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Madhya Pradesh High Court · body

2011 DIGILAW 951 (MP)

Sitaram Lohar v. State of M. P.

2011-08-18

G.D.SAXENA

body2011
ORDER 1. This revision under section 397/401 of the Code of Criminal Procedure 1974 preferred by the petitioner/complainant is directed against an order dated 18th May 2010, passed in Sessions Case No. 55/2010 by the Sessions Judge Datia, discharging thereby the accused-respondents No.2 to 4 of charges for commission of offence punishable under section 307/34 of IPC by the said impunged order, the matter was transferred to the trial Court to frame a charge afresh under section 325/34 of IPC against the accused. , 2. The brief facts for just decision of this revision petition are that on 16th March, 2009 at around 1 p.m., when the complainants son Dharmendra came back with his wife and when he reached in front of his house at Village Saletara, accused Virendra alias Vakil with an intention and ulterior motive to kill Dharmendra, caused an injury to him by pointed iron rod on head. Other Court accused Chunnilal was also said to have inflicted injury to him by means of lathi which hit his knee of left leg. Accused Narendra gave fist blow on the back of him. Accordingly, on the report of complainant, an FIR was lodged against the accused persons. The injured was medically examined. During medical examination of injured Dharmendra, one lacerated wound with fracture over right partietal region of skull leading to anterior post was dictated with dimension of 6 Y2 cm. x Y2 cm. x bone deep. As per medical report, the injury may be dangerous to his life. After investigation the charge-sheet was filed. On committal, the impugend order was passed hence this revision. 3. The contention of the learned counsel for the petitioner is that the impugned order passed by the learned Sessions Judge is against facts and law. It is contended that the trial Judge did not properly evaluate the ocular as well as medical evidence filed with the charge-sheet. As per FIR, one lacerated wound with fracture over right parietal region of skull leading to anterior post was dictated with dimension of 6 1/2c. x 1/2 cm. x bone deep which was dangerous to his life, therefore, prima facie the impugned order is not sustainable in law and same is liable to be set aside. It is prayed that by allowing the revision, the impugned order be set aside. 4. x 1/2 cm. x bone deep which was dangerous to his life, therefore, prima facie the impugned order is not sustainable in law and same is liable to be set aside. It is prayed that by allowing the revision, the impugned order be set aside. 4. Per contra, learned counsel appearing on behalf of respondent/accused supported the impugned order and requested to dismiss the revision. 5. Heard the learned counsel for the parties and perused the copy of charge sheet and statements recorded under section 161 CrPC coupled with medical report and other documents filed on record and the law applicable to the case. 6. In the case of Bappa @ Bapu v. State of Maharashtra ( AIR 2004 SC 4119 ), the apex Court held that : "It is sufficient to justify a conviction under section 307 if there is presentan 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 findings as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The sections make a distinction between the act of the accused and its result, if any. The Court has to see whether the Act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient, in law, if there is present an intent coupled with some overt act in execution thereof 7. In the case of Girja Shankar v. State of U.P. (2004 AIR SCW 1523), the following observation has been made : "To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may of tern give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. 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 the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." 8. Again, in the case of Praveen @ Cukha v. State of M. P 2005 (4) MPLJ 223 , this Court has held that for framing of charge under section 307 of IPC. only the injuries caused to the victim are not the criteria but the other circumstances and the motive should also be considered. 9. Hence, in order to frame the charge for commission of offence under section 307 of IPC, the intention to cause injury has to be inferred from the relevant factors (1) the nature of the weapon, (2) the place where the injuries were inflicted (3) nature of the injury and (4) opportunity available to the accused. Hence, at the time of framing charge, the Court has to consider the broad probabilities of the case and total effect of the material collected by the prosecution. 10. Further, in the case of P Vijayan v. State of Kerala ( AIR 2010 SC 663 ), the apex Court held : "If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the fact of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the' sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." 11. Again the scope of section 227 of the Code was considered in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : AIR 1977 SC 2018 in the following terms :- ".........strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial..........." 12. Thus, if on consideration of the material on record, if the trial Court has found that the accused has been reasonably connected with the offence and that there is a reasonable probability or chance of him being found guilty, it cannot be said to have adopted a wrong approach. The present is not a case where there is absolutely no material to connect the accused with the substantive offence. Therefore, on examination of the present case in the light of the aforesaid law laid down by the apex Court, it appears that the finding of the Sessions Judge appears to be wholly perverse and not sustainable in law. Accordingly, the impugned order dated 18th May 2010 is hereby set aside and the Sessions Judge is directed to call for the record of the case from the Court of Chie Judicial Magistrate/Judicial Magistrate where the trial is under progress and register the case on its original number. On commencement of Sessions trial, after evaluating the materials produced by the prosecution and considering the probability of the case, if the Court is satisfied by the exercise of sufficient ground to proceed against the accused, obviously then charge shall be framed. whether the materials at the hands of the prosecution are sufficient or not are matters for trial and at this stage, it cannot be claimed that there is no sufficient ground for proceeding against the accused. It is directed, that after affording an opportunity to be heard to the parties, a fresh order under section 227/228 of CrPC shall be passed by the Court below in accordance with law. 13. the result, the revision petition stands hereby allowed in the manner indicated above.