Himachal Pradesh High Court
State Of Himachal Pradesh vs Mohinder Singh And Others on 8 March, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. 101 of 2008.
Reserved on: 01.03.2017.
.
Decided on: 08.03.2017.
State of Himachal Pradesh ....Petitioner.
Versus Mohinder Singh and others ... Respondents. _________________________________________________________________ Coram of The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes. _____________________________________________________________ rt For the petitioner : Mr. V.S. Chauhan, Additional Advocate General.
For the respondents : Mr. T.S. Chauhan, Advocate.
Ajay Mohan Goel, Judge By way this revision petition, petitioner-State has challenged the order dated 11.03.2008 passed by the Court of learned Special Judge, Bilaspur in Sessions Trial No. 41 of 2006, under Section 3(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as 'Act, 1989'), vide which learned trial Court discharged the accused under Section 227 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.') by holding that from the facts narrated in the first information 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 2report, there was no sufficient ground for presuming that the accused had committed the offence alleged against them.
2. The case of the prosecution in brief was that .
statement of complainant Shri Bhagwan Dass (hereinafter referred to as 'complainant') was recorded on 08.11.2005 by the then Additional Superintendent of Police, Bilaspur and on the basis of statement so recorded, F.I.R. No. 255/2005 was of registered on 02.12.2005. As per complainant, he was a resident of Barmana, Tehsil Sadar, District Bilaspur, H.P. and was rt employed in ACC Factory at Barmana and on 28.09.2005, when he alongwith his brother was present at his house, Kanungo and Patwari Halqua came there for the purpose of demarcation of land and started demarcating the same without informing them. Further, as per complainant at the same time 60-70 persons from the village also gathered there. When he asked the revenue officials to demarcate the land later on as crop was standing on the land, the opposite party started abusing the complainant and his family members on caste lines. The opposite party also threatened to do away with the lives of the complainant and his family members. Further as per the complainant, accused Asha Devi, Pappu @ Balbir Singh, Balbat Singh and Ana caught hold of the nephew of the complainant namely Prittam Singh ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 3 from his neck and he (Prittam Singh) was also slapped by Ana and Pappu. Besides this, Mohinder was instigating said persons to beat the complainant and his family members. As .
per the complainant, he reported the occurrence of the incident to the Superintendent of Police and expressed his apprehension qua danger to himself and his family members from the accused persons. Further as per the complainant, of complainant party went to police station Barmana on the same day for the purpose of lodging FIR, but no FIR was rt lodged. Even after more than one month and 13 days from the occurrence of the alleged incident, no FIR was registered and thereafter statement of the complainant was recorded by the Additional Superintendent of Police, on the basis of which FIR was registered. As per the complainant, on 28.02.2005 an application was submitted by him in the police Station in which names of accused persons had been mentioned.
3. As per prosecution, during the course of investigation which was carried out by the then S.D.P.O. Ghumarwin, site plan was prepared and statements of the witnesses were also recorded. Besides this, revenue papers were also obtained and after the completion of the investigation as it was found that accused had committed offences punishable under Section 147 of Indian Penal Code ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 4 (hereinafter referred as 'IPC' for short) as well as under
Section 3 (10) of the Act, 1989 challan was put in the court.
4. Vide order dated 03.11.2006 passed by learned .
JMIC, Bilaspur, challan was committed to the Court of learned Special Judge, Bilaspur.
5. Learned trial Court vide its order dated 11.03.2008 discharged the accused. While discharging the of accused, it was held by the learned trial Court that record disclosed that there was a dispute regarding a passage rt between the parties and for the purposes of said reason, revenue officials were to carry out demarcation and the said demarcation could not be carried out on account of occurrence of the alleged incident. Learned trial Court held that record demonstrated that relations between the parties were not cordial and though the alleged incident took place on 28th September, 2005, formal FIR was lodged only on 02.12.2005. It was further held by the learned trial Court that the alleged occurrence of the incident was not supported by the official witnesses and it was clear from the statements of the official witnesses that neither any offence punishable under Section 147 of IPC or under Section 3 (10) of the Act was made out against the accused. Learned trial Court further held that it was evident from the FIR which was ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 5 registered on the statement of complainant that when Kanungo and Patwari halqua came for the purpose of demarcation of the land, there were 60-70 persons gathered .
on the spot and it was in their presence that accused persons abused the complainant party on caste lines. Learned trial Court further held that statement of Patwari Brij Lal recorded under Section 161 of Cr.P.C did not support the version of the of complainant, as it was not so recorded in the statement of Patwari under Section 161 of Cr.P.C that accused persons rt had either caught hold of nephew of the complainant Shri Prittam Singh from the neck or had abused him on caste lines. Learned trial Court also held that statement of Kanungo Madan Lal also did not corroborate the version of the complainant. Learned trial Court also held that evidence demonstrated that besides Patwari Halqua and Kanungo, even ASI Bhim Singh was on the spot and the statement of ASI Bhim Singh recorded under Section 161 of Cr.P.C demonstrated that he had not been informed by the complainant or other persons on the spot about the alleged occurrence of the incident. Learned trial Court also held that statement of Tehsildar, Circle Sadar, Bilaspur demonstrated that on the said date i.e. on 28.09.2005, as per the orders of Deputy Commissioner, Bilaspur, he had gone to village ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 6 Punahan for the purpose of demarcation of a passage and as per the version of said witness (Tehsildar) there had been exchange of words between rival parties and because of the .
same demarcation was stopped and the same was not carried out. Learned trial Court further held that under Section 227 of the Criminal Procedure Code, the Court while considering the question of framing the charges has undoubted power to of sift and weigh the evidence though for the limited purpose with the object to find out whether or not a prima facie case is rt made out against the accused or not. Learned trial Court also held that the Judge has to consider the broad probabilities of the case and the total effect of the evidence as well as documents produced before it though the Court is not to make out a roving inquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial.
On these bases, it was held by the learned trial Court that there was a dispute between the parties pertaining to a passage and it was in the course of demarcation of the said passage by the revenue staff that the alleged altercation/incident took place but as the version of the complainant was not supported by the statements of the official witnesses recorded under Section 161 of Cr.P.C., accordingly, learned trial Court discharged the accused.
::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 7While discharging the accused, learned trial Court also took note of the fact that there was delay in lodging of the FIR.
6. Feeling aggrieved by the said order of discharge, .
the state has filed the present revision petition.
7. I have heard the learned Additional Advocate General as well as Mr. T.S. Chauhan, learned counsel for the respondents and also gone through the records of the case as of well as the order passed by the learned trial Court.
8. Before proceeding further, it is pertinent to take rt note of the provisions of Section 227 of the Code of Criminal Procedure wherein it is provided that if on consideration of records of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution, the Judge considers that there was not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.
9. In the present case, learned trial Court on the basis of records of the case and documents submitted therewith and after hearing the submissions of the accused as well as the prosecution has come to the conclusion that there are not sufficient grounds for proceeding against the accused. It is a settled legal position that for the purpose of determining as to whether there are sufficient grounds for ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 8 proceeding against the accused, Court possesses a comparatively wider discretion in the exercise of which it can determine the question as to whether the material on record, .
if un-rebutted, is such on the basis of which a conviction can be said reasonably to be possible. In other words, at the stage of framing of charges, only prima facie case has to be seen and it is not to be seen that the case is beyond reasonable of doubt or not. The strict standard of proof, while evaluating the material to ascertain whether there is a prima facie case rt against the accused or not, is not to be applied. It is further settled legal position that at the time of framing of the charge it is not necessary for the prosecution to establish beyond all reasonable doubt that the accusation which they are bringing against the accused person is bound to be brought home against him. At the stage of framing of charge, the court has to see if there is sufficient ground for presuming that the accused has committed an offence. If the answer is in affirmative, the order of discharge cannot be passed and the accused has to face trial. The Court is not required to hold mini trial and to come to the conclusion that material adduced in the case warrant conviction. Defect in investigation cannot be a ground for discharge of the accused.
It has been held by the Hon'ble Supreme Court in State of ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 9 M.P. v. Sheetla Sahai, 2009 Cr. LJ 4436 (4449):2009 AIR SCW 5514:2009 (10) SCALE 632 that if on perusal of the entire material on record, the Court arrives at an opinion that .
two views are possible, charges can be framed but if only one and one view is possible to be taken, the Court shall not put the accused to harassment by asking him to face a trial. At the stage of framing of charge, Court cannot analyze or of dissect evidence of prosecution and defence or points of possible cross-examination of defence. Case of the rt prosecution presented before the Court has to be accepted as it is. Thus, where from the statements of complainant and his witnesses, a prima facie case is made out, framing of charges cannot be said to be illegal and the same is not required to be interfered with. The standard of test and judgment which has to be finally applied before recording the guilt or otherwise of the accused is not exactly applied at the stage of framing charges.
10. By applying the touchstone of what has been discussed above, in my considered view, the order of discharge passed by the learned trial Court in favour of accused is not sustainable in law. It has come in the impugned order that the complainant as well as the other witnesses of the complainant have duly supported and ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 10 corroborated the case of the complainant/prosecution. In other words, while discharging the accused, the findings returned by the learned trial Court are not to this effect that .
neither the complaint nor the statement of complainant and other witnesses recorded by the prosecution in support of its case corroborate the case of the complainant. Finding returned by the learned trial Court is that though the of complainant and his witnesses have duly corroborated the case of the prosecution, however, the official witnesses have rt not corroborated the same as per their statements recorded under Section 161 of Cr.P.C. In my considered view, this is where learned trial Court has erred in discharging the accused. Learned trial Court has erred in not appreciating that it was not dissecting views on record for the purpose of recording acquittal or guilt in favour of or against the accused but it was perusing the material on record to see as to whether a prima facie case was made against the accused in order to made them face trial or not. In my considered view, the record of the case as well as the documents produced on record prima facie demonstrate that prosecution has been able to make out a prima facie case against the accused and it is not as if the statements of complainant and other witnesses who have supported the version of the complainant ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 11 do not make out any case against the accused. On the other hand, a perusal of the statements of official witnesses recorded under Section 161 of Cr.P.C., which have been relied .
upon by the learned trial Court, prima facie appear to have been made to favour the accused as is apparent and evident from the language used in the same. Be that as it may, it is not for this Court to adjudicate on the veracity or the of credibility of the said witnesses and their credibility and veracity will be seen by the Court concerned once they depose rt in the Court of law during the course of trial. All that this Court can say at this stage is this that the record of the case and documents produced on record prima facie do demonstrate that the prosecution has been able to make out a prima facie case against the accused and learned trial Court has erred in passing the order of discharge in favour of accused.
11. Accordingly, in view of findings returned above, the revision petition is allowed and the impugned order of discharge passed by the learned trial Court in Sessions Trial No. 41 of 2006, dated 11.03.2008 is set aside and the case is remanded back to the learned trial Court for adjudication strictly in accordance with law. Parties through their counsel are directed to appear before the learned trial Court on ::: Downloaded on - 15/04/2017 21:59:22 :::HCHP 12 10.04.2017. It is made clear that this Court has not expressed any opinion on the merits of the case and learned trial Court shall proceed with the matter strictly as per the .
merits of the case and shall not in any manner be influenced by any observation made by this Court in the present petition.
12. Revision petition is disposed of accordingly.
of Pending miscellaneous application(s), if any, also stand disposed of.
rt (Ajay Mohan Goel)
Judge
8th March, 2017.
(narender)
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