeding may be quashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly when the prosecution has produced sufficient material for charges to be framed. 14. Considering the above legal position at this stage, it is not just possible to hold that prosecution is false, frivolous or fictitious and petitioner is no way concerned with the incidence. All these points will be decided after evidence is recorded in the concerned trial. So no ground is made out for setting-aside the charges framed by learned Second ASJ Sevdha, Distt. Datia in Case no. 3 of 2009 ST. 15. Hence, this petition is dismissed accordingly. Copy to concerned Court as per rules.