Allahabad High Court
Govind Soni vs State Of U.P. And Anr. on 15 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2440
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 23.11.2020 Delivered on 15.12.2020 Court No. - 4 Case :- CRIMINAL REVISION No. - 907 of 2019 Revisionist :- Govind Soni Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- A.K. Mishra,Sati Shanker Tripathi Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. This criminal revision has been filed by the revisionist against the order dated 27.11.2018 passed by IXth Addl. Sessions Judge, Mathura as well as consequential order dated 29.11.2018 by which learned trial judge rejected the discharge application of the revisionist bearing paper no. 16 Kha dated 7.9.2018 filed under section 227 Cr.P.C. vide order dated 27.11.2018 and without providing any breathing time to the revisionist framed the charges against him on 29.11.2018 in S.T. No. 66 of 2018 (State Vs. Govind Soni and Others) under section 306 I.P.C. Police Station Mahavan, District Mathura arising out of Case Crime No. 182 of 2015 pending in the court of IXth Addl. Sessions Judge, Mathura.
2. Brief facts of this case as per First Information Report is that the first informant's nephew namely, Nirmal Kumar, was a teacher at Purva Madhyamik School, Kinarayee and living with his family at Ashok Vihar Colony, Mathura. Whereas the revisionist, Govind Soni, who happened to be deceased's brother-in-law and co-accused, Brijesh Dixit, both have evil eyes on deceased's wife, Smt. Bhagwati, and also coerced her to see with their wrong intention. It is asserted that when Bhagwati threatened them to complaint against them, the revisionist lodged a false report at Police Station Sadar Bazar. And thereafter, the revisionist and co-accused, Brijesh Dixit have been continuously harassing and teasing the deceased, Nirmal Kumar, as they both knew that deceased, Nirmal Kumar, is a patient of high blood pressure and they also said that they were eventually seek out his wife and will keep on him impleading in frivolous cases. When deceased tried to confront the accused persons they challenge his manhood and said that he should kill himself or commit suicide. On 12.6.2015, one Sujeet Kumar saw the revisionist and co-accused chatting with Nirmal Kumar. Later on Sujeet Kumar received a whatsapp message about recovery of a dead body, at Gokul Dam and which is later on identified as dead body of deceased, Nirmal Kumar. Then Sujeet Kumar informed to the first informant (uncle of deceased) and the first informant identified the dead body of of Nirmal Kumar and lodged a report on same day at 9.45 P.M. against the revisionist and co-accused, Brijesh Dixit. Post mortem of the dead body of deceased was conducted and as per postmortem report of deceased, the deceased has died due to asphyxia as a result of drowning.
3. After lodging the First Information Report, the Investigating Officer conducted the Panchayatnama on 13.6.2015. During investigation on 19.6.2015, the investigating officer has recorded statement of Sukhbir and Jay Prakash. These independent witnesses have stated in their statements that deceased was mentally disturbed person and his treatment was going on in Agra. They further stated that deceased has left the place of Jay Prakash, who is the brother of deceased, and went somewhere in the morning and when he did not return, he tried to trace him. Investigating Officer of this case also recorded the statement of deceased's wife namely, Bhagwati, in which she has clearly stated that revisionist has evil eye on her and he mentally tortured her and she further stated that revisionist instigated her husband / deceased to commit suicide. It is further stated that only for torturing and harassing her husband / deceased, the revisionist has lodged a false N.C.R. No. 42 of 2015 under sections 323, 504 I.P.C. against the deceased. After conducting the investigation, the investigating officer submitted chargesheet against the revisionist, Govind Soni, and Brijesh under section 306 I.P.C. on 23.8.2015.
4. On the aforesaid chargesheet, the learned Magistrate has taken cognizance of the offence over the chargesheet. Thereafter, the case was committed to the Court of Sessions where it is registered as Sessions Trial No. 66 of 2018 (State Vs. Govind Soni and Another) under section 306 I.P.C.
5. After committal of the case, on 7.9.2018 the revisionist filed a discharge application under section 227 Cr.P.C. On 7.9.2018 on the ground that there was no evidence against him collected by the investigating officer during the course of investigation, which constitutes the offence under section 306 I.P.C. against the revisionist. Thereafter, learned trial court rejected the discharge application of the revisionist after hearing both the parties and fixed a date for framing of charge. Thereafter, on 19.11.2018, learned Sessions Court framed charge against both the accused under section 306 I.P.C. Being aggrieved with the said order of Sessions Court, this criminal revision has been filed by the revisionist.
6. Revisionist has challenged the order dated 27.11.2018 on the following grounds. Learned trial court has completely failed to record any reason that prima facie offence is made out or not against the revisionist and without applying its judicial mind, erroneously rejected discharge application of the revisionist. Solely on flimsy ground only evidence collected during investigation by the I.O. against the accused / applicant is that on 15.6.2015, nephew of the first informant namely, Sujeet Kumar, had simply seen the revisionist, Govind Soni, and co-accused, Brijesh Dixit, chatting with the deceased. Thus, only circumstances last seen evidence is available but there is absolutely no evidence to show that accused has incited the deceased to commit suicide or make his life so miserable that there was no option left to deceased except to end his life. Simply alleged that accused / applicant has evil eye and questioned upon deceased's manhood and induced him to kill himself. As no requisite mensrea to add the commission of offence of abatement of suicide. It is also further submitted that postmortem report of deceased clearly reveals that cause of death of deceased is aphexia, as a result of drowning, which shows that deceased died either accidental or suicidal death or it could be possible by murder or homicide. There is no successive evidence that deceased has committed suicide. It is also submitted that deceased was a patient of depression for long time and his treatment was going on in different hospitals. It is quite possible that deceased committed suicide due to his pathetic condition. Further submitted that there is no question arose that deceased commits suicide due to abatement by the revisionist and learned trial court without appreciating the evidence available on record, wrongly rejected the discharge application of the revisionist. Learned counsel for the revisionist has relied upon the following judgments of Hon'ble Supreme Court.
i. Rajesh Vs. State of Haryana, SLP (Crl.) No. 8667 of 2016, SC.
ii. Gangula Mohan Reddy Vs. State of Andhra Pradesh, 201 (1) SCC 750
7. Learned A.G.A. supported the order of learned trial court and stated that impugned order is legal and factually correct and there is no occasion for this court to interfere under revisional jurisdiction.
8. I have heard learned counsel for the revisionist and the learned A.G.A. and also perused the record.
9. A larger Bench of the Apex Court in the case of State of Orissa vs. Debendra Nath Padhi (2005) 1 SCC 568, has settled the legal position in regard to the relevancy of defence evidence at the stage of charge. In that case, the Apex Court has held as follows:
"16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied)......
18. ................ It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
24. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of section 227 of the Code has not been correctly decided."
10. The Hon'ble Supreme Court in the judgment passed in the matter of "P. Vijayan vs. State of Kerala and Ors. reported in 2010 (2) SCC 1398 " held that :-
"10. Before considering the merits of the claim of both the parties, it is useful to refer Section 227 of the Code of Criminal Procedure, 1973, which reads as under:-
"227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
If two views are possible and one of them gives rise to suspicion 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. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.
11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.
(12) The scope of Section 227 of the Code was considered by this Court in the case of State of Bihar vs. Ramesh Singh, wherein this Court observed as follows:-
"4. ... 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"
This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the trial Judge in order to frame a charge against the accused.
11. In a recent decision, in Soma Chakravarty vs. State, AIR 2007 SC 2149 this Court has held that :-
"The settled legal position is that if on the basis of 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 committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true.... 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 offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. (Para 11) Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge."
12. Apart from the aforesaid cases, in the case of Sajjan Kumar vs. Central Bureau of Investigation, JT 2010(10) SC 413, the Apex Court has formulated the following guidelines with regard to the question as to how a matter for framing a charge against the accused is to be dealt with:
"(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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. 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 explained, 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 committed 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 offence by the accused was possible.
vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material 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 alleged offence. For this limited purpose, 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 suspicion 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."
13. The aforesaid decisions have almost settled the legal position that at the stage of charge the court is not required to consider pros and cons of the case and to hold an enquiry to find out truth. Marshaling and appreciation of evidence is not in the domain of the court at that point of time. What is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case for framing a charge against the accused has been made out. Even in a case of grave or strong suspicion charge can be framed. The court has to consider broad probabilities of the case, total effect of the evidence and the documents produced including basic infirmities, if any. 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, but the court should not weigh the evidence as if it were holding trial. Accused can be discharged only when the charge is groundless. In my opinion, the learned Sessions Judge has taken into account all the relevant materials and passed the impugned order keeping in view the parameters laid down by the Apex Court in the aforesaid cases. Therefore, the submission of the counsel for the revisionist that no charge was made out has no substance.
14. I shall now apply the principles enunciated above in the present case in order to find out whether or not the court below was justified in dismissing the discharge application filed under Section 227 Cr.P.C.
15. For the reasons discussed above, the revision has no merit and is accordingly dismissed. Interim order, if any, is vacated.
16. A copy of this order be communicated to the lower court for necessary compliance.
Order Date: 15th December, 2020 Vibha Singh (Suresh Kumar Gupta, J.)