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Madhya Pradesh High Court · body

2015 DIGILAW 86 (MP)

Nawab Khan v. State of M. P.

2015-01-22

SUSHIL KUMAR GUPTA

body2015
ORDER 1. By this criminal revision under section 397 read with section 40 of CrPC (in short “the Code”) petitioner has challenged the order dated 6.12.2013 passed by the Additional Sessions Judge Karera, District Shivpuri in S.T.No.382/2013 whereby the charge of offence punishable under section 307 of Indian Penal Code (in short “the Penal Code”) has been framed against the petitioner. 2. The prosecution case, in short, is that a report was lodged by complainant at Police Station Narvar, District Shivpuri that on1.9.2013 at about 5:30 p.m. his daughter-in-law asked to petitioner for shifting of toilet then on that point petitioner started abusing her and with an intention to kill her gave a Danda blow on the abdomen area of her and at that time she was pregnant. The other co-accused persons have also beaten to Kallu and Shamsher by means of knife and Danda. On this complaint, police lodged an FIR against the petitioner and other co-accused and charge-sheet was filed for the offences punishable under sections 307, 294, 323/34 of the Penal Code and the case was committed. 3. The learned Additional Sessions Judge after considering the evidence collected by the prosecution, framed the charges against the petitioner for the offence punishable under section 307 of the Penal Code. 4. Learned counsel appearing for the petitioner submitted that there is no evidence available on record against the petitioner for framing of charge under section 307 of the Penal Code. He further submitted that even if all the allegations levelled against the petitioner are taken to be true even then no offence is made out under section 307 of the Penal Code. He also submitted that there is no injury which has allegedly been caused to Bhuri Bai which is fatal to the life. It is also submitted that as per the MLC report of injured Bhuri Bai no external injury has been found. On these grounds, learned counsel for the petitioner prays for setting aside the impugned order of framing of charge under section 307 of the Penal Code against the petitioner. 5. Per contra, learned Public Prosecutor for respondent/State opposes the submissions advanced by the learned counsel for the petitioner and further supported the impugned order for framing of charge and prays for dismissal of the revision. 6. Having heard the learned counsel for the parties and perused the entire record. 7. 5. Per contra, learned Public Prosecutor for respondent/State opposes the submissions advanced by the learned counsel for the petitioner and further supported the impugned order for framing of charge and prays for dismissal of the revision. 6. Having heard the learned counsel for the parties and perused the entire record. 7. Firstly, I would like to reproduce the relevant provisions of law. Sections 300 and 307 of IPC reads as under: “Section 300 - Murder 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. Section 307 - Attempt to murder Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1 [imprisonment for life], or to such punishment as is hereinbefore mentioned.” 8. Against the petitioner charge under section 307 of the Penal Code has been framed for the injury attributed to Bhuri Bai. As per the MLC report of Bhuri Bai no external injury seen at the time of examination, although she was advised for USG of abdomen, but there is no report of USG available on the record. Also there is no opinion of any doctor is on record that by the Danda blow on the abdomen she sustained any internal injury or caused any miscarriage. 9. Also there is no opinion of any doctor is on record that by the Danda blow on the abdomen she sustained any internal injury or caused any miscarriage. 9. As per the prosecution story, petitioner gave only one blow of danda on the abdomen of Bhuri Bai. Since the petitioner did not assault any more to her, therefore, he was not having any intention to kill her, therefore, where there is no intention to kill, the charge under section 307 of Code is not constitute. 10. So far as the nature of injury, no external and internal injury was found by the doctor on examination of Bhuri Bai. 11. On the basis of aforesaid discussion, it is candidly clear that neither petitioner intended to kill Bhuri Bai nor her injury was found to be fatal in nature. Thus, the case of injured Bhuri Bai does not fall within the purview of section 300 of the Penal Code and no offence under section 307 of the Penal Code is made out against the petitioner either directly or with the help of section 34 of the Penal Code. Thus, the learned Additional District Judge has committed an error of law in framing the charge under section 307 of the Penal Code. Therefore, the present revision filed by the petitioner deserves to be accepted and hereby accepted. The impugned order dated 6.12.2013 is hereby set aside. The petitioner are discharged from the charges for the offence punishable under section 307 of the Penal Code. 12. The matter is remanded back to the learned trial Court to hear the learned counsel for the parties for framing the charges and to frame the charge afresh according to law. If required, the learned Court below may proceed under section 228 of Code. 13. A copy of this order be sent to the Court concerned for compliance. Amit Lahoti for petitioners; Mukund Bharadwaj, Public Prosecutor for respondent/State; Sanjeev Agarwal for complainant.