Madhya Pradesh High Court
Ramlakhan vs The State Of Madhya Pradesh on 19 January, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 M.Cr.C. No. 1473 of 2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No. 1473 OF 2016
Ramlakhan
-Vs-
State of M. P. & Ors.
________________________________________________
Shri Arun Pateria, counsel for the applicant.
Shri Vishal Mishra, Additional Advocate General with
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondents/State.
Shri Yogeshwar Dutt Sharma, Additional
Superintendent of Police, Gwalior is present in person.
Shri Sudhir Singh, SDOP, Dabra, District Gwalior is
present in person.
Shri Sanjay Singh, Town Inspector, Police Station-
Biloua, District-Gwalior is present in person.
________________________________________________
ORDER
(19/01/2017) This petition has been filed under Section 482 of CrPC seeking the following relief:-
"It is prayed that petition filed by the applicant be accepted and the Superintendent of Police, Gwalior be directed that he himself should investigate the Crime No.186/2015 registered by Police Station Bilouya and Crime No.3/2015 & Crime No.22/2015 registered by Police Station Dabra Dehat, District Gwalior."
2. The case of the applicant is that on 04.07.2015 Surendra Singh, Raju and other co-accused persons had killed his uncle Salikram and accordingly a FIR was lodged in the police Station Dabra Dehat District Gwalior and Crime 3/2015 against Surendra, Raju @ Rajendra and others for offences punishable under Sections 302, 307, 147, 148, 149 of IPC was registered. It was further alleged that in spite of the registration of heinous offence of murder, the police of 2 M.Cr.C. No. 1473 of 2016 Police Station Dabra Dehat has neither arrested the accused persons nor has conducted free and fair investigation. It is further mentioned in the petition that the applicant has been informed by some of the police personnel posted in Police Station Dabra Dehat that Naval Kishore, who is one of the accused in Crime No.3/2015 is related to Yogeshwar Sharma, Additional Superintendent of Police, Gwalior who he has given verbal instructions that the accused persons should not be arrested and the investigation should be kept in abeyance on one pretext or the other, that's why, the police under the pressure of Yogeshwar Sharma, Additional Superintendent of Police (respondent No.3) is not conducting fair investigation in Crime No.3/2015. It is further alleged that as the police personnel had given an undue advantage to the accused persons, therefore, they started pressurizing the applicant and his family members to compromise the matter. When the applicant and his family members did not agree for compromise then with an intention to pressurize the applicant and his family members, Raju @ Rajendra along with his companions fired at Kamlesh Gurjar, the brother of the complainant and caused incised wound on the nose of Harkhand, the uncle of the complainant. Raju @ Rajendra with an intention to kill Kamlesh fired at him and fortunately Kamlesh sustained the injuries on his left shoulder. Raju @ Rajendra and his companions after noticing the guards, who were posted in the security of the complainant, ran away from the spot. On 03.08.2015 itself, the injured Kamlesh lodged a report in Police Station Dabra Dehat, District Gwalior and Crime No.22/2015 was registered against Raju @ Rajendra and his companions. Although, the accused Raju @ Rajendra and his companions had caused gunshot injury to Kamlesh and 3 M.Cr.C. No. 1473 of 2016 an incised wound was caused on the nose of Harkhand but the pressure of Yogeshwar Sharma, Additional Superintendent of Police, Gwalior was again reflected in the investigation and the police of Police Station Dabra Dehat District Gwalior deliberately registered the offence punishable under Sections 147, 148, 149, 323 & 336 of IPC which are bailable offences so that the accused persons can be released from the police station itself, whereas, under the facts and the manner in which the offence was committed, the police should have registered an offence punishable under Sections 307 & 326 of IPC. All these manipulations were done with an intention to give benefit to the accused persons on the verbal instructions of Yogeshwar Sharma, Additional Superintendent of Police, Gwalior whereas in the medical examination also grievous injuries were found on the nose of Harkhand and gunshot injury was found on the right shoulder of Kamlesh. Even in Crime No.22/2015, the police has neither arrested the accused Raju @ Rajendra and seven co-accused persons nor has conducted any investigation.
3. It is further stated that in spite of above mentioned two serious offences, the accused Raju @ Rajendra and his brother Surendra Singh started once again pressurizing the applicant and his family members to compromise the matters. When the applicant refused to compromise the matter then on 26.11.2015 Raju @ Rajendra and his brother Surendra Singh with an intention to kill the applicant fired at him, as a result of which, the applicant sustained gunshot injuries on his chest, right shoulder and head. A report was immediately lodged in Police Station Bilouya and accordingly the police registered the Crime No.186/2015 for offence punishable under Section 307/34 of IPC. It is further alleged 4 M.Cr.C. No. 1473 of 2016 that under the instructions of Yogeshwar Sharma, Additional Superintendent of Police, Gwalior, Raju @ Rajendra and Surendra Singh have not been arrested and with an intention to manipulate the things, tainted investigation is being done, whereas in the medical examination of the applicant, gunshot injuries on the chest & shoulder were found. It is further alleged that it is a matter of common prudence that nobody would cause self inflicted injury on his chest with an intention to falsely implication the accused. It was further mentioned that in Crime No.186/2015, the police has neither arrested Raju @ Rajendra and Surendra Singh nor has made any investigation. The applicant and his family members had made several complaints to the police authorities but under the pressure of Yogeshwar Sharma, Additional Superintendent of Police, Gwalior no heed has been paid to their complaints. Thus, the petition was filed for the relief as mentioned above.
4. By order dated 10.03.2016, this Court directed the State counsel to file the reply with regard to the status of the investigation. Again by order dated 10.08.2016, a direction was given to submit the present status of the investigation. On 30.08.2016, 07.09.2016, 23.09.2016, 27.09.2016 and 07.10.2016, time was granted to submit the status report.
5. On 24.10.2016, the counsel for the State made a statement for the first time that he has received a letter dated 19.10.2016 from the office of SHO, P.S. Bilouya, District Gwalior to the effect that the case diary of Crime No.186/2015 is not traceable and the carbon diary is being prepared and the documents are being reconstructed. The order dated 24.10.2016 reads as under:-
"The counsel for the State submitted that he has 5 M.Cr.C. No. 1473 of 2016 received a letter dated 19.10.2016 from the office of SHO, Police Station Bilauva, District Gwalior to the effect that the case diary of Crime No. 186/2015 is not traceable and the carbon diary is being prepared and the documents are being reconstructed.
The counsel for the State is directed to file the letter dated 19.10.2016 within three days.
Under these circumstance, the counsel for the respondent is directed to submit the progress report of the reconstruction of the case diary and also with regard to the departmental action which is proposed to be taken against the erring official.
The counsel for the respondent prays for two weeks' time to submit the compliance report.
List this case on 9.11.2016.
It is made clear that if the compliance report is not filed on or before 9.11.2016, this Court may require the personal appearance of the SHO Police Station Bilauva, District Gwalior."
6. When repeated opportunities were given by the Court to the State to file the status report then on 09.11.2016, the status report in compliance of the order dated 24.10.2016 was filed for the first time. In the said status report, it was mentioned as under:-
**3- ;g fd] ekuuh; U;k;ky; ds vkns'k ds ikyu esa dkcZu dsl Mk;jh tks vuqfoHkkxh; vf/kdkjh ¼iqfyl½ Mcjk ds dk;kZy; esa FkhA mDr dsl Mk;jh ls nLrkost rS;kj dj vijk/k Øa-186@2016 dh Mk;jh rS;kj dh xbZ gSA 4- ;g fd] izdj.k esa mi LokLF; dsUnz fcykSvk ls ,e-,y-lh- fjiksVZ dh lR;kfir izfr izkIr dh xbZ gS] tks dsl Mk;jh ds lkFk layXu gSA 5- ;g fd] ,Dljk fjiksVZ tks t;kjksX; vLirky Xokfy;j esa miyC/k gS] ds fy, i= fnukad 02-11-2016 tkjh fd;k x;k gSA mDr i= ds ikyu esa fjiksVZ orZeku esa izkIr ugha gqbZ gS] fjiksVZ izkIr djus gsrq lrr iz;kl fd;s tk jgs gSa lkFk gh Qksu ij Hkh laidZ fd;k x;k gSA**
7. It appears from the status report dated 09.11.2016 that the case diary of Crime No.186/2015 registered by Police Station Bilouya, District Gwalior was misplaced and the case diary was reconstructed. However, it appears from 6 M.Cr.C. No. 1473 of 2016 para 3 of the status report that the police authorities had reconstructed the police case diary only because of the fact that this Court was constantly directing the State counsel to submit the status report. The status report dated 09.11.2016 was submitted by an affidavit of Sanjay Singh, SHO, Police Station Bilouya, District Gwalior. It appears that in this compliance report, the said authority deliberately suppressed the fact that the case diary of Crime No.186/2015 has been misplaced. A very vague sentence was mentioned that in compliance of the order of this Court, the case diary of Crime No.186/2016 has been reconstructed from the carbon case diary which was available in the office of SDO (P) Dabra, District Gwalior.
8. Without sensing any foul play on the part of the said authority, this Court by order dated 09.11.2016 observed as under:-
"In compliance of the order dated 24.10.2016, compliance report has been filed today. A copy of the same was made available by the learned counsel for the State for perusal of this Court.
As per compliance report, except X-ray report which is to be received from J.A. Hospital, Gwalior, all the relevant documents of the case diary have been re- constructed.
Since the sincere efforts are being made by the police for reconstructing the case diary, further time of 15 days is granted to the State to produce the complete case diary for hearing of this matter on merits."
9. The case was taken up by the Court on 25.11.2016. After considering the submissions made by the State counsel, this Court observed as under:-
"Fifteen days' time was granted to produce the case diary. For reply, earlier on 19.10.2016 SHO, Police Station, Biloa, District Gwalior had informed the office of Advocate General that efforts are being made to prepare the case diary and as soon as certified copies of the document are received, the 7 M.Cr.C. No. 1473 of 2016 diary shall be completed. Thereafter, on 07.11.2016 progress report has been filed and it is mentioned that x-ray report was sought from the JA. Hospital on 02.11.2016 and it is still awaited. This progress report reflects the casual approach of the SHO Police Station-Biloua, District Gwalior, therefore, it will be appropriate that SHO, Biloua be directed to remain present before this Court to explain as to why the documents could not be obtained from JA Hospital, Gwalior and why case diary has not been produced and why the compliance of the order of this Court has not been made.
Let SHO, Biloua, District Gwalior either file complete case diary along with status report or shall remain personally present before this Court on the next date of hearing."
10. By order dated 06.12.2016, this Court observed as under:-
"Though the case diary has been received, but the status-report in this regard to investigation trigerred by the FIR dated 04.07.2015 has not been filed yet. The SHO, Police Station, Gwalior is not present despite the order dated 25.11.2016.
Let the case be taken up day after tomorrow i.e. 8 th December, 2016 to enable the said Officer to appear in person and explain the default."
11. On 08.12.2016, another progress report was filed in which it was mentioned as under:-
**4- ;g fd] fnukad 29-11-2016 dks t;kjksX; vLirky Xokfy;j esa MkW- :fp ls Qksu ls vkgr jkey[ku dh ,Dljs fjiksVZ dh lR;kfir izfr izkIr djus gsrq fuosnu fd;k x;kA MkW- }kjk crk;k x;k fd ,Dljs fjiksVZ dh dkcZu dkWih ls lacaf/kr dV~Vk izkIr ugha gks jgk gSA feyus ij lR;kfir izfr iznku dh tkosxhA jks-uk-lkUgk dh izfr izn'kZ ,&1 gSA** 5- ;g fd] izdj.k ds Qfj;knh jkey[ku xqtZj ds eks-ua- dh dkWy fMVsy izkIr djus gsrq i= fnukad 03-12-16 izsf"kr fd;k x;k gSA i= dh izfr izn'kZ ,&2 gSA mDr i= ds ikyu esa vkt fnukad rd tkudkjh vizkIr gSA 6- ;g fd] Fkkuk Mcjk nsgkr esa Qfj;knh jkey[ku ds HkkbZ deys'k xqtZj us vijk/k Øa- 03@15 /kkjk 302] 307] 147] 148] 149 Hkk-na-fo- ,oa vijk/k dza- 22@15 /kkjk 147] 148] 149] 323] 336 Hkk-na-fo- iathc) djk;s x;s gSa] ftudh Fkkuk Mcjk nsgkr }kjk lR;kfir izfr izkIr dh xbZ gSaA 7- ;g fd] Fkkuk Mcjk nsgkr }kjk vijk/k daz- 22@15 esa ikWyhxzke 8 M.Cr.C. No. 1473 of 2016 VsLV djk;s x;s gSaA ikWfyxzkQ dh lR;kfir izfr izn'kZ ,&3 gSA vijk/k dza- 03@15 dk ikWfyxzke VsLV fjiksVZ ugha dh xbZ tks okfir izkIr gqbZ gSA ftldh izn'kZ ,&4 gSA 8- ;g fd] eks-ua- 9826224509 ,oa eks-u- 9009951134 dh dkWy fMVsy izkIr djus gsrq i= fnukad 06-12-16 izsf"kr fd;k x;k gS] ftldh izfr izn'kZ ,&5 gSA 9- ;g fd izdj.k esa ekuuh; U;k;ky; ds vkns'k ds ikyu esa t;kjksX; vLirky ls nLrkost izkIr djus gsrq Qksu ls laidZ fd;k x;k gS] muds }kjk crk;k x;k fd vks-lh- dV~Vk miyC/k ugha gks ik jgh gS] izkIr gksus ij vkidks dkcZu fjiksVZ miyC/k djk nh tkosxhA**
12. Considering the conduct of the investigating officer, this Court by order dated 08.12.2016 observed as under:-
Today the SHO, Police Station - Biloua, District - Gwalior has appeared in person. Once again a casual compliance report has been filed. It is mentioned that on 29/11/2016, a request was made to J.A.Hospital on Phone to supply the copy of Xray Report. It was replied by the concerned doctor that the same shall be made available after the receipt of the concerning documents and this conversation is alleged to have been recorded in Rojnamcha Sana which has been filed as Annexure A/1. From the Rojnamcha Sana annexed as Annexure A/1, it appears that in fact no effort has been made and merely a paper work is being done. If any police officer had gone to the J.A.Hospital, Gwalior to collect the X-ray Report, then an entry with regard to his leaving for the hospital and coming back from the hospital was required to be made in the Rojnamcha Sana. In order to overcome that lapse, it has been mentioned that merely on phone, a request was made.
It is further mentioned that a letter dated 03/12/2016 was sent to Incharge, Cyber Cell, District
- Gwalior to supply the copy of the call details of the complainant which were taken out on earlier occasion. A copy of that letter dated 03/12/2016 is annexed with the compliance report.
So far as the contention of the SHO that Polygraph Test was got conducted in Crime No.22/15 and the report of the Polygraph Test is concerned, it is suffice to say that the present petition is in relation to Crime No.186/2015 registered by Police Station - Biloua, District - Gwalior. What is the relevancy of the Polygraph Test got conducted in Crime No.22/2015 by Police Station - Dehat, Dabra, is not known. Even the SHO who is present in the Court fairly admitted 9 M.Cr.C. No. 1473 of 2016 that the Polygraph Test conducted in another case cannot be read while investigating the matter in Crime No.186/2015.
It is also mentioned in the compliance report that a letter has been addressed to the Superintendent of Police, Cyber Cell, Gwalior to obtain the call details of Mobile Nos. 9826224509 and 9009951134. A copy of the said letter is annexed as Annexure A/5. From the perusal of this letter, it is clear that the SHO, Police Station - Biloua, District - Gwalior had sought the call details of the applicant/complainant and the witnesses. On query by the Court that why the call details of the applicant/complainant and the witnesses are being sought, the SHO immediately replied "vfHk;qDr ds" and then he immediately stopped. Thus it can be easily understood from the reaction of the SHO that on the instructions of the accused persons, the investigation is being done. Again, it is mentioned in the compliance report that again a request on Phone was made to the J.A.Hospital, Gwalior to make the X-ray Report available, however, it has been replied by the concerned person from J.A.Hospital that the second copy of the report is still not traceable.
From the different compliance reports filed by the police authorities, this Court had already observed by order dated 25/11/2016 that the conduct of the police authorities shows their casual approach towards the investigation. The compliance report, which has been filed today, further confirms the attitude of the police authorities in the matter. The short reply given by the SHO "vfHk;qDr ds", further clarifies that in fact the investigating officer is acting under the directions of the accused persons. Under these circumstances, this Court is left with no other option but to issue notices to the respondent no.2, Superintendent of Police, District - Gwalior and respondent no.3 Shri Yogeshwar Sharma, Additional Superintendent of Police, District - Gwalior. The respondents no.2 and 3 are directed to give specific reply to the allegation made by the petitioner in this petition to the effect that since one of the accused in Crime No.3/2015 is a relative of the respondent no.3, therefore, the entire investigation is being manipulated at the instance of the respondent no.3."
13. On 19.12.2016, a status report with regard to the investigation was filed. On 19.12.2016 itself an affidavit was 10 M.Cr.C. No. 1473 of 2016 also filed by Yogeshwar Sharma, Additional Superintendent of Police, Gwalior with regard to the allegation that one of the accused Naval Kishore is related to Yogeshwar Sharma, Additional Superintendent of Police, Gwalior. The said affidavit reads as under:-
**1- ;g fd] eSa orZeku esa vfrfjDr iqfyl v/kh{kd] xzkeh.k Xokfy;j ds in ij dk;Zjr gwW rFkk mijksDr izdj.k esa eq>s i{kdkj Øekad&3 cuk;k x;k gSA 2- ;g fd] eSa Xokfy;j ftys dk ewy fuoklh u gksdj /kkj ¼e/;izns'k½ dk ewy fuoklh gwWA 3- ;g fd] esjs }kjk ekSf[kd ;k fdlh Hkh izdkj ls mDr izdj.kksa esa foospuk dks vuqfpr :i izHkkfor djus ds fy, fdlh Hkh izdkj ls ncko ugha Mkyk x;k gSA 4- ;g fd] Fkkuk Mcjk nsgkr ds vijk/k Øekad 3@15 dh foospuk Jh jes'k ?ku?kksfj;k] vuqfoHkkxh; vf/kdkjh ¼iqfyl½ fHkrjokj }kjk dh tk jgh gS] tks Lo;a ,d jktif=r vf/kdkjh gSa tks miyC/k lk{; ds vk/kkj ij fu"i{k foospuk dj jgs gSaA 5- ;g fd gR;k ds mijksDr ekeys esa Fkkuk Mcjk nsgkr dh iqfyl ij esjs }kjk ncko Mkyus dk vkjksi ;kfpdk esa yxk;k x;k gS] tcfd mDr izdj.k dh foospuk Jh jes'k ?ku?kksfj;k] vuqfoHkkxh; vf/kdkjh ¼iqfyl½ fHkrjokj }kjk dh tk jgh gSA 6- ;g fd] Fkkuk Mcjk nsgkr ds vijk/k Øekad 22@15 dh foospuk Fkkuk izHkkjh Mcjk nsgkr Jh iIiw ;kno ds }kjk ,oa Fkkuk fcykSvk ds vijk/k Øekad 186@15 dh foospuk Jh lat;flag }kjk dh tk jgh gS] mDr izdj.kksa ds foospdksa ij esjs }kjk xyr rjhds ls foospuk gsrq vuqfpr ncko ugha Mkyk x;k gSA**
14. The case was listed on 20.12.2016. Yogeshwar Sharma, Additional Superintendent of Police, Gwalior, Sudhir Singh, Deputy Superintendent of Police, Dabra, District Gwalior and Sanjay Singh, Town Inspector, Police Station Bilauva, District Gwalior appeared in person. After going through the carbon case diary which was earlier available in the office of SDO (P), Dabra, District Gwalior, this Court pointed out several lapses and accordingly the State counsel sought time to file a detailed reply to the queries raised by the Court.
15. On 02.01.2017, another progress report was filed mentioning inter-alia that after the police case diary of Crime No.186/2015 was lost, under the orders of 11 M.Cr.C. No. 1473 of 2016 Superintendent of Police, Gwalior, the SDO (P), Dabra, District Gwalior had conducted an inquiry. In the inquiry, it has been found that due to the negligence of ASI Anant Ram Bhadoriya (retired), the case diary of Crime No.186/2015 was lost. On the basis of the report dated 19.12.2016 submitted by SDO (P) Dabra, District Gwalior, after receiving the explanation from Anant Ram Bhadoriya, Departmental enquiry is under stipulation. It is further submitted that with regard to non-seizure of clothes of the injured an inquiry was got conducted by Alok Singh, Addl. Superintendent of Police, Crime Branch, Gwalior and it has been found that the then Investigating Officer, Sub Inspector Ramesh Singh had committed a mistake, therefore, Superintendent of Police, Gwalior has issued a show cause notice to him on 31.12.2016. It is further submitted that after the case diary of Crime No.186/2015 was lost, a letter was written by SHO, Police Station Bilouya, to the Superintendent of Police, Gwalior on 04.06.2016 with a direction to ASI Anant Ram Bhadoriya to return the case diary as well as for appropriate action.
16. By letter dated 23.6.2016 written by Superintendent of Police, Gwalior, a notice to ASI Anant Ram Bhadoriya was sent to clarify with regard to missing of case diary of Crime No.186/2015. The Superintendent of Police, Morena by his letter dated 18.07.2016 had directed the ASI Anant Ram Bhadoriya to explain the situation and also to immediately deposit the case diary of Crime No.186/2015 in Police Station Bilouya, District Gwalior. The said letter was received by ASI Anant Ram Bhadoriya on 18.07.2016. With regard to the recreation of the diary after the case diary of Crime No.186/2015 was lost, the matter was inquired into by Alok Singh, Addl S.P., Crime Branch, Gwalior and it has 12 M.Cr.C. No. 1473 of 2016 been found that R.C. Dohare the then Investigating Officer was negligent. Accordingly, a show cause notice has been issued to R.C. Dohare on 31.12.2016 and similarly a show cause notice has also been issued to Sanjay Singh, the present SHO of Police Station Bilouya for not taking immediate steps for getting the case diary of Crime No.186/2015 recreated, although, a direction in this regard was already given to him from the office of SDO (P) District Gwalior on 12.09.2016. It was further submitted that under the leadership of Sudhir Singh Kushwah, SDO (P) Dabra, SIT has been constituted which will be working under the supervision and direction of Alok Singh, Addl. S.P., Crime Branch, District Gwalior. The order dated 23.12.2016 constituting the SIT was also placed on record along with the compliance report. It was further submitted that a complaint was made by the applicant to Inspector General of Police, Gwalior alleging that the present SHO Police Station Bilouya namely Sanjay Singh is pressurizing the applicant and his witnesses and he is recording the statements of the witnesses in his own way and he had wrongly prepared the spot map. The said complaint was inquired into by Alok Singh, Addl. S.P., Crime Branch, Gwalior under the orders of Superintendent of Police, Gwalior. However, during the inquiry, the applicant and the witnesses in spite of service of notice did not appear and, therefore, their statements could not be recorded. It was further submitted that as the SIT has been constituted which has started the investigation, therefore, it will be ensured that the matter is investigated in accordance with law.
17. On 02.01.2017, when the case was taken up, the counsel for the applicant immediately took a verbal 13 M.Cr.C. No. 1473 of 2016 objection with regard to constitution of SIT under the leadership of Sudhir Singh Kushwah. It was submitted by the counsel for the applicant that on earlier occasions when the complaints were made by him against the malafide investigation by the police authorities, it was specifically mentioned that tainted investigation is being done by Sudhir Singh Kushwah. Since, the applicant has already made allegation against the manner in which the investigation is being done by Sudhir Singh Kushwah the act of respondents by constituting a SIT under the leadership of Sudhir Singh Kushwah is nothing but an eye-wash to give benefit to the accused persons.
18. This Court found that such documents are not available on record and, therefore, the counsel for the applicant on 02.01.2016 itself filed an affidavit of Kamlesh along with the complaint which were sent by him on earlier occasions in which it was specifically mentioned that Sudhir Singh Kushwah, SDO (P) Dabra District Gwalior has also manipulated the investigation and deliberately changed his statement, whereas, Kamlesh had already sent eight affidavits along with five judgments of conviction by registered post dated 21.07.2016, therefore, it was submitted by the counsel for the applicant that the police authorities are well aware of the fact that Sudhir Singh Kushwah is also actively involved in manipulating the investigation and with an intention to further manipulate the investigation, the SIT under his leadership has been constituted.
19. The matter was finally heard on 02.01.2017 and the case diary of Crime No.186/2015 was perused.
20. However, on 04.01.2017, an order dated 03.01.2017 was placed on record, constituting fresh SIT as well as 14 M.Cr.C. No. 1473 of 2016 additional affidavit of Yogeshwar Sharma, Additional Superintendent of Police was also filed to show that he is not related to Naval Kishore. Before considering the order dated 3.1.2017 passed by Superintendent of Police, Gwalior and additional affidavit of Yogeshwar Sharma, Additional Superintendent of Police, it would be appropriate to consider the investigation which has been done by the Police.
21. From the First Information Report, it is clear that the incident took place on 26-11-2015 at 12 P.M. and the complainant/injured lodged a Complaint in the Police Station Biloua, Distt. Gwalior at 1:30 P.M.
22. On 26-11-2015 itself the injured Ramlakhan was taken to J.A. Hospital and it is mentioned in the diary that the hospital personals told the I.O. to collect the shirt of the victim and medical documents on the next date. It is also mentioned in the case diary that the I.O. went on the spot and enquired from the Forest Outpost, but found that no body had heard the sound of gunshot fire. It appears that the spot map was also prepared on 26-11-2015 itself. Subsequently the F.I.R. was registered on 28-11-2015. However, surprisingly, one Rojnamcha Sanha is available in the Police Case Diary which was also written at 1:30 P.M. on 26-11-2015 itself. In the said Rojnamcha Sanha, after narrating the complaint, it is mentioned that on asking for information from Police Station Dehat, an information has been received that on 4-7-2015, and 3-8- 2015 the complainant had lodged two reports against the accused persons, in Police Station Dehat Dabra, Distt. Gwalior and investigation is still going in those cases, therefore, it appears that the present complaint is 15 M.Cr.C. No. 1473 of 2016 suspicious. It is surprising that when the complaint was made at 1:30 P.M. then how, the person who has written the Rojnamcha Sanha at 1:30 P.M. itself, without wasting a single minute could collect informations from the different police station? How, the scriber of the Rojnamcha Sanha got a clue that some other cases might have been registered in Police Station Dehat, Dabra, Distt. Gwalior. This is possible only when the scriber of the Rojnamcha Sanha was already aware of the fact that the complaint is going to be lodged and therefore, he had already collected the informations from different police station in advance. If this is the situation, then it speaks in volumes against the police. However, after conducting certain preliminary enquiry, the police ultimately registered the crime and recorded the F.I.R. on 28-11- 2015. Thus, it is clear that whatever suspicion was in the mind of the police was clarified after conducting the enquiry/investigation and therefore, they lodged the F.I.R. It appears that thereafter, no investigation was done and consequently, Kamlesh, brother of the victim made a complaint to the Superintendent of Police on 1-12-2015 in Jan Sunvai which was received in the police station on 3- 12-2015. Therefore, the case diary proceedings were written on 3-12-2015. According to this proceeding, the Doctor did not handover the shirt and swab to the police and the witnesses who were bypassers were being searched. There is also mention of making of complaint to the Superintendent of Police on 1-12-2015.
23. It appears that an application was made by the accused persons to the S.D.O.(P) which was received in the Police Station on 20-12-2015. Therefore, after 3-12- 16 M.Cr.C. No. 1473 of 2016 2015, the diary proceedings were written for the first time on 20-12-2015. According to these proceedings, it appears that the witnesses were called in the police station and they have stated that they were working in their fields therefore, they have no information with regard to the incident. They also narrated that the accused persons were also working in the fields. It is surprising that how the Investigating Officer came to know about the names of witnesses because the names of the by-passers were not disclosed by the complainant in his complaint and statement. How and under what circumstances and at whose instance these witnesses reached to the police station is not known. From the diary proceedings dated 20-12-2015, it is also clear that the I.O. could not get any information about the names of by- passers.
24. The next diary proceeding is dated 28-12-2015. According to this diary proceedings, the accused persons, namely Badam Singh and Raju were called in the police station and their statements were recorded who stated that they are innocent persons and have been falsely implicated and for the third time, a false report is being lodged by Ramlakhan. It is also mentioned that the shirt and swab of the victim is not received from the hospital and the call details of the accused persons are being procured. Surprisingly, when the FIR was already lodged then why the accused persons were not arrested and why they were allowed to go after recording their statement is also not known.
25. Next diary proceeding is dated 14-1-2016 in which it is mentioned that the complainant was summoned for 17 M.Cr.C. No. 1473 of 2016 further interrogation, but he did not turn up and the shirt and swab of the victim also could not be collected from the Hospital.
26. Next diary proceeding is dated 25-1-2016 in which it is mentioned that the call details of the accused are yet to be received and the victim has refused to come for further interrogation on the ground that he has already given his statement. It is also mentioned that the shirt and swab of the victim could not be collected from Hospital. Thereafter there is a long pause in the investigation and the next diary proceeding is dated 20-3-2016. As per this diary proceeding, the X-ray report and X-ray Plate of the injured Ramlakhan were received from the Hospital in which it was found that the injured had suffered fracture. It was also mentioned that the call details are yet to be received. It is further mentioned that the further investigation will be done as per the directions given by the Higher Authorities. It is important to mention here that the moment, the X-ray report of the injured was received, it appears that thereafter the case diary of this case was lost on 29-3-2016. This shows in volumes about the conduct of the police authorities.
27. It appears that earlier every attempt was being made to conduct a tainted investigation and after the receipt of X-ray report of the injured, in which foreign bodies were also found in the body of the injured, then the case diary was lost. Thus, under the facts and circumstances of the case, the loss of diary appears to be a deliberate act on the part of the police authorities.
28. It is clear from the case diary proceedings that thereafter neither an attempt was made to trace out the 18 M.Cr.C. No. 1473 of 2016 missing case diary, nor any attempt was made to reconstruct the case diary or to proceed with the investigation with the help of the carbon case diary which was available in the office of S.D.O.(P), Dabra, Distt. Gwalior.
29. The next case diary proceeding is dated 3-11-2016. In this proceedings it is mentioned that in compliance of the order dated 10-9-2016 passed by the S.D.O.(P), Dabra, Distt. Gwalior, with the help of the carbon case diary, the case diary of this case is under reconstruction. It is also mentioned that a letter has been sent to the Radiology Department. In the case diary proceeding dated 4-11-2016, it is mentioned that a request was made on mobile to Dr. Ruchi who is on leave to provide the X-ray report of injured, who in her turn inform that as the duplicate X-report is not traceable, therefore, the same shall be made available as soon as it is located. Diary proceedings dated 5-11-2016 discloses, that the details of Crime no. 3/15 and 22/15 of Police Station Dehat Dabra were included in the case diary. The next diary proceeding is dated 29-11-2016 in which it is mentioned that again a request was made to the concerning Doctor to make the X-ray report of victim Ramlakhan available, however, it has been replied that the duplicate is not traceable and the same shall be made available as soon as it is made available. Next diary proceeding is dated 3-12-2016 in which it is mentioned that a letter has been given in the office of S.D.O. (P) Dabra for collecting the call details of the complainant and the copy of the F.I.R. in crime no. 22/15 and 3/15 registered by police station Dehat Dabra are also included in the case diary as well as the 19 M.Cr.C. No. 1473 of 2016 Polygraph test report of the accused person which was got conducted in crime no. 22/15 is also included in the case diary and the copy of the letter showing that in crime no. 3/15, inspite of the letter addressed to the complainant, they did not come for polygraph test is also included in the case diary. Thereafter, it is mentioned that the complainant was further interrogated and Surendra Singh is not found at the given address.
30. The next proceeding is dated 6-12-2016. According to this proceedings, the investigation was taken up by the S.H.O., Police Station Biloua in his hand. In this case diary proceeding it is mentioned that as the original case diary is lost, therefore, carbon case diary is prepared. The instant case was listed before the Court on 8-12-2016 on which considering the conduct of the S.H.O. Police Station Biloua Distt. Gwalior, a very detailed order was passed. It is not out of place to mention here that during the hearing the S.H.O. Police Station Biloua had admitted that the call details of the complainant are being sought on the instructions of the accused persons. The next case diary proceeding is dated 8-12-2016, in which it is mentioned that after attending the Court proceedings, the radiology Department was contacted but the X-ray report could not be collected. It appears that a letter was written on 9-12- 2016 to the HOD, Radiology Department, JA Hospital, Gwalior for the first time to provide the certified copy of the X-ray report. As per the diary proceedings dated 9- 12-2016, it appears that again on telephone, Dr. Ruchi was contacted for providing the carbon copy of the X-ray report, who informed that the same is not traceable and would be made available as soon as the same is traced.
20 M.Cr.C. No. 1473 of 2016The Doctor was informed that since, serious comments have been made by the Court, therefore, the same should be provided as early as possible. It is not out of place to mention that by order dated 8-12-2016, this Court had issued notices to the Superintendent of Police, Gwalior and Add. Superintendent of Police, Gwalior. It is also borne out from the diary proceedings dated 9-12-2016, that the complainant was asked to appear before the investigation officer, for the reconstruction of the case diary. Thus, it is clear from this diary proceeding, that the case diary was not reconstructed till 9-12- 2016.
31. From the case diary proceedings dated 10-12-2016, it appears that when the concerned Doctor was contacted on phone, then She informed that the Carbon Copy of the X-ray report has been located and accordingly, the same was collected. In the X-ray report, "Foreign body of metallic density seen" is mentioned. The complainant was again informed that since second case diary is being reconstructed therefore, his presence is necessary. By letter dated 12-12-2016, the Superintendent, J.A. Hospital Gwalior was requested to make the Bed head ticket of the injured available. The case diary proceedings dated 12-12-2016 shows that the shirt and swab of the victim has not been received from the hospital and a letter is being send to collect the bed head ticket of the injured and the complainant was informed that the scene of occurrence is to be recreated therefore, they should come to the police station. The complainant informed that they would come on 13-12-2016. The F.S.L. Officer is also informed that the scene of occurrence will be recreated 21 M.Cr.C. No. 1473 of 2016 therefore, he should come to the police station. On 13-12- 2016, the scene of occurrence was recreated and as per the diary proceedings some discrepancy was found with regard to the fact that from what distance the gun shot was fired. It is also mentioned that while the scene of occurrence was being recreated, the complainant was saying that he would not leave the police officers till the Supreme Court and would also make complaint against the police of police station Biloua as the accused have not been arrested. It is further mentioned that the call details of the mobile of the complainant is obtained and as he had earlier said that he had informed the police on 100 about the incident but at that time, the mobile location was B.S.F. Secondary School therefore, a querry is being raised from Company that Jaurasy Danda area falls in which tower. Here it is not out of place to mention here that the call details of the mobile no. 9826224509 (of complainant), 7247552619 (of Asharam), 8964805133 (of accused Raju) and 9977614893 (of accused Surendra) were included in the case diary on 13-12-2016. However, surprisingly, there is nothing on record that how, these call details came in possession of the Investigating Officer. Earlier, the investigating officer had written a letter dated 6-12-2016 asking the Superintendent of Police, Gwalior to provide the call details of the complainant and his witnesses for the period 20-11-2015 to 30-11-2015. However, there is nothing in the police case diary to show that at point of time, any letter was written to the Company concerned, for providing the call details. Further, from the perusal of the call details of mobile no. 9826224509, 7247552619, 8964805133 and 9977614893 22 M.Cr.C. No. 1473 of 2016 which are available in the police case diary, it appears that the print out of these call details was obtained on 30-12- 2015 at 16:08 and the call details are from 26-11-2015 till 30-12-2015 16:08:01. Thus, it is clear that the print out of the call details of the above mentioned mobile Phone No.s were obtained on 30-12-2015 and not on 13- 12-2016. If the investigating officer, had collected the call details on 13-12-2016 from the concerned Company, then the date of print out should have been 13-12-2016 and not 30-12-2015. Thus, it is clear that the call details which are the part of the police case diary were made available by some body to the investigating officer who without realizing the fact that the date of print out of the call details is also mentioned, included the same in the police case diary. No covering letter is annexed with the call details. Further, there is no document or case diary proceedings to show that at what time, the investigating officer had gone to the office of concerned Company to collect the call details. Further, when the incident took place on 26.11.2015, then what was the need to obtain call details till 30.12.2015 has also not been clarified. It is also not out of place to mention that by writing letter to S.P. Gwalior, the I.O. had sought call details from 20.11.2015 till 30.11.2015. Thus, it is clear that the investigating officer was including the documents in the police case diary which were made available by interested persons, and the investigating officer had not collected any document during the investigation. If this action of the investigating officer is seen in the light of the statement made by him before this Court on 8-12-2016 that the call details of the complainant and his witnesses 23 M.Cr.C. No. 1473 of 2016 are being sought on the instructions of "vfHk;qDr ds", then it would be clear that the investigating officer inspite of the serious concerns shown by this Court, continued with his tainted investigation and was including the documents in the police case diary on the instructions of the accused persons.
32. Further, it would be appropriate to consider the report of the Scientific Officer, Scene of Crime, Mobile Unit, Gwalior, who had reconstructed the scene of occurrence. According to the investigating officer, as there are serious discrepancies in the statements of the witnesses, therefore, the incident appears to be suspicious. However, the report of the Scientific Officer, Scene of Crime, Mobile Unit, Gwalior is otherwise. It would be appropriate to reproduce the report of Scientific Officer, Scene of Crime, Mobile Unit, Gwalior. Report dated 16-12-2016 is reproduced as under :
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lhu vkWQ dzkbe eksckby ;wfuV Xokfy;j Øekad@lhØkeks;w@Xok@C-185@16 fnukad & 16@12@16 izfr] foospuk vf/kdkjh] Fkkuk fcykSvk ftyk Xokfy;j ?kVukLFky fujh{k.k izfrosnu fo"k;%& Fkkuk fcykSvk ds vi0Ø-&186@15 /kkjk&307]34 rkfg0 fnukad 28@11@15 ds ?kVukLFky dk iquZLFkkiuk izfrosnuA fujh{k.k%& esjs }kjk fnukad 13@12@16 dks lqcg 11%30 cts Fkkuk izHkkjh lat; flag ,0,l0vkbZ0 jktsUnz 'kekZ] Jhd`".k fljk/kuk] iz0vkj0 Hkokuh izlkn] vkj{kd@1984 jfo'kadj ,oa ?kVuk dk et:c jkey[ku flag xqtZj iq= fl;kjke flag xqtZj mez 26 o"kZ] fu0&xzke jft;koj Fkkuk&Mcjk nsgkr] ?kVuk dk lk{kh lksusjke iq= j?kqohj flag] mez&40 o"kZ] fu0&xzke >kMkSyh] Fkkuk&Mcjk nsgkr dh fu'kkunsgh ij iquZLFkkiuk gsrq et:c jkey[ku rFkk lk{kh lksusjke ds vuqlkj i`Fkd&i`Fkd ?kVuk dh iquZLFkkiuk dh x;h ftuds ohfM;ks fjdksfMZax rFkk QksVksxzkQ iqfyl QksVksxzkQj tqxy nqcs }kjk fd;s x;s 24 M.Cr.C. No. 1473 of 2016 rFkk uD'kk ekSdk rS;kj fd;k x;kA et:c rFkk lk{kh ds dFkuksa dks i`Fkd ls Hkh iqfyl }kjk djk;k x;kA ?kVukLFky ij Fkkuk izHkkjh lat; flag }kjk crk;k x;k fd Qfj;knh jkey[ku }kjk fn0&26@11@15 dks Fkkuk fcykSvk vkdj fjiksVZ dh x;h fd mlds xkWo ds lqjsUnz jktw rFkk vKkr O;fDr }kjk tkSjklh ?kkVh ds fudV tku ls ekjus dh fu;r ls xkyh pykbZ x;h tks mlds lhus rFkk nkW;h gkFk dh cktw esa yxh ftl ij mijk/k dk;e dj foospuk esa fy;k x;kA loZizFke et:c jkey[ku dh fu'kkunsgh ij ?kVukLFky tkSjklh ?kkVh caMk dk fujh{k.k fd;k x;k rFkk ?kVuk dh iquZLFkkiuk dh x;hA et:c ds crk;s vuqlkj ?kVukLFky Mcjk&Xokfy;j gkbos ij tkSjklh ?kkVh ou pkSdh ds mRrj 1 fd0eh0 if'pe rjQ dh dPph lM+d gS ftl ij otMh] jksMs vkfn iMs gq;s gSA orZeku esa bl LFkku ij lM+d fMokbMj ds iwjc rjQ dh iDdh lM+d vkokxeu ds fy;s iz;ksx esa gSA ?kVukLFky ij et:c jkey[ku }kjk crk;k x;k fd ?kVuk fnukad dks nksigj djhc 11%00 cts og vius QwQk lksusjke ds lkFk ckbd ls Mcjk ls Xokfy;j blh dPph okys jkLrs ij if'pe rjQ vk jgk Fkk tc pkSjklh ?kkVh ou pkSdh ds vkxs 1 fd0eh0 igWaqpk rks ns[kk fd lM+d ij lqjsUnz] jktw rFkk ,d vKkr O;fDr [kMs gS ftuds mRrj rjQ ,d ckbd tks iwjc&if'pe gksdj [kMh gSA jkey[ku us crk;k fd ge yksxksa dh bu yksxksa ls iqjkuh nq'euh gSA rHkh eSaus xkMh jksd nh vkSj xkMh mu yksxksa ds djhc 10&12 QhV ikl igqWap x;h rFkk lqjsUnz us tku ls ekjus dh fu;r ls esjs Åij Qk;j dj fn;k tks esjs lhus rFkk dU/ks ij yxh vkSj eSa xkMh dh rsy Vadh ij flj j[kdj >qd x;k rHkh mlh dPph lM+d ls ihNs ls esjs xkWao ds vklkjke] cknke o ,d vU; vKkr O;fDr vk x;s vkSj lqjsUnz ls dgus yxs jkey[ku dks tku ls ekj nksA rc ejs QwQk lksusjke us mu yksxksa ds gkFk iSj tksMs vkSj igys ds ntZ ekeys esa jkthukek ds fy;s lgefr trk;h rHkh jkLrs ls tkus okys vU; jkgxhj vk x;s vkSj og 6 yksx ckbd ij cSBdj Xokfy;j dh vksj Hkkx x;sA ?kVukLFky ij et:c jkey[ku ds crk;s vuqlkj eSaus jkey[ku dks Loa; rFkk lk{kh vkjksfi;ksa ds LFkku ij dkYifud O;fDr;ksa dks [kMk djk;k x;kA eq[; vkjksih lqjsUnz ds LFkku ij [kMs dkYifud O;fDr ds gkFk [kkyh fiLVy idMkdj fiLVy dk eqag et:c jkey[ku ds lhus esa iwoZ esa yxs ?kko ds LFkku dh rjQ djokdj fiLVy dh cSjy ls ,d IykfLVd dh Mksjh dks ety ,.M ij cka/kdj et:c ds lhus ds ?kko ds fu'kkus rd [khapdj yk;k x;k rks ik;k fd fiLVy dh ety ,.M rFkk ?kkoksa nksuksa ,d lh/k esa gS ftlls irk pyk gS fd et:c jkey[ku ds crk;s vuqlkj LFkku ls xksyh pykus ij et:c dks xksyh yxuk lEHko gSA orZeku esa et:c ds lhus esa nkW;s fuIiy ds nkW;s rjQ ,sMh ls 4-7 QhV Åij ?kko dk xksykdkj fu'kku tks orZeku esa Bhd gks pqdk gS ftldk vkdkj 1x1 ls0eh0 ekik x;kA et:c ds nkfgus gkFk ds cktw esa ,d ?kko dk xksykdkj fu'kku gS tks orZeku esa ghy gksdj ftldk vkdkj 1x1 ls0eh0 ekik x;kA mDr ?kkoksa ds fu'kku ds lkis{k Qfj;knh dh ihB ij dksbZ Hkh ?kko dk fu'kku ugh ik;k x;kA et:c ds crk;s vuqlkj ?kVukLFky ij og Loa; /kVuk ds le; ckbd ij dzkl cSBk gksdj nksuks iSj tehu ij j[ks FksA mlds QwQk lksusjke xkMh ls if'pe 5 QhV nwj [kMs FksA et:c jkey[ku ls lqjsUnz ds LFkku ij [kMs dkYifud O;fDr ds gkFk esa idMh fiLVy dh ety dks et:c ds lhus ds ?kko ds fu'kku ls nwjh 12-7 QhV ekih x;h rFkk xksyh pykus ij cuus okyk dks.k djhc 90 fMxzh ekik x;kA et:c jkey[ku ds vuqlkj [kMs gksus ij vU; vkjksih dkYifud jktw ds LFkku ij [kMs O;fDr dh lqjsUnz ls nwjh 4-0 QhV if'pe lM+d ds chp dh rjQ gS rFkk vkjksih vKkr O;fDr dh nwjh 4-2 QhV 25 M.Cr.C. No. 1473 of 2016 iwjc rjQ gS ¼uD'kk ekSdk layXu½A vkjksih lqjsUnz ds LFkku ls vkjksih dh xkMh dh nwjh 6-6 QhV mRrj ekih x;hA eq[; vkjksih lqjsUnz dh jksM ds chp esa yxs fMckbmj dh nwjh 18 QhV ekih x;hA et:c ds crk;s vuqlkj iquZLFkkiuk ds le; ?kVukLFky ls iwjc fn'kk esa lM+d ds nwljh vksj igkMh ds Åij nks [kEHkksa okyk fctyh dk [kEHkk yxk gS ftldh et:c jkey[ku ls nwjh 100 QhV ekih x;hA et:c jkey[ku ls if'pe&mRrj djhc 65 QhV nwj uhe dk isM yxk gqvk ik;k x;kA orZeku esa ?kVukLFky ds rjQ dh lM+d dPph gS ftldh pkSMkbZ 30 QhV ekih x;h ftl ij yksxksa dk de vkokxeu gSA mDr lM+d ds iwjc fMckbMj ds i'pkr 30 QhV dh iDdh lM+d gS ftl ij Mcjk rFkk Xokfy;j vkus tkus okys nksuks rjQ ds lk/kuksa dk vkokxeu gSA ?kVukLFky ij ?kVuk dh iwuZLFkkiuk ds le; et:c jkey[ku }kjk crk;k x;k fd ?kVuk fnol esa lM+d ,slh voLFkk esa FkhA mlds i'pkr esjs }kjk i`Fkd ls lk{kh lksusjke dh fu'kkunsgh ij ?kVukLFky dk fujh{k.k dj iquZLFkkiuk djk;k x;kA lk{kh lksusjke us crk;k fd ?kVukLFky tkSjklh ?kkVh oupkSdh ds 800 ehVj mRrj Xokfy;j jksM ij ogh dPph lM+d gS ftls et:c jkey[ku }kjk crk;k x;k ijUrq lk{kh lksusjke ds }kjk crk;k ?kVukLFky dk LFkku et:c ds crk;s LFkku ls djhc 240 QhV nf{k.k dh dPph lM+d gSA ?kVukLFky ij lk{kh lksusjke ds crk;s vuqlkj et:c jkey[ku ds LFkku ij dkYifud O;fDr dks xkMh ij mlh rjg cSBk;k x;k tSlk fd ?kVuk ds le; FksA lk{kh lksusjke ds crk;s vuqlkj vkjksih lqjsUnz] jktw o ,d vKkr O;fDr ds LFkku ij dkYifud O;fDr;ksa dks [kMk fd;k x;kA ftlds vuqlkj ?kVuk ds eq[; vkjksih lqjsUnz ds gkFk esa [kkyh fiLVy idMkdj et:c dkYifud jkey[ku ds lhus esa yxs ?kko ds fu'kku dh rjQ IykfLVd dh Mksjh [khapdj ns[kk rks ik;k x;k fd fiLVy dh cSjy dh ety ,.M rFkk ?kko ds fu'kku ,d lh/k esa ik;s x;s rFkk bl fLFkfr esa djhc 90 fMxzh dk dks.k ik;k x;kA bl fLFkfr esa xksyh pykus ij mDr ?kko cuuk lEHko gSA bl fLFkfr esa et:c ckbd ij cSBk gksdj nksuks iSj tehu esa Nq;s gq;s rFkk et:c ds 'kjhj dk vkxs dk Hkkx] psgjk mRrj fn'kk esa gS rFkk vkjksih lqjsUnz ds LFkku ij [kMs O;fDr ds gkFk esa fiLVy gksdj mlds 'kjhj dk vkxs dk Hkkx rFkk eqag nf{k.k fn'kk esa gSA mDr fLFkfr eas vkjksih dkYifud O;fDr lqjsUnz ds gkFk esa idMh gq;h fiLVy ds cSjy dh ety ,.M ls et:c ds lhus ds ?kko ds chp dh nwjh ekius ij 44- 6 QhV ekih x;hA lk{kh lksusjke ds crk;s vuqlkj ?kVukLFky ij vkjksih dkYifud lqjsUnz ds LFkku ls dPph lM+d ds if'pe <yku esa iMs MEcj dh nwjh 22 QhV ekih x;h tks ?kVuk ds le; FkkA et:c jkey[ku ds LFkku ij [kMs dkYifud O;fDr ls fctyh ds Mcy [kEHks dh nwjh 200 QhV mRrj&iwjc iDdh lM+d ds nwljh rjQ igkM ds Åij gS vkjksih lqjsUnz ds LFkku ij [kMs dkYifud O;fDr ls 250 ehVj mRrj dPph lM+d ds ckW;s uhe dk isM+ yxk gSA ?kVukLFky ij lksusjke }kjk crk;k x;k fd vkjksih lqjsUnz }kjk tku ls ekjus dh fu;r ls jkey[ku ds Åij xksyh pykbZ x;h ftlls xksyh dk ,d NjkZ lhus esa rFkk ,d NjkZ nkW;s gkFk dh cktw esa yxk ftlds i'pkr Mcjk jksM dh rjQ ls jkey[ku ds xkWo ds vklkjke] cknke rFkk ,d vKkr O;fDr iwjc rjQ dh iDdh lM+d ls vk;s vkSj dgus yxs jkey[ku dks tku ls ekj nks fQj eSaus jkthukes ds fy;s dgk rc oks yksx ,d jk; gksdj Xokfy;j rjQ Hkkx x;sA esjs }kjk et:c jkey[ku dh eMhdy fjiksVZ dk voyksdu fd;k x;k ftlesa MkWDVj }kjk et:c dh 'kVZ rFkk et:c ds 'kjhj ls fudkys x;s NjsZ tIr fd;s x;s gSA et:c dh esMhdy fjiksVZ esa MkWDVj }kjk xksyh yxus dh nwjh gsrq dksbZ er ugh fn;k x;k gS ftldh Dosjh djus gsrq foospd dks 26 M.Cr.C. No. 1473 of 2016 funsZf'kr fd;k x;kA xksyh pyus dh okLrfod nwjh et:c ds ?kVuk ds le;
igus gq;s diM+ksa ds cSyhfLVd ijh{k.k ds ckn gh lEHko gS ftl gsrq foospd dks vfr'kh?kz cSfyfLVd tkWap gsrq tIr'kqnk izn'kksZa dk ijh{k.k djkus gsrq jkT; U;k;yf;d foKku iz;ksx'kkyk] lkxj Hkstus gsrq funsZf'kr fd;k x;kA esjs }kjk ?kVukLFky dh iquZLFkkiuk ds le; fuEu rF; ik;s x;s %& ¼1½ et:c jkey[ku rFkk ?kVuk ds lk{kh lksusjke ds }kjk crk;s x;s ?kVukLFky dh fLFkfr txg esa fHkUurk ik;h x;hA mDr nksuksa ds }kjk ?kVukLFky iquZLFkkiu ds nkSjku ?kVuk ds le; Qk;j djus okys O;fDr vkjksih lqjsUnz }kjk xksyh pykus dh nwjh vyx&vyx crk;h x;hA ¼2½ ejs }kjk et:c jkey[ku dh esMhdy fjiksVZ dk voyksdu fd;k x;k ftlesa MkWDVj }kjk xksyh ds ?kkoksa esa pkfjax rFkk flftax fy[kk gS tks dkWUVSDV 'kkWV ¼6 bap ds vanj½ esa ik;k tkuk lEHko gS vr% et:c jkey[ku] lk{kh lksusjke ds crk;s vuqlkj xksyh pyus dh nwjh rFkk et:c ds esMhdy esa ?kkoksa dh izd`fr ds vk/kkj ij nwjh esa fcjks/kkHkkl ik;k x;kA ¼3½ iquZLFkkiuk ds le; et:c jkey[ku us crk;k fd lqjsUnz us tc xksyh pykbZ mlds ckn Mcjk rjQ ls ihNs ls dPph lM+d ls vklkjke] cknke o ,d vKkr O;fDr vk;s tcfd lk{kh lksusjke }kjk vklkjke] cknke o ,d vKkr O;fDr Mcjk ls iDdh lM+d dh rjQ ls vk;s vr% mDr rhuksa O;fDr;ksa ds ckjs esa et:c rFkk lk{kh ds c;ku esa fojks/kkHkkl ik;k x;kA ?kVuk ds fo"k; esa fuf'pr vfHker gsrq et:c ds esMhdy nkSjkus tIr diMksa rFkk "kjhj ls fudys NjksZa dks cSfyfLVj ijh{k.k gsrq jkT; U;k;yf;d foKku iz;ksx'kkyk] lkxj HksatsA ?kVuk LFky ij ik;s x;s HkkSfrd lk{; laxzfgr] lqjf{kr ,oa mfpr izdkj ls iSd djus lac/kh foospuk vf/kdkjh dks funsZ'k %& • et:c ds esMhdy nkSjkus tIr'kqnk izn'kksZa dks cSfyfLVd ijh{k.k gsrq jkT; U;k;yf;d foKku iz;ksx'kkyk lkxj HksatsA • ?kVukLFky fujh{k.k fjiksVZ] esMhdy fjiksVZ lkf{k;ksa ds c;ku rFkk vU; fcUnqvksa dh foospuk@tkWap mijkUr oS/kkfud dk;Zokgh djsaA • ?kVukLFky dh iquZLFkkiuk dh ohfM;ksxzkQh lh0Mh0 rFkk QksVkxzk¶l izkIr dj] Mk;jh esa layXu djsaA ¼MkW- vkuUn dqekj ik.Ms;½ oSKkfud vf/kdkjh lhu vkWQ dzkbe eksckby ;wfuV] Xokfy;j** Thus, in this report, the Scientific Officer, Scene of Crime, Mobile Unit, Gwalior has given a specific finding that as per the version of the complainant, injury could have been sustained by him from the gun shot fired from the place which has been disclosed by him. Even if the version of the witness Soneram is considered, then the complainant could have sustained the gun shot injury. Thus, it is clear from the report of the Scientific Officer, 27 M.Cr.C. No. 1473 of 2016 Scene of Crime, Mobile Unit, Gwalior, the only discrepancy in the statements of the witnesses is with regard to the distance from which the gun shot was fired, but according to the Scientific Officer, Scene of Crime, Mobile Unit, Gwalior, the complainant could have sustained the gun shot injury. Thus, the incident doesn't appear to be completely false and there is only discrepancy with regard to the distance from which the gun shot was fired. As the scene of occurrence was recreated after a lapse of one year, therefore, there is bound to be some discrepancies in the statements of the witnesses. Thus, in the light of the report dated 16-12-2016 given by the Scientific Officer, Scene of Crime, Mobile Unit, Gwalior, it cannot be said that the manner in which the incident is alleged to have taken place is completely false.
33. On 13-12-2016 itself a query was raised from C.M.O., Dabra, Distt. Gwalior with regard to the distance from which the gun shot could have been fired. The Doctor by his reply had stated that the distance must have been between 5-7 feets. Proceedings dated 15-12- 2016 reveals that for obtaining the shirt and swab, a letter is being send to the J.A. Hospital and since, the bed head ticket of the complainant is not ready therefore, the same shall be included in the case diary after the same is ready. Subsequently, it appears that the photo copy of the bed head ticket of the complainant was sent by J.A. Hospital Gwalior which has been included in the case diary. On 16-12-2016, the investigating officer once again recorded the statements of some witnesses who have stated that the accused persons were in the agricultural fields on 26-11-2015. How these witnesses could recollect 28 M.Cr.C. No. 1473 of 2016 with so much of authenticity and perfection that on 26- 11-2015, the accused persons were in the fields is a question which is to be decided by the Trial Court therefore, this Court is not making any comment with regard to the correctness of the statements of these witnesses which were recorded after a period of one year of the incident. Thereafter, no substantial progress took place in the investigation.
34. Thus from the appreciation of the facts which are available on record, it is clear that all the investigating officers, including the present one, right from the beginning of the F.I.R. were not conducting free and fair investigation and the entire investigation was tainted with a pre conceived notion that the F.I.R. is false. How, the investigating officer could perceive such notion is a matter to be investigated afresh. However, as the investigation is still under progress, therefore, this Court has restrained itself in appreciating the manner in which the investigation has been done. However, the facts and the manner in which the investigation has been done, has been considered in order to reach to a conclusion that whether the investigation was being done in free and fair manner or it was tainted investigation with pre-conceived notions. This Court after considering the entire facts and circumstances of the case, has come to a conclusion that right from the lodging of the complaint, till the hearing of this case, and surprisingly, even during the pendency of this petition, inspite of the serious concerns shown by the Court, the investigation officer continued with his tainted investigation. Thus, under the facts and circumstances of the case, it would not be proper to allow the investigating 29 M.Cr.C. No. 1473 of 2016 officer to continue with the investigation and it would be proper, if the investigation is withdrawn and handed over to some independent agency.
35. The Supreme Court in the case of State of Punjab v. Central Bureau of Investigation and Ors., reported in (2011) 9 SCC 182 has held as under:-
"30. In the peculiar facts and circumstances of the case, the High Court felt that justice would not be done to the case if the investigation stays in the hands of the local police and for these reasons directed that the investigation of the case be handed over to the CBI. The narration of the facts and circumstances in paragraphs 2 to 9 of this judgment also support the conclusion of the High Court that investigation by an independent agency such as the CBI was absolutely necessary in the interests of justice.
31. Moreover, even though the High Court in the impugned order dated 11.12.2007 did make a mention that in case challan has been filed, then the petition will stand as having become infructuous in the order dated 12.12.2007, the High Court has stayed further proceedings before the trial court in the case arising out of FIR No.82 of PS City I, Moga, till further orders. Thus, the High Court was of the view that even though investigation is complete in one case and charge sheet has been filed by the Police, it was necessary in the ends of justice that the CBI should carry out an investigation into the case.
32. In the recent case of State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010) 3 SCC 571] a Constitution Bench of this Court, while holding that no Act of Parliament can exclude or curtail the powers of the High Court under Article 226 of the Constitution, has cautioned that the extra-ordinary powers of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights.30 M.Cr.C. No. 1473 of 2016
This caution equally applies to the cases where the High Court exercises inherent powers under Section 482 CrPC to direct investigation by CBI for securing the ends of justice.
33. In the facts and circumstances of this case, however, the High Court has held that the state local police was unable to carry out investigation into the cases and for securing the ends of justice the investigation has to be handed over to the CBI. In other words, this was one of those extraordinary cases where the direction of the High Court for investigation by the CBI was justified."
36. After the case was reserved for judgment, on 04.01.2017, an additional affidavit was filed by Yogeshwar Sharma, Addl. S.P. No objection to this affidavit was filed by applicant. In the light of the subsequent affidavit filed by Yogeshwar Sharma, Add. Superintendent of Police, that he is not relative of Naval Kishore and in absence of any objection to the said affidavit by the applicant, this Court accepts the affidavit of Yogeshwar Sharma, the Add. Superintendent of Police. However, the manner in which the tainted investigation has been done, it would be appropriate for the investigating agency to find out that at whose instance and under what circumstances, all the investigating officers were conducting one sided investigation in the matter.
37. Further, by referring to the show cause notices issued by the Superintendent of Police, Gwalior to Ramesh Singh, R.C. Dohare and Sanjay Singh, on 31-12-2016, it was submitted that even the Superintendent of Police, Gwalior is primarily of the view that the investigating officers have committed serious illegalities while conducting the investigation. However, after going through the Show cause notices dated 31-12-2016 issued to R.C. Dohare and Sanjay Singh, it appears that these 31 M.Cr.C. No. 1473 of 2016 show cause notices have been issued on the question of negligence shown by these two persons after the case diary was lost. However, there is nothing in these show cause notices with regard to the illegalities/negligence committed by them during investigation. Thus, although the Superintendent of Police, Gwalior has issued show cause notices to these two persons on 31-12-2016 but as these two notices have not been issued with regard to the illegalities/negligence committed by these two persons during investigation, then it is clear that even these two show cause notices dated 31-12-2016 issued to R.C. Dohare and Sanjay Singh are nothing but an attempt of eye wash.
38. Further, an application was filed by the respondents on 04.01.2017, mentioning that a new S.I.T. has been constituted by order dated 3-1-2017. A detailed reply has been filed by the applicant and has submitted that he has no objection if all the three crime No.s i.e., 186/2015 registered by Police Station Biloua and Crime No. 3/2015 and 22/2015 registered by Police Station Dehat, Dabra, Distt. Gwalior are investigated by the newly constituted S.I.T. In view of the no-objection submitted by the applicant, this Court instead of transferring the investigation to an independent agency, accepts the constitution of the new S.I.T. as per the order dated 3-1- 2017 issued by the Superintendent of Police, Gwalior and hope that a free and fair investigation would be conducted by the newly constituted S.I.T. As the S.I.T. would work under the supervision of Shri Alok Singh, Add. Superintendent of Police, Gwalior and the S.I.T. would also give weekly report to the Superintendent of Police, 32 M.Cr.C. No. 1473 of 2016 Gwalior, then it is expected that these two Senior Police Officers would ensure that the free and fair investigation is done by the newly constituted S.I.T. It is made clear that any deviation from the free and fair investigation would be viewed seriously. However, it is expected that the S.I.T. would also consider the following facts :
i. When the complaint was lodged on 26-11-2015 at 1:30 P.M. then how without wasting a single minute, a Rojnamcha Sanha was written at 1:30 P.M. itself, mentioning that the complaint appears to be suspicious.
ii. In the case of gun shot fire, cloths are considered to be first cover of the body. Why the cloths of the victim Ramlakhan were not seized from the Hospital and why they were allowed to be retained by the Hospital.
iii. When the accused person had appeared before the investigating officer, then instead of arresting them, under whose instructions, their statements were recorded and they were allowed to go?
iv. When the X-ray report of the victim was received on 20-3-2016 showing the presence of foreign bodies in the body of the victim, then under what circumstances, the Case diary of the crime no. 186/2015 was lost?
v. Who made the call details of Mobile Phone No.s
9826224509, 7247552619, 8964805133 and
9977614893 available to the investigating officer, Sanjay Singh and when the print out of these call details were obtained?
vi. When the Scientific Officer, Scene of Crime, Mobile 33 M.Cr.C. No. 1473 of 2016 Unit, Gwalior, has given his report on 16-12-2016 pointing out that the victim could have sustained the gun shot injury from the place as pointed out by the victim, then under what circumstances, the investigating officer had kept the case under suspicion.
vii. When the Scientific Officer, Scene of Crime, Mobile Unit, Gwalior, gave his report on 16-12-2016 with regard to the possibility of commission of offence, then under what circumstances, the statements of other witnesses were recorded on 16-12-2016, to show that the accused persons were in the fields on 26-11-2015?
viii. When already serious allegations against Sudhir Singh Kushwaha made by the complainant, then why the S.I.T. was constituted under the leadership of Sudhir Singh Kushwaha is also a matter which is required to be addressed.
39. Before parting with the case, it is necessary to consider the conduct of Sudhir Singh Kushwaha and Sanjay Singh of making false statements before this Court.
40.(i) False statement by Sudhir Singh Kushwaha, S.D.O. (P), Dabra, Distt. Gwalior with regard to steps taken by him for conducting enquiry into the loss of Police Case Diary.
40. (ii) From the record, it appears after receiving X-ray report on 20-3-2016, it is mentioned in the case diary proceedings that further action shall be taken as per the instructions of superior officer. It also appears that the case diary was handed over to A.S.I. Anantram Singh 34 M.Cr.C. No. 1473 of 2016 Bhadouria on 29-3-2016 on the pretext of preparing reply in the office of Advocate General, Gwalior for filing the same in the present case. However, from Rojnamcha Sanha dated 3-4-2016, it is clear that the fact of non- return of the case diary of crime no. 186/2015 was recorded for the first time. Thus, on 3-4-2016, the police personals were aware of the fact that the case diary is missing and has not been returned, however, for the reasons best known to the police personals, neither any action was taken against Anantram Singh Bhadoriya, nor any attempt was made to reconstruct the police case diary. It appears that on 4-6-2016, for the first time, Sanjay Singh, Town Inspector, wrote a letter to the Superintendent of Police Gwalior, informing him that the case diary of crime no. 186/2015 is missing and therefore, requested that Shri Anantram be directed to return the case diary. It appears that on 23-6-2016, the Superintendent of Police, Gwalior, wrote a letter to Superintendent of Police Morena that Shri Anantram had taken the case diary of crime no. 186/2015 with him and he has not returned the same and as at present Shri Anantram is posted in Morena, therefore, he be directed to clarify the things. The Superintendent of Police, Morena in his turn by his letter dated 18/7/2016 instructed Shri Anantram Singh Bhadouriya to immediately return the case diary. However, no action was taken. Ultimately, it appears that the Superintendent of Police, Gwalior by his letter dated 5-9-2016 directed Sudhir Singh Kushwaha, S.D.O.(P), Dabra, Distt. Gwalior to reconstruct the Police Case Diary as well as to submit a recommendation for departmental enquiry against Anantram. It is not out of 35 M.Cr.C. No. 1473 of 2016 place to mention here that the above mentioned developments do not appear to have taken place because of voluntary act of the police authorities, but it appears that in spite of the pendency of this petition, the proceedings at snail speed were being taken up. From the order sheets dated 10-8-2016, 30-8-2016,7-9-2016, 23- 9-2016,27-9-2016, 7-10-2016, it is clear that time was repeatedly sought by the State Counsel to submit the progress report of investigation. As the case was being listed before this Court repeatedly, therefore, it appears that the police authorities were left with no other option but to take some action in the matter. However, from the record it appears that every thing was being done on paper. Sudhir Singh Kushwaha, S.D.O.(P) is present in the Court. He admitted that he had received the letter of the Superintendent of Police (Gwalior) for reconstruction of case diary and for submission of proposal for departmental action on Anantram on 10-9-2016. But surprisingly, he did not take any action for initiating any enquiry with regard to missing of case diary. Sudhir Singh Kushwaha has also brought his file pertaining to the action taken by him with regard to departmental enquiry against Anantram. The said file was made available by Sudhir Singh Kushwaha for the perusal of the Court. After going through the file, this Court found that no action was taken by Sudhir Singh Kushwaha on the direction of the Superintendent of Police, Gwalior and on the contrary he simply sat over the said order. On 24-10-2016, 9-11- 2016, the case was adjourned for filing the status report. On 25-11-2016, some displeasure was shown by the Court on the progress report submitted by the State and 36 M.Cr.C. No. 1473 of 2016 it was ordered that either the complete case diary be produced along with the status report, or the S.H.O., Police Station Biloua, Distt. Gwalior should remain present before the Court. Only when the personal appearance of the officer was directed by this Court, it appears, the things started moving but still at snail speed. It appears that on 30-11-2016, the S.D.O.(P) recorded the statements of Head Constable Akhilesh Dixit, Sanjay Singh who are posted in Police Station Biloua, Distt. Gwalior. However, Sudhir Singh Kushwaha could not explain that why more than 2 ½ months were taken by him for recording the statements of even those employees who were posted in Police Station Biloua? On 6-12-2016, the case was listed before the Court, however, the S.H.O., Police Station Biloua, Distt. Gwalior was not present, therefore, this Court, adjourned the case to 8-12-2016. On 8-12-2016, Sanjay Singh, S.H.O., Police Station Biloua, Distt. Gwalior was present. After going through the progress report, it was found that once again the investigation is being done in a very casual manner, therefore, certain questions were put to the S.H.O., Police Station Biloua, Distt. Gwalior. A question was put to the S.H.O., that on whose instance, the Call details of the complainant and his witnesses are being called, then he replied "vfHk;qDr ds** and then he immediately stopped. Thus, an inference was drawn by the Court, that the investigation is being done at the instance of the accused persons. As there was a specific allegation against Yogeshwar Sharma, Add. S.P., Gwalior, therefore, this Court after considering the manner in which the investigation was being done, issued notice to the 37 M.Cr.C. No. 1473 of 2016 Superintendent of Police Gwalior, and Yogeshwar Sharma, Add. S.P. Gwalior. It appears that only after 8-12-2016, when the S.P., Gwalior and the Add. S.P. Gwalior were given notices, therefore, the police personals started acting swiftly. On 9-12-2016, Sudhir Singh Kushwah recorded the statement of one Constable Arvind Savita. It is also not out of place to mention that Arvind Savita is also posted in Police Station Biloua, Distt. Gwalior. Thus, it is clear that Sudhir Singh Kushwaha S.D.O. (P), Dabra, Distt. Gwalior, took 3 months to record the statements of three witnesses who were posted in Police Station Biloua Distt. Gwalior itself. It is apparent from the record, the statement of Anantram Singh Bhadouriya was recorded on 15-12-2016. When Sudhir Singh Kushwaha was asked that why he took much of time to record the statement of Anantram Singh Bhadoriya, then he replied in the open Court that as Anantram Singh Bhadoriya had retired therefore, several notices were sent to him and since earlier notices could not be served on Anantram therefore, his statement could not be recorded on earlier occasion. When the file of Sudhir Singh Kushwaha was seen, then it was found that it contains only one notice addressed to Anantram Singh which is dated 13-12-2016 and he was examined on 15-12-2016. Thus, it is clear that for the first time, notice to Anantram Singh was given by Sudhir Singh Kushwaha on 13-12-2016 and not on earlier dates as submitted by him. When Sudhir Singh was asked that why the earlier notices are not kept in the file, then he could not reply and kept silent. Thus, it is clear that Sudhir Singh Kushwaha by making a false statement has tried to mislead this Court. Ultimately, it appears that 38 M.Cr.C. No. 1473 of 2016 after recording the statement of one R.C. Dohare on 16- 12-2016, Sudhir Singh Kushwaha submitted his report dated 16-12-2016 to the Superintendent of Police pointing out that Anantram Singh is prima facie responsible for the misplacing of case diary. Thus, it is clear that the case diary of crime no. 186/2015 was lost/misplaced in the month of March 2016, and only because of the pendency of this petition and only when the notices were issued to the Superintendent of Police Gwalior and Additional Superintendent of Police, Gwalior, the police personals came in action. However, it appears that Sudhir Singh Kushwaha did not hesitate in making false statement before this Court that number of notices were sent to Anantram Singh whereas only one notice dated 13-12- 2016 is available in the office file of Sudhir Singh Kushwaha. Thus, under these circumstance, this Court find it proper to issue Show Cause Notice to Sudhir Singh Kushwaha, S.D.O. (P), Dabra, Distt. Gwalior, as to why proceedings for Contempt of Court be not initiated against him for making false statement before this Court.
41.(i) False statements made by Sanjay Singh, Town Inspector, Police Station Biloua, Distt. Gwalior.
41.(ii) In compliance report dated 09.11.2016, it has been mentioned that under the orders of the Court, case diary has been reconstructed with the help of carbon case diary which is available in the office of SDO (P) Dabra, District Gwalior. During arguments, when Sanjay Singh was asked to produce the reconstructed case diary then he replied that in fact no separate diary has been reconstructed but the diary proceedings of carbon case diary of Crime No.186/2015 have been got typed and the 39 M.Cr.C. No. 1473 of 2016 typed pages are also kept in the carbon case diary of the office of SDO (P), Dabra. Further even from the subsequent case diary proceedings which have been written by I.O., it would be clear that the reconstruction of diary was under progress. Thus, it is clear that false status report was filed along with the affidavit of Sanjay Singh. Therefore, it is clear that Sanjay Singh, T.I., Police Station Biloua District Gwalior had also made false statement on oath before this Hon'ble Court and by misleading this Court had obtained an order from this Court on 09.11.2016 in which it was observed that it appears from the compliance report, sincere efforts are being made by police for reconstructing the case diary.
42. Under these circumstances, let a show cause notice be issued to Sanjay Singh, T.I. Police Station Biloua, District Gwalior as to why proceedings for Contempt of Court be not initiated against him.
43. Office is directed to register the separate proceedings against Sudhir Singh Kushwah, SDO (P) Dabra, District Gwalior and against Sanjay Singh, T.I., Police Station Biloua, District Gwalior.
44. With aforesaid observations, the petition is finally disposed off.
(G.S. AHLUWALIA) Judge (19.01.2017) (ra)