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2001 DIGILAW 440 (MP)

TEHSILDAR SINGH v. STATE OF M. P.

2001-05-18

FAIZAN UDDIN

body2001
FAIZAN UDDIN, J. ( 1 ) SHRI Rakesh Saxena, Counsel for the applicant. Shri Padam Singh, Addl. Govt. Advocate for the respondent No. 1/state. Shri Praveen Mishra, Counsel for the respondents Nos. 2, 3 and 4. With the consent of the parties, the revision is finally heard. ( 2 ) THIS revision petition is against the order dated 27-11-2000, passed by Fourth Additional Sessions Judge, Morena in Sessions Trial No. 256/2000, whereby the applicant/accused has been charged for the offence under Section 302 of I. P. C. read with Sections 27 and 25 (i) (b) of the Arms Act. ( 3 ) THE facts leading to filing this case are as under : The incident had occurred on 18-4-2000 at 8/8. 30 a. m. in the morning while complainant Subedar Singh s/o Albelsingh accompanied by his brother Tehsildarsingh and sister Usha was going to the field on the tracter and when he was at some distance of his house, what he saw is that accused Tikamsingh, Prahladsingh and Ramraj came from the front side, accused Ramraj was armed with gun. It is stated that accused Tikamsingh and Prahlad Singh filthyly abused him and also threatened to kill him. Thereafter, it is alleged that accused Ramraj, with intention to kill, fired from his gun at the complanant, Subedar Singh which hit on his abdomen, causing injuries and the blood came out. The incident was witnessed by his brother Tehsildar Singh and sister Usha. The accused-persons thereafter ran away from the spot. The report of the incident was lodged by the complainant himself along with his brother and sister at the police station, which was registered by Shri Vipin Pathak, Head Constable of Police Station, Porsa, who referred the injured to the Primary Health Centre, Porsa. It is stated that during treatement, complainant died and therefore, the offence which was initially registered under Section 307/34, I. P. C. was converted into Section 302 of I. P. C. The dying declaration of complainant was also recorded. The F. I. R. and dying declaration recorded indicated that it was Ramraj s/o Bhagwansingh, Tikamsingh s/o Bhagwansingh and Prahladsing s/o Bhagwan Singh, who caused the death of Subedarsingh, Accused Ramraj was said to have fired, which hit Subedarsingh resulting in death. The F. I. R. and dying declaration recorded indicated that it was Ramraj s/o Bhagwansingh, Tikamsingh s/o Bhagwansingh and Prahladsing s/o Bhagwan Singh, who caused the death of Subedarsingh, Accused Ramraj was said to have fired, which hit Subedarsingh resulting in death. ( 4 ) IN this case, as stated above, the F. I. R. was recorded by Shri Vipin Pathak and he also conducted some part of investigation. Shri S. R. Sankhediya, I. O. is the person, who took over the investigation later on and completed it. According to his investigation, it is Tehsildar, who is accused and he caused death of his brother. He stated that he recorded the statements of Tikamsingh and Prahlad Singh on 16-6-2000. As the dying declaration and the F. I. R. lodged show that it is accused Ramrajsingh, who is said to have fired, the I. O. present in Court, was question as to whether the statement of accuused Ramraj was recorded. After seeing the record/case diary, he stated that the statement of Ramraj was not recorded despite the fact that he was in village with his brothers namely Tikamsingh and Prahlad Singh. This fact as also mentioned in the statements of Tikamsingh and Prahlad Singh said to have been recorded on 16-6-2000 by the Investigating Officer. ( 5 ) ON 1-5-2001, considering the seriousness of the matter, this Court had recorded a detailed order sheet and also directed for issuance of notice to Shri Vipin Pathak, Head Constable of P. S. , Porsa, who registered the F. I. R. and conducted part of investigation and the Dr. D. C. Parashhar, who recorded the Dying declaration of Subedar Singh on 18-4-2000 and subsequently gave statement in writing on 18-6-2000, for their personal appearance before this Court on the next date of hearing, i. e. 3-5-2001. It was also left open to the discretion of the I. G. , Chambal Division and the Supdt. of Police, Morena to address, if they so desired. ( 6 ) ON 3-5-2001, Shri Surendra Singh, I. G. , Chambal Division Bench and Shri Dr. Vijay Kumar, S. P. , Morena both were present before this Court, and also addressed. It was also left open to the discretion of the I. G. , Chambal Division and the Supdt. of Police, Morena to address, if they so desired. ( 6 ) ON 3-5-2001, Shri Surendra Singh, I. G. , Chambal Division Bench and Shri Dr. Vijay Kumar, S. P. , Morena both were present before this Court, and also addressed. ( 7 ) LEARNED counsel for the applicant submitted that the F. I. R. and dying declaration, which are on the record, prima facie, unless they are found to be incorrect, to show that applicant Tehsildarsingh is not at all the author of the crime. The I. O. Shri S. R. Sankhediya questioned by this Court, who on the other hand, stated that he came to know that the brother of deceased himself was the assailant. ( 8 ) LEARNED Counsel for the applicant stated the F. I. R. was sent under Section 157, Cr. P. C. to a Magistrate and under Section 159, Cr. P. C. the accused was formally arrested on 18-6-2000, as he was already in custody in another case registered for the offence under Sections 399, 400, 402, I. P. C. and Section 25/27 of the Arms Act read with Section 11/13 of the M. P. Daketi Adhiniyam. ( 9 ) AS stated by the counsel for the parties and noted above, the F. I. R. and the dying declaration recorded on 18-4-2000 clearly show that it was Ramraj, Tikamsingh and Prahlad Singh, who participated in the incident and accused Ramraj fired at the complainant, which he sustained on the stomach, resulting in death. It is however, noted that the later part of the investigation which was completed by another I. O. Shri Sankhediya, after taking it over, says different thing and turned the narration of facts recorded in the F. I. R. and the dying declaration to different way which has resulted in making the brother of deceased, who is applicant Tehsildar as an accused and not only that inspite of dying declaration and the F. I. R. naming others and the documents being on record, the accused Tehsildar is arrested, challan is filed and the charge has been framed against him by this Court for causing death of his real brother. The documents, i. e. F. I. R. dying declaration of the deceased, recorded by the doctor on 18-4-2000 and the subsequent statement of the same doctor dated 18-6-2000, are there on the record in original. ( 10 ) THIS Court heard all the parties including the Investigating Officers noticee as recorded in earlier order sheet doctor and Shri J. P. Gupta, Sr. Counsel appeared as Amicus Curiae, at length. ( 11 ) A perusal of the record and the documents, especially, the F. I. R. and the dying declaration, shows the involvment of accused Ramraj and the other two companions, who are his brothers. Subsequently, how the prosecution says that it is Tehsildar, who is an accused. Saying so is the statement of the doctor given on 18-6-2000. ( 12 ) LEARNED counsel for the applicant submits that unless the dying declaration recorded is proved to be false the same cannot be ignored. It is stated that ignoring the F. I. R. and the dying declaration, the applicant has been made an accused on the basis of investigetion and the statement of the doctor given subsequently on 18-6-2000. ( 13 ) UNDER the circumstances, counsel for the parties submitted and agreed that the matter is such one which requires fresh investigation by the Central Bureau of Investigation. In the opinion of this Court also, the facts which have emerged require due investigation by the C. B. I. It is not disputed that Subedar Singh had died. It is also not disputed that he died homicidal death. According to the prosecution, documents, i. e. F. I. R. daying declaration, which has recorded on 18-4-2000 shows the innocence of the accused Tehsildar Singh, who on investigation made subsequently and on the statement of the doctor recorded on 18-6-2000 and the investigation, has been made, an accused, as stated by the counsel representing him. ( 14 ) IN view of the above, to avoid miscarriage of justice the matter needs thorough probe. Accordingly, it is directed that the matter shall be investigated by the C. B. I. afresh. All parties to render due co-operation to C. B. I. ( 15 ) COUNSEL for the applicant submits that the applicant Tehsildar Singh is in jail. It is stated that the inquiry by the C. B. I. will take a long time. Therefore, it is prayed that the applicant be released on bail. All parties to render due co-operation to C. B. I. ( 15 ) COUNSEL for the applicant submits that the applicant Tehsildar Singh is in jail. It is stated that the inquiry by the C. B. I. will take a long time. Therefore, it is prayed that the applicant be released on bail. ( 16 ) COUNSEL for the parties heard on the application (M. Cri. P. No. 317/2000, for grant of bail. ( 17 ) HAVING heard counsel for the parties and after considering the facts and circumstances and the material on record, in the opinion of this Court, it is just and proper to release the applicant on bail, on furnishing a personal bond in the sum of Rs. 50,000/- with two solvent sureties in the like amount each to the satisfaction of the Chief Judicial Magistrate, Morena for his appearance before the Court on all the dates fixed by that Court unless otherwise ordered subject to the following conditions :- (1) that the applicant shall attend the Court concerned on every fifteen days after his release on bail; (2) that he shall submit his pass port size photograph and the requisite details of the movable immovable property belonging to him, at the time of furnishing a personal bond, before the C. J. M. concerned; (3) that the applicant shall attend all the dates fixed or given by C. B. I. during investigation and shall not temper with the evidence in any manner and shall not misuse the liberty, failing which his bail is liable to be cancelled and the investigating Agency/competent Court would be at liberty to take necessary steps for his arrest; (4) that the bail bonds shall contain crime number of the police station and before accepting the bail bonds copies of the same shall be supplied to the ADP/app, who shall forward the same to the P. S. concerned; ( 18 ) IN view of what has been stated above, the impugned order framing charge is set aside as the entire matter is being handed over to the C. B. I. for fresh investigation. The C. B. I. if required, shall collect the relevant documents in original from the trial Court, which shall be supplied by Court concerned. ( 19 ) LET the record of the court-below be sent back along with the copy of this order. The C. B. I. if required, shall collect the relevant documents in original from the trial Court, which shall be supplied by Court concerned. ( 19 ) LET the record of the court-below be sent back along with the copy of this order. ( 20 ) PHOTOCOPY of this order to the concerned. Application allowed. .