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Madhya Pradesh High Court · body

2010 DIGILAW 284 (MP)

Aminul Khan v. State of M. P.

2010-03-10

N.K.MODY

body2010
ORDER 1. Being aggrieved by the order dated 17.9.2009 passed by Sessions Judge, Indore in ST No. 807/2009 whereby charge has been framed against the petitioner for the offence alleged to have been committed under sections 147.302/149 and 307/149. IPC, the present petition has been filed. 2. In short the case for the prosecution was that on 30.6.2009 one Rahul Yadav pulled down shutters of his Jaspal Dhaba at about 11.30 p.m. and workers of the said Dhaba were standing outside, at that time 5 persons came in a black car and asked for food and when the said request was refused, they raised hue and cry. All this resulted into a scuffle as the number of employees were more, the intruders vanished from the spot but after some time, came back in a white car and immediately on arriving on the spot made three fire in the air and started assault. It was alleged that in the said scuffle, Arjun sustained injuries and one Shankar Ustad died on spot. Thereafter the persons who caused injuries ran away. Upon investigation challan was filed against 9 persons including the petitioner. Charge was framed against the petitioner, against which the present petition has been filed. 3. Learned counselor petitioner argued at length and submits that impugned order passed by the leaned trial Court is illegal and deserves to he set aside. Learned counsel submits that investigating agency has failed to gather any such legally admissble evidence which can be sufficient to convince the Court prima facie about involvement of the present applicant in the alleged offence. It is submitted that petitioner is a Doctor by profession. Petitioner has been implicated in the alleged offence on the basis that petitioner was owner of the car bearing Registration No. MP 09 A 0182. It is submitted that there is nothing on record to show that petitioner was owner of the car bearing aforesaid registration number. It is submitted that Investigating Officer did not trouble itself to collect the particulars from the RTO. on the contrary the petitioner has tiled the certificate of registration of the concerned RTO which goes to show that car bearing No.MP 09 A 0182 belongs to one Mahesh Mishra. It is submitted that Investigating Officer did not trouble itself to collect the particulars from the RTO. on the contrary the petitioner has tiled the certificate of registration of the concerned RTO which goes to show that car bearing No.MP 09 A 0182 belongs to one Mahesh Mishra. Learned counsel submits that another alleged evidence against the petitioner is in the memo under section 27 of the Evidence Act whereby the petitioner was asked the name of owner of Mobile bearing No. 98265-00500 it was informed by the petitioner that this mobile belongs to one Seema Razi which must he in her possession. It is suhmit1ed that upon the information furnished by the petitioner, the mobile which has been seized from Ms. Seema Razi is bearing the number 98265-00500. It is submitted that conversation which allegedly took place is not on record to implicate the petitioner with the alleged offence. It is submitted that apart from this absolutely there is no evidence on the basis of which the petitioner can be convicted. It is submitted that in the facts and circumstances of the case the petition tiled by the petitioner be allowed and impugned order whereby charge has been framed against the petitioner be quashed. 4. Learned counsel for respondent submits that after tiling into consideration all the evidence on record which was collected by the Investigating Officer charges have been framed against the petitioner, which requires no interference. So far as documents produced by the petitioner is concerned, learned counsel submits that the documents produced by the petitioner cannot be looked into at the stage of framing of charge. For this contention reliance is placed on a decision in the matter of State of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, wherein Hon 'ble apex Court has observed that at the stage of charge it can consider only the material produced by the prosecution. It was also observed by the Hon'ble Apex Court that no provision in CrPC grants to the accused any right to file any material or document at the said stage. It is submitted that the petitioner is influential person as father of the petitioner is Government Officer. It is submitted that the whole case is based on circumstantial evidence and chain of circumstantial evidence shows that petitioner was involved in the alleged offence. It is submitted that the petitioner is influential person as father of the petitioner is Government Officer. It is submitted that the whole case is based on circumstantial evidence and chain of circumstantial evidence shows that petitioner was involved in the alleged offence. It is submitted that in the facts and circumstances of the case, petition tiled by the petitioner be dismissed. 5. From perusal of the record, it is evident that FIR was lodged by one Dharmendra on 30.6.09 at about 3.00 am, while incident took place at about 12.30 am. In the FIR it was alleged that the complainant is working as Cook at Jaspal Dhaba, situated at Bye-pass Road. In the FIR, it was alleged that Shankar Singh is Kitchen Master. At about 11.30 p.m. when the Dhaba was closed and the employees were taking dinner at that time a car having black colour carrying five persons came there and asked for providing meals. Upon refusal they abused the workers in filthy language and one of them who was fatty asked that his father is a Government Officer and insisted for providing mean. It was alleged that upon refusal by Shankar Ustad, he was slapped by him. It was alleged that since all the workers of the Dhaba gathered, therefore, the persons who came in the car ran away and thereafter again came in a white car and one of the persons pressed the neck of Shankar and also beaten him. Shankar was brought to hospital were he was declared died. 6. From the record, it is evidence that upon the information given by the petitioner Mobile No. 9826500500 was seized and the documents of Fiesta Car which was belonging to the petitioner was also seized. From perusal of seizure memo, it is evident that car which was belonging to the petitioner was seized which is having number of dents. Photographs of the car having dents is on record. The conversation which took place by the said mobile is on record. Investigating Officer issued a letter to the authorised dealer of Ford Company from whom it was asked that car bearing Registration No. MP/09-A/0182 having the colour of Mehroon & Chocolaty sold to whom. Authorised Dealer has informed the name of six persons to whom the cars were sold having the same colour, which also includes the name of petitioner. Investigating Officer issued a letter to the authorised dealer of Ford Company from whom it was asked that car bearing Registration No. MP/09-A/0182 having the colour of Mehroon & Chocolaty sold to whom. Authorised Dealer has informed the name of six persons to whom the cars were sold having the same colour, which also includes the name of petitioner. It appears that the registration number which was alleged in the FIR was temporary registration number which the dealers are providing at the time or sale of new cars to facilitate the purchaser/owner of the car to get the vehicle registered. There are total eight accused persons. The conversation which took place by the said mobile is also in the case diary. Owner of the mobile is resident of the same locality where the petitioner resides. 7. In the matter of Suresh alias Pappu Bhudharmal Kalani v. State of Maharastra reported in (2001) 3 SCC 703 . wherein the Hon 'ble apex Court has observed as under : At the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is nor likely to lead to a conviction. The Court has to appreciate consider whether there is sufficient ground for proceeding against the accused. The Court is not re4uired to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Each case depends upon its particular facts and circumstances and sometimes even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out. 8. It is true that it is circumstantial evidence on the basis of which petitioner has been impleaded as accused. 8. It is true that it is circumstantial evidence on the basis of which petitioner has been impleaded as accused. However, keeping in view the aforesaid position of law and the facts and circumstantial of the case, at this stage it cannot be said that it is a case where there is no evidence on the basis of which no charge could have been framed against the petitioner. Hence, petition filed by the petitioner has no merits and is hereby dismissed.