Madhya Pradesh High Court
Virendra Singh Lodhi vs The State Of Madhya Pradesh on 9 April, 2019
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MADHYA PRADESH HIGH COURT, PRINCIPAL BENCH,
JABALPUR
Cr. Revision No. 376/2019
JABALPUR : 09/04/2019
Mr. Anil Khare, learned Senior counsel with Shri Priyank
Agarwal, counsel for the Petitioner.
Shri Madhur Shukla, learned counsel for the
respondents/State.
The present petition has been filed by the Petitioners herein aggrieved by the order dated 26-10-2018 passed by the learned 6th Additional Sessions Judge, Jabalpur in ST No. 259/18 whereby, charge have been framed against the Petitioner No. 1 Virendra Singh Lodhi for offences under Sections 450, 302 and 302/34 and against the Petitioner No. 2, charge under Sections 450, 302 and 302/34 of IPC and under Section 25(1B)(a) read with Section 3 of Arms Act, 1959.
2. The brief resume of facts essential are as follows:- The FIR was registered by the wife of the deceased. Her name is Shakun Bai. She has stated that on 27-08-2017, at 4:00 AM, she and her husband Ishwar Sahu were sleeping. The door was open. She was awakened by the sound of a gunshot. She found that there was a hole on the right temple of her husband and blood was oozing out of it. She further states that in the light, she saw the co-accused Anand Lodhi standing near the door. Upon seeing her, Anand Lodhi is stated to have ran down the stairs to the road, where two other persons were waiting for him on a 2 motor-cycle. She further states that all the three sat on the motor-cycle and went away.
3. The FIR was registered and the co-accused Anand Lodhi was arrested on 16/03/18. The memorandum u/s. 27 of the Evidence Act (henceforth referred to as "memorandum") of Anand Lodhi was recorded on 16/03/18. In the memorandum, Anand Lodhi states that about 6-7 months earlier on 27/08/17, at around 4:00 AM, on account of an old enmity, he along with his brothers Gappu and Virendra, went to the house of Ishwar Sahu. Gappu and Virendra kept the engine of the motorcycle on and were waiting on the road. Anand Lodhi says that he entered the house of Ishwar Sahu and fired at him from his country-made firearm, on account of which, Ishwar Sahu died. Upon hearing the report of the firearm, the complainant woke up and saw him, upon which he ran away from there, went to the motor-cycle and along with Gappu and Virendra escaped from there. On 16/03/18, a seizure memorandum was prepared according to which, a country-made firearm was seized from the possession of the co-accused Anand Singh Lodhi. Another seizure memo was prepared on 28/03/18, showing the seizure of a motor-cycle, Bajaj Boxer, from the custody of the Petitioner No. 2. Nothing has been seized from the Petitioner No. 1.
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4. The 161 statement of the witnesses were recorded by the police. The 161 statement of the wife of the deceased Shakun Bai was recorded on 27/08/17. Undisputedly, she is the sole eye-witness in this case. Under the circumstances, this Court finds it essential to reproduce her statement. She states that she lives in the address given above and her husband runs a grocery shop. In village Sundradehi she has a house where, she and her husband live. She has two sons Ashish and Amit who are staying at Jabalpur. She has a daughter also who stays at Jabalpur. On 26/08/17, at night around 11 pm, she and her husband was sleeping and the door of the room was open. At night, there was sudden report of a gunshot and she saw that there was a hole on the right temple of her husband and blood was flowing from it. Outside the room there was light glowing and so she saw the co- accused Anand Lodhi standing there. She shouted, upon which, Anand Lodhi ran from there. She followed him till the stairs by which time, he had reached the road, where there was a motor-cycle waiting with two other persons. She says that she does not recognize the two persons. The co-accused Anand Singh Lodhi along with two other persons sat on the motor-cycle and escaped. She further says that about four years before, in 2013, the co-accused Anand had a quarrel with her son Amit, over changing a charger. When the argument was going on, her husband returned from the field and the accused Anand is said to 4 have beaten him also. She further states that her husband also retaliated and beat Anand. In the course of the scuffle, the husband of the witness is stated to have also beaten the elder brother of Anand. The case relating to the said incident is going on in Court and 23/08/17, was the last appearance of the parties before the Court. She further states that on an earlier occasion, on Raksha Bandhan, day, the Petitioners herein had indulged in hurling abuses. On account of this old enmity, Anand is stated to have shot and killed her husband. Lastly, she says that Anand Lodhi is from her village, whom she knows and recognizes very well.
5. The next statement is of Amit Sahu, who is the son of the deceased which was recorded on 31/08/17. The witness statement clearly reflects that he is only a hearsay witness as he lives at Jabalpur away from his parents and was informed on 27/08/17 that his father was shot dead by the co-accused Anand Singh Lodhi. As regards the motive, this witness has also reiterated what witness Shakun Bai had.
6. Ashish Kumar Sahu is the next witness. His statement was recorded on 31-08-2017. He is also a son of the deceased. He is also living in Jabalpur and is also a hearsay witness. He has reiterated what Amit has stated in 161 statement.
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7. The sole so-called eye-witness in this case, as already stated hereinabove, is Shakun Bai, wife of the deceased. In her statement, not a single word has been spoken about the Petitioners herein except that on an earlier occasion, on Raksha Bandhan, the Petitioners have allegedly hurled abuses at them.
8. The formal charges that have been framed are at pages-11 and 12 of the petition. At page 11, is the charge framed against the Petitioner No. 1. The first charge against the Petitioner No. 1 is that on 27/08/17, at about 4:00 AM, the Petitioner No.1, with the intention of causing harm to Ishwar Prasad Sahu, which is punishable with life imprisonment, trespassed into his house and therefore, has committed an offence under Section 450 of IPC. The second charge that has been framed against the Petitioner No.1 is that he, with the knowledge that he would cause the death of the deceased Ishwar Prasad Sahu, fired at the temple of the deceased with a firearm and caused his death and so he was charged for offence under Section 302 of IPC and in the alternative he was charged for an offence under Section 302/34 of IPC. The first charge under Section 450 of IPC is completely untenable as Shakun Bai, does not even state that the Petitioner No. 1 had entered her house. She only says that the co-accused Anand Lodhi was seen outside the door of her room. In fact, the witness Shakun Bai has not even identified 6 anyone other than Anand Lodhi. Besides, the only piece of evidence against both the Petitioners herein are the memorandum under Section 27 of the co-accused Anand Singh Lodhi and the Petitioners herein. Besides that, there is not a shred of evidence that remotely implicate the Petitioners herein. Under the circumstances, the charge under Section 450 of IPC with regard to the Petitioner No. 1 and the Petitioner No. 2 is completely untenable and is set aside.
9. As regards the second charge of having committed murder of the deceased, the same does not stand the scrutiny even by the application of the prima facie rule of evidence in this case. The only eye-witness in this case does not even take the names of the Petitioners and so far as the memorandum of the co-accused Anand Lodhi is concerned, the same is inadmissible against the Petitioners. As far as, the offence under Section 302 of IPC is concerned, even in the memorandum, the Petitioners do not say that they had any direct role in the murder of the deceased. Thus, the charge under Section 302 of IPC is untenable and set aside.
10. As regards charge under Section 302/34 of IPC, there has to be substantive evidence which would reveal that the Petitioners were identified in the commission of the said offence either directly or indirectly by way of having acted in furtherance of the common intention. The charge under 7 Section 302/34 of IPC as stated hereinabove earlier, the witness does not even take the names of the Petitioners herein, she infact says that she does not even know who the other two persons were who were waiting near the motorcycle. Before the seizure of the motor-cycle from the Petitioner No. 2 can be used to connect the participation of these Petitioner in the offence, there has to be evidence, at least primafacie, showing that the motor-cycle that was seized from the Petitioner No. 2 was actually the motor- cycle, which was used in the offence. In other words, there has to be prima facie evidence, to show that the vehicle was identifiable by the eye-witness. Merely because, the motor-cycle has been recovered from the Petitioner No. 2, cannot by any stretch of imagination be considered as THE vehicle, used in the said offence, as the wife of the deceased does not identify the make of the motorcycle and neither does she give the registration number of the motorcycle. Therefore, the seizure of the motor-cycle from the Petitioner No. 2, is inadequate to prima facie substantiate charge under Section 302/34 of IPC and said charge is also set aside.
11. As regards the third charge which is specifically applicable to the Petitioner No. 2, the same is with regard to an offence under Section 25 (1B)(a)/ 3 of the Arms Act. The learned trial Court has grossly erred in framing this charge, as no firearm has been recovered from the 8 Petitioner No. 2 and the only firearm in this case is stated to have been recovered from the co-accused Anand Singh Lodhi.
12. Under the circumstances, the charge under aforementioned provisions of Arms Act is also untenable and is set aside. Resultantly, this petition succeeds and as stated hereinabove, the impugned order dated 26/10/18, so far as it is applicable to the Petitioners herein is set aside and the Petitioners are discharged.
(Atul Sreedharan) Judge PG/ PARMESHWAR GOPE 2019.04.16 11:39:00 +05'30'