Uma Shankar Sharma vs Home Department & Ors

This petition has been filed under Article 226 of the Constitution of India to transfer the investigation of the Crime No.03/2019 registered at Police

Station Udaypura, District Raisen to the Crime Investigation Department of M.P.

Brief facts of the case are that on 02.01.2019 complainant Suresh lodged a report at P.S. Udaypura averring that he drove Pawan Rajput's vehicle

bearing registration No.MP-04-CN-2507. On 01.01.2019 at 08:00 PM when he was passing from the front of petitioner Umashankar's office with the

same vehicle along with Pawan Rajput and Ramesh Rajput, on the way, when they reached in front of Rathi's shop, they saw that 15-20 men were

standing armed with stick, spears (farsa) and gun in front of petitioner Uma Shankar's office. As he slowed the vehicle down, these people ran

towards his vehicle, so he turned the vehicle back meanwhile some of the persons fired at the vehicle out of which one bullet hit Ramesh Rajput’s

piercing the rear glass of the vehicle. They took Ramesh Rajput to hospital where the doctor declared him dead. Petitioner Uma Shankar had such a

deadly attack done on them due to some financial dispute going on between him and Pawan Rajput. It has been learnt that the bullet was fired by co-

accused Manish. On that police registered Crime No.3/2019 for the offence punishable under Sections 147, 148, 149, 307, 302, 120-B, 34 of IPC read

with Section 25, 27 of Arms Act, 1959 against petitioner Umashankar and co-accused Manish and other unknown persons and investigated the

matter.

During investigation, Police recorded the statements of Pawan Rajput and other witnesses and also collected the CCTV footage of the camera

fitted at the petitioner Umashankar's office and nearby Pawan Khatik's Shop and call details of the cell phone of Pawan Rajpoot. From that, it was

found that on the date of incident, at around 6 PM, when Pawan Rajput demanded his money due on petitioner Uma Shankar back, Uma Shankar and

his employee co-accused Mohit and Manish abused Pawan on phone and also threatened to kill him. Thereafter said incident occurred when Pawan

Rajput was going to Prem Nagar. It was also found that petitioner Uma Shankar and co-accused Mohit, Raju @ Rajendra Rajput, Subhash Sharma,

Rahul Sharma, Anil, Raghavendra, Rajesh @ Collector, Mansingh, Raman Sharma, Mahesh Chaudhari were included in group of persons who had

gathered on spot at the time of incident. They were present on the spot armed with weapons, So, police arrested them and after investigation filed

charge-sheet against the petitioner and other co-accused persons.

Learned counsel for the petitioner submitted that police did not conduct a fair investigation. The FIR lodged by Suresh regarding the incident and the

case diary statements of Suresh and Pawan Rajpoot, the alleged eye witness of the incident recorded by the police during the investigation of the

crime do not match with the postmortem report of the deceased Ramesh. According to the prosecution story, it is alleged that the gunshot was fired at

the car from the rear and the bullet hit Ramesh Rajpoot who was riding in the backseat and Pawan Rajpoot was riding in the front passenger seat.

While in the autopsy report of the deceased Ramesh Rajpoot, it is mentioned that the entry wound of bullet was found on his chest where a blackening

was also seen. Likewise, the CCTV footage of Government Hospital, Udaipura which has not intentionally been seized by the

investigating officer, shows that when the said vehicle reached at Hospital after the incident deceased Ramesh Rajpoot was riding in the front

passenger seat of the vehicle along with a gun and Pawan Rajpoot was driving the vehicle and Suresh Kushwaha was riding in the back seat. From

the said footage, it can also be seen that after stopping the car, Pawan Rajpoot got out from the driver seat, Ramesh was riding in the front passenger

seat armed with the gun. In the third shot, it can also be seen that some people picked the deceased and put on the stretcher while Pawan was

standing nearby and watching the same. Afterwards, Pawan and Suresh checked the car and left from there in a few minutes. From the CCTV

footage collected by the police from the camera fitted nearby the spot, it is apparent that the deceased had not died in the manner being portrayed by

the police. No person from the petitioner party fired at the deceased and police did not collect the spot inspection report and did not conduct the inquiry

properly. So for an effective and fair trial, the investigation of the Crime No.03/2019 registered at Police Station Udaipura, District Raisen be

transferred to the Crime Investigation Department of M.P. In this regard he also placed reliance upon the Apex Court’s judgements passed in

Bharati Tamang vs Union of India and others, (2013) 15 SCC 578, Babubhai vs State of Gujarat and others (2010) 12 SCC 254 and Vinay Tyagi vs

Irshad Ali @ Deepak and others, (2013) SCC 762.

Learned counsel for the State opposed the prayer and submitted that whatever evidence was available regarding the incident has all been collected

by the police during the investigation. Police have collected the footage of both the CCTV cameras mounted near the spot. The statements of all the

persons who were present near the spot at the time of the incident have also been recorded by the police. The car and other articles seized by the

police during the investigation were also examined by forensic experts and reports were obtained from them. Therefore, it cannot be said that proper

investigation of the incident was not done by the police. It is true that in the autopsy report of the deceased Ramesh Rajpoot it is mentioned that the

entry wound of bullet was found on the chest of the deceased, while in the FIR lodged by Suresh and the case diary statement of Pawan, it is

mentioned that the bullet was fired from the backside. But possibly at the time of the firing, the deceased might have been looking back, due to which

the bullet hit the deceased's chest. The bullet holes were found on the rear glass and rear door of the vehicle. So it is certain that the gunshot was

fired from the backside of the car in which the deceased was riding at the time of the incident. It is alleged that when the deceased was passing in

front of the petitioner's office, petitioner and other co-accused persons were standing outside the petitioner Umashankar's office, armed with the

weapons. There is no camera installed at that place. For this reason, it does not appear from CCTV footage that from where the bullet was fired and

by whom. In the camera only the fact that some persons were running behind Pawan's car armed with weapons was recorded. The bullet which

struck the deceased was fired from inside the vehicle in which Ramesh was travelling is an illusion generated by the petitioner behind which there is

no solid basis. At the time of the incident, the deceased allegedly had a 12 bore gun. Whereas according to the report of the forensic expert, the bullet

that was found in the chest of the deceased was fired from a rifle. Whether the statements of Suresh and Pawan Rajpoot about how the incident

occurred are true or not, can only be ascertained after trial, not by the investigation of the crime by any other agency. It cannot be said that proper

investigation was not done by the police. He further submitted that the transfer of investigation can be done only in exceptional cases. There are no

exceptional circumstances justifying the transfer of investigation, so petition be rejected.

This court has gone through the record and arguments put forth by the learned counsels of the parties. The facts of the cases Bharati Tamang

(supra), Babubhai (supra) and Vinay Tyagi (Supra) relied upon by the learned counsel of the petitioner do not match with the present case. In the

above mentioned cases, Apex court directed for further investigation on the peculiar facts and circumstances of those cases which do not exist in this

case. Apex Court in the case of Bimal Gurung vs Union Of India (2018) 15 SCC 480 after referring earlier judgments of the Apex Court held “The

law is thus well settled that power of transferring investigation to other investigating agencies must be exercised in rare and exceptional cases where

the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police

lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran vs. Superintendent of Police, CBCID South Zone,

Of Police, (2013) 12 SCC 480, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of

investigation from State Police to CBI such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the

top officials of the investigating agency thereby allowing them to influence the investigation, or (iii)where investigation prima facie is found to be

tainted/biased.â€​

If we examine the instant case in the light of above principles laid down by the Apex Court regarding transfer of the investigation of the crime, the

expert report, in this case clearly mentioned that the holes of gunshot fire were found on the rear door and the rear glass of the car, which suggests

that the gunshot was fired from the backside of the car. Even in the postmortem report of deceased Ramesh, it is mentioned that out of the three entry

wounds of gunshots found on his body one was found on his chest and two on his back, which shows that the deceased Ramesh received three bullet

injuries. During the investigation police recorded the statements of the shop owners and their employees located near the spot. From the statements of

Sakshi Madan Singh, Narendra Singh Sunil Verma, Lucky Rai and Om Prakash whose shops are around the scene, it appears that several persons

were present near Pawan Khatik’s hotel at the time of the incident and fired several bullets thereon. The footage of CCTV cameras installed in

the office of Umashankar Sharma also reveals that there were weapons in the office at the time of the incident and many armed persons were

present there. From the investigation report, it is clear that Police have collected the CCTV footage of the camera fitted in the petitioner's office and

the camera fitted in a hotel located near the spot. The car and other articles seized by the police during the investigation were examined by forensic

experts and the reports were obtained therefrom by the police. The Forensic Expert inspected the scene of crime and the damaged car, the following

day whose report is also filed along with the charge-sheet. Police also recorded the statements of the persons who allegedly saw the incident or have

knowledge of the facts related to the incident. No conclusions can be drawn regarding the veracity of statements given by Suresh and Pawan Rajput

at this stage. The charge sheet has also been filed by the police against the petitioner, so there is no need to transfer the investigation of Crime

No.03/2019 registered at P.S. Udayapura to another Agency.

Hence petition is dismissed.