Surendra Kumar @ Sonu vs The State Of Madhya Pradesh
2021 Latest Caselaw 8894 MP

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                                                  Cr.A. No.3050 of 2017



        THE HIGH COURT OF MADHYA PRADESH
              Criminal Appeal No.3050 of 2017
(Surendra Kumar @ Sonu Vs. State of Madhya Pradesh & ors)


Jabalpur, dated: 16.12.2021
            Mr. Manish Datt, Senior Advocate with Mr.
Mayank Sharma, Advocate for the appellant/complainant.
            Shri Prakash Gupta, Panel Lawyer for the
respondent/State.

            Shri    Umesh    Kumar    Vaidya,   Advocate          for
respondent No.2.

In compliance of order passed by this Court on 14.12.2021, Dr. S.K. Nigam, District Hospital, Narsinghpur who conducted the MLC and Shri Kaushal Singh, SDO(P), Narsinghpur (Investigating Officer) are present in person.

This appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 374(2) of the Code of Criminal Procedure has been filed on behalf of the appellant/complainant for framing/adding the offence under Section 307 of the Indian Penal Code and also under Sections 3(1)(vii) and 3(2)(v) of the Act, 1989 against respondent Nos.2 to 9.

2. Learned Senior Counsel submits that in view of the injuries caused by the accused to the complainant, it was not proper on the part of the prosecution/Investigating Officer not to make the charge of Sections 307 and 326 of the IPC against the accused persons. He submits that deliberately due to some pressure, an offence only under Section 325 of the IPC was registered against the accused persons. He further submits that MLC report clearly reveals the nature of the injuries sustained by the injured, despite that the Investigating Officer has not registered the offence under proper sections. He

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submits that in the existing circumstances and considering the nature of injuries sustained, the requirement of offence under Section 307 much less Section 326 is available and, therefore, the offence should have been registered under the respective provision. He submits that even otherwise at the time of framing of charges, the Court can consider that aspect and alter the charges by its own.

3. Dr. S.K. Nigam, District Hospital Narsinghpur who conducted the MLC has apprised this Court about the nature of injuries sustained which are recorded in the MLC. He submits that as per the injuries sustained, it was required to get the x-ray of injury No.1 done to ascertain as to whether is there any fracture or not and as per the report of x-ray which was conducted by Dr. Manish Mishra, a depressed fracture was found over the head and thereafter, the Investigating Officer sought query with regard to nature of the injuries as to whether if the injured is not given proper treatment then the said injuries can be culminated into death or not. Thereafter, the matter was referred to the Medical Board, but as the injured person did not keep himself present before the Board, therefore, only on the basis of documents available before the Board, an opinion was given saying that the injuries were simple in nature.

4. Learned Senior Counsel submits that the opinion of the Medical Board was unfounded as the same was given on the basis of documents available before it that too without conducting any physical examination of the injured, therefore, the same is immaterial and no cognizance of the said report was required to be taken.

5. Shri Kaushal Singh, SDO(P), Narsinghpur/ Investigating Officer, in turn, submits that on the basis of report of the Medical Board, he arrived at conclusion that the injuries were simple in nature, therefore, offence under Section 325 of

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the IPC is made out and as such, the same was registered.

6. Learned Senior Counsel submits that when fracture was found over the head that too caused by a sharp and blunt weapon, then registering an offence only under Section 325 was not proper on the part of prosecution and at the time of framing of charges, the Court has to alter the same, if the same has not been done properly by the Investigating Officer.

7. Learned Panel Lawyer has opposed the said submission and submitted that no officer in the present circumstances was at fault as everybody has discharged his obligation properly and it is the Medical Board who has given the final report and on the basis of the said report, the offence has been registered by the Investigating Officer. He submits that although, there was some delay in sending the matter to the Medical Board, but that was not intentionally as due to some unavoidable circumstances, the time consumed.

8. Faced with the this, learned Senior Counsel submits that the matter was referred to the Medical Board after two months of incident that too without noticing the injured person and it is purely illegal on the part of the Authority and as such, according to him this all was done as there was some political pressure upon the Authority because they were colluded with the accused party.

9. Although, this fact has been opposed by the Investigating Officer and also by the doctor who conducted the MLC.

10. Learned counsel for respondent No.2 has also opposed the submissions made by learned Senior Counsel and submitted that the trial is almost at the verge of conclusion as the material witnesses have already been recorded and the case is fixed for final arguments. Therefore, at this stage, it is not proper to interfere in the matter or to alter the charges. He submits that ultimately at the time of giving judgment, if the

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Court will be of opinion that the offence can be altered, then the conviction can be made accordingly.

11. Learned Senior Counsel relying upon a judgment of the Supreme Court reported in (2017) 14 SCC 803 [Vineet Mahajan Vs. State of Punjab and others] has submitted that in the said case, the Supreme Court has discussed the situation under which offence can be registered in different sections of the IPC especially under Sections 307, 323, 324, and 326.

12. I have heard the rival submissions made by learned counsel for the parties and perused the case diary.

13. From perusal of the FIR, it is clear that at the time of incident, the accused persons armed with deadly weapons had attacked the complainant party and assaulted them especially on the head of the complainant namely Surendra Kuamar @ Sonu who sustained injuries. The complainant in the FIR has very categorically stated that after causing injury by one Jugraj Patel, other persons had assaulted him with the help of other weapons. However, the doctor who conducted the MLC had found injuries over the head and shoulder of the complainant, but as he could not arrive at any final conclusion, therefore, to ascertain the nature of the injuries, he directed for x-ray of the injured person and thereafter, the doctor who got the x-ray done had opined that the complainant sustained depressed fracture on his head and the same might have caused with the sharp and blunt object.

14. As per learned Senior Counsel the manner in which the incident occurred and explained by the police in the FIR as also as per the nature of injuries explained by the doctors, it was not proper on the part of the Investigating Officer to register the offence only under Section 325 of the IPC. According to him, the witnesses in their statements recorded under Section 161 of the CrPC have also stated the manner in which the marpeet took place and injuries caused to

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the complainant/Surendra Kumar @ Sonu. According to him, merely because the Medical Board has given its report on the basis of available documents saying that the injuries sustained by the injured were simple in nature that too without examining the injured physically, that could not have been made basis for registering the offence and under such a circumstance, the Investigating Officer should have applied its own mind, but it has not been done. As per learned Senior Counsel in the circumstances, if the Investigating Officer failed to register the case under proper offence, then the trial Court should have applied its own mind and add the offence under Section 307 of the IPC against the accused persons, but it has also not been done. As per learned Senior Counsel when the complainant in the FIR has very clearly stated that the several assailants armed with deadly weapons had attacked upon him with an open announcement that they would kill him and pursuant thereto, caused injuries on his head with the sharp and blunt object, then it is as clear as day light that the accused wanted to kill the injured.

15. Although learned counsel for respondent No.2 has raised an objection saying that when maximum witnesses have been recorded, then it would not be proper for this Court to direct trial Court to frame the charges by altering it and according to him, the appeal deserves dismissal, but I am not satisfied with the submission of learned counsel for respondent No.2 for the reason that challenging the order of the trial Court, this appeal has been filed in the year 2017 after framing the charges, but somehow it could not be heard finally and this fact cannot be ignored by this Court and due to passage of time, the appeal cannot be treated to be infructuous and as such, the right of the complainant cannot be ignored. On the contrary, I find substance in the submissions as have been made by learned Senior Counsel that the accused with an intention to kill the

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complainant had assaulted on his head by sharp and blunt object. Therefore, in view of the law laid by the Supreme Court in the case of Vineet Mahajan (supra), I am of the opinion that not only the Investigating Officer, but the trial Court has also committed an error while not registering the offence under the proper section i.e. Section 307 of the IPC against the accused persons.

16. Resultantly, this appeal is allowed directing the trial Court to frame the charge by adding Section 307 of the IPC against the accused persons.

(SANJAY DWIVEDI) JUDGE

Devashish DEVASHISH MISHRA 2021.12.22 11:07:45 +05'30'