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2010 DIGILAW 634 (MP)

STATE OF M. P. v. HABIB

2010-06-29

K.G.MISHRA

body2010
Judgment R.C.Mishra, J. ( 1. ) The State has come up in revision against order-dated 20.09.1999 passed by Sessions Judge, Sehore in S.T. No.126/1999 whereby holding that no offence under Section 307 of the IPC was made out, he proceeded to transfer the case, under Section 228(1) of the Code of Criminal Procedure (for short the Code), to Chief Judicial Magistrate, Sehore for trial. ( 2. ) The respondents were charge-sheeted for the offences under Sections 147, 148 and 307 read with S.149 of the IPC upon the allegations that being armed with deadly weapons like gupti and lohangi, they constituted an unlawful assembly and in furtherance of the common object thereof, jointly assaulted complainant Shafique, his elder brothers Lateef and Haneef, mother Hoora Bi and Bhabhi Shabra Bi and abdominal injury sustained by Lateef was characterized by the medical expert as dangerous to life. ( 3. ) A bare perusal of the corresponding operative finding would reveal that the abdominal injury had resulted in peritoneal tear, omentum tear and splenic contusion. As per prosecution version, the injury was caused by respondent no.5 namely Aziz by means of a Gupti. ( 4. ) Learned Sessions Judge, after hearing the parties, took the view that in absence of expert opinion that the injury received by Lateef was sufficient in the ordinary course of nature to cause death, charge of attempt to murder could not be framed. However, this reasoning was apparently misconceived in view of the well-settled position of law on the point as explained by the Apex Court in State of Maharashtra v. Balram Bama Patil AIR 1983 SC 305 . Accordingly, nature of injury actually caused, by itself, would not be a decisive factor to hold that the offence under Section 307 of the IPC is not made out, even though, it may often give considerable assistance in coming to a finding as to intention of the accused. ( 5. Accordingly, nature of injury actually caused, by itself, would not be a decisive factor to hold that the offence under Section 307 of the IPC is not made out, even though, it may often give considerable assistance in coming to a finding as to intention of the accused. ( 5. ) As an obvious corollary, the respondents could not be discharged merely because the injury caused on Lateefs abdomen was not characterized as sufficient in the ordinary course of nature to cause death particularly when the FIR and the corresponding police statements of the injured persons, provided sufficient ground for presuming that the injury was inflicted at least with the knowledge as to imminently dangerous nature of the act and under the circumstances mentioned in Section 307 of the IPC (See. State of Madhya Pradesh v. Imrat AIR 2008 SC 2967 ). ( 6. ) The basic principle of law on the subject as reiterated in Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary AIR 2009 SC 9 is that even a strong suspicion leading to presumption as to possibility as against certainty makes out a case for framing of charge. ( 7. ) For these reasons, it can easily be concluded that learned Sessions Judge committed a serious error of jurisdiction in discharging the respondents of the offence of attempt to murder. The impugned order, therefore, deserves interference. ( 8. ) Learned counsel for the respondents still contended that the Sessions Judge, while declining to frame charge of the offence under Section 307 of the IPC, had transferred the counter case to Chief Judicial Magistrate for trial and the corresponding order has attained finality. However, as observed by the Supreme Court in Sudhir v. State of M.P. AIR 2001 SC 826 - "The charge in each criminal case is framed on the basis of materials available in the records of that particular case. Merely because the charge for offence under Section 307, IPC has not been framed in the counter case, the petitioners do not become entitled to be discharged for the offence under Section 307, IPC, if they are otherwise liable to be charged for the offence under that section in view of the materials placed before the learned Judge." ( 9. Merely because the charge for offence under Section 307, IPC has not been framed in the counter case, the petitioners do not become entitled to be discharged for the offence under Section 307, IPC, if they are otherwise liable to be charged for the offence under that section in view of the materials placed before the learned Judge." ( 9. ) As further pointed out, the CJM can nonetheless commit the counter case, under Section 223 of the Code, to the Court of Session to be tried separately by the same Judge in accordance with the procedure laid down in Nathi Lal v. State of U.P. 1990 SCC (Cri) 638. ( 10. ) In the result, the revision stands allowed and the order-dated 20.09.1999 is hereby set aside. Instead, it is directed that the Sessions Judge shall proceed against the respondents after framing appropriate charges including the one under Section 307 or 307 read with S.149 of the IPC. ( 11. ) Needless to say, the respondents shall be at liberty to move an appropriate application before the CJM, under Section 223 of the Code, for commitment of the counter case to the Court of Session for the aforesaid purpose. ( 12. ) The respondents are directed to appear before the Court of Session on 11.08.2010at 11 a.m. positively. ( 13. ) It is expected that learned Sessions Judge shall decide the cross-cases as expeditiously as possible as they relate to the offences allegedly committed on 31.03.1999. Revision allowed.