Sanjeev Ahirwar and Another vs State of M.P.

M.K. Mudgal, J.

Heard the arguments of both the parties and perused the record.

The petitioners have filed this criminal revision u/s 397 read with section 401 Cr.P.C. being aggrieved by the order dated 28.2.2013 passed by the Court of Additional Sessions Judge Karera district Shivpuri in S.T. No. 103 of 2013 framing the charges u/s 302/34 and 404 of Indian Penal Code against the petitioners-accused. The learned counsel for the petitioners submits that the entire prosecution story is based on the circumstantial evidence and no witness has deposed in his statement against the accused for their involvement in the charged offences and they were falsely implicated in this case on the basis of recovery of the mobile of the deceased. The counsel further pleaded that there was no evidence prima facie on record against the accused for framing the charges. The learned counsel placing reliance upon the judgments in Union of India (UOI) Vs. Prafulla Kumar Samal and Another, and Raghu Thakur Vs. The State of M.P., has contended that the petitioners should be discharged from the aforesaid charges.

Refuting the submissions made by the petitioner''s counsel, the learned Panel Lawyer submits that the mobile of the deceased was recovered on 6.11.2012 from the possession of the accused Sanjeev on the information given by the co-accused Ravi on 6.11.2012 which was recorded u/s 27 of the Evidence Act. The said evidence cannot be overlooked at the time of charges being labeled against the petitioners. The accused are required here to explain as to how the mobile of the deceased came into their possession. The impugned order regarding charges is appropriate.

Considered the arguments and perused the record.

In Union of India Vs. Prafulla Kumar Samal and Another (Supra), the Hon''ble Apex Court has held as under:

The Judge while considering the question of framing the charges u/s 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

In exercising his jurisdiction u/s 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial, State of Bihar Vs. Ramesh Singh, and K.P. Raghavan and Another Vs. M.H. Abbas and Another, and Almohan Das and Others Vs. State of West Bengal,

On perusal of the statements of Hukum Singh, Mohar Singh, Smt. Kailashri wife of the deceased, Smt. Munni, Harnam Singh, Arvind, Ramkumar and Mukesh, the facts of the case in brief are revealed as follows:

On 2.5.2013 at 8 PM having received a call on Mobile from Ramsewak resident of village Danterdehi the deceased Mathoo went to village Danterdehi for getting a sale deed executed in his favour for which, he was having Rs. 60,000/- in his possession. Mathoo did not reach the said village. On being inquired, his dead body was found near Dinara in the field. The report was lodged in this regard. A case was registered by the police and started investigation. In the Postmortem, the death of Mathoo was found homicidal as several injuries were found on his body. The statements of the said witnesses were recorded who have not deposed in their statements regarding the involvement of the accused in murder of Mathoo. During investigation, it came on record from the statement of ASI Maseeh Khan Cyber Cell, Shivpuri that the Mobile of deceased bearing No. 09005116559 having IMEI. No. 910040862129264 and CDR. No. 910040866618262 was being used by the accused. On the basis of this information, the accused Ravi was arrested and interrogated and thereafter, as per the information given by the accused Ravi u/s 27 of the Evidence Act the mobile of the deceased was seized from the possession of the accused Sanjeev.

In view of the facts, it cannot be concluded that there was no evidence on record against the accused Ravi and Sanjeev for framing the said charges. The judgment rendered by this Court in Raghu Thakur (Supra) does not support the accused in this case as in the said case, no recovery was made from the accused Raghu Thakur on the information given by the co-accused Jagdish u/s 27 of the Evidence Act. In the instant case, on the information given by accused Ravi, the mobile of the deceased was seized from the possession of the accused Sanjeev.

Thus, no interference is warranted in the impugned order of the learned trial court. Therefore, the petition having no substance is hereby dismissed.

With the aforesaid observation, this petition stands disposed of. A copy of this order be sent to the trial Court concerned.