Kamal Dhingra vs State of M.P. and Another

Brij Kishore Dubey, J.—The petitioner/accused, Kamal Dhingra has filed this petition u/s 482 of Cr.P.C. challenging the order dated 03.12.2012 passed by XIV Additional Sessions Judge, Gwalior in Sessions Trial No. 473/12, whereby, charge has been framed u/s 307 in alternate 307 read with 34 of IPC against him. The limited prayer of the learned counsel for the petitioner is that the charge u/s 307 in alternate 307 read with 34 of IPC is not made out against the petitioner.

On a bare perusal of the record, it is apparent that the respondent No. 2 herein/complainant, Prahlad reached to the Police Station Huzrat Kotwali, Gwalior and lodged a report to the effect that on 20.09.2012 at 20.30 hours he alongwith his son, Anil reached to his ancestral house situated at Bala Bai Ka Bazar for settlement of the dispute with regard to ancestral house with the accused persons. Ashok armed with danda, Kamal armed with sariya (iron rod) and son of Vasudeo armed with sariya met them in front of that house. On seeing them, accused persons abused and threatened to kill them. Ashok dealt danda blow which struck over his left hand, accused, Kamal dealt sariya blow with intention to kill him which struck over the head, when his son Anil intervened to save him, son of Vasudeo dealt sariya blow which hit over his son''s head as a result of which blood started oozing out.

On the basis of aforesaid, offence punishable under Sections 294, 307, 323 read with 34 of IPC has been registered at Crime No. 375/2012 by the police. The injured, Prahlad and Anil were sent to for medical examination. They were examined by Dr. G.S. Gupta, C.M.O., J.A. Hospital, Gwalior.

While examining Prahlad, Dr. G.S. Gupta found one lacerated wound over the right parietal region, one lacerated wound over the right post-parietal area and one blunt injury over left wrist. Medical Officer found all the injuries to be simple in nature and caused by hard and blunt object, however, he referred the patient for x-ray of skull and left wrist and also for expert opinion. On 20.09.2012, x-ray of skull and left wrist was conducted by Dr. Kamal Bhadoria and Dr. Shiv Singh Kaneria and opined that no bony injury was seen. The injured, Prahlad has taken treatment by admitting himself in Maheshwari Nursing Home, Gwalior.

After due investigation, challan was filed for offence punishable under Sections 294, 323, 307 read with 34 of IPC against all the three accused persons, namely; Ashok Dhingra, Kamal Dhingra and Deepak @ Chhotu.

Learned Trial Judge vide order dated 03.12.2012 framed the charge u/s 307 in alternate 307/34 of IPC against the accused, Kamal Dhingra (petitioner herein) and Ashok Dhingra while u/s 323 of IPC against the co-accused, Deepak. They abjured the guilt.

According to the provisions of Sections 227 and 228 of Cr.P.C., it is for the Trial Court to consider the material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not. By considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed.

In the case of State of M.P. Vs. S.B. Johari and Others, , the Apex Court ruled as under:

It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction of the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such a case there would be no sufficient ground for proceeding with the trial.

In the case of Achhelal Choudhary and Others Vs. State of M.P., , this Court observed as under:

....... that the accused like the applicants could be convicted for such offence and such injuries which they have actually caused and committed and not for that offence which could have been committed but did not commit by the accused like applicant. Mere on assumptions and presumptions, in the lack of any positive, reliable and admissible circumstances, the accused like the applicants, could not be tried by framing the charge of such offence which they have not actually committed.....

This Court in the case of Anil Alias Noni Panda and Another Vs. State of M.P, , it has been held that the charges can be framed by the Trial Court if the Court prima facie finds that the accused can be convicted if the evidence is not rebutted. At the stage of framing charges, veracity of the witnesses is not required to be considered but evidence produced by the police should be considered to evaluate that the charges relating to that crime may be framed or not.

If the facts of the present case are considered in light of the aforesaid judgments, then it would be clear that the accused persons caused marpeet with Prahlad and his son on account of dispute with regard to share in the ancestral property i.e., house, therefore, looking to the overt acts attributed to the accused persons, it cannot be said that intention of the accused was to kill, Prahlad Singh.

Learned Public Prosecutor argued in support of the impugned order, but on putting a query to him by the Court, he fairly submitted that according to medical evidence available on record, no case u/s 307 or 307/34 of IPC is made out against the petitioner. There is no medical evidence on record to show that the injuries sustained by Prahlad were dangerous to his life or it was sufficient to cause his death.

It is apposite to mention here that the Medical Officer has not opined that the injuries sustained by Prahlad were dangerous to his life or it was sufficient to cause his death.

In view of the aforesaid, the charge framed u/s 307 in alternate 307/34 of IPC seems to be not sustainable.

On the basis of aforesaid discussion by allowing this petition, the charge u/s 307 in alternate 307/34 of IPC against the petitioner is hereby set-aside and instead it, the Trial Court is directed to frame appropriate charge against the petitioner with respect to the injuries caused to victim, Prahlad and proceed with in accordance with law.

Till this extent, the impugned order and charge framed is hereby set-aside. With the aforesaid, this petition stands allowed and disposed of accordingly.