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Madhya Pradesh High Court · body

2011 DIGILAW 994 (MP)

Kanhaiya Lal v. State of M. P.

2011-08-25

U.C.MAHESHWARI

body2011
ORDER U.C. Maheshwari, J. 1. The applicants - accused have directed this revision being aggrieved by the order dated 13.6.2011 passed by Ist Upper Additional Sessions Judge, Hoshangabad in Sessions Trial No. 109/11 framing the charges against them for the offence under Sections 147, 148, 307/149 and 353 of IPC. 2. The facts giving rise to this revision in short are that on dated 12.12.2010 at 17.15 o'clock the Police Party comprising of various Police Officials including the victims namely Shankar Meena, Harishankar, Roop Singh, Jugal Kishore and Gautam Kashyap caught hold the applicants while they were carrying out the gambling activities at some open place in village Temla Hill of district Hoshangabad. At the same time the applicants lashed with the implements by using the criminal force created obstruction in discharging the public duties of such Police Officials and in continuation of the same, in furtherance of their common object started their beating also. Resultantly the abovenamed Police Constables sustained various injuries on their persons. Therefore, the applicants were arrested and brought to Police Station where Crime No. 455/10 was registered against them for the offence under Sections 147, 148, 149, 353, 183, 307 of IPC. On sending, the above mentioned victims to the hospital after medical examination, their MLC reports were prepared. Some of them were also advised for x-ray. On completion of the investigation, the applicants were charge sheeted for the aforesaid offence alongwith additional Section of 333 of IPC and Section 13 of Gambling Act. 3. On committing the case to the Sessions Court, considering the papers of the charge sheet on framing the charges of the offences, stated in para 1 against the applicants, they abjured the same and thereafter being dis-satisfied with such order the applicants have come forward to this Court with this revision. 4. Shri Abhay Gupta, learned counsel for the applicants after taking me through the FIR, MLC reports and medical papers of the victims alongwith other papers of the charge sheet placed on the record, said that even on taking the face value of such evidence collected by the investigating agency, it could not be deemed that any of the applicants has committed the alleged act with an intention to cause death of any of the Police Officials. In continuation he said that keeping in view this aspect of the case, if the MLC reports of the victims are perused and examined, then looking to the nature of injuries stated in such MLC reports, as various injuries were described simple in nature and for some of the injuries for which the victim Shankarlal and Hari Prasad were referred for x-ray, no opinion regarding nature of such injuries was mentioned. It is also apparent from the list of the document mentioned in the Police Report filed under Section 173 of Cr.P.C. that no such x-ray report, showing that any of the aforesaid victims sustained any fracture, has been produced on record. So in the lack of x-ray report, it could not be deemed that the injuries referred for x-ray were grievous in nature. The same should be treated to be simple in nature. He also argued that the allegation of Section 307 of IPC has been levelled in the charge sheet on the basis of some injuries of Shankarlal and Harishankar mentioned in their MLC reports but because of aforesaid reasons, the same could not be treated to be grievous in nature or sufficient to cause death in the ordinary course of the nature and accordingly in the light of the medical evidence placed with the charge sheet the charge of Section 307 of IPC could not be framed against any of the applicants. He also argued that the interrogatory statements of the victims and other witnesses are also not sufficient to frame such charges of Section 307 of IPC. According to him in the available circumstances only the charge of Section 332 of IPC could have been framed and prayed to set aside the charge of Section 307 of IPC by admitting and allowing this revision. 5. On the other hand learned PL Shri Alok Tapikar by justifying the impugned order said that the same being based on proper appreciation of charge sheet is in accordance with the prescribed procedure. Thus, the same does not require any interference at this stage and prayed for dismissal of this revision. 6. Keeping in view the arguments, advanced by the counsel, I have carefully gone through the entire charge sheet alongwith impugned order and the charges framed by the trial court. 7. Thus, the same does not require any interference at this stage and prayed for dismissal of this revision. 6. Keeping in view the arguments, advanced by the counsel, I have carefully gone through the entire charge sheet alongwith impugned order and the charges framed by the trial court. 7. It is apparent fact that the alleged incident took place when the Police Party was discharging its public duty to take the applicants in custody in connection of the offence of Gambling Act. At that time as alleged the applicants by using criminal force created obstructions in discharging their duties as public servants. In continuation of the same, in furtherance of their common object they also beaten the Police Officials and caused them injuries. But after going through the averments of FIR in its face value, it could not be deemed or assumed that there was any intention of the applicants to cause death of any of the Police Officials. Initially without awaiting for the MLC reports of any of the victims, the case was registered alongwith other Sections under Section 307 of IPC also. On medical examination of the above mentioned victims namely Shankarlal, Harishankar, Roop Singh, Jugal Kishore and Gautam Kashyap except some of the injuries of Shankar Meena and Harishanker other injuries of the victims were opined simple in nature by the Doctor in the concerning MLC reports. For ready reference the injuries of the victims stated in their MLC reports are reproduced below:- (a) Shanker Meena:- 1. Lacerated wound 4 cm x 2 cm x bone deep on left occipital region of scalp. 2. Contusion 4 cm x 2 cm right elbow on back. 3. Contusion 3 cm x 2 cm left side of chin. (b) Roop Singh:- (1) Contusion 6 cm x 3.1 cm, left side of calf region. (2) Abrasion and swelling, left knee joint, movement painful. (c) Jugal Kishore:- (1) Contusion 12 cm x 4.5 cm, right gluteal region. (2) Contusion 9 cm x 4.5 cm, right gluteal region. (3) Contusion 7 cm x 4.5 cm, posterior lateral aspect of right leg, (d) Gautam Kashyap:- (1) Contusion 1 cm x 4.5 cm, posterior aspect of left leg, (2) Contusion 7 cm x 4.5 cm, posterior aspect (3) Contusion 7 cm x 3.5 cm, posterior aspect of left leg. (e) Harishankar:- (1) Swelling over right thumb. (3) Contusion 7 cm x 4.5 cm, posterior lateral aspect of right leg, (d) Gautam Kashyap:- (1) Contusion 1 cm x 4.5 cm, posterior aspect of left leg, (2) Contusion 7 cm x 4.5 cm, posterior aspect (3) Contusion 7 cm x 3.5 cm, posterior aspect of left leg. (e) Harishankar:- (1) Swelling over right thumb. (2) Contusion 7 cm x 3.5 cm oblique, left calf region. 8. The injury no. 1 of Shankarlal and also of Harishankar, as described in the aforesaid MLC reports (a) and (d) were referred for x-rays but it is apparent from the list of documents shown in the Police Report filed under Section 173 of Cr.P.C that no such x-ray reports have been placed by the prosecution on record. So it could not be deemed that in any of such injuries the fracture was found or the same were grievous in nature, or was sufficient to cause death of a person in ordinary course of the nature. So on taking into consideration the face value of the FIR and the MLC report alongwith the interrogatory statements of the victims, it could not be said that the present case was a case of Section 307 of IPC and such charge could also be framed against the applicants. As such the ingredients of Section 307 of IPC are not established even for framing the charges. 9. I am of the considered view that unless the prima facie evidence showing the ingredients of first part of Section 300 of IPC are not found from the charge sheet, then the charge of Section 307 of IPC could not be framed against the accused like the applicants. 9. I am of the considered view that unless the prima facie evidence showing the ingredients of first part of Section 300 of IPC are not found from the charge sheet, then the charge of Section 307 of IPC could not be framed against the accused like the applicants. Such earlier part of Section 300 of IPC is read as under:- Section 300:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 10. In view of the aforesaid provision on examining the case at hand, then as per aforesaid discussion, even on taking into consideration the face value of the charge sheet even then the applicants could not be held guilty for the offence of Section 307 of IPC, as any of the ingredients of such offence is not made out against any of the applicants. In such premises also the charge of Section 307 of IPC could not be sustained to hold the trial. 11. In view of the aforesaid discussion charge framed against the applicants for the offence under Section 307/149 of IPC being apparently perverse and contrary to law, is not sustainable under the law, hence the same is hereby set aside. 12. Setting aside the aforesaid charge of Section 307/149 of IPC does not mean that at the place of such charge no other charge could be framed. In view of the aforesaid matrix of the charge sheet and looking to the nature of the injuries sustained by the victims, the offence punishable under Section 332/149 of IPC is prima facie made out against the applicants-accused. In view of the aforesaid matrix of the charge sheet and looking to the nature of the injuries sustained by the victims, the offence punishable under Section 332/149 of IPC is prima facie made out against the applicants-accused. So while setting aside the charge of Section 307/149 of IPC, the trial court is directed to frame the charge of Section 332/149 of IPC against the all the applicants - accused. 13. In view of the aforesaid discussion by allowing this revision in part, the charge of Section 307/149 of IPC framed against the applicants is hereby set aside, as stated above and instead of it, the trial court is directed to frame the charge of Section 332/149 of IPC against all the applicants. Till this extent the impugned order is modified while remaining part and other findings of the same are hereby affirmed. 14. After aforesaid modification in the charge, the trial court shall be at liberty to send the matter to the Court having the territorial jurisdiction to hold the trial. In view of disposal of revision IA No. 14502/11, an application for stay does not require any consideration, hence the same is dismissed. 15. The revision is allowed in part as indicated above.