Madhya Pradesh High Court
Shailendra Yadav vs The State Of Madhya Pradesh on 11 May, 2022
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 11th OF MAY, 2022
CRIMINAL APPEAL No. 5573 of 2018
Between:-
SHAILENDRA YADAV ALIAS SETHU S/O SHRI
RAJMOHAN SINGH YADAV , AGED ABOUT 30
YEARS, OCCUPATION: FARMER R/O VILLAGE
HIGONI, TEH. BERASIA, BHOPAL (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SIDDHARTH SHARMA-ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION BERASIA BHOPAL (MADHYA
PRADESH)
2. KUNJILAL S/O JAI SINGH JATAV, AGED ABOUT
60 YEARS, OCCUPATION: FARMER R/O VILLAGE
JANAKPUR, TEHSIL BERASIA BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.N.GUPTA-GOVERNMENT ADVOCATE)
This appeal coming on for admission this day, the court passed the
following:
JUDGMENT
This Criminal appeal under Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'POA Act') has been filed against the order dated 09.07.2018 passed in SC ATR/14/2018 (State of M.P. Vs. Shailendra Yadav) whereby charge for commission of offence under Section 307 of IPC and Section 3(2)(v) of POA 2 Act has been framed against the appellant by Special Judge, Bhopal.
2. The facts shorn of unnecessary details are that on 29.10.2017 at around 10:20 a.m. Lalaram Jatav, the brother of Kunjilal in Government hospital, Berasiya, informed SI Ashok Tiwari of P.S. Berasiya that he is resident of village Janakpur and is an agriculturist and also work as a mechanic. On 29.10.2017 at around 08:00 a.m. he came to know about the accident of his brother Kunjilal on the ground situated near Nala. When he reached there, he saw that Kunjilal had sustained injuries in his head and waist. He was informed by others that Sethu @ Shailendra of his village by driving his Swaraj tractor rashly and negligently hit his brother and in the incident his brother has sustained injuries. Number of villagers had gathered on the spot. He had called 108 number and brought his brother to Bersiya Hospital for treatment. His brother is unable to speak. He further informed that his brother had gone there to answer the call of nature. On the basis of narration given by Lalaram, Dehati Nalishi was recorded and on the basis of Dehati Nalishi, FIR was registered in P.S. Bersiya at FIR No. 537/2017 for commission of offence under Sections 279 and 337 of IPC.
3. After investigation, police Bersiya filed charge sheet against the appellant/accused for commission of offence under Sections 307, 325 of IPC and Sections 139, 146, 192, 196 of Motor Vehicles Act, 1988 and Section 3(2)
(v) of POA Act.
4. Learned Special Judge, Bhopal framed charges against the appellant/accused for commission of offence under Section 307 of IPC and Section 3(2)(v) of POA Act.
5. Assailing the charges framed, learned counsel for the appellant has contended that the order framing charge is illegal and against material on record 3 as it was a simple case of accident on account of rash and negligent driving by applicant for which an FIR under Sections 279 and 337 of IPC was registered. There is no case of attempt to commit murder of a person belonging to Scheduled Caste and Scheduled Tribe. In Dehati Nalishi and FIR, no averment has been made that incident was caused with an intention to murder Kunjilal. It is a simple case of rash and negligent driving. Learned Judge was not justified in framing charge under Section 307 of IPC and Section 3(2)(v) of POA Act. Injuries caused to injured are simple in nature. Kunjilal and appellant are neighbours for a long time as their fields are adjoining. They had no animosity. As such, no offence is made out under Section 307 of IPC and 3(2)(v) of POA Act. Learned trial Court has erroneously framed charges without any material on record. Thus, it has been prayed that the charge framed under Section 307 of IPC and Section 3(2)(v) of POA Act by learned Judge being illegal and against the material on record be quashed.
6. Learned counsel for the appellant to buttress his argument has placed reliance on case laws of Lalan Prasad vs. State of Jharkhand, order dated 26.11.2001 and S.Arul Raja vs. State of Tamilnadu (2010) 8 SCC 233. He has further submitted that linking a simple accident with a charge of the intention to kill runs counter to the very basic principle of criminal jurisprudence. An accident is an accident. A mere accident cannot be called as an act with intent to kill a particular person. Section 307 IPC is attracted only in a case where there is a positive evidence that the accused really intended to kill.
7. On the other hand, learned Government Advocate has submitted that there is sufficient material on record to frame the charge against the appellant/accused for commission of offence under Section 307 of IPC and 4 3(2)(v) of POA Act. Learned Judge has not committed any error in framing the charge for aforesaid offences as Dehati Nalishi and FIR was not lodged by the injured Kunjilal himself, because when FIR was lodged, he was in unconscious condition and his brother Lalaram who had lodged FIR was not present on the spot at the time of commission of offence and was not aware as to what had happened. Therefore, he without having proper knowledge only on the basis of assumption of accident had lodged Dehati Nalishi just to put the criminal machinery in motion. Therefore, merely on the basis of recitals given in Dehati Nalishi, it cannot be said that it was a simple case of rash and negligent driving. He further urged that at the stage of framing of charge only prima facie case has to be seen and if there is sufficient material to suspect the commission of crime charge can be framed as evidence cannot be evaluated and appreciated at the stage of framing of charge.
8. I have heard the learned counsel for the parties, considered rival submissions and perused the record. I have also carefully gone through the statement of injured Kunjilal, and his dying declaration recorded on 01.11.2017 and the statements of Lalaram Jatav, Surat Singh, Ganesh and Nazim Khan recorded under Section 161 of Cr.P.C.
9. In this case, Dehati Nalishi was recorded on the basis of narration given by Lalaram brother of injured who was not present on the spot at the time of commission of offence. When he came to know about the incident, he reached on the spot and found his brother in unconscious condition and took him to Berasiya Hospital. When Dehati Nalishi was recorded on the basis of narration given by Lalaram, he had no talk with his injured brother Kunjilal as he was lying unconscious. Therefore, merely on the basis of recitals of Dehati Nalishi and FIR, it cannot be said that it was a simple case of accident. It 5 cannot be overlooked that dying declaration of injured Kunjilal was recorded on 01.11.2017 almost after two days of the incident and in it Kunjilal has specifically stated that he had gone to answer the call of nature at the Nala. In the meantime, Sethu @ Shailendra driving his tractor came and deliberately hit him because 4-5 days prior to the incident he had some altercation with applicant/accused on the boundary of their adjoining field. In his statement recorded under Section 161 Cr.P.C. Kunjilal has stated that on 29.10.2017 at around 8:00 a.m. after answering the call of nature, when he was going to see the sports ground. In the meantime, Sethu @ Shailendra Yadav of his village driving his tractor rashly and negligently came and deliberately hit him by the tractor due to which he fell down on the ground and sustained injuries on his head, waist and right leg. He had become unconscious on the spot and when he regained his consciousness he had found himself in Hamidiya Hospital. The aforesaid statement of Kunjilal prima facie finds support from the statements of Ganesh, Nazim Khan and Surat Singh. After recording of dying declaration and statement of Kunjilal under Section 161 Cr.P.C. police added Section 307 of IPC and 3(2)(v) of POA Act and 139, 146, 192, 196 of Motor Vehicles Act, 1988 and filed charge sheet for the said offences.
10. As far as the genuineness of recitals contained in Dehati Nalishi and FIR is concerned, it cannot be overlooked that they have been recorded on the basis of narration given by Lalaram brother of injured and by that time he was not aware about the actual happening. In fact, when Kunjilal regained consciousness in hospital he narrated the exact story in dying declaration and in statement recorded under Section 161 Cr.P.C. and thereafter police has added other sections of IPC and POA Act. Therefore, having taken into consideration 6 the statements of injured and witnesses, it cannot be said that it was a simple case of accident because Kunjilal has specifically stated that owing to fracas on the boundary of their adjoining fields, Shailendra @ Sethu had hit him by tractor with an intention to kill him.
11. The intention of appellant/accused Shailendra while hitting Kunjilal by tractor was to commit his murder or not is a matter of evidence. Hence, only on the basis of recitals of Dehati Nalishi/FIR at this stage ignoring ample evidence on record, it cannot be said that it was a case of simple accident. Therefore, it can be culled out that learned Special Judge, POA Act has not committed any error in framing charge under Section 307 of IPC and 3(2)(v) of PO Act against the appellant/accused.
12. It is pertinent to note that at the stage of framing of charge, trial Court is not required to appreciate and marshal the evidence. In Bhawna Bai vs. Ghanshyam and others AIR 2020 SC 554, the Apex Court held in para 12 & 16 as under:
12. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused-
respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there a re sufficient grounds for proceedings against the accused. At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.
716. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 of IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722, while exercising power under Section 228 Cr.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused- respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside.
13. For framing the charge under Section 228 Cr.P.C the Judge is not required to record detail reasons and is not required to hold elaborate inquiry.
8Only prima facie case is to be seen. It also cannot be looked over that Dehati Nalishi/ FIR has been recorded on the basis of version given by a person who was not present on the spot at the time of commission of offence. Therefore, merely on the basis of contents of FIR, it cannot be said that it was a simple case of accident. In a criminal trial, prosecution has to prove its case beyond all reasonable doubts. Accused/defence has full opportunity to challenge the truthfulness and veracity of the evidence of prosecution witnesses by demolishing the same through cross-examination.
14. The facts of the case in Lalan Prasad (supra) have no application in this case as in that case Shri P.N. Lal, the Judge had not sustained any injury and his car was hit by an over speeding bus, while in the case of S.Arul Raja (supra) Supreme Court has given its findings after assessing the evidence of witnesses. Whereas in the case in hand, prosecution evidence has yet to be recorded and truthfulness and veracity of the prosecution witnesses has to be adjudged. Thus, for the reasons stated herein above at this stage, I find no good ground to interfere with the impugned order of framing of charge by trial Court.
1 5 . Consequently, this appeal fails and is dismissed. A copy of this order be sent down to Court concerned immediately.
(DINESH KUMAR PALIWAL) JUDGE b ANUPRIYA Digitally signed by ANUPRIYA SHARMA CHOUBEY DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, SHARMA 2.5.4.20=39fa4048c7a93442ff8e79347e51ed0f6f655c64cb 6d99dcf7a36d69ef167878, pseudonym=2142156D91516ACA40F2291D4FF91E27E57 BADA8, CHOUBEY serialNumber=04B33FA62D9E8571AA55F602EA8D77DCF CFCE3A6B69011155705CFD2CEC5B118, cn=ANUPRIYA SHARMA CHOUBEY Date: 2022.05.20 12:41:42 +05'30'