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Madhya Pradesh High Court · body

2013 DIGILAW 592 (MP)

Manoj Mali v. State of M. P.

2013-05-03

M.K.Mudgal

body2013
ORDER 1. The petitioner has filed the revision under section 397 read with section 401 of the Code of Criminal Procedure against the order dated 10.1.2013 passed by the Court of Additional Session Judge, Chachoda, District Guna (Shri R.K. Nagpure) in session Trial No. 260/2012 whereby charge under section 302 of IPC has been framed against the petitioner/accused. 2. In brief facts of the case are that a merg intimation No. 21/2012 under section 174 of the CrPC was registered at Police Station Rajgarh regarding death of deceased Badam Bai which took place on 5.4.2012. After registration of merg, the inquiry was conducted and based upon the inquiry, FIR under section 302 read with section 201 of IPC was registered by Policy Station Chachoda, District Guna. In the FIR, it is alleged by the prosecution that on 4.4.2012 at about 12.00 (Noon) there was a fight between petitioner/accused and Jainarayan, who is son of deceased. 3. The deceased Badam Bai intervened in the fight and the petitioner/accused kicked deceased Badam Bai in her stomach. On receiving the blow of the kick in the stomach the deceased Badam Bai was admitted in Minesh Hospital where from looking to the condition of patient, she was referred to Beora where she died on 5.4.2012, Post-mortem of the deceased was conducted on the same day and after completion of the investigation, charge sheet was filed before the Court of JMFC where from the case was committed to the Court of Additional Session Judge, Chachoda. 4. Learned counsel for the petitioner submits that prima facie no ingredient under section 302 of IPC is made out as essential ingredients for attracting the provision of section 302 of IPC are totally absent in the present case. He has further submitted that the learned Court below has made an error in admitting the fact that the deceased intervened between the quarrel of petitioner and jainarayan. The lower Court has erred in framing the charge of under section 302 of the IPC whereas as per prosecution story the petitioner merely gave a unintentional kick blow to the deceased and as a result of which the deceased died and no evidence has been found with regard to the intentional act being committed by the petitioner. 5. The lower Court has erred in framing the charge of under section 302 of the IPC whereas as per prosecution story the petitioner merely gave a unintentional kick blow to the deceased and as a result of which the deceased died and no evidence has been found with regard to the intentional act being committed by the petitioner. 5. The learned counsel for the petitioner has further submitted that the deceased has died due to toxima and shock along with it, it has been stated in the report that there is no external injury on the body of the deceased. thus, this fact makes it amply clear that the deceased was not subjected to any kind of physical hurt before her death. The learned Court below has not looked into the definition of murder before imposing the charge of 302 of IPC. Hence, the learned counsel submits that the charge under section 302 of IPC deserves to be quashed. 6. Shri R.K. Shrivastava, learned counsel for the State, submits that the order passed by the lower Court in framing charge under section 302 of the IPC is based on proper reason as the accused gave a blow of kick in the stomach which was a vital part of the body of deceased Badam Bai. Owing to which she died. As per post-mortem report conducted on 5.4.2012 the cause of death was found toxima and shock due to perforated peritonitis due to some pathological process and Dr. further has clarified by his report dated 16.4.2012 to this effect that perforated in small intestine of 1 cm radious was found which turned into peritonitis and toxima for the cause of death. The Dr. has further opined that peritonitis was caused by hard and blunt object with force. 7. Learned counsel for the State futher submits that at the stage of framing charges the prosecution evidence are not to be discussed in depth or meticulously and therefore, no reason in found to interfere in the impugned order. 8. Heard the argument of learned counsel for the parties and perused the record. 9. It is true that at the time of incident, the deceased went to intervene to pacify the petitioner/accused and Jainarayan, son of the deceased who were engaged in a fight. At that time, petitioner/accused gave a blow of kick in the stomach of the deceased Badam Bai. 9. It is true that at the time of incident, the deceased went to intervene to pacify the petitioner/accused and Jainarayan, son of the deceased who were engaged in a fight. At that time, petitioner/accused gave a blow of kick in the stomach of the deceased Badam Bai. In such a situation it can be inferred that there was no intention on the part of petitioner to kill the deceased but for only that reason, the accused can not be discharged from the offence punishable under section 302 of the IPC as there was no reason for him to blow a kick to the deceased Badam Bai who was only trying to pacify the scuffle. The deceased Badam Bai was healthy lady aged about 55 years. She was not suffering from any disease before the incident. Her death was caused owing to the injury inflicted by the accused in her vital part of the body i.e. her stomach. The Doctor who conducted post mortem in his report dated 16.4.2012 has opined that the injury caused to the deceased in the small intestine peritonitis of 1 cm radius was found which was caused hard and blunt object struck with a great force. It is not disputed in this case that the petitioner/accused did not give a blow in the stomach of the deceased Badam Bai and consequently the deceased Badam Bai died. The learned counsel for the petitioner has invited the attention to the ingredient of the offence under section 302 of the IPC which are described under section 300 of the IPC and stressed in his arguments that in this case none of the four limbs of section has been found for framing the charge under section 302 of the IPC and so the said charge ought not to have been framed against the accused. In the opinion of this Court at this stage matter should not be dealt with in depth and meticulously. The petitioner has to face the trial. Though the argument advanced by the learned counsel have some significance all the points raised by the learned counsel may be considered after recording the evidence in the course of trial and at the stage of judgment. 10. Therefore, in the opinion of this Court, there is no need to alter the charge framed by lower Court under section 302 of IPC against the accused. 11. 10. Therefore, in the opinion of this Court, there is no need to alter the charge framed by lower Court under section 302 of IPC against the accused. 11. Considering the above facts, the petition having no substance is hereby rejected.