Madhya Pradesh High Court
Dilip Singh vs The State Of Madhya Pradesh on 3 April, 2019
HIGH COURT OF MADHYA PRADESH
1 Criminal Revision No.1692/2019
(Dilip Singh and Another Vs. State of M.P.)
Gwalior Bench:
Dated:03/04/2019
Shri A.R. Shivhare, learned counsel for the petitioners.
Shri B.S. Bhadoriya, learned Public Prosecutor for the
respondent-state.
With consent, heard finally.
This criminal revision under Section 397/401 of Cr.P.C. has been preferred against the order dated 18/03/2019 passed by II Additional Sessions Judge, Ambah, District-Morena in Sessions Trial No.116/2018 whereby the learned Court below has framed the charge under Sections 294, 341, 323/34 and 307/34 of IPC.
Precisely stated facts of the case are that FIR under Section 323, 341, 294 and 34 of IPC was lodged against the petitioners and two others namely Gaurav Tomar and Anil Tomar on dated 13/06/2017 on the allegations that all the named accused persons assaulted the complainant and abused him at Nahar Ki Pulia, Near Village Harichand Ka Pura Ambah, District-Morena. FIR was registered and investigation was carried out. During course of investigation, petitioners preferred a complaint to the higher authorities seeking fair investigation, which resulted into enquiry conducted by the SDOP Ambhah, District-Morena who gave a report and exonerated the present petitioners from any such involvement. The report is placed as Annexed as A/3. Investigation against two co- accused Gourav and Anil was continued.
HIGH COURT OF MADHYA PRADESH 2 Criminal Revision No.1692/2019 (Dilip Singh and Another Vs. State of M.P.) It appears that the trial Court took cognizance against the petitioners exercising power under Section 193 of Cr.P.C., on the application filed by the complainant therefore, four persons were arrayed as accused in the trial Court. Petitioners abjured their guilt and moved an application under Section 227 of Cr.P.C. for discharge, but same got rejected by the impugned order, therefore, this revision has been preferred.
It is the submission of counsel for the petitioners that the trial Court erred in framing charges in respect of Section 307 of IPC because the tenure and texture of complaint and FIR dated 13/06/2017 indicates that the complainant Sonu suffered physical abuse only through sticks (lathi) and infact accused persons took him to the police station. Learned counsel for the petitioners referred the statement of the complainant Sonu which was taken on the same day i.e. 13/06/2017, in which he narrated the story and admitted the fact regarding sustaining injuries by lathi.
Another eye witness Nitesh also recorded his statement on 14/07/2017 and narrated the story in same vein. Interestingly, another eye witness Dharmendra Singh (who happened to be brother of complainant Sonu) also narrated the story in the like manner on dated 14/07/2017 but it appears that the said narration was not sufficient to involve the petitioner for offence under Section 307 of IPC, therefore, supplementary statement of Dharmendra Singh was taken on HIGH COURT OF MADHYA PRADESH 3 Criminal Revision No.1692/2019 (Dilip Singh and Another Vs. State of M.P.) 28/07/2017 in which for the first the time, he referred the fact that the accused persons fired gun shot over Sonu and they took Sonu to the police station in Scorpio car. On the basis of such omnibus allegations, at such belated stage, Police Authority very cleverly referred to the concerned doctor for opinion in which no such indication was made regarding any fire arm injury, but the doctor explained the injury by writing a letter dated 18/07/2017 to the Station House Officer, Ambah, in which he raised some doubt about some black spot in head and advised for X-ray for seeking opinion from Ophthalmologist. Although no such report has been taken, but on the basis of such vague allegation, offence under Section 307 of IPC has been clamped over the petitioners and they are facing trial because on the basis of impugned order, application for discharge has been turned down.
Learned counsel for the petitioners on the basis of various documents filed with the revision petition which are part of charge- sheet, also submits that the investigation has tried to improve upon the case only for over implication in respect of inclusion of offence more serious in nature. No ingredients of offence under Section 307 of IPC exist compelling the petitioners to face the trial. Petitioners are ready to face the trial under Section 323, 341, 294 of IPC of the same nature and Section 307 of IPC is abuse of process of law.
Learned Public Prosecutor for the respondent/State opposed the HIGH COURT OF MADHYA PRADESH 4 Criminal Revision No.1692/2019 (Dilip Singh and Another Vs. State of M.P.) prayer and submits that trial would decide the controversy in which petitioners shall have the chance to lead evidence and plead and prove their part of innocence, if any. He prayed for dismissal of this revision.
Heard the learned counsel for the parties, at length, and perused the record.
It is the case where petitioners are facing trial under Section 307 of IPC. As per the submissions, some disputes arrived between complainant Sonu and the petitioners regarding sale of liquor and therefore, they charged over him for his activities and they themselves took the complainant to police station for doing illegal activities. Complainant Sonu himself in his statement dated 13/06/2017 recorded under Section 161 of Cr.P.C. referred the incident in such a fashion which indicates that no fire arm was involved. Similarly, statements of Nitesh and Dharmendra dated 14/07/2017 indicate the same flow of investigation which suddenly takes a turn when supplementary statement of Dharmendra dated 28/07/2017 was taken in which for the first time he involved use of Katta and gun by the accused persons. Surprisingly, the said inclusion does not find place in earlier statement of Dharmendra because after one month of FIR, statement was registered, therefore, Dharmendra had sufficient time to recall the incident and refresh his memory but he did not prefer to do so. Surprisingly, police authorities also sent a letter to the doctor HIGH COURT OF MADHYA PRADESH 5 Criminal Revision No.1692/2019 (Dilip Singh and Another Vs. State of M.P.) concerned making an attempt to validate their action and concerned doctor who gave earlier opinion without reference of any fire arm injuries or referring to any injury of the victim, again, gave an opinion that some black spot is appearing in the x-ray therefore, matter be referred to the Ophthalmologist.
From perusal of the FIR, it appears that no report from Ophthalmologist has been obtained. It appears that it is total eye- wash so that petitioners may suffer the rigors of trial for the offence under Section 307 of IPC and later on, if they are acquitted, well and good and if not then certainly investigation has no accountability in this regard. Duties of Doctor and Investigating Officer appear to be motivated when they took such steps for over implication of the petitioners. No explanation is offered on behalf of the respondent- state to justify the supplementary statement and exigency for the same when complainant Sonu and Nitesh and Dhrmendra Singh in categorical terms never referred the use of fire arm till 14/07/2017.
Even in the supplementary statement, Dharmendra has tried to narrate the incident in a very casual and cryptic manner. He never referred that who was holding the weapon but makes an omnibus statement that the accused persons were armed with Katta and gun and fired over complainant Sonu. Such statement; that too after a considerable period of time when he had the time to retrieve the incident chronologically but failed to do so appears to be vague.
HIGH COURT OF MADHYA PRADESH 6 Criminal Revision No.1692/2019 (Dilip Singh and Another Vs. State of M.P.) Therefore, in the considered opinion of this Court, the trial Court grossly erred in framing charge under Section 307 of IPC. When prima face, no ingredients of Section 307 of IPC is made out then petitioners should not have suffered rigors of such offence and the complainant party should not be given such leverage and luxury to implicate the accused persons at their whims.
Resultantly, impugned order dated 18/03/2019 passed by II Additional Sessions Judge, Ambah, District-Morena in Sessions Trial No.116/2018 is hereby set aside and the trial Court is directed to re- constitute the charge as per the discussion referred above and proceed in accordance with Section 228 of Cr.P.C.
Petition stands allowed and disposed of accordingly.
(Anand Pathak)
vc Judge
VARSHA CHATURVEDI
2019.04.05 16:23:48 -07'00'