Chattisgarh High Court
Mahendra Kumar And Ors vs State Of Chhattisgarh 36 Cra/2703/1998 ... on 11 December, 2019
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 05.02.2019
Judgment delivered on 11.12.2019
CRR No. 347 of 2007
1. Mahendra Kumar, S/o Sukul Ram Thakur, aged about 40 years,
R/o Village Hadgahan, Police Station Arjunda District Durg (CG)
2. Tek Singh S/o Khusham Sahu aged about 40 years R/o Village Sikari
Tola, Police Station Arjunda, District Durg (CG)
3. Paklu @ Manohar Lal S/o Agrahij Ram Sahu aged about 43 years
R/o Village Sikari Tola, P.S. Arjunda, District Durg (CG)
4. Sitaram S/o Bhagat Ram Sahu, aged about 36 years, R/o Village
Sikari Tola, P.S. Arjunda, District Durg (CG) --- Applicants
Versus
State of Chhattisgarh through Police Station Arjunda, District Durg,
Chhattisgarh --- Respondent
For Applicants - Shri Vishnu Koshta, Advocate For Respondent - Shri A. K. Bhakta, Dy. GA Hon'ble (Smt.) Justice Vimla Singh Kapoor CAV Order This revision petition has been preferred by the petitioners against the order dated 14.06.2007 passed by Additional Session Judge, Durg in Sessions Trial No.93/2007 framing charge against them for an offence under Section 306/34 IPC.
2. According to the case of the prosecution, deceased Shakuntala Devi went missing from her house on 10.01.2003 and a report to that effect was made to the Police Station on 11.01.2003. However, on 13.01.2003 body of the deceased was recovered from a well and during postmortem a paper slip was found kept under her blouse in which "lhrkjke tyk;k vkx" was scribbled. During investigation it was found that the accused/petitioner Mahendra Kumar - the then Sarpanch of the Gram Panchayat, Hatgahan was getting a pond in the village dug and the soil thereof was dumped in front of the house of the deceased blocking the way to her house and the firewood belonging to her also got buried. It was also unearthed during investigation that the haystack belonging to the deceased was put afire on account of which she became mentally disturbed and ultimately committed suicide. Postmortem report dated 13.01.2002 (which in fact should have been 13.01.2003 as the requisition for that bears the date as 13.01.2003) discloses the cause of death of the deceased to be asphyxia due to drowning in water 48-72 hours prior thereto. After receiving the report of the handwriting expert dated 20.09.2005, FIR under Section 306/34 IPC came to be registered on 20.02.2007 against the accused/petitioners at Crime No.26/2007 and the delay occurred in its lodgment has been shown to be on account of receipt of report of handwriting expert. Seizure of notebook said to contain the handwriting of the deceased was effected on being produced by her son Hitendradev Ramteke and likewise seizure of government papers pertaining to work carried out by the Gram Panchayat was made on being produced by Radhelal Tondon - the then Sarpanch of Gram Panchayat Hatgahan. Accused/petitioners were arrested on 21.02.2007 and after completion of investigation charge sheet was filed against them under Section 306/34 IPC.
3. Subsequently, on 14.06.2007 the trial Court after hearing both the parties and perusing the material on record passed the aforesaid impugned order on the point of charge and charge was framed against all the accused persons under Section 306/34 IPC.
4. Being aggrieved by the order dated 14.06.2007 the petitioners have preferred the present revision petition for setting aside the same.
5. Counsel for the accused/petitioners submits that the trial Court has committed an error while passing the order impugned and did not even consider the provision of Section 107 IPC which defines the abetment. He further submits that though the prosecution has not been in a position to produce any material prima facie making out a case against the accused petitioners under Section 306 IPC yet the charge has been framed for that, which is illegal. Referring to the statements of witnesses including that of the husband of the deceased, counsel for the accused/petitioners submits that none of them has stated that the deceased committed suicide after being abetted by the accused/petitioners and therefore, also the order impugned is bad in law.
6. On the other hand, learned State counsel however supports the order impugned and holds the same to be just and proper and based on the material collected by the prosecution.
7. At this juncture, this Court would like to refer to the order impugned, which is adumbrated as hereunder.
".....vkjksi iwoZ mHk; i{k ds rdZ lqus x,A vfHk;qDr egsUnz Bkdqj dh vksj ls n-iz-l- dh /kkjk 227 ds vraxZr izLrqr vkosnu i= dk voyksdu fd;k x;k ,oa vfHkys[k dk voyksdu fd;k x;kA vfHk;kstu dk izdj.k la{ksi esa bl izdkj gS fd xzke f'kdkjhVksyk] Fkkuk vtqZUnk] fuoklh 'kdqUryk nsoh uked efgyk fnukad 10-01-2003 dks vius ?kj ls ykirk gqbZA mldh xqe'kqnxh dh fjiksVZ fn- 11-01-2003 dks Fkkusa esa ntZ djkbZ xbZA fn- 13-01- 2003 dks mldk 'ko xkao ds ,d dqa, esa feykA efgyk ds 'ko ifj{k.k ds nkSjku mlds Cykmt ls ,d dkxt dk VqdMk cjken fd;k x;kA ftl ij ^^lhrkjke tyk;k vkx** fy[kk FkkA mDr vk/kkj ij foospuk dh xbZ] ,oa ;g Ikk;k x;k fd rRdkyhu ljiap egsUnz Bkdqj ds }kjk xkao esa rkykc [kqnok;k tk jgk Fkk ftldh dqN feV~Vh vkosfndk ds ?kj ds lkeus Qsadh x;h Fkh] ftlls mlds ?kj dk jkLrk can gks x;k Fkk ,oa mldh tykm ydfM+;ka nc xbZ FkhA vKkr O;fDr;ksa ds }kjk mlds iSjk esa vkx yxk nh xbZ FkhA ftlls e`frdk ekufld :i ls ihfM+r Fkh vkSj mlus vkRegR;k dj yhA ?kVuk ds vk/kkj ij vkjksihx.k ds fo:) vkj{kh dsanz vtqZUnk dh iqfyl ds }kjk vijk/k dz- 26@2007 vraxZr /kkjk 306 lgifBr /kkjk 34 Hkk-n-l- iathc) fd;k x;k ,oa mUgsa fxjQ~rkj fd;k x;kA vkjksihx.k ds fo}ku vf/koDrkvksa ds }kjk ;g O;Dr fd;k x;k gS fd vfHk;qDr egsUnz Bkdqj ds }kjk rRdkyhu ljiap ds in ij jgrs gq, 'kkldh; drZO;ksa ds vk/khu dk;Z fd;k x;kA fdlh Hkh vkjksihx.k ds fo:) efgyk dks vkRegR;k djus gsrq nq"izsfjr fd;s tkus ds rF; fo|eku ugha gSa vr% vfHkqq;qDrx.k dks mUeksfpr fd;k tk,A vfrfjDr yksd vfHk;kstd Jh egsUnz dqekj jktiwr }kjk mDr rF; dk fojks/k fd;k x;kA vfHk;ksx i= ds voyksdu ls ;g nf'kZr gksrk gS fd vkjksihx.k ds fo:) ladfyr lk{; izFke n`"V;k Hkkjrh; naM lafgrk dh /kkjk 306 ds vkjksi fufeZr fd;s tkus gsrq Ik;kZIr gSaA vkjksihx.k dh vksj ls izLrqr rdZ lk{; dh fo"k;oLrq gS ftu ij bl Lrj ij fopkj ugha fd;k tk ldrkA vkjksihx.k dh vksj ls izLrqr U;k; n`"Vkar&larks"k fo'odekZ ,oa vU; fo:) e-iz- jkT; 2004¼11½ efulk 98@lh- th-] lUtq mQZ lUt; flax lsaxj cuke e-iz- 'kklu 2002¼2½ ts-,y-ts- 275 ¼lqizhe dksVZ½] jkeujs'k ,oa vU; cuke e-iz- 'kklu ,oa vU; 2002¼2½ ,e-ih-,y-ts- 360 izHkqn;ky vfgjokj cuke e-iz- 'kklu 2003¼1½ ,e-ih-,p-Vh- 512 ds rF; bl izdj.k ls fHkUu gSa rFkk budk ykHk vkjksihx.k dks iznku ugha fd;k tk ldrkA mijksDrkuqlkj vkjksihx.k ds fo:) Hkk-n-l- dh /kkjk 306] lgifBr /kkjk 34 ds varxZr vkjksi i= rS;kj fd;k x;k ,oa vfHk;qDrx.k dks vkjksi i= i<+dj lquk;k ,oa le>k;k x;kA vkjksihx.k ds }kjk vkjksi dks vLohdkj fd;k x;kA mudh vfHkokd fyfic) dh xbZA vfHk;kstu ds }kjk lk{; gsrq Vªk;y izksxzke izLrqr fd;s tkus le; fn;s tkus le; fn;s dk fuosnu fd;kA U;k;fgr esa le; fn;k x;kA vkxkeh frfFk ij Vªk;y izksxzke izLrqr djsaA okLrs Vªk;y izksxzke gsrq & 19-06-2007**
8. It would now be apposite for this Court to refer to some of the judicial pronouncements of the Apex Court wherein the principles of framing of charge against and also discharging the accused has been dealt with.
9. The Supreme Court has recently in the case of Dipakbhai Jagdishchandra Patel vs State of Gujarat and Another, decided on 24.4.2019 in Criminal Appeal No. 714 of 2019 made observations regarding the law relating to framing of charge as well as discharge has held that all that which is required in such cases is that the Court must be satisfied that with the material available, a case is made out for the accused to stand trial. Even a strong suspicion would suffice for that purpose, provided that such strong suspicion must be founded on some material which can be translated into evidence at the stage of trial. Relevant paragraphs of the said judgment are reproduced hereunder:
"13. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 wherein this Court has laid down the principles relating to framing of charge and discharge as follows:
Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the Accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the Accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the Accused is not exactly to be applied at the stage of deciding the matter Under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the Accused or whether the trial is sure to end in his conviction.
Strong suspicion against the Accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the Accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the Accused. The presumption of the guilt of the Accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the Accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not.
If the evidence which the prosecutor proposes to adduce to prove the guilt of the Accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the Accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
If the scales of pan as to the guilt or innocence of the Accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order Under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one Under Section 228 and not Under Section 227. ...
21. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the Accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the Accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that Accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the Accused has committed the offence."
10. The Apex Court in the matter of Union of India vs. Prafulla Kumar Samal and Ors., AIR 1979 SC 366 has held that the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused is made out or not. It has been further held that where the materials placed before the Court disclosed a 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. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. It is a settled law that the presumption howsoever strong cannot take the place of proof. Relevant portion of the aforementioned judgment is reproduced as hereunder:
"10. 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."
11. Further, the Apex Court in the matter of Chitresh Kumar Chopra versus State (Govt. of NCT of Delhi) reported in AIR 2010 SC 1446 has held as under:
"18......It is trite that at the stage of framing of charge, 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 or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for presuming that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
12. Thus in view of the aforesaid judicial pronouncements of the Apex Court it becomes axiomatic that at the initial stage if there is strong/grave suspicion leading the Court to think that there is a ground for presuming that the accused has committed offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Court at the stage of framing of charge is not required to meticulously weigh the evidence and the prima facie view of the matter, is to be taken into consideration only.
13. Now getting back to the submission of learned counsel for the petitioners that learned trial Court has not considered the abetment defined in Section 107 IPC while framing the charge by passing the impugned order and thus committed a blatant illegality and contravened the provisions of law, this Court does not find any substance in his contention that the charge ought not to have been framed against the petitioner since the prosecution has failed to adhere to the ingredients of abetment contained in Section 107 IPC. This Court also does not find any substance in the submission of the counsel for the accused/petitioners that nothing has come in the statements of the witnesses examined by the prosecution as to the involvement of the accused/petitioners connecting them with the death of deceased until and unless they are testified by appearing in the Court.
14. This Court is of the considered opinion that the trial Court has rightly considered the prima facie view of the matter and has undoubtedly applied its judicial mind while passing the impugned order, considering the material on record while coming to the conclusion of framing the charge against the accused/petitioners. It cannot at all be said at this stage that the conclusion arrived at by the trial Court is unreasonable or unjustified warranting any interference by this Court in exercise of its revisional jurisdiction. The material on record demonstrates that prima facie offence against the accused/petitioners under Section 306/34 IPC is made out.
15. No infirmity or legal flaw in the order impugned is noticeable by this Court, and accordingly the revision petition being devoid of any substance is hereby dismissed.
16. It is however made clear that no opinion on merits and demerits of the case has been expressed by this Court and that any of the observations made while deciding this revision petition, shall not tantamount to an expression on merits.
17. Since the accused/petitioners are enjoying stay since 06.08.2007, now it stands vacated and the trial Court is expected to conclude the trial as expeditiously as possible preferably within a period of six months from today.
18. Revision thus dismissed.
Sd/-
(Vimla Singh Kapoor) Judge Jyotishi/ajay