Madhya Pradesh High Court
Dinesh Pachori vs The State Of Madhya Pradesh Thr on 21 February, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- CRR No. 121/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No 121/2016
Dinesh Pachori and another
Versus
State of Madhya Pradesh
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Shri Devendra Sharma, learned counsel for the applicants.
Ku. Chitra Saxena, learned Panel Lawyer, for the State.
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ORDER
(21.02.2017 ) The applicants is aggrieved by the order dated 29.9.2015 passed by Second Additional Sessions Judge, District Shivpuri, (MP) in Sessions Trial No. 199/2015, in which the Second Additional Sessions Judge has framed the charges against the applicants for commission of offence punishable under Sections 406, 411 and 435 of Indian Penal Code.
2. Briefly stated facts are that the present applicants are alleged to have facilitated the sale of 640 bags of sugar misappropriate by the driver and conductor of the Truck No. MP 06 HC 0948, who were entrusted with the transportation of the sugar bags. By doing so, the applicants have allegedly committed offence punishable under the sections indicated above. The prosecution has narrated its story in a manner that the owner of the truck was given assignment to participate 640 bags of sugar, each weighing 50 Kgs. In furtherance thereto, the owner of the truck entrusted the transportation of these goods to the persons named Vijay and Kalla. These persons -( 2 )- CRR No. 121/2016 stopped the vehicle before arrival of destination and are alleged to have unloaded the commodity and sold it to a person named Mukesh, who purchased the same knowing it fully well that the same is stolen goods. Thereafter, Vijay and Kalla are alleged to have set the truck ablaze causing criminal mischief. The FIR was registered against the individuals and the charge sheet was presented.
3. The Court below has framed the charges against the present applicants for commission of the offence under Sections 406, 411 and 435 of IPC, which is a subject matter of challenge before this Court vis-a-vis the present applicants.
4. Learned counsel for the applicants carried this Court through the charge sheet and contended that except the memorandum under Section 27 of Indian Evidence Act shown to have been executed by the present applicants, there is no material to implicate them in the alleged offence charged against them. It was also submitted that the memorandum under Section 27 of the Indian Evidence Act is an exception to provision of Section 25 of Evidence Act. Hence a single line of this memorandum was admissible that the accused kept a particular article at a particular place. Except that line remaining portion of the memorandums is not admissible and therefore, it is not an evidence against the applicant in the eyes of law. The memorandum of applicant is nothing except a confessional statement of accused before police officer which was not admissible under the provision of Section 25 of Evidence act and therefore, the same cannot be basis for framing charges against the present applicants.
5. To the contrary, learned counsel for the respondent -( 3 )- CRR No. 121/2016 highlighted the gravity of the incident in which the accused persons have committed a breach of trust, have sold the commodity and have caused criminal breach by setting the truck ablaze which clearly deserves to be dealt with a heavy hand and the applicants cannot be exonerated of such charges. With respect to the specific contention of the respondent regarding the availability of admissible evidence against the present applicants, learned counsel for the respondent was not able to offer any fair explanation.
6. Having considered the matter carefully, this Court is of the considered opinion that the contentions of the learned counsel for the applicants has force in it, as the perusal of the charge sheet reflects participation of the applicants vaguely and without there being any supportive material. It is also pertinent to point out that in the instant case, the entrustment of the commodity is admittedly to Vijay and Kalla and Mukesh is implicated for buying the said commodity. However, with respect to the role of the present applicants in commission of the said offence, charge sheet does not shed any light. The person cannot be put to trial without any material available on record; in this regard, the observation of Hon'ble Supreme Court in Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135, is relevant, which is reproduced as under:
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to -( 4 )- CRR No. 121/2016 sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (See Union of India v. Prafulla Kumar Samal)."
7. In this view of the matter and considering the fact that there is no clinching evidence available against the present applicants, which would eventually lead to their discharge from the offence indicated above, the instant revision application is hereby allowed. The applicants are discharged from the offence punishable under Sections 406, 411 and 435 of Indian Penal Code.
(S.K.Awasthi) Judge.
(yogesh)