Subodh Jain vs State of M.P.

M.K. Mudgal, J.

Heard the arguments of both the parties.

With the consent of both the parties, the matter is being disposed of finally at motion stage.

The petitioner/accused has filed the criminal revision u/s 397 /401 of the Code of Criminal Procedure being aggrieved by the order dated 18.6.2013 passed by the Court of Additional Session Judge, Mungawali, District Ashok Nagar framing the charge u/s 307 read with Section 34 of the IPC. Assailing the propriety and the legality of the impugned order the learned counsel for the petitioner submits that the charge u/s 307 read with Section 34 of the IPC has been framed against the petitioner is against the recorded evidence as the statement of the victim Ramesh Chandra was recorded by the doctor on the same day i.e. 8.6.2012 after the incident wherein Ramesh Chandra has not stated against the accused that he was caught by the petitioner/accused Subodh Jain when other co-accused stabbed him with knife. The counsel further submits that the petitioner was falsely implicated in this case subsequently. Besides, there was no evidence of common intention of the petitioner alongwith co-accused Ankush Jain behind stabbing Ramesh Chandra. Besides, there was no sufficient evidence on record for framing the charge u/s 307 of the IPC so the petitioner/accused should be discharged in the case.

Controverting the arguments, the learned Public Prosecutor submits that the name of the petitioner/accused has been clearly mentioned in the Dehati Nalishi (FIR) for having caught hold of the victim when the other co-accused stabbed three injuries in the abdomen of injured Ramesh Chandra with the knife. Apart from this, all the five eyewitnesses and the injured have deposed about the same in their statements recorded u/s 161 of the Cr.P.C. during investigation. The said evidence cannot be overlooked for framing the charge against the petitioner. Three injuries caused with knife in the abdomen are prima face sufficient to cause death of the injured. Apart from, the injured was not asked by the doctor whether he was caught by other persons or not. Therefore no flaw has been found in the impugned order to interfere in the impugned order of the learned trial Court.

Arguments were considered and the record was perused.

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.

It is trite law that for framing the charge u/s 307 of Indian Penal Code, the Court has to consider the basic ingredients of said offence. A bare perusal of Section 307 of IPC clearly reveals that when an act has been done with an intention or knowledge, under such circumstances, that if by such act, he caused death of a person, he would be guilty of murder, then, he may be punished for ten years and if hurt is caused by such act, then punishment may extend to life imprisonment. Illustration (c) makes it abundantly clear that for the purpose of Section 307 IPC, it is not essential that an injury be caused to a person. Therefore, the nature of the injury is absolutely immaterial. What is to be looked into by the Court for the purpose of Section 307 IPC, is the circumstances in which the occurrence took place, weapons used by the accused persons and the place of injury on the body of the injured. Therefore, the nature of the injury may be one of the pointer with regard to the intention or knowledge, but it cannot be the sole criteria. What is essential to note is that even if no injury were caused, even then an offence u/s 307 may still be committed. Further, what is punishable u/s 307 is the intention or the knowledge, with which the act is being done.

On perusal of the record, it becomes clear that the Dehati Nalishi report was got written on the same day by Naresh the brother of the victim at 8.50 PM and he has claimed to be eyewitness of the incident. In the said report there is clear mention regarding the victim having been caught by the petitioner/accused when the other co-accused Ankush Jain stabbed three injuries with knife in the victim''s abdomen. Besides, other witnesses Amit, Prakash Chandra Jain, Bhura Singh, Amresh and injured Ramesh Chandra have also deposed in their statements about the aforesaid facts. The said evidence cannot be overlooked at the stage of framing charge merely on the basis of the statement of victim Ramesh Chandra recorded by the doctor as the statement recorded by the doctor does not come in the purview of dying declaration u/s 32 of the evidence Act because the victim is alive. The said statement is not admissible in evidence at the stage of charge as the statements recorded u/s 161 of the Cr.P.C. are admissible. The statement recorded by the doctor can only be used for omission and contradiction u/s 145 of the Evidence Act. Thus, the petitioner cannot be discharged on the basis of the said statement of Ramesh Chandra recorded by the doctor.

On perusal of the medical report of the doctor, it becomes clear that an incised wound on the right side of anterior abdominal wall near umbilicus obliquely placed size of 6 cms x 3 cms. Loops of small intestine protruded from the wound and bleeding. Alongwith blood focal intestinal content were trickling out from the wound and loops of intestine. The doctor has opined that the said injury was caused by sharp and hard object, fresh and dangerous to life in nature.

The learned counsel for the petitioner placing reliance on the judgment Pashora Singh and another Vs. State of Punjab, has contended that the doctor has not opined that the injury was sufficient to cause death of the petitioner in ordinary course of nature, hence, the offence u/s 307 of the IPC cannot be inferred on the basis of the said injury. The said contention is not acceptable at this stage. The cited judgment is based on after meticulous consideration of the evidence recorded during trial of the case. The three injuries were caused in the vital part of the victim Ramesh Chandra body hence on the basis of the aforesaid evidence, it is inferred that there is sufficient evidence on record for framing the charge u/s 307 of the IPC. The contention of the counsel regarding the act of the petitioner does not come in the purview of u/s 34 of the IPC is also not acceptable. As all the witnesses have categorically deposed in their statement that the petitioner/accused caught hold of the injured Ramesh Chandra when the other co-accused stabbed him with the knife causing three injuries. In Paramjit and Another Vs. State of Haryana, , the Hon''ble Apex Court in para 11 has held in the same circumstances the accused is liable to punish u/s 34 of the IPC for common intention for the main offence. Considering the facts and circumstances of the case, the petition being devoid of merit and credence is, hereby, dismissed.