Chhotelal and Others vs State of M.P.

Mr. Justice U.C. Maheshwari

Having heard on I.A. No. 16138/11, applicants'' application by allowing the same the annexed copy of charge-sheet is taken on record.

Heard on the question of admission.

Admit.

State counsel has taken notice of this admission.

As the copy of the charge-sheet is available on the record thus, looking to the question involved in this revision with the consent of the parties, the same is heard finally.

The applicants have directed this revision being aggrieved by the order dated 28.6.2011 passed by IIIrd Additional Sessions Judge (Fast Track Court) Begamganj, District Raisen in Sessions Trial No. 40/11, framing charges against them for the offence under Sections 294, 147, 149, 307/149, 323/149 and 506 of I.P.C. The facts giving rise to this revision in short are that on dated 12.8.2010 at about 9 O'' Clock in the night, at the instance of victim Ganesh Singh, a Dehati Nalishi was drawn up by the Assistant Sub-Inspector of Police posted at Police Station Begamganj. According to it, on the aforesaid date at about 7.30 in the morning when the applicant was sitting in front of his house at the same time applicants Chander Singh, Ritesh, Chhotelal and Dinesh Raikwar, came their and asked him why he had taken his tractor from their field, he replied that it is his way also. By that time applicants Ganesh, Dammu, Nitu @ Nitesh, and Ram Charan also came their and abused him. On asking them not to do such thing, he was subjected to blow of Katarna by Ram Charan, Ganesh and Chotelal with intention to cause his death. Consequently, he sustained the injuries with bleeding. When his father Gopial, Tikam Singh, Govind Singh came to rescue him then, his father was also subjected to the blows of Katarna by the applicants, Ram Charan, Dammu, Chandan Singh with intention to cause his death, consequently his father sustained the injuries on his head. Tikam Singh, Govind and Santosh were also subjected to beating with the blows of sticks by the applicants Dinesh, Ghanshyam, and Nitesh resultantly such victims also sustained some internal injuries. On the basis of aforesaid Dehati Nalishi, after sending the victim to the hospital for medical examination, the original offence was registered at Police Station Begamganuj against the applicants for the offence under Sections 294, 323, 307, 506, 147, 148 and 149 of I.P.C. and on carrying out the medical examination of the abovementioned victims namely; Gopi, Tikam Singh, Govind Singh and Parvesh Singh and Santosh their separate MLC reports were prepared and looking to the nature of the injuries sustained by the Gopi, he was referred to Hamidia Hospital Bhopal, for further management and expert opinion. After conclusion of the investigation, the applicants were charge-sheets for the offence of Section 294, 323, 307, 506 147 read with Section 148 and 149 of IPC.

After committing the case to the Sessions Court, on evaluation of the charge-sheet, the abovementioned charges were framed against the applicants. They abjured their guilt and thereafter, being dissatisfied with such order has come to this Court with this revision.

Shri Narendra Nikhare, learned counsel for the applicants after taking me thorough papers of the charge-sheet along with the aforesaid MLC report of the victims as well as some opinion given by the doctor with respect of some sticks, said that on taking into consideration the face value of the charge-sheet as accepted in it''s entirety, even then the ingredients of Section 307 of I.P.C. are not made out against any of the applicants to frame such charge. So far other charges are concerned, he has not made any arguments for setting aside the same. In continuation, he said that looking to the nature of the incident and the injury sustained by the victims including the injury of Gopi, on whose medical report, Section 307 of I.P.C. has been invoked, this is not the case of more than Section 323 of I.P.C., as all the victims have sustained lacerated wound, Contusion or guise (abrasion) and in such premises, this is a fit case for discharging the applicants from the charge of Section 307 read with Section 149 of I.P.C. With these submissions, he prayed for setting aside the impugned order till the aforesaid extent by allowing this revision.

On the other hand, responding the aforesaid arguments Smt. Nirmala Nayak, learned Govt. Adv. by justifying the impugned order and the framed charges said that the same is in consonance with the papers of the charge-sheet. At the initial stage in view of the averments of the FIR showing that the alleged assault was made by the applicants on victims with intention to cause death of some victims, the impugned order does not require any interference even for discharging the applicants from the charge of Section 307 of I.P.C. and prayed for dismissal of this revision.

Having heard the counsel at length, keeping in view their arguments, after perusing the papers and the copy of the entire charge-sheet placed on the record along with impugned order, I am of the considered view that the charge of Section 307/149 of I.P.C. is not sustainable against any of the applicants.

It is settled proposition of law that the accused persons is always charged and convicted for the act which he/they have actually committed and not for that which they could have committed but did not commit. At the time of framing the charge, keeping in view the factual matrix of the incident as stated in the FIR, if the MLC reports of the victims are taken into consideration then, it is apparent that any of the victim has not sustained any grievous injury or the injury which could be said to be sufficient to cause death of a person in ordinary course of the nature. In such premises, on taking into consideration the face value of charge-sheet as accepted in it''s entirety even the name of the applicants could not be convicted u/s 307 of I.P.C. So in such circumstances, this Court has to answer the question whether the trial Court has correctly framed the charge of Section 307 of I.P.C. or instead such charge, some other charge ought to have been framed by such Court.

Before proceeding further, as ready reference I would like to mention the injuries sustained by the victims and found by the doctor on their medical examination. The same is as under:-

As per MLC report of Gopi:

(a)Lacerated wound 1.6 CMx.2 left post parietal.

(b) Lacerated wound 1.9 CMx. 1 right post parietal.

(c) Lacerated wound 1.2 CMx. 1 left upper occipital.

As per further averments of the MLC report, the alleged injuries were caused by hard and blunt object within 12 hours. Nature can be said after observation. But patient has repeatedly No. of vomiting. He is immediately be referred to Hamidia Hospital Bhopal, for his further management and expert opinion.

AS per MLC report of Tikam Singh:

(d) Lacerated wound 1.6 CMx.2 right post parietal.

As per further averments of the MLC report, the alleged injuries were caused by hard and blunt object, simple within 12 hours.

As per MLC report of Govind Singh:

(e) Swelling 6 Cm x 2.8 CM Left mid forearm.

(f) Lacerated wound with swelling.8 CM x.1 CM x2.6 CM x1.5 CM. mid frontal scalp.

As per further averments of the MLC report, the alleged injuries were caused within 12 hours by hard and blunt object. Nature can be said after observation.

As per MLC report of Pranesh Singh:

(g) Lacerated wound 1.8 CM x 2 CM right post parietal

(h) Lacerated wound 2 Cm x. 1 CM left anterior parietal.

(i) A Graze.6cmx3 CM right hands little finger.

As per further averments of the MLC report, the alleged injuries were caused within 12 hours by hard and blunt object. Nature can be said after observation.

As per MLC report of Santosh:

(j) A Graze 1.6 CM x 3 CM left anterior lateral lower part.

(k) Lacerated wound 1.8 CM x. 1 CM mid left parietal of scalp.

As per further averments of the MLC report, the alleged injuries were caused by hard and rough object. All within 12 hours.

It is apparent from the aforesaid MLC reports that any of the injury stated in such reports does not come under the purview of earlier part of Section 300 of I.P.C. and in such premises, it could not be said that any of the applicants has committed the offence of Section 307 of I.P.C. In view of settled proposition to examine the ingredients of the offence of Section 307 of I.P.C., the criteria stated in earlier part of Section 300 of I.P.C. is taken into consideration. In the lack of any prima facie evidence that any of the victims sustained grievous injury or sufficient to cause death in ordinary course of the nature, the impugned case is squarely fall only u/s 323 read with Section 149 of I.P.C. in five counts and not u/s 307 of I.P.C.

It is also noted that subsequent to referring the victim Gopi, to Hamidia Hospital Bhopal, for further treatment, what opinion regarding nature of his injuries was given by the doctor in this regard, nothing has been placed by the prosecution along with the charge-sheet as apparent from the list of documents mentioned in the police report filed u/s 173 (2) of Cr.P.C. In the lack of such evidence in the charge-sheet, mere on imagination it could not be presumed that victim Gopi has sustained any injury which was sufficient to cause death in ordinary course of nature or was grievous in nature. In this premises, mere on the basis of averments of the FIR, in the lack of any supporting medical evidence, the charge of Section 307 of I.P.C. framed by the trial Court could not be sustained.

Therefore, by allowing this revision in part, the charge framed against the applicants u/s 307/149 of I.P.C. is hereby set aside. Instead such charge, the trial Court is directed to frame the charge u/s 323/149 of I.P.C. against each of the applicants, (with respect each of the victims) for five times. Till this extent, the impugned order is modified while, the other part of the same framing the charges of other offences are hereby affirmed.

In view of this order, I.A. No. 15133/11, an application for grant of stay, does not require any further consideration hence, the same is hereby dismissed. Revision is allowed in part, as indicated above.