Madhya Pradesh High Court
Pan Singh vs The State Of Madhya Pradesh Thr. on 11 May, 2017
1
Criminal Revision No.757/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : VIVEK AGARWAL, J.)
Criminal Revision No.757/2015
Pan Singh & Others.
Vs.
State of Madhya Pradesh & Another.
Shri Amit Lahoti, learned counsel for the petitioners.
Shri C.R. Roman, learned Government Advocate for
respondent no.1.
None for respondent no.2.
Date of hearing : 11.04.2017
ORDER
(Passed on 11th May, 2017)
1. This Criminal Revision has been filed under Section 397/401 of the Criminal Procedure Code arising out of order dated 07.08.2015 passed by the Court of learned First Additional Sessions Judge Jaura, District Morena in Sessions Trial No.263/2010, whereby the charges under Sections 294, 147, 148, 307/149 and 302/149 of the Indian Penal Code have been framed against the petitioners.
2. It is the case of the petitioners that an FIR was lodged against the petitioners on 24.10.2009 at Crime No.92/2009 at Police Station Chinnoni, District Morena. This FIR was lodged on the basis of dehati nalish and the version of the prosecution in terms of ocular evidence which is contrary to the medical evidence and therefore the charges are not sustainable and liable to be quashed. In this regard, the petitioners have placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of M.P. v. Sheetla Sahai & Others as reported in 2009 Cri. L.J. 4436. In this case, which pertains 2 Criminal Revision No.757/2015 to the Prevention of Corruption Act, the Hon'ble Supreme Court has held that at the time of framing of charge the material brought on record whether disclose commission of offence or not, must be determined having regard to entirety of materials brought on record by the prosecution and not on part of it. Plea that Court at the time of framing of charge could only look to those materials whereupon prosecution intended to rely upon and ignore others which are in favour of accused, is not tenable. It is also held that if the Court finds two view are possible from materials produced on record, then the charges can be framed, but if only one and one view is possible to be taken, then the accused should not be harassed.
3. Another judgment, which has been relied upon by the petitioners, is in the case of P. Vijayan v. State of Kerala & Another as reported in 2010 Cri.L.J. 1427, wherein it has been held that a Judge while framing a charge has to exercise his judicial mind to the acts of case in order to determine whether a case for trial has been made out by prosecution.
4. In the present case, the dispute is in regard to inconsistency between ocular evidence and medical evidence.
5. Learned counsel for the petitioners submits that since the medical evidence is opposed to ocular evidence as mentioned in the FIR, the charges are not sustainable and the revision deserves to be allowed and the charged as framed by the trial Court should be quashed.
6. On the other hand, the learned counsel for the respondent-State submits that a gun, that too without licence, has been recovered from the petitioners and the statement recorded under Section 161, Cr.P.C. corroborates the 3 Criminal Revision No.757/2015 statements made in the FIR and in view of such submissions, he prays that no interference is called for in the present matter. In this regard, recently, the Hon'ble Supreme Court in the case of Baleshwar Mahto & Another v. State of Bihar & Another as reported in (2017) 3 SCC 152 has held that how the medical evidence is to be matched/tallied with ocular evidence and reiterated minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. It has been held that unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by eyewitnesses, the testimony of eyewitnesses cannot be thrown out.
7. In view of the said judgments and also the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan v. Fatehkaran Mehdu as reported in (2017) 3 SCC 198, wherein the Hon'ble Supreme Court has laid down the principles for scope of interference under Section 397, when charge has been framed and has held that the object of Section 397, Cr.P.C. is to set right a patent defect or an error of jurisdiction or law or perversity which has crept in the proceeding, power of quashing criminal proceedings, particularly, charge framed in terms of Section 228, Cr.P.C. should be exercised very sparingly and with circumspection and that too in the rarest of rate cases, this Court is of the opinion that the present case does not fall within the above parameters of rarest of rare cases calling for interference in the order of framing of charges against the petitioners under Sections 294, 147, 148, 307/149 and 302/149 of the Indian 4 Criminal Revision No.757/2015 Penal Code.
8. In the light of the law laid down by the Hon'ble Supreme Court in the case of Sheetla Sahai (supra), it is apparent that the inconsistency between ocular evidence and medical evidence can be appreciated at the time of evidence and for the present, it cannot be said that only one possible view is apparent pointing out towards innocence of the accused. Therefore, no fault can be attributed to framing of the charge. Accordingly, this revision fails and is hereby dismissed.
(Vivek Agarwal) Judge 11/05/2017 Mehfooz/-