Madhya Pradesh High Court

Prakash Kumar Khare vs The State Of Madhya Pradesh on 31 August, 2021

Author: Rajeev Kumar Shrivastava

                                1
                                               Cr.R. No. 684/2020
                  (Prakash Kumar Khare Vs. State of M.P. & another)

              HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR

                         SINGLE BENCH:


                 Criminal Revision No. 684/2020
                      Prakash Kumar Khare
                              Vs.
                     State of M.P. & another
                    ********************
CORAM

          Hon. Shri Justice Rajeev Kumar Shrivastava

                    ********************
Appearance

      Shri Awadhesh Singh Bhadoriya, learned counsel for the
petitioner.
      Smt. Padamshri Agrawal, learned Panel Lawyer for

respondent No.1/State.

      Shri Nitin Agrawal, learned counsel for respondent No.2.

                    ********************
Whether approved for reporting : No

                    ********************
Reserved on : 26/08/2021


                         JUDGMENT

(Passed on 31/08/2021)

This Criminal Revision has been preferred under Section

401 of the CrPC against the order dated 16/01/2020 passed by

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

Sixth Additional Sessions Judge, Gwalior (M.P.) in Sessions Trial

No.201/2019, by which accused/ respondent No.2 has been

discharged from charges under Sections 307 & 459 of IPC.

2. The facts of the case, in short, are that on 17/06/2018 at

around 6 PM, respondent No.2 entered into the house of the

petitioner/complainant of this case and hurled abuses on the

petitioner as well as his wife being agitated with the fact that the

petitioner had got vacated his house from the friend of the accused

and hit on the head of the petitioner using Lathi with intention to

kill him and also inflicted various injuries to the petitioner's wife.

For the aforesaid incident, petitioner lodged an FIR at Police

Station University, Distt. Gwalior (M.P.), which got registered as

Crime No.294/2018 for offence under Sections 323, 324, 294, 452,

506 of IPC. During investigation, statements of petitioner's wife

were recorded and also her medical examination has been done,

wherein various injuries were found on the head, forehead and

nose of the petitioner's wife. On the basis of aforesaid medical

evidence as well as statement of the petitioner's wife, Sections

307, 459, 427 and 325 of IPC has been enhanced in the case. After

the completion of investigation, charge-sheet has been filed in the

matter before the trial Court, wherein Sixth Additional Sessions

Judge, Gwalior, while hearing the matter at the stage of filing of

charge-sheet, has opined vide its impugned order dated

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

16/01/2020 that prima facie, no injuries have been caused to the

petitioner's wife, which were dangerous to life. Therefore, no case

is made out against the accused under Sections 307 & 459 of IPC

and the Court below has discharged the accused from the charges

under Sections 307 & 459 of IPC. Being aggrieved with aforesaid

order of the Court below, the petitioner has filed the present

Criminal Revision.

3. Learned counsel for the petitioner has submitted that the

impugned order is arbitrary and has been passed without

application of the judicial mind. It is further submitted by learned

counsel for the petitioner that the trial Court by its impugned order

has observed that injuries caused to the victims are not dangerous

to life and there is no sufficient evidence against the accused of

commission of offence under Sections 307 & 459 of IPC.

Therefore, passed the order under Section 228 of Cr.P.C and

discharged the accused person from charges under Sections 307 &

459 of IPC. The case was sent back to CJM, Gwalior for the trial

of offence under Sections 294, 323, 324, 325, 452 and 427 of IPC.

It is also submitted by learned counsel for the petitioner that as per

medical report, injury has been caused on the Nasal Bone of the

victim that is a vital part of the body and in X-ray, it was found

that Nasal Septum is mild deviated towards right side and bleeding

was there. Aforesaid facts clearly indicate that there was intention

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

of the accused to kill the victim, but the Court below has grossly

erred in discharging the accused person from the charges under

Sections 307 & 459 of IPC. On these grounds, learned counsel for

the petitioner prayed to set aside the impugned order by framing

the charges under Sections 307 & 459 of IPC along with other

Sections against the accused person.

4. Per contra, learned State Counsel as well as learned counsel

for the accused/ respondent No.2 have vehemently opposed the

submissions put forth by learned counsel for the petitioner and

have submitted that the impugned order passed by the Court below

is just and proper. Hence, prayed for dismissal of this Criminal

Revision.

5. Heard learned counsel for the parties at length and perused

the materials on record.

6. The Court below by its impugned order dated 16/01/2020

has observed as under:-

                  "blh     izdkj vfHkys[k ij ,slh Hkh dksbZ
            lkexzh ugha gS]    ftlls ;g nf'kZr gksrk gks fd

vfHk;qDr }kjk vfHk;ksxh i{k ds fuokfld x`g esa izPNUu x`g vfrpkj ;k x`g Hksnu dkfjr fd;k x;k gksA rc mDr fLFkfr esa ekeys esa Hkk-na-la- dh /kkjk 459 ds varxZr naMuh; vijk/k dkfjr fd;k tkuk Hkh nf'kZr ugha gksrk gSA mijksDr foospuk ls bl U;k;ky; ds er esa vfHk;qDr ds fo:) Hkk-na-la- dh /kkjk 294] 323]

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

324] 325] 452 ,oa 427 ds varxZr naMuh; vijk/kksa esa vxzlfjr gksus ds rks vk/kkj ifjyf{kr gksrs gSa] fdarq Hkk-na-la- dh /kkjk 307 ,oa 459 ds varxZr naMuh; vijk/kksa ds ughaA Qyr% mDr laiw.kZ foospuk ds vk/kkj ij vfHk;qDr dks Hkk-na-la- dh /kkjk 307 ,oa 459 ds varxZr naMuh; vijk/kksa ds vfHk;ksx ls mUeksfpr fd;k tkrk gSA pwafd /kkjk 294] 323] 324] 325] 452 ,oa 427 Hkk-na-la- ds vijk/k U;kf;d eftLVªsV izFke Js.kh Xokfy;j }kjk fopkj.kh; gSA Qyr% /kkjk 228 na-iz-la- ds rgr izdj.k dks eq[; U;kf;d eftLVªsV Xokfy;j dks fopkj.k gsrq varfjr fd;k tkrk gSA"

7. As per medical report, injury has been caused on the Nasal

Bone of the victim that is a vital part and in X-ray, it was found

that Nasal Septum is mild deviated towards right side and bleeding

was there.

8. Section 307 of IPC runs as under:-

"307. Attempt to murder.-- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

9. The "attempt" to commit an offence means, a person

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

commits the offence of attempt to commit a particular offence

when he intends to commit that offence, and with that intention

does any act towards the commission of that offence.

10. If a man commits an act with such intention and knowledge

and under such circumstances that if death had been caused the

offence would have amounted to murder and the act itself is of

such a nature as would have caused death in the usual course of

the events but for something beyond his control which prevented

that result his act would be punishable as an attempt to murder.

For an authority, please see: Bakshish Singh Vs. State [1952

Cr.L.J. 1467].

11. To determine whether an act falls within the ambit of

Section 307 of IPC, on the wording of this Section, three

considerations appear to be essential:-

         (i)     the nature of the act done,

         (ii)    the intention or knowledge behind the act, and

(iii) the circumstances under which the act is done.

12. It is true that the intention or knowledge of the accused must

be such as is necessary to constitute murder. Without this

ingredient being established, there can be no offence of 'attempt to

murder'. Under Section 307 of IPC, the intention precedes the act

attributed to accused. Therefore, the intention is to be gathered

from all the circumstances, and not merely from the consequences

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

that ensue. The nature of the weapon used, manner in which it is

used, motive for the crime, severity of the blow, the part of the

body where the injury is inflicted, are some of the facts that are

required to be taken into consideration for determining the

intention.

13. As regards framing of charges and quashing the charges, the

law is well settled. In Union of India Vs. Prafulla Kumar Samal

and another [(1979) 3 SCC 4], it is held:-

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That 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.

(2) 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.

(3) 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. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court 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

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

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 enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

14. In Sajjan Kumar Vs. Central Bureau of Investigation

[(2010) 9 SCC 368], it is held:-

"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:-

(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The court 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

15. In State through Central Bureau of Investigation Vs. Dr.

Anup Kumar Srivastava [AIR 2017 SC 3698], it is held:-

"23.... The legal position is well-settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional

Cr.R. No. 684/2020 (Prakash Kumar Khare Vs. State of M.P. & another)

cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."

16. Coming to the facts of the present case, it is evident that the

injury has been caused on the Nasal Bone of the victim by means

of Lathi which resulted into deviation of Nasal Bone towards right

side. Nasal Bone is one of the most sensitive vital part and if it is

hurt by means of Lathi up to that extent that itself reflects the

intention of the accused. The Court has to see whether prima facie

case is there or not. Therefore, the trial Court has erred in passing

the impugned order dated 16/01/2020 in Sessions Trial

No.201/2019.

17. On the basis of foregoing discussion and in view of the

aforesaid annunciation of law, the order impugned dated

16/01/2020 passed by the Court below in Sessions Trial