Radheshyam Kushwah vs State of M. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 82

IN THE HIGH COURT OF MADHYA PRADESH
G. S. Ahluwalia, J.
Radheshyam Kushwah v. State of M. P. & Another
Criminal Revision No. 3816 of 2019 (Gwalior): against the order dated 19.7.2019 passed by the IV Additional Sessions Judge, Morena in Sessions Trial No. 84/2018;
Decided on 6.4.2022

Advocates:
R. K. Sharma with V. K. Agarwal for applicant;
A. K. Nirankari for respondent No. 1/State;
Sanjay Gupta for respondent No. 2.

Headnote:
(1) Criminal P. C., 1973 -- S. 36 -- parallel enquiry by senior police officer during pendency of investigation -- not permissible. M. Cr. C. No. 12592 of 2018 decided on 11.9.2018 [confirmed in SLP (Criminal) No. 1345 of 2019 decided on 18.1.2022] relied on.
[Para 12
(2) Evidence -- mobile location -- cannot be conclusive evidence to show that holder of mobile was also at that particular place. [Para 13
(3) Evidence Act, 1872 -- S. 11 -- Criminal P. C., 1973 -- S. 397/401 -- plea of alibi -- submission that applicant was under treatment at time of incident and was not present on spot -- nothing on record to show that applicant was under treatment at time of incident -- submission rejected -- however, rejection of plea of alibi at stage of revision would not preclude applicant to prove it before trial Court by leading cogent and reliable evidence. AIR 2017 SC 2839 distinguished. [Para 14
(4) Criminal P. C., 1973 -- S. 319 -- summoning of additional accused -- discrepancy in evidence -- complainant merely mentioned that farsa was used for assaulting injured -- whereas injured stated in Court evidence that blunt side of farsa was used -- skull bone is hardest bone of human body therefore sometimes lacerated wound may appear as incised wound and incised wound may also appear as lacerated wound because of location of injury -- furthermore, it cannot be presumed that farsa would always have sharp blade -- its blade may become blunt, which may cause lacerated wound also -- this discrepancy in evidence of witnesses cannot be made basis for rejecting application u/s. 319. (2014) 12 SCC 457 followed. Modi's Jurisprudence relied on. [Paras 15 to 20
(5) Criminal P. C., 1973 -- S. 319 -- summoning of additional accused -- applicant cited as mastermind in FIR -- his active role specifically mentioned in statements of witnesses u/s. 161 of CrPC and also alleged in evidence recorded in trial -- parallel enquiry by senior police officer during pendency of investigation not maintainable -- satisfaction of Investigating Officer with regard to plea of alibi of applicant not sufficient to hold that material collected by Investigating Officer was reliable to hold that applicant was not present on spot -- trial Court did not commit any mistake by exercising its power u/s. 319. Criminal Appeal No. 397 of 2022 decided on 10.3.2022 (SC) and (2021) 5 SCC 337 followed. [Para 23
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 36 && vUos"k.k ds yacu ds nkSjku T;s"B iqfyl vf/kdkjh }kjk lekukarj tk¡p && vuqKs; ugha A fo'ks"k btktr ;kfpdk ¼nkafMd½ Ø- 1345 lu~ 2019 fu.khZr fnukad 18-1-2022 esa iq"V] izdh.kZ nkafMd ekeyk Ø- 12592 lu~ 2018 fu.khZr fnukad 11-9-2018 voyafcrA ¼iSjk 12
¼2½ lk{; && eksckby dh vofLFkfr && ;g n'kkZus ds fy, fu'pk;d lk{; ugha gks ldrh fd eksckby dk /kkjd Hkh mlh fof'k"V LFkku ij FkkA ¼iSjk 13
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 11 && naM izfØ;k lafgrk] 1973 && èkkjk 397@401 && vU;= gksus dk vfHkokd~ && fuosnu fd ?kVuk ds le; vkosnd mipkjjr Fkk rFkk LFky ij mifLFkr ugha Fkk && vfHkys[k ij ;g n'kkZus ds fy, dqN ugha fd ?kVuk ds le; vkosnd mipkjjr Fkk && fuosnu ukeatwj && rFkkfi] vU;= gksus ds vfHkokd~ dh iqujh{k.k ds izØe ij ukeatwjh ls vkosnd fopkj.k U;k;ky; ds le{k rdZiw.kZ vkSj fo'oluh; lk{; is'k dj mls lkfcr djus ls izokfjr ugha gksxkA , vkb vkj 2017 ,l lh 2839 izHksfnrA ¼iSjk 14
¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 319 && vfrfjDr vfHk;qDr dks cqykuk && lk{; esa folaxfr && f'kdk;rdrkZ us ek= ;g mYys[k fd;k fd vkgr ij geyk djus ds fy, Qjlk iz;qDr fd;k x;k && tcfd vkgr us U;k;ky; dFku esa dgk fd Qjls dk dqan Hkkx iz;qDr fd;k x;k && flj dh vfLFk ekuo nsg dh lcls dBksj vfLFk gksrh gS blfy, dHkh&dHkh fonh.kZ ?kko fNUu ?kko izrhr gks ldrk gS rFkk {kfr dh vofLFkfr ds dkj.k fNUu ?kko Hkh fonh.kZ ?kko izrhr gks ldrk gS && blds vfrfjDr] ;g mi/kkj.kk ugha dh tk ldrh fd Qjls dh /kkj lnSo rh{.k gksxh && mldh /kkj dqan gks ldrh gS] bl dkj.k Hkh fonh.kZ ?kko gks ldrk gS && lkf{k;ksa ds lk{; esa bl folaxfr dks èkkjk 319 ds v/khu vkosnu ukeatwj djus dk vk/kkj ugha cuk;k tk ldrkA ¼2014½12 ,l lh lh 457 vuqlfjrA eksnh Ñr T;wfjLizwMsUl voyafcrA ¼iSjk 15 ls 20
¼5½ naM izfØ;k lafgrk] 1973 && /kkjk 319 && vfrfjDr vfHk;qDr dks cqykuk && izFke bfÙkyk fjiksVZ esa vkosnd dk mYys[k ;kstuk cukus okys O;fDr ds :i esa && naM izfØ;k lafgrk dh /kkjk 161 ds v/khu lkf{k;ksa ds dFkuksa esa mldh lfØ; Hkwfedk dk fofufnZ"V mYys[k rFkk fopkj.k esa vfHkfyf[kr lk{; esa Hkh vfHkdFku && vUos"k.k ds yacu ds nkSjku T;s"B iqfyl vf/kdkjh }kjk lekukarj tk¡p pyk, tkus ;ksX; ugha && vkosnd ds vU;= gksus ds vfHkokd~ ds ckjs esa vUos"k.k vf/kdkjh dk lek/kku ;g vfHkfu/kkZfjr djus ds fy, i;kZIr ugha fd vUos"k.k vf/kdkjh }kjk ,d= dh xbZ lkexzh ;g vfHkfu/kkZfjr djus ds fy, fo'okl ;ksX; gS fd vkosnd LFky ij mifLFkr ugha Fkk && fopkj.k U;k;ky; us /kkjk 319 ds v/khu viuh 'kfDr iz;qDr dj dksbZ Hkwy ugha dhA nkafMd vihy Ø- 397 lu~ 2022 fu.khZr fnukad 10-3-2022 ¼,l lh½ rFkk ¼2021½5 ,l lh lh 337 vuqlfjrA ¼iSjk 23

JUDGMENT

1. This criminal revision under section 397, 401 of CrPC has been filed against the order dated 19.7.2019 passed by Fourth Additional Sessions Judge, Morena in Sessions Trial No.84/2018, by which the trial Court by exercising its power under section 319 of CrPC has summoned the applicant as an additional accused.

2. It is submitted by the counsel for the applicant that the complainant lodged an FIR on 28.6.2017 at 22:50 on the allegations that there is a public way in front of the house of the applicant and whenever the said public way is used by his family members, then the family members of the applicant used to abuse them and, accordingly, on 28.6.2017 the Revenue Officers had come from Tahsil Office for demarcation purposes. Her husband Kapil, father-in-law Kamlesh and younger brother-in-law Sahdev were sitting in front of their house at 06:30 p.m.. On the issue of demarcation, the applicant as well as Raju armed with Farsa, Laxman armed with Sabbal, Sudama armed with spade, Pradeep armed with axe, Khachera armed with lathi and three more persons whose names are known to them, came to the house of the complainant and the applicant and Raju started scolding her fatherin-law that now he would deal with the demarcation and, accordingly, the applicant and Raju gave a Farsa blow on the head of father-in-law Kamlesh, as a result, he sustained injuries. When her husband Kapil and younger brother-in-law Sahdev tried to save their father, then Laxman, Sudama, Pradeep, Khachera and three persons who had come with them started assaulting them, as a result, they have sustained multiple injuries. When the complainant and her mother-in-law tried to intervene in the matter, then they too were assaulted by fists and blows. It is submitted that the statement of the complainant was recorded under section 161 of CrPC and in the said statement also, she had levelled the said allegations.

3. During pendency of the investigation, a parallel enquiry was conducted by the Dy. Superintendent of Police, who gave a finding that at the time of incident, the applicant was not present on the spot and it appears from the mobile location that he was in Jaura Khurd. Accordingly, on 21.9.2017 the SHO Police Station - Station Road, Morena, after relying upon the enquiry report submitted by C.S.P., Morena, came to a conclusion that the applicant was not present on the spot and, accordingly, the mobile location of the applicant was collected and the statements of the witnesses were recorded, who stated that the applicant is suffering from paralysis and was under treatment at the time of incident, therefore, permission was sought not to file charge-sheet against the applicant as well as to file charge-sheet against the remaining co-accused persons. Accordingly the applicant was not charge-sheeted.

4. It is submitted that injured Kamlesh (PW-1) in her examinationin-chief, made the same allegations, which were alleged by her in the FIR, but he improved her version by stating that blunt side of the Farsa was used for assaulting him on the head. Thus, it is clear that there is a material departure from the allegations made by the complainant Smt. Neelam Dandotiya in the FIR as she has not alleged that the blunt side of Farsa was used. It is submitted that as per the pre-MLC, lacerated wound was found on the right parietal region of skull. It is further submitted that while deciding the application filed under section 319 of CrPC, this Court can always take the question of plea of alibi into consideration. To buttress his contention, counsel for the applicant has relied upon the judgment passed by the Supreme Court in the case of Brijendra Singh and others v. State of Rajasthan reported in AIR 2017 SC 2839.

5. Per contra, the revision is vehemently opposed by the counsel for the State as well as the counsel for the complainant. It is submitted by Shri Sanjay Gupta that a parallel enquiry under section 36 of CrPC during pendency of investigation is not mainta