Ramchandra S/O Shrilal and ors. Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- - i do not agree with him, for the reasons stated hereunder :so far as the framing of charge is concerned, it is well settled that while framing the charge the court has to consider the material which has been placed before it by the prosecution. when a specific statement has been made in the fir, clearly expressing the intention of the applicants towards cutting the hands and legs of victim kishan, a sentence indicating the feeling of a victim kishan cannot be given importance for the purpose of framing of charge.orderj.g. chitre, j.1. the petitioners are taking exceptions to the charge which has been framed against them by sessions judge, rajgarh in sessions trial no. 108/90. by the charge applicant kalu s/o gopal has been charged for an offence punishable under section 307 simpliciter. however, applicants 1 and 2 namely ramchandra s/o shrilal and kesharsingh s/o kaniram have been charged for committing an offence punishable under sections 307, 326 r/w 34 of indian penal code.2. shri a. s. kutumbale, counsel for the petitioners argued that the fir and the statements of the witnesses recorded during the course of investigation, are abundantly making it clear that the intention of the applicants was to commit an offence under section 326 of indian penal code either simpliciter or read with section 34 of indian penal code. there was absolutely no need of framing of charge against the petitioners for an offence punishable under section 307 of indian penal code. he made reference to fir and statements of the witnesses recorded during the course of investigation for substantiating his arguments. countering to that, shri k. k. gupta, learned government advocate submitted that the charge for offence punishable under section 307 either simpliciter or r/w 34, indian penal code, is justified by material on record. he pointed out that in the fir the victim has made a statement that had he not been released by the prosecution witnesses, the appellants would have murdered him.3. in view of the arguments advanced before me, the fir and the statements of witnesses recorded during the course of investigation have been carefully examined.4. shri k. k. gupta, learned g.a. submitted that in the present matter the applicant kalu has been charged for cutting the wrist of the victim and causing the injury on the leg of the victim by axe. the allegations made by the prosecution against applicant ramchandra and keshar singh that before kalu inflicting the said blow both of them were holding -victim kishan by catching his both hands. he pointed out that by the said act of cutting the wrist of victim kishan, his arteries could have been cut resulting excessive discharge of blood endangering his life and, therefore, the act which has been alleged to have committed by the applicant kalu comes under the purview of provisions of section 307 of indian penal code. i do not agree with him, for the reasons stated hereunder :so far as the framing of charge is concerned, it is well settled that while framing the charge the court has to consider the material which has been placed before it by the prosecution. if such evidence indicated by the prosecution is of such a nature that if it is not rebutted, warrant the conviction, the charge can be framed against the accused in context with it. in the present matter the fir mentions that before applicants ramchandra and kesharsingh caught victim kishan, applicant kalu said that ramchandra and kesharsingh should catch victim kishan because his hands and legs were to be cut. the similar sentence has been reiterated by the eye witnesses who are to be examined by the prosecution for proving the guilt of the petitioners in the said sessions trial. learned government advocate shri gupta submitted that it has been mentioned in the fir that victim kishan felt that had he not been released by the eye witnesses, the applicants would have killed him. placing reliance on the statement made by victim kishan he argued that an offence punishable under section 307 has been spelt out.5. the argument which has been advanced by learned g.a. has been repelled by the material which has been brought forth by the prosecution itself before the court. it is the allegation of the prosecution that before applicants ramchandra and kesharsingh caught hold of kishan, kalu had expressed his intention of cutting the hand and legs of victim kishan. it is quite clear that by such material, the prosecution has alleged that positively applicant kalu expressed his intention of cutting hands and legs of victim kishan, not only that but prosecution case further goes to show that in pursuance of that statement made by applicant kalu, both ramchandra and kesharsingh caught each of hand of kishan and thereafter applicant kalu gave blow of an axe and cut the wrist of the victim kishan. the prosecution case further shows that thereafter applicant kalu gave another blow by axe and that blow was given by him on the legs of victim kishan. this material which has been placed by the prosecution itself, cannot be ignored while considering the prima facie case against the applicants.6. for the purposes of framing the charge the court has to apply its mind for the purposes of considering the case which has been brought forth by the prosecution before it for proving the guilt of the accused. it implies application of mind in reasonable way. when a specific statement has been made in the fir, clearly expressing the intention of the applicants towards cutting the hands and legs of victim kishan, a sentence indicating the feeling of a victim kishan cannot be given importance for the purpose of framing of charge. it is to be noted that a reference has been made by the victim kishan in his fir towards previous incident and had indicated that previously the applicant had cut nose of victim kishan. by making a reference to that incident and another incident in the past, victim kishan felt that had he not been released by the eye witnesses, the applicants would have killed him.7. it is pertinent to note here that after cutting wrist of the victim, as per prosecution case the applicant kalu gave second blow of axe not on any other vital part of the body of the victim but on his leg. it is self eloquent. that has to be given its proper weight at the time of considering the material placed by the prosecution enabling the court to frame the charge.8. the argument which has been advanced by the learned government advocate, is also not tenable which is revolving around the danger which was created to the life of the victim, by cutting of the wrist of the victim. the learned government advocate feels that by the act of cutting the wrist, the arteries were cut and that was endangering the life of victim. while defining section 320 of indian penal code the legislature has taken care of the situation. in its wisdom the legislature has provided that when there is privation of any member of joint, the said act falls under fourth of section 320 of indian penal code. when there is destruction or permanent impairing of the powers of any member or joint, the said act falls under fifth of section 320, indian penal code. if there is any hurt which is caused by the act of the accused which endangers life, the act falls under eighth of section 320 of indian penal code. when that is the enactment, the arguments advanced on behalf of the prosecution in this context will have to be dismissed.9. countering the arguments of learned counsel for the petitioners, learned g.a. submitted that there is no harm if the applicants face a trial for an offence punishable under section 307 of indian penal code along with offence which is punishable under section 326 of indian penal code either simpliciter or r/w 34 of indian penal code. when a patent error committed by the court has been brought to the notice of the high court, touching the facts and law, how it could be continued. a citizen who had been indicted for an offence has been put to trial cannot be compelled to face a trial which is not warranted by legal provisions. none can be punished except due process of law and the liberty of none can be curtailed without due process of law. any indulgence in this context cannot be tolerated and cannot be permitted to be continued. when such error and illegality come to the notice of high court, it is the duty of the high court to correct it.10. thus, the petition is hereby allowed. the charge framed against the petitioner is hereby set aside. sessions judge, rajgarh is hereby directed to frame the charge against the petitioners in view of the material placed before him and appropriate legal provisions, correctly, keeping in view the observations made in this order. i am sure that the observations made, except relevant aspect of the matter, would not weigh at the time of trial so far as merit of the case is concerned. the record be despatched to the trial court forthwith for avoiding the delay.

Judgment:
ORDER

J.G. Chitre, J.

1. The petitioners are taking exceptions to the charge which has been framed against them by Sessions Judge, Rajgarh in Sessions Trial No. 108/90. By the charge applicant Kalu s/o Gopal has been charged for an offence punishable under Section 307 simpliciter. However, applicants 1 and 2 namely Ramchandra s/o Shrilal and Kesharsingh s/o Kaniram have been charged for committing an offence punishable under Sections 307, 326 r/w 34 of Indian Penal Code.

2. Shri A. S. Kutumbale, counsel for the petitioners argued that the FIR and the statements of the witnesses recorded during the course of investigation, are abundantly making it clear that the intention of the applicants was to commit an offence under Section 326 of Indian Penal Code either simpliciter or read with Section 34 of Indian Penal Code. There was absolutely no need of framing of charge against the petitioners for an offence punishable under Section 307 of Indian Penal Code. He made reference to FIR and statements of the witnesses recorded during the course of investigation for substantiating his arguments. Countering to that, Shri K. K. Gupta, learned Government Advocate submitted that the charge for offence punishable under Section 307 either simpliciter or r/w 34, Indian Penal Code, is justified by material on record. He pointed out that in the FIR the victim has made a statement that had he not been released by the prosecution witnesses, the appellants would have murdered him.

3. In view of the arguments advanced before me, the FIR and the statements of witnesses recorded during the course of investigation have been carefully examined.

4. Shri K. K. Gupta, learned G.A. submitted that in the present matter the applicant Kalu has been charged for cutting the wrist of the victim and causing the injury on the leg of the victim by axe. The allegations made by the prosecution against applicant Ramchandra and Keshar Singh that before Kalu inflicting the said blow both of them were holding -victim Kishan by catching his both hands. He pointed out that by the said act of cutting the wrist of victim Kishan, his arteries could have been cut resulting excessive discharge of blood endangering his life and, therefore, the act which has been alleged to have committed by the applicant Kalu comes under the purview of provisions of Section 307 of Indian Penal Code. I do not agree with him, for the reasons stated hereunder :

So far as the framing of charge is concerned, it is well settled that while framing the charge the Court has to consider the material which has been placed before it by the prosecution. If such evidence indicated by the prosecution is of such a nature that if it is not rebutted, warrant the conviction, the charge can be framed against the accused in context with it. In the present matter the FIR mentions that before applicants Ramchandra and Kesharsingh caught victim Kishan, applicant Kalu said that Ramchandra and Kesharsingh should catch victim Kishan because his hands and legs were to be cut. The similar sentence has been reiterated by the eye witnesses who are to be examined by the prosecution for proving the guilt of the petitioners in the said sessions trial. Learned Government Advocate Shri Gupta submitted that it has been mentioned in the FIR that victim Kishan felt that had he not been released by the eye witnesses, the applicants would have killed him. Placing reliance on the statement made by victim Kishan he argued that an offence punishable under Section 307 has been spelt out.

5. The argument which has been advanced by learned G.A. has been repelled by the material which has been brought forth by the prosecution itself before the Court. It is the allegation of the prosecution that before applicants Ramchandra and Kesharsingh caught hold of Kishan, Kalu had expressed his intention of cutting the hand and legs of victim Kishan. It is quite clear that by such material, the prosecution has alleged that positively applicant Kalu expressed his intention of cutting hands and legs of victim Kishan, not only that but prosecution case further goes to show that in pursuance of that statement made by applicant Kalu, both Ramchandra and Kesharsingh caught each of hand of Kishan and thereafter applicant Kalu gave blow of an axe and cut the wrist of the victim Kishan. The prosecution case further shows that thereafter applicant Kalu gave another blow by axe and that blow was given by him on the legs of victim Kishan. This material which has been placed by the prosecution itself, cannot be ignored while considering the prima facie case against the applicants.

6. For the purposes of framing the charge the Court has to apply its mind for the purposes of considering the case which has been brought forth by the prosecution before it for proving the guilt of the accused. It implies application of mind in reasonable way. When a specific statement has been made in the FIR, clearly expressing the intention of the applicants towards cutting the hands and legs of victim Kishan, a sentence indicating the feeling of a victim Kishan cannot be given importance for the purpose of framing of charge. It is to be noted that a reference has been made by the victim Kishan in his FIR towards previous incident and had indicated that previously the applicant had cut nose of victim Kishan. By making a reference to that incident and another incident in the past, victim Kishan felt that had he not been released by the eye witnesses, the applicants would have killed him.

7. It is pertinent to note here that after cutting wrist of the victim, as per prosecution case the applicant Kalu gave second blow of axe not on any other vital part of the body of the victim but on his leg. It is self eloquent. That has to be given its proper weight at the time of considering the material placed by the prosecution enabling the Court to frame the charge.

8. The argument which has been advanced by the learned Government Advocate, is also not tenable which is revolving around the danger which was created to the life of the victim, by cutting of the wrist of the victim. The learned Government Advocate feels that by the act of cutting the wrist, the arteries were cut and that was endangering the life of victim. While defining Section 320 of Indian Penal Code the legislature has taken care of the situation. In its wisdom the legislature has provided that when there is privation of any member of joint, the said act falls under Fourth of Section 320 of Indian Penal Code. When there is destruction or permanent impairing of the powers of any member or joint, the said act falls under Fifth of Section 320, Indian Penal Code. If there is any hurt which is caused by the act of the accused which endangers life, the act falls under Eighth of Section 320 of Indian Penal Code. When that is the enactment, the arguments advanced on behalf of the prosecution in this context will have to be dismissed.

9. Countering the arguments of learned counsel for the petitioners, learned G.A. submitted that there is no harm if the applicants face a trial for an offence punishable under Section 307 of Indian Penal Code along with offence which is punishable under Section 326 of Indian Penal Code either simpliciter or r/w 34 of Indian Penal Code. When a patent error committed by the court has been brought to the notice of the High Court, touching the facts and law, how it could be continued. A citizen who had been indicted for an offence has been put to trial cannot be compelled to face a trial which is not warranted by legal provisions. None can be punished except due process of law and the liberty of none can be curtailed without due process of law. Any indulgence in this context cannot be tolerated and cannot be permitted to be continued. When such error and illegality come to the notice of High Court, it is the duty of the High Court to correct it.

10. Thus, the petition is hereby allowed. The charge framed against the Petitioner is hereby set aside. Sessions Judge, Rajgarh is hereby directed to frame the charge against the petitioners in view of the material placed before him and appropriate legal provisions, correctly, keeping in view the observations made in this order. I am sure that the observations made, except relevant aspect of the matter, would not weigh at the time of trial so far as merit of the case is concerned. The record be despatched to the trial Court forthwith for avoiding the delay.