Wasim vs State of Madhya Pradesh

Hon''ble Shri Justice M.C. Garg, J.—This petition has been filed by the petitioner Wasim one of the co-accused in S.T. No. 430/11 for discharging him. According to him, the charges framed against him by the Sessions Court are required to be set aside. In fact, the petitioner even moved an application before the Sessions Judge for discharging him of the charges. The said application was dismissed. In short, the prosecution case is that on 01/07/2011 at 19:45 hours, when the complainant Imran alogwith Afsar and Nooruddin @ Raja were coming after performing Namaj from Kharati Masjid of Khandar Mohalla, Ujjain, Yusuf Lala, Moinuddin and Wasim with knives alongwith Jafar Choudhari and Bhura Lala came there. Yusuf Lala caused injury on the occipital region of the head of Nooruddin by knife and Wasim caused injury on his left hand by knife. When Moinuddin tried to assault by knife, the complainant and Afsar caught hold of him. Bhura Lala, Jafar Choudhari threatened with direct consequences. The complainant Imran alongwith his companions saved Nooruddin. A report of this incident was lodged at P.S. Mahankal and offence under Sections 307, 147, 148, 149 and 294 of the Indian Penal Code was registered vide Crime No. 474/11 against the 5 accused persons including the present petitioner.

According to the petitioner, before this incident, on July 1, 2011 at about 7;35 P.M., alongwith others armed with sharp edged weapons assaulted the present petitioner and caused injuries upon the occipital region of head and other parties of the body. A report was lodged of that incident by Sheikh Mohd. Salim, brother of the petitioner, at Police Kharakuan, Ujjain, who registered a case under Sections 323, 294, 506/34 of IPC vide Crime No. 55/11. In fact in the said complaint, even the charge sheet has been filed by the police after investigation against the accused in that FIR u/s 324, 323, 294 and 506/34 of IPC and also u/s 14 and 15 of the M.P. Rajya Suraksha Adhiniyam, 1990 on 17.10.2011. It has been submitted that in view of the aforesaid, an application was filed by the petitioner for discharging him, but the said application was dismissed. Hence, the petitioner is before this Court by way of present revision petition.

It has been submitted that the Court below has committed serious error in not taking into consideration all the facts and circumstances indicating that the petitioner had no requisite mens-rea for offence u/s 307 of IPC. It has been submitted that the material available on record is not sufficient to frame the charges against the petitioner. It is submitted that the trial Court has failed to consider that before the present incident which occurred at 7:45 P.M., the complainant party alongwith others at 7:35 P.M. caused head injury on the occipital region of the petitioner by knife but the police registered the offence only u/s 323 of the IPC and put up the charge sheet u/s 324 of the Indian Penal Code along with other sections against the complainant party in the Court.

On the other hand, learned counsel appearing for the respondent submits that what ever has been argued on behalf of the petitioner are matters which are required to be considered by the trial Court during trial. Even if the case of the petitioner is taken as correct, and that the prosecution may not be able to prove its case beyond reasonable doubt then also it cannot be said that charges ought not to have been framed against the petitioner on the basis of statement recorded u/s 161 Cr.P.C. available on record and goes to show that the present caused injury in the left hand of Nooruddin with knife, besides causing injury to the other injured including injury by Yusuf Lala on the occipital region of Nooruddin by knife.

I have perused the order passed by the trial Judge while framing the charges. The trial Judge has taken note of the facts of the case and passed a detailed order which goes to show that the parties did have history of previous enmity. Previously, it was the complainant party who armed with weapons caused injuries to the petitioner and others. In that case, after saving his life, the brother of the petitioner came to Thana Kharakuan and lodge a report against the complainant party registered vide Crime No. 55/11.

Taking note of the facts of that case, the trial Court framed charges in that case under Sections 323 and 324 of IPC. However, in the present case, considering the injuries caused to Nooruddin, while observing the injuries on the person of Nooruddin were simple in nature, but taking into consideration the intention of the parties in causing those injuries, it has been observed:

Learned counsel for the petitioner has referred to some judgments which are as follows: P. Vijayan Vs. State of Kerala and Another, P. Vijayan Vs. State of Kerala and another, 1988 MPWN S.N. 173 Ramesh Vs. State of M.P., 1988 M.P.W.N. S.N. 130 Halka Vs. State of M.P., 1991 (1) MPWN S.N. 211 Daulat Singh Vs. State of M.P., Mahesh and Others Vs. State of M.P., Mahesh and others Vs. State of M.P., 1992 (II) MPWN S.N. 19 Kamarlal Vs. State of M.P. 2011 (III) MPWN 98 Jitendra Vajpai and another Vs. State of M.P.

I have gone through the aforesaid judgments, but these judgments does not come to rescue of the petitioner at this stage for the purpose of exercising jurisdiction u/s 227 of Cr.P.C. while passing an order framing the charges. It is true that the judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting trial.

The aforesaid preposition of law has been laid down by Hon''ble the Supreme Court in the case of Union of India (UOI) Vs. Prafulla Kumar Samal and Another, and reiterated in P. Vijayan Vs. State of Kerala and Another, P. Vijayan Vs. State of Kerala and another also.

The principle is that only in a case where it emerges from the reading of the evidence collected by the prosecution as appended with the challan, even if not challenged and remains un-rebutted by the defence would show that the accused has not committed the offence, then only the Court can discharge him from the crime.

In the present case, statement of witnesses recorded by the police, in particular, the statement of Imran S/o. Washiruddin, Afsar, S/o. Nizamuddin, Nooruddin @ Raja clearly goes to show that the complainant Nooruddin was attacked by the present petitioner alongwith Yusuf Lala, Moinuddin and Jafar Choudhari with an intention to cause his death by using sharp edged weapon i.e. knife. It makes no difference as to what injury was caused, once the intention was to cause death.

In this case, the Court below has given reasons for framing of the charge and has also considered the evidence which has been collected by the prosecution, which is not such that if the evidence without testing under the cross examination would lead to the result of acquittal of the accused persons of the charges u/s 307 of IPC.

In view of the aforesaid, I find no infirmity in the impugned order. The petition is dismissed. It is however made clear that nothing stated in this order would be read as an expression on the merits of the case. C.C. as per rules.