Madhya Pradesh High Court
Lav vs The State Of Madhya Pradesh on 11 August, 2017
1
Cr.R.No.443/2016
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Criminal Revision No. 443/2016
1.Lav S/o Champalal
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
2.Ajay S/o Suresh
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
3.Narendra S/o Mahesh
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
4.Rahul S/o Jamanlal
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
5.Sevak S/o Jogaram
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
6.Deepesh S/o Raju
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
7.Narsingh S/o Mahesh
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
8.Bharat S/o Sevak
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
9.Nitin @ Chhota Appu S/o Jamanlal
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
2
Cr.R.No.443/2016
10.Mahesh S/o Jamanlal
R/o Gandhi Nagar, District-Khandwa,
Madhya Pradesh.
Petitioners
Vs
The State of Madhya Pradesh
P.S. Moghat Road Khandwa, Khandwa
Madhya Pradesh
Respondent
...............................................................................................................
Present: Hon'ble Shri Justice C.V. Sirpurkar
...............................................................................................................
Shri Yogesh Soni, counsel for the petitioners.
Shri Yogesh Dhande, Government Advocate for the
respondent State.
............................................................................................................
ORDER
(11-08-2017)
1. This criminal revision is directed against the order dated 20.08.2015 passed by the Court of Third Additional Sessions Judge, Khandwa in Sessions Trial No. 157/2015, whereby a charge under Sections 147, 148 and 307 read with section 149 of the IPC has been framed against the accused persons/petitioners Lav, Ajay, Narendra, Rahul, Sevak, Deepesh, Narsingh, Bharat, Nitin and Mahesh.
2. The prosecution case before the trial Court may briefly stated thus: A day before the date of the incident, there was a dispute between Nemichand, Fufa (maternal aunt's husband) of first informant, Lalit and his neighbour Raju on account of construction of a wall; whereon, victim Lalit had interceded in the matter and had tried to pacify Raju. On account of aforesaid dispute, at about 11:00 a.m. on 21.10.2014, accused persons/petitioners got together and went to the house of victim Lalit, they called him to come out; whereon, the victim went to the premises of the Temple. Raju said that Lalit was supporting his Fufa. Thereafter, Deepesh struck a blow with an iron pipe upon the head of the victim Lalit with an intent to kill him. As a 3 Cr.R.No.443/2016 result, he started bleeding from his head. At the same time, Raju also struck him with an iron pipe on the head resulting in bleeding. Victim Lalit fell down. Petitioners Nitin, Narsingh, Bharat Sevak, Mangesh, Rahul and Narendra got together and started to beat victim Lalit with sticks and kicks. As a result, victim Lalit became unconscious. He regained consciousness in the hospital. He sustained two injuries to his head and other injuries to his hands and legs.
3. Learned counsel for the petitioners has challenged the order framing charge mainly on the grounds that injuries sustained by the victim Lalit are simple in nature. No fracture was found upon the skull of the victim. The injuries were caused by Deepesh. Medico-legal report does not support the version of the victim given in the FIR. The statement of victim Lalit under Section 161 of the Cr.P.C. is also not supported by the Medico-legal report. No overt acts have been ascribed to the petitioners other than Deepesh and Raju. Other accused persons are said to have beaten the victim by sticks and kicks but no such injury was found on his person. Medico-legal report does not mention that any of the injuries sustained by the victim were sufficient in the ordinary course of nature to cause death. On the basis of First Information Report or the statements of the victim under Section 161 of the Cr.P.C. offences under Sections 147, 148 and 307 read with section 149 of the IPC are not constituted. At worst, a charge under Section 323 of the IPC may be framed and that too only against petitioner Deepesh. Learned counsel for the petitioners has invited attention of the Court to the following authorities:-
(i) Charan Singh and others vs. State of U.P., 2004 (4) SCC 205,
(ii) Rabindra Mahto vs. State of Jharkand., 2006 (10) SCC 432,
(iii) Ramachandran vs. State of Kerala., 2011 (9) SCC 257,
(iv) Rajendra Shantaram Todankar vs. State of Maharashtra and others., AIR 2003 SC 1110,
(v) Ram dular Rai vs. State of Bihar 2003 (12) SCC 352, 4 Cr.R.No.443/2016
(vi) Kuldip Yadav vs. State of Bihar 2011 (5) SCC 324 (para 39),
(vii) Alluauddin Main vs. State of Bihar 1989 (3) SCC 5,
(viii) S.P. Sinha and others vs. State of Maharashtra, AIR 1992 SC 1751,
(ix) Shambonath Singh and others vs. State of Bihar, AIR 1960 SC 725,
(x) Chellappan and others vs. State of Kerala, AIR 1975 SC 1808,
(xi) Musakan and others vs. State of Maharashtra, AIR 1976 SC 2566,
(xii) Carnail Singh vs. State of Punjab, 1977 CRLJ 550
(xiii) Sarwan Singh and others vs. State of Punjab, AIR 1978 SC 1525,
(xiv) Bharwad Bhikha Natha and others vs. State of Gujarat AIR 1977 SC 1768,
(xv) Jaspal Singh and others vs. State of Haryana, AIR 1977 SC 1821, (xvi) Nagarjit Ahir etc vs. State of Bihar, AIR 2005 SC 722, (xvii) Charan Singh and others vs. State of U.P., AIR 2004 SC 2828, (xviii) Masliti and others vs. State of U.P., AIR 1965 SC 2002, (xix) Baladin and others vs. State of U.P., AIR 1956 SC 181, (xx) Bhargavan vs. State of Kerala, 2004 (12) SCC 414, (xxi) Vikram and others vs. State of Maharashtra, AIR 2007 SC 1893, (xxii) State of M.P. vs. Mishrilal (Dead) and others, AIR 2003 SC 4089, (xxiii) Bharosi and others vs. State of M.P., AIR 2002 SC 3299. (xxiv) Bhargavan and others vs. State of Kerala, AIR 2004 SC 1058, (xxv) Basisth Roy and others vs. State of Kerala, AIR 2003 SC 1439, 5 Cr.R.No.443/2016 (xxvi) Mizaji and others vs. State of U.P., AIR 1959 SC 572, (xxvii) Gangadhar Behara and others vs. State of Orissa, AIR 2002 SC 3633, (xxviii) Munna Chandra vs. State of Assam, AIR 2006 SC 3555, (xxix) Rachamreddi Chenna Reddy vs. State of A.P., 1999 (3) SCC 97, (xxx) State of Karnataka vs. Shikkahottappa @ Varde gowda and others, 2008 CRLJ, 3495, (xxxi) Chankya Dhibar State of West Bengal, 2004 (12) SCC 398, (xxxii) Maranada and others vs. State by Inspector of Police T.N., 2008 Cr.L.J. 4562, (xxxiii) Rajendra Shantaram Todankar vs. State of Maharashtra and others, AIR 2003 SC 1110.
4. Learned Government Advocate for the respondent State has supported the impugned order.
5. A perusal of the statements under Section 161 of the Cr.P.C. given by the victim Lalit reveals that overt acts have been attributed to petitioners Raju and Deepesh. Both of them are said to have struck one blow each to the head of the victim with iron pipes. The kind of iron pipes that have been seized from the possession of the aforesaid petitioners are deadly weapon because they are sufficient to cause death when used as a weapon of offences. The part of the body that has been selected to cause the blows was head, which is a vital part. The names of the remaining petitioners have been mentioned in Dehati Nalishi lodged within an hour and half of the incident. Remaining petitioners had accompanied main accused persons Raju and Deepesh and were calling for victim to come out of his home; therefore, prima facie, it may be said that they had constituted an unlawful assembly and were agitated by the common object of that assembly to cause injuries to victim Lalit. Prima facie it is also clear that the injuries caused to the head of the victim were caused by 6 Cr.R.No.443/2016 accused persons namely Deepesh and Raju in furtherance of common object of that unlawful assembly; as such, there appears to be nothing wrong on the part of the trial Court to frame charges against all accused persons as aforesaid.
6. Moreover, the Supreme Court has held 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."
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 7 Cr.R.No.443/2016 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."
7. In these circumstances, the impugned order does not suffer from any illegality, irregularity or impropriety warranting interference under the revisionary jurisdiction of the High Court.
8. Consequently, this criminal revision deserves to be and is accordingly dismissed.
(C. V. Sirpurkar) Judge sh IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR ******************************************************* Criminal Revision No. 443/2016 Lav and others.
Vs. State of M.P. :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
Post for :- 11/08/2017
{C.V. Sirpurkar}
Judge