Madhya Pradesh High Court
Narayan Goutam @ Bhaiya vs The State Of Madhya Pradesh on 2 May, 2016
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No.2822/2015
Narayan Goutam @ Bhaiya and others
vs.
State of Madhya Pradesh
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri Ghanshyam Pandey, Advocate for the petitioners.
Shri A.K.Singh, Panel Lawyer, counsel for the
respondent/State.
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ORDER
(02-05-2016)
1. This criminal revision is directed against the order dated 07-10-2015 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, whereby a charge under section 302, in the alternative under sections 302 read with 34 and section 323 (on two counts) of the Indian Penal Code was framed against the petitioners/accused persons.
2. The prosecution case before the trial Court was as hereunder: At around 1:30 p.m. on 05-10-2014, first informant Gorelal went to the house of Kanna Jaiswal along with Dasrath Kol and deceased Lalla Kol. They consumed liquor and thereafter went to Mukundi Nai's house at around 3:00 p.m., where a Bhandara was in progress. First informant Gorelal asked accused Golu Gautam for Pudis; whereon accused Golu Gautam replied that since Gorelal had consumed liquor, he would not get Prasad. Deceased Lalla Kol, uncle of Gorelal Kol hurled abuse and asked who is not giving âPrasadâ? Consequently, Golu Gautam slapped Gorelal whereon deceased Lalla slapped Golu. Accused Golu hurled Lalla on a wooden plank lying there. Co-accused Pappu Gautam hit Lalla with butt of a stick. Accused Narayan Gautam also beat up Lalla with hands and fisticuffs. Gorelal and Dasrath ran away and waited near Narmada Baniya's house. After sometime, all the three accused persons brought Lalla's body in front of Ramnivas Soni's house. Gorelal and Dasrath checked the body and found that Lalla had died.
3. The impugned order framing charge has been challenged on behalf of the petitioners/accused persons on the grounds that even as per prosecution story this is a case of infliction of simple hurt, on provocation. This is not murder. Learned counsel for the petitioners has invited attention of the Court to the postmortem report wherein it has been stated that no external marks of injuries were found on the body of deceased. Alcoholic changes were seen in the liver, kidney and heart. The heart was enlarged and atherosclerosis of aorta was present. No definite cause of death was given in the postmortem report. However, a possibility was expressed that secondary cause of death may be due to alcoholic liver and fatty changes as a result of chronic alcoholics. The Block Medical officer had replied to the query of the police that the death could not have been caused by blow of butt of a stick to right side of stomach because under that place, small intestine is present, which sustained no injury. Such blow near navel could also not have caused death because large intestine, liver, stomach, kidney, spleen and other internal organs were not injured. Death could also not have been caused by hurling the deceased on a wooden plank because no internal organs were damaged.
4. In report of the State Forensic Laboratory dated 29-11-2014, ethyl alcohol in the viscera in the ratio of 270 mg/100 gm was found. Dr. B.K.Prasad further stated in his report dated 25-01-2015 that it cannot be said that aforesaid quantity of alcohol in the viscera could not cause death because alcohol affects the central nervous system and due to presence of carbon dioxide in excess quantity, death could be caused.
5. On the basis of aforesaid circumstances, it has been contended that at best a charge under section 323 read with section 34 of the Indian Penal Code could be framed against the accused persons/petitioners; therefore, they be discharged from the charge under section 302 of the Indian Penal Code.
6. Complete answers to the arguments of learned counsel for the petitioners/accused may be found in following observations of the Supreme Court made in the case of State of Maharashtra vs. Salman Salim Khan, AIR 2004 SC 1189, which reads as hereunder:
4. The law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate it is open to that Court at any stage of trial if it comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior Court, it can always do so by committing such case for further trial to a superior Court as contemplated in the Code of Criminal Procedure (the Code). On the contrary, if the trial is being conducted in a superior Court like the Sessions Court and if that Court comes to the conclusion that the evidence produced in the said trial makes out a lesser offence than the one with which the accused is charged, it is always open to that Court based on evidence to convict such accused for a lesser offence.
Thus, arguments regarding the framing of a proper charge are best left to be decided by the trial Court at an appropriate stage of the trial. Otherwise as has happened in this case proceedings get protracted by the intervention of the superior Courts.
11. But for the fact that two Courts below i.e. the Sessions Court and the High Court having gone into this issue at length and having expressed almost a conclusive opinion as to the nature of offence, we would not have interfered with the impugned order of the High Court because, as stated above, neither of the sides would have been in any manner prejudiced in the trial by framing of a charge either under Section 304-A or Section 304, Part II, IPC except for the fact that the forum trying the charge might have been different, which by itself, in our opinion, would not cause any prejudice. This is because at any stage of the trial it would have been open to the concerned Court to have altered the charge appropriately depending on the material that is brought before it in the form of evidence. But now by virtue of the impugned judgment of the High Court even if in the course of the trial the Magistrate were to come to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under Section 304-A, it will not be possible for it to pass appropriate order. To that extent the prosecution case gets pre-empted.â
7. As has been held in the aforesaid case that where the trial is being conducted in the Court of Sessions on a charge under section 302 read with section 34 of the Indian Penal Code and if the Sessions Court is of the view that on the basis of the evidence adduced in the trial the charge under section 302 is not made out, it would be open to the trial Court to convict the accused persons for a lesser offence like sections 304, 326, 325, 324 or 323, as the case may be. Thus, in such circumstances, the arguments regarding framing of a proper charge is best left to be decided by the trial Court. Moreover, the fact that the trial under section 302 would be held in a Court of Sessions and not before a Magistrate, as would be the case under section 323 IPC, would not cause any prejudice to either party. Thus, interference of the High Court in such matters at the stage of charge is unwarranted.
8. Consequently, without entering into the merits of the arguments, this criminal revision is dismissed, leaving aforesaid arguments open to be considered by the trial Court at appropriate stage.
(C V SIRPURKAR) JUDGE