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Madhya Pradesh High Court · body

2016 DIGILAW 649 (MP)

Mahesh Mishra v. State of M. P.

2016-08-02

J.P.GUPTA

body2016
ORDER 1. This revision petition has been filed against the impugned order dated 14.6.2014 passed by Second Additional Sessions Judge, Gwalior (M.P), in Sessions Trial No.214/2013 whereby the application filed by the applicants under section 216 of CrPC for amendment in the charges framed against the applicants under sections 307 and 450 of the IPC has been rejected. 2. In brief, the relevant facts of the case are that the complainant and applicant No. 1 are real brothers and applicant No.2 is the son of the applicant No.1. There was old dispute regarding the land between them. On account of this dispute on 23.10.2012 at near about 7.15 pm applicants along with other co-accused persons Rinku Yadav, Sikandar Yadav and Anil Yadav having armed with fire-arms and lathi entered into the house of the complainant and broke the of window glasses and abused the complainant and his son and then complainant and his son with a view to save themselves entered into the room of the house and closed the door but before they could enter into the room, applicants fired gunshot on them by targeting them. But they escaped with narrow margin thereafter applicants and other co-accused persons after giving threatening to kill complainant and his son, fled away from the spot. Thereafter, the complainant immediately went to the Police Station, Gwalior and lodged FIR of the incident on which Crime No.467/12 was registered by the police Station for the offences under sections 307, 147, 148, 149, 450 and 427 of the IPC. After investigation, charge sheet was filed before the concerned Judicial Magistrate First Class, Gwalior and the Magistrate committed the case to the Court of Sessions, Gwalior, which was transferred to the Second Additional Sessions Judge, Gwalior. On 20.3.2014, Additional Sessions Judge, Gwalior framed the charges against the applicants for the offence under sections 307, 427 and 450 of the IPC. Thereafter, on 5.8.2015 on behalf of the applicants an application under section 216 of CrPC was filed, stating that on the basis of charge-sheet, charges under sections 307 and 450 of the IPC are not made out and only offence under sections 294, 427 and 451 of the IPC is made out. Accordingly, charges be amended. This application was rejected by the impugned order by holding that prima facie offence under sections 450 and 307 of the IPC are made out against the applicants. Accordingly, charges be amended. This application was rejected by the impugned order by holding that prima facie offence under sections 450 and 307 of the IPC are made out against the applicants. Therefore, there is no need to amend the charges. 3. Learned counsel for the applicant submitted that the aforesaid impugned order have been assailed in this petition on the ground that the order of the learned Lower Court is illegal, arbitrary, erroneous and against the settled principles of law. The statement of the complainant and other witnesses do not disclose that any attempt to murder was made by the applicants as during the investigation, neither any bullet mark was found nor any part of bullet recovered from the spot. Therefore, allegation regarding the firing of gunshot on the complainant and his son in the room is false. The story is firing of gunshot to kill the complainant and his son with intention to commit their murder is not plausible. Therefore, applicants cannot be prosecuted for the offence under sections 307 and 450 of the IPC. Hence, the impugned order be set aside and direction be given to the learned Lower Court to amend the charges in order to secure the ends of justice. 4. Learned Panel Lawyer, on the other hand, has supported the impugned order and prayed for rejection of the petition on the ground that the statements of complainant Ram Niwas, his son Ashish and other witnesses Giriraj @ Pinki, Pankaj and Santosh categorically disclosed the fact that at the time of incident in the house of the complainant the incident of firing of gunshot had taken place and complainant and his son have stated in their statements that in order to kill them and targeting them applicants fired gunshot on them but they escaped narrowly. Therefore, it cannot be said that there is no sufficient material to prosecute the applicants/accused under sections 307 and 450 of the IPC. Hence, the revision be rejected. 5. Therefore, it cannot be said that there is no sufficient material to prosecute the applicants/accused under sections 307 and 450 of the IPC. Hence, the revision be rejected. 5. Having considered the contentions advanced by learned counsel for the parties and on perusal of the record it is found that the impugned order is not required to be interfered with as there is sufficient material available on record to prima facie infer that the aforesaid offences are made out as complainant Ram Niwas and his son have categorically stated in their statements that at the time of incident applicants along with other co-accused persons came with the fire-arms and when complainant and his son while entering into the room to save them the applicants fired gunshot on them having targeted to them. Other witnesses Girij @ Pinki, Pankaj and Santosh have also categorically stated that at the time of incident, the applicants had fired gunshot at the spot. On the basis of aforesaid statements of witnesses prima facie strong case to prosecute the applicants for the offence under sections 307 and 450 of the IPC is made out. 6. So far as the contention of learned counsel for the applicants is concerned at the stage of framing charges, credibility and reliability of the statements of the witnesses are not considered. The statements of the aforesaid witnesses cannot be ignored simply on the ground that during the investigation, neither the physical mark of bullet nor any part of used bullet was found from the spot. As this circumstances is explainable otherwise during the examination by witnesses before the Court. In other word at this stage in absence of evidence of physical mark of the firing and other substance relating to firing, it cannot be said conclusively that no incident was taken place as alleged by the complainant. It is true that for the purpose of framing charges, it is necessary to consider whether there is sufficient ground for proceedings against the applicants/accused. But for this purpose, the evidence cannot be appreciated at this stage to arrive at conclusion in the matter, as laid down by the Hon'ble apex Court in case of State of M.P. v. S.B. Johari and others [ 2000(1) JLJ 142 =2000 SCC (Cri) 311]. Similar view has been expressed in the case of State of Tamilnadu v. Mariya Anton Vijay [ (2015)9 SCC 294 ]. 7. Similar view has been expressed in the case of State of Tamilnadu v. Mariya Anton Vijay [ (2015)9 SCC 294 ]. 7. In view of the discussion, it is held that from the charge sheet against the applicants prima facie charge for the offence under sections 307 and 450 along with section 427 of the IPC are made out. Therefore, learned lower Court has not committed any error to reject the application of the applicants for amendments of the charges. 8. Therefore, the revision petition being devoid of merit is hereby dismissed. J. S. Rathore for applicants; G. S. Chauhan, Public Prosecutor for respondent/State.