Madhya Pradesh High Court
Karan Singh vs The State Of Madhya Pradesh on 8 January, 2013
1 Criminal Rev No.242/2012
HIGH COURT OF MADHYA PRADESH : JABALPUR
(SINGLE BENCH : HON'BLE SHRI M.A. SIDDIQUI, J)
Criminal Rev No.242/2012
Karan Singh& Others APPLICANTS
VERSUS
The State of Madhya Pradesh RESPONDENT
Shri Manish Datt,Sr. Adv with Shri Shashank Upadhyay , Advocate for
applicants.
Shri Ramesh Kushwaha P.L.. for respondent/State.
Shri Satyam Agarwal, Advocate, for complainant.
Order Reserved on 13.12.2012
Order Passed on 8 .01.2013
ORDER
This criminal revision u/s 397/401 Code of Criminal Procedure,1973 (hereinafter referred to for short 'Cr.P.C.') has been filed in order to quash the order dated 18.01.2012 passed by 3rd Additional Sessions Judge, Tikamgarh in Sessions Trial No.179/2008 (State of M.P. v. Kishori Dimar ) by which invoking the powers u/s 319 Cr.P.C all petitioners have been made accused persons with co-accused person who has already been tried.
2. undisputed fact of the case is that Pretiraja (PW 1) lodged report on 9.8.2008at 18.50 with PS Baldeogarh district Tikamgarh against ten persons (including the petitioners) that on 9.8.2008 at 4.30 to 5 p.m. Petitioners with Kishori Lal Dimar committed murder of his brother Halke alias Narendra Singh by firing guns and by beatings. Allegations against Brajendra Singh son of Khalak Singh Bundela, Pushpendra 2 Criminal Rev No.242/2012 Singh son of Khalak Singh and Kishori are that they were armed with guns and they fired guns. Police registered offence u/ss 147, 148, 149, and 302 of IPC vide Crime No.213/08 and investigated the matter. During the course of investigation an application was moved that the petitioners are falsely implicated in the case so an inquiry be made and an inquiry was made by officers and charge sheet was not filed against the applicants. During trial after recording the evidence of Pretiraja (PW
1) and Pushpendra Singh son of Ginniraja (PW 2) trial Court took cognizance against the petitioners u/s 319 Cr.P.C and made accused against which this petition has been filed to quash the impugned order passed by learned third A.S.J.
3. I have heard both the sides and perused original record.
4. Learned counsel for the applicants submits that as per post mortem report, one gun shot injury is on the person of deceased so there is allegation against accused Kishori Dimar who has caused that injury and the petitioners who had not charge sheeted because they have not committed any crime.
5. On the other hand, learned Panel Lawyer appearing for State and learned counsel for objector/complainant oppose the arguments advanced by learned counsel for the applicants and have submitted that in post mortem report there are three gun shot injuries on the person of deceased and allegation is against three persons ie. Kishori, Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh that they were carrying guns and they fired guns so primafacie there is evidence for committing offence against them.
6. Learned counsel for the applicants submits that so far the other eight applicants are concerned, there is no slightest allegation of over act which can be said to have taken by these applicants i.e. Karan Singh, Rajendra Singh, Guncha Dimar, Bhagwana Dimar, Harju, Pooran and Sattu. They have been falsely implicated due to enmity and there is no slightest evidence.
7. On the other hand, learned Panel Lawyer appearing for State and learned counsel for objector/complainant oppose the arguments 3 Criminal Rev No.242/2012 advanced by learned counsel for the applicants and have submitted that main accused is Kishori, Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh and name of all applicants is in FIR and statement u/s 161 Cr.P.C and their names have also been narrated by the main witnesses Pretiraja (PW 1) and Pushpendra Singh son of Ginniraja (PW 2) at the time of trial and there is allegation that these accused persons have fired with gun and other accused persons who were having Kulhari, Farsa were exhorting to kill. They further submit that the overt act is not in FIR and statement u/s 161 Cr.P.C and they were confronted that overt act has been attributed first time in the Court.
8. Learned counsel for the petitioners places reliance in Kailash Dwivedi V. State of M.P. and another ((2005) 11 SCC 182) in which it has been held for the purpose of Section 319 and 401 Cr.PC -Power to proceed against person other than accused-During pendency of trial and after examination of material witnesses, application under S. 319 filed by complainant to include applicant as accused, on ground that during the course of trial applicant's participation in offence u/s 304/34 IPC had been established- Trial Court rejected the said application. Having regard to facts that apart from presence of the appellant no other over act was attributed to him in the FIR, the prosecution did not send him for trial after investigation. Held trial Court was justified in rejecting the application and High Court in revision erred in reversing the order of trial Court without properly taking into consideration the relevant factors. Learned counsel for the petitioners places reliance in Sarabjit Singh V. State of Punjab and another AIR 2009 11 SC 2792) in which it has been held S.319 Summoning additional accused exercise of power Order under S. 319 can not be passed only because first informant or one of witnesses seeks to implicate other persons sufficient and cogent reasons are to be assigned by Court so as to satisfy the ingredients of the provisions. As per allegation remained unrebutted they will result into conviction.
9. On the other hand learned Panel Lawyer appearing for State and 4 Criminal Rev No.242/2012 learned counsel for objector/complainant placed reliance on Ram Pal Singh and Ors. v. State of U.P & Anr. AIR 2009 SC 1723 where in it has been held that for summoning of additional accused pre-requisite satisfaction of Court from evidence about complicity of person not charged appellants though named in FIR, complainants eye witness also testifying as to their involvement in murder, order issuing summons against appellants not liable to be interfered with. They also placed reliance in the case of Suman v. State of Rajsthan and another AIR 2010 SC 518 where in it has been held that S.319 adding new person as accused named in FIR but not charge sheeted by police, can be proceeded against u/s 319.
10. As far as involvement of applicants Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh is concerned they have not named in FIR and in statement u/s 161 Cr.PC during the course of investigation their specific overt act is there that they fired gun and fire arm injury were caused to disceased so there is primafacie case against these two persons Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh .
11. As far as involvement of other seven applicants Karan Singh, Rajendra Singh,Guncha Dimar, Bhagwana Dimar, Harju, Pooran and Sattu is concerned, in FIR and statement u/s 161 Cr.P.C there is no overt act attributed to them. Mere their presence was there so without overt act it can not be said that they were participating in the crime.
12. Looking to the facts and circumstances of the case this revision petition is partly allowed and cognizance taken by learned 3rd Additional Sessions Judge, Tikamgarh in Sessions Trial No.179/2008 (State of M.P. v. Kishori Dhimar ) vide impugned order against seven applicants i.e. Karan Singh, Rajendra Singh,Guncha Dimar, Bhagwana Dimar, Harju, Pooran and Sattu is not warranted and no primafacie case is against them hence cognizance taken against them is here by quashed.
13. As far as involvement of two applicants Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh is concerned, as per above discussion primafacie case is there and 5 Criminal Rev No.242/2012 impugned order can not be interfered so this petition is dismissed for the above two applicants/petitioners Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh and they will be tried with accused Kishori by trial Court.
14. Office is directed to send the original record to 3rd Additional Sessions Judge, Tikamgarh forthwith for trial of Kishori and these two applicants i.e. Brajendra Singh son of Khalak Singh Bundela and Pushpendra Singh son of Khalak Singh according to law.
(M.A.SIDDIQUI) JUDGE Ag/