Madhya Pradesh High Court
Lakhan Kurmi vs Ram Gopal Dubey on 1 March, 2012
1
M.Cr.C. No.3052 of 2007
HIGH COURT OF JUDICATURE MADHYA
PRADESH, JABALPUR
SB: HON. SHRI N.K.GUPTA,J
Misc. Criminal Case No.3052/2007
Lakhan Kurmi & another.
-Vs-
Ram Gopal Dubey & another.
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Shri Sanjay Patel, Advocate for the applicants.
Shri Brijesh Choubey, Advocate for the respondent
No.1.
Shri G.S.Thakur, Panel Lawyer for the respondent
No.2-State.
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ORDER
(Passed on 1st day of March, 2012) By the instant application filed under Section 482 of Cr.P.C., the applicants have challenged the order 28.2.2007 passed by the Additional Sessions Judge, Damoh in Criminal Revision No.32/2006 by which the order dated 20.12.2005 passed by the JMFC Damoh (Shri Manoj Kumar Tiwari) in Complaint Case No.316/2004 was reversed and it was directed to frame the charges for commission of offence punishable under Sections 147, 323, 324, 429 read with Section 149 of IPC.
2. Brief facts of the case are that the respondent No.1/complainant had lodged a complaint before the JMFC Damoh with the pleading that on 23.12.1995 all accused persons, out of them four were police officials, came to the field of the complainant and asked about Chandu and Raghvendra. Thereafter 2 M.Cr.C. No.3052 of 2007 they started assaulting the complainant. It is alleged that Lakhan Kurmi also assaulted the victim by barrel of a gun causing him injury on left side of his head. Thereafter, on the instigation of accused No.1 to 4, remaining accused had assaulted the victim by fists and sticks. Thereafter, they entered into the house and took a sum of Rs.10,000/- from a box. When witnesses Swami Prasad, Vishnu Ram, Murli Chamar, Darbari and Kallu Thakur came to save the victim, then accused persons broken the irrigation motor and pipes of the victim. Witness Halle was threatened not to work with the complainant in future. Some of the accused persons took the witness Halle in the house of Ramgopal and broken the tiles of the roof of the house. Some firing from firearms was also made and thereafter Ramgopal was taken to the Police Station and kept behind the bars. A fake case under Section 151 of IPC was prepared. The victim was released on 28.12.1995. Due to injuries, he could not lodge the FIR. However, he sent an FIR to the higher police authorities by registered post. On 26.12.1995 Hakle had also sent a complaint whereas Mannulal and Sarju had also sent a complaint to the Collector. Thereafter a complaint was filed on 1.2.1996 before the Court below. After considering the evidence under Sections 200 and 202 of Cr.P.C, the trial Court has registered the complaint for commission of offence punishable under Sections 324 and 429 of IPC. The accused persons were summoned. After registration of the complaint and evidence before charge was led by the complainant. After completion of evidence before charge, the trial Court heard both the parties on the point of framing of charges. Vide order dated 3 M.Cr.C. No.3052 of 2007 20.12.2005, learned JMFC Damoh found that no offence under Section 324 or 429 of IPC is made out against the accused persons, and therefore all the accused persons were discharged from such offences. The complainant preferred a revision before the Revisionary Court and vide order dated 28.2.2007 the Revisionary Court reversed the order passed by the Magistrate and directed to frame the charges of offence punishable under Sections 147, 323, 324, 429 read with Section 149 of IPC with the pretext that no meticulous appreciation of evidence was required by the Magistrate at this stage.
3. Learned counsel for the applicants has submitted that since Chandu was son of Ramgopal, who was harden criminal and required by the police, therefore some of the accused persons went to the house of Ramgopal, which was situated in his field, but no such assault or any mischief was done by any one. The complainant has implicated not only the police officials but other enemies of the village in the matter without any basis with the help of some pattent witnesses. He prepared a cooked case. Learned Additional Sessions Judge did not consider the plea under Section 197 of Cr.P.C. raised by the accused persons, and therefore learned counsel for the applicant has placed his reliance upon the judgment of the Hon'ble Apex Court in the case of "P.K.Pradhan Vs. State of Sikkim", (AIR 2001 SC 2547).
4. It is also submitted that at the time of framing of charges under Section 227 of Cr.P.C., Court has sufficient power to assess the evidence adduced by the prosecution, and therefore learned 4 M.Cr.C. No.3052 of 2007 Magistrate could appreciate the evidence led by the prosecution. In this context, learned counsel for the applicant has placed his reliance on the judgment of the Hon'ble Apex Court in the case of "Union of India Vs. Prafulla Kumar Samal", (AIR 1979 SC 366), and therefore it is prayed that Revisionary Court has erred in re-appreciating the evidence without any basis. It is prayed that the order passed by the Revisionary Court may be set aside.
5. On the other hand, learned counsel for the respondent No.1 has submitted that no meticulous appreciation of evidence could be done by the Magistrate, and therefore the order passed by the learned Magistrate was not correct. Interference was required by the Revisionary Court, and therefore the order passed by the Revisionary Court is just and proper. Learned counsel for the respondent No.1 has invited attention to the para 10 of the order passed by the Revisionary Court to show that charges could be framed for the offences, and therefore the order passed by the Revisionary Court may be maintained.
6. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, I am of the view that it is a complaint case, which was tried in a procedure of warrant trial, and therefore after conclusion of prosecution's evidence prior to framing of charges, procedure given under Section 245 of Cr.P.C. is to be followed. Under such circumstances, the judgment passed by the Hon'ble Apex Court in the case of Prafulla Kumar Samal (supra) is not applicable in the present case, because it is related to the provisions 5 M.Cr.C. No.3052 of 2007 of Section 227 of Cr.P.C., which is related to a session's trial. However, according to the provisions of Sections 244 and 245 of Cr.P.C., it is clear that in a warrant trial, complainant is required to produce the evidence and opportunity of cross examination be made available to the accused persons, and thereafter it was to be assessed by the trial Court as to whether any charge of any offence can be framed? Under such circumstances, the cardinal principle relating to framing of charges always be read i.e. if the evidence adduced by the prosecution is considered as it is, then whether the accused persons can be convicted for any offence and if answer to that question comes in an affirmative manner, then charges for that offence may be framed. Therefore, in the present case where it was a warrant trial of a complaint case and evidence before charge was led by the prosecution, then it is for the Magistrate to look after the entire evidence as to whether any accused could be convicted on the basis of such evidence, if no further rebuttal is given by the accused persons. The learned Additional Sessions Judge has erred in holding that detailed appreciation of evidence was not required.
7. If the entire matter is seen carefully, then it would be apparent that from very beginning the case was registered for commission of offences punishable under Sections 324 and 429 of IPC, whereas prima facie there was no evidence that the victim was assaulted by any deadly weapon or any sharp cutting weapon. No medical report was submitted before the trial Court, and therefore offence under Section 324 of IPC could not be registered. It could be registered for 6 M.Cr.C. No.3052 of 2007 commission of offence punishable under Section 323 of IPC.
8. Similarly, it is not a case that some animal was killed by mischief, and therefore no offence under Section 429 of IPC could be registered. The learned Additional Sessions Judge in the revision did not try to see the provisions of Section 429 of IPC before passing the order that no offence under Section 429 of IPC could be made out, because there was no case of killing or maiming of any animal. On the contrary, it was a case in which all the accused persons destroyed and damaged one water motor and pipes of the victim, and therefore at the most offence under Section 427 of IPC could be constituted. The learned Additional Sessions Judge in the order passed in the criminal revision did not appreciate that initially the complaint was registered for commission of offences punishable under Sections 324 and 429 of IPC and evidence before charge was led for only these two offences, then without having any power under Section 482 of Cr.P.C., learned Additional Sessions Judge could not pass such an order for a detailed enquiry and to frame the charges for the offences for which case was not registered at all. It appears that the learned Additional Sessions Judge found that it is a case of misuse of powers done by the police, and therefore without perusal of evidence, passed the order by which the order passed by the learned Magistrate was reversed without any basis.
9. If the evidence adduced by the prosecution is perused, then it would be clear from para 16 of the statement given by the complainant Ramgopal (PW-2) 7 M.Cr.C. No.3052 of 2007 that incident took place where he was lying in the field whereas his motor and pipes were one kilometer away from the spot and when such property was damaged he was not present to that spot. Similarly, it is not stated by any of the witnesses that any of them was taken one kilometer away from the house of Ramgopal, and therefore it is apparent that false allegations were made against the accused persons that they destroyed water pump (motor) or pipes. Under such circumstances, the learned Magistrate has rightly held that no offence under Section 427 of IPC (Magistrate has mentioned 429 of IPC) was made out.
10. As far as beating is concerned, the complainant remained in the jail for only three days. He has admitted that he was sent for his medical examination with the help of police constable after his arrest, but thereafter he took a somersault that he was not sent for any medical examination though he had requested before the Executive Magistrate. However, no medical report is submitted in support of the complaint. It was alleged in the complaint and statement of complainant that more than 11 persons assaulted him in a very bad manner, then he must have sustained severe injuries and therefore when he was released from the custody, he should have got treated himself, and therefore he could produce the treatment papers before the trial Court, but no such treatment paper was produced.
11. Similarly, it is alleged that one FIR was sent to the SHO, Police Station Pathariya District Damoh whereas one complaint was sent to the Collector. Similarly, witnesses Halle and Sarju had also sent two 8 M.Cr.C. No.3052 of 2007 different complaints to the Collector. But none of the complaints was exhibited by any witness before the trial Court. Such complaints were filed along with the complaint, but by perusal of those complaints, it appears that there is no receipt of any police person or office of the Collector of those complaints. No postal receipt was produced by the complainant or any witness before the trial Court, and therefore it cannot be said that such type of complaints were sent by anyone.
12. However, the complainant has produced his documents before the trial Court. Though those documents were not proved, but if documents are in favour of the accused persons, then such documents can be read in favour of the accused persons, because these documents were prosecution documents. If the complaints sent by Halle and Sarju are perused, then it was mentioned in them that Sub Inspector of Police Station Pathariya, Constable Lakhan and 30-40 unknown persons came to the spot and they assaulted the victim Ramgopal. By such complaint, it would be clear that upto 26.12.1995, the witnesses were not in a position to ascertain that which accused assaulted the victim whereas no Sub Inspector was made accused in the complaint. But such type of omnibus allegations made in such a complaint only indicate about the presence of Constable Lakhan and other persons, no specific presence of other accused has been shown in those complaints, and therefore if the witnesses are now telling the name of accused persons specifically, then certainly their statements are after thought statements, which cannot be believed.
9 M.Cr.C. No.3052 of 200713. As far as Lakhan is concerned, statement of witness Halle (PW-1) is important. He has admitted in his cross examination that accused Lakhan was a Head Constable and person, who was assaulted him was Head Constable whereas in the complaint it is clearly mentioned that Lakhan Kurmi Constable. It means that a person who assaulted victim Ramgopal was a different Lakhan, who was a Constable, whereas the accused who was brought before the Magisterial Court being Lakhan was Head Constable. Under such circumstances, the identity of Lakhan is also comes in dispute.
14. It is apparent that Chandu was son of victim Ramgopal for whom police had made search in the house. Ramgopal has examined his servant Halle and related witnesses, but no FIR is proved. No medical report was established to confirm the testimony of Ramgopal whereas there is lot of contradictions between the statements of various witnesses with their previous statements under Section 200 and 202 of Cr.P.C. Also it cannot be said that identity of any accused persons was established and looking to the FIRs sent by various witnesses, except the name of Lakhan, no name of any accused persons was disclosed, and under such circumstances it cannot be said beyond reasonable doubt that any of the accused persons had assaulted the victim Ramgopal. It was for the prosecution to establish its own case beyond reasonable doubt against the accused persons. In such circumstances, no charge for commission of offence punishable under Sections 323 or 427 of IPC even could be framed against any of the accused persons. Similarly, no offence under Section 429 may 10 M.Cr.C. No.3052 of 2007 constitute. In such circumstances, the learned Additional Sessions Judge has committed an error in reversing the order of the learned Magistrate without any cognate reasons. Therefore, it would be proper to set aside the order of the Revisionary Court by invoking inherent powers under Section 482 of Cr.P.C.
15. Consequently, the present application filed under Section 482 of Cr.P.C. by the applicants is hereby allowed. The order dated 28.2.2007 passed by the Revisionary Court in Criminal Revision No.32/2006 is hereby set aside. Also complaint Case No.316/2004 pending before the JMFC Damoh is quashed.
16. A copy of this order sent to JMFC concerned for information and compliance.
(N.K.Gupta) Judge 01.03.2012 Ansari.