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Madhya Pradesh High Court · body

2016 DIGILAW 610 (MP)

Dharmendra Singh Thakur v. State Of M. P.

2016-07-25

S.K.PALO

body2016
ORDER : Shri Surendra Singh, learned senior counsel with Shri Ashwani Kumar Dubey, learned counsel for the petitioners. Shri Vaibhav Kumar Tiwari, learned Panel Lawyer for the respondent/State. 2. On an application under section 319, Criminal Procedure Code filed by the prosecution, the learned Second ASJ, Khurai, District Sagar by his order dated 28-9-2015 directed the petitioners to appear before the Court on 28-10-2015 in connection with S.T. No. 293/2014 for offences punishable under section 302 read with section 34, Indian Penal Code. 3. Filtering the unnecessary details, the facts to be requisite stated for disposal of this revision under section 397 read with section 401, Criminal Procedure Code is that, deceased Bhanu s/o Ramji (PW/6) had gone to attend the marriage of Ramraj and returned to village at 6:30 p.m. Bhanu Singh was found sitting with the petitioners, Bhupendra, Ramraj and accused Jitendra. Surendra, brother of deceased Bhanu informed by these people that they are going to attend the marriage of sister of Sanjay Latoriya. Bhanu did not return home in the night. On the next morning at 6:30 Mahendra Singh saw the dead body of Bhanu Singh and informed the Chawkidar/Pancham Kotwar. They lodged a report at Police Station. Panchnama was prepared. The stones used for infliction of injuries to Bhanu were seized. When Ramraj was asked about the incident, he informed that they had gone to attend the marriage at Khurai and returned around 12 in the night. The dead body of Bhanu was sent for post-mortem. On the left side of his chest, Khusbu was inscripted, “Khusbu” is the sister of accused/Jitnedra. Bhanu had intimacy with Khusbu, the sister of accused Jitendra. Charge-sheet was filed against accused Jitendra. 4. During the course of recording of evidence, statement of Mahendra Singh (PW/3) was recorded. On the basis of which the application under section 319, Criminal Procedure Code for impleading the petitioners as accused persons was moved by the prosecution. The learned trial Court on the basis of this statement allowing the application under section 319, Criminal Procedure Code, directed to summon the petitioners for impleading them as accused persons. The petitioners assailed the impugned order stating that the petitioners are implicated without sufficient reasons. There is no prima facie case made out against the petitioners. The petitioners, therefore, seek relief to set aside the impugned order. 5. The petitioners assailed the impugned order stating that the petitioners are implicated without sufficient reasons. There is no prima facie case made out against the petitioners. The petitioners, therefore, seek relief to set aside the impugned order. 5. In view of the above contentions, the evidence recorded in the present case has to be analyzed. Mahendra Singh (PW/3) in his testimony has stated that when he was going to attend the marriage at Khurai, he saw accused Jitendra along with deceased Bhanu at the village Tiraha. He discloses in his statement that the accused persons including the present petitioners have killed Bhanu by inflicting injuries by means of stones. Ramji (PW/6) also narrates that on the left side of the chest Bhanu inscripted the name of “Khusbu”, therefore, Jitendra, the brother of Khusbu was annoyed with him. Hence, Jitendra with the help of Bhupendra Singh, Dharamendra Singh and Ramraj have killed Bhanu. These witnesses have not claimed that they have seen the deceased being murdered by the accused persons and the present petitioners. These witnesses have asserted or made the statement by conjecture. 6. Statement of Khusbu under section 161, Criminal Procedure Code show that she was having friendly relationship with Bhanu. Bhanu had given a cell phone to her. She often used to speak to Bhanu. On 20-6-2014, when she was with her sister, Rama in the first floor of her house her parents and younger brother Abhishek sleeping in the upstairs and her elder brother Jitendar was sleeping in the ground floor. She did speak to Bhanu on his Mobile. Bhanu informed her that he is at Khurai attending a marriage. After 15-20 minutes, Bhanu rang up and informed her that he is standing near the tap behind her house and asked her to join him. She went to meet him. At that time, Jitendra was sleeping in his room. After their meeting Bhanu left and she returned to her room. Jitendra was again found sleeping. After few minutes, she again called Bhanu on his cell phone but it did not respond. Then she went to sleep. She heard the cries of female folk of the village in the morning. Then she came to know that Bhanu has been killed near the dam. 7. Jitendra was again found sleeping. After few minutes, she again called Bhanu on his cell phone but it did not respond. Then she went to sleep. She heard the cries of female folk of the village in the morning. Then she came to know that Bhanu has been killed near the dam. 7. In the light of the same, if the evidence is analyzed deceased Bhanu had gone to attend the marriage in Khurai along with the accused persons and returned. After 11 p.m., he called Khusbu to meet him. Hence, the last seen theory with the accused Jitendra and the present petitioners is not attracted. 8. Learned senior counsel, Shri Surendra Singh referred the decision of Brindaban Das and others vs. State of West Bengal reported as (2009) 3 SCC 329 and contended that the evidence does not disclose that the petitioners have committed any crime. The last seen theory is not applicable, therefore, the learned trial Court had committed an error in allowing the application under section 319, Criminal Procedure Code filed by the prosecution and summoning the petitioners in absence of any evidence against them. 9. He also referred decision of the Apex Court rendered in Hardeep Singh vs. State of Punjab and others reported as AIR 2014 SC 1400 and contended that the evidence on the basis of which the petitioners have been arraigned is not evidence sufficient to show that prima facie case is made out. 10. Learned Panel Lawyer for the State opposing the contentions submits that section 319, Criminal Procedure Code springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used while explaining the ambit and spirit of section 319, Criminal Procedure Code. 11. On perusal of the statement of witnesses recorded under section 161, Criminal Procedure Code and the testimony of witnesses, it show that neither Mahendra Singh (PW/3) nor Ramji (PW/6) are the eye-witnesses to the incident. They only assert that the deceased was seen in the company of accused Jitendra and the petitioners at 9 p.m. but before the deceased had gone to Khurai for attending the marriage. The statement recorded under section 161, Criminal Procedure Code of Khusbu gives an idea that after 11 p.m., the deceased returned from the marriage and went to meet her. The statement recorded under section 161, Criminal Procedure Code of Khusbu gives an idea that after 11 p.m., the deceased returned from the marriage and went to meet her. This show that after the deceased was seen with the petitioners, he had gone to meet Khusbu. Therefore, the theory of last seen does not find place in the present case. 12. Hon’ble the Apex Court has observed that before the Court exercises its discretionary jurisdiction in terms of section 319, Criminal Procedure Code, it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. 13. In Sarabjit Singh and anr. vs. State of Punjab and anr. in AIR 2009 SC 2792 , the Hon’ble Apex Court has observed that : “....For the aforementioned purpose, the Courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned...... Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of section 227 of the Code, the Court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extra ordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied.” 14. A similar view was adopted in Brindaban Das and ors. vs. State of West Bengal, AIR 2009 SC 1248 , observing that the Court is required to consider whether such evidence would be sufficient to convict the person being summoned. A similar view was adopted in Brindaban Das and ors. vs. State of West Bengal, AIR 2009 SC 1248 , observing that the Court is required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under section 319, Criminal Procedure Code, entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial Court has to exercise such discretion with great care and perspicacity. 15. Power under section 319, Criminal Procedure Code is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 16. On the quality of the evidence adduced by the prosecution as far as the petitioners are concerned, it is difficult to hold that any amount of certainty that the same would in any probability secure a conviction against the petitioners. The evidence which seeks to connect the petitioners with the commission of offence is hearsay in nature. section 319, Criminal Procedure Code contemplates a situation where the evidence is adduced by the prosecution not only implicate the person other than the named adduced but is sufficient for the purpose of convicting the person to whom the summon is issued. It is logical that there must be evidence against a person in order to summon him to trial, although he is not named in the charge-sheet or he is discharged from the case, which would warrant his prosecution, therefore, that a good chance of his conviction. 17. Since in the present case, except for the statement of Mahendra Singh (PW/3) and Ramji (PW/6) strongly believe the murder of Bhanu was preplanned and there were many conspirators involved, there is no direct evidence of the complicity of the petitioners in the incidence. 17. Since in the present case, except for the statement of Mahendra Singh (PW/3) and Ramji (PW/6) strongly believe the murder of Bhanu was preplanned and there were many conspirators involved, there is no direct evidence of the complicity of the petitioners in the incidence. Hence, it would not be appropriate to subject the petitioners to trial by invoking the provisions of section 319, Criminal Procedure Code, therefore, this Court find it fit to allow the petition and set aside the order dated 28-9-2005 passed by the learned Second ASJ, Khurai, District Sagar. 18. Revision allowed. Order dated 28-9-2005 is set aside.