Radheshyam Kushwah vs The State Of Madhya Pradesh
2022 Latest Caselaw 4926 MP

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          THE HIGH COURT OF MADHYA PRADESH
                      CRR-3816-2019
        Radheshyam Kushwah Vs. State of MP and another

Gwalior, Dated : 06/04/2022

      Shri R.K. Sharma, Senior Counsel with Shri V.K. Agarwal,

Counsel for the applicant.

      Shri A.K. Nirankari, Counsel for the respondent No. 1/State.

      Shri Sanjay Gupta, Counsel for the respondent No. 2.

      This criminal revision under Section 397, 401 of CrPC has been

filed against the order dated 19.07.2019 passed by Fourth Additional

Sessions Judge, Morena in Sessions Trial No.84/2018, by which the

Trial Court by exercising its power under Section 319 of CrPC has

summoned the applicant as an additional accused.

2.    It is submitted by the counsel for the applicant that the

complainant lodged an FIR on 28.06.2017 at 22:50 on the allegations

that there is a public way in front of the house of the applicant and

whenever the said public way is used by his family members, then the

family members of the applicant used to abuse them and, accordingly,

on 28.06.2017 the Revenue Officers had come from Tahsil Office for

demarcation purposes. Her husband Kapil, father-in-law Kamlesh and

younger brother-in-law Sahdev were sitting in front of their house at

06:30 PM. On the issue of demarcation, the applicant as well as Raju

armed with Farsa, Laxman armed with Sabbal, Sudama armed with

spade, Pradeep armed with axe, Khachera armed with lathi and three

more persons whose names are known to them, came to the house of
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          THE HIGH COURT OF MADHYA PRADESH
                      CRR-3816-2019
        Radheshyam Kushwah Vs. State of MP and another

the complainant and the applicant and Raju started scolding her father-

in-law that now he would deal with the demarcation and, accordingly,

the applicant and Raju gave a Farsa blow on the head of father-in-law

Kamlesh, as a result, he sustained injuries. When her husband Kapil

and younger brother-in-law Sahdev tried to save their father, then

Laxman, Sudama, Pradeep, Khachera and three persons who had come

with them started assaulting them, as a result, they have sustained

multiple injuries. When the complainant and her mother-in-law tried

to intervene in the matter, then they too were assaulted by fists and

blows. It is submitted that the statement of the complainant was

recorded under Section 161 of CrPC and in the said statement also,

she had levelled the said allegations.

3.    During pendency of the investigation, a parallel enquiry was

conducted by the Dy. Superintendent of Police, who gave a finding

that at the time of incident, the applicant was not present on the spot

and it appears from the mobile location that he was in Jaura Khurd.

Accordingly, on 21.09.2017 the SHO Police Station - Station Road,

Morena, after relying upon the enquiry report submitted by C.S.P.,

Morena, came to a conclusion that the applicant was not present on

the spot and, accordingly, the mobile location of the applicant was

collected and the statements of the witnesses were recorded, who

stated that the applicant is suffering from paralysis and was under
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          THE HIGH COURT OF MADHYA PRADESH
                      CRR-3816-2019
        Radheshyam Kushwah Vs. State of MP and another

treatment at the time of incident, therefore, permission was sought not

to file charge-sheet against the applicant as well as to file charge-sheet

against the remaining co-accused persons. Accordingly the applicant

was not charge-sheeted.

4.    It is submitted that injured Kamlesh (PW-1) in her examination-

in-chief, made the same allegations, which were alleged by her in the

FIR, but he improved her version by stating that blunt side of the

Farsa was used for assaulting him on the head. Thus, it is clear that

there is a material departure from the allegations made by the

complainant Smt. Neelam Dandotiya in the FIR as she has not alleged

that the blunt side of Farsa was used. It is submitted that as per the

pre-MLC, lacerated wound was found on the right parietal region of

skull. It is further submitted that while deciding the application filed

under Section 319 of CrPC, this Court can always take the question of

plea of alibi into consideration. To buttress his contention, counsel for

the applicant has relied upon the judgment passed by the Supreme

Court in the case of Brijendra Singh and others Vs. State of

Rajasthan reported in AIR 2017 SC 2839.

5.    Per contra, the revision is vehemently opposed by the counsel

for the State as well as the counsel for the complainant. It is submitted

by Shri Sanjay Gupta that a parallel enquiry under Section 36 of CrPC

during pendency of investigation is not maintainable. It is true that the
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          THE HIGH COURT OF MADHYA PRADESH
                      CRR-3816-2019
        Radheshyam Kushwah Vs. State of MP and another

Investigating Officer claims that he had also verified the enquiry

report by collecting the mobile location of the applicant as well as by

recording the statement of the witnesses, but no documentary evidence

was collected to show that the applicant was under treatment at the

time of incident. Merely because earlier he had suffered paralytic

stroke, it cannot be said that he was confined to bed. Furthermore, the

plea of alibi is to be proved by the accused by leading cogent and

reliable evidence and mere mobile location is not conclusive to hold

that the holder of the said mobile was also at that particular place and

at the most, it can be said that particular mobile was kept at a

particular place.

6.    Heard the learned counsel for the parties.

7.    The Supreme Court in the case of Sagar Vs. State of U.P. and

another decided on 10/3/2022 in Criminal Appeal No.397/2022 has

held as under:-

      "8. The scope and ambit of Section 319 of the Code
      has been well settled by the Constitution Bench of this
      Court in Hardeep Singh v. State of Punjab and others
      and paras 105 and 106 which are relevant for the purpose
      are reproduced hereunder:
                   "105. Power under Section 319 CrPC is a
             discretionary and an extra-ordinary power. It is
             to be exercised sparingly and only in those
             cases where the circumstances of the case so
             warrant. It is not to be exercised because the
             Magistrate or the Sessions Judge is of the
             opinion that some other person may also be
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         THE HIGH COURT OF MADHYA PRADESH
                     CRR-3816-2019
       Radheshyam Kushwah Vs. State of MP and another

            guilty of committing that offence. Only where
            strong and cogent evidence occurs against a
            person from the evidence led before the court
            that such power should be exercised and not in
            a casual and cavalier manner.
                   106. Thus, we hold that though only a
            prima facie case is to be established from the
            evidence led before the court, not necessarily
            tested on the anvil of cross-examination, it
            requires much stronger evidence than mere
            probability of his complicity. The test that has
            to be applied is one which is more than prima
            facie case as exercised at the time of framing of
            charge, but short of satisfaction to an extent that
            the evidence, if goes unrebutted, would lead to
            conviction. In the absence of such satisfaction,
            the court should refrain from exercising power
            under Section 319 CrPC. In Section 319 CrPC
            the purpose of providing if "it appears from the
            evidence that any person not being the accused
            has committed any offence" is clear from the
            words "for which such person could be tried
            together with the accused". The words used are
            not "for which such person could be
            convicted". There is, therefore, no scope for the
            court acting under Section 319 CrPC to form
            any opinion as to the guilt of the accused."

8.    The Supreme Court in the case of Sartaj Singh vs. State of

Haryana & Anr. reported in (2021) 5 SCC 337 has held as under:-

             "13.1.7. While answering Question (v), namely,
       in what situations can the power under Section 319
       CrPC be exercised: named in the FIR, but not charge-
       sheeted or has been discharged, this Court has
       observed and held as under: (Hardeep Singh
       case [Hardeep Singh v. State of Punjab, (2014) 3 SCC
       92 : (2014) 2 SCC (Cri) 86] , SCC pp. 139-41, paras
       112 & 116)
                  "112. However, there is a great difference
            with regard to a person who has been discharged.
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  THE HIGH COURT OF MADHYA PRADESH
              CRR-3816-2019
Radheshyam Kushwah Vs. State of MP and another

   A person who has been discharged stands on a
   different footing than a person who was never
   subjected to investigation or if subjected to, but
   not charge-sheeted. Such a person has stood the
   stage of inquiry before the court and upon
   judicial examination of the material collected
   during investigation, the court had come to the
   conclusion that there is not even a prima facie
   case to proceed against such person. Generally,
   the stage of evidence in trial is merely proving
   the material collected during investigation and
   therefore, there is not much change as regards the
   material existing against the person so
   discharged. Therefore, there must exist
   compelling circumstances to exercise such
   power. The court should keep in mind that the
   witness when giving evidence against the person
   so discharged, is not doing so merely to seek
   revenge or is naming him at the behest of
   someone or for such other extraneous
   considerations. The court has to be circumspect
   in treating such evidence and try to separate the
   chaff from the grain. If after such careful
   examination of the evidence, the court is of the
   opinion that there does exist evidence to proceed
   against the person so discharged, it may take
   steps but only in accordance with Section 398
   CrPC without resorting to the provision of
   Section 319 CrPC directly.
                             ***

116. Thus, it is evident that power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC."

13.2 Considering the law laid down by this

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination- in-chief of the witness concerned and the court need not wait till the cross-examination of such a witness and the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.

15. At this stage, it is required to be noted that right from the beginning the appellant herein- injured eyewitness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge- sheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not charge-sheeted. In any case, in the examination-in-chief of the appellant- injured eyewitness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein-injured eyewitness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the court. Therefore, as such, the learned trial court was justified in directing to issue summons against the private respondents herein to

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

face the trial."

9. Thus, the only question which is relevant for consideration is as

to whether the evidence which is available on record is sufficient to

summon the applicant as an additional accused in exercise of power

under Section 319 of CrPC or not ?

10. From the FIR, it is clear that the applicant was the mastermind

as he was obstructing the family members of the complainant to use

public way for passing in front of his house.

11. So far as the question of parallel enquiry by a Senior Officer

during pendency of the investigation is concerned, this Court in the

case of Deepak @ Preetam Verma and another vs. State of M.P.

and another by order dated 11/9/2018 passed in M.Cr.C.

No.12592/2018 had held that a parallel enquiry by a superior officer

under Section 36 of CrPC is not maintainable during the pendency of

investigation. The said order has been affirmed by the Supreme Court

by order dated 18/1/2022 passed in SLP (Criminal) No.1345/2019

(Surendra Singh Gaur vs. State of M.P. and others) and held as

under:-

"The present petitioners have approached in their own rights to question the observations/remarks which have been recorded by the learned Judge in the order impugned in reference to the manner in which an inquiry was conduced parallel to the investigation which was undertaken by the Investigating Officer in reference to FIR in Crime

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

No. 75/2017.

We have heard the learned Counsel for the parties at length and we are of the view that neither Section 36 of the Code nor the circulars of which a reference has been made during the course of arguments in any way provides for holding an independent and parallel inquiry along with the investigation going ahead in reference to the FIR in Crime No. 75/2017.

In the instant case, a complaint was made for holding fair investigation in reference to the FIR in Crime No. 75/2017, we find no reason the officers under whose instructions an independent inquiry was initiated apart from the investigation which was going ahead in reference to the crime, in contravention of the procedure prescribed by law.

After the matter is examined at length by the High Court under the impugned judgment(s) for which reference has been made that an independent inquiry which was conducted in reference to the FIR in Crime No. 75/2017 was in no manner contemplated by law and in this reference observations have been made in regard to the conduct of the officers in holding an inquiry in reference to the FIR in Crime No. 75/2017.

The learned Counsel appearing on behalf of the State filed their counter affidavit and has placed on record a circular dated 26th June, 2010 under the instructions of the Inspector General of Police, Madhya Pradesh. We find that the circular of the State Government is in conformity with Section 36 of the Code, but the procedure which was followed by the officers in holding inquiry was not in consonance with the circular of which a reference has been made by the High Court under the impugned judgment.

After hearing the learned Counsel for the parties and taking note of the material on record, we find no error being committed by the High Court in the judgment impugned, which may call for our interference under Article 136 of the Constitution. Consequently, both the petitions fail and are dismissed.

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

Pending application(s), if any, shall stand disposed of."

12. Thus, during pendency of the investigation, a parallel enquiry

by the Senior Police Officer is not permissible.

13. So far as the contention of the counsel for the applicant that

since the Investigating Officer had also taken note of the enquiry

report and had also conducted the investigation on his own with

regard to the presence of the applicant at Jaura Khurd, therefore, it

cannot be said that non-filing of the charge-sheet against the applicant

was solely based on the enquiry report submitted by the Senior Police

Officer is concerned. As already pointed out, the police had relied

upon the circumstances of location of mobile as well as ocular

statement of some witnesses to show that the applicant was under

treatment in Jaura Khurd and was not present at the place of incident.

Mobile location cannot be a conclusive evidence to show that the

holder of the mobile was also at that particular place. A clever person

may hand over his mobile to some other person with an instruction to

go to a distant place so that the location of the mobile may be recorded

at that particular place. Thus, the location of the mobile by itself does

not mean that holder of the mobile was also at that particular place.

Therefore, by no stretch of imagination, it can be said that since the

location of the mobile was found at a particular place, therefore, the

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

holder of the mobile was also at that place only.

14. So far as the ocular statement of the witnesses with regard to the

treatment of the applicant is concerned, the same cannot be

appreciated unless and until they are found correct on the anvil of

cross-examination. The police did not rely upon any documentary

evidence to show that the applicant was under treatment at different

place at the time of incident. No medical prescription, hospital

admission register, discharge ticket etc. have been collected. Although

the applicant has relied upon the judgment passed by the Supreme

Court in the case of Brijendra Singh (supra) to submit that the plea

of alibi found proved by the police can always be taken into

consideration while deciding the application under Section 319 of

CrPC, but the facts of the said case are distinguishable from the facts

of the present case. In the case of Brijendra Singh (supra), the

Supreme Court after relying upon the duty certificate, duty log book,

prescription, evidence of doctor revealing visit of additional accused

for sickness, medicines slip collected during the investigation prima

facie found proved that the accused persons were not present at the

place of incident and were at Jaipur which was 175 km away from the

place of incident. However, as already pointed out, in the present case,

there is nothing on record to show that the applicant was under

treatment at the time of incident. Accordingly, the submission made by

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

the counsel for the applicant that the applicant was under treatment at

the time of incident and was not present on the spot is hereby rejected.

However, it is made clear that the rejection of plea of alibi at this stage

would not preclude the applicant to prove his defence of plea of alibi

before the Trial Court by leading cogent and reliable evidence and it is

made clear that the aforementioned observation has been made in the

light of limited scope of interference by this Court at this stage and the

Trial Court shall not get prejudiced or influenced in any manner by

any of the observation made in this order with regard to plea of alibi

of the applicant.

15. It is next contended by the counsel for the applicant that the

complainant had merely mentioned that Farsa was used for assaulting

on the head of Kamlesh, whereas Kamlesh in his Court evidence has

stated that blunt side of Farsa was used with a solitary intention to

bring the injury in conformity with the medical evidence as only

lacerated wound has been found on the head of Kamlesh. It is further

submitted that Kamlesh in his statement recorded under Section 161

of CrPC had not mentioned that blunt side of Farsa was used.

16. Heard the learned counsel for the parties.

17. In chapter 29 of Modi's Jurisprudence under the heading

Regional Injuries, it has been mentioned that a scalp wound by a blunt

weapon may resemble an incised wound, hence the edges and ends of

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

wound must be carefully seen...."

18. The Supreme Court in the case of Putchalapalli Naresh Reddy

v. State of A.P. reported in (2014) 12 SCC 457 has held as under:-

"15. In the first place, we find that other witnesses have given the same deposition. It is possible that the statement of the witness [PW 3] is slightly inaccurate or the witness did not see properly which side of the axe was used. It is equally possible that the sharp edge of the axe is actually very blunt or it was reversed just before hitting the head. It is not possible to say what is the reason. That is however no reason for discarding the statement of the witness that A-1 Puchalapalli Parandhami Reddy hit the deceased with a battleaxe, as is obvious from the injury. Moreover, it is not possible to doubt the presence of this witness, who has himself been injured. Dr M.C. Narasimhulu, PW 13, Medical Officer, has stated in his evidence that on 25-11-1996 at about 3.30 p.m., he examined this witness PW 3 P. Murali Reddy and found the following injuries:

"(1) Diffused swelling with tenderness over middle ⅓rd and back of left forearm.

(2) A lacerated injury skin-deep of about ½″ over the back of head. Bleeding present with tenderness and swelling around."

19. Since the skull bone is the hardest bone of a human body and

therefore, sometimes lacerated wound may appear as incised wound.

Similarly, incised wound may also appear as lacerated wound because

of the location of injury. Furthermore, it cannot be presumed that the

Farsa would always contain a sharp blade. With continuous use of

Farsa, its blade may become blunt, which may cause lacerated wound

also.

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

20. Furthermore, the injured Kamlesh has specifically stated in the

Court evidence that blunt side of Farsa was used. It is not out of place

to mention that Kamlesh is not the complainant, but he is the injured.

What would be the effect of the Court evidence, is yet to be

considered by the Trial Court, but this discrepancy in the evidence of

the witnesses cannot be taken to his discredit for rejecting the

application filed under Section 319 of CrPC.

21. It is next contended by the counsel for the applicant that since

the applicant is suffering from paralysis, therefore, he cannot use

Farsa.

22. Counsel for the applicant could not point out the part of the

body which has suffered paralytic stroke. Every paralytic stroke would

not incapacitate the patient, although it may restrict the movement of

the adversely affected part of the body.

23. Considering the fact that in the present case, the applicant was

cited as a mastermind in the FIR, his active role has also been

specifically mentioned in the statement of the witnesses recorded

under Section 161 of CrPC and his active role has also been alleged in

the evidence recorded in the trial, coupled with the fact that the

parallel enquiry conducted by Senior Police Officer during pendency

of the investigation is not maintainable and the degree of satisfaction

of the Investigating Officer with regard to plea of alibi of the applicant

THE HIGH COURT OF MADHYA PRADESH CRR-3816-2019 Radheshyam Kushwah Vs. State of MP and another

is not sufficient to hold that the material collected by the Investigating

Officer was reliable to hold that the applicant was not present on the

spot, this Court is of the considered opinion that the Trial Court did

not commit any mistake by exercising its power under Section 319 of

CrPC.

24. Accordingly, the order dated 19.07.2019 passed by Fourth

Additional Sessions Judge, Morena in Sessions Trial No.84/2018 is

hereby affirmed.

25. The revision fails and is hereby dismissed.

26. However, by way of abundant caution, it is once again observed

that any observation made by this Court in this order is in the light of

the limited scope of interference and the Trial Court shall decide the

trial strictly on the basis of material which would come on record

without getting influenced or prejudiced by any of the observations.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.04.08 17:01:51 +05'30'