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Madhya Pradesh High Court · body

2011 DIGILAW 1093 (MP)

MULAYAM SINGH PATEL v. STATE OF M. P.

2011-09-15

U.C.MAHESHWARI

body2011
JUDGMENT : 1. Heard on the question of admission. Admit. State counsel after taking the notice of this admission submits that she is under receipt of the case diary. The copy of the charge-sheet is available on the record. Thus, looking to the nature of the case, with the consent of the parties, this revision is heard finally. The applicant-accused has preferred this revision being aggrieved by the order dated 2-10-2010 passed by 1st Additional Sessions Judge to the Court of 1st Additional Sessions Judge Narsinghpur, framing the charge against him for the offence under section 120-B of Indian Penal Code. 2. The facts which are necessary to adjudicate this revision in short are that on dated 8-6-2010 at about 7.30, the complainant Om Prakash accompanied with his wife and minor daughter namely Smt. Preeti and Ku. Priya, was going on his motorcycle towards the village Kodaras near village Jaitpur, he stationed his-motorcycle because his daughter Ku. Priya, wants to answer the call of nature. At the same time, three persons on a bicycle came from the side of village Lalpur and out of them, one had thrown the chilly powder on his eyes while, another accused went towards his wife and was trying to snatch the necklace from her neck. The applicant immediately rushed towards his wife to rescue her then, from the backside he was subjected to blow of stone by one of the accused and thereafter, by holding the hand of his wife, they thrown her on the floor and snatched his necklace and other ornaments. In such scuffling, the mobile of the accused persons was fell down on the spot and at the same time, one person sitting on the motorcycle called the culprit in the name of Shanker and Dullam Singh and said that to run away from the place on which the culprits went away towards the village Jaitpur. Thereafter, the applicant left his wife and child at the Tea Stall of Chokhelal, and came to the Police Station for lodging the report. On his report, the crime was registered against Shanker and Dullam Singh and also one other, who accompanied with them for the offence of section 394 of Indian Penal Code. Thereafter, the applicant left his wife and child at the Tea Stall of Chokhelal, and came to the Police Station for lodging the report. On his report, the crime was registered against Shanker and Dullam Singh and also one other, who accompanied with them for the offence of section 394 of Indian Penal Code. In investigation, the accused Dullam Singh, Shanker Singh, Julfkar were arrested and also identified by the victims on holding the identification parade, but in respect of applicant-Mulayam Singh Patel, neither any identification parade was held nor any allegation was made against him in the FIR or in the interrogatory statements of the witnesses. But on recording the memorandum of co-accused Shanker Singh under section 27 of the Evidence Act, he categorically stated that earlier to the incident Desi Katta (Firearm) was made available to him by Mulyam Singh, which was used by him in the alleged incident. On which, the applicant Mulayam Singh was impleaded as an accused and after completion of the investigation, the applicant along with other co-accused was also charge-sheeted in such offence. After committing the case to the Sessions Court, considering the papers of the charge-sheet, a charge of section 120-B of Indian Penal Code was framed against the applicant. He abjured the guilt and thereafter, being dissatisfied with such order, has come to this Court with this revision with a prayer to discharge him. 3. Applicant's counsel after taking me through papers of the charge-sheet argued that the name of the applicant was neither stated by the complainant as culprit of the incident in the FIR or at the subsequent stage by any of the witnesses on recording their interrogatory statements. In continuation, he also said that according to the averments of the FIR, no firearm was used by any of the alleged culprit. So, mere on the basis of memorandum of the co-accused Shanker, recorded under section 27 of the Evidence Act, no inference could be drawn against the applicant that he was also involved in their criminal conspiracy of the co-accused to commit the alleged offence of robbery with the victim. He also argued that entire memorandum of Shanker recorded under section 27 of the Evidence Act is not admissible. He also argued that entire memorandum of Shanker recorded under section 27 of the Evidence Act is not admissible. Only the part of it which discloses some material concealed facts by him and pursuance of it at his instance (co-accused), if some thing is found or recovered then the memorandum could be relevant with the matter otherwise, in the lack of any such evidence like seizure memo or other proceedings pursuant to such memorandum, the same could not be taken into consideration to draw any inference against the applicant. According to him, mere acceptance or confession of one accused or co-accused against some other person could not be a foundation to implead such other person as an accused in the case unless, such version is supported by any independent and other evidence. With these submissions, he prayed to set aside the impugned order and discharge the accused by allowing this revision. 4. On the other hand, by justifying the impugned order framing the charge under section 120-B of Indian Penal Code against the applicant Smt. Nirmala Nayak, learned Govt. Adv, said that the same being based in consonance of the papers of the charge-sheet and unless the evidence is recorded, it could not be deemed that the applicant was not involved with the accused in criminal conspiracy to commit the alleged offence. However, she fairly submitted that in the charge-sheet, except the memorandum of Shanker, recorded under section 27 of the Evidence Act, there is no any other evidence against the applicant. She also said that in pursuance of such memorandum, nothing was recovered at the instance of co-accused Shanker connecting the applicant with the alleged offence and prayed for dismissal of this revision. 5. Having heard, keeping in view the arguments advanced by the counsel, I have carefully gone through the papers of the charge-sheet and the grounds stated by the applicant's counsel in the revision memo. 6. It is apparent fact that in FIR or the interrogatory statements of any of the witnesses, the name of the present applicant has not been stated with his act as culprit of the alleged incident. Besides this, after arresting the co-accused whose names are stated above, their identification parade was also held in which, they were identified by the victims, but as per available record, no such parade was held with respect of the present applicant. Besides this, after arresting the co-accused whose names are stated above, their identification parade was also held in which, they were identified by the victims, but as per available record, no such parade was held with respect of the present applicant. It is also apparent that after recording the memorandum of co-accused Shanker, under section 27 of the Evidence Act in which, he disclosed the name of the applicant to make him available the alleged Desi Katta (firearm) for the alleged incident, pursuant to it, at his instance nothing was recovered. Except this memorandum there is no other evidence available in the charge-sheet against the applicant. I am of the considered view that in pursuance of the memorandum recorded under section 27 of the Evidence Act, if nothing is recovered at the instance of the applicant, then such memorandum is not sufficient to implicate the other persons like applicant as an accused in the case. In such premises, the trial Court could not frame the charge of section 120-B of Indian Penal Code against the present applicant-Mulayam as such no ingredients of such offences are made out against him from the charge-sheet. 7. To frame the charge of section 120-B of Indian Penal Code, the ingredients of the criminal conspiracy as per definition of section 120-A of Indian Penal Code should be prima facie established from the charge. According to which/ two or more persons should be agreed to do some illegal act and in pursuance of that some act should be done by some person, then only such charge could be framed. Undisputedly from the impugned charge, no such ingredients are being made out. Thus, in such premises also the charge of section 120-B of Indian Penal Code could not be sustained against the applicant. 8. In view of the aforesaid discussions, the impugned order framing the charge of section 120-B of Indian Penal Code against the applicant-Mulayam is apparently perverse, illegal and contrary to the propriety of law. Hence, by allowing this revision, the impugned order framing the charge of aforesaid offence against the applicant-Mulayam, is hereby set aside and the applicant is discharged from the same. It is made clear that this order has been passed till the extent of applicant-Mulayam only and not for any other accused of the case. 9. Revision is allowed as indicated above.