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2014 DIGILAW 344 (MP)

Virendra Singh v. State of M. P.

2014-03-27

B.D.RATHI

body2014
Judgment: B.D. Rathi, J. 1. With the consent of learned counsel for the parties, this matter is heard finally. This revision petition has been preferred under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as "the Code") being aggrieved by the order dated 3.4.2013 passed by Additional Session Judge, Jaura, District Morena in Session Trial No. 83/2011, whereby application filed under section 319 of the Code by petitioner Virendra Singh was dismissed on the ground that to corroborate oral evidence of Virendra Singh weapon i.e. fire arm allegedly used in commission of offence by Manoj Singh, which is belonging to his uncle Laxman Singh was not seized from Laxman Singh and there is no evidence to connect that the injury sustained by Shiv Kumar (since deceased) caused by fire arm belonging to Laxman Singh. This petition has been preferred for seeking relief that by allowing this revision petition, impugned order dated 3.4.2013 be set aside and respondent No. 2-Manoj Singh be made accused in Session Trial No. 83/2011 and also appropriate directions be issued that after making Manoj Singh as accused he should be tried along with co-accused persons in Session Trial No. 83/2011 pending in the Court of First Additional Session Judge, Jaura, District Morena. 2. As per prosecution story, incident occurred on 3.11.2010 at 12:30 noon thereafter named FIR was lodged promptly at about 1:10 P.M. at Police Station Sumawali by present petitioner i.e. complainant-Virendra Singh against Manoj Singh S/o. Bharat Singh Gurjar, Ajeet Singh S/o. Bharat Singh Gurjar, Yogesh S/o. Bharat Singh Gurjar, Dhunna S/o. Bharat Singh Gurjar, Laxman S/o. Raghunath Singh, Neetu S/o. Laxman Singh, Shishupal S/o. Laxman Singh, Badam S/o. Pancham Singh, Jandel S/o. Pancham Singh and Bhagwat S/o. Ranveer Singh. Alleging therein that the complainant along with Vijendra Singh, Parimal, Balendra reached at the Police Station with injured Shivkumar made report that at around 12:30 P.M. the complainant and Shivkumar had gone to the Society for taking Kerosene Oil and when they reached on the public road situated near the bungalow of Karan Singh then from front side Manoj armed with mouzer gun of his uncle Laxman, Laxman armed with lathi, Ajeet armed with Farsa, Yogesh armed with Katta, Chhunna armed with 12 bore gun, Shishupal armed with Katta, Jandel armed with mouzer gun, Bhagwat armed with mouzer gun, Badam armed with lathi and Neetu armed with Farsa came there with common intention. Complainant and Shivkumar were hurled abuses due to election rivalry and thereafter Manoj with an intention to kill Shivkumar fired a gun shot, which hit on his (Shivkumar) right side of chest, he fell down there, thereafter Yogesh, Jandel and Bhagwat with an intention to kill fired gun shots. Complainant rescued himself, ran away from the place of incident and shouted that Shivkumar has received gun shot injury. On hearing the shriek made by the complainant and noise of the gun shots Parimal, Damodar, Dilip, Beerbal and other persons rushed on the spot, then the accused persons fled away. On the basis of the aforesaid report, a case under sections 302,147, 148, 149, 294 and 341 of IPC was registered against the accused persons at Crime No. 130/2010 at Police Station Sumawali, District Morena. The criminal law was triggered and set in motion. 3. After completion of investigation charge-sheet was filed against the accused persons except against the Manoj (respondent No. 2). 4. It is submitted by learned counsel for the petitioner that previously one application was also filed by the petitioner under section 319 of the Code on 3.4.2012 after recording of chief examination of the petitioner-Virendra Singh (PW. 1), but that too was dismissed by the Trial Court. Against that Criminal Revision No. 455/2012 was filed and by order dated 29.6.2012 the same was dismissed by this Court. Though liberty was granted to the petitioner that after completion of entire evidence of petitioner he may file another application under section 319 of the Code and on that eventuality the application shall be decided by the Trial Court without getting prejudice from the previous order. 5. Though liberty was granted to the petitioner that after completion of entire evidence of petitioner he may file another application under section 319 of the Code and on that eventuality the application shall be decided by the Trial Court without getting prejudice from the previous order. 5. It is also submitted by learned counsel for the petitioner that IInd application of the petitioner under Section 319 of the Code was again dismissed by the Trial Court only on the ground that there was no corroborative evidence present in support of the oral evidence of the petitioner-Virendra Singh and by observing this in para. 13 of the impugned order dated 3.4.2013, the application was dismissed. It is also submitted by learned counsel for the petitioner that the Trial Court was committed error by believing the report of Investigating Officer that respondent No. 2-Manoj Singh was not present on the spot and he has not committed any offence. In support of plea of alibi of Manoj Singh one CD of ATM Booth of Punjab National Bank, Hazeera, Gwalior was produced along with the chargesheet by Investigating Officer. It is submitted by learned counsel for the petitioner that this defence of the respondent No. 2-Manoj Singh could not be considered at this stage by the Trial Court. Respondent No. 2-Manoj Singh has neither been arrested nor charge-sheet was filed by the investigating officer against him due to some ulterior motive. It was also submitted by learned counsel for the petitioner that it is the choice of prosecution to prove its case on its own will. The prosecution cannot be asked to produce particular set of evidence to prove its case and because Manoj Singh was not arrested, therefore, question of seizure of fire arm belonging to Laxman Singh cannot be raised. The oral evidence of the petitioner and witnesses are sufficient to make respondent No. 2 - Manoj Singh as co-accused. It is also submitted by learned counsel that in the FIR specific allegations were made against Manoj Singh that he has fired gun shot by using mouzer gun belonging to his uncle Laxman Singh and the same allegations were also levelled against respondent No. 2-Manoj Singh by the witnesses during investigation, even then he was not made party. It is also submitted by learned counsel that in the FIR specific allegations were made against Manoj Singh that he has fired gun shot by using mouzer gun belonging to his uncle Laxman Singh and the same allegations were also levelled against respondent No. 2-Manoj Singh by the witnesses during investigation, even then he was not made party. Lastly it is prayed by learned counsel for the petitioner that by allowing this petition necessary direction be issued to make respondent No. 2-Manoj Singh as co-accused in the Session Trial No. 83/2011 and he be tried along with other co-accused persons. In support of his contentions, learned counsel for the petitioner has placed reliance on the following judgments: (I) Rakesh and another vs. State of Haryana, ( 2001) Insc 341 (25 July 2001); (II) Lok Ram vs. Nihal Singh and another, (2006) Insc 197 (10 April 2006); (III) Rajendra Singh vs. State of U.P. and another, (2007) Insc 804 (6 August 2007); and (IV) Y. Saraba Reddy Vs. Puthur Rami Reddy and another, (2007) 2 SCC (Cri.) 412. 6. On the contrary, it is submitted by Shri R.K. Sharma and Shri Ankur Maheshwari, learned counsel for the respondent No. 2 that only on the basis of oral evidence of petitioner deposed to wreak vengeance, the respondent No. 2 cannot be made accused without any corroborative evidence. On such evidence he cannot be convicted. Matter was fairly investigated by the Investigating Officer and found that respondent No. 2-Manoj Singh was not present on the spot. At the time of incident he was present at the ATM Booth of Punjab National Bank situated at Hazeera, Gwalior at about 12:57 PM. In support of that CD was also produced along with the challan. The incident has occurred as per the FIR at 12:30 noon at Village Tiktoli situated near about 50 Km away from the ATM Booth of Punjab National Bank, Hazeera, Gwalior and he was found present as per CD at 12:57 PM in ATM Booth of Punjab National Bank, and therefore, the distance between the ATM Booth to Village Tiktoli itself shows that it was not possible for respondent No. 2 to reach within 27 minutes on the ATM Booth of Punjab National Bank situated at Hazeera, Gwalior from the place of incident only to establish the plea of alibi. Meaning by he was not on the spot at 12:30 noon. Meaning by he was not on the spot at 12:30 noon. In such circumstances, the respondent No. 2 could not made accused and it shows the fairness of the investigation, otherwise definition of fair investigation will come to an end. It is also submitted by learned counsel that neither any FIR nor in the statement of any of the witnesses it was mentioned that time of incident was approximately shown, but accurate time of incident as 12:30 noon was mentioned in FIR. It is also submitted by learned counsel for the respondent No. 2 that from perusal of the case diary it can be seen that during entire investigation, Manoj Singh has extended his full cooperation in investigation to the investigating officer. In support of his contention, learned counsel for the respondent No. 2 have placed reliance on the following judgments: (I) Harchand Singh and another vs. State of Haryana, AIR 1974 SC (II) Sarabjit Singh and another vs. State of Punjab and another, 2009 Cri. LJ. 3978; (III) Brindaban Das and others vs. State of West Bengal, (2009) 2 SCC (Cri.) 79; (IV) Palanisamy Gounder and another vs. State Represented by Inspector of Police, (2006) 1 SCC (Cri) 568; (V) Lal Suraj alias Suraj Singh and another Vs. State of Jharkhand, (2009) 1 SCC (Cri.) 844; and (VI) Kailash Vs. State of Rajasthan and another, (2009) 1 SCC (Cri.) 1006. 7. Learned Panel Lawyer for the respondent No. 1/State opposed the revision petition and prayed for its rejection. 8. Having regard to the arguments advanced by the learned counsel for the parties, entire record and material available on record have been perused. 9. It is settled law that addition of additional accused warranted only when there is reasonable prospect of case against such accused ending in their conviction. It is also settled law that order under Section 319 of Cr.P.C. cannot be passed only because first informant or one of witnesses seeks to implicate other persons. The evidence adduced against such persons must be substantive evidence in order to summon him for trial, there should be a good chance for his conviction. 10. Reading of provision of Section 319 of Cr.P.C. will be helpful to resolve the dispute, which reads thus:- "319. The evidence adduced against such persons must be substantive evidence in order to summon him for trial, there should be a good chance for his conviction. 10. Reading of provision of Section 319 of Cr.P.C. will be helpful to resolve the dispute, which reads thus:- "319. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 11. On bare perusal of this section, it is clear that the word "it appears" in section 319 are not to be read lightly, meaning thereby that merely because in the FIR or some witnesses have mentioned the name of person the discretion under Section 319 of Cr.P.C. cannot be used by the Court. The discretion given under Section 319 of Cr.P.C. has to be exercised very sparingly and with caution and only when the Court concerned is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. The discretion given under Section 319 of Cr.P.C. has to be exercised very sparingly and with caution and only when the Court concerned is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could therefore be used only after the legal evidence comes on record and from that evidence if it appears that the person concerned has committed an offence, in that case only a new man can be made accused by using discretionary powers given under Section 319 of Cr.P.C. It is also settled law that where two views are possible then a view which is in favour of accused should be taken into consideration. 12. In the aforesaid legal position, it seems that the impugned order passed by the learned Trial Court is well merited and no interference is called for. The application under Section 319 of Cr.P.C. was rightly dismissed. 13. During investigation it was found by the investigating officer that at the time of incident Manoj was not present on the spot, he was present in the ATM Booth of Punjab National Bank, Hazeera, Gwalior and in support of this fact investigating officer has produced one CD along with the charge-sheet to prove that on the date of incident i.e. on 3.11.2010 at 12:57:21 PM Manoj was present in the aforesaid ATM Booth. This fact is clear from perusal of CD and photographs of that enclosed herewith. In the entire evidence it was not deposed by Virendra Singh (PW. 1) that absence of Manoj on the spot was deliberately shown by the investigating officer by adopting malpractice. It was also not deposed by Virendra Singh (PW. 1) that investigating officer has conducted investigation unfairly to save Manoj from conviction. In the FIR lodged by Virendra Singh (PW. 1) it was mentioned that Manoj has fired gun shot from the Mouzer gun of his uncle Laxman Singh. The statement of Virendra Singh (PW. 1) was recorded on 3.4.2012 before the Trial Court. It was also deposed by him in para. 1 of his evidence that Manoj has fired gun shot from the gun of his Uncle Laxman Singh due to that injuries on the right side of the chest was caused to Shivkumar and due to that Shivkumar had died. 14. In para. 1) was recorded on 3.4.2012 before the Trial Court. It was also deposed by him in para. 1 of his evidence that Manoj has fired gun shot from the gun of his Uncle Laxman Singh due to that injuries on the right side of the chest was caused to Shivkumar and due to that Shivkumar had died. 14. In para. 13 of the impugned order, it was observed by the Trial Court that Mouzer gun of Laxman was not seized. There is no evidence to prove the fact that injuries received by Shivkumar was caused from the gun of Laxman Singh. In para. 15 of evidence it was deposed by Virendra Singh (PW. 1) that in the year 2001 in the election of Gram Panchayat his father and this Manoj both were contesting the election against each other and ultimately Manoj won the election. Apart that, it is not satisfactorily explained by Virendra Singh (PW. 1) that how he came to know that Mouzer Gun used by Manoj in commission of the offence was belonging to his uncle Laxman Singh. In this way except the allegation made by Virendra Singh (PW. 1) against Manoj there is no evidence to connect Manoj with the crime in this case. Even after taking into considering the facts in the FIR and the evidence deposed by Virendra Singh (PW. 1) before the Court in its totality even then Manoj cannot be convicted with the offence of murder of Shivkumar because in support of allegation no other evidence is available on record, but on the contrary as per the report of investigating officer, Manoj was not present on the spot at the time of incident. Neither there is any ground nor any evidence to disbelieve the report of investigating officer that Manoj was not present on the spot. As per the FIR incident occurred on 3.11.2010 at 12:30 noon and as per the investigation report at about 12:57:21 noon Manoj was present in the ATM Booth of Punjab National Bank, Hazeera, Gwalior and there is a difference of 27-28 minutes between the presence of Manoj at ATM Booth and in the time of incident. Therefore, it was not possible for him to reach at ATM Booth within a short span of time of 27-28 minutes from the spot 50 kms. away from ATM Booth. Therefore, it was not possible for him to reach at ATM Booth within a short span of time of 27-28 minutes from the spot 50 kms. away from ATM Booth. Evidence of CD discloses that he was present at ATM Booth at 12:57:21 PM. 15. Apart that on account of inimical relationship, because of Panchayat election, the view (evidence of alibi) in favour of Manoj can be taken into consideration, specially in absence of supporting evidence for oral evidence. Case of Y. Sarabareddy cited by petitioner's counsel is not applicable in scenario of the present case. Hence plea of alibi was found true on the basis of evidence by Investigating Officer and same has not been challenged by Virendra Singh (PW. 1) in his court evidence. View of this Court is based on the principles laid down by the Supreme Court in all other citations mentioned in this order. 16. So far as the objection that the plea of alibi cannot be considered at this stage by this Court is concerned in the considered view of this Court this objection is not tenable because here, in the present case, the plea of alibi has not been raised by respondent No. 2 Manoj but it was the original case of prosecution itself that Manoj was not present on the spot and he has not committed any offence and therefore, investigating officer has not filed charge-sheet against Manoj, hence, the so called plea of alibi can very well be taken into consideration at this stage. 17. In view of the provisions of Section 227, 228 and 193 of the Code, the Court of Sessions has jurisdiction on committal of case to it to take cognizance of the offence of the person not named as offender but whose complicity in the case would be evident from the material available on record. Hence, even without recording evidence upon committal under Section 209 of the Code, the Session Judge may summon those persons shown in the column 2 of police report to stand trial along with those already named therein. Hence, even without recording evidence upon committal under Section 209 of the Code, the Session Judge may summon those persons shown in the column 2 of police report to stand trial along with those already named therein. The plea that the Session Court would have no alternative but to wait till the stage under Section 319 of the Code was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session cannot be accepted. 18. Session Court can summon additional accused to stand trial along with other accused already committed to it on the basis of documents submitted in the final report by the investigating officer under Section 173 of the Code. Similarly Court can also discharge in absence of sufficient evidence to frame charge. The provisions of Section 319 of the Code are supplementary and complementary to Sections 226 to 228 of the Code (Provisions for discharge and for framing of charge, procedure for trial before the Court of Session Chapter XVIII of the Code). Both have to be read harmoniously and together. 19. In this case, after taking into consideration the case diary and other evidence available on record, trial Court was not inclined to call Manoj as an additional accused at the initial stage. On perusal of evidence of complainant PW-1, again on the same set of evidence this Court is not inclined to allow the plea of petitioner that under Section 319 of the Code Manoj should be made accused to face trial. Aforesaid view of the Court is based on the principles laid down in the case of Dharam Pal and Others vs. State of Haryana and another, 2013 Cri.L.J. 3900, Lal Chand and another vs. State of Haryana, 1983 Cri.L.J. 1394 and Sk. Latfur Rahman and others vs. The State, 1985 Cri.L.J. 1238 (FB). In the aforesaid premises, after taking into consideration the legal position, factual matrix and the evidence available on record, the Court is of the view that the impugned order passed by the learned Trial Court is well merited and no interference is called for. Accordingly, the petition is hereby dismissed. Copy of the order be sent to Trial Court. Trial Court is also directed to go ahead with the case in accordance with law.