Ramswaroop and Ors vs State of M.P.

Brij Kishore Dubey, J.—Heard on I.A. No. 7966/13, an application for urgent hearing.

In view of the averments made in the application, it is hereby allowed.

With the consent of learned counsel for the parties, matter is heard finally.

The petitioners herein/accused have filed this Criminal Revision under Sections 397 read with 401 of the Code of Criminal Procedure, 1973 challenging the order dated 09/07/2013 passed in Sessions Trial No. 78/13 by III Additional Sessions Judge, Shivpuri whereby charge under Sections 148 and 307/149 of IPC has been framed against them.

The prosecution case, in short, is that the complainant, Monu Dhakad lodged a report to the effect that on 14/09/2012 at about 9.30 am he alongwith his mother Vimla Verma and father Narendra was at Mourana Petrol Pump, at that time, Sarvan Rawat armed with katta, Bura Rawat armed with luhangi, Bhagwan Das, Mahendra Rawat and Padam Rawat each armed with lathi and Naresh Rawat, Kalla Rawat, Puran Rawat and Ramswaroop each armed with pharsa arrived there. Sarvan Rawat exhorted the other accused persons by saying ''MARO SALE KO''. On this, the complainant fled away and entered into the house of Piprouda. All the accused persons ran behind him, reached there and encircled in the house where committed marpeet with an intention to kill him by lathi, luhangi and pharsa. On arriving his parents and other persons, the accused fled away.

The FIR was registered under Sections 307, 147, 148 and 149 of IPC at the Police Station, Bairad, District Shivpuri and the injured was sent to the Hospital for his medical examination. After examination by the Medical Officer, P.S.C., Bairad, the injured was referred to G.A. Group of Hospitals, Gwalior for conducting the x-ray of the injuries and further treatment. After due investigation, a challan was filed for the offence punishable under Sections 307, 324, 325, 342 and 147 of IPC against all the accused persons including the present petitioners before the Committal Court, which on its turn committed the case to the Court of Sessions from where it was received by the learned Trial Court for the trial.

The learned Trial Judge on the basis of the material placed on record framed charge punishable under Sections 148 and 307/149 of IPC against the petitioners. The petitioners denied the charge and claimed to be tried.

Shri J.P. Mishra, learned counsel appearing on behalf of the petitioners submits that the injuries sustained by the victim, Monu Dhakad are simple in nature. None of the injury sustained by him was dangerous to his life or grievous in nature. The Doctor has not opined that the injuries sustained by the victim, Monu Dhakad were sufficient to cause his death in the ordinary course of nature. Even on taking into consideration the face value of the charge including the nature of injuries sustained by the victim and the medical evidence is accepted in its entirety, the charge under Sections 307/149 of IPC is not made out against the petitioners. There was no intention of the petitioners to kill the victim, Monu Dhakad. In such premises, it cannot be deemed that the petitioners herein/accused have committed the offence punishable under Sections 307/149 of IPC. To this extent, the charge is not sustainable and prayed to discharge the petitioners from the charge punishable under Sections 307/149 of IPC by allowing this revision petition. Learned counsel placed reliance in the case of Ajmer Singh Tomar Vs. Raghuraj Singh Tomar and Others, wherein it was held by this Court all the injuries except one found simple in nature and there was no previous enmity and, therefore, charge rightly framed under Sections 326, 324 and 323/34 of IPC, however, charge u/s 307 of IPC was not prima facie made out. It was further held that the intention for committing the offence is to be gathered from circumstances of each case.

Per contra, Shri Prabal Solanki, learned Public Prosecutor by justifying the impugned order stated that the charge framed by the Trial Court is in consonance with the papers of the charge sheet. He fairly conceded that although the Doctor has not given any opinion that the injuries sustained by Monu Dhakad were sufficient to cause his death in the ordinary course of nature but in view of the parts of the body of the injured, on which he sustained the injuries and in his statement, the injured categorically stated that such an assault and marpeet was carried out by the accused persons with an intention to cause his death, the impugned charge under Sections 307/149 of IPC does not require any interference at this stage and prayed for dismissal of this revision petition.

I have considered the rival contentions of the learned counsel for the parties and perused the record.

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.

The Hon''ble Apex Court in the case of Sanjay Kumar and Anr. v. State of M.P., 1994 Supp. (1) SCC 502 held that in order to bring the case within the ambit of Section 307 of IPC, the necessary ingredients must be shown that the accused acted with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder, that is, intention or knowledge to commit murder must exist.

If the facts of the present case are considered, then it would be clear that one accused Sarvan Rawat was having katta (as per FIR), however, in his statement recorded u/s 161 of Cr.P.C., Monu Dhakad stated that Bura Rawat was having katta and Sarvan Rawat was having luhangi, but the aforesaid fire-arm was not used or fired in the commission of the offence, therefore, looking to the overt acts of the accused persons, it cannot be said that the intention of the accused persons was to kill the victim, Monu Dhakad.

The injured, Monu Dhakad was examined on 14/09/12 at 11.20 am by the Medical Officer at the P.S.C., Bairad, District Shivpuri. The MLC report reads as under:

(1) Incised wound 4 cm x 1/3 cm x mussel deep over the right parietal region of scalp.

(2) Incised wound 1.5 cm x 1/3 cm x skin deep on right elbow joint lateral side.

(3) Lacerated wound 2 cm x 1 cm x mussel deep on the right hand thumb and index finger.

(4) Lacerated wound 2 cm x 1 cm mussel deep and 1.5 cm x 1 cm mussel deep on anterior aspect of right leg.

(5) Lacerated wound 2.5 cm x 1 cm x mussel deep and 1.5 cm x 1 cm x mussel deep on the anterior aspect of the left leg.

(6) Abrasion 4.5 cm x 0.6 cm on the left thigh lateral side and 1 cm x 0.5 cm on left hand little finger.

(7) Contusions 5 cm x 2 cm on the right shoulder, 5 cm x 1.5 cm on the right arm, 6 cm x 2 cm over the right buttock.

(8) Contusion 5 cm x 2 cm on the left thigh.

(9) Swelling and tenderness over right ankle joint.

(10) Pain but no external injury on the nose.

The MLC Doctor opined that the injury Nos. 1 and 2 are caused by sharp and hard object while the other injuries were caused by hard and blunt object while the other injuries were caused by hard and blunt object. The patient was referred to J.A. Group of Hospitals, Gwalior for x-ray of injury Nos. 1, 2, 3 and 9 and for further treatment by calling for the opinion. The other injuries are found to be simple in nature.

The case sheet of the G.R. Medical College & J.A. Group of Hospitals, Trauma Centre, Gwalior shows that the patient/injured, Monu Dhakad was admitted on 14/09/2012 at 3.04 pm., and discharged on 24/09/2012. During the treatment, x-ray was conducted as referred by the MLC Doctor and it was found that there was a fracture of medial bone on right leg ankle joint (Injury No. 9) and no bony injury was found in respect of injury Nos. 1, 2 and 3.

From a bare perusal of the charge-sheet it is transpired that there is no medical opinion that the injuries sustained by Monu Dhakad were dangerous to his life or sufficient to cause his death in the ordinary course of nature. It is apparent that except the injury on the right leg ankle joint, all the injuries were simple in nature.

In view of the aforesaid, statement recorded u/s 161 of Cr.P.C., in which the victim, Monu Dhakad stated that he was assaulted by the accused persons with an intention to cause his death is prima facie not sustainable.

Besides the aforesaid, I have not found any other circumstance to discharge any of the petitioners from other charge framed by the Trial Court.

On the basis of the aforesaid discussion, by allowing this revision in part, the charge of Sections 307/149 of IPC framed against the present petitioners by the Trial Court is hereby set aside and instead it, the Trial Court is directed to frame the appropriate charge against the present petitioners with respect to the injuries caused to the victim, Monu Dhakad. Till this extent, the impugned order and charge framed against the petitioners stand modified while the other findings on the charge are hereby affirmed. With the aforesaid, revision petition stands allowed in part and disposed of.

Certified copy as per rules.