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Madhya Pradesh High Court · body

2011 DIGILAW 1398 (MP)

GULAB v. STATE OF M. P.

2011-12-12

U.C.MAHESHWARI

body2011
JUDGMENT : 1. The applicants/accused have preferred this revision under section 397 read with 401 of the Criminal Procedure Code being aggrieved by Order dated 17-10-2011 passed by the IInd ASJ, Damoh in S.T.No. 263/11 framing charges against each of them for the offence of section 307/34, 325,323 and 506-11 of the Indian Penal Code. 2. The facts giving rise to this revision in short are that the on dated 18-4-2011 victim Smt. Kavita Bai wife of Kanai Ahirwal lodged the FIR at police outpost Sagarnaka, P. S. Sagar Dehat contending that her husband gave Rs.1000/- to applicant No. l Gulab Sarpanch of the village under an assurance that he will provide him a 'Kuteer' (hut). But after receiving such sum, no such Kuteer was given to them and, on demanding the said money back from applicant No. 1, he tried to beat her husband and today in the morning again such atmosphere was created by applicant No. 2 Harchandra. Thereafter when she along with her husband was returning to her residence, on the way out of the village, applicant No. 2 Harchandra lashed with Farsa and applicant No. 1 Gulab lashed with sticks anticipated them and started their beating by means of Farsa and stick, resultantly, they sustained the injuries on different parts of their person. The names of witnesses is also stated in the FIR. On such information, the offence under sections 307, 341 and 34 of the Indian Penal Code was registered as Crime No. 0/11. On sending such FIR to the main police station, the original Crime No. 165/11 was registered. After holding the investigation, the applicants were charge-sheeted for the aforesaid offence. On evaluation of the charge-sheet, the charge of sections 307, 325/34, 323 and 506-II against the applicant No. l while the charge of section 307/34,325,323 and 506-II of the Indian Penal Code were framed. They abjured the guilt and thereafter they have come to this Court with this revision for setting aside the same and discharging the applicants. 3. On evaluation of the charge-sheet, the charge of sections 307, 325/34, 323 and 506-II against the applicant No. l while the charge of section 307/34,325,323 and 506-II of the Indian Penal Code were framed. They abjured the guilt and thereafter they have come to this Court with this revision for setting aside the same and discharging the applicants. 3. Shri Prajapati, learned appearing counsel after taking me through the copy of the charge-sheet along with the impugned order and framed charges said that even on taking into consideration the face value of the charge-sheet including the nature of the injuries sustained by the victims and the other medical evidence as accepted in its entirety, the charge of section 307 or 307 read with section 34 of the Indian Penal Code is not made out against any of the applicants. It is also noted that he has not assailed the charges framed by the trial Court for the offence under sections 325, 323 and 506-II of the Indian Penal Code and prayed to discharge the applicants from such charge of section 307 and 307/34 of the Indian Penal Code respectively by allowing this revision. 4. On the other hand, responding the aforesaid argument, Smt. Nirmala Nayak, Govt. Advocate by justifying the impugned order said that the charges framed by the trial Court being in consonance with the papers of the charge- sheet, does not require any interference at this stage either for discharging the applicants or to replace any of charge of other sections of the Indian Penal Code. However, she fairly stated that in the MLC report as well as the x-ray report whatsoever injuries and fracture are stated, no one could be treated to be sufficient to cause death of the human being in the ordinary course of the nature and prayed to decide this revision accordingly. 5. Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the copy of the charge-sheet along with the impugned order and the framed charges. 6. Before proceeding further, I would like to reproduce the injuries of the victims stated by the doctor in their respectively MLC report as well as in the X-ray report of victim Kanai. 6. Before proceeding further, I would like to reproduce the injuries of the victims stated by the doctor in their respectively MLC report as well as in the X-ray report of victim Kanai. The same are as under :- (A) As per MLC report the victim Kanai sustained the following injuries :- (i) Lacerated wound 4 x 0.5 cm bone deep over right parietal region. Oozing of blood present. Margins irregular. Inflammation at border present. (ii) Lacerated wound 1 x 0.5 cm bone deep over left parietal region. Margin irregular, oozing present. (iii) Swelling present left wrist and forearm. Movement of elbow and wrist lock. All injuries caused by hard and blunt object. Advised X-ray of skull and left forearm. Under the aforesaid advise of the doctor, on carrying-out the X-ray of skull and left forearm of this victim, the following report was given by the radiologist :- "X-ray skull - No bony injury. X-ray forearm-left-fracture of ulna bone." (B) As per MLC report victim Smt. Kavita sustained following injuries :- (i) Contusion 8 x 2 cm over right thigh posterior aspect reddish colour. (ii) Contusion 6 x 2 cm over left thigh posterior aspect reddish colour. (iii) Diffuse swelling left forearm over posterior aspect. (iv) Contusion 6 x 2 cm left side back reddish colour. Advise x-ray of right forearm. Injury No. 1st, 2nd and 4th simple in nature. All caused by hard and blunt object. Duration within six hours. As per opinion of the doctor with respect of the injuries No. 1, 2 and 4 sustained by Smt. Kavita Bai, the same were simple in nature while no X-ray report of injury No. 3 was placed with the charge-sheet, in such premises such injury also appear to be simple in nature. In the MLC report of Kanai, no opinion regarding nature of the injuries was given by the doctor. Subsequent to it, on carrying-out the X-ray, again the opinion regarding injuries was requisitioned from Dr. H. Singh. According to his opinion dated 30-6-2011, injury Nos. l and 2 was stated to be simple in nature while injury No. 3 was stated to be grievous in nature. In such premises such injury could not be treated to be sufficient to cause death in the ordinary course of the nature. 7. H. Singh. According to his opinion dated 30-6-2011, injury Nos. l and 2 was stated to be simple in nature while injury No. 3 was stated to be grievous in nature. In such premises such injury could not be treated to be sufficient to cause death in the ordinary course of the nature. 7. After going through the FIR as well as the interrogatory statements of the witnesses, I have not found prima facie factual matrix showing that the alleged injuries were caused by any of the applicants to any of the victim with intention to cause their death. So, in such factual matrix as well as in view of the aforesaid medical evidence in which no injury has been stated by the doctor to be sufficient to cause death in the ordinary course of the nature, on taking into consideration the face value of the charge-sheet as accepted in its entirety even then there is no evidence in the charge-sheet to frame the charge of section 307 or 307/34 of the Indian Penal Code. So in such premises, the impugned order till the extent of framing the charge of section 307/34, Indian Penal Code, being perverse, deserves to be and is hereby set aside. 8. So far the charge of sections 325, 323 and 341 of the Indian Penal Code, on the basis of the injuries sustained by victim Kanai and Kavita are concerned, in view of the above mentioned circumstances and the injuries sustained by the concerning victims, such charges have rightly been framed against the applicants. At this stage, in the available circumstances of the case, I would like to observe and direct the trial Court to frame the charge of section 34 of the Indian Penal Code along with aforesaid sections 325, 323 and 341 of the Indian Penal Code because as per charge-sheet such alleged acts were committed by the applicants in furtherance of their common intention. So far the charge of section 506-II of the Indian Penal Code is concerned, in the available circumstances, the same does not require any interference at this stage. 9. So far the charge of section 506-II of the Indian Penal Code is concerned, in the available circumstances, the same does not require any interference at this stage. 9. In the aforesaid premises, by affirming the charges framed by the trial Court for the offence of sections 325, 323, 341 and 506-II of the Indian Penal Code with a further direction to frame the additional charge of section 34 of the Indian Penal Code along with these sections, this revision is allowed in part and the charges framed against the applicants for the offence of sections 307 and 307/34 of the Indian Penal Code are hereby set aside. It is also observed that the trial Court shall be at liberty to consider the papers of the charge-sheet for framing the charge of section 341 of the Indian Penal Code. Till this extent, the impugned order is modified while the other findings of the same are hereby affirmed. 10. Revision is allowed in part as indicated above.