Allahabad High Court
State Of Uttar Pradesh vs Mahavir Singh Son Of Shyamlal, Rajvir ... on 14 July, 2006
Author: M.C. Jain
Bench: M.C. Jain
JUDGMENT V.D. Chaturvedi, J.
1. This State appeal is filed against the order dated 29.09.1999 passed in Sessions Trial No. 160 of 1998 by Sri S.K.S. Yadav, the then 15th Additional Sessions Judge, Agra, whereby he discharged the accused /respondents Mahaveer Singh, Rajveer Singh, Ranveer Singh and Sher Singh, who were charge-sheeted for the offences punishable under Section 302, 182, 211 and 120B IPC.
2. We have heard Sri R.K. Singh, AGA and Sri K.N. Raha Advocate for the respondents and have perused the record.
3. The relevant facts, in brief, are that on 13.02.1988 the murder of Mahaveer S/o Ramji Lal was committed in a field. Its report was lodged by the accused/ respondent Mahaveer Singh Son of Shyam Lal against Ram Sahai, Om Prakash, Baij Nath and Ram Pal. It may be mentioned for the sake of clarity that the deceased and the complainant both are of the common name. The investigation was started by the police of P.S. Jagner, District Agra. The investigating Officer expressed doubt regarding involvement of the accused Ram Sahai, Om Prakash, Baij Nath and Ram Pal. Meanwhile, the investigation was transferred to S.I.S. whose I.O. also doubted the involvement of the persons named in the FIR. The S.I.S. in its investigation suspected the respondents Mahaveer Singh (Informant), Rajveer Singh, Ranveer Singh and Sher Singh to be the real culprits. But meanwhile the investigation was withdrawn from the S.I.S also and was transferred to C. B. C. I. D. The I.O. of C.B.C.I.D., after recording the evidence of the witnesses and after the usual investigation submitted charge-sheet against the respondents Mahaveer Singh son of Shyam Lal (Informant), Raj Veer Singh, Ran Veer Singh and Sher Singh for the offences punishable under Sections 302, 182, 211 & 120B IPC. The evidence collected by the C.B.C.I.D. includes following evidence, along with other evidence:
(i) The statement of Shiv Singh that on 13.02.1988 at about 6.00 a.m. (on the date and time of occurrence) he saw the deceased Mahaveer Singh with the respondents Ran Veer Singh, Raj Veer Singh and Sher Singh sitting near the place of occurrence warming around the bonfire and after a little while when he reached on the Mend of his field, he heard the sound of gun-shot emanating from the place of occurrence where the respondents and deceased were sitting; that he witnessed respondent Ran Veer Singh, Raj Veer Singh and Sher Singh fleeing from the place of occurrence towards the village; that at that time respondent Ranveer Singh was having a pistol in his hand and the remaining two were having lathies. The witness also saw that the dead body of the deceased was lying there at the place of occurrence.
(ii) Witness Dharamveer Singh supported the statement of Shiv Singh as above.
(iii) Witness Nathi Lal also supported the statements of Dharamveer Singh and Shiv Singh.
(iv) The extra judicial confession made by the accused Raj Veer Singh before his brother respondent Mahaveer Singh, overheard by witness Mohan Singh, the brother of the deceased.
(v) The statement of Gaj Singh before whom the respondents Ranveer Singh and Sher Singh made extra judicial confessions.
(vi) The statement of Soran Singh before whom respondent Ranveer Singh made extra judicial confession regarding murder of Mahaveer Singh son of Ram Ji Lal .
(vii) The statement of Ramji Lal (father of the deceased) that when he was heading to lodge the report, the respondent Mahaveer Singh precluded him from going to the police station for lodging the report; that respondent Mahaveer told him that respondent (Mahaveer Singh) had lodged a report against his enemies; that Mahaveer Singh, put Rs. 10,000/- before the wife of the witness and asked her to keep mum in response; that the respondent confessed his guilt; that the respondent also threatened that if the witness or any member of his family would open his mouth, the witness's another son Mohan would also be killed.
(viii) The statement of Smt. Bhagwan Devi (mother of the deceased) corroborated the statement of Ramji Lal .
(iv) The statement of Smt. Vimla, sister of the deceased, corroborated the statement of Ram Ji Lal and Smt. Bhagwan Devi.
(x) It is also in the evidence that after the murder of Mahaveer, the respondents Ranveer Singh, Sher Singh and Rajveer Singh disappeared from the village.
(xi) It is also in the evidence that there was enmity between Shyam Lal (father of respondent Mahajveer Singh) and those against whom the FIR was lodged by respondent Mahaveer Singh.
4. The trial judge scrutinized in his own style the evidence of witnesses Shiv Singh, Dharaveer Singh, Nathi Lal , Mohan Singh, Gaj Singh, Soran Singh, Ram Ji Lal , Smt. Bhagwan Devi, Smt. Vimla, Mithan Lal , Padam Singh son of Pitamber , Rakesh and others and concluded that these witnesses were not trustworthy and reliable and that the conviction could not be based upon their evidence for want of trustworthiness. On his such conclusion, the Additional Sessions Judge discharged the respondents Mahaveer Singh, Rajveer Singh, Ranveer Singh and Sher Singh who were charge-sheeted for the offences punishable under Section 302, 182, 211 & 120-B IPC.
5. It would be apt to reproduce below Section 228 Cr. P. C.:
228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground or presuming that the accused has committed an offence which-
(a ) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence accordance with the procedure for the trial of warrant-cases instituted on a police report,
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under Clause (b) of Sub-section (1) , the charge shall be read and explained to the accused and (he accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
6. Thus Section 228 Cr. P. C. directs that the Judge shall frame the charge if hee is of the opinion that there is a ground for presuming that the accused has committed a offence. The said section does not direct (sic) judge shall frame the charge only where there is a ground for conviction At me stage of framing of charge, the scrutiny of the evidence to look whether the conviction can be based or not is unwanted uncalled for and an erroneous approach
7. At the stage of framing the charge, the Court has not to minutely and meticulously go into the merits of the evidence collected by the prosecution and consider in detail and weigh in 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 this stage of deciding the matter under Section 227 or 228 Cr. P. C. At this stage, the court is not to see whether there is sufficient ground for conviction of accused or not. If there is strong suspicion which leads the court to think that there is a ground for presuming that the accused had committed ah offence then there is sufficient ground for proceeding against the accused.
8. Where the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible, the trial judge must frame the charges. At this stage the trustworthiness of witnesses or the contradictions of the statements of one witness with the other cannot be looked into. The probability and improbability of the facts emanating from the evidence would not be judged at this juncture. The trial judge went far beyond his limits in scrutinizing the statements of various witnesses and in reaching at his conclusion that the statements of the witnesses were not reliable and trustworthy.
9. The accused persons of a case may be discharged only in the circumstance, if upon consideration of the evidence, collected by the I.O., the Judge considers that there is no sufficient ground for proceeding against the accused and not otherwise.
10. Thus, in nutshell, the situation boils down to this that where the evidence is such which, if goes unrebutted, the conviction can be based upon such unrebutted evidence, the charges are bound to be framed by the trial court.
11. In view of what we have discussed above, we are of the firm opinion that the impugned order dated 29.09.1999 discharging the respondents is perverse and illegal. It has to be set aside.
12. The appeal is, therefore, allowed. The impugned order dated 29.9.1999 discharging the accused respondents is set aside. The case is remanded back to the trial court. The trial court is directed to frame proper charges against the accused respondents and to proceed with the that thereafter according to law.
13. The accused respondents, namely, Mahaveer Singh, Rajveer Singh, Ranveer Singh and Sher Singh shall appear in the Court of Sessions Judge, Agra on a date to be fixed by him. The Sessions Judge, Agra or any other Additional Sessions Judge, Agra to whom the case is made over, will proceed further as directed by this order.
14. We are constrained to observe that either the trial Judge ( Sri S.K.S. Yadav) was devoid of the basic knowledge of law on the point of framing charge or he deliberately, for some ulterior motive, passed the impugned order. We, therefore, direct the Registrar General to bring the matter to the notice of the Hon'ble the Chief Justice for being placed before the Administrative Committee to take suitable action against the officer concerned ( Sri S.K.S. Yadav) who passed the impugned order.
15. Judgment be certified to the lower court with the transmission of record within four weeks.
16. A copy shall also be placed before the Registrar General for onward action as directed above.