Madhya Pradesh High Court
Mukesh Singh Rawat vs The State Of Madhya Pradesh on 3 August, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF AUGUST, 2022
CRIMINAL REVISIOIN No. 2319 of 2022
Between:-
MUKESH SINGH RAWAT S/O
RAMSVAROOP RAWAT, AGED
AROUND 40 YEARS, OCCUPATION
- REGIONAL PROVIDENT FUND
COMMISSIONER-II, R/O B-58,
PEBBLE BAY COLONY,
HOSHANGABAD ROAD, BHOPAL
(MADHYA PRADESH).
........APPLICANT
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH SHRI
PRIYANK AGRAWAL AND SHRI ATUL GUPTA -
ADVOCATES)
AND
1. STATE OF MADHYA PRADESH
THROUGH POLICE STATION
AARON, DISTRICT- GWALIOR
(MADHYA PRADESH).
2. RAGHUVEER RAWAT S/O BHARAT
SINGH RAWAT, AGED AROUND 33
YEARS, R/O GRAM BANHERI,
POLICE STATION AARON,
DISTRICT - GWALIOR (MADHYA
PRADESH).
2
........RESPONDENTS
(SHRI PPS VAJEETA - PUBLIC PROSECUTOR FOR
RESPONDENT NO.1 / STATE)
(SHRI PRASHANT SHARMA AND SHRI VIRENDRA SINGH
PAL - ADVOCATES FOR RESPONDENT NO.2)
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Reserved on : 1st of August, 2022
Delivered on : 3rd of August, 2022
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This application coming on for hearing this day, the Court passed
the following:
ORDER
This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 14/6/2022 passed by Third Additional Sessions Judge, Gwalior in Sessions Trial No.476/2021, by which the applicant has been summoned as an additional accused under Section 319 of Cr.P.C. as well as all other consequential proceedings.
2. The necessary facts for disposal of the present revision in short are that the complainant Raghuveer Rawat lodged a Dehati Nalishi on 26/5/2021 at 23:50 hours on the allegations that on the issue of old enmity, at about 10:15 PM co-accused Poshan, Banti, Dharmveer, Rajveer, Pushpendra, Atendra and Ashok came to his tube-well in furtherance of common object and started abusing him and also fired indiscriminately. Poshan fired a gunshot on his younger brother Ramnivas from his mouser gun, which hit on the right side of his abdomen. After sustaining the gunshot injury, Ramnivas fell down on the ground. Banti and Rajveer assaulted his father Bharat Singh, as a result, he sustained injury on his legs, head and hands. Vikram Singh and 3 Sughar Singh were present on the spot, who have witnessed the incident. Thereafter, they took Raghuveer to J.A. Hospital on their private vehicle where he was declared dead. His father Bharat Singh has been admitted in the Link Hospital. The above-mentioned persons in furtherance of common object have attached his brother and father, as a result, his brother Ramnivas has expired and his father has sustained grievous injuries. For committing this offence the co-accused Mukesh (applicant) and Saroj have played a direct role. On the basis of this FIR, Crime No.31/2021 was registered in Police Station Aaron, District Gwalior against nine persons including the present applicant. The statements of the witnesses were recorded and accordingly, the police filed the charge- sheet against 11 accused including Saroj Rawat against whom identical allegations were made in the FIR, and kept the investigation pending against the applicant.
3. It appears that at a later stage, the police filed a closure report in respect of the applicant on the ground that from the CCTV footage of the house of the applicant, it is clear that at the time of the incident the applicant was in his house B-58, Pebble Bay Colony, Hoshangabad Road, Bhopal.
4. Prior to that, the complainant had filed an application under Section 193 of Cr.P.C. for taking cognizance against the applicant. The said application was rejected by the Trial Court by order dated 26/11/2021 on the ground that investigation is still pending against the applicant. The said order was challenged before this Court and by order dated 29/4/2022 passed in Criminal Revision No.693/2022 the said revision was dismissed and the following order was passed:-
4Shri Prashant Sharma, Counsel with Shri Veerendra Pal, Counsel for the applicant.
Shri C.P. Singh, Counsel for the State. This criminal revision under Section 397, 401 of CrPC has been filed against the order dated 26.11.2021 passed by the Third Additional Sessions Judge, Gwalior in S.T. No.476/2021, by which the application filed by the applicant under Section 193 of CrPC for taking cognizance against Mukesh Rawat has been rejected on the ground that the investigation is pending against the respondent No. 2.
It is submitted by the counsel for the applicant that during the pendency of this application, the police has filed the closure report and, accordingly, by order dated 11.03.2022, this Court had directed the counsel for the applicant to address on the question of maintainability of this revision in the light of changed circumstance.
The facts of the case are that the police has filed the charge-sheet against 11 persons for offence under Sections 302, 147, 148, 149, 294, 323, 120-B of IPC in Crime No.31/2021 registered at Police Station Aron District Gwalior. However, further the investigation against the respondent No. 2 was kept pending under Section 173(8) of CrPC. Only because of pendency of further investigation, the application filed by the applicant under Section 193 of CrPC was rejected by the Trial Court. However, now the police after completing the investigation has filed the closure report against the respondent No. 2. The next procedure which is to be adopted by the Magistrate is to invite objections from the complainant and then to decide the closure report.
After considering the material collected by the prosecution as well as hearing the objection raised by the complainant, the Magistrate can adopt any of the following procedure:-
(i) reject the closure report and take cognizance.5
(ii) direct the police to conduct further investigation by pointing out the lapses in the investigation or,
(iii) to accept the closure report.
In case, if the closure report is accepted, then the applicant shall again have a remedy to assail the said order. Thus, in view of the changed circumstance, no useful purpose would be served by entertaining this criminal revision.
Accordingly, the criminal revision fails and is hereby dismissed.
5. It is also not out of place to mention here that the closure report is still pending before the concerning Magistrate, however, in the meanwhile, the charges were framed against accused persons including Saroj Rawat and the trial began. The examination-in-chief of Raghuveer Singh Rawat (PW-1) was recorded. Thereafter, an application under Section 319 of Cr.P.C. was filed by the prosecution for summoning Mukesh Rawat-applicant as an additional accused.
6. By the impugned order dated 14/6/2022 the application has been allowed and the applicant-Mukesh Rawat has been summoned as an additional accused.
7. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that once the closure report was pending consideration before the Court of jurisdictional Magistrate, then the Trial Court should not have exercised its power under Section 319 of Cr.P.C. and should have waited for the out come of the closure report. It is further submitted by the counsel for the applicant that the Supreme Court in the case of Brijendra Singh and Others Vs. State of Rajasthan reported in (2017) 7 SCC 706 has held that where the police after concluding the investigation has come to a conclusion that the suspected 6 accused was not present on the spot and he was present at a place which is about 175 km. away from the place of occurrence, then he should not have been summoned as an additional accused and the power under Section 319 of Cr.P.C. should not have been exercised. It is submitted that in the present case also the police after concluding the investigation has given a specific finding that at the time of the incident the applicant was in his house and had also withdrawn certain amount from the ATM and on the basis of the report of the Forensic Science, it was opined by the Investigating Officer that the applicant has been falsely implicated. The said aspect of the matter has not been taken into consideration by the Trial Court while exercising its power under Section 319 of Cr.P.C. It is further submitted by the counsel for the applicant that for exercising power under Section 319 of Cr.P.C. the material has to be something more than which is required for framing of charge and if the material collected by the police is considered, then it is clear that the applicant was not at all present on the place of incident.
8. Per contra, it is submitted by the counsel for the respondent/State that the police has recorded the statement of witnesses under Section 161 of Cr.P.C. and they have specifically disclosed the role played by the applicant. FIR is not an encyclopedia of the incident. The Trial Court has rightly exercised its jurisdiction under Section 319 of Cr.P.C. and has rightly summoned the applicant as an additional accused.
9. The counsel for the respondent no.2 has filed reply to the memo of revision alongwith the postal receipt to show that the said reply has been sent to the applicant by registered post, as he had refused to accept the same.
710. It is submitted by the counsel for the complainant that in fact some of the police personnel were hand in gloves with the accused party. Earlier the brother of the deceased, who was an elected Sarpanch, had pointed out certain forest land to the Forest Department for plantation purposes and accordingly, the accused persons including the applicant started having grudge against the brother of the deceased. Even the forest officials were misbehaved and were not allowed to carry out the plantation work and the forest officials also had made a complaint to the police, but the influential status of the accused party is writ large from the fact that instead of taking action against the accused party, the police pressurized the forest officials to enter into a compromise. Just prior to the incident in question, the complainant party was beaten by the accused party and accordingly, they went to the police station to lodge a report. A police personnel, namely, Balram Rawat, Constable posted in Police Station Arron informed the accused party, as a result, the accused party came to the police station and assaulted the complainant party and thereafter, the incident took place in the field. It is further submitted that so far as the incident of beating which had taken place in Police Station Aaron, District Gwalior is concerned, the complainant party tried to lodge the FIR, but no action was taken and then one application under Section 156(3) of Cr.P.C. and in the said report, status report was filed by the police accepting that Balram Rawat posted in Police Station Aaron had assisted the accused persons. It is further submitted that similar manipulation has been done by the applicant in the investigation also. Although it was claimed by the applicant that on 26-5-2021, he has withdrawn some amount from the ATM, but no such entry was found in 8 his bank statement and according to the bank statement, an amount of Rs.5,000/- was withdrawn on 27/5/2021 and not on 26/5/2021. It is further submitted that clean chit has been given by the police merely on the ground that the applicant was seen in the CCTV footage of his house. The CCTV footage of the house of the applicant was seized on 7/6/2021. It is very easy to manipulate the CCTV footage. The date and timing reflected in the CCTV footage are always fed manually and if a scene is recreated by feeding some incorrect date and timing, then the CCTV would start reflecting the same incorrect date. It is further submitted that the documents sent to RFSL, Gwalior were not received in the same manner and in fact one mobile was found in the packet sent by the police, which was never sent as per the memo and the Pen Drive which was sent as Exhibit-C was never received. However, in the FSL report, two pan- drives have been mentioned, whereas in the Digital Forensic Examination Memo dated 10/7/2021 it is specifically mentioned that one mobile Exhibit-C was found in sealed condition with intact round seal on which Crime Branch, Gwalior was mentioned. It is also submitted that when two photographs of the applicant were sent, then how the concerning RFSL got four photographs of the applicant, which is evident from letter dated 3/11/2021 written by the Director, Cyber Forensic Lab, Bhopal to Superintendent of Police, Gwalior. Furthermore, the applicant never appeared before the Investigating Officer and there is nothing on record to show that the photographs of the applicant was never taken by the police. The comparison has been made by the Cyber Forensic Lab, Bhopal on the basis of photographs of the applicant provided by his wife and in absence of any authenticity, the report submitted by the Cyber 9 Forensic Lab, Bhopal is of no value. Regarding CCTV footage of ATM booth is concerned, it is further submitted that the Investigating Agency did not obtain any certificate under Section 65-B of the Evidence Act from the concerning bank. So far as the CCTV footage collected from the DVR installed in the house of the applicant is concerned, no certificate under Section 65-B of Evidence Act was collected from the wife of the Applicant, from whose possession the DVR was seized, but the certificate under Section 65-B of the Evidence Act was given by one Gaurav Pawar, who had taken out the relevant part from the CCTV footage. Unless and until a certificate under Section 65-B of the Evidence Act is given with regard to the entire CCTV footage, it cannot be said that it was un-doctored or un-manipulated. Furthermore, it is clear from the report of the Cyber Forensic Lab that the comparison could not be made with the CCTV footage collected from the ATM booth. It is further submitted that in reply to the query raised by the police, the applicant himself had stated that he was on leave from 19/5/2021 till 23/5/2021 and had gone in the village where the incident took place. There is nothing on record to suggest that thereafter on 24/5/2021 onwards the applicant ever joined his duties. Although in his self declaration he has claimed that on 24/5/2021 he had worked from home and on 25/5/2021 he had attended the office, but the attendance register of the office or bio-metric presence of the applicant has not been seized by the police. The certificate issued by the Employees Provident Fund office in this regard is also not sufficient to prove that the applicant had ever worked physically in the office on 25/5/2021. The police has neither collected the CCTV footage of any toll booth nor collected toll 10 tax receipts to show that the applicant had returned back to Bhopal on 23/5/2021. It is further submitted that it is well established principle of law that the burden to prove the plea of alibi is heavy on the accused and he has to prove the same by leading cogent and reliable evidence. Since the closure report is an incomplete one and the police has deliberately as well as conveniently ignored various aspects of the matter, which were collected by them, therefore, the Trial Court did not commit any mistake by summoning the applicant as an additional accused. It is further submitted that even otherwise, in the light of the judgment passed by the Supreme Court in the case of Brijendra Singh (Supra), this Court can consider the closure report as the same has been relied upon by the applicant.
11. Heard learned counsel for the parties.
The first question for consideration before this court is "as to whether the Trial Court should have exercised its power under Section 319 of Cr.P.C., specifically when the closure report filed by the police is still pending and whether after refusing to hear the criminal revision filed against the order by which the Trial Court had refused to take cognizance against the applicant, this Court can look into the closure report or not?"
12. The counsel for the applicant had initially tried to project that during the pendency of the closure report the Sessions Court is precluded from exercising its power under Section 319 of Cr.P.C. and to substantiate his submission, the counsel for the applicant has relied upon the judgment of the Supreme Court in the case of Brijendra Singh (supra). After referring to the facts of the said case, the applicant came to 11 paragraphs 14 and 15 of the judgment and submitted that the Court below should not have acted in a cavalier and casual manner and it should have given due importance to the closure report filed by the police.
13. The Supreme Court in the case of Brijendra Singh (supra) has held as under:-
"14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 CrPC to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that the appellants' plea of alibi was correct.
15. This record was before the trial court.
Notwithstanding the same, the trial court went by the depositions of the complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the "evidence" recorded during trial was nothing more than the statements which were already there under Section 161 CrPC recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise 12 its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where a plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty-bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the revision petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing the agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
14. So far as the dismissal of Criminal Revision No.693/2022 by this Court, which had arisen from the order dated 26/11/2021 passed by the Trial Court by which the Trial Court had refused to take cognizance under Section 193 of Cr.P.C. on the basis that investigation is pending is concerned, it is suffice to mention here that during the pendency of that revision, closure report was filed and the complainant had an efficacious remedy to raise an objection before the Magistrate.
15. The reason for refusing to entertain the revision against the order of refusal to take cognizance was that this Court was required to consider the material collected by the police during investigation. The closure report filed by the police is also a part of the investigation and once the police had given an opinion that prima facie no case is made out on the ground that the applicant was not present at the place of incident, then 13 while deciding Criminal Revision No.693/2022 this Court was required to look into the merits of the opinion formed by the police in the form of closure report. The jurisdictional Magistrate was also required to consider the merits of the closure report by considering the same material and thus, this Court refrained itself from taking the closure report into consideration as this Court did not want to usurp the power of the Magistrate, who was required to decide the closure report after giving an opportunity of hearing to the complainant including by recording his statement.
16. So far as the present revision is concerned, it arises out of an order passed under Section 319 of Cr.P.C. The power under Section 319 of Cr.P.C. has to be exercised on the basis of evidence, which has come on record during the trial. Section 319 of Cr.P.C. reads as under:-
319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause (a), the case 14 may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
17. The Supreme Court in the case of Hardeep Singh vs. State of Punjab reported in (2014) 3 SCC 92 has held under:-
"105. Power under Section 319 CrPC is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the 15 guilt of the accused."
18. In order to find out as to whether the evidence which has come on record is more than what is required for framing of charge and less than what is required for recording conviction, this Court will be required to consider the material collected by the police during the investigation. Therefore, while deciding the present revision this Court is to primarily look into the evidence which has come on record before the Trial Court and in order to appreciate the same in the light of the judgment passed in the case of Hardeep Singh (supra), this Court can look into the material collected by the police. Furthermore, in the light of the judgment passed in the case of Brijendra Singh (Supra), this Court is also required to look into the closure report filed by the Police. Under these circumstances, this Court is of the considered opinion that the jurisdiction of this Court in the present case is completely different from that of the revision filed against the order refusing to take cognizance under Section 193 of Cr.P.C. The scope of power under Section 319 of Cr.P.C. is completely different from the scope of framing of charges. The basic material required for exercising power under Section 319 of Cr.P.C. is the evidence recorded before the Trial Court and not the material collected by the police, although the same can be considered for appreciating the evidence which has already come on record. Under these circumstances, this Court is of the considered opinion that the Trial Court was not required to wait for the outcome of the closure report and there is no provision of law which prohibits the Trial Court from exercising its power under Section 319 of Cr.P.C. only because of the fact that the closure report is pending consideration before the jurisdictional 16 Magistrate. Furthermore, in the case of Brijendra Singh (supra) the Supreme Court has set aside the order passed under Section 319 of Cr.P.C. on the ground that the material collected by the police in support of the plea of alibi of the accused is reliable and it has not been held that the Trial Court should not have exercised its power under Section 319 of Cr.P.C. Furthermore, in the case of Brijendra Singh (supra) it has been held that no doubt the Trial Court would be competent to exercise its power even on basis of such statements recorded before it in examination-in-chief, but in a case where plethora of evidence was collected by IO during investigation, which suggested otherwise, the Trial Court was at least duty-bound to look into the same while forming prima faice opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record. It has also been held that what is more troubling is that even when this material was specifically brought to the notice of the High Court in the revision, the High Court too blissfully ignored the said material. Thus, it is clear that even if the Trial Court did not consider the material collected by the police along with closure report, still the High Court has a duty to look into that aspect to find out as to whether much stronger evidence other than mere possibility of their complexity has come on record or not.
19. Under these circumstances, the first question is answer in negative and it is held that even if the closure report is pending consideration before the Court of jurisdictional Magistrate, still the Trial Court can exercise its power under Section 319 of CrPC and in the light of the subsequent order passed under Section 319 of CrPC, the closure report will lose its effect and is not required to be decided by the Magistrate.
17Whether there is any material, much stronger evidence than mere possibility of complexity of applicant is available on record or not ?
20. Although during the course of arguments, it was submitted by the counsel for the applicant that except the closure report, he is not in possession of any other document, but during the course of arguments, this Court found that some of the documents, which are filed along with the closure report, were in possession of Shri Atul Gupta, Advocate who was assisting the arguing counsel. Once the applicant has obtained copy of the closure report which was filed along with the criminal revision, then it cannot be presumed that he had no opportunity to obtain the other collected material.
21. Be that whatever it may.
22. The police after completing the investigation against the applicant filed closure report on 21/12/2021. According to the closure report, the CCTV footage seized from the house of Mukesh (applicant) and the CCTV footage collected from the ATM were sent to Cyber Forensic Lab, Bhopal and since the report of Cyber Forensic Lab, Bhopal was not received, therefore, the investigation against the applicant was kept pending under Section 173(8) of CRPC and the charge-sheet was filed against the remaining 11 accused persons. It is submitted that a report was received from the Cyber Forensic Lab, Bhopal to the effect that CCTV footage collected from the DVR of the house of the applicant contains the photograph of a person similar to that of the applicant.
23. So far as the CCTV footage collected from the ATM is concerned, it was opined that it is not possible to compare the face of the person with the photographs provided by the police. Thus, it is clear that on the 18 basis of photographs found in the CCTV footage collected from the house of the applicant, he was given clean chit in the shape of closure report.
24. From the charge-sheet, it is clear that on 7-6-2021 two passport size photographs of the applicant which were duly identified by Ramkumar Tiwari and Deepak Tomar were seized from the possession of Smt. Krishna Rawat wife of the applicant. Similarly, on the same day, the CCTV footage of the DVR installed in the house of the applicant was seized and the recording was preserved in two Pen Drives of 32 GB each. The pattern for opening the DVR is also mentioned in the seizure memo. It also appears that identification memo was also prepared on 07/06/2021 after noticing the CCTV footage of Close Circuit Cameras installed in the house of the applicant. The said photograph was identified by Dheeraj Shrivastava. On 07/06/2021 one Panchnama seeing the CCTV footage stored in DVR of Close Circuit Cameras installed in the house of the applicant was also prepared.
25. Gaurav Pawar has given a certificate issued under Section 65-B of the Evidence Act, to the effect that while downloading the relevant data from the DVR installed in the house of the applicant, he had not manipulated the same. At the cost of repetition, it once again pointed out that no certificate under Section 65-B of Evidence Act was collected from the wife of the applicant. Police has also collected the roster which was prepared from the office of Employees Provident Fund Organization which was prepared on 13/05/2021, by which duties were assigned. According to that roster, the applicant was to perform work on 24/05/2021 from home, whereas he was to attend the office on 19 25/05/2021 and again on 27/05/2021 he was required to perform work from home and on 28/05/2021 he was required to attend the office and on 31/05/2021 he was required to perform work from home. Similarly, by letter dated 08/06/2021, the ATM Manager, Regional Branch Office of SBI, Bhopal was directed to give the copy of transaction statement as well as to give the CCTV footage of the ATM starting from 11:30 of 26/05/2021 till 00:50 of 27/05/2021.
26. From the case diary, it appears that an amount of Rs.5,000/- was withdrawn on 27/05/2021 at 00:26 hours. However, the person who has withdrawn the amount could not be identified even by Cyber Forensic Lab. What was the need of withdrawing the amount of Rs.5,000/- at 00:26 hours has also not been clarified by the applicant. Furthermore, in absence of any identification, this Court is of the considered opinion that at present, there is nothing on record to show that it was the applicant who had withdrawn the amount of Rs.5,000/- on 27/05/2021 at 00:26 hours.
27. The police has also not seized the attendance register to show that the applicant had attended the office on 25/05/2021. Although the police has shown that two photographs of the applicant as well as CCTV footage of the CDR installed in the house of the applicant were seized on 07/06/2021, but it is clear from the e-mail sent by the applicant that CCTV footage were already sent by the applicant through email to the police on 29/05/2021 at 11:24. Thus, the applicant had sufficient days to re-record the CCTV footage with manipulated date and time. Further, in reply to a query raised by the police with regard to his whereabouts on 26/05/2021, it was replied by the applicant that he went to his village on 20 19/05/2021, thereafter he came back by his vehicle bearing registration No. MP04-CF-0004 by Mohana-Shivpuri-Guna route on 23/05/2021. However, the toll tax receipts were not provided by the applicant to show that he had come back to Bhopal from the said route on 23/05/2021. Furthermore, according to the police case diary, two photographs of the applicant were seized from his wife Smt. Krishna Rawat on 07/06/2021. However, those photographs were never sealed and from the Rojnamchasanha dated 10/07/2021, it is clear that the photographs which were provided by Smt. Krishna Rawat on 07/06/2021, four additional photographs were prepared. Why the police did not take the photographs of the applicant by itself. That clearly shows that the applicant was not cooperating with the police and the material was being collected by the police on the basis of whatever was being provided by his wife Smt. Krishna Rawat on 07/06/2021.
28. Since the CCTV footage collected from the DVR installed in the house of the applicant can be manipulated by re-recording the same after manipulating date and time and in absence of the authentic photographs to show that it was the photograph of the applicant, comparison done by the Cyber Forensic Lab cannot be said to be authentic one. Furthermore, the person who had withdrawn the amount of Rs.5,000/- from the ATM at 00:26 hours on 27/05/2021 could also not be identified by the Cyber Forensic Lab, therefore, it is clear that at present, there is nothing on record to show that the applicant has withdrawn any amount from the ATM on 27/05/2021 at 00:26 hours. Any person in possession of ATM card as well as aware of the PIN can withdraw the amount. Furthermore, the police has not collected the attendance register of the concerning 21 office to show that the applicant had attended the office on 25/05/2021, 27/05/2021, 29/05/2021 and 31/05/2021 as per the roster.
29. So far as the contention made by the Counsel for the complainant that earlier the accused party had beaten the complainant party in the police station is concerned, the police has also recorded the statement of Janki Devi W/o Ramsiya Rawat who has stated that on 26/05/2021 at about 03:00 PM, Arvind Rawat was spreading fertilizers and at that time, all of a sudden, son of Poshan namely Abhiraj crossed the road by running, as a result, he narrowly escaped from an accident. However, Abhiraj sustained injury on his leg and on this issue, Ramsiya, Rajveer, Poshan etc. assaulted Arvind. After some time, compromise took place between family of Arvind and Poshan etc. Thereafter, they came to know that Arvind has consumed poison and Arvind has gone to the police station to lodge the report. Poshan etc. also followed them and went to the police station. From police station, Poshan informed that in the police station, he has a fight and, therefore, the family members of the co- accused should also come to the police station and thus, the contention of the counsel for the complainant that in the early hours of 26/05/2021 the accused party had beaten the complainant party in the police station is also correct in the light of the statement of Janki W/o Ramsiya.
30. Furthermore, it is clear from the report of Cyber Forensic Lab that as per the memo sent by the Superintendent of Police, Gwalior, one hard disc of DVR marked as Ex. A, one Pen Drive marked as Ex. A1 and one Pen Drive marked as Ex. C were sent, but on opening the same, instead of Pen Drive marked as Ex. C, one mobile was received by Cyber Forensic Lab. Thus, it is clear that there is a clear doubt with regard to 22 the articles which were sent to the Cyber Forensic Lab.
31. Be that whatever it may.
32. This Court has already come to a conclusion that it cannot be said that the person seen in the videograph of the CCTV footage collected from the house of the applicant is that of the applicant. Furthermore, in the light of the possibility of the manipulation by manually manipulating the date and time of the recording, coupled with the fact that no certificate under Section 65-B of the Evidence Act was collected from Smt. Krishna Rawat from whose possession, CCTV footage of the DVR installed in the house of the applicant was taken and in absence of identification of the applicant in the CCTV footage of the ATM of 27/05/2021 at 00:26 hours, coupled with the fact that no explanation has been given by the applicant as to why he went to ATM to withdraw the amount of Rs.5,000/- in the wee hours, this Court is of the considered opinion that the police has failed to collect sufficient material to show that the applicant was in Bhopal at the time of incident. Furthermore, it is well established principle of law that the defence of plea of alibi is to be proved by the accused by leading cogent and reliable evidence. The evidence which has been collected by the police is not sufficient and in fact, the police has filed closure report on surmises and conjectures without there being any foundation.
33. So far as the allegations made against the applicant in the FIR is concerned, it is suffice to mention here that the FIR is not an encyclopedia. The name of the applicant is specifically mentioned in the FIR. The police has also collected the recorded telephonic conversation of co-accused Poshan with Pancham and the transcript has also been 23 prepared. From which, it is clear that the co-accused Poshan who is alleged to have fired gunshot was threatening the complainant party. The police has also recorded the statements of the witnesses under Section 161 of CrPC in which they have specifically stated that the applicant had also threatened the complainant party and had also threatened that since he is Commissioner and his wife is SLR and his brother-in-law is T.I., therefore, he will teach a lesson to the complainant party and the applicant was also instigating his family members / accused persons to settle the dispute by killing Bharat Singh, Vikram and Ramniwas. In the statement of the witnesses, it is specifically mentioned that one white colored four wheeler vehicle also tried to run over the complainant party. Mukesh was also in the four wheeler. He assaulted Rajveer by iron rod on his legs. Thereafter, Mukesh also kept his leg on the head of Bharat the injured witness. When Ramniwas tried to rescue his brother Bharat, then Mukesh exhorted the accused Poshan to kill him, as a result, Poshan fired gunshot causing injury on the abdominal region of deceased Ramniwas. There are specific allegations against the applicant in the statements of the witnesses recorded under Section 161 of CrPC. Even in the Court evidence, Raghuveer Singh Rawat (PW-1) has specifically alleged against the applicant and the allegations made in the statement under Section 161 of CrPC, have been reiterated in the Court evidence.
34. In view of the specific allegations made against the applicant by Raghuveer Singh Rawat in his Court evidence, this Court is of the considered opinion that the Trial Court did not commit any mistake by entertaining the application filed under Section 319 of CrPC.
35. Accordingly, the order dated 14/6/2022 passed by Third Additional 24 Sessions Judge, Gwalior in Sessions Trial No.476/2021 is hereby affirmed.
36. Before parting with this order, this Court would like to mention that this Court was not inclined to mention the inherent lapses in the closure report by giving a detailed findings, but since the counsel for the applicant insisted on paragraph 15 of the judgment passed in the case of Brijendrar Singh (Supra) and pointed out that the Supreme Court while deciding the case of Brijendra Singh (Supra) has also mentioned that "what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material." Since the counsel for the applicant also argued the matter in detail with regard to the correctness of the closure report filed by the police, therefore, under these circumstances, this Court was left with no other option but to consider the evidence of Raghuveer Singh Rawat (PW-1) in the light of the FIR, statement of the witnesses under Section 161 of CrPC, closure report as well as the statement of Janki W/o Ramsiya. However, this Court would like to clarify that all these observations have been made just in order to verify as to whether the evidence of Raghuveer Singh Rawat (PW-1) is sufficient to summon the applicant as an additional accused or not. This finding should not be construed as a finding of fact. The Trial Court is directed to decide the trial strictly on the basis of the evidence which would come on record without getting prejudiced or influenced by any of the findings given by this Court. It is once again reiterated that these findings have been given only at the insistence by the counsel for the applicant and are just 25 confined to verify as to whether the evidence of Raghuveer Singh Rawat (PW-1) is sufficient to summon the applicant as an additional accused under Section 319 of CrPC in the light of the judgment passed by the Supreme Court in the case of Hardeep Singh (supra) or not.
37. With aforesaid observations, the revision is dismissed.
(G.S. AHLUWALIA) JUDGE Arun* ARUN KUMAR MISHRA 2022.08.03 15:38:14 +05'30'