Madhya Pradesh High Court
Smt. Rohani Ahirwar vs Mukesh Ladiyai on 10 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C.No.8052/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 10th OF MAY, 2024
MISC. CRIMINAL CASE No. 8052 of 2024
BETWEEN:-
SMT. ROHANI AHIRWAR W/O LATE SHRI
SHASIKANT AHIRWAR, AGED ABOUT 28 YEARS,
OCCUPATION: HOUSE WIFE R/O RAJIV NAGAR
WARD P.S. MOTINAGAR TEHSIL AND DISTRICT
SAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SHUKNANDAN PANDEY - ADVOCATE)
AND
MUKESH LADIYAI S/O SHRI JEEVAN LAL
LADIYA, AGED ABOUT 35 YEARS, R/O
DHARAMSHRI AMEDEDKAR WARD SAGAR P.S.
MOTINAGAR DISTRICT SAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(NONE)
This application coming on for admission this day, the court
passed the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed
seeking following relief(s):-
"It is, therefore prayed that this Hon'ble Court may
kindly be pleased to Set-side the order dated
15.03.2022 - in UNCR No 15/2019 and order dated
23.01.2024 in Criminal Revision No. 06/2022 pass by
the both the court below, and punishable the
respondent offence u/s 302, 390, 378, 310, 404, 118,
119 of IPC, in the interest of justice."
2. It is submitted by counsel for applicant that the husband of
the applicant was killed on 10.12.2015 in the Forest Out Post, Village
Bagwara. Although, the inquest inquiry was conducted by the Police
but no charge-sheet was filed and accordingly the
complainant/applicant filed a complaint under Section 200 of Cr.P.C.
Her Statement under Section 200 of Cr.P.C. was also recorded. By
order dated 15.03.2022, the JMFC, Deori, District Sagar rejected the
complaint. Being aggrieved by the said order, the applicant preferred a
revision, which was too dismissed by order dated 23.01.2024 by the
Additional Session Judge, Deori to the Court of Additional Sessions
Judge, Deori, District Sagar in Criminal Revision No.06/2022.
3. Challenging the orders passed by the Courts below, it is
submitted by counsel for applicant that in the complaint, the date of the
incident was mentioned as 10.12.2015 but since the complainant had
received the information of death of her husband on 19.12.2015,
therefore erroneously she stated in her statement under Section 200 of
Cr.P.C. that her husband died on 19.12.2015.
4. It is further submitted that the trial Magistrate has refused to
rely on the statement of the applicant on the ground that she is a
hearsay witness and has not examined any person from whom she had
got an information. It is further submitted that the Police during the
inquest enquiry had recorded the statement of one Mukesh Ladhiya
who had admitted that he had killed the deceased and in spite of that
not only the Police filed the closure report but the trial Magistrate also
did not give any importance to the said extra judicial confession.
5. Considered the submissions made by counsel for applicant.
6. The applicant has filed the statement of Mukesh Ladhiya,
which was recorded under Section 174 of Cr.P.C. in which he had
stated that after consuming Ganja, he and the deceased went to the
Forest Out Post, which was locked from the out side. After opening the
lock, they went inside the Out Post. Thereafter, again they had Ganja
and deceased consumed some pills. In the Morning, when this witness
woke up, then he came out of the Out Post in search of hand pump.
When he tried to wake up the deceased but could not succeed.
Therefore, when he removed the quilt, then he saw that one stone was
lying by the side of the deceased and blood was oozing out from his
ear. Therefore, he got panic. He checked the deceased and found that
he was no more. With an intention to inform the Police, he took out
motorcycle and locked the Out Post from outside. However, the
motorcycle went out of order on the way. At about 10:00 AM, he
boarded a bus and threw his shirt as well as key of motorcycle and Out
Post and came back to his house. Since he was afraid, therefore he did
not narrate the incident to anybody because everybody would have
thought that the offence was committed by him.
7. Since, the counsel for applicant had initially given an
impression that Mukesh Ladhiya had admitted that he had killed the
deceased, therefore the counsel for applicant was directed to point out
from the statement of Mukesh Ladhiya as to whether he had admitted
his guilt or not.
8. After going through the statement, he fairly conceded that no
such admission was made by Mukesh Ladhiya. However, an attempt
was made by counsel for applicant that since the Forest Out Post was
locked from inside and only the deceased and Mukesh Ladhiya were
inside the locked room, therefore, in view of Section 106 of Evidence
Act, a presumption can be drawn against Mukesh Ladhiya that he was
the author of offence.
9. Accordingly, the counsel for applicant was requested to point
out from the statement of Mukesh Ladhiya that before going to bed,
they had locked the room from inside. Again, the counsel for applicant
admitted that there is no such averment in the statement made by
Mukesh Ladhiya.
10. Thus, it is clear that certain facts which were neither hear and
there were projected by counsel for the applicant during the course of
arguments.
11. Be that whatever it may be.
12. Since, the deceased as well as Mukesh Ladhiya were under
the influence of Ganja, therefore, if Mukesh Ladhiya could not wake
up at the time when the deceased was killed, then that by itself cannot
be a ground to raise an adverse presumption against Mukesh Ladhiya.
Furthermore, the Police has also filed the Closure report and the
outcome of the said closure report is not known.
13. Be that whatever it may be.
14. So far as the statement of the complainant recorded under
Section 200 of Cr.P.C is concerned, this Court has gone through the
same. She has stated that when she came back to her matrimonial
house, then she not informed by her relatives about the offence and she
was also not allowed to enter inside her matrimonial house. Thereafter,
she had narrated the doubt that Mukesh Ladhiya must have committed
the offence because Mukesh was having information that the deceased
is having money and Mukesh also did not inform anybody after the
incident.
15. If the entire statement of the complainant recorded under
Section 200 of Cr.P.C. is seen, then except expressing the suspicion
nothing substantial has been pointed out by the complainant to show
that there is a sufficient cause for taking cognizance for issuance of
process.
16. The word "Sufficient ground" for taking cognizance has been
explained by Supreme Court in the case of Shivjee Singh Vs.
Nagendra Tiwary and Others reported in (2010) 7 SCC 578 has held
as under:-
"18. The expression "sufficient ground" used in
Sections 203, 204 and 209 means the satisfaction
that a prima facie case is made out against the
person accused of committing an offence and not
sufficient ground for the purpose of conviction.
This interpretation of the provisions contained in
Chapters XV and XVI CrPC finds adequate
support from the judgments of this Court
in Ramgopal Ganpatrai Ruia v. State of
Bombay [AIR 1958 SC 97 : 1958 Cri LJ 244 :
1958 SCR 618], Vadilal Panchal v. Dattatraya
Dulaji Ghadigaonkar [AIR 1960 SC 1113 : 1960
Cri LJ 1499 : (1961) 1 SCR 1], Chandra Deo
Singh v. Prokash ChandraBose [AIR 1963 SC
1430 : (1963) 2 Cri LJ 397 : (1964) 1 SCR 639]
, Nirmaljit Singh Hoon v. State of W.B. [(1973) 3
SCC 753 : 1973 SCC (Cri) 521], Kewal
Krishan v. Suraj Bhan [1980 Supp SCC 499 :
1981 SCC (Cri) 438], Mohinder
Singh v. Gulwant Singh [(1992) 2 SCC 213 :
1992 SCC (Cri) 361] and Chief Enforcement
Officer v. Videocon International Ltd. [(2008) 2
SCC 492 : (2008) 1 SCC (Cri) 471].
19. In Chandra Deo Singh v. Prokash Chandra
Bose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 :
(1964) 1 SCR 639], it was held that where there
was prima facie evidence, the Magistrate was
bound to issue process and even though the
person charged of an offence in the complaint
might have a defence, the matter has to be left to
be decided by an appropriate forum at an
appropriate stage. It was further held that the
issue of process can be refused only when the
Magistrate finds that the evidence led by the
complainant is self-contradictory or intrinsically
untrustworthy.
20. In Kewal Krishan v. Suraj Bhan [1980 Supp
SCC 499 : 1981 SCC (Cri) 438], this Court
examined the scheme of Sections 200 to 204 and
held: (SCC p. 503, para 10)
"10. ... At the stage of Sections
203 and 204 of the Criminal
Procedure Code in a case exclusively
triable by the Court of Session, all
that the Magistrate has to do is to see
whether on a cursory perusal of the
complaint and the evidence recorded
during the preliminary inquiry under
Sections 200 and 202 of the
Criminal Procedure Code, there is
prima facie evidence in support of
the charge levelled against the
accused. All that he has to see is
whether or not there is 'sufficient
ground for proceeding' against the
accused. At this stage, the Magistrate
is not to weigh the evidence
meticulously as if he were the trial
court. The standard to be adopted by
the Magistrate in scrutinising the
evidence is not the same as the one
which is to be kept in view at the
stage of framing charges."
21. The aforesaid view was reiterated
in Mohinder Singh v. Gulwant Singh [(1992) 2
SCC 213 : 1992 SCC (Cri) 361] in the following
words: (SCC p. 217, para 11)
"11. ... The scope of enquiry
under Section 202 is extremely
restricted only to finding out the
truth or otherwise of the allegations
made in the complaint in order to
determine whether process should
issue or not under Section 204 of the
Code or whether the complaint
should be dismissed by resorting to
Section 203 of the Code on the
footing that there is no sufficient
ground for proceeding on the basis
of the statements of the complainant
and of his witnesses, if any. But the
enquiry at that stage does not partake
the character of a full-dress trial
which can only take place after
process is issued under Section 204
of the Code calling upon the
proposed accused to answer the
accusation made against him for
adjudging the guilt or otherwise of
the said accused person. Further, the
question whether the evidence is
adequate for supporting the
conviction can be determined only at
the trial and not at the stage of the
enquiry contemplated under Section
202 of the Code. To say in other
words, during the course of the
enquiry under Section 202 of the
Code, the enquiry officer has to
satisfy himself simply on the
evidence adduced by the prosecution
whether prima facie case has been
made out so as to put the proposed
accused on a regular trial and that no
detailed enquiry is called for during
the course of such enquiry."
(emphasis supplied)
22. The use of the word "shall" in the proviso to
Section 202(2) is prima facie indicative of
mandatory character of the provision contained
therein, but a close and critical analysis thereof
along with other provisions contained in Chapter
XV and Sections 226 and 227 and Section 465
would clearly show that non-examination on oath
of any or some of the witnesses cited by the
complainant is, by itself, not sufficient to denude
the Magistrate concerned of the jurisdiction to
pass an order for taking cognizance and issue of
process provided he is satisfied that prima facie
case is made out for doing so. Here it is
significant to note that the word "all" appearing
in the proviso to Section 202(2) is qualified by
the word "his". This implies that the complainant
is not bound to examine all the witnesses named
in the complaint or whose names are disclosed in
response to the order passed by the Magistrate. In
other words, only those witnesses are required to
be examined whom the complainant considers
material to make out a prima facie case for issue
of process."
17. The complainant has also examined one Durga Prasad Ladiya
under Section 202 of Cr.P.C. Except, expressing his suspicion nothing
else was stated by him. It was specifically stated by Durga Prasad
Ladhiya as under:-
"ftlls ?kVuk ds laca/k esa eqds'k ij 'kd iSnk gksrk gS"
18. It is well established principle of law that opinion of a
witness has no sanctity in the eye of law because the witness is not an
expert.
19. Under these circumstances, this Court is of considered
opinion that the JMFC, Deori, District Sagar did not commit any
mistake by dismissing the complaint under Section 203 of Cr.P.C.
20. Accordingly, order dated 15.03.2022 passed by JMFC, Deori,
District Sagar in UNCR No.15/2019 and order dated 23.01.2024
passed by Additional Sessions Judge, Deori, District Sagar in
Cr.R.No.06/2022 are hereby affirmed.
22. The application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
VB*
VINAY KUMAR BURMAN
2024.05.10 18:54:36 +05'30'
