Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rajveer on 10 January, 2019
Equivalent citations: AIRONLINE 2019 MP 1215
1 Cr.R No. 1659/18
THE HIGH COURT OF MADHYA PRADESH
Cr.R.No. 1659/ 2018
(State of M.P. Vs. Rajveer & ors.)
Gwalior, Dated 10/1/19
Shri R.K. Awasthi, Public Prosecutor for the petitioner/State.
Shri Abhishek Sharma, Advocate for the respondents.
1. The revisional powers of this court are invoked to assail rejection of an application u/S. 319 CrPC preferred by the prosecution in S.T. No. 26/17 pending before Additional Sessions Judge Seondha District Datia arising out of an incident which took place on 4/9/16.
2. A Dehati nalisi was lodged where respondents No. 4, 5 and 6 alongwith respondents No. 1, 2 and 3 were alleged with giving kick and fist blows to the deceased Prakash Yadav. The said incident was witnessed by PW-1 and PW-2 namely Sanjeev and Ramswaroop who in their statements recorded u/S. 161 CrPC disclosed the name of all six respondents.
2.1 On a complaint made by the respondents No. 4, 5 and 6 raising the plea of alibi, an inquiry was held by SDOP Seondha District Datia which led to filing of a report accepting the said plea leading to conclusion of investigation by filing of chargesheet only against respondents No. 1, 2 and 3 without arraying respondents No. 4, 5 and 6 herein as accused.
2.2 During trial, statements of four eye-witnesses namely Sanjeev (PW-1), Ramswaroop (PW-2), Bramha Devi (PW-3) and Satendra (PW-4) were recorded who testified that they saw respondents No. 4, 5 and 6 Karan Singh, Kailash and Udal alongwith three other unidentified persons giving kick and fist blows to deceased who was declared brought dead by the doctor of hospital. On the recording of aforesaid implicative testimony against respondents No. 3, 4 and 5, the prosecution and as well as complainant filed two separate applications both u/S. 319 CrPC making a common prayer that 2 Cr.R No. 1659/18 respondents No. 4, 5 and 6 be arrayed as accused in the backdrop of implicative testimony of eye-witnesses PW-1 ,2, 3 and 4. The application of the State was dismissed on merits on 18/12/17 while the similar application of complainant suffered dismissal on 24/3/18, on merits and also due to dismissal of State's application on 18/12/17.
3. Pertinently, it has been apprised by the learned counsel for respondent herein that S.T. No. 26/17 stands concluded by judgment dated 27/11/18 where respondents No. 1, 2 and 3 herein have been acquitted of the charge of murder by giving them benefit of doubt based on contradictory statements of eye-witnesses recorded during investigation and during their examination before the court.
4. Reverting to the facts of the case, it is seen that trial court dismissed the application u/S. 319 CrPC of the State primarily on the ground that though eye-witnesses have made implicative statements against respondents No. 4, 5 and 6 that these respondents having assaulted the deceased but in view of this version being in- contradistinction to their earlier statement recorded u/S. 161 and the contents of Dehati Nalishi, the court below found that it is not a case of availability of more than strong suspicion arising against respondents No. 4, 5 and 6 of having committed the offences alleged.
5. The trial Court seems to have moved on the assumption as if it was deciding the question of guilt of respondents No. 4, 5 and 6 based upon the evidence available on record. The yardstick available to the trial court u/S. 319 CrPC is not as to whether the accused on the available evidence can be convicted or not, but is as to whether more than strong suspicion arises against the persons who are sought to be arrayed as accused based on the testimony of witnesses. As per the decision of three judges bench of the Apex 3 Cr.R No. 1659/18 Court in Hardeep Singh Vs. State of Punjab and Ors. (2014) 3 SCC 92, the criteria of more than strong suspicion which is required at the time of framing of charge is necessary for allowing of an application u/S. 319 CrPC. The relevant portion of said judgment is reproduced below for ready reference and convenience:-
"99. 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 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused. "
6. In the present case the respondents No. 4, 5 and 6 were specifically named as one of the assailants who assaulted the deceased with kick and fist blows. The Dehati Nalishi and as well as the statements of witnesses recorded u/S. 161 further contained similar allegations indicating towards respondents No. 4, 5 and 6 having inflicted the injuries to the deceased. However, the higher police official SDO (P) Seondha Distt. Datia is alleged to have accepted the plea of alibi and also plea on merits raised by respondents No.4, 5 & 6 by submitting exonerative report dated 8/11/16.
6.1 The aforesaid exonerative report cannot be given credence in view of circular dated 25/6/10 issued by the Director General of Police Madhya Pradesh and the order dated 9/5/18 passed by coordinate Bench of this court in Cr.R. No. 968/18 giving judicial validity to the said circular dated 25/6/10, relevant extract of which is 4 Cr.R No. 1659/18 reproduced below:-
Circular dated 25/6/10 ^^mijksDr funsZ'kksa esa ;g Li"V fd;k x;k gS fd vkjksih@lansgh ds vkosnu ij vijk/k dh foospuk izHkkfor ugha gksuk pkfg,A vr% Li"V fd;k tkrk gS fd %& 1& ;fn foospuk ds nkSjku bl izdkj ds vkosnu ;k f'kdk;r i= izkIr gksrs gSa vFkok lekpkj i=ksa esa dksbZ lekpkj izdkf'kr gksrk gS rks vkosnu ;k lekpkj tkWp mfpr ek/;e ls foospd dks Hkstdj tkWp foospuk ds va'k ds :i esa gh djuk pkfg;s fdlh Hkh n'kk esa foospd ls lekukarj vFkok fHkUu tkWp i`Fkd ls izkjEHk ugh djk;h tkuh pkfg;sA^^ Order dated 9/5/18 passed in Cr.R.No. 968/18 Thus, it is clear that the State Government is also of the considered opinion that without withdrawing an investigation from the Investigating Officer, an independent parallel enquiry cannot be conducted by a superior police officer.
As it is being observed by this Court that in various cases, independent parallel enquiries are being done by the superior officers under the orders of the Superintendent of Police and a clean-cheat is being given to the accused persons contrary to the opinion formed by the Investigating Officer, under these circumstances, it is directed that no parallel enquiry shall be conducted by any police officer in any case till the next date of hearing and all the Superintendent of Police are directed to strictly comply the circular dated 25/6/2010.
6.2 In view of above, the ground taken of exonerative report dated 8/11/16 submitted by SDO (P) Seondha District Datia is of no avail to the respondents No. 4, 5and 6.
7. The type of evidence which section 319 CrPC contemplates to be required for allowing arraying of accused is primarily the testimony of PW during trial which can be corroborated by evidence already on record since taking of cognizance. Thus the testimony of witnesses recorded forms substantive cause for invoking section 319 CrPC and while considering tenability of application u/S. 319 CrPC only for corroborative purposes such evidence can be looked into which is already on record in the trial since taking of cognizance of 5 Cr.R No. 1659/18 offence. In this regard, the Apex Court in Hardeep Singh (supra) has held thus:-
"80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319, Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial."
8. When the impugned order of the learned trial judge is tested on the anvil of factual and legal discussions (supra), it is evident that the same cannot be sustained for the reasons infra:-
(i) The trial Court applied a more stringent criteria than the one applicable u/S. 319 CrPC.
(ii) The testimony of witnesses clearly named respondents No. 4, 5 and 6 as one of the assailants coupled with the corroborative evidence on record in shape of Dehati Nalishi, statements of PWs recorded u/S. 161 CrPC which were all implicative in nature qua respondents No. 4, 5 and 6.
(iii) The nature of injuries found on the body of the deceased in the postmortem report were such which in the ordinary course of nature could have been caused by kick and fist blows which the respondents Nos. 4, 5 and 6 were alleged to have given to the deceased at the time of incident. The eye-witnesses Sanjeev (PW-1), Ramswaroop (PW-2), Bramha Devi (PW-3) and Satendra (PW-4) in their testimony during cross-examination have though made implicative statement against respondents No. 4, 5 and 6 of assault but during their cross-examination they turned hostile to the prosecution case, but disclosed that Rajveer, Amar and Sanju @ Sanjeev respondents No. 1, 2 and 3 herein were not present at the scene of crime. However these eye-witnesses have clearly stated in cross-examination that respondents No. 4, 5 and 6 were not only 6 Cr.R No. 1659/18 present but were the persons who executed assault against the deceased by kick and fist blows.
(iv) Learned trial judge seems to have been swayed by the acquittal of respondents No. 1, 2 and 3 in S.T. No. 26/17 by judgment dated 27/11/18.
9. In view of above, this court is of the firm view that looking to the implicative testimony of eye-witnesses Sanjeev (PW-1), Ramswaroop (PW-2), Bramha Devi (PW-3) and Satendra (PW-4) recorded u/S. 161 CrPC, the application of State u/S. 319 CrPC ought to have been allowed based on more than strong suspicion arising against respondents No. 4, 5 and 6 of having committed the offence alleged, thereby rendering them amenable to trial.
10. Consequently, the present criminal revision filed by the State stands allowed and the impugned order of learned trial judge dated 18/12/17 passed in S.T. No. 26/17 is set aside.
11. In view of truncation of impugned order dated 18/12/17, the order dated 24/3/18 dismissing the similar application of the complainant Sanjeev u/S. 319 CrPC dissolves into insignificance and is thus rendered non-existent in the eyes of law by implication.
No cost.
(Sheel Nagu) Judge ojha YOGENDRA OJHA 2019.01.17 12:55:11 -08'00'