Vipin Singh @ Vishwaraj Singh vs State Of Madhya Pradesh

1 : Accused/Petitioner has filed this Criminal Revision under Section 397 read with Section 401 of Cr.P.C. to set aside the order dated 13.02.2019,

passed in Session Trial No.97/2017, by III Addl. Sessions Judge, Shahdol, District Shahdol (MP), whereby learned ASJ Shahdol framed the charge

against the accused/petitioner under Section 307 in alternative 307/34 and 427 of Indian Penal Code (hereinafter referred to as IPC for short) and

Section 11 (gha) (da) of Prevention of Cruelty to Animals Act and Section 6, 6(ka)/10/11 of M.P. Krishak Pashu Parirakshan Adhiniyam, 1959.

2 : The facts of the case in brief are that on 27.1.2017 in the night at 3:30 AM, complainant Shakti Mehra was sleeping in the room of his house,

situated at Chuhiri Gohparu nereby the road. At that time, co-accused came by driving the vehicle (Truck) bearing registration No.MP-16H/0913 and

intentionally dashed the said truck to his house and him also. Complainant Shakti Mehra received grievous injuries. Thereafter, co-accused ran away

from the spot. The said truck was loaded with 27 cattle. FIR was lodged. The said truck along with 27 cattle were seized. During the investigation, co-

accused Alok Yadav was arrested on 30.1.2017. His disclosure statement was recorded. He stated in his disclosure statement that he was

transporting said 27 cattle and present accused/petitioner received Rs.3,000/- from him for delivery of said cattle in safe condition at appropriate place.

Present accused/petitioner told him that if any person tried to stop the truck, then he will dash the same to that person. At the time of incident, one

person stopped his truck, then co-accused telephoned accused/petitioner. Accused/petitioner told the co-accused that he dashed the said truck situated

nearby a house, which entered into the house. Present accused/petitioner telephoned to mobile No.7389706005 through his mobile No.9691896631. So,

the accused/petitioner was made an accused in this case. After the investigation, charge sheet has been filed and learned trial Court framed the

charge against the accused/ petitioner for the aforesaid offence.

3 : Learned counsel for the accused/petitioner submits that no case is made out against the accused/petitioner for offence punishable under Sections

307 in alternative 307/34 and 427 of Indian Penal Code (hereinafter referred to as IPC for short) and Section 11 (gha) (da) of Prevention of Cruelty to

Animals Act and Section 6, 6(ka)/10/11 of M.P. Krishak Pashu Parirakshan Adhiniyam, 1959. The learned Court below has not considered the facts

of the case properly. There is no material available on record except the memorandum statement of co-accused. Alleged mobile phone used in this

incident was not seized. Telephonic conversation of alleged phone was also not seized. No mobile or memory card was seized during the investigation.

No eye witness is available on record. So, learned trial Court framed the charge against the accused/petitioner without any legal or material evidence,

therefore, learned counsel for the accused/petitioner prays for setting aside the impugned order and discharging the accused/ petitioner from the

aforesaid charges.

4 : Learned Panel Lawyer for the respondent-State submits that prima facie material is available on record, therefore, charge can be framed on grave

suspicion, therefore, there is no scope of setting aside the impugned order and discharging the accused/petitioner from the aforesaid charge.

5 : Heard both the learned counsel for the parties and perused the record.

6 : Before embarking on the facts of the case, it would be necessary to consider the legal aspects first. Since the petitioners have challenged the

charge framed by the trial Court, by way of filing this revision petition, therefore, I would prefer to deal with the provision of Section 227 of Code Of

Criminal Procedure, 1973, the same reads as under:

“227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and

the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record

his reasons for so doing.â€​

7 : If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure,

1973, comes into role, provision is also quoted as under:

“228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has

committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial

Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police

report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked

whether he pleads guilty of the offence charged or claims to be tried.â€​

8 : The Hon’ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990

SC 1962) has held as under:-

“7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court

observed in paragraph 18 of the Judgment as under:

The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of

Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him

to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in

respect of the commission of that offence"".

From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view

to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for

this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to

common sense or the broad probabilities of the case.â€​

9 : Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366, )the Hon’ble Supreme Court again has held

as under:-

“Thus, on a consideration of the authorities mentioned above, the following principles emerge:(1) That the Judge while considering the question of framing the

charges under section 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:

(2) 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.

(3) 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.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a

Post office or a mouth-piece 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.â€​

10 : Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-

“23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to

produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section

227 of the Code has not been correctly decided.â€​

11 : The Hon’ble Apex Court in the case of State of M.P.Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 32,2 has also held as

under:-

 “4………..It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against

the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the

accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence

which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence

evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In

Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228,

Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do

on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such

materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal

it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla

Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:

“From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a

view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court

may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is

opposed to common sense or the broad probabilities of the case. (emphasis supplied).

12 : It is evident from the record that at the time of incident, accused/petitioner was not present with the co-accused in the disputed truck. It is alleged

by the prosecution that at the time of incident, co-accused Alok Yadav was driving the vehicle. Co-accused Alok Yadav was arrested and his

disclosure statement was recorded on 30.1.2017, then he disclosed the name and act of the present accused/petitioner. There is no other material

available on record except the disclosure statement of co-accused Alok Yadav.

13 : On perusal of the record, it is evident that petitioner was involved as an accused in this case on the basis of disclosure statement of co-accused

Alok Yadav. The Investigating Officer has not collected any incriminating evidence against the petitioner accused at the instance of himself or

otherwise. The fact remains that only evidence against the petitioner is the disclosure statement of co-accused Alok Yadav. It is settled law that on

the basis of disclosure statement of co-accused charge cannot be framed. In this regard in the case of Prakash Singh Vs. State of M.P. MPWN 1994

(2) 72 has held as under:-

“The statement admissible under Section 27 of the Evidence Act are the statements which could be used as evidence against the maker and not against any other

person. Under section 27 only portions of information given by an accused which are admissible are those which relate distinctly to the facts discovered thereby.

Consequently statements by an accused which do not relate to aforesaid facts but involve other accused are inadmissible under Section 27 against the later. In the

case under the memorandum recorded of the two accused persons, a skeleton was recovered. However, the statement given by the two accused persons that the

applicant had also accompanied them and had helped them in the burial of the dead body is not an admissible piece of evidence and thus the applicant cannot be

roped in along with other accused persons by virtue of the statement given under Section 27 of the Evidence Act, nor he can be said to be a person on whose

information the skeleton of the child was recovered. No other evidence was pointed out by the counsel for the State whereby it could be said prima facie that there is

legal evidence on record to implicate the applicant in the commission of the offences charged against him.â€​

14 : Section 27 of Evidence Act reads as under:-

“27. How much of information received from accused may be proved.â€"Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved.â€​

Plain reading of Section 27 of Evidence Act indicates that statement under Section 27 of Indian Evidence Act is in exception to the ban imposed upon the courts to

utilize confessional statement made under Section 25 and 26 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the

police in whose custody that person remained at the time of making disclosure statement. The provisions of Section 27 of Indian Evidence Act further indicates that

the facts disclosed under Section 27 of the Evidence Act can be used only against the person making disclosure statement. It is evident that no fact was disclosed

pursuant to the memorandum under Section 27 of the Evidence Act of the accused/applicant.

15 : It is admitted position of law that no person can be implicated in any criminal case on the basis of memorandum statement of co-accused. Co-

accused disclosed this fact that his mobile No.9691896631 and accused/petitioner telephoned him through his mobile No.7389706005. It is also

admitted fact that during the investigation, no mobile, no memory card was seized from the accused/petitioner and other co-accused Alok Yadav. It is

also admitted fact that no documents were available on record on the basis of which it can be said that accused/petitioner has mobile No. 7389706005

and co-accused Alok Yadav has mobile No.9691896631. During the investigation, no document has been seized from the concerned Telecom

Company. Although telephonic conversation from Mobile No.7389706005 has been annexed in the case diary, but this mobile belongs to one Mr.

Lavsaran Singh, son of Shivram Pratap Singh, Karbi road Village Gohparu, Tehsil Sohagpur, District Shahdol. So, admittedly, this mobile number

7389706005, did not belong to the present accused/petitioner. Accused/petitioner was using mobile of Mr. Lav Saran Singh, which is not evident frm

the record. No statement has been recorded in this regard. No material is available with regard to conspiracy. No extra judicial confession against the

accused/applicant. There is no previous statement of any witness who saw accused/ applicant with co-accused Alok Yadav. There was no

conversation between accused/applicant and co-accused Alok Yadav, is available on record. So, it is evident that except memorandum of co-accused

Alok Yadav, no other material is available on record against the present accused/petitioner. Thus, there is no legal evidence against the

accused/petitioner on the basis of which it can be said that accused/petitioner committed any offence which is alleged by the prosecution and trial

Court. Therefore, it is evident that the trial Court committed grave error while framing the charge against the accused/petitioner. As such, no

interference in the impugned order is warranted.

16 : Accordingly, the Criminal Revision is allowed. The impugned order dated 13.02.2019, passed in Session Trial No.97/2017, by III Addl. Sessions

Judge, Shahdol, District Shahdol is hereby set aside. The accused/petitioner be discharged forthwith from the aforesaid charge.