OMPRAKASH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) By invoking the supervisory powers of this Court, petitioner has preferred this petition under Section 397/401 of Code of Criminal Procedure, 1973 (in short 'the Code') being aggrieved by the order dated 05-09-2013 passed by learned Second Additional Sessions Judge, Joura District Morena in S.T. No.171/2011 whereby the application filed by the petitioner/complainant under Section 319 of the Code was dismissed. The instant petition has been filed by the petitioner seeking the following relief:

(2.) In brief, facts of the case are that incident has occurred on 06-11-2010 and Dehati Nalish was recorded on the spot to the effect that since in the election campaign of Gram Panchayat the petitioner/complainant -Omprakash has supported the opposite candidate Banwari, therefore, there was enmity between Rakesh Sharma, Ravindra, Akhilesh, Munshi and complainant -Omprakash. On 06-11-2010 at about 2:15 pm quarrel took place between Arvind (brother of complainant) and Rakesh Sharma, Ravindra, Akhilesh and Munshi. When Arvind was coming to his house, he was chased by the aforesaid accused persons, Ravindra and Rakesh Sharma both were armed with pistol, when they reached at the house of complainant, they all started hurling the abuses. On objections, one fire was made by Ravindra at the stomach of complainant and he fell down. Crime No. 162/2010 was registered at Police Station Bagchini against Rakesh Sharma, Ravindra, Akhilesh and Munshi. Investigation was made and on completion of investigation charge-sheet was filed only against Ravindra, Akhilesh and Munshi. No case against respondent No. 2 -Rakesh Sharma was found by the Investigating Officer. He was not charge-sheeted on the ground that as per the evidence collected during the investigation, Rakesh Sharma -respondent No. 2 was not present on the spot and in the FIR, allegations were levelled against him because of enmity of Panchayat election.

(3.) On committal, S.T. No.171/2011 was registered for the offence punishable under Sections 307/34 of IPC. Before the trial Court evidence of Omprakash (PW-1) and Arvind Sharma (PW-2) was recorded. Thereafter, an application under Section 319 of the Code was preferred by the complainant in the month of April, 2013 which was dismissed by the trial Court vide impugned order on the ground as discussed in para 14 that because of material contradictions and omissions in the evidence of Omprakash (PW-1) and Arvind Sharma (PW-2), respondent No. 2 -Rakesh Sharma cannot be convicted. Second ground has been discussed by the trial Court in para 20 of its impugned order that as per investigating agency at the time of commission of offence, respondent No. 2 was present at his house situated at Morena and he was not present on the spot at village Kumheri because as per mobile details, his location was at Nainagarh, Morena and this fact was also corroborated from the statements of prosecution witnesses.