Madhya Pradesh High Court
Gajraj Singh vs The State Of Madhya Pradesh on 11 April, 2019
Equivalent citations: AIRONLINE 2019 MP 301
Cr.R. No.901/2017
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
Cr.R. No.901/2017
Gajraj Singh and others
Vs.
State of M.P. and another
Coram:
Hon. Shri Justice S.A.Dharmadhikari
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Shri Sameer Kumra Shrivastava, Advocate for
the petitioners.
Shri Vikrant Sharma, Public Prosecutor for the
respondent no.1-State.
Shri Anand Kumar Dubey, Advocate for
respondent no.2.
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ORDER
11/4/2019 This revision petition, under sections 397 read with 401 of the Cr.P.C., has been preferred assailing the order dated 9/8/17 (Annexure P/1) passed by II Additional Sessions Judge, Ganjbasoda, District Vidisha in S.T. No. 63/17, whereby charges under sections 148, 326 (on two counts) read with 149, 323 (on three counts) read with 149, 294 and 506 Part II of the IPC have been framed against the petitioners.
2. Brief facts leading to filing of the instant revision are that an FIR was lodged by complainant Suresh Kurmi alleging therein that on 7/12/16, at about 5 p.m., complainant was going to his agricultural field along with his son Vipendra. At Cr.R. No.901/2017 (2) that time, Ramswaroop, Gajraj, Abhishek, Kamlesh, Shankar Singh, Shaitan, Bhujwal came armed with Lathi and Pharsa and assaulted Indraj, Ramesh and Dinesh. When complainant and his son Vipendra tried to intervene in the fight, Shaitan, Abhishek and Gajraj assaulted the complainant and Vipendra due to which they received injuries. On the basis of aforesaid FIR was registered against the petitioners who are eight in number. During the course of investigation, Suresh, Vipendra, Ramesh, Dinesh and Indraj were medically examined. After completion of investigation, charge-sheet was filed against the petitioners for the offences punishable under sections 147, 148, 149, 326, 325, 427, 294, 323/506 of the IPC.
3. Learned counsel for the petitioners has sought discharge from the offence under section 326 of the IPC by contending that the injuries sustained by the victims are not caused by weapons which could be used for shooting, cutting or stabbing and, therefore, no offence under section 326, IPC is made out against the petitioners. It is submitted that as per FIR and medical report of all the five injured, the injuries are said to be caused by hard and blunt object i.e. Lathi and no sharp cutting weapon has been used, hence the order framing charge under section 326, IPC is not sustainable. It is further submitted that initially the FIR was registered for the offence under section 323 of the IPC but in response to a query raised, Medical Officer, District Hoospital, Vidisha reported that injured Vipendra and Dinesh had received grievous injuries and, accordingly, charge under section 326 of the IPC has been added. It is submitted that the learned Court below has, however, lost sight of the fact that looking the the nature of weapon used, which is hard and blunt Cr.R. No.901/2017 (3) object, at the most charge under section 325 of the IPC could have been framed and not the one under section 326, IPC.
4. On the other hand, learned Public Prosecutor has supported the impugned order and submits that as per the response of Medical Officer, District Hospital, Vidisha to a query raised by SHO, P.S Tyonda, injured Vipendra and Dinesh have received grievous injury and, therefore, the learned Court below has not committed any error in framing charge under section 326 of the IPC. It is further submitted that no indulgence is warranted, inasmuch as it is a matter of trial and if the trial Court finds that offence under section 325, IPC was made out instead of 326, IPC, the Court can convict the accused persons under section 325, IPC while exercising powers under section 222(2) of the Cr.P.C. It is also submitted that the trial is at the stage of evidence and interference at this stage is not appropriate.
5. Heard, learned counsel for the parties and perused the evidence on record.
6. To address the point in issue, it is essential to advert to the MLC reports of injured Vipendra and Dinesh, which read thus:-
Injury report of Vipendra
1. Lacerated wound 2 cm x 1 cm x 0.5 cm on lateral side of left knee joint caused by blunt and hard object, simple in nature, duration 1-3 hours.
2. Swelling with tenderness - 15 cm x 8 cm - middle 1/3 of left anterior leg. Advised X-ray of left leg, anterior, Cr.R. No.901/2017 (4) posterior and lateral.
3. Lacerated wound with abrasion - 3 cm x 2 cm on posterior side of middle 1/3 of left arm, simple in nature.
4. Swelling with pain - 5 cm x 5 cm on medial side of the right knee, caused by blunt and hard object, simple in nature.
5. Lacerated wound - 5 cm x 1 cm x 0.5 cm on parietal head, caused by blunt and hard object, simple in nature.
No other injury seen at the time of examination.
Injury report of Dinesh
1. Lacerated wound 2 cm x 0.5 cm x 0.5 cm on left side of head caused by blunt and hard object, simple in nature.
2. Swelling with tenderness - 5 cm x 5 cm on right side of forehead, caused by blunt and hard object, simple in nature, duration 1-3 hours
3. Swelling with tenderness - 10 cm x 10 cm, on posterior side of right hand, caused by blunt and hard object. Advised X-ray of right hand,anterior, posterior and lateral. Duration - 1 -3 hours.
4. Swelling with pain, 8 cm x 8cm on upper 1/3 of left forearm, anterior side, caused by blunt and hard object. Advised X-ray of left forearm, anterior, posterior and lateral.
5. Lacerated wound with swelling with tenderness - 1 cm x 1 cm. Swelling 5 cm x 5 cm. Right leg on middle 1/3. Advised X-ray of right leg, anterior, posterior and lateral. Duration 1-3 hours, caused by blunt and hard object.
6. Lacerated wound with swelling- 1 cm x 1 cm with swelling 3 cm x 3 cm on left leg, middle 1/3, caused by Cr.R. No.901/2017 (5) blunt and hard object. Advised X-ray of left leg, anterior, posterior and lateral.
Referred to higher centre for treatment and management. No other external injury seen at the time of examination.
7. On 16/12/16, on a query raised by Station House Officer of P.S.Tyonda, District Vidisha, Medical Officer, District Hospital, Vidisha has opined that the injuries of Vipendra and Dinesh were grievous in nature. Based on the said query report, it is alleged that the charge under section 326, IPC has been framed against the petitioners despite the fact that there is no X-ray report on record in support of the said query report.
8. Section 326 of IPC reads thus:-
"326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
9. Thus, from the above, it is glaringly clear that to constitute an offence under section 326 of the IPC, grievous hurt should be caused voluntarily by means of an instrument for shooting, stabbing or cutting or by any other instrument, which used as a weapon, is likely to cause death. In the instant case, contents of Cr.R. No.901/2017 (6) the FIR reveal that the complainant party has been assaulted by Lathi and Pharsa, while the MLC reports of Vipendra and Dinesh, who are said to have received grievous injuries, suggest that they have been assaulted by hard and blunt object. No incised wound has been received by Dinesh and Vipendra. Therefore, in the light of averments as mentioned in FIR, it is clear that Dinesh and Vipendra have been assaulted by Lathi. This Court in the case of Madhav Singh and others Vs. State of M.P. (2016(III) MPWN 79), while relying upon the decision of the Apex Court in the case of Mohinder Singh Vs. State (Delhi Administration) reported in 1985 CRLJ 1903 (SC) has held that Lathi cannot be said to be an instrument likely to cause death or dangerous weapon. It is also well settled that if charges have been framed and even if some witnesses have been examined, the petition, under section 482 of the Cr.P.C. for quashment of charges, can be decided on merits (Satish Mehra Vs State (NCT of Delhi), (2012)3 SCC 614, referred to).
10. In view of the aforesaid, this Court is of the considered opinion that the trial Court was not justified in framing charge under section 326 of the IPC (on two counts) against the petitioners. Resultantly, the impugned order dated 9/8/17, so far as it relates to framing of charge under section 326 of the IPC (on two counts) against the petitioners, is hereby set aside and the case is remanded to the trial Court with a direction to reassess and reframe the charges against the accused persons, in accordance with law, in the light of aforesaid discussion.
This revision petition, accordingly, stands disposed of. A copy of this order be sen to the trial Court concerned for information and compliance.
(S.A.Dharmadhikari) Judge (and) ANAND SHRIVASTAVA 2019.04.15 16:49:19 +05'30'