Shobharam And Others vs State Of Madhya Pradesh

This order disposes of criminal revision filed by the applicants under Section 397 read with 401 of Cr.P.C. against the order dated 19.12.2018 passed by the Additional Sessions Judge, Badnawar, District Dhar in S. T. No.48/2018 wherein charge under Section 307/34 of the IPC has been framed against the applicants.

As per the prosecution story, in the midnight of 29.08.2018, complainant Arun Jat along with his three friends namely, Laxman, Govind and Parag went to hotel Mahakaal situated at Mhow - Neemuch road for celebrating birthday of complainant Arun and ordered food and asked them to serve the food of their choice. On this, applicants including the hotel manager Raj got enraged and told them that they are not the servants to serve food of their choice and this led to further altercation and applicants inflicted stick blows on the complainants amongst whom Shobharam and Laxman suffered injury dangerous to life and Laxman and other persons accompanying the complainant also received injuries on their person. Consequently, FIR was lodged on 29.08.2018 in Police Station Badnawar, District Dhar.

After investigation, charge-sheet under Sections 307/34, 325, 506 and 294 of IPC was filed against the applicants. After committal, case was made over to the Court of ASJ, Badnawar and charge under Sections 307/34, 325/34, 323/34, 506-II and 294 of IPC was framed against the applicants.

Applicants in the revision application have contested framing of charges and submitted that provisions of Section 307 of IPC are not attracted on the ground that it was the complainant who has misbehaved and indulged in altercation causing injuries to the applicants in inebriated condition, that no bony injury has been caused to any of the victims and it was the applicants who first lodged FIR against the complainants, consequent to which charge-sheet has been filed against the complainants also.

Counsel arguing for the applicants has submitted an order of the Co-ordinate Bench of this Court in M.Cr.C. No.9685/2015 dated 08.08.2016 (Rajesh & others vs. State of MP & another) and apart this judgement, a citation of Apex Court in the case of Union of India vs. Prafulla Kumar Samal & another, 1979 CRI.L.J. 154 (SC) has also been cited.

In the case of Rajesh & others (supra), as per the facts, although medical practitioner had opined that injuries caused on injured lady victims were dangerous to life, however, no corresponding fracture was found on the skull bone. Another lady also suffered number of fractures but none of them were on vital parts and the doctor had opined that these injuries were grievous in nature. Counsel for the applicants had challenged the query report of medical practitioner who had stated that injuries were dangerous to life. There was swelling found on the right forehead and a lacerated wound on vertex and it was submitted that there is no material to suggest that such injuries could be dangerous to life. The Court in this case has referred to a case of Union of India vs. Prafulla Kumar Samal & another (supra) and considered following observations made in the case :-

"The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused."

Considering all these facts, the Court came to the conclusion that ingredients of Section 307 of IPC are not attracted.

Counsel for the applicants submits that there is no material on record for terming injuries on Laxman as dangerous to life and the circumstances under which the injuries were caused, do not show that there was any intention at all to commit murder. The applicants who runs hotel had no previous enmity with the complainants and no person running hotel would voluntarily and knowingly cause injuries to their customers and therefore, it is prayed that in the facts and circumstances of the case, applicants be discharged from Section 307/34 of IPC framed against them.

Per contra, learned Public Prosecutor for the non-applicant - State has brought to Court's attention MLC report specially that of Laxman and has submitted that although skull of Laxman may not have been fractured but there are haemorrhages inside the skull which shows that sufficient force was applied on the vital part which in itself exposes the intention to commit murder.

Both counsels were heard and documents and citations were perused.

Ofcourse, there has been no bony injury found on the person of Laxman however, CT scan has been performed and the report thereof is being reproduced as under :-

Impression : A case of acute head injury CT findings are suggestive of small haemorrhagic contusions bilateral anterio-inferior temporal and right basifrontal region with generalized cerebral oedema with subarchnoid haemorrhage with fracture anterio-lateral wall of right maxillary sinus with air fluid level in sinus.

Thus, it can be seen that haemorrhage contusion inside the skull has resulted in cerebral oedema (swelling) and this apart, a fracture was seen on the right side of the face near the right side. Ophthalmic sonography of Laxman has also been carried out, report pertaining to which is also reproduced as under :-

Impression : A case of head injury USG of right eye shows cataractous changes with vitreous haemorrhage with small retinal detachment with thickening of chorioretinal layers.

Thus, one can see that injury was inflicted on vital part namely, skull and even though no bony injury was caused but CT scan report shows that swelling occurred due to oozing of blood due to haemorrhage at various places. In order to consider the intention to commit injury, it would be appropriate to refer to the citation of State of MP vs. Saleem @ Chamaru & another, 2005 (5) SCC 554. In this citation, the Apex Court considered the circumstances under which charge under Section 307 of IPC may be framed. Para-13 of this judgement is important in which it has been laid down as under :-

It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

The Apex Court in making such observations has relied upon the citation of State of Maharashtra vs. Balram Bama Patil & others, 1983 (2) SCC 28, Girija Shanker vs. State of Uttar Pradesh, 2004 (3) SCC 793 and R. Parkash vs. State of Karnataka, JT 2004 (2) SC 348.

The Apex Court has further referred to another citation namely, Sarju Prasad vs. State of Bihar, AIR 1965 SC 843, in which it was observed that mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307 of IPC.

The Apex Court in para-16 of the judgement has further observed as under :-

Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury.

Coming to the case in hand, it can be seen that incident preceded an altercation between the two parties resulting from demand of food of their choice by the complainants. The report which has been lodged by the applicants was earlier to that filed by the complainants, that FIR by the applicants was lodged at 3.05 AM on 29.08.2018 and registered as FIR No.460/2018 as against report by the complainants at 16.45 hours and registered as FIR No.463/2018. Some injuries have been caused to applicants as well. Thus, it appears that complainants having gone to the hotel run by the applicants committed certain misbehaviour and impropriety leading to altercation which aggravated thereafter resulting in injuries, as already explained earlier. Thus, the incident appears to have occurred suddenly which ultimately resulted in injuries to the complainants, as already described earlier.

The question is whether there was intention to commit murder or not?

As already stated earlier, absence of bony injury in itself is not a circumstance warranting discharge under Section 307 of IPC. The intention has to be gathered from the facts and circumstances of the case. Although, no fracture was caused to Laxman but infact all injuries were caused on vital part with a stick resulting in haemorrhage inside the skull which goes to show that it is not a case of grievous hurt alone but is a case of attempt to culpable homicide i.e. attempt to commit offence under Section 308 of IPC. Exception 2 of Section 300 of IPC is relevant in this respect, which is reproduced as under :-

Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

It appears that right to private defence was exceeded by the applicants and they dealt blow on the skull of Laxman with an intention or knowledge that such blow would likely to cause death. Consequently, Section 308/34 of IPC is made out and not Section 307/34 of IPC.

Thus, this criminal revision is allowed in part and the Trial Court is directed to reframe the charge against the applicants under Section 308/34 of IPC apart from other charges which have been framed by the Trial Court.

The criminal revision filed by the applicants is disposed of in above terms.

Office is directed to send a copy of this order to the concerned Court for due compliance.