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Madhya Pradesh High Court · body

2009 DIGILAW 897 (MP)

Anwar Khan v. State of M. P.

2009-07-31

N.K.MODY

body2009
ORDER 1. Being aggrieved by the order dated 20.7.2009 passed by VI ASJ, Fast Track Court, Mandsaur in S.T.No.6812009 whereby charges were framed against the petitioner u/s. 148,341/149,307/149,323/149 and 506 IPC, the present petition has been filed. 2. In short the case of prosecution was that on 23/12/2008 at about 12.15 p.m. complainant Ranjeetsingh Rajput lodged a complaint against the petitioners who are 13 in number at P.S. Sitamau, Mandsaur to the effect that Yashpal Singh cousin of the complainant is having a boring machine. It was alleged in the complaint that Bhawarlal, Nathmaharaj, Baluram, Prabhulal went with the machine at village Chikla. In the village, another machine which is owned by petitioner No.9 was carrying the boring. It was further alleged that petitioner No.9 asked Prabhulal that in village Chikla, only the machine which is owned by petitioner No.9 shall operate and they cannot operate the machine in the village. It was alleged that at about 8.00 p.m. all the persons of complainant party went to talk with petitioner No.9. It was further alleged that at that time petitioner No.9 attacked the complainant party along with his 25 companions who were armed with deadly weapons. It was alleged that in the incident Prabhulal sustained gun-shot injury below his knee while other accused persons assaulted Prabhulal and the complainant Ranjeet Singh by wooden stick, with the result they sustained grievous injuries. Upon complaint, case was registered. After investigation challan was filed and charge was framed, against which the present petition has been filed. 3. Learned counsel for petitioner submits that learned trial Court committed error in framing the charges against the petitioners under Section 307 and 307/149 IPC. It is submitted that no gun-shot injury was sustained by Prabhulal. It is submitted that because of professional rivalry a false complaint was lodged by Prabhulal and Prabhulal himself has submitted an affidavit in the concerned police station and also before learned Court below to the effect that a false report was lodged by him. Learned counsel submits that without taking into consideration all the evidence on record learned Court below has framed the charge, therefore, the order to the extent whereby the charge has been framed under Section 307 IPC deserves to be quashed. Learned counsel submits that without taking into consideration all the evidence on record learned Court below has framed the charge, therefore, the order to the extent whereby the charge has been framed under Section 307 IPC deserves to be quashed. For this contention, learned counsel placed reliance on a decision in the matter of Hari Singh v. Sukhbir Singh, (1998) 4 SCC 551 wherein Hon. Apex Court observed as under:- "Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to the accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention." Learned counsel submits that along with the charge-sheet, FSL report has been submitted by the prosecution in which after examining the pant which the complainant/injured Prabhulal was wearing at the relevant time, there is no hole of the gun-shot injury. It is submitted that petition be allowed and impugned order whereby the charge has been framed, be set aside. 4. Learned counsel for respondent submits that at the stage of framing of charge, it is only the evidence of prosecution which has to be seen. Learned counsel submits that it is not necessary to make out the offence u/s. 307 IPC that complainant has sustained injuries. It is submitted that learned Court below has rightly framed the charges, which requires no interference. 5. After going through the record, it appears that petitioners are 13 in number. As per the prosecution, injured persons are Ranjeet and Prabhulal. In course of framing of charge, it was alleged that gun-shot injuries were sustained by Prabhulal. Before passing the order, learned Court below has not taken into consideration the FSL report which is filed by the prosecution along with the charge-sheet. 6. As per the prosecution, injured persons are Ranjeet and Prabhulal. In course of framing of charge, it was alleged that gun-shot injuries were sustained by Prabhulal. Before passing the order, learned Court below has not taken into consideration the FSL report which is filed by the prosecution along with the charge-sheet. 6. In the facts and circumstances of the case, the petition filed by the petitioner is allowed and the impugned order whereby charge has been framed against the petitioners for the offence U/S 307 and 307/149 is set aside with a direction to the learned trial Court to re-examine the entire evidence on record and to frame the charge accordingly. With the aforesaid observation, the petition stands disposed of.