Vinod Soni and Another vs State of Madhya Pradesh

N.K. Gupta, J.—These two revision applications are connected with the same case and same crime, therefore, decided by the present common order. The applicants have preferred the criminal revision No. 1933/2012 against the order dated 28.8.2012 passed by the learned 19th Additional Sessions Judge, Jabalpur in S.T. No. 362/2012, whereby the charges of offence punishable under sections 460 and 302 /34 (2 counts) of IPC were framed against the applicants, whereas criminal revision No. 1146/2012 is preferred by the applicants against the order dated 27.4.2012 passed by the learned Chief Judicial Magistrate, Jabalpur in criminal case related to crime No. 285/2012, whereby the report u/s 169 of the Cr.P.C. was refused and cognizance was taken against the applicants.

The prosecution''s case, relating to disposal of these revisions, in short, is that, on 12.4.2012 at about 4.25 a.m. in the morning, the complainant Abhishek Gupta informed the Sub Inspector Kartar Singh of Police Station Lordganj, District Jabalpur that his parents were sleeping on the ground floor of his house, whereas, the complainant and his family were sleeping at the first floor. At about 2.45 a.m. in the morning, he heard the cries of his mother and therefore, he ran to the spot and found that his father Narbada Prasad and mother Sushila Keshari were badly injured and blood was oozing from various parts of their bodies and ultimately, they expired on the spot. He saw that the applicants Manohar Soni and Vinod Soni were running away from the room. They left the house by opening the main gate of the house. After lodging the FIR, the police started the investigation and found that the complainant and his parents engaged the co-accused Sunil Patel and he was permitted to reside in a portion of their newly constructed house, which was adjacent to the place of incident and it was Sunil who killed both of the deceased persons. Blood stained weapon was also seized from Sunil and two stolen mobiles of the deceased persons were also found with the co-accused Sunil. After due investigation, the police filed a charge-sheet against the accused Sunil but, a report u/s 169 of the Cr.P.C. against the present applicants no case was made out against them. The learned Chief Judicial Magistrate refused to accept the report u/s 169 of the Cr.P.C. and he took the cognizance against the applicants. The case was committed for the trial and the learned Additional Sessions Judge framed the charges against the applicants for the offences as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the applicants has submitted that the learned Chief Judicial Magistrate has committed an error in taking cognizance against the applicants. A false FIR was lodged by the complainant against the applicants but, thereafter, it was proved that it was Sunil, who killed the deceased persons. In support of his contention he placed his reliance upon the judgments passed by Hon''ble the Apex Court in cases of Vasanti Dubey Vs. State of Madhya Pradesh, and Dr. Mrs. Nupur Talwar Vs. C.B.I., Delhi and Another, . Similarly, it is submitted that there was no sufficient evidence against the applicants, so that charges could be framed and therefore, it is prayed that both the impugned orders be set aside.

The learned counsel for the objector has submitted that it is a case of double murder and the applicants are the culprits, because they had a family dispute with the deceased persons.

After considering the submissions made by the learned counsel for the parties, it would be proper to consider the order dated 28.8.2012 passed by the learned Additional Sessions Judge, Jabalpur at first stage because if that order is maintained or reversed then, there will be no necessity in discussing the order passed by the learned Chief Judicial Magistrate, by which he took the cognizance. The learned Additional Sessions Judge has framed the charges of offence punishable under sections 460 and 302 /34 (2 counts) of IPC against the applicants. For framing of the charge, there is a golden yardstick for consideration that if the prosecution evidence is considered as it is, without considering any defence evidence and the Court is capable to convict the accused for a particular offence with the help of evidence collected by the prosecution then, charge of that offence shall be framed. In the present case, if prosecution documents are perused then, it would be clear from the report dated 30.4.2012 given by Special Scientist Officer, scene of crime unit, Jabalpur that there was no house breaking found in the house. Foot prints of only single accused were found and it was observed that he ran away by jumping the wall of the corridor and both the deceased persons were found injured on their bed only. For offence punishable u/s 460 of IPC, it is necessary that assault be caused at the time of house breaking or lurking house trespass. In the present case, no house breaking was found. The injured persons were found on their bed only and therefore, they did not try to stop any house breaking or lurking house trespass. Under such circumstances, no offence punishable u/s 460 of IPC is made out against any of the accused persons. The learned Additional Sessions Judge has committed an error in framing of the charge u/s 460 of IPC against the applicants.

It is a case in which there is no ocular evidence and therefore, chain of circumstantial evidence is to be considered. There are two circumstances against the applicants. Firstly, that they had a motive to kill the deceased persons. Secondly, that they were found at the spot, soon after the incident by the complainant, whereas there are so many circumstances which are in favour of the applicants. Firstly, that there is no allegation against the applicants that they assaulted the victims by themselves. The learned Additional Sessions Judge did not frame the charge of offence punishable u/s 302 of IPC against the applicants. Secondly, the witnesses who saw the applicants at the spot did not allege that they saw the co-accused Sunil at that time and hence, the allegation appended by the witnesses appears to be unnatural because the actual culprit could not leave the spot prior to the spectators of the incident. Thirdly, that if the applicants had engaged the co-accused Sunil to kill the deceased persons then, there was no need for them to visit the spot personally at the time of incident. No blood stained clothes of the applicants were seized. No weapon or robbed property was seized from the applicants.

If house was closed from inside then, a person who was present in the adjacent newly constructed house could go inside the house by jumping a wall but, the applicants could not enter in the house without any house breaking, whereas no house breaking was found by the police or by the senior scientist officer, scene of crime branch. Under such circumstances, chain of circumstantial evidence is broken against the applicants. They cannot be convicted for offence punishable u/s 302 of IPC with help of evidence collected by the prosecution.

The learned Additional Sessions Judge has appended the charges of offence punishable u/s 302 of IPC with help of section 34 of IPC against the applicants and therefore, it was to be seen as to whether the common intention of the applicants was established with the co-accused Sunil or not. Common intention may be examined by the overt-acts of the accused persons done by them at the spot or it can be proved by the transaction took place between them, prior to the incident. There is no iota of evidence that any talk took place between the applicants and the co-accused Sunil, prior to the incident. The police has recorded a memo u/s 27 of the Evidence Act of the co-accused Sunil but, he did not state that he was engaged by the applicants to kill the deceased persons. There is no evidence with the prosecution that there was any contact of the applicants with the co-accused Sunil, prior to the incident. Therefore, there is no evidence to establish the common intention of the applicants with the co-accused Sunil, prior to the incident.

The complainant has alleged that he saw the applicants at the spot but, he did not claim that he saw the accused Sunil, who was kept by him in the adjacent house. He did not claim that any talk took place with the accused Sunil and the applicants at the spot and therefore, by mere presence of the applicants at the spot, their common intention with the accused Sunil cannot be presumed.

The testimony of the complainant cannot be examined at this stage and therefore, for consideration of the order relating to framing of charges, it is presumed that the complainant is telling a truth. However, by statements of the complainant, no common intention of the applicants can be presumed with the co-accused Sunil. Under such circumstances, by availability of the circumstantial evidence that the applicants had a motive to kill the deceased or they were found at the spot, soon after the incident, their common intention is not established with the co-accused Sunil. Hence, if the evidence of the prosecution is considered as it is, a doubt is created in favour of the applicants and they cannot be convicted for the offence punishable u/s 302 of IPC either directly or with the help of section 34 of IPC. Hence, two count charges of offence punishable u/s 302 /34 of IPC could not be framed.

There is no allegation against the applicants that they killed or they participated in killing the deceased persons on their own and also their common intention with the co-accused Sunil is not at all established by the evidence collected by the prosecution. Under such circumstances, the learned Additional Sessions Judge has committed an error of law in framing two counts charge of offence punishable u/s 302 /34 of IPC.

On the basis of the aforesaid discussion, it is apparent that the prosecution evidence as collected by the investigation officer is considered as it is then, still the applicants cannot be convicted either for the offence punishable u/s 460 of IPC on two count charges of offence punishable u/s 302 of IPC either directly or with the help of section 34 of IPC and therefore, such charges could not be framed against the applicants. It is a good case, in which interference is required from the side of this Court, by way of a revision, in the order relating to framing of charges. Hence, the order dated 28.8.2012 passed by the learned Additional Sessions Judge, Jabalpur is required to be set aside. When the applicants are to be discharged from all the charges appended against them then, the order passed by the learned Chief Judicial Magistrate u/s 190 of the Cr.P.C., automatically turns infructuous and therefore, there is no need to discuss the validity of that order. Hence, the revision relating to that order also turns infructuous.

On the basis of the aforesaid discussion, the criminal revision No. 1933/2012 filed by the applicants is hereby allowed. The order dated 28.8.2012 passed by the learned 19th Additional Sessions Judge, Jabalpur in S.T. No. 362/2012 is hereby set aside. The applicants are discharged from the charges of offence punishable u/s 460 and two counts charge of offence punishable u/s 302 /34 of IPC. They are not required to appear before the trial Court again. In the light of this order, the order dated 27.4.2012 passed by the learned Chief Judicial Magistrate also turns infructuous and therefore, the criminal revision No. 1146/2012 is hereby dismissed being infructuous. A copy of the order be sent to the trial Court for information and compliance.