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2011 DIGILAW 776 (MP)

Bhagwan Singh @ Naga v. State of M. P.

2011-07-15

N.K.GUPTA

body2011
ORDER N.K. Gupta, J. 1. Being aggrieved by the order dated 25.8.2009 passed by the Sessions Judge, Raisin in S.T. No. 15/2008, whereby the application filed by the respondent under section 319 of Code of Criminal Procedure (hereinafter referred to as 'Code') for imp leading the petitioner as accused was allowed, the present petitioner has moved this revision petition. 2. Short facts of the case, are that accused Bablu @ Suresh and Sunil were prosecuted in the Sessions trial by the respondent for an offence punishable under section 302 of IPC etc. It was alleged that in the night of 28.3.2006 at about 9.30 p.m., the petitioner went to Khargone from Bareli by a motor-cycle. Gambhir and Sudama, who were working for the petitioner for the entire day demanded him to provide dinner and therefore, he took the witnesses Gambhir (P. W. 12) and Sudama to the Dhaba being run by Bablu Raghuvanshi. At about 9.30 p.m., the petitioner and his companions were taking dinner on a cot behind the Dhaba. Before they could finish their dinner, the deceased Raju Soni came to the Dhaba and demanded that he will also join in the dinner. The deceased was deadly drunk and he was permitted to take some food from the plate of the petitioner. The deceased took a bread in his hand and went to the counter of the Dhaba, where a quarrel took place between the deceased and Bablu Raghuwanshi. Bablu directed the co-accused Sunil to throw the deceased out of the Dhaba. The deceased Raju shouted that he would blast the Dhaba. Thereafter, Bablu and Sunil started assaulting the deceased by hard and blunt objects. The petitioner advised the accused persons not to assault the deceased Raju Soni because he was dead drunk and he was unable to understand his activities. Then Bablu gave a kick on the back of the deceased, so the deceased fell on a staircase and his mouth struck the Earth. Constable Bhojpal, who was taking dinner in the Dhaba directed the petitioner to shift the body of the deceased away from the road and the petitioner shifted the deceased near a water tank and thereafter, the petitioner went away. Constable Bhojpal and Home Guard Rajesh Sharma directed the petitioner that parents of the deceased be informed, so that the parents of the deceased could pick up the deceased when he was alive. Constable Bhojpal and Home Guard Rajesh Sharma directed the petitioner that parents of the deceased be informed, so that the parents of the deceased could pick up the deceased when he was alive. Ultimately, Raju Soni died in the Dhaba. After due investigation, the prosecution was initiated against the accused Bablu @ Suresh and Sunil. After examination of more than 18 witnesses, learned Public Prosecutor has moved an application under section 319 of Cr. P.C. to impaled the petitioner as an accused in the case on the ground that he was the person, who was with the deceased when he was last seen alive. 3. The petitioner in reply has submitted that it is apparent that the deceased was assaulted by the accused persons and he was alive. No overt-act of the petitioner, was proved, by which he could be made accused in the case. 4. Learned Sessions Judge, Raisen vide order dated 25.8.2009 accepted the application under section 319 of the Code on the ground that the deceased was seen with the petitioner for the last time when he was alive. It was directed that the petitioner be taken in custody and was released on bail. 5. Learned counsel for the petitioner submits that the impugned order passed by the learned Sessions Judge seems to be illegal, incorrect and deserves to be quashed. He submits that the offence was committed in the year 2006, due investigation has been done by the police and the petitioner was made a witness in the case. After 3 years of the incident, when more than 18 witnesses were examined, the petitioner was made an accused without any basis. 6. Learned counsel for the petitioner further submits that the petitioner was a listed witness in the case and it appears that constable Bhojpal and Home Guard Rajesh Sharma have turned their statements to save the accused persons and therefore, an application under section 319 of the Code appears to be moved to save the accused persons and to implicate an innocent person in the case. There was no sufficient evidence against the applicant by which he could be imp leaded as an accused in the case. He has also placed his reliance on the judgment passed by Hon'ble the Apex Court in the case of Micheal Machado and another Vs. CBI and another AIR (2000) SCW 734. 7. There was no sufficient evidence against the applicant by which he could be imp leaded as an accused in the case. He has also placed his reliance on the judgment passed by Hon'ble the Apex Court in the case of Micheal Machado and another Vs. CBI and another AIR (2000) SCW 734. 7. On the other hand, learned Panel Lawyer submits that the impugned order passed by the learned Sessions Judge, Raisen seems to be legal and therefore, no interference can be made in that order. 8. Learned counsel for the petitioner has placed his reliance on his contention to the decision of Hon'ble the Apex Court in the case of Micheal Machado (Supra), wherein it is held as under: 11...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 be tried along with the already arraigned accused. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. 9. Learned counsel for the petitioner has also placed his reliance upon the decision of this Court in the matter of Kamla Bai (Smt.) Vs. State of M.P. (1998) MPWN 85, in which it was held that when a material witness was called as an accused, it amounts to misuse of process of Court. If factual aspect of this case is looked into, then it would be clear that the order passed by the learned Sessions Judge is not a speaking order. He has accepted the application under section 319 of the Code only on the basis that applicant was seen with the deceased, just before his death. If factual aspect of this case is looked into, then it would be clear that the order passed by the learned Sessions Judge is not a speaking order. He has accepted the application under section 319 of the Code only on the basis that applicant was seen with the deceased, just before his death. As per provisions of section 319 of the Code, it is no where clear as to what sort of evidence is required for acceptance of application under section 319 of the Code. However, it is settled law that evidence means the evidence adduced before the trial Court. In Micheal Machado 's case (Supra) it is directed by Hon'ble the Apex Court that Court must have reasonable satisfaction from the evidence already collected regarding acceptance of the application. It is directed that if such stranger, that is to be added as an accused, then it should be seen by the Court whether he could be tried as an accused along with other accused persons or not. In the light of the aforesaid judgment, it is for the Court to examine objectively and to satisfy itself that sufficient evidence is available on record, so that a stranger may be made an accused in the case. 10. It is no where specifically mentioned under section 319 of the Code that what is the sufficient evidence in the eye of law but it is very much clear in those provisions that when a stranger is added as an accused in the case, he has to face the trial with other co-accused persons. It means that trial shall be initiated against that stranger, which includes the framing of the charges, therefore, sufficient evidence means the evidence by which charges of particular offence can be framed against that stranger. It is a golden yardstick for framing of the charges that if available evidence is not rebutted then conviction should be directed for that crime against that accused on the basis of such evidence, thereafter charges of such offence can be framed. Therefore, while considering the application under section 319 of the Code, sufficient evidence means the evidence by which charges of that offence can be framed against that stranger, who is to be made an accused. 11. Therefore, while considering the application under section 319 of the Code, sufficient evidence means the evidence by which charges of that offence can be framed against that stranger, who is to be made an accused. 11. In the light of the aforesaid discussion, if the evidence adduced against the petitioner is examined, then it would be clear that there was no eye witness against the petitioner. It is not seen by anyone that the petitioner assaulted the deceased. On the contrary, constable Bhojpal (P.W. 5) has suggested that it was possible that the deceased Raju Soni had sustained the injuries due to dash of some vehicle. Therefore, the material evidence against the petitioner rests upon the circumstantial evidence, whereas chain of circumstantial evidence does not exists. As per the prosecution's evidence initially collected by the police and given by witnesses before the Court, it would be clear that the petitioner went to the Dhaba with two other witnesses namely Gambhir (P. W. 12) and Sudama. The deceased came to the Dhaba when these witnesses were about to finish their dinner. It is very much clear that the deceased was dead drunk. Initially, it was reported to the police that the deceased was assaulted by the accused persons Bablu and Sunil. The police has seized weapons of the offence from the accused Bablu and Sunil. In the Court, various eye witnesses turned from their statements given under section 161 of the Code. However, they were not declared hostile by the learned Public Prosecutor for the reasons best known to him. It was apparent from the statements given by constable Bhojpal, witnesses Latif and other persons that now they are giving shelter to accused persons and they are shifting the case against the petitioner. If the petitioner has assaulted the deceased as stated by Latif, then what was the problem to the witnesses in informing before the police at the time of investigation. It would be very much clear from the evidence that constable Bhojpal and Home Guard Rajesh Sharma that they were taking meals from the hotel of accused Bablu @ Suresh and it is no where clear that who paid for their dinner but it is clear that they did not pay any amount to the accused Bablu for their dinner from their own pocket. Therefore, if some witnesses have changed their testimony in the Court, it was the duty of learned Public Prosecutor to declare those witnesses to be hostile and cross-examine them but instead of taking such steps, he moved an application under section 319 of the Code. 12. Where the testimony of such witnesses could be believed when they have stated against the petitioner after 2-3 years of the incident, whereas they have given a story before the police that the deceased was being assaulted by the accused persons. Under such circumstances, the only evidence which was against the petitioner that he was seen with the deceased just before his death and he did not take the deceased with him on motor-cycle. If these two pieces of chain of circumstances are considered then it would be clear that entire chain of circumstantial evidence is broken. No motive was shown against the petitioner to kill the deceased. No weapon was found with the petitioner at the time of the incident. No weapon or blood stained clothes were seized from the petitioner. Alleged eye witnesses have stated before the police against the accused persons. The petitioner himself is examined before the Court against the accused persons. Learned Public Prosecutor could not bring any reason as to why the Investigating Officer has done a tinted investigation against the accused persons by giving shelter to the petitioner, whereas, the accused persons were the Dhaba owners and his companions. Under such circumstances, it is clear that no sufficient evidence against the petitioner is available on record by which charges under section 302 of IPC can be framed against the petitioner and therefore, application under section 319 of the Code could not be accepted against the petitioner. 13. It is strange that the witnesses, who shifted their testimony from their statements under section 161 of the Code were not declared hostile and not confronted with their previous statements. The petitioner was a star witness, who was examined against the accused persons. Except the petitioner, remaining witnesses are now favoring the accused persons and therefore, it appears that to help the accused persons, such an application is moved to impeach the testimony of the petitioner before the Court. 14. The petitioner was a star witness, who was examined against the accused persons. Except the petitioner, remaining witnesses are now favoring the accused persons and therefore, it appears that to help the accused persons, such an application is moved to impeach the testimony of the petitioner before the Court. 14. In this connection, learned counsel for the petitioner has placed his reliance on the order of this Court passed in the case of Kamla Bai (Supra), in which it was held that if a material witness is called as an accused, then it amounts to misuse of process of Court. In the present case, it appears that learned Public Prosecutor has created a new series of evidence against the petitioner with the help of witnesses, who had departed from their original evidence and a new case is created which is contrary to the investigation done by the Investigating Officer. Under such circumstances, acceptance of the application amounts to misuse of process of law, 15. On the basis of the aforesaid discussion, it is clear that no sufficient evidence is available on record by which the application under section 319 of the Code could be accepted. The order passed by the learned Sessions Judge is baseless and perverse. Learned Sessions Judge did not observe that there was no eye witness in the case against the petitioner and chain of circumstantial evidence created against him is found broken. Therefore, no charge under section 302 of IPC could be framed against the petitioner and therefore, no application under section 319 of the Code of Criminal Procedure could be accepted against the petitioner. Under such circumstances, looking to the perversity of the order, it is necessary to interfere in that order by way of this Revision. 16. Consequently, the revision petition filed by the petitioner is hereby allowed. The order dated 25.8.2009 passed in relation to the application under section 319 of the Code of Criminal Procedure is hereby quashed. Also the application filed under section 319 of Code of Criminal Procedure by the learned Public Prosecutor is hereby dismissed. 17. Learned Sessions Judge shall proceed with the case as per law against the accused persons.