Madhya Pradesh High Court
Radheshyam vs The State Of Madhya Pradesh on 30 June, 2022
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 30th OF JUNE, 2022
CRIMINAL REVISION No. 3446 of 2021
Between:-
RADHESHYAM S/O SHRI SHANKARLAL
CHAUDHARY, AGED ABOUT 35 YEARS,
1. OCCUPATION: AGRICULTURE
JHIRNIYA TEH. NAGDA, DISTRICT
UJJAIN (MADHYA PRADESH)
KANHA ALIAS DHANNALAL S/O SHRI
DAYARAMJI, AGED ABOUT 42 YEARS,
2. OCCUPATION: AGRICULTURE
VILLAGE JHIRNIYA TEH. NAGDA
DISTRICT UJJAIN (MADHYA PRADESH)
FARHAN S/O SHRI BHURE KHAN,
AGED ABOUT 22 YEARS, OCCUPATION:
3. AGRICULTURE, VILLAGE JHIRNIYA
TEH. NAGDA, DISTRICT UJJAIN
(MADHYA PRADESH)
SHAHBAZUDDIN S/O SHRI
SADARUDDIN, AGED ABOUT 28 YEARS,
4. OCCUPATION: AGRICULTURE
VILLAGE JHIRNIYA TEH. NAGDA
DISTRICT UJJAIN(MADHYA PRADESH)
INSAAF S/O SHRI TAMEEJUDDIN ,
AGED ABOUT 32 YEARS, OCCUPATION:
5. AGRICULTURE VILLAGE JHIRNIYA
TEH. NAGDA, DISTRICT UJJAIN
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI ASHUTOSH SURANA, LEARNED COUNSEL FOR THE
PETITIONER)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. PS. BIRLAGRAM
NAGDA, DISTRICT UJJAIN (MADHYA
PRADESH)
.....NON-APPLICANT
(SHRI CHETAN JAIN, PANEL LAWYER FOR THE NON-APPLICANT/STATE)
-----------------------------------------------------------------------------------------
This criminal revision coming on for admission/orders this
day, the court passed the following:
ORDER
With the consent, finally heard.
The applicant/accused has preferred this criminal revision under Section 397 read with Section 401 of Cr.P.C. 1973 challenging the order dated 03/09/2021, passed by the learned Additional Sessions Judge, Nagda, in Sessions Case No.08/2021 whereby, the charges under Sections 323 read with Section 149, 325 read with Section 149, 459 and 147 of IPC have been framed against the applicants.
2. The prosecution case in brief is that the applicants are farmers by occupation. That, on 15/07/2019 a First Information Report bearing number 232/2019°was registered at police station Biralagram Nagda Dist. Ujjain (M.P.) against the present applicants under Section 458,147 and 148 of IPC for the alleged incident on the report of one Pappu Singh S/o Kalu Singh resident of village pipliya under the jurisdiction of respondent police station. The police had filed charge-sheet before the competent Court for the offences under Section 458,147,148 and 459 of IPC. That it is worth mentioning here that prior to the aforesaid FIR, another FIR bearing crime number 231/2019 dated 14/07/2019 by the applicant no.02 against Kaalu Singh S/o Baapu, Bhupendra S/o Kaalu and Pappu singh S/o Kalu Singh has been registered initially under Sections 323,294,506 and 34 of IPC and later on, challan has been filed by police under Sections 323,325,294,506 and 34 of IPC. In FIR bearing crime number 232/2019 the alleged injured persons were Pappu singh S/o Kalu Singh, Bhupendra S/o Kaalu and Kaalu Singh S/o Baapu and Reena Kunwar W/o Kalu Singh. That amongst these alleged injured persons, two persons were referred to hospital at Ujjain and in their medical examination the concerned government doctor after their X-ray and other examination clearly and specifically opined that no bony injury is caused. The police had registered FIR against the applicants under Section 458,147 and 148 of IPC and, later on, filed the charge- sheet before concerned Court under Sections 458,147, 148 and 459 of IPC. That the Learned Trial Court vide its order dated 03/09/2021 refused to discharge the present applicants and framed charges under Sections 323 r/w 149, 325 r/w 149, 459 and 147 of IPC. Aggrieved by the same, the present revision petition is filed.
3. Learned counsel for the applicants submits that as per charge-sheet filed by the applicants, charges under Sections 323 r/w 149, 325 r/w 149, 459 and 147 of IPC against the applicants are liable to be set aside being illegal, void, nullity and contrary to law as well as facts on record. As out of the evidence collected in the investigation there is not even a prima facie case which fulfills the ingredients of Sections 325 and 459 of IPC and offence alleged therein. The important factual aspect of the case is that the alleged injured person was referred to the Government hospital at Ujjain and, as per the MLC/X-RAY dated 18/07/2019, no bony injury has been caused to the injured Kalusingh. He further submits that for the offence under Section 325 of IPC, the requirements of Section 320 of IPC is to be considered. The learned trial court further failed to consider that no injured person has received any injury which falls within the scope of Section 320 of IPC, thus there was not even prima facie material available on record for framing charge under Section 325 of IPC. Since the ingredients of Section 320 of IPC are not present in this case, therefore, charge under Section 459 IPC can also be not made out. He also submitted that prior to one day, report has been filed against the complainant party and his family members by the applicant No.2 and in that case the other applicants are witnesses in the matter, therefore for settling the score a case of false implication has been made out in the present case. In the present case, there is no evidence on record which suggests that the applicants have taken precaution to conceal house trespass as defined under Section 443 of IPC, therefore also charges could not have been framed under Sections 458 and 459 of IPC against the present applicants.
4. Learned Panel Lawyer for the non-applicant/State refutes the contention raised by the learned counsel for the applicants and prays for dismissal of the criminal revision.
5. Heard learned counsel for the parties and perused the charge-sheet.
6. Section 320 of The Indian Penal Code reads as under :
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye.
(Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent dis-figuration of the head or face.
(Seventhly) --Fracture or dislocation of a bone or tooth.
(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
7. On perusal of record/charge-sheet, it is clear that the date of incident is 14/07/2019 and FIR was lodged after 4 ½ hours of the incident on 15/07/2019 at 01.33 p.m. As per X-ray report of Madhav Nagar Hospital, Ujjain dated 15/07/1999 of injured Kalusingh, there was bony injury on his body, fracture/dislocation on right hand/finger. Learned counsel for the applicants drawn the attention of the Court only on the X-Ray report of Madhav Nagar Hospital, Ujjain dated 18/07/1999 wherein, no bony injury was found on the chest and left shoulder of Kalusingh, therefore, it cannot be said that there is no grievous hurt as prescribed in Section 320(8) of IPC. Therefore, the learned trial Court has rightly framed charge under Sections 325 and 325/149 of IPC.
8. So far as Section 459 of IPC the same is reproduced as under
:-
459. Grievous hurt caused whilst committing lurking house trespass or house-breaking.--Whoever, whilst committing lurking house-trespass or house-
breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
9. Section 443 of IPC is also relevant which reads as under :-
443. Lurking house-trespass. --Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass".
10. From perusal of charge-sheet, it is found that certainly there was a house-trespass, but nothing on record to suggest that the applicants committed house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, Therefore, charge under Section 459 of IPC is not made out. At the most, charge under Section 452 of IPC can be framed against the applicants.
11. So far as charge framed under Section 323 read with Section 149 of IPC( for five counts), there are oral as well as medical evidence on the record that Pappu Singh, Kalu Singh, Bhupendra, Swati Singh and Rina Kunwar have received injuries in the alleged incident and these injuries are caused in pursuance of common object by the applicants or by any of the applicant. In view of above, this Court is of the opinion that the trial court has committed no error in framing charge for offence under Section 323 of IPC read with Section 149 of IPC against the applicants.
12. As discussed above, except charge under Section 459 of IPC, all other charges framed under Sections 325 r/w Section 149, 323 r/w Section 149 of IPC and 147 of IPC have been rightly framed by the trial Court against the applicants. However, the charge under Section 459 of IPC is to be altered under Section 452 of IPC and, only charge under Section 452 of IPC is made out against them. The applicants are, therefore, discharged of offence under Section 459 of IPC.
12. Accordingly, the revision petition is partly allowed. The trial court is directed to proceed further accordingly with the aforesaid observations made hereinbove.
(Rajendra Kumar (Verma)) Judge pn PREETHA Digitally signed by PREETHA NAIR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=5431da3716f911ecd1cb3fc6dc91ea2cacec60259cb241b9ad42 416f404bb303, NAIR pseudonym=BEA9A029360DBE02FDC86E8557A519B70B35E1A7, serialNumber=0EC5BE08895BA17A6074239F753A38DE8188C5E650851 78B87CD8C85BA5B87CC, cn=PREETHA NAIR Date: 2022.07.07 17:18:24 +05'30'