AI Structured Summary
Not yet generated for this judgment
Judgment
The appellant has assailing the order dated 11/04/2018 passed by the Special Judge (SC/ST)(PA) Act, 1989, Ratlam in Special S.T. No. 173/2018, by which charge or the offence under Section 364 of the IPC has been framed against the appellant.
Brief facts of the case are that on 24/03/2016 at about 11:00 am, deceased-Sanjay Chouhan was coming back to his house on a motorcycle with a caret of bear. He was intercepted by the appellant alongwith other co-accused persons namely, Rakesh, Virendra Singh, Lala, Jiwan Singh, Kishore and Karulal, they were asked him from where you have purchased this bear and then, they assaulted Sanjay Chouhan by kicks and fists. The appellant gave a stick blow on the abdomen of Sanjay Chouhan. Thereafter the appellant and other co-accused took Sanjay Chouhan on their jeep to Village Nagri, where he was further assaulted by them. After two hours of the alleged incident, Virendra and Manish brought him back to his house on a Tavera Vehicle. Sanjay Chouhan sustained bruise and swelling over his abdomen, chest, back and face, he was complaining of pain, therefore, he was taken to Patidar clinic, situated at Village Dhodhar, where he was administered pain relieving injections. On 01/04/2016, Sanjay Chouhan complained of hemoptysis, thereafter, he was taken to Rathore Nursing Home, Jaora and on being advised taken to be Ratlam. On 03/04/2016 he was admitted in a hospital at Ratlam, same day he was shifted to CHL Appollo Hospital, Indore, where he was died on 04/04/2016 at about 7:00 p.m.. On 05/04/2016, Ritik Chouhan S/o Sanjay Chouhan lodged the FIR against the appellant and other co-accused-persons bearing Crime No. 86/2016 at Police-Station-Ringnod, Ratlam for the offence under Sections 302, 341, 147, 148, 149, 506, 363 and 364 of the IPC alongwith Sections 3(2)(v) and 3(2)(v)(a) of the SC/ST(PA) Act, 1989. After completion of the investigation, the charge-sheet was filed.
The trial Court vide order dated 11/04/2018 has framed the charge for offence under Section 341, 147, 323, 323/149, 364 and 506(II) of the IPC alongwith Sections 3(1)(s),3(2)(va) and 3(2)(v) of the SC/ST(PA) Act, 1989. Being dissatisfied with the impugned order the appellant has preferred present appeal before this Court.
During the course of the arguments learned counsel for the appellant submits that he is challenging the impugned order only for the charge framed under Section 364 of the IPC against the appellant.
Learned counsel for the appellant submits that alleged incident has taken place on 24/03/2016, however, no complaint was made by the deceased or his family members against the appellant immediately after the occurrence. The FIR was lodged by Ritik S/o Sanjay Chouhan after lapse of 10 days of the alleged incident. It is also submitted that looking to the averments made in the FIR and the charge-sheet, no offence under Section 364 of the IPC is made out against the appellant because there is no act done by the appellant with intention of causing death or doing any act with intention of causing such bodily injury that death is likely result of such act amount to culpable homicide. It is further submitted that as per Autopsy report there is no evidence of any external or internal injury on the body of the deceased and the Doctor expressed inability to provide any definite opinion regarding cause of death of Sanjay Chouhan (deceased), therefore, the trial Court has committed error in framing the charge for offence punishable under Section 364 of the IPC against the appellant. Under these circumstances, he prayed for setting aside of the impugned order with respect to charge for offence under Section 364 of the IPC.
On the other hand, learned Public Prosecutor as well as learned counsel for the complainant supported the impugned order by contending that looking to the allegations made against the appellants in the FIR as well as in the statement of prosecution witnesses, the trial Court has rightly framed the charge for offence under Section 364 of the IPC against the appellant. Under these circumstances, no interference is warranted in the impugned order.
Having heard learned counsel for the parties and perused the record.
After perusal of the record placed alongwith the case and considering the rival contentions of the learned counsel for the parties, this Court is of the view that the trial Court has committed error in framing the charge for offence under Section 364 of the IPC against the appellant for the reasons that in the FIR itself mentioned that the appellant alongwith other co-accused persons assaulted the deceased by kicks and fists and he also gave a stick blow on the abdomen of Sanjay Chouhan. Thereafter, he was taken in a jeep to Village Nagri, where he was further assaulted by the appellant and other co-accused persons. After 2 hours of the alleged incident, Virendra and Manish, brought back Sanjay Chouhan to his house on a Tavera vehicle. Family members of Sanjay Chouhan observed bruise and swelling over back, chest, legs and face of the deceased. On complaining of pain, Sanjay Chouhan was taken to Patidar clinic, situated at Village Dhodhar, where primary treatment was given to him. Sanjay Chouhan was died on 04/04/2016 at about 7:00 p.m., i.e. after 10 days of the alleged incident and during this period neither Sanjay Chouhan nor his family members has lodged the complaint against the appellant regarding abduction or assault. In the postmortem report also Doctor has not observed any external or internal injury on the person of the deceased and Doctor has not given any definite opinion regarding cause of death of the deceased, therefore, trial Court has not framed charge for offence under Sections 302, 304(I) or 304(II) of the IPC against the appellant.
In the present case, the appellant has not done any act with intention of causing death or doing any act with intention of causing such bodily injury that death is likely result of such act amount to culpable homicide, therefore, the trial Court has committed error in framing the charge for offence under Section 364 of the IPC. Looking the allegations made against the appellant, charge for offence under Section 367 of the IPC is made out against him in place of Section 364 of the IPC, therefore, trial Court is directed to frame the charge for offence under Section 367 of the IPC against the appellant in place of Section 364 of the IPC and so for the remaining charges are concerned, no interference is required.
With the aforesaid modification, this appeal is partly allowed.
Let a copy of this order be sent to the trial Court for information and necessary compliance.