1 CR.R.1743/09.
HIGH COURT OF M. P. JUDICATURE AT JABALPUR
CRIMINAL REVISION NO.1743/09.
Hariram.
Vs.
State of Madhya Pradesh
For the applicant : Shri Alok Bagrecha, Advocate.
For the respondent : Shri Yogesh Dhandey, P.L.
ORDER
( 27.04.2010)
Per U.C. Maheshwari J.
1. The applicant has preferred this revision under Section 397/401 of
Cr. P. C. being aggrieved by the order dated 7.9.2009 passed by Additional
Sessions Judge, Multai District Betul in S. T. No.172/09 framing the charges
against him under Section 365/34, 323/34 of IPC.
2. As per case of the prosecution on 12.3.2009 at about 10.00 O’clock
in the night the victim Sundarlal was at his residence in village Mehara
Jhopadi Chichand at the same time co-accused Pittu and his companion
lashed with sticks entered in his house, abused him with filthy language and
after catching hold his hands they were taking him out, when her daughter
came to rescue him then they also misbehaved with her and forcefully took
him out and placed in a jeep. Thereafter, they forcefully brought the other
victim Indal and placing him also in such jeep and took them near Thawaria
culvert where present applicant also came and by using filthy language they
started beating of both the victims with fists and kicks, also gave a criminal
threat to kill them. On receiving some telephone by the applicant/ accused
Hariram, they brought the victims to village and left them there by giving a
threat that on lodging the report of the incident they will kill them. In the
aforesaid alleged beating the victims sustained the injuries. On lodging the
report they were sent to hospital where on medical examination their MLC
reports were prepared and on completion of investigation the applicant and
along with other three co-accused are charge sheeted for the offence under
Section 452, 458, 365, 382, 394, 506 and 427/34 of IPC.
3. On evaluation of the papers of the charge sheet the above
mentioned charge under Section 365/34 and 323/34 were framed against the
applicant. The same is under challenged in this revision.
2 CR.R.1743/09.
4. The applicant’s counsel by referring the averments of FIR and other
papers of the charge sheet said that in the available circumstances the charge
framed against the applicant by the trial court is not sustainable. In
alternative he said that as per case of the prosecution the applicant was not
present with the other co-accused when the victim was abducted by them,
hence in any case the charge under section 365/34 of IPC is wrongly framed
against him. In continuation he said that on proper evaluation of the papers
of the charge sheet the ingredients of above mentioned offence are not made
out against him and prayed for setting aside the charges by admitting and
allowing this revision.
5. Having heard the counsel, I have carefully gone through the FIR
and other papers of the charge sheet.
6. True it is that at the initial stage when the victims were taken away
from their residence in a jeep the applicant was not present but in
continuation of such offence after taking the victims near to Thawaria culvert
the present applicant knowingly that co-accused committed the offence of
abduction by brining the victims there, joined them and involved himself
with the other co-accused in the alleged offence and in furtherance of their
common intention by carrying out the beating of the victims committed the
offending act. Accordingly, the ingredients of Section 365 and 323 r/w
Section 34 of IPC have been established against the applicant also. In such
premises the impugned order does not appear to be contrary to the charge
sheet. At the stage of framing the charge court has not to decide whether in
view of the evidence collected by the investigation agency the applicant
could be convicted or not but only to see whether prima-facie circumstances
about the involvement of accused in the alleged offence are available or not.
7. Although a photo copy of the case law decided by the Supreme
Court of Ohio in the matter of Mayo Vs. The State reported in 43 Ohio St.
567 is cited by the applicant’s counsel but on account of distinguishable on
facts the same is not helping to the applicant in the case at hand. Besides this
the same was not decided taking into consideration the aforesaid provision of
Section 365 of IPC or any other existing law of India, thus on such count also
the same is not beneficial to the applicant.
3 CR.R.1743/09.
8. Apart the above by referring the commentary of Section 365 IPC
from the text book of Penal Law edited by Gour, applicant’s counsel argued
that ingredients of Section 365 of IPC are not made out in the present case. I
am of the view that case could be examined on such ingredients stated in the
cited Book only after recording the evidence in trial and not prior to that.
Apart this the fact remains the applicant has been implicated in the case with
the assistance of Section 34 of IPC as he committed the act with co-accused
in furtherance of their common intention. Therefore, in such a circumstance
the applicant could not be discharged by admitting or allowing this revision. .
9. Therefore, I am of the considered view that the trial court has not
committed any error in framing the aforesaid charge under Section 365 r/w
Section 34 of IPC against the applicant. So far other charge is concerned,
there is overwhelming evidence in the charge sheet against the present
applicant. In such premises the revision being devoid of merits is hereby
dismissed.
10. Revision is dismissed.
(U.C.Maheshwari)
Judge
K.