Jharkhand High Court
Nirmal Soni ? Nirmal Kumar Soni & Ors vs State Of Jharkhand & Anr on 4 August, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Revision No.964 of 2010
1. Nirmal Soni @ Nirmal Kumar Soni, son of Jagdish Soni
2. Anju Soni, wife of Nirmal Soni @ Nirmal Kumar Soni
3. Ashok Soni @ Ashok Kumar Soni, son of Jagdish Soni
4. Shashank Soni
5. Nishant Soni, both sons of Nirmal Soni @ Nirmal Kumar Soni
All residents of Mohallah-Near Lakshmi Chitra Mandir, Lepo Road
P.O. + P.S.-Hazaribagh (Sadar), District- Hazaribagh (Jharkhand)
... ... ... Petitioners
Versus
1. The State of Jharkhand
2. Shaiba Khan @ Shama, Daughter of Md. Farooque Khan
Resident of Habibi Nagar, Mohalla, Khirgaon, P.S. and P.O. Sadar,
District- Hazaribagh (Jharkhand) ... ... ... Opp. Parties
With
Cr. Revision No.100 of 2011
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Rupendra Kumar Jain @ Guttu Jain, son of Late Suraj Mal Jain
Resident of Village Lepo Road, near Kakshmi Talkies, P.S. Sadar,
P.O.+ District- Hazaribagh ... ... ... Petitioner
Versus
The State of Jharkhand ... ... ... Opp. Party
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CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
For the Petitioner : Mr. B.M. Tripathi, Sr. Advocate
Mr. Anil Kumar, Advocate
For the State : Mr. Amaresh Kumar, A.P.P.
Mr. H.P. Singh, A.P.P.
For the O.P. No.2 : Mr. Hemant Kumar Shikarwar, Advocate
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C.A.V. ON: 30.06.2015 PRONOUNCED ON:- 04/08.2015
Both the revision applications arising out of the same order
were heard together and are being disposed of by this common
judgment. The petitioners of both the revision applications call in
question the legality of the order dated 23.09.2010 passed by learned
Additional Sessions Judge, F.T.C.-III, Hazaribagh in Sessions Trial No.82
of 2009 whereby and whereunder the petition filed by the petitioners of
both the revision applications under Section 227 of the Code of Criminal
Procedure (In short 'the Code') for their discharge, has been rejected.
2. The facts, giving rise to the present revisions, lies in a narrow
compass and centre around kidnapping of the informant by the
petitioners of the two revision applications. At the instance of the
informant- Shaiba Khan @ Shama, a written report dated 07.12.2006 was
2 Cr. Revision No.964 of 2010
With
Cr. Revision No.100 of 2011
lodged at the Mahila Thana, Hazaribagh bearing Sadar P.S. Case No.25
of 2006 under Sections 366 and 376(2)g of the Indian Penal Code with the
allegation that on 06.11.2006 at about 11.00 a.m. while she was going to
Pelawal to meet her Khala and reached near Laxmi Cinema in Hazaribag
suddenly one white Maruti Van stopped near her and one Anju Soni
after opening the gate of the vehicle asked the informant to sit in the
vehicle. As she was known to said Anju Soni, she boarded the vehicle
and disclosed him that she is going to Pelawal, upon which Anju Soni
assured her to drop at Pelawal. When the informant entered into the
vehicle, saw that one Shashank Soni was driving the vehicle and one
Guttu Jain @ Rupendra Kumar Jain was sitting near him. Anju Soni and
Nirmal Soni were found sitting at the rear seat of the vehicle. The above
persons brought her to Ranchi and on enquiry they disclosed that they
have brought her for the purpose of her marriage with Nishant Soni and
when she objected, Guttu Jain @ Rupendra Kumar Jain (the petitioner)
threatened her to kill. It is also alleged that by giving threatening to her,
the accused persons brought her to Railway Station where Nishant Soni
and Ashok Soni were present from before. Ashok Soni gave railway
tickets to Nishant Soni and asked him to take her in the train. Guttu Jain
(the petitioner) again threatened her not to raise Hulla in train otherwise
she will be thrown out of the train. She was taken to Delhi by Nishant
Soni. They stayed in Delhi in a room from 08.11.2006 to 20.11.2006 where
she was forcibly raped several times by Nishant and Shashank. On
20.11.2006, at about 11.30 a.m. when Shashank was not present in room and Nishant was sleeping, she anyhow managed to flee away from there but by boarding a wrong bus came to Ajmer. She decided to disclose the entire incident to Police but Nishant Soni following her came there and tried to take her from there. She raised alarm whereafter Ajmer Police caught hold both of them and sent to jail. After getting information her parents came to Ajmer and brought her back to Hazaribagh.
3. On completion of investigation, the Police submitted final form exonerating all the accused persons from the case but on Complaint-cum-Protest Petition filed by the informant, the court took 3 Cr. Revision No.964 of 2010 With Cr. Revision No.100 of 2011 cognizance of the offence under Sections 366 and 376(2)g of the Indian Penal Code against the petitioners and the case was committed to the court of Sessions. Before the Sessions court, the petitioners filed a petition for their discharge but the court below by order impugned, rejected the prayer for discharge of the petitioners holding that there is sufficient prima facie evidence on record in order to frame charge under Sections 366 and 376(2)g of the Indian Penal Code against the accused Nishant Soni and Shashank Soni and sufficient evidence are also available against the other accused persons to frame charge under Section 366 of the Indian Penal Code. Hence, these revisions.
4. Mr. B. M. Tripathy, learned senior counsel appearing for the petitioners submitted that the impugned order suffers from various legal infirmity. The court ought to have considered the fact that the improbability of the case and the circumstances under which final form submitted by the police was good enough ground for the court below to discharge the petitioners and that the police after investigation had found the case not true of either kidnapping the informant or committing rape but the learned Judicial Magistrate on filing a Complaint-cum-Protest Petition, took cognizance of the offence though there was absolutely no material on record to show either prima facie case or grave suspicion to frame charge against the petitioners for the offence under Sections 366 and 376(2)g of the Indian Penal Code. It was also submitted that the informant on her own willingness had gone with Nishant Soni to Delhi which would be clear from the fact that Nishant Soni and the informant had purchased flight tickets of Air Deccan to go to Delhi but as they had no identity proof, the authority at Airport refused to issue the boarding passes. It was also submitted that the informant was never kidnapped and no offence is made out against the petitioners and that a mere suspicion is not enough to hold that there is sufficient ground to proceed against the accused persons. It was lastly submitted that even if the case of the prosecution is accepted on its face value, still on the basis of the material on record by the prosecution no 4 Cr. Revision No.964 of 2010 With Cr. Revision No.100 of 2011 offence either under Section 366 of under Section 376(2)g of the Indian Penal Code is made out against the petitioners.
5. Contrary to the aforesaid submissions, Mr. Hemant Kumar Shikarwar, learned counsel appearing suo moto in this case on behalf of the informant seriously contended that there is ample material on record to show a strong motive for commission of crime and the flights tickets upon which the learned counsel for the petitioners has relied clearly stipulates that a conspiracy was hatched by the petitioners to take the informant to Delhi for the reason best known to the petitioners but he failed to produce any identity proof whereafter the authority refused to issue boarding passes. It was also submitted that if the informant was going to Delhi on her own willingness it was not difficult for her to produce identity proof before the authority at Airport. It was further submitted that even in Ajmer they were found quarrelling whereafter they were caught by local Ajmer Police and sent to jail. It was thus pleaded that the court below was justified in dismissing the petition for discharge.
6. Before adverting to rival contentions, I may briefly notice the scope and ambit of powers of Trial Judge under Section 227 of the Code. Chapter XVIII of the code lays down the procedure for trial before the court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances wherein there can be a discharge of an accused at a stage of framing charge under Section 228 of the Code which provides that upon consideration of record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court has to see the sufficient ground to proceed against the accused persons and as a consequence thereof either discharge the accused or proceed to frame charge against them.
7. The Hon'ble Supreme Court in a case State through Inspector of Police Vs. A. Arun Kumar and Anr.; 2015(1) East Cr. C. 450 (S.C.), on consideration of several authorities about the scope of Sections 227 and 228 of the Code, held as follows:-
5 Cr. Revision No.964 of 2010With Cr. Revision No.100 of 2011
(i) "The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted pow-
er 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly ex- plained, the Court will be fully justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a mouthpiece 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has com- mitted the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of of- fence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the al- leged offence. For this limited purpose, to sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspi- cion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
8. In another case, Sajjan Kumar Vs. CBI; (2010) 9 SCC 368 the Hon‟ble Supreme Court succinctly analyzed the law at this point and observed in Para 19 as under:
" 19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming 6 Cr. Revision No.964 of 2010 With Cr. Revision No.100 of 2011 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 only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce 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."
9. From the ratio decided by the Hon'ble Supreme Court in the above two cases, it is clear that at the initial stage, the court has to evaluate the materials and documents on record with a view to find out if the facts emerging from there taken at their face value discloses the existence of all the ingredients to constitute the alleged offence and also for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case or grave suspicion depends upon the facts of each case and at this stage, he has not to see as to whether the trial will end in conviction or acquittal.
10. In the light of the aforesaid principle or the guidelines given by the Hon'ble Supreme Court, it is necessary to examine whether or not in the present case the court below was justified in refusing to discharge the petitioners. I have gone through the entire case diary, relying upon which the final form was submitted, and after examining the statement of the witnesses recorded during investigation in Paragraphs 21, 35, 40, 43, 54 and Paragraph 74- the medical report of the informant, I find that the allegation of the informant that she was forcibly taken away to Delhi has been supported by the witnesses. The authority at Ranchi Airport has also supported the fact that two tickets in the name of Nishant Soni and informant were purchased but as they had no identity proof, they refused to issue boarding passes in their name. This creates a suspicion that if there was willingness between the parties then it was not difficult for them to carry their identity proof with them. Subsequently, they were caught by the Ajmer Police when quarrelling with each other. The doctor, who had examined the informant found that she was 18 years 7 Cr. Revision No.964 of 2010 With Cr. Revision No.100 of 2011 old and though no internal or external injury was not found on vagina but the two fingers easily entered into vagina. The informant in her subsequent statement before the police again affirmed the allegations made in the First Information Report. Even in the Protest petition, the informant has made same allegations of kidnapping and threatening against Guttu Jain @ Rupendra Kumar Jain and other petitioners and also confirmed the allegation of committing rape against Nirmal Soni and Shashank Soni. Obviously, this is not the stage where the court has to see whether the trial will end in conviction of acquittal and even roving enquiry is not possible rather a strong prima face or grave suspicion is required to frame charge against the petitioner.
11. In a case Rajiv Thapar V. Madhu Lal Kapoor; (2013) 3 SCC 330, the Hon'ble Supreme Court while dealing with the same issue of discharge in a complaint case, lodged at the instance of father of a deceased girl that he suspects that his daughter had been poisoned, has held in Paragraph-28 as follows:-
"This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has leveled allegations bringing out all ingredients of the charge(s) leveled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations leveled, trial must be held".
12. In the light of the above discussions and after analyzing all the materials available on record, I am satisfied that there is a strong 8 Cr. Revision No.964 of 2010 With Cr. Revision No.100 of 2011 prima facie case and grave suspicion against the petitioners of the two revision applications for proceeding in respect of charges alleged and the court below has rightly refused to discharge the petitioners.
13. In the light of what is stated above, I find no plausible ground to interfere with the order impugned. Accordingly, both the revision applications are, hereby, dismissed.
(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 4th August, 2015 Anit/N.A.F.R.