Punjab-Haryana High Court
Surender vs State Of Haryana on 7 November, 2012
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRR No.3364 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
Crl. Revision No. 3364 of 2012(O&M)
Date of Decision: November 7, 2012.
Surender.
...... PETITIONER(s)
Versus
State of Haryana.
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. R.S.Rai, Senior Advocate with
Mr. Abhinav Sood,
Advocate, for the petitioner.
*****
RAM CHAND GUPTA, J.(Oral)
The present revision petition has been filed against order dated 18.09.2012 passed by learned Additional Sessions Judge, Hisar vide which petitioner has been charged for offences under Sections 302/377/201 IPC.
I have heard learned senior counsel for the petitioner and have gone through the whole record including the impugned order framing charge against petitioner-accused.
Brief allegations are that, admittedly petitioner-accused was Incharge of coaching centre i.e. Bright Coaching Centre, Shanti Niketan Colony, Hansi where deceased Ritik was a boarding student and getting CRR No.3364 of 2012 -2- training in the institute. The information was received from Medical Officer regarding deceased Ritik through Peon of General Hospital, Hansi by SI Surat Singh on 01.01.2012 at about 8.25 PM and hence, he visited the hospital alongwith other police officials where maternal uncle of deceased, namely, Ajit Kumar met him and handed over a written application to him on the basis of which the present FIR was lodged. According to him on 01.01.2012 at about 10.15 AM a telephonic call was received by him from his brother-in-law that he had gone to Hansi to meet Ritik and however, he was found missing from the Coaching Centre and hence, he also reached the Coaching Centre and met the In-charge of the Centre, i.e. present petitioner- accused and on their saying, petitioner made a report to the police about missing of the child. It was at about 6.15 PM while they were searching the child that they were informed by petitioner-accused that the child had been met and the child was lying on the cot in a dead condition. He was shifted to Civil Hospital, Hansi where he was declared dead and information was sent to the police. It was alleged that he died on account of breaking of his neck and he was satisfied that he was killed by petitioner-accused and his wife. He has also contended that earlier petitioner-accused told him that the child was missing and thereafter, he told that the child was found lying dead on the cot in his coaching centre. It was also told by petitioner-accused to them that the child was struck and crushed between the beddings of the store of Coaching centre. However, on examination by Medical Officer, the neck was found to be lax, freely mobile all round and on dissection of cervical vertebral column C6-C7 joint was found to be dislocated with deep seated ecchymosis in para CRR No.3364 of 2012 -3-
- vertebral muscles and tissues. On further dissection underneath spinal code was eechymosed. Viscera and anal swab was sent to FSL and the site was inspected by Scene of Crime Team. As per FSL report, presence of semen/ blood was found on the clothes and anal swab of the deceased. Hence, offences under Sections 377/201 IPC were also added. However, report under Section 173 Cr.P.C. was filed for offence under Section 304 Part II IPC. However, learned trial court after going through the material on record including medical evidence and statements of witnesses recorded under Section 161 Cr.P.C. came to the conclusion that there is sufficient evidence to frame charge under Sections 302/377/201 IPC against petitioner-accused vide impugned order, which has been challenged in this revision petition.
It has been contended by learned senior counsel for petitioner- accused that even as per report under Section 173 Cr.P.C. submitted in this case by the police, it was a case of negligence on the part of petitioner- accused and challan was also filed under Section 304 Part II IPC. Hence, court should not have framed charge under Sections 302/377/201 IPC. It is also contended that there is no FSL report showing presence of semen and blood on the clothes and anal of deceased as mentioned by learned trial court in the impugned order. It is also contended that only report is Annexure P3, which shows that as DNA profile was not taken from sources of cotton swab, slides, pants, Sweat shirt, T-shirt, shirt, T-shirt and underwear which is necessary to compare with DNA profile on Ramu, Surender i.e. present petitioner-accused and Parmod and hence, no opinion could be given. It is further contended that even as per statements of other inmates recorded under CRR No.3364 of 2012 -4- Section 161 Cr.P.C. there is nothing to implicate petitioner-accused for offences under Sections 302/377/201 IPC in this case. It is also contended that as per polygraph test, nothing was found against petitioner-accused. Hence, it is contended that at the most it is a case of negligence on the part of petitioner, who was running the coaching centre in which Ritik was found dead.
Learned Additional Sessions Judge, Hisar while framing charge against petitioner-accused for offences under Sections 302/377/201 IPC observed as under:-
"6. Contra, learned Public Prosecutor for the State assisted by Sh. P.C.Mittal, Adv. learned counsel for complainant submitted that there is sufficient evidence to frame the charge against the accused under Sections 302, 201, 377 IPC. Learned Public Prosecutor stated that the court is not to follow the line of the prosecution and can frame the charge under the offences which are made out from the evidence, even though the police has not forwarded the challan against the accused under the particular section. Learned Public Prosecutor also stated that at the time of framing the charge the court is to see whether there is sufficient evidence giving prima facie satisfaction of the probability of commission of offence(s) by the accused and is not required to go into deep roving inquiry on the merit or demerit of the case. Learned counsel stated that from the evidence of the prosecution as collected by the prosecution, it is made out that deceased died an unnatural death, there were presence of semen on his clothes and anal swab, accused did not inform the police immediately about the death of deceased, being the In-charge of Institute where the deceased was a boarder student. All the circumstances CRR No.3364 of 2012 -5- go to suggest of the commission of offences by him. To support their contentions, learned Public Prosecutor referred to the complaint of Ajay Kumar son of Surender Kumar, the statements of witnesses recorded under section 161 Cr.P.C., the PMR findings, showed no ligature mark on the neck but showed the neck of deceased was lax, freely mobile all around on dissection of cervical vertebral column C6-C7 joint was found to be dislocated with deep seated ecchymosis in para-vetebral muscles and tissues and the opinion regarding cause of death was given as cervical vertebral dislocation C6-C7 and its complication which were found to be ante mortem in nature and sufficient to cause death in ordinary course of nature, which shows death was caused. It was submitted that accused is the in-charge of the Centre where death took place and it is a case based on circumstantial evidence and thus, it was urged that there is sufficient evidence to frame the charge under sections 302, 201, 377 IPC against the accused.
7. Having considered the aforesaid contentions and evidence on record i.e. accused was In-charge of Education Centre where the deceased was a boarder student; that the dead body of deceased was found beneath the beddings in his Centre; that the accused did not inform the police of his own; PMR recording found dislocation of C6-C7 with deep seated ecchymosis in para vertebral muscles and tissues; per opinion cause of death is on account of cervical dislocation and its complication. FSL report shows presence of semen on the clothes and anal swab of deceased, the statements of witnesses recorded under section 161 Cr.P.C. alleged that accused provided no safety measure in the Centre, all prima facie make out commission of offences under section 302, 377, 201 IPC. Let charge be framed against the accused under the aforesaid sections."CRR No.3364 of 2012 -6-
Law is also well settled that veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously gone into at that stage. On the point authoritative pronouncement of Hon'ble Apex Court in Supdt. and Remembrancer of Legal Affiars, West Bengal v. Anil Kumar Bhunja another, 1980 AIR (SC) 52 can be referred, relevant paragraph of which reads as under:-
"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence."
In State of Maharashtra v. Som Nath Thapa, etc. 1996 (2) RCR (Criminal) 480, Hon'ble Apex Court observed as under:-
"33. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of CRR No.3364 of 2012 -7- the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
In State of M.P. v. Sudhir Pingle, 2000(1) RCR (Criminal) 523, it was observed as under:
"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the state of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceedings against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. CRR No.3364 of 2012 -8- 1991 (1) RCR (Crl.) 89: 1990 (4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977 (4) SCC 39, Union of India v. Prafulla Kumar Samal, 1979 (3) SCC 4 and Supdt. And Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 (4) SCC 274, and held thus:"
"From the above discussion it seems well settled that at the Sections 227-228 stage 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. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the 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."
In another judgment of Hon'ble Apex court in Sanghi Brothers (Indore) Pvt.Ltd., v. Sanjay Chaudhary and ors. 2008 (4) RCR (Criminal) 640, on the question of framing of charge, the Hon'ble Apex Court observed as under:
"11. The present case is not one where the High Court ought to CRR No.3364 of 2012 -9- have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
Hence, in view of the aforementioned authoritative pronouncements of Hon'ble Apex Court, learned trial court is only to see prima facie case at the time of framing of charge and even if the court thinks that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be drawn that the accused has committed the offence and probative value of the material of the record cannot be gone into and that the material brought on the record by the prosecution has to be accepted as truth at that stage.
Hence, keeping in view the above legal proposition, this Court is to see as to whether any illegality or material irregularity has been committed by learned trial court in passing the impugned order, warranting interference by this Court.
Admitted facts are that petitioner was In-charge of Coaching Centre where Ritik was a boarding student. His dead body was found beneath beddings of his centre. As per post-mortem report, there is dislocation of cervical vertebral column C6-C7 with deep seated ecchymosis in para vertebral muscles and tissues and as per opinion cause of death was CRR No.3364 of 2012 -10- cervical dislocation and its complication. It has also come in the statement of Harbir with whom deceased-Ritik used to sleep in the store of the coaching centre that on the night intervening 31.12.2011 and 01.01.2012, he had already gone to sleep. Ritik was still watching TV and in the morning, he was not found. He had told petitioner-accused that he should search him in the store and however, he did not go to the store to search him. Similar is the statement of another inmate, namely, Anurag. Petitioner did not inform the police of his own. Rather it came during investigation that information was received by the police from the hospital by way of Ruqa. Hence, a strong suspicion had arisen in the mind of learned trial court regarding involvement of petitioner-accused in the murder of Ritik. Sufficient reasons have been given by learned trial court for framing charge against accused as mentioned above.
Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial court in passing the impugned order framing charge against petitioner- accused under Sections 302/377/201 IPC, warranting interference by this Court.
The present revision petition is, hereby, dismissed being devoid of any merit.
( RAM CHAND GUPTA ) November 7, 2012. JUDGE 'om'