Full Judgment
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Revision No.1705/2011 Munnalal & another VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri Manish Datt, Senior Advocate along with Shri Nishant Datt, Advocate for the applicants. Shri S.K.Kashyap, Public Prosecutor for the State/ respondent. Shri Pradeep Naveriya, counsel for the objector. --------------------------------------------------------------------------- ORDER
(Passed on the 4th day of January, 2013) The applicants have preferred this revision against the order dated 6.9.2011 passed by the learned Second Additional Sessions Judge, Sihora in S.T.No.486/2009, whereby the application under section 319 of the Cr.P.C. filed by the prosecution is accepted and the applicants are made accused in the case.
2. The facts of the case, relating to the present revision, in short, are that, the deceased Rashmi Bai Patel expired in the month of April, 2009. It was found that she consumed some poisonous substance. Post-mortem took place upon the body of the deceased and after due - 2 - Criminal Revision No.1705 of 2012 investigation, a charge-sheet was filed against Dhelaram @ Arvind, husband of the deceased for the offence punishable under section 306 of IPC. During the trial, an application under section 319 of the Cr.P.C. was moved to implicate the applicants to be accused in the case.
3. I have heard the learned counsel for the parties at length.
4. The learned senior Advocate for the applicants has submitted that there was no case of offence punishable under section 302 of IPC prepared by the parents and relatives of the deceased. The various witnesses did not say anything against any of the accused persons that they administered some poison to the deceased by force. not the witnesses Pusau (P.W.10), Siya Bai (P.W.13) and Ajay Kumar Patel (P.W.15) have turned their version. However, Pusau and Siya Bai were not the eye witnesses in the case and therefore, their evidence is nothing but, a hearsay evidence, whereas the witness Ajay Kumar Patel (P.W.15) has accepted in para 5 of his statement that he slept at about 8 p.m. in the night and he arose at 9 a.m. in the morning. At that time, his mother was already been taken to the hospital and therefore, Ajay Kumar Patel is not an eye witness in the eye of law. The witnesses have changed their version from their case diary statements and therefore, their present version - 3 - Criminal Revision No.1705 of 2012 cannot be believed. The prosecution did not apply that charge of offence punishable under section 302 of IPC may also be framed against the main accused. It is also submitted that marriage of the deceased took place more than 7 years prior to her death and therefore, no presumption under section 113-A of Evidence Act is applicable in the present case. As per the statements given by these witnesses, nothing was found against the applicants and not they have changed their version, which is not believable. Under such circumstances, the applicants cannot be implicated in the case under the provisions of section 319 of the Cr.P.C. It is prayed that the impugned order may be quashed.
5. The learned Public Prosecutor opposes the revision petition.
6. The learned counsel for the objector has submitted that the offence punishable under section 302 of IPC is made out against the applicants and therefore, the trial Court has rightly summoned the applicants under section 319 of the Cr.P.C.
7. After considering the submissions made by the learned counsel for the parties and looking to the evidence adduced, it appears that there is a lot of contradictions between the statements given by the witnesses Pusua - 4 - Criminal Revision No.1705 of 2012 (P.W.10), Siya Bai (P.W.13) and Ajay Kumar Patel (P.W.15) with their case diary statements. They have changed the entire story. No reason has been shown by these witnesses as to why they did not tell such a fact at the time of investigation or lodged a report accordingly. Looking to the statement of child witness Ajay Kumar Patel, it appears that he was sleeping at the time of the incident and he could not say anything. He has simply stated before the trial Court about administration of poison due to instigation of his maternal grand parents and therefore, his evidence creates no doubt against the applicants. Similarly, Pusua and Siya Bai are disbelievable being hearsay witnesses. Therefore, prima facie no offence under section 302 of IPC is made out against the applicants as well as against the main accused.
8. So far as the offence under section 306 of IPC is concerned. The witnesses Pusau (P.W.10), Siya Bai (P.W.13), MaNo.(P.W.7) and Ajay Kumar Patel (P.W.15) have changed their version from their case diary statements. No allegation was made during investigation against these applicants that they were harassing the deceased. Specially in the present case, no presumption under section 113-A of Evidence Act is applicable and therefore, it is for the prosecution to prove the overt-acts of the applicants, which fall within the purview of section 107 of IPC but, looking to the evidence given by these - 5 - Criminal Revision No.1705 of 2012 witnesses, the overt-acts of the applicants are not such, which may fall within the purview of section 107 of IPC and therefore, prima facie no offence punishable under section 306 of IPC is made out against the applicants.
9. Under such circumstances, the applicants could not be implicated as accused in the case. The learned second Additional Sessions Judge, Sihora has committed an error in accepting the application under section 319 of the Cr.P.C. He did not follow the settled principles of law in accepting the application. The impugned order dated 6.9.2011 passed by the learned Second Additional Sessions Judge, Sihora is not maintainable and therefore, it is hereby set aside. Consequently, the revision petition filed by the applicants is hereby allowed. The applicants are not required to appear before the trial Court any more. If parents of the deceased wants to proceed against the applicants for the offence punishable under section 498-A of IPC then, a separate proceeding is required to be initiated.
10. A copy of the order be sent to the trial Court for information and compliance. (N.K.GUPTA) JUDGE 4 1/2013 Pushpendra