IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

ON THE 3^rd OF AUGUST, 2022 CRIMINAL REVISION No. 2710 of 2022 Between:-

ROOP SINGH @ BHUPENDRA THAKUR S/O NIRBHAY SINGH, AGED ABOUT 29 YEARS, OCCUPATION: DRIVER EWS 231, DHANCHA BHAWAN, DISTRICT UJJAIN (MADHYA PRADESH)

.....PETITIONER (SHRI VIRENDRA SHARMA, LEARNED COUNSEL FOR THE PETITIONER .

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION NAGJHIRI, DISTRICT UJJAIN (MADHYA PRADESH)

.....RESPONDENTS (SHRI S.S.THAKUR DY. G.A. APPEARING ON BEHALF OF ADVOCATE GENERAL.

This revision coming on HEARING this day, with the consent heard finally and the court passed the following:

ORDER

The petitioner has filed this petition under Section 401/397 of Cr.P.C being aggrieved by order dated 05.07.2022 passed in Special ST No.95/2022 by Special Additional Judge, Ujjain whereby the learned Special Judge has framed the charges against the petitioner under section 25(1B)(a) and 27(1) of the Arms Act.

Signature Not VerifiedDigitally signed by SAN A D M at I e T : K 20 U 2 M 2 A .0 R 8.06 As per the prosecution story, on 03.03.2022, the complainant has lodged the FIR in the form of Dehati Nalishi by submitting that one Ravi Thakur has abused his brother and due to monetary dispute, he fired a gun shoot on one Lakhan. Thereafter, the he was taken to the hospital and accused was arrested. In the statements of co-accused Ravi recorded under Section 27 of the Evidence Act, he has disclosed that the said gun was purchased by the him from the present applicant. Hence, the case was registered against the applicant.

Learned counsel for the petitioner submits that apart from memorandum statements of co-accused Ravi, there is no material on record to connect the petitioner with the alleged offence. Hence, the learned trial Court has framed the charges without considering the evidence available on record and considering the fact that the statements recorded under Section 27 of the Evidence Act are not admissible. Hence, prays for setting aside the impugned order.

Counsel for the petitioner has also placed reliance over the judgment of Apex Court passed in the case of Dipakbhai Jagdishchandra Patel vs. State of Gujarat and Another reported in (2020) 2 SCC (Cri.) 361 and also over the judgment passed by this Court in case of Raghu Thakur vs. State of M.P. reported in 2012 (4) MPHT 116.

On the other hand, learned counsel for the State has opposed the prayer by submitting that on the basis of memorandum statement of co-accused, the present case has been registered against the petitioner.

I have heard the counsel for the parties and have perused the record.

So far as the implication of the petitioner in the alleged offence on the basis of the statements of co-accused under Section 27 of the Evidence Act is concerned, this Court in the matter of Bhishma Singh Thakur @ Pappu Doctor vs. State of M.P., 2018 MPLJ ONLIne (Cri.) 6=2018(2) MPWN Signature Not VerifiedDigitally signed by SAN AMIT KUMAR

14:21:29 IST Note 4, considering the case in identical fact situation has held as under:-

5 . On analyzing the provisions of Section 27 of the Evidence Act, it is crystal clear that the evidence of memorandam given by the co-accused person under Section 27 of the Evidence Act to the police can be accepted so far as articles were recovered from the accused and for the discovery of the items. Except the above circumstances, no other evidence has been collected in the present case, against the present petition. Hence, it is prima facie indicated that the applicant has conspired or connived with the accused persons and with an intention has committed the crime cannot be presumed.

Having regard to the notice that there is no material to show that the arm was recovered from possession of the petitioner, neither he was on the spot nor he was owner of the arm and there is nothing except the memorandum statements of co-accused and in view of the settled position in the case