Atul Sehgal vs State of Madhya Pradesh

M.K. Mudgal, J.—Case diary is available.

With the consent of both the parties the matter is being heard finally on the question of admission.

The applicant/accused has filed this criminal revision under Section 397 r/w 401 of the Code of Criminal Procedure being aggrieved by the order dated 28-08-2014 passed by the Court of XIVth Additional Sessions Judge, Bhopal in S.T. 769/2012 whereby the cognizance under Section 302 and 201 of the IPC has been taken against the applicant/accused and the applicant/accused was summoned to undergo prosecution.

Learned counsel for the applicant/accused submits that earlier the police had registered a case against the applicant/accused who was arrested by the police also. After investigation a report under Section 169 of the Code of Criminal Procedure was filed by the police before the Court of Judicial Magistrate, Bhopal to the effect that there was no sufficient evidence against the applicant/accused for filing the charge-sheet under the said offences. The said report was accepted by the Court vide order dated 25-06-2012. On the same evidence the cognizance has been taken by the trial Court vide the impugned order dated 28-08-2014 under Section 319 of the Cr.P.C. holding that prima-facie there is sufficient evidence against the applicant/accused, who is the son of the deceased K.L. Sahgal and the applicant/accused was in the deceased''s house when the alleged incident took place on 09-04-2012. Learned counsel inviting the attention of the statement of Benu Khetrapal (PW-2), the daughter of the deceased has contended that on the basis of the statement of Benu Khetrapal (PW-2) it cannot be inferred that the applicant/accused was involved in the murder of his father K.L. Sahgal though his death was found to be of homicidal in nature in the Post-Mortem report in which it has been stated that the deceased was strangulated. Learned counsel further contends that the statements of twelve witnesses have been got recorded before the trial Court. If the said evidence is considered, there is no evidence on record against the applicant/accused to connect him with the murder of the deceased. Learned Senior counsel heavily placing reliance upon the judgments in the case of Michael Machado and Another Vs. Central Bureau of Investigation and Another, , Hardeep Singh Vs. State of Punjab and Others etc. etc., and Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, has strenuously argued that a cognizance for an offence can be taken by a Court against an accused only in a case in which the accused has not been charge-sheeted by the police for trial if a sufficient evidence has been found against him prima-facie to connect him with the offence. Merely on the basis of suspicion an accused cannot be roped in the case. Counsel further pleads that the learned trial Court has committed an error in taking cognizance against the applicant/accused for the aforesaid offences whereas there is no sufficient evidence against him.

Learned P.L. for the respondent-State opposing the submission made on behalf of the applicant/accused has submitted that the applicant/accused is the son of the deceased K.L. Sahgal when the alleged murder took place in the deceased''s house the applicant/accused was living with him. As per the statement of Benu Khetrapal (PW- 2), the daughter of the deceased when she made a call to contact her father, the call was received by the applicant/accused and he falsely informed her that the father was sleeping whereas he had been strangulated. Learned P.L. further submits that the conduct of the applicant/accused was quite unnatural in this case though his father was murdered he did not lodge any report to the police. In this manner, when the applicant/accused was in the last company of the deceased in his house and he alone could have had the knowledge of the fact of strangulation of his father and hence under Section 106 of the Evidence Act the onus for explaining how his father came to be strangulated lies exclusively with him but he has not given any explanation in this regard. On the aforesaid grounds learned P.L. has prayed for rejection of the revision petition.

Heard the arguments of both the parties and perused the impugned order as well as the case diary.

Indisputably, the deceased K.L. Sahgal died on 09-04-2012 by strangulation. His death is of homicidal which was committed in his house. It is also undisputed that the applicant/accused was living with his father in those days. It is correct that the police registered a criminal case against the applicant/accused and other co-accused also and after investigation a Khatma report under Section 169 of the Cr.P.C. was filed against the applicant/accused by the police stating that there was no sufficient evidence against him to connect him with the murder of his father K.L. Sahgal and the said report was accepted by the Court of Judicial Magistrate, Bhopal vide order dated 25-06-2012 but it does not affect the jurisdiction of the learned trial court for taking cognizance against the applicant/accused and summoning him for trial. As per Section 319 of the Cr.P.C. an accused can be summoned by a Court at any stage of the trial for his prosecution if a sufficient evidence is found against him during the recording of evidence before the Court. In para 11 and 14 of the cited judgment in the case of Michael Machado and Another Vs. Central Bureau of Investigation and Another, the learned Apex Court has observed the guidelines for taking cognizance of an offence under Section 319 of the Cr.P.C.. The para 11 and 14 reads as under :-

The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, 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. 8. 11. 14. The court while deciding whether to invoke the 11. power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly - added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommended from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.

In the same manner the scope of Section 319 of the Cr.P.C. for taking cognizance and summoning an accused during trial on the basis of recorded evidence has been considered by the Apex Court in the cited judgments in the case of Hardeep Singh Vs. State of Punjab and Others etc. etc., and Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, also.

Considering the above cited judgments the instant case is being considered.

In Para 1, 7, 8, 15, 16 and 33 of the statement of Benu Khetrapal (PW-2), the sister of the applicant/accused it has come on record that she tried to contact her father in the evening of 09-04-2012 but she could not do so as his mobile phone was not attended by anyone. Thereafter, she requested the neighbors to see her father. They apprised her that her father was lying in the room. In Para 9 and 10 it has specifically come on record that at 9:00 pm the mobile phone was received by the applicant/accused. On being enquired by him about her father it was informed by him that the father was sleeping and he would get her to talk to him when he gets up but he didn''t do so. It has come on record in para 15 also that when the father used not to give money to the applicant/accused who used to assault him.

On perusal of the entire statement of Benu Khetrapal (PW-2) it transpires that the applicant/accused was present in the house. The deceased father was lying dead in the room and he had been strangulated but he neither informed the police nor did he apprise in this regard to the neighbors. Apart from this, he did not give a message to his sister Benu Khetrapal (PW-2) who received the information about the death of her father through neighbors. When the applicant/accused was present in the house with his father and whose death was homicidal in nature. The special fact was in the knowledge of the applicant/accused who has to explain under Section 106 of the Evidence Act as in what circumstances his father was murdered in the house by strangulation but no explanation in this regard has been tendered by the applicant/accused in this case so far. The applicant/accused was in the last company of the deceased. The Hon''ble Apex Court in the case of Babu Vs. Babu and Another, has held in Para 18 as under :-

Now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased are shifted to the accused. It is he who knows in what manner and in what circumstances the deceased had met her end and as to how the body with strangulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively lead and unerringly point only to the guilt of the accused. 13. Considering the said circumstances the trial Court has not committed any error in summoning the applicant/accused for prosecuting him for the alleged offences in this case. Therefore, keeping in view the pronouncement of Hon''ble Apex Court in the above cited judgment and the facts and circumstances of the case this Court comes to the conclusion that there is prima-facie sufficient evidence against the applicant/accused to connect him with the murder of his father. Hence, the findings recorded by the learned trial Court for taking cognizance and summoning the applicant/accused are just and proper and so no interference is required in them.

Accordingly, the revision petition being meritless is hereby dismissed.