Sher Mohammed & Another v. State Of Madhya Pradesh

Order

G.D Saxena, J. -

This Revision Petition under Section 397/401 of the Code of Criminal Procedure, 1973 preferred by the petitioners/accused is directed against an order dated 26 July 2011 in Sessions Case No. 178/10 passed by the First Additional Sessions Judge, Jaura district Morena, framing thereby charges against the accused-petitioners for commission of offence punishable under Sections 307/34 and 341 of I.P.C

(2) The facts in brief, just for the decision of this case are that on 7 March 10 at about 1 p.m, in village Dhuri under jurisdiction of Police Station Bagchini, district Morena, when the complainant Ballu was taking bath at public well, accused Noor Mohammad S/o Sher Mohammed reached there and on account of previous enmity abused the complainant. When the complainant asked him not to abuse, it is alleged that the accused gave him blows by means of kicks and fists. Any how, the complainant escaped of his clutches and rushed to his house. On the way, the complainant saw accused Sher Mohammed, Ummed and Jafar coming towards him. They surrounded the complainant. At that moment, accused Noor Mohammed came from his behind and inflicted Farsa blow on his head causing injury. The blood started oozing from the wound and he fell down on the spot. Even then accused Noor Mohammed gave second blow which hit the hand of the complainant. On the report of the complainant, an FIR was lodged. The injured was medically examined. After investigation, the charge sheet was filed before the criminal court. On committal, the trial Judge framed the charges against the petitioners by the impugned order, hence, this revision.

(3) The contention of the learned counsel for the petitioners is that as per the settled principles of law to frame and prove the charge of offence punishable under Section 307 of I.P.C, the main ingredient of attempt to commit murder, i.e, the intention of the accused is to be gathered and seen from the circumstances appeared from the evidence produced before the trial court. It is contended that of course the nature and the weapon used in the incident are the another circumstance but the overact of the accused in the incident of violence must also be appeared from the evidence collected during investigation against the accused. It is submitted that from the FIR and the case diary statements of the witnesses it is apparent that all the accused except Noor Mohammad, who inflicted the injuries to injured, were standing on the spot without any weapon. They did not actively participate in the incident. It also appeared from the material that there was previous enmity between the complainant and the accused and therefore there is every chance of false implication by the complainant. Thus, in the absence of clear intention to kill the injured established against the accused/petitioners, no charge for offence punishable under Section 307/34 of I.P.C can be framed. Accordingly, it is prayed that by allowing the revision, the accused/petitioners be discharged of the offence.

(4) The learned Public Prosecutor appearing for the State on the other hand, supported the impugned order and prayed for dismissal of the revision.

(5) Heard the learned counsel for the parties and perused the copies of charge-sheet and statements recorded under Section 161 Cr.P.C, coupled with medical report and other documents filed on record and the law applicable to the case.

(6) To find out whether a prima facie case under Section 307/34 of I.P.C is made out against the petitioners/accused, it would be useful to reproduce the section itself.

“307. 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 here-in-before mentioned.”

(7) In order to frame the charge for commission of offence under Section 307 of I.P.C, the intention to cause injury has to be inferred from the relevant factors: (i) the nature of the weapon, (ii) the place where the injuries were inflicted (iii) nature of the injury and (iv) opportunity available to the accused. Hence, at the time of framing charge, the court has to consider the broad probabilities of the case and the total effect of the material collected by the prosecution.

(8) On considering the present case, it appears from the FIR, case diary statements of witnesses recorded during investigation, medical report and recovery from the accused, that on 7 March 2010, at about 1 p.m, in village Dhuri, Police Station Bagchini, district Morena, when the complainant Ballu was taking bath at public well, accused Noor Mohammad reached on the spot and uttered filthy remarks to him. On objection by the complainant, he caught hold of him and beat him by kicks and fists. When the complainant rescued himself from accused and tried to run away it is alleged that on the way other accused Sher Mohammad, Ummed, Jafar surrounded him and accused Noor Mohammad after coming from his back side assaulted him with intention to kill and caused injuries on skull and left hand by means of “Farsa”. As per the medical report, there were two incised wounds; one on the skull with fracture of left frontal and parietal bone and another is on lower 1/3 part of left hand. After arrest on information by the accused Noor Mohammad, one “Farsi” was recovered from him. The injured was medically examined. Thus, it prima facie appears that there is specific allegation of causing attempt to murder against Noor Mohammad while other accused-persons were standing and they surrounded the injured. No specific act was attributed to the petitioners/accused.

(9) In the case of Abdul Sayeed v. State Of Madhya Pradesh.(2010) 10 SCC 259, the Apex Court held:-

“Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the “common intention” to commit the offence. The phrase “common intention” implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the “same intention” or “similar intention” or “common object”. The persons having similar intention which is not the result of the pre-arranged plan cannot be held guilty of the criminal act with the aid of 27 Section 34 IPC. (See Mohan Singh v. State of Punjab, AIR 1963 SC 174).”

The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this Section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention, Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.”

(10) In the aforesaid case, the reference was made by the Apex court to its earlier decision rendered in the case of Krishnan v. State, represented by Inspector of Police, (2003) 7 SCC 56: (AIR 2003 SC 2978: 2003 AIR SCW 3688), wherein it was observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard and fast rule can be made out regarding applicability or non-applicability of Section 34.

(11) Thus, for an inference of common intention being drawn for the purpose of Section 34 of I.P.C, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas have taken place amongst different accused and in prosecution of it the overt acts of the accused persons had flowed out as if in obedience to the command of a single mind.

(12) On considering the overall evidence of the complainant and other eyewitnesses, it clearly appears that all other accused except accused Noor Mohammad joined the incident at latter stage, but before the main incident without any arm and were merely present surrounding the complainant-injured. No specific role was assigned to them. The grave injuries on vital part of the injured were inflicted by the co-accused Noor Mohmmad, hence accused Noor Mohammad alone could be charged for offence punishable under Section 307 of I.P.C The charge for offence punishable under Section 307/34 framed against the petitioners/accused are not sustainable in the eyes of law, in these circumstances. However, the charge framed against them for commission of offence under section 341 of I.P.C for wrongfully restraining the injured is well found established from the material on record.

(13) Consequently the revision petition stands allowed in part. The charge for commission of offence punishable under Section 307/34 of I.P.C framed against the petitioners/accused by the impugned order stands quashed, however, they shall be prosecuted for the other offence under Section 341 of I.P.C, as held above.