Madhya Pradesh High Court
Somesh Gupta vs The State Of Madhya Pradesh on 15 February, 2018
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Revision No. 752 / 2011
Somesh Gupta and others
Vs.
State of Madhya Pradesh and another
Shri Manish Datt, learned Senior Advocate with Shri Rahul Sharma,
Advocate for the applicants.
Shri Rajesh Tiwari, learned Government Advocate for the
respondent no. 1 / State.
Shri Prakash Upadhyay, learned Advocate for the respondent no.2 /
complainant.
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Whether approved for reporting : (Yes / No).
ORDER
(Delivered on 15th day of February, 2018) The applicants have preferred this criminal revision under Section 397 / 401 of the Code of Criminal Procedure against the order dated 6.4.2011 passed by the Court of Sessions Judge, Damoh in S. T. No.202/2010, whereby an application under Section 319 of the Code of Criminal Procedure filed by the complainant / respondent no. 2 has been allowed directing the applicants to be tried for the offence punishable under Sections 302 or 302/149 of the IPC.
2. Facts, in brief, giving rise to this petition are that on 20.10.2008 at about 9:30 pm in Bajaria Ward No.1, Damoh, main accused Sanjay Sen, who is husband of the complainant / respondent no. 2, caused gunshot injury to Dilip Rai, cousin brother of respondent no. 2, who died on the spot. At that time, Kavita Rai / respondent no. 2 / complainant was accompanying him on a motorcycle. With regard to the incident, one eye witness and near relative of the deceased Chakresh lodged a FIR in the Police Station Kotwali, Damoh which was registered as Crime No. 630/08 for the offence under Sections 147,148, 2 149, 341, 302, 294 of the IPC and Sections 25/27 of the Arms Act at it was alleged that at the time of incident, the applicants were also accompanying with the main accused Sanjay Sen and during the incident, applicant Amit Bajaj @ Golu also fired at the deceased. During the investigation it was found that the deceased received only one gunshot injury which was caused by the main accused Sanjay Sen and the applicants did not play any role in the incident. After investigation, charge sheet was filed only against the main accused Sanjay Sen and the applicants were not charge sheeted. After commencement of the trial before the Sessions Judge, Damoh, on behalf of respondent no. 2 Kavita Rai, an application under Section 319 of Cr.P.C. was filed and by the impugned order, at the fag end of the trial against the main accused Sanjay Sen, the said application was filed with a finding that there is prima facie sufficient evidence against the applicants to be tried them with the main accused Sanjay for committing murder of deceased Dilip Rai for the offence under Sections 302 or 302/149 of the IPC. Considering the facts and circumstances of the case to the effect that the FIR was lodged immediately containing the name of the applicants. The applicants have also been named in the merg report. In the statement recorded under Section 161 of Cr.P.C., the witnesses have disclosed the applicants' name with regard to their involvement in the incident. Thereafter, all the accused persons were absconding for long time. Record of the case also shows that with a view to save the aforesaid accused persons, the police have misused its powers and during the trial, the evidence has come on record showing involvement of the applicants in the incident. Therefore, this is a fit case to pass order under Section 319 of Cr.P.C. to array them as accused and to be tried with the main accused Sanjay Sen. Hence, this petition has been filed 3
3. Learned Senior Advocate appearing for the applicants has challenged the impugned order on the grounds that prima facie there is no material or evidence to summon the applicants / accused to be tried with the main accused Sanjay Sen. Chakresh (PW-8) who lodged the FIR has been declared hostile. He has denied the fact that he named the applicants at the time of recording of the FIR. Similarly, in his statement recorded under Section 164 of Cr.P.C. he has categorically denied that the applicants were involved in the incident. Another eye witness Vikram (PW-1) and Dipak (PW-3) have also not disclosed any fact showing involvement of the applicants in the incident. There is no evidence except the statement of Kavita Rai (PW-12) / respondent no. 2 against the applicants. Her statement so far as the applicants is concerned, prima facie it is not trustworthy and also not sufficient to take action against the applicants under Section 319 of Cr.P.C. as she has stated that at the time of incident, applicant Golu fired on the deceased and caused injury to the deceased and second fire was made by her husband Sanjay at his brother Dilip Rai which also caused injury to Dilip Rai and thus, Dilip Rai received two gunshots injuries while on the medical evidence, Dr. N. K. Patel (PW-2) who conducted postmortem on the dead body of the deceased has categorically stated that there was only one gunshot injury on the left side of the chest and the statement of Kavita (PW-12) / respondent no. 2 only discloses the presence of the applicants on two motorcycles with the main accused Sanjay Sen. There is no any other overt act of the applicants to infer their common object to commit murder of the deceased with the main accused Sanjay. Therefore, prima facie neither the offence punishable under Section 302 nor 302/149 of the IPC is made out. A person cannot be put on trial without any sufficient material with regard to such heinous crime merely on the ground of conjectures, surmises or suspicion. Hence, the impugned order cannot be held to be just, proper and legal or having propriety because it causes injustice to the 4 applicants. Hence, the same be set-aside. In support of his contention, learned Senior counsel has placed reliance on a judgment of the Constitutional Bench of the Apex Court in the case of Hardeep Singh v. State of Punjab and others (2014) 3 SCC 92.
4. Learned Govt. Advocate appearing for the State has argued as usual in support of the impugned order passed by the trial court.
5. On behalf of respondent no. 2 / complainant it has been contended that the impugned order is legal, just and proper and in accordance with law and it does not require any interference. Learned counsel has further submitted that there is sufficient material to try the applicants / accused by invoking the powers under Section 319 of Cr.P.C. as in this case during the investigation all the relevant witnesses have disclosed the facts that the applicants were involved in the incident but the police with a view to save them has filed the charge sheet only against the main accused Sanjay. Against the applicants, complaints were made but no action was taken. Therefore, the aforesaid application was filed and the learned trial Court has considered all the aspects, material and evidence available on record and passed the order in accordance with law. Hence, the revision petition be dismissed.
6. In support of his contention, learned counsel for respondent no. 2 has placed reliance on a judgment of the Apex court in the case of Ram Pal Singh and others v. State of U.P. (2009) 4 SCC 423; in which it has been held that "where the applicants were named in the FIR as accused and were also named so by the complainant in his evidence during the trial, High court committed no error in issuing directions with regard to summoning of the applicants." Further reliance is placed on another judgment of the Apex Court in the case of Suman v. State of Rajasthan and another 2009 AIR SCW 7078; in which it has been held that "a person whose name in the FIR or in the 5 complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319, Cr.P.C., if from the evidence collected/ produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused." Learned counsel for respondent no. 2 has also placed reliance on another judgment of the Apex court in the case of Rajendra Singh v. State of U.P. and another (2007) 7 SCC 378; in which it has been held that "if the trial of the co-accused is concluded, the said conclusion of trial cannot have the effect of nullifying or making the said order infructuous." In the present case, during the pendency of this revision petition, trial against the main accused Sanjay is concluded but this circumstance will not make the impugned order infructuous as laid down by the Apex Court.
7. Having considered the contentions of learned counsel for the parties and on perusal of the record, the main question for consideration is that whether there is a prima facie sufficient evidence to invoke the powers under Section 319 of Cr.P.C. to try the applicants in the trial launched against the main accused Sanjay. The Constitutional Bench of the Apex court in the case of Hardeep (supra) has considered and clarified all the aspects with regard to exercising the powers under Section 319 of Cr.P.C. The Hon'ble Apex court has framed Question (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial and answered as under :-
117.1. In the case of Dharam Pal v. State of Haryana (2014) 3 SCC 306, the Constitutional Bench has already held that after committal, cognizance of an offence can be taken 6 against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.
117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
8. Similarly, the Apex Court has framed Question (iv) "What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted and answered as under :-
7117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
The degree of satisfaction has been clarified in para 106 of the judgment which is as under :-
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 8 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.
9. The aforesaid finding of the Constitutional Bench of the Hon'ble Apex court has made it clear that what is the meaning of the word "evidence" used in Section 319 (1) of Cr.P.C. and what is the meaning of "it appears from the evidence", in other words; under what degree of category of evidencing material is required to invoke the powers under Section 319 of Cr.P.C.
10. Keeping in mind the aforesaid pronouncement of the Hon'ble Apex court, in view of this court, there is no evidence on record of such nature or degree or category which can be said to be prima facie sufficient to invoke the powers under Section 319 of Cr.P.C., as in the present case Chakresh (PW-8) who lodged the FIR has been declared hostile during the investigation. His statement under Section 164 of Cr.P.c. was recorded where he has also denied the fact that the applicants were involved in the incident. Therefore, the facts and circumstances of the case with regard to naming the present applicants as accused in the FIR is also immaterial. Eye witness Dipak Rai (PW-3) has also denied the fact that the applicants were involved in the incident. There is no other evidence against the applicants except the statement of kavita Rai (PW-12) and relevant portions of her statement are reproduced here as under: -
...................eSa jkt esa 9-30 cts vius ek;ds ls fudyh Fkh fnyhi eksVj lkbfdy pyk jgk Fkk ml ij eSa cSBh Fkh rFkk nwljh eksVj lkbfdy ls nhid jk; o pØs'k jk; Hkh lkFk esa tk jgs FksA eSa rFkk esjs lkFk ds lHkh yksx bdjkj frjkgk ls fuEek dDdk dh nqdku ds ikl igqaps mlh le; lkeus ls nks eksVj lkbZfdysa vk;haA mu eksVj lkbZfdy esa ls ,d 9 eksVj lkbZfdy lkses'k xqIrk pyk jgk Fkk vkSj ml eksVj lkbZfdy ij vfHk;qDr lat; lsu cSBs Fks rFkk foDdh Bkdqj Hkh mlh eksVj lkbZfdy ij cSBs FksA nwljh eksVj lkbZfdy ij foDdh xqIrk pykus okys ds :Ik esa rFkk xksyw ctkt mlds lkFk ihNs cSBk FkkA bu nksuksa eksVj lkbZfdy us gekjh eksVj lkbZfdy dk jkLrk jksdk vkSj ikapksa eksVj lkbZfdyksa ls uhps mrjs vkSj xksyw ctkt us ekÅtj ls xksyh pyk;h tks fnyhi jk; dks yxhA nwljh xksyh lat; lsu us ekÅtj ls pyk;h vkSj fnyhi dks xksyh yxh FkhA esjs HkkbZ fnyhi jk; dks nksuksa rjQ ilfy;ksa ds cktw esa nksuksa rjQ fu'kku Fks gkFk esa o dksguh esa Hkh fu'kku vk;s FksA fnyhi tehu ij fxj iM+k FkkA ogha ij txnh'k iVSy vkSj nhid jk;] pØs'k jk; us fnyhi dks mBk;kA lat; ds lkFk tks yksx eksVj lkbZfdy ls vk;s Fks lHkh us ge yksx fnyhi dks ysdj ftyk fpfdRlky; igqaps FksA tgkWa ij MkWDVj us fnyhi dks ns[kdj e`r ?kksf"kr dj fn;k FkkA The aforesaid evidence of Kavita Rai (PW-12) prima facie so far as the other accused persons are concerned, has no ring of truth.
11. Dr. N. K. Patel (PW-2) has found one entry wound and one exit wound of one gunshot on the chest of the deceased. Therefore, it is clear that two persons have not fired at the deceased and not caused separate injury seeing and considering two separate entry wound and exit wound on the body of the deceased. Kavita Rai (PW-12) has probably named the applicant / accused Golu as a second shooter.
Undoubtedly, at this stage appreciation of evidence is not required but looking to the other evidence probate value of the evidence which is being considered for invoking the powers under Section 319 of Cr.P.C., should have been prima facie trustworthiness. If the statement is patently unbelievable then there is no need to act upon such evidence.
12. Apart from it, except applicant Golu, nothing has been stated about the role they played in furtherance of the common object and they assembled with common object to kill the deceased. The incident has taken place in the market. Merely on the basis that they 10 were accompanying with the co-accused Sanjay Sen and Sanjay Sen on account of his previous rivalry with the deceased Dilip Rai caused gunshot injury to him it cannot be said that all the applicants / accused had common intention with accused Sanjay Sen. From the record it reveals that the main accused Sanjay Sen who is the husband of the complainant / respondent no. 2 Kavita Rai, had no good relation with her and on account of it, the incident had taken place, therefore, the applicants have no grudge or motive against the deceased and in her statement, nothing has been narrated to infer the motive of the applicants / accused to take part in the incident with accused Sanjay Sen. In the aforesaid circumstances, merely on the basis of the aforesaid statement of Kavita Rai (PW-12) without corroboration from any other material, prima facie it cannot be said that there is sufficient material evidence to prosecute the applicants for commission of offence punishable under Sections 302 or 302/149 of the IPC.
13. In view of the aforesaid discussion, this Court is of the view that the impugned order is not sustainable as it is not in accordance with law. Hence, this revision petition is allowed and the impugned order dated 6.4.2011 passed in S.T. No.202/2010 is hereby set-aside.
A copy of this order be sent to the concerned court below for information and its compliance.
(J.P.GUPTA) JUDGE JP/-
Digitally signed by JITENDRA KUMAR PAROUHADate: 2018.02.16 11:23:31 +05'30'