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Madhya Pradesh High Court · body

2006 DIGILAW 1028 (MP)

Gajraj Singh v. State of M. P.

2006-08-29

S.S.DWIVEDI

body2006
ORDER 1. The applicant has preferred this revision under section 397/401 of the Criminal Procedure Code feeling aggrieved by the impugned order dated 10.2.2006 passed by the Additional Sessions Judge, Ujjain in Session Trial No. 266/2004 whereby trial Court allowed an application filed on behalf of the prosecution under section 391 of the Criminal Procedure Code and took the cognizance against the present applicant for the offence punishable under sections 302 and 120-B of the Indian Penal Code. 2. Brief facts of the case are that at Police Station, Raghavi District Ujjain registered a case under sections 302 and 120- B of the Indian Penal Code for the murder of one Raju against Laxminarayan and other accused persons and the case has been committed for trial before the Sessions Court, which is presently pending before the Additional Sessions Judge at Ujjain as Session Trial No. 266/2004. In this case, learned Public Prosecutor has filed an application under section 319 of the Criminal Procedure Code with the allegation that there are material evidence on record that present applicant Gajrajsingh is also involved in this incident and due to his instigation, present accused persons have caused the murder of one Raju on the date of incident, therefore, prayed for taking cognizance against the present applicant Gajrajsingh for the offence punishable under sections 302 and 120- B of the Indian Penal Code. Learned trial Court, after hearing both the parties vide impugned order dated 10.2.2006 allowed the aforesaid application filed under section 319 of the Criminal Procedure Code and took the cognizance against the present applicant and ordered for issuance of the arrest warrant against applicant Gajrajsingh. Feeling aggrieved by the aforesaid impugned order the applicant has preferred this revision petition. 3. I have heard the learned counsel for the parties and perused the record. 4. It is submitted by the learned counsel for the applicant that no cogent evidence on record, on which basis cognizance can be taken against applicant Gajrajsingh in the aforesaid case. Feeling aggrieved by the aforesaid impugned order the applicant has preferred this revision petition. 3. I have heard the learned counsel for the parties and perused the record. 4. It is submitted by the learned counsel for the applicant that no cogent evidence on record, on which basis cognizance can be taken against applicant Gajrajsingh in the aforesaid case. The only fact which has come in the statement of some witnesses that deceased Raju who was the Sarpanch of the concerned village and present applicant Gajrajsingh were friends and both of them constructed some shops in the village and thereafter some dispute arose in between them, and only due to the dispute with regard to money or cost of the aforesaid constructed shop in the village, it is observed that applicant/accused Gajrajsingh is the person who is the root of the incident wherein deceased Raju has been murdered by other co-accused persons. But such type of evidence is not on record and learned trial Court has committed error in holding the aforesaid application filed on behalf of the prosecution under section 319 of the Criminal Procedure Code, therefore, prayed for setting aside of the impugned order passed by the trial Court. 5. Per contra, learned Government Advocate supported the impugned order and submits that prosecution witnesses specifically stated that there was some dispute in between deceased Raju, Sarpanch and the present applicant with regard to some money dispute for construction of shops in the village and due to that, Raju has been murdered by the accused persons on record. In these circumstances, learned trial Court has rightly took cognizance against the applicant under the provisions of section 319 of the Criminal Procedure Code and no substantial grounds are available for interference in 'the impugned order, therefore, prayed for dismissal of the revision petition. 6. Upto this stage, after the commencement of the trial near about statement of 18 prosecution witnesses have already been recorded by the trial Court and only one witness Vijay (PW 18) stated before trial Court that there was some dispute in between the deceased Raju and present applicant Gajrajsingh and this dispute is continuing since last two years with regard to some money for the construction of the village shops. He also stated that deceased Raju was demanding Rs.3,00,000/- from the present applicant Gajrajsingh. Some quarrel took place in between them. He also stated that deceased Raju was demanding Rs.3,00,000/- from the present applicant Gajrajsingh. Some quarrel took place in between them. But thereafter some village personnel intervened in this quarrel and settled down the quarrel in between them. This is the only incident on which basis in the present case, the prosecution wants that involvement of the present applicant Gajraisingh should also be presumed. He be also made accused in this case. 7. The incident of quarrel with regard to the demand of money or money dispute is only a single circumstance and only on which basis, this cannot be presumed that the applicant Gajrajsingh is also involved in this incident wherein deceased Raju has been murdered by the so-called accused persons. The aforesaid money dispute may create a doubt on the present applicant/accused that he may be involved -in this incident. It is the settled principle of law that suspicion, however, strong may be; it cannot be the basis of a conviction. For this proposition, I rely upon the decision of the apex Court in Gian Mahtani v. State of Maharashtra [ AIR 1971 SC 1898 ] whereby their Lordships held that: "Suspicion, however, grave, cannot take the place of proof and a conviction cannot be based on suspicion nor on the conscious of the Court being morally satisfied that the complicity of an accused person." 8. Same view has again been reiterated by apex Court in Gambhir v. State of Maharashtra [ AIR 1982 SC 1157 ] and Bhugdomal Gangaram v. State of Gujarat [ AIR 1983 SC 906 ] also. 9. Counsel for the applicant has also relied on the decision in the case of Michael Machado ad another v. Central Bureau of Investigation [(2003) 3 SCC 262] wherein their lordship of the apex Court while explaining the provisions of section 319 of the Criminal Procedure Code held as under: "The basic requirements for invoking the above section is that it should apper to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as be tried along with the already arraigned accused." 10. Other witnesses, which are examined by the prosecution in the trial Court are Maya Sharma (PW 1), Kanhaiyalal (PW 2), Mahesh Sharma (PW 3), Vikram (PW 4), Gokulsingh (PW 5), Sohansingh (PW 6), Shefurahaman (PW 7) and Sultan Ahmed Khan (PW 8), do not say anything against present applicant Gajrajsingh that he might be a person who is also involved in this incident of murder of the deceased Raju. 11. Thus, on over all, appreciation of the entire prosecution evidence on record, in my considered opinion, learned trial Court has committed error in allowing the aforesaid application filed under section 319 of the· Criminal Procedure Code filed by the prosecution for taking cognizance against applicant Gajrajsingh. 12. Consequently, this revision petition is allowed. The impugned order passed by the trial Court is set aside and application filed on behalf of the prosecution under section 319 of the Criminal Procedure Code for taking cognizance against present applicant Gajrajsingh is dismissed.