Madhya Pradesh High Court
Mohammad Shahid vs The State Of Madhya Pradesh Judgement ... on 14 February, 2014
Author: U. C. Maheshwari
Bench: U. C. Maheshwari
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
CRIMINAL REVISION NO.1650 OF 2013
Mohammad Shahid
Versus.
State of Madhya Pradesh
For applicant : Shri Sankalp Kochar , Advocate.
For Respondent/ : Shri Prakash Gupta, Panel Lawyer.
State
O R D E R (Oral)
(14.02.2014) Per U. C. Maheshwari J.
1. On behalf of the applicant/accused, this revision is preferred under Section 397 read with Section 401 of Cr.P.C., being aggrieved by the order dated 29.7.2013, passed by Additional Sessions Judge Begumganj, District Raisen in Sessions Trial No. 143/13, framing the charge of Section 307 of I.P.C. against the applicant.
2. Applicant's counsel after taking me through the impugned order along with the copy of the charge-sheet from his brief argued that on taking into consideration the averments of the FIR as well as the interrogatory statement of the victim and other witnesses along with the MLC and X-ray report of the victim/complainant Kamaljeet Singh, as accepted in it's entirety even then, the ingredients of the alleged offence of Section 307 of I.P.C. are not made out against the applicant. In continuation he said that, in view of the police report submitted under Section 173 of Cr.P.C., this is not a case of more than Section 324 of I.P.C. for framing the charge against the applicant and prayed for setting aside the impugned order framing the charge of 307 of I.P.C. and in alternate to modify such charge for the offence of Section 324 of I.P.C. by admitting and allowing this revision.
3. On the other hand, responding the aforesaid arguments learned P.L. by justifying the impugned order and the charge framed said that the same being based on available factual matrix of the matter, is in conformity with law, it does not require any interference either to discharge the applicant 2 from the alleged charge of Section 307 of I.P.C. or to modify such Section into Section 324 of I.P.C. and prayed for dismissal of this revision.
4. Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the copy of the charge-sheet including the First Information Report and the interrogatory statements of the witnesses including MLC and X-ray report of the victim. The First Information report was lodged by victim/complainant Kamlajeet Singh on dated 27.03.2013 at 5.30 O' Clock contending that today he accompanied with Awadh Naryan Gour Patel Sumari and Autar Singh Thakur, went to betel leaf shop, where one Shahid, elder brother of Javed also came there and asked him why he abused his elder brother Javed, he denied such fact on which, by abusing him with filthy languages with intention to cause his death, said Shahid had given a blow of knife (chhuri) on his waist resultantly, he sustained the injury on the below of his chest with bleeding. He was taken to hospital by Awadh Naryan where his MLC report was prepared at 6.00 O'Clock by the duty doctor of the Government Hospital. After medical examination he lodged the impugned FIR.
5. According to MLC report following injury was found on the person of the complainant.
"Incised wound 2x1 cm over lower chest Caused by sharp and pointed object and was advised for x-ray.
6. On carrying out the X-ray, according to it's report (Annexure-P-5) no bony injury was found on his person.
7. Subsequent to medical examination, the victim Kamlajeet Singh went to the Police Station and lodged the report, thus the inference could be drawn that the complainant was not admitted in the hospital as indoor patient.
8. On recording the interrogatory statements of the victim himself, Awadh Naryan and Daulat Singh, they supported the contents stated in the FIR.
39. In view of the aforesaid nature of the injury and the available interrogatory statements of the witnesses this Court has to consider the question whether the available circumstances of the case is sufficient to draw the inference that the abovementioned injury of knife sustained by the victim was caused by the applicant with intention to cause his death and was sufficient to cause death in the ordinary course of nature as per requirement of Section 299 read with earlier part of Section 300 of I.P.C.
10. It is settled proposition of criminal law that in a sustentative offence the accused like applicant could be charged and on holding the trial held to be guilty for such offence and act which he actually committed and not for such Act which he would have committed but by one reason or another, had not committed. My such view is supported by the decision of Judicial Commissioner Court of Peshawar in the matter of Ghulam Sabir Amir Khan vs. Emperor reported in AIR (29) 1942 Peshwar 21(2) in which it was held as under:-
"Evidence not sufficient to establish with certainty existence of requisite intention or knowledge of accused. Accused can be convicted only under Section 324 and not under Section 307.
(placitum)
11. In view of the aforesaid principle, on examining the case at hand, it is apparent that it is a case of only single blow of knife by which the victim has sustained the incised wound below the chest by means of knife as stated above, and it is also apparent that inspite the opportunity he did not give another blow of the same. It is also apparent from the MLC and X-ray that except the aforesaid one incised wound measuring 3x1 cm, no any other grievous injury or fracture was found on the person of the victim on any vital pat or organ of the person. In such premises, this injury could not be deemed to be sufficient to cause death of the victim in ordinary course of the nature, simultaneously in the available collected evidence prima facie it could not be inferred against the applicant that the alleged blow of knife was given by him to the victim with intention to cause his death.
412. In addition, I would like to mention here that before filing the charge- sheet, the investigating Officer has made some query from the doctor, who prepared the MLC report on which he answered the same stating that looking to the nature of the injury it could not be said that the same was sufficient to cause death of the victim. So, in such premises, the alleged injury could not be considered to be sufficient to cause death of the victim in ordinary course of the nature. As such the alleged injury could not be treated to be the grievous hurt defined under Section 320 of I.P.C. Thus, it is held that the victim has neither sustained the injury which is sufficient to cause death in ordinary course of the nature nor the injury which could be said to be grievous in nature. The alleged injury being sustained by the victim by means of hard, sharp and pointed implement is an incised wound and in such premises, the applicant is liable to face the prosecution of the charge of Section 324 of I.P.C. My aforesaid approach is also fortified by the decision of the apex Court in the matter of Sarju Prasad vs. State of Bihar reported in AIR 1965 SC 843, in which it was held as under:-
"8. The only other question then is whether the appellant intended to cause such in jury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury as is likely to cause death.
9. It is true that the witnesses say that the appellant used a chhura. It is also true, that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby. Again, we do not know how big the chhura was and, therefore, it cannot be said that it was sufficiently for to penetrate the abdomen deep enough to cause an injury to a vital organ which would in the ordinary course of nature be fatal. The chhura could not be recovered but the prosecution should at least have elicited from the witnesses particulars about its size. We are, therefore, unable to say with anything near certainty that the appellant had such intention or knowledge. Incidentally we may point out that Shankar Prasad does not say that after he released the wrist of Sushil the appellant inflicted or even tried to inflict any further injury on him."5
Although such cited case was decided by the apex Court in a matter in which the trial was already held but the principle laid down by the apex Court is directly applicant to the present case.
13. In view of the aforesaid discussions, the impugned order framing the charge against the applicant under Section 307 of I.P.C., being perverse is not sustainable hence, the same is hereby set aside.
14. Setting aside the charge of Section 307 of I.P.C., does not mean that the applicant could not be prosecuted in any other offence on the basis of present charge-sheet as such in the available circumstances he is found to face the prosecution of the charge punishable under Section 324 of I.P.C.
15. In view of the aforesaid discussions, by allowing this revision in part, the impugned charge framed for the offence of Section 307 of I.P.C., is set aside and the subordinate Sessions Court is directed to frame the charge of Section 324 of I.P.C., against the applicant and sent the matter to the appropriate Court having the territorial jurisdiction to hold the trial of the offence punishable under Section 324 of I.P.C. Till this extent, the impugned order is modified.
16. Revision is allowed in part as indicated above.
(U.C.MAHESHWARI) JUDGE Pb