Madhya Pradesh High Court
Vikas Yadav vs The State Of Madhya Pradesh on 8 August, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1 CRR-2633-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 8 th OF AUGUST, 2024
CRIMINAL REVISION No. 2633 of 2021
VIKAS YADAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Raghvendra Singh Raghuvanshi, learned counsel for the
Petitioner.
Shri Juned Ahmed Khan, learned counsel appearing on behalf of Shri
Vivek Singh, learned counsel for the Respondent/Complainant.
Ms. Neelu Khetra, learned Dy. Govt. Advocate for the
Respondent/State.
ORDER
With consent of the parties heard finally.
This criminal revision under Section 397/401 of Cr.P.C., 1973 has
been filed by the petitioner being aggrieved by the order of framing of
charges dated 06.09.2021 passed by the Additional Sessions/Special Judge,
Indore (M.P.) in S.T. No.4432021, so also the order dated 24.08.2021
whereby the petitioner's application under Section 227 of Cr.P.C praying for
his discharge from the offence under Section 302 of IPC has been dismissed.
2. Brief facts of the case are that on 17.12.2020 @ 11.15 am a white
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Verna car bearing Registration No.MP09WB1424 slightly touched with two
wheeler vehicle Activa bearing Registration No.MH05DW7825 thereafter
both the drivers came out and started quarreling with each other. During the
fight present applicant who was driving the Activa vehicle slapped car driver
due to which he fell down and came under the rear tyre of rash and negligent
driven dumper bearing Registration No.MP09GE1947 and succumbed on the
spot. On that basis FIR under Section 304/34 of IPC has been registered
against the applicant and co-accused Sunil Mujalde, Dumper Dirver. After
due investigation, charge-sheet was filed against the accused persons
under Section 304, 302, 34 of IPC and Section 3 and 181 of Motor
Vehicles Act, 1988. The present applicant filed an application under
Section 227 of Cr.P.C for discharge of the aforesaid offences before the
trial Court which was dismissed vide the impugned order. Hence the
present petition.
3. Learned counsel for the applicant submitted that in this case as per
FIR and video recording of the incident happened due to rash driving and on
a spur of moment under the effect of sudden provocation the applicant
slapped the deceased and as per prosecution case due to slapping of the
applicant the deceased fell down and came under the rear tyre of the passing
by truck due to which the unfortunate incident happened. It is clear from the
video recording that there was no intention of the applicant to cause death or
culpable homicide of the deceased. In this case, in addition to FIR and
video recording, there are statements of 8 witnesses but their statements
appear to be totally cyclostyled as the same spelling mistakes are found in
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every statement. Since there is no intention of killing of the deceased, it
emerged in the act of applicant that offence under Section 304 or 302 of IPC
cannot be made out. It is further contended that at the most the aforesaid act
falls under the purview of Section 323 of IPC. Therefore the order of
framing of charges is bad in law and not sustainable, hence counsel prayed
for setting aside the impugned orders. Learned counsel has placed reliance
upon the judgment of Hon'ble Supreme Court in the case of Vijayan vs. State
of Kerala and Another reported in (2010) 2 SCC 398 and Virsa Singh vs.
State of Punjab reported in AIR 1958 SC 465 in support of his submissions.
4. Learned Govt. Advocate as well learned counsel for the
respondent/complainant vehemently opposed the prayer by submitting that
learned trial Court has framed charges after due consideration of the material
available on record, hence the impugned orders does not warrant any
interference.
5. In view of the rival submissions I have gone through the record. At
the stage of framing of charges the law is well settled that trial Court has to
see initially whether sufficient material is available for framing of charge or
not and arrive at a conclusion upon consideration of the material available on
record and after hearing both sides, that there is ground for presuming that
the accused has committed the offence concerned.
6. On this aspect, in the case of Chitresh Kumar Chopra v. State
(Govt.of NCT of Delhi) (2009) 16 SCC 605, manifesting the concerning
provisions of framing charge, the Hon'ble Apex Court ordained in para no.25
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reads as under:-
"25. It is trite that at the stage of framing of charge,
the court is required to evaluate the material and
documents on record with a view to finding out if the
facts emerging therefrom, taken at their face value,
disclose the existence of all the ingredients constituting
the alleged offence or offences. For this limited purpose,
the court may sift the evidence as it cannot be expected
even at the initial stage to accept as gospel truth all that
the prosecution states. At this stage, the court has to
consider the material only with a view to find out if there
is ground for "presuming" that the accused has committed
an offence and not for the purpose of arriving at the
conclusion that it is not likely to lead to a conviction."
7. In this regard learned counsel for the applicant has drawn the
attention law laid down by Hon'ble Apex Court in the case of Vijayan Vs.
State of Kerala and another reported in (2010) 2 SCC 398 , regarding
discharge of accused, which reads as under:
"(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
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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 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."
XXXX
14) In a recent decision, in the case of Soma
Chakravarty vs. State through CBI, (2007) 5 SCC 403,
this Court has held that the settled legal position is that
if on the basis of 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.
At the time of framing of the charges the probative
value of the material on record cannot be gone into, and
the material brought on record by the prosecution has to
be accepted as true. Before framing a charge the 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. Whether, in fact,
the accused committed the offence, can only be decided
in the trial. Charge may although be directed to be
framed when there exists a strong suspicion but it is also
trite that the Court must come to a prima facie finding
that there exist some materials therefor. Suspicion
alone, without anything more, cannot form the basis
therefor or held to be sufficient for framing charge."
8. In view of the aforesaid preposition of law the matter has been
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considered. In the case at hand it is emanated from the video recording and
the statement of witnesses that there was no intention of applicant to cause
death or culpable homicide of the deceased. However, as per the statement
recorded under Section 161 of Cr.P.C it is revealed that the applicant dashed
the deceased due to that he fell down on the road and came under the rear
tyre of the passing by dumper. In general if a person dashing another person
in a road where the vehicles are passing through he is well aware that the
other person would come under the tyres of the running vehicles and
therefore it is assumed that the applicant would have the knowledge that his
act is likely to cause death, however, the intention of causing death is lacking
here hence at the most the offence will come under the purview of Section
304 of IPC, 1860.
9. In the course of arguments learned counsel for the applicant has also
contended that the charge cannot be framed upon the statements of witnesses
recorded under Section 161 of Cr.P.C by the Police because they are in
cyclostyled form. Virtually, on this aspect the law is well settled that at the
time of framing of charges the Court has to prima facie examine whether
there is sufficient ground for presuming that the accused has committed the
offence or not. A detailed scrutiny is not allowed at the time of framing of
charges. It is poignant to quote here the observations made by this Court in
the judgement dated 26.07.2023 passed in the case of Pawan @ Premchand
& Ors vs. State of Madhya Pradesh, [2023 Lawsuit (MP)41] wherein in para
16 & 17 it has been held as under:
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16. Learned counsel for the petitioners also strenuously
contended that on the basis of statement of the witnesses recorded
under Section 161 of Cr.P.C on 29.08.2019 i.e. after eight days of
the alleged incident, the ingredients to constitute offence under
Section 306 and 107 of IPC, are not made out. Virtually, such type
of appreciation is not permissible at the stage of framing of
Charges. On this aspect, the law laid down by Honb'le Apex
Court in the case of State of Orissa vs. Debendranath Padhi
reported as 2004 lawsuit SC 1408 is worth referring here:
"Further, at the stage of framing of charge roving
and fishing inquiry is impermissible. If the
contention of the accused is accepted, there would
be a mini trial at the stage of framing of charge.
That would defeat the object of the Code. It is
well-settled that at the stage of framing of charge
the defence of the accused cannot be put forth."
17. The aforesaid stand of the Full Bench of Hon'ble Apex
Court has also been endorsed by Hon'ble Apex Court in
another case rendered in VLS Finance Limited vs. S.P. Gupta
and another reported as 2016 Law suit SC 111. Further in this
context, the land mark judgment of Hon'ble Supreme Court
rendered in the case of Maharashtra State vs. Priya Sharan
Maharaj & Ors. reported in AIR 1997 SC 2041 is propitious
to reproduce here:
"The law on the subject is now well
settled, as pointed out in Niranjan Singh
Punjabi v. Jitendra Bijjaya [(1990) 4 SCC
76 : 1991 SCC (Cri) 47 : AIR 1990 SC
1962] that at Sections 227 and 228 stage
the Court is required to evaluate the
material and documents on record with a
view to finding out if the facts emerging
therefrom taken at their face value disclose
the existence of all the ingredients
constituting the alleged offence. The Court
may, 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. Therefore, at the
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stage of framing of the charge the Court
has to consider the material with a view to
find out if there is ground for presuming
that the accused has committed the offence
or that there is not sufficient ground for
proceeding against him and not for the
purpose of arriving at the conclusion that it
is not likely to lead to a conviction."
10. In view of the settled principles so also the law laid down by
Hon'ble Apex Court, having considered the rival submissions and evidence
available on record, this Court is of the considered opinion that there is
ground for presuming that accused has dashed the deceased in a road where
vehicles are passing by regularly, therefore, he was well aware that the
dashed person would come under the tyres of the running vehicle and by this
act the death of the dashed person is likely to be caused, however, the
intention of causing death is lacking here. Under these conditions this Court
is of the view that charges under Section 304 of IPC is prima facie made out
against the applicant.
11. Accordingly, the impugned order of learned trial Court with regard
to framing of charge against the petitioner under Section 302/34of IPC is
suffering from impropriety, illegality and incorrectness, therefore, liable to
be set aside. However, offence under Section 304 of IPC, is prima facie
made out against the applicant and therefore, learned trial Court is directed to
frame charges under Section 304 or 304/34 of IPC in lieu of 302/34 of IPC.
In upshot of the aforesaid observations, the impugned order is set aside and
the matter is remitted back to the trial Court with further directions to
proceed further in consonance with law.
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12. It is also clarified here that trial Court will adjudicate the case
without being influenced by the observations of this Court.
13. Consequently, the CRR is partly allowed and disposed off.
14. Registry is directed to send a copy of this order to the learned trial
Court for information.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
