Rajasthan High Court - Jaipur
Smt Sushila Devi vs Rajendra Rathore on 4 July, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER SMT. SUSHILA DEVI VS. RAJENDRA RATHORE AND ANR. S.B. Criminal Revision Petition No. 618(d) of 2012 under section 397 read with section 401 Cr.P.C. against the order dated 31.5.2012 of Sessions Judge, Jaipur District, Jaipur in Criminal case No. 29/2011 whereby the non-petitioner was discharged for the offence under sections 120-B read with sections 302, 364, 346, 201 and 218 IPC. Date of Order : July 4, 2012 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. S.K.Sinha, Advocate along with Mr. S.S.Punia for the petitioner Mr. Tej Prakash Sharma for the CBI. --- BY THE COURT :
Defects over ruled. Mr. Tej Prakash Sharma accepts notice on behalf of the CBI. Shri S.K. Sinha, Advocate is directed to supply the copy of the revision petition to Mr. Tej Prakash Sharma.
This criminal revision petition has been filed under section 397 read with section 401 Cr.P.C. by the Rajasthan State through the investigation officer Dy. S.P. CBI, SC II, New Delhi, against the order dated 31.5.2012 of Sessions Judge, Jaipur District, Jaipur in Criminal case No. 29/2011 whereby the non-petitioner Rajendra Rathore was discharged for the commission of offence under sections 120-B read with sections 302, 364, 346, 201 and 218 IPC.
2. Brief facts of the case are that RC. 2(S) 2010- SCU. V/SC II/ CBI New Delhi was registered in CBI, SC- II New Delhi in pursuance to the order dated 9.4.2010 of the Hon'ble Supreme Court of India passed in Special Leave Petition (Crl.) No. 3212 of 2008 filed by Smt. Sushila Devi w/o Late Dara Singh, resident of Mundital, Tehsil Rajgarh, Police Station Rajgarh, District Churu Rajasthan in respect of FIR No. 396/2006 dated 23.10.2006 of Police Station Mansarovar, District Jaipur City East, Jaipur. Smt. Sushila Devi had alleged in her petition that her husband Dara Singh was killed in a fake encounter by the police officials of Special Operation Group of Jaipur on 23.10.2006. Smt. Sushila Devi had alleged in her petition before the Hon'ble Supreme Court of India praying inter alia to pass an order directing the State of Rajasthan to initiate CBI enquiry in the killing of deceased Dara Singh.
3. Upon the aforesaid Special Leave Petition (Criminal) the Hon'ble Supreme Court of India vide its order dated 9.4.2010 directed the CBI to hold investigation in respect of the offence alleged. The order dated 9.4.2010 of the Hon'ble Supreme Court is reproduced here under :
Heard learned counsel for the parties.
On the facts of the case, we direct the CBI to hold an investigation in respect of the offence alleged.
The criminal miscellaneous petition is disposed of accordingly.
In view of this, no orders need be passed on the applications for impleadment and they are also disposed of.
4. The State of Rajasthan had already registered FIR No. 396/2006 dated 23.10.2006 under sections 307, 332, 353 IPC; 3/25 Arms Act and Section 3 PDPP Act at Police Station Mansarover, District Jaipur (City) Jaipur Rajasthan in the matter of encounter of Dara Singh and the investigation of this case has been taken over by the CBI. After completion of investigation a charge sheet against 16 accused persons was filed in the court on 3.6.2011 and the investigation against accused Rajendra Rathore was kept pending for further investigation under section 173(8) Cr.P.C. Names of 16 accused against whom charge sheet was filed are as under:
1. SI Rajesh Chaudhary,
2. SI Zulfikar,
3.SI Satya Narayan,
4.SI Nisar Khan,
5.SI Naresh Sharma,
6. SI Subhash Godra,
7. HC Arvind Bhardwaj,
8.HC Badri Prasad,
9.Surendra Singh,
10.Const. Jagram,
11.Driver Sardar Singh,
12. Vijay Chaudhary,
13. Arshad Ali,
14. A Punnuchami,
15. Arvind Kumar Jain and
16. HC Munshi Lal.
5. Out of 16 accused persons SI Rajesh Chaudhary, SI Zulfikar, SI Subhash Godra, HC Arvind Bhardwaj, HC Badri Prasad, Const. Jagram Driver Sardar Singh, Vijay Chaudhary, Arshad Ali and Arvind Kumar Jain were absconding. Accused persons SI Satya Narayan, SI Nisar Khan, SI Naresh Sharma, HC Surendra Singh, A Punnuchami and HC Munshi Lal who were in judicial custody were committed to the court of Sessions and other accused persons were declared proclaimed offenders. Subsequently SI Subhash Godara, HC Badri Prasad, Constable Jagram and Constable/ Driver Sardar Singh surrendered before the court on 25.7.2011 and they were also committed to court of Sessions. The Sessions Judge Jaipur District Jaipur heard the arguments on charge and passed a detailed order on 25.8.2011. The operative part of the order dated 25.8.2011 is reproduced hereunder :
"137.??????? ????? ?????? ?? ???? ?? ???????? ????? ??? ?? ???? 120-?? ????? ???? 302, 364, 346, 201 ??.?.??. ?? ???????? ????? ?? ?????? ?? ???????? ???? ???? ??? ???????? ????? ??? ?? ??????? ????? ?????? ??? ???? 218 ??? 193 ??.?.??. ?? ???????? ????? ???? ???? ???? ??? ??: ???? ???? ???? ?? ?? ???????? ?? ???? ????? ?? ???? ?????? ???? ?????
138.?????????? ?????????? ??????, ????? ???, ???? ?????, ????????? ????, ?.??????????, ????? ??????, ???????????, ????? ? ????? ???? ?? ??????? ????? ?????? ??? ???? 120-?? ????? ???? 302, 364, 346, 218 ? 193 ??.?.??. ?? ???????? ????? ?????? ??? ????? ???? ????? ???? ??? ??: ???? ???? ???? ?? ?? ?????????? ?? ??????? ????? ?? ??? ?????? ???? ?????
139.?????????? ??????????, ?????, ???? ?????, ????????? ????, ????? ??????, ???????????, ????? ??? ????? ???? ?? ??????? ????? ?????? ??? ???? 302 ????? ???? 34 ??.?.??. ?? ???????? ????? ???? ????? ???? ??? ??: ???? ???? ???? ?? ?? ?????? ??? ?? ?????????? ?? ??????? ???? 302 ????? ???? 34 ??.?.??. ?? ???????? ????? ?? ???? ????? ?????
140.???????? ??????????? ?? ??????? ????? ?????? ??? ???? 302 ??.?.??. ?? ???????? ????? ???? ????? ???? ??? ??: ???? ???? ???? ?? ?? ???????? ??????????? ?? ?????? ??? ???? 302 ??.?.??. ?? ???????? ????? ?? ?????? ???? ?????
141.?????????? ?????????? ??????, ????? ???, ???? ?????, ????? ??????, ????????? ????, ?????, ????? ???? ??? ?.?????????? ?? ???? 201 ??.?.??. ?? ???????? ????? ?? ?????? ?? ???????? ???? ???? ???"
It is also relevant to reproduce certain important paras of the order dated 25.8.2011 specifically paras 135, sub-paras (1), (4), (7),(9), (10), (11), (12) as under :
"???? 135 (1)????????? ???? ?????? ??????? 2006 ??? ?????? ??? ???????? ????? ??? ??.???????.??. ?????? ?? ?? ?? ??????? ???
(4)????????? ???? ???????? ?? ??????? ???? ????? ?? ????????? ?????? ?????? ??? ???????? ????? ?? ?????? ?? ??????? ??????? ???
(7)????????? ???? ?????? ?????? ????????? ???? ???????? ????? ?? ?????? ???? ???? ?? ???? ???????? ???? ?????? ?? ??????? ?? ?? ??? ???????? ???? ?????? ?????? ????????? ???? ?????? ?? ??? ?? ????? ?? ???? ?? ?? ??, ????? ???? ????????? ???? ?? ?? ??????? ????? ???
(9)?????? 4.10.2006 ?? ????????? ???? ?????? ??? ???????? ?.??.??? ?? ???? ??????? ?? ?????? ??? ??? ?.??.??? ?? ???? SOG ?? ??? ?? ?????? 05.10.2006 ?? ??????? ??????? ??? ????? ??????? ???? ?? ??? ????? ?? ???? ????
(10)?????? 05.10.2006 ?? ???: ???????? ?.??.??? ?? ????????? ?????? ?? ??? ?? ?????? ??? ??? ???? ?????? ?????? 06.10.2006 ?? ??? ??????? ??????? ?? ??????????? ?? ?????? ???? ???????? ??????? ????? ??? ?????? ?????????? ????????, ??? ???????? ????? ?? ???? ???? ???, ??? ?? ???????? ?.??.??? ? ???????? ?.?????????? ?????? ????????? ???? ??? ??? ??? ?? ???? ??? ?? ??? ??????? ?? ?? ?? ???????? ???? ?????? ?? ??????? ????? ?? ??????? ?????? ?????? ?? ??? ?? ????? ?????? ???
(11) ?????? 15.10.2006 ?? ???????? ?.??.??? ? ????????? ?????? ?? ???? ?.??.??? ?? ????? ????? ??????? ??? ???? 1-1/2 ???? ??????? ??? ??? ?????? 16.10.2006 ?? ????????? ???? ?????? ? ???????? ?.??.??? ?? ???? ??????? ?? ?????? ???? ???? ??????? ???????? ?? ???? ????? ????? ?? ????????? ???????? ?? ?? ?? ??? ?????? 17.10.2006 ?? SOG ?? ??? ?? ??????? ??????? ?? ??? ?? ????? ??? ??, ??? ??? ??? ?? ??? ???: ????? ??????? ???? ?? ??? ??? ???? ????
(12)?????? 15.10.2006 ?? ?? ????????? ???? ?????? ??? ?????????? ?.??.??? ? ???? ??? ?? ???? ?? ?? ??? ???? 44002 ??? ??? ??? 14.46 ?? ??? 8.28 ?? ?????? ???? "
6. Arsad Ali, who is one of the accused has surrendered before the court on 9.11.2011 and was committed to the court of Sessions. After hearing both the parties, charge against him was also framed on 16.11.2011 keeping in view the earlier order of the trial court dated 25.8.2011.
7. Thereafter the accused Arvind Kumar Jain has surrendered on 27.2.2012 and he was also committed to the court of Sessions . After hearing both the parties charge against him was also framed on 1.5.2012. While framing charge against him the trial court has placed reliance on the earlier order dated 25.8.2011. The operative portion of the order dated 1.5.2012 is reproduced hereunder :
14.??????? ??????? ?? ????? ??? ????????????? ??????? ?? ?????? ?? ???? ?? ??? ?????? ?????? ???????? ?? ?????? ??????? ?????? ????????????? ??????? ?? ???? ?? ?? ???????? ?.??.??? ?? ??????? ??????? ??? ???????? ???? ????? ??? ??? ???? ??? ?????? ?? ?????? ???????? ?.??.??? ?? ??????? ??????? ??? ???????? ???? ????? ???? ?? ??? ?? ??????? ??????? ?? ??? ????? ???????? ?????? ???????? ?? ????? ?? ??? ?????? ????? ?? ??? ???? ?? ???? ?????? ???? ????? ???? ????? ???? ?? ????? ??? ????? ??????? ??????? ???????? ?? ?????? ???
15.??: ???????? ?.??.??? ?? ??????? ????? ???? 364, 346, 302 ?? ????? ?? ??? ??????? ??????? ??? ???????? ???? ?? ??? ???? ??????? ?? ??????? ??????? ?? ??? ???? 218 ??? 193 ????? ???? 120-?? ??.?.??. ?? ???? ?????? ???? ???? ?? ???? ???? ???? ??? "
8. Thereafter on completion of further investigation a supplementary charge sheet against accused Rajendra Rathore was filed on 5.4.2012 and he was committed to the court of Sessions on 24.4.2012. But after hearing the parties, the Sessions Judge vide order dated 31.5.2012 discharged the accused Rajendra Rathore for the commission of offences punishable under sections 120 B IPC read with sections 302, 364, 346, 201, and 218 IPC. Against the said impugned order this revision petition has been filed on 28.6.2012. Thereafter the case was listed yesterday on 3.7.2012 and this court after hearing the arguments of learned Advocates Mr. S.K.Sinha and Mr. S.S.Poonia, appearing on behalf of the petitioner Sushila Devi posted the matter for hearing again for today after calling the record of the Sessions Judge.
9. The learned counsel for the petitioner has contended that the learned Sessions Judge Jaipur District Jaipur in utter disregard of the fact situation and the settled law emanating from a catena of decisions of this Court and of the Hon'ble Supreme Court vide his order dated 31.5.2012 discharged the accused Rajendra Rathore from the commission of offences punishable under section 120 B IPC read with sections 302, 364, 346, 201 and 218 IPC. The learned counsel for the petitioner specifically drawn the attention of this court towards paras 30, 31, and 32 of the impugned order dated 31.5.2012. Paras 30, 31, and 32 are reproduced hereunder:
30.??????? ??????? ?????????? ??? ?????? ?????? ???????? ?????? ?????????? ????????? ?? ?????? ??????? ??????? ?? ????? ??? ???????? ????????????? ??????? ?? ???????? ?? ???? ?? ?? ?????? ?? ???? ?? ????? ????????????? ??????? ?? ???????? ?????? ?? ???? ?? ?????? ?? ???? ?????? ?? ???? ???? ?? ???????? ?????? ????? ????? ???? ???? ?? ????? ??? ???????? ?????? ?? ??? ??? ?????? ?????? ???????? ?????? ?? ?? ?????????? ???? ??? ?? ?? ???????? ?? ????? ?????? ??????? ??? ?????????? ?? ?? ????? ???????? ?? ??? ???? ???? ?????? ?? ???? ?? ??????? ? ?????????? ?? ???? ?? ???????? ?? ??????? ??? ????????? ???? ???? ?? ??? ???????? ???? ?? ?? ????? ??? ???????? ?? ???????? ?? ?????? ?? ???????? ???? ?? ?? ???? ?????? ???? ???? ?????? ?? ??? ???????? ?? ???????? ?? ?????? ?? ???????? ???? ???? ?? ?? ???????? ?? ???????? ???? ???? ??????? ??????? ??????? ?????????? ??? ?????????? ??????????? ?? ?????? ???????? ?????? ?? ???? ???? ?? ?? ?? ??????? ???????? ?? ????? ?????? ?????? ?? ?? ?? ??? ?? ??????? ??? ?????? ??????? ???? ??? ?? ???? ???? ?? ???????? ?? ??????? ????? ??????? ????? ???? ?? ???? ?????
31.???????? ?? ????? ?????? ?????? ?? ??? ????? ?? ???? ??? ??? ???? ????? ???? ???? ?????? ?? ???? ?? ??? ???? ??? ??????? ?? ???? ???? ???? ???? ??? ????????: ???? ??????? ?? ??????? ???????? ???? ??????? ???? ??????? ??? ???? ??????? ?? ???????? ???? ??????? ???? ?? ?? ???? ?????? ?????? ?? ???? ?? ????? ????? ?? ???? ??? ???? ?? ???? ??? ??????? ???????????? ??? ?????? ?????? ?? ??? ???????? ?? ????? ???? ??? ??? ???? ???? ???? ????????? ???
32.?? ????? ??? ???????? ?? ?? ?? ???????? ??????? ????????? ??? ??? ???? ????? ?? ???????? ?? ?????? ??? ?????? ?????? ???????? ?????? ?????????? ???? ??? ?? ??:-
"It must be remembered that the best check on the veracity of a witness is the testof normal human behaviour. To out mind, if the behaviour of a witness is unnatural and grossly against normal human conduct that itself is a strong circumstance in doubting the story projectedby him. The conduct of PW.4 and PW.5 in not coming forth as witnesses for aobut 4 years is, thus, unacceptable measured by any yardstick."
10. Again attention of this court was drawn towards para 37 of the judgment, which is reproduced hereunder :
"37.?????? ?????? ???????? ?????? ?????????? ???? ??????????? ?? ????? ??? ??? ?? ?????? ?? ?????? ?? ???? ???? ?? ?? ??? ?????? ?????? ?? ???? ???? ??? ??? ?? ???????? ?? ??? ?? ???????? ?? ?? ???? ??? ?? ?? ?? ?????? ?? ???? ??? ???? ???? ???? ?? ??? ???? ??? ?? ?????? ?? ???? ??? ???? ??? ?????? ?????? ???????? ???? ???? ???? ???? ????????? ???? ??? "
11. The learned counsel has contended that on the same set of evidence charge has been framed against other accused persons but on the same set of evidence the Sessions Judge has not framed charge against the accused Rajendra Rathore. The learned counsel for the petitioner drawn attention of this court towards the ruling of the Apex Court in State of Maharashtra vs. Som Nath Thapa (AIR 1996 SC 1744). The Apex Court in this case held as under:
30. In Antulay's case, Bhagwati, CJ., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case even be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence".
31. Let us note the meaning of the Word presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this context a certain judgement according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.
32 The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of 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.
12. The learned counsel for the petitioner has further placed reliance on State of Bihar vs. Ramesh Singh (1977 SC 2018 ) judgment dated 2.8.1977, in which the the Apex Court held as under:
When the case was opened in the Court of the IIIrd Additional Sessions Judge at Motihari in Sessions Trial No. 66/1975 by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground for proceeding with the trial against him and he should be discharged in accordance with section 227. The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975. The State of Bihar the appellant in this appeal went in revision before the Patna High Court to assail the order aforesaid of the Sessions Court. The High Court by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which- (b)is exclusively triable by the Court, he shall frame in writing a charge against the accused'-', as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a 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 the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. 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 round for proceeding against the accused. Thepresumption 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227. In Nirmaljit Singh Hoon v. The State of West Bengal and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory,or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."
13. The learned counsel has further placed reliance on the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368). In paras 23 and 24 it was held as under:
23. It is the grievance of the appellant that the High Court did not take into account that the complainant Jagdish Kaur, PW 1 had not named him in her first statement filed by way of an affidavit dated 7-9-1985 before Justice Ranganath Misra Commission nor did she name him in her subsequent statements made before Delhi Police (Riots Cell) and in her deposition dated 8-1-2002 before Justice Nanavati Commission except certain hearsay statement. It is the stand of Jagdish Kaur, PW 1, the prime prosecution witness, that apart from her statement dated 3-11-1984, she has not made any statement to Delhi Police at any stage. However, it is also the claim of CBI that the alleged statements of Jagdish Kaur, PW 1, dated 20-1-1985 and 31-12-1992 are doubtful. Likewise, Nirprit Kaur, PW 10 in her statement under Section 161 CrPC, has denied having made any statement before Delhi Police.
24. At the stage of framing of charge under Section 228 CrPC or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other.
14. The learned counsel has drawn attention of this court towards para 38 of the impugned order dated 31.5.2012 which is reproduced as under :
38.?????? ?????? ?????? 08.09.2006 ?? ???????? ??? ??? ?????????? ???? ?? ??? ????? ?? ???? ??? ?????? ???? ?????? ?? ????????? ???? ????? ?? ??? ????? ??? ????????? ???? ????? ?? ?? ???? ?? ???????? ???? ?????, ?? ??? ?? ???? ?????? ???? ??? ??? ?? ????? ??? ???? ??? ?? ??? ?? ??? ????? ?? ????????? ???? ?????? ?? ?????? ???, ???? ??? ??? ????? ??????? ??? ???? ???? ???? ?????? ?????? ????? ?? ????? ?????????? ???? ????? ?? ?? ?? ? ?? ?? ???????? ??? ???? ??????, ???? ????? ??? ???? ???????? ?? ??? ??? ???? ?? ??, ?????? ????? ?? ???????? ??? ??????? ?? ??? ????????? ???? ??? ?????? ?? ?? ?? motive (?????) ?? ????? ??? ??????? ????????? ?????? ???? ???? ????? ?????? ????? ? ?? ?? 1972 ??????? ????? ????? 54 ??? ???? ??? ??, ?????? ?????? ?????? ???????? ?????? ?????????? ???? ??? ?? ??:-
" In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows thaqt the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation if any- of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete at to show that within all human probability the crime must have been committed by the accused. He may, in the event, safely be held guilty on such circumstantial evidence."
15. The learned counsel specifically requested to this court that the aforesaid para 38 of the order dated 31.5.2012 reproduced hereinabove should be read along with the para 135 of the order dated 25.8.2011.
16. He has further contended that in the order dated 1.5.2012 the Sessions Judge Jaipur District Jaipur has accepted the same set of evidence against co-accused A.K.Jain but has not accepted the same set of evidence against the accused respondent Rajendra Rathore in the impugned order dated 31.5.2012.
17. The learned counsel has drawn attention of this court towards the statements of PW. 46 Rakshpal Singh Sihag, PW.47 Om Prakash son of late Shera Ram, PW.48 Vikas Meel son of Mohan Singh Meel, PW.49 Ajay Sihag son of Vidhyadhar Sihag, PW.69 Tara Chand Budhania, PW.72 Shambhu Dayal, PW.78 Girdhari Lal Sihag, PW.84 Devilal @ Debu son of Bhani Ram, and PW.87 Vijendra Singh @ Tilliya of the main charge sheet. He has further drawn attention of this court towards the statements of PW. 59 Yashpal son of Arjun Lal, PW. 259 Umat Ali, PW.260 Vijay Singh son of Shri Narayan Singh, PW.261 Pradeep Kumar, PW. 262 Mahinder Singh , and PW.263 Babulal of the supplementary charge sheet.
18. The extract of the statements under section 161 Cr.P.C. of the above prosecution witnesses about the implication of Rajendra Rathore in this matter, read as under :
"??.???????.46 ???????????
???????? ????? ???? ??????, ???? ????????, ????? ?????, ???? ???? ?? ??? ?? ?? ????? ??? ?? ?? ???????? ????????, ???? ???????, ???? ?? ??? ??? ?? ??? ??? ?? ???? ????? ?? ??????? ??? ?? ??? ???????? ?? ????? ?????? ?? ??????? ?? ??? ???? ??? ??????? ??????? ???? ??? ????? ???? ??? ??? ?????? ????? ?? ???? ??????? ?? ????? ????? ?? ?????? ?? ??? ???? ?? ????? ?? ???? ?? ??? ??????? ?? ???? ??? ????? ?? ??? ????? ???? ?? ?? ?????? ???? ???? ???? ??? ?????? ???? ????? ??? ????????? ????, ?????? ???????? ? ?????? ???? ???? ??????, ?????? ???? ????? ?? ????????? ?????? ?????? ?? ??????? ??? ????? ?? ??????? ??? ???? ????????? ???? ??, ???????? ???? ?????? ?? ??? ??? ???? ???? ?? ???? ?? ???????? ?? ????????? ?????? ? ???? ??? ???? ?????? ? ???????????? ?? ???? ????? ???? ?? ?? ??? ????? ???????? ????????? ??? ?????? ? ???????????? ?? ??? ?? ???? ?? ??? ???? ???? ???? ???????? ???? ??? ??????? ???????????? ?? ????? ???????? ?? ????? ??? ????? ??? ???? ????? ?? ??? "
"??.???????.47 ????????
???????? ?? ???????? ??? ???? ???? ?? ???? ?? ??? ???? ????? ???? ???? ??? ???? ???? ?? ???? ?? ??? ????? ???? ????? ??????? ?? ????? ???? ???? ?? ????? ?? ??? ??? ?? ?? ???? ????????? ?????? ?? ???? ??? ?? ???? ?? ??????? ????????? ??????, ????????? ????, ?????? ???????? ?? ???? ???? ???? ?? ?????? ?? ???? ??? ??????? ???? ???? ?? ?? ???? ???? ???? ???? ???? ?? ???? ?? ??????? ??? "
"??.???????.48 ????? ???
???????? ?? ???????? ??? ???? ???? ?? ???? ?? ??? ???? ????? ???? ???? ??? ???? ???? ?? ???? ?? ??? ????? ???? ????? ??????? ?? ????? ???? ???? ????? ??? ???? ?? ?? ???? ????????? ?????? ?? ???? ??? ?? ???? ?? ??????? ????????? ??????, ????????? ????, ?????? ???????? ??? ???? ????? ?? ???? ???? ???? ?? ?????? ?? ???? ??? ??????? ???? ???? ?? ?? ???? ???? ???? ???? ???? ?? ???? ?? ??????? ??? "
"??.???????.49 ??? ?????
???????? ?? ???????? ??? ???? ???? ?? ???? ?? ??? ???? ????? ???? ???? ??? ???? ???? ?? ???? ?? ??? ????? ???? ????? ??????? ?? ????? ???? ???? ????? ??? ???? ?? ?? ???? ????????? ?????? ?? ???? ??? ?? ???? ?? ??????? ????????? ??????, ????????? ????, ?????? ???????? ??? ???? ??????? ?? ???? ???? ???? ?? ?????? ?? ???? ??? ??????? ???? ???? ?? ?? ???? ???? ???? ???? ???? ?? ???? ?? ??????? ??? "
"??.???????.69 ??????? ????????
?? 2000 ??? ???????? ?? ????????? ???? ???? ?????? ?? ??? ??? ????? ?????? ???? ?? ???? ???? ??? ?????? ?? ????? ????, ??????, ???? ??? ?? ?????? ??? ???? ?? ???? ???? ?? ?? ???? ???? ?? ??? ????? ?? ?????? ?? ??? ??? ???? ??? ???? ?????? ???????? ?? ????? ???? ??? ????? ?? ???? ??????? ???? ??????? ?????? ??? ??????, ?????? ???, ????? ?? ??? ??? ???? ???? ?? ?????
????? ?? ???? ???? ??? ?? ??? ???? ???? ?? ???? ???????? ?? ???? 7-8 ????? ???? ???? ??? ???? ???? ?? ????? ????? ???????? ?? ???? ????????? ???? ?????? ?? ??? ?? ??????? ???? ?? ???????? ??? ???? ????, ????????? ???? ?????? ?? ??? ?? ????? ?? ??? ??? "
"??.???????.72 ?????????
???? ???? ?? ???????? ??? ???? ???? ?? ???? 4-5 ????? ???? ?? ??? ???? ???? ??? ?? ????? ???? ???? ???? ??? ???? ???? ?? ???? ?? ??? ????? ???? ????? ??????? ?? ????? ???? ???? ????? ??? ???? ?? ?? ???? ????????? ?????? ?? ???? ??? ?? ???? ?? ??????? ????????? ??????, ????????? ???? ?????? ???????? ??? ???? ????? ?? ???? ???? ???? ?? ?????? ?? ???? ??? ??????? ???? ???? ?? ?? ???? ???? ???? ???? ???? ?? ???? ?? ??????? ??? "
"??.???????.78 ??????? ??? ?????
??? 1995-96 ?? ???? ?? ???????? ????????? ????? ???? ??????? ?????? ???? ??????, ????? ??????????, ???? ????? ????, ????? ? ???? ???? ?? ??? ????? ????? ???? ??????? ?? ???? ?? ????? ?? ????? ?? ???? ???? ??? ?????? ????? ?? ???? ??? ?? ????? ???? ???? ????? ??? ??? ???? ??? ?? ????? ?????? ?????? ??? ?? ?? ???? ???? ?????????? ?? ???? ???? ??? ???? ???? ?? ????? ??? ???? ??? ???? ??? ?? ??? ????? ???? ??? ?? ????? ???? ???? ?? ??? ??? ???? ?? ???? ?????? ???? ????? ?? ????? ?? ?? ???? ??? 1996 ??? ???? ???? ?? ????? ???? ?? ????? ???? ?? ?? ????? ???? ??? ?? ??? ???? ???? ?? ?????? ??? ???? ???
???? ???? ?? ???? ?? ???? 3-4 ????? ???? ????? ?? ??? ??? ?? ??? ????????? ?????? ???????? ??????, ???????? ????? ?? ???? ??? ?? ???? ?? ??????? ????????? ??????, ????????? ???? ???? ????????????, ?????? ???????? ? ???? ????? ?? ???? ???? ????? ?? ???? ??? ??????? ???? ?? ????? ???? ?? ?????? ????? ???? ??? "
"??.???????.84 ??????? ???? ????
????? ???????? ?? ????? ?? ??????? ?? ????? ?????? ????? ???? ?? ??? ???? ???? ?? ?????? ?? ???? ??? ?? ???? ?? ??? ?? ???????? ???? ????? ??? ????? ??? ???? ??? ?? ???? ?? ?? ?? ????? ?? ? ????? ?? ????? ??? ??? ??? ??? ??? ????? ?? 2006 ??? ?? ??? ???? ???? ???? ??? ???? ?? ??? ???? ???? ?????? ??? ?? ???? ????? ??? ?? ????????? ?????? ???? ?????? ?? ??? ?? ?? ????????? ?? ?????? ?? ??? ?? ??? ??? ???? ???? ?? ????? ?? ???? ????????? ?????? ?? ??? ???? ?? ??? ???? ?? ??? ???? ??? ?????? ???? 9414350830 ??? ?? ??? ????? ????? ????? ????? ??????, ?????? ????? ????? 2, ???? ?? ?? ?? ??????? ??, ?? ???? ????? ?? ???? ??? ???? ???? ?? ???? ?? ????? ???? ??????? ????? ?? ????????? ?????? ?? ?????? ????? 9414083999 ?? ??? ????? ?? ?? ??? ????? ???? ??? ????? ????????? ?????? ?? ????? ????? 9829248999 ?? ????? ???? ??? ?????? ????? ??? ?? ????????? ?????? ?? ??? ????? ?? ????? ???? ????? ?? ??? ?? ?? ??? ?? ???? ?? ?? ??????? ?? ?? ???, ???? ?? ???? ??? ??????? ??? ???? ?? ?? ???? ??? ???? ??? ??? ??? ?? ?????? ?? ??? ???? ??? ??? ????? ???? ??? ????? ?????? ????????? ?????? ?? ??? ????? ????? ???? ???? ???? ????? ??? ??? ?????? ???? ??? ?? ??? ??? ??? ???? ?? ???? ???? ?? ???? ??? ?? ??? ??? ???? ?? ????? ??? ?? ???? ???? ??, ???? ?? ??? ??? ??? ????? ??? ???? ???? ???? ?? ????????? ?????? ?? ??? ?? ??? ?? "?? ????? ??? ?? ????? (???????????? ???????????? ???? ?????? ? ????) ??? ??? ??? ?? ? ???? ?? ??? ?? ? ??? ??? ???? ?? ???? ??????" ?? ?? ?????? ?? ??? ??? ???? ????? ?????? ?? ?????? ?? ?? ????? ?????? ?? ??? ????? ??? ?? ????? ?? ??? ????? ????? "
"??.???????.87 ????????? ???? ???? ??????
????? ???? ? ???? ???? ?? ????? ??? ???? ?? ????? ??? ???? ????? ?? ???? ?????? ????? ??? ??? ??? ???? ?? ???? ????????? ???? ?? ???? ??????? ?? ??? ?? ??? ????? ???? ???????? ?? ??? ????? ???? ??? ?? ????? ??? ?? ??? ???? ??? ???? ?????? ?? ??? ????? ??????? ?? ???? ??? ?? ????????? ??? ?? ?? ????????? ???? ?????? ?? ??? ?? ?? ???? ?? ??? ?????? ????? ???? ??? ???? ??? ?? ???? ?? ?????? ??? ???? ???? ???? ? ????? ???? ?? ????? ?? ?? ?????? ??? ????? ?? ?? ??? ???? ??? ???? ????? ???? ?? ??? ??? ???? ???? ?? ?? ????? ??? ????? ?? ?? ??? ??? ?? ????? ?? ?????? ???????? ?? ????? ???? ???? ?? ???? ?? ??? ???? ???? ?? ???? ?? ?? ???? ?????? ??? ?? ???? ??? ?? ??? ????? ?? ????? ?? ????? ???? ??? ?? ?????? ?? ?????? ????, ????? ???????? ? ???? ?? ???????????? ????? ?? ??????? ????? ?? ??? ?? ?? ?? ????? ?? ????? ?????? ???? ???? ???? ???????????? ????? ?? ????????? ???? ?????? ?? ?? ??? ?? ???? ?? ?????? ? ??? ??? ?????? ????? ??? ??? ?????? ?? ???? ??????? ??????? ???
????? ???? ?? ???? ???? ?? ?? ??? ????? ??? ?? 2003 ??? ?? ??? ???? ????????? ??????, ?????? ???? ?? ????? ????? ???? ???? ?? ???? ???? ???? 01562-286209 ?? ??? ???? ????? ??? ?? ?? ??? ?? "??? ???? ???? ????? ?? ?? ???? ??????? ?? ???? ?? ?????? ?? ???? ?? ???? ????? ??? ????????? ???? ?????? ??? ??? ???? ???? ?? ???? ????? ???? ?????" ???? ?? ????? ????????? ?????? ?? ??? ?? ???? ?? ?? ???? ????? ?? ??????? ?? ?? ?? ????? ???? ???? ?????? ?? ???? ????? ????
??????? ???? ?? ??? ????? ?? ??? ?? ??? ?? ??? ?? ???? ???? ?????? ?? ?? ????????? ?????? ?? ????? ???????? ?????? ?? ??????? ??? ???? ???? ?? ?? ??? ?? ?????? ???? 9414368157 ?? ??? ???? ???? ??? ?? ????? ???????? ?? ????? ?? ????? ?? ???? ??, ?? ???? ?????? ????? ?? ???????? ?? ??? ???? ????? ?? ????? ?? ???????? ?????? ?? ??? ?? ????? ???? ??? ?? ????????? ?????? ?? ??? ?? ??? ?? ?? ????? ?? ????? ???? ????? ?? ?????? ?? ??? ?? ???? ?????, ?? ??? ???? ?? ??????
??? ???? ?? ????? ????? ??? ?? ??? ? ???? ???? ???? ??? ????? ?? ??? ????? ??? ??? ?? ??????? ?????? ????????? ?????? ???? ????? ?? ???? ???? ?? ?????? ????????? ?????? ?? ????? ???? ????? ??? ??? ??? ?? ??? ??? ?? ?? ????? ?? ????? ?????? ???? ????? ?? ?????? ???? ?? ?? ?? ?? ?? ?????? ???? ?? ?? ???? ????? ???? ????? ??????? ??? ? ??? ???
??? ?? ????? ?????? 8.9.2006 ?? ????? ?? ????? ?????? ?? ????? ?????? ???? ?? ??? ???? 20 ??? ?? ??? ????? ?????? ?? ???? ????? ?????? ?? ????? ???? ???? ??????, ?????? ?? ?????? ???, ???? ?? ????? ????? ?? ???? ??? ?? ???? ?? ????? ??????? ??? ???? ??? ???? ?? ???? ??? ??? ???? ???? ????? ?????? ?? ????? ???? ??????? ?? ?????? ??????? ?? ?? ?? ???? ???? ?? ??????? ?? ???? ??? ???? ?????? ??? ????? ?????? ????? ?? ???? ???? ?????? ???????, ?????? ??????? ?? ??????? ??? ?? ???? ??? ?? ??? ????? ???? ???? ?? ???? ??????? ?? ?????? ??? ????? ?? ????? ????? ?? ??? ???? ??? "
"??.???????.59 ?????
???? ???? ?? ???????? ??? ???? ???? ?? ???? ?? ??? ???? ????? ???? ???? ??? ???? ???? ?? ???? ?? ??? ????? ???? ????? ??????? ?? ????? ???? ???? ????? ??? ???? ?? ?? ???? ????????? ?????? ?? ???? ??? ?? ???? ?? ??????? ????????? ??????, ????????? ???? ?????? ???????? ?? ???? ??????? ?? ???? ???? ???? ?? ?????? ?? ???? ??? ??????? ???? ???? ?? ?? ???? ???? ???? ???? ???? ?? ???? ?? ??????? ??? "
PW.259. Shri Umat Ali:
On being asked I further state that in the Shekhawati Area there are two groups, one headed by Sumer Singh Fagedia and another by Virender Singh Niangli which were engaged illicit liquor trade during 2000- 2001 onwards. Vijender Singh @ Tillia and Dara Singh were associated with Sumer Singh Fagedia. There was group rivlry between these two groups and various cases were registered against each other at different police stations and finally this rivalry resulted in enmity. I further state that group headed by Shri Virender Singh ahd the patronage of Shri Rajendra Rathore, MLA/ Minister, Government of Rajasthan. The other group led by Sumer Singh fagedia consissting of Dara Singh, Vijender Singh @ Tillia and others was also involved in liquor business. In the year 2002, Sumer Singh Fagedia was shot at, abducted from Rajgarh Couft premises by the rival gang of Virender Singh Niangli and murdered and subequently all the accused were acquitted by the court.
I also state that Shri Rajendra Rathore b y way of putting pressure through local police used to harass the Tillia group. There was a time when his group and family members had left the area due to fear of Police.
PW.260 Vijay Singh :
On being asked about the rival group of illicit liquor trade in Shjekhawati area, I state that one was headed by Sumer Singh Fagedia and another belonging to Virender Singh Niangli in the area of Churu and Jhunjhunu during the year 2000-2001. Vijender Singh @ Tillia and Dara Singh were aligned with Sumer Singh Fagedia. There was group rivalry between these two groups and various cases were registered against both the groups at different police stations in the area and finally this rivalry resulted in enmity. On being further asked I state that the group headed by Virender Singh Niangli which was involved in illicit liquor business had the blessing of Shri Rajendra Rathore, MLA/ Minister, Government of Rajasthan. The other group led by Sumer Singh Fagedia consisting of Dara Singh, Vijender Singh @ Tillia and others was also involved in liquor business. In the year 2002, Sumer Singh Fagedia was shot at, abducted form Rajgarh Court premises by the rival gang of Virender Singh Niangli and murdered. On various occasion i.e. election campaign and fucntions I had seen Virender Soingh Niuyangli, Vijay Mundital and others in company of Sh. Rajindra Rathore. I had also seen Vijay Mundital driving the private vehicle of Sh. Rathore. In the year 2008 Sh. Rajindra Rathore had inaugurated the bus stand of our village and during this function also he was accompanied by Virender Singh Niyangli, Vijay Mundital and others.
I also state that Shri Rajendra Rathore used to harass the Tillia group. There was a time in the year 2006, when group of Tillia had left the area due to fear of Police.
PW.261 Pradeep Kumar :
In the year 2002, Sumer Singh Fagedia was shot at, abducted form Rajgarh Court premises by the rival gang of Virender Singh Niangli and murdered and in the year 2006 all the accused were acquitted on the behest of Rajendra Rathore. From the above it is evident that Niyangli Group has the blessing of Sh. Rathore Rathore.
I also state Shri Rajendra Rathore being a Minister used to harass the Tillia group by way of putting pressure through local police. In the year 2006 some of the friend of Dara Singh and Tillia were illegally detained to enquire about the where about of Dara Singh.
PW.262 Mahinder Singh :
In the year 2002 Sumer Singh Fagedia was shot at, abuducted from Rajgarh Court premises by the rival gang of Virender Singh Niangli and murdered. Sh. Rathore had helped Niangli group in the Sumer Singh fagedia murder case. I also state that Shri Rajendra Rathore used to harass the Tillia group by using his high reputation in the area and Govt.
I also state that on various occasion i.e. election campaign and functions I have seen Virender Singh Niangli, Vijay Mundital and others in the company of Shri Rajendra Rathore. I have also seen Vijay Mundital driving the private vehicle of Sh. Rathore.
PW.263 Shri Babulal :
It is an open secret that the group headed by Shri Virender Singh Niangli which was involved in illicit liquor business had the patronage of Shri Rajendra Rathore, MLA/ Minister Government of Rajasthan. The other group led by Sumer Singh Fagedia consisting of Dara Singh, Vijender Singh @ Tillia and others was also involved in liquor business. In the year 2002 Sumer Singh fagedia was shot at, abducted from rajgarh Court premises by the members of the gang of Virender Singh Niangli and murdered. Sh. Rathore had helped Niangli group in the Sumer Singh Fagedia murder case.
I also state that Shri rajendra Rathore used to harass the members of Tillia group. There was a time when all the family members of Tillia had left the house due to fear of police.
19. The learned counsel for the petitioner has further requested to this court that the case of Sajjan Kumar is directly applicable in the present case in which the Apex Court has specifically laid down that at the stage of framing of charge under section 228 Cr.P.c. or while considering the discharge petition filed under section 227 Cr.P.C. it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentially value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other.
20. The learned counsel for the petitioner has further drawn attention of this court specifically towards the supplementary charge sheet particularly paras (d), (e),(f),(g),(h),(i), and (j). Said paras are reproduced as under :
(d) ??? ??????? ?? ?? ????? ???? ?? ?? ???????? ?? ????????????? ???? ?????? ?? ????? ?? ?????? ?? ??? ????????? ?????? (?-17) ?? ??? ?? ?????? ??? (strong motive) ?? ?? ???????? ?? ????? ?? ????? ???? ?? ??? ???????? ????????? ?????? (?-17) ?? ???????? ??????? ????? ??? (?-15) ???????? ????? ????????? (?????), ???????? ?? ??? ?? ??????? ??????? ???? ?? ??????? ??????? ?? ??????????? ?? ??? ???????? ????????? ????? (?-17) ?? ???? ?????? ??? ?? ???????? ??????? ????? ??? (?-15) ?? ?????? ??? ?? ????? ???????? ?????? ???????? ?? ????? ?? ????? ??? ????? ?? ?????? ?????? ??? ??????? ?? ?? ???? ????? ???? ?? ?? ???? ?????????? ?? ???????? ????? ???????? ????????? ?????? (?-17) ?? ???????? ??????? ????? ??? (?-15) ?? ??? ??? ??????? ??????? ?? ????? ???
(e)??? ??????? ?? ?? ????? ???? ?? ?? ??????? ??????? ?? ???? ??? ???????? ????????? ?????? (?-17) ?? ???????? ??????? ????? ??? (?-15) ? ????? ??????? ??????? ?? ???? ??? ??? ??????? ?????? ?????? ???? ?? ????? ??????? ??????? ?? ??? ??? ?? ??? ??? ??????? ?????? ?????? ???? ??? ??????? ??????? ?? ????? ?????? 4.10.2006 ?? ???????? ????????? ?????? (?-17) ?? ???????? ??????? ????? ??? (?-15) ?? ??????? ???? ?? ???? ??????? ??????? ?? ???? ??? 5.10.2006 ?? ???? ???? ??? ???????? ????? ??????? (?-13) ?? ????????????? ????? ???????? ?? ?? ?? ???????? ?? ?????? ?? ??? ????, ?????? ?? ???? ??? ???? ???? ??? ??????? ?? ??? ????? ???? ?? ?? ???????? ????????? ?????? (?-17) ?? ???????? ??????? ????? ??? (?-15) ?? 5.10.2006 ?? ??????? ???? ?? ???? ??????? ??????? ?? ???? ??? ???? ??????? ????? ???, ???????, ?????? (?-15) ?? ???? ???? ?????? 2059 ?????? 6.10.2006 ?? ?????? ?????? ????, ???, ???????? ????? ?? ???? ???? ????????? ??? ?? ?????? ?? ????? ???? ?? ????? ?? ??? ???? ??????/??? ????? 9214886932, 9829219370, 01571-230371 ??? 01571-233802 ?? 60 ??? ?? ??? ????????? ???? ?? ???????? ?????? ???? ????????? ?????? (?-17) ?? ??? ?????? 16.10.2006 ?? ???? ??????? ????? ???, ??????? (??????) (?-15) ?? ?? ??????? ????? ??? ?? ??? ?????? 16.10.2006 ?? ????? ??? ?? ???? 4.15 ?? ?????? ?? ?? ???: ??? ??? ?????? ????????? ??? ???? 6.00 ??? ????? ??? ???? ???? ???? ??????? ????? ???, ??????? (??????) (?-15) ?? ?????? 17.10.2006 ?? ???????? ?? ?? ???? ???????? ?? ?????? ??? ??????? ?? ????? ???? ?? ?? ?????? 19.10.2006 ?? ???? 7.25 ??? ???? ????????? ????? (?-17) ?? ???? ??????? ????? ???, ??????? (??????) (?-15) ?? ??????? ???? ??? ??????? ?? ??????? ??? ?????? 19.10.2006 ?? ????? ??? ????? ???????? ?? ?????? ???? ???? ????? ????? (?-12) ?? ???????? ???? ??? ?? ???? ???? 102 ???????? ?? ???????? 6 ??? ????? ?? ???? ???? ?? ??? ????? ????????? ?????? (?-17) ?? ???: ?????? 25.10.2006 ?? 0831 ??? ????? ??????? ????? ??? (?-15) ?? ??????? ??? ?? ?? ??? ?? ???? 199 ?????? ??? ????????? ?????? (?-17) ?? ?? ??? ?? ??????? ???? ?? ????? ??????? ????? ??? (?-15) ?? ???? ??? ?????? 25.10.2006 ?? 0838 ??? ????? ???? ??? (?-13) ?? ?? ????? ???? 54 ??????? ??? ???: ?????? 27.10.2006 ?? ????? ????????? ?????? (?-17) ?? ????? ??????? ????? ??? (?-15) ?? 0745 ??? ??? 1546 ??? ?? ??????? ????? ?? ????? ???? ?????: 106 ??????? ??? 365 ??????? ??? ?????? 31.10.2006 ?? ??????? ????? ??? (?-15) ?? ????? ????????? ?????? (?-17) ?? ?? ??????? ??? ???
(f)??? ??????? ?? ?? ????? ???? ?? ?? ???? ????????? ?????? (?-17) ???????? ??????? ?? ???? ????? ??????? ??? ????? ?? ?? ???? 2006 ??? ?? ?????? ?? ??? ?? ???? ??? ??? ?????? ?? ???? ???, ????? "??? ????" ???? ?? ??? ??? ???? ???? ??, ???? ?????? ?? ???? ???? ?? ???????? ???? ??? ?????? ??? 2305 ??? ????? ??? ?? ??? ???????? ???? ?????? ??? ????? ????? ?? ????? ???????? ?? ???? ?????? ??? ???
(g)??? ??????? ?? ????? ???? ?? ?? ???????? ?? ??????? ?? ???? ????? ??? ???? ?????? ??????? ?? ???? ?? ????? ????????? ?????? (?-17) ?? ?? ?? ?? ?? ??????????? ?? ?????? ???????? ?? ??? ?????? ?? ??? ?? ???????? ?? ??????? ?? ??????? ??? ??? ???? ????? ?? ??? ????? ???????? ??? ??? ???? ?? ??? ????? ?????? ?????? ????? ???? ?? ?? ??? ?? ???? ?? ??? ?? ?? ???????? ?? ?? ????? ??????? ??? ???? ??? ??? ????? ?? ????? ????????? ?????? (?-17) ?? ????????? ???? ???????? ?? ????? ?? ?????? ????? ???????? ??? ??? ?????? ????? ???
(h)??: ?????? ?? ?????? ??? ?? ??????? ?? ????? ???? ?? ?? ????? ??????? ????: ???? ???? ????? ?????, ???? (?-1), ?????????, ???? (?-2), ?????????? ??????, ???? (?-3), ????? ???, ???? (?-4), ???? ?????, ???? (?-5), ????? ??????, ???? (?-6), ?????? ?????, ????? ?????? (?-7), ????? ??????, ????? ?????? (?-8), ?????????????, ????? ?????? (?-9), ?????, ?????? (?-10), ????? ????, ??????/??????? (?-11), ?? ??? ??? ????? ??? ????? ??, ???? ????? ????? (?-12), ?? ???????? ???????, ???? ???, ???????? ????? ???????, ????? (?-13), ?.??????????, ????, ????? (?-14), ?????? ????? ???, ??????? (??????)(?-15), ??? ????????, ????, ????? (?-16) ??????? ???? ?? ???????? ???? ?? ???? ?? ??? ????????? ?????? (?-17) ?? ??? ??? ??????? ??? ??? ???? ???? ??? ?????? 23.10.2006 ?? ???? ???? ????? ??????, ?????? ???? ????????, ????? ??????, ???? ????, ???????? ?? ????? ????, ????? ????? ?? ???? ??? ?? ???? ?????, ???? ????? ????, ?????? ?? ????? ?? ??? ??? ????? ???? ??? ?????? ???????? ?????? ????? ??????? ????? ???? ???? 120?? ??.?.??. ?????? 302, 364, 346, 201, 218 ??.?.??. ?? ??? ?????? ? ???? ??? ????? ????
(i)????? ??????? ????? ???, ???????? ??????? (??????), ????????, ????? ?? ?????? 27.2.2012 ?? ?? ?????? ???????? ?? ????? ???? ?????? ???? ??? ?????? 29.2.2012 ?? 10.3.2012 ?? ????? ?????? ??? ??? ??? ??? ?? ?????? 10.3.2012 ?? ?? ?? ??????? ?????? ??? ???
(j)????? ????????? ????? (?-17) ?? ?? ??????? ???????? ?? ??? ?? ?????? ???????? ?? ????? ??????? ???? ???? ???
21. The learned counsel has drawn attention of this court towards para No. 41 of the of the impugned order dated 31.5.2012. Thereafter he has drawn attention towards statements of the witnesses PW.87 Vijendra Singh @ Tilliya, PW.84 Devilal @ Debu, PW.185 Valiveli Viswanathan, PW.186 Hemish Sagar and PW. 188 S.C. Sharma.
22. The extract of the statements of PW.87 Vijendra Singh @ Tilliya, PW.84 Devilal @ Debu have already been quoted above and the extract statements of PW. 185 Valiveli Viswanathan, PW.186 Hemish Sagar and PW. 188 S.C. Sharma read as under :
PW.185 Shri Valiveti Viswanathan :
On careful perusal of the above mentioned documents, I state that on the request of I.T. Project Circle BSNL Pune I have provided the details of the traffic of the requisitioned mobile number for the period from April 2006 to July 2006. The information sent has been electronically generated and is authentic. It has been obtaiend from M/s. Tech Mahindra Limited, Pune. BSNL has tie up with Tech 0 Mahendra. Here, I want to clarify that traffic/ CDR provided of above mentioned number are only for those calls which were originated/ terminated from service providers other than BSNL.
On being specifically asked about the traffic of the mobile number 941350830 and on careful perusal of the above mentioend records, I state that on 8.5.2006 two calls have been made from mobile number 9414350830 to mobile number 9829248999. The duration of these calls are 28 seconds and 16 seconds respectively. On 23.5.2006 call has been made from mobile number 9414350830 to mobile number 9829248999. The duration fo this call is 9 seconds.
PW.186 Hemish Sagar :
On careful perusal of the above mentioned documents, I state that on the request of I.T. Project Circle BSNL Pune I have provided the details of the traffic of the requisitioned mobile number for the period from April 2006 to July 2006. The information sent has been electronically generated and is authentic. It has been obtained from M/s. Tech Mahindra Limited, Pune. BSNL has tie up with Tech Mahendra. Here, I want to clarify that traffic/ CDR provided of above mentioned number are only for those calls which were originated/ terminated from service providers other than BSNL.
On being specifically asked about the traffic of the mobile number 941350830 and on careful perusal of the above mentioend records, I state that on 8.5.2006 two calls have been made from mobile number 9414350830 to mobile number 9829248999. The duration of these calls are 28 seconds and 16 seconds respectively. On 23.5.2006 call has been made from mobile number 9414350830 to mobile number 9829248999. The duration fo this call is 9 seconds.
PW.188 SC Sharma :
Today I have been shown letter No. MOB/ Security- 2010 dated 6.9.2010 addressed to Shri R.S. Punia, SP, CBI Block No.3 CGO Complex, Lodhi Road, New Delhi-3. On carefulperusal of the same, I confirm that this letter had been sent by me to SP, CBI, and I identify my signatures on the same. This letter was sent in response to a requisition vide DO No. 3314 dated 16.7.2010 received from SP, CBI requesting therein for providing CDR of the mobile numbers mentioned in the requisition.
I received the requisitioned information from Shri M.A. Kulkarani, DE, IOBAS, IT Project Circle, Pune in 10 pages which were signed by DE, IOBAS. On receipt of this information from Pune, I had sent the same to the Supdt. Of Police, CBI, New Delhi vide my above mentioend letter dated 6.9.2010. I indentify the signatures of Shri M.A. Kulkarani, DE, IOBAS, IT Project Circle, Pune on his letter dated 1.9.2010 and 10 pages enclosed with the letter.
23. The learned counsel has further drawn the attention of this court regarding conversation in between A.K. Jain and Rajendra Rathore. He has submitted call details dated 4.10.2010 of Bharti Hexacom.
21. Call details in Ex. D-141 of Bharti Hexacom Ltd. are as under :
S.No. Mobile No. IMEL-No. Call time Calltype Called No. Duration Cell No. 307 9829248999 359308002089690 4.10.2006 22.32MOC 9829052167 64 1393 310 9829248999 359308002089690 4.10.2006 22.48MOC 9829052167 295 1393 348 9829248999 359308002089690 5.10.2006 22.16MOC 9829052167 66 1393 1558 9829248999 359308002089690 16.10.2006 13.12MOC 9829052167 106 60381 1559 9829248999 359308002089690 16.10.2006 13.15MOC 9829052167 153 60381 2020 9829248999 359308002089690 19.10.2006 19.25MOC 9829052167 164 1393 According to him, the above calls from the cell number of Rajendra Rathore to A.K. Jain, prove conspiracy in between A.K. Jain and R.S.Rathore. He has further contended that the aforesaid call details prove that Rajendra Rathore also involved in the conspiracy of murder of Dara Singh.
24. He has drawn the attention of this courts towards the evidence of last seen of Dara Singh at the residence of Asgar Peer. The learned counsel has drawn attention towards the fact that Vijay Chaudhary who has been made accused by the CBI is still absconding. It has been stated that Vijay Chaudhary and Dara Singh started journey along with Surender Hawaldar from the house of Asgar Peer. On the way there was a Tea Stall. The owner of the Tea stall was Sanwat Ram PW.97, who has last seen Dara Singh along with Vijay Chaudhary and Head Constable Surendra. The extracted portion of the statement of Sanwat Ram PW.97 reads as under :
??.???????.97 ????????
????? ???? ???? ?? ????? ??? ???? ???? ?? ?? ??? ???? ???? ???? ??? ??? ??????? ??????, ????? ??? ?? ???? ??? ?? ???? ?? ???? ??? ?? ????? ??? ??????? ?????? ????? ??? ?? ??? ??? ?? ???? ????? ??? ??? ?? ??? ?? ???? ??? ?? ???? ???? ?? ????? ?? ??????? ??? ?? ??? ????? ?? ?????? ?? ??????? ????? ???? ??? ?? ???? ?? ??? ???? ?? ???? ????? ??? ??? ?? ???? ?? ??? ?? ????? ?????, ?????-?????? ????? ?? ???? ???
???? ????? ??? ??? ?? ?? ???? ???? ?? ???? ?? ?? ??? ???? ???? ?????? 22.10.2006 ?? ???? ????, ???? ??????? ?? ????? ???? ?????? ????????? ?? ?????? ????? ??? ???? ??? ??? ???? ???? ???? ?? ????? ? ?????? ???? ?? ??? ???? ??? ????? ????? ??? ???????? ?? ???? ????? ?? ?? ?? ??? ???? ??? ?? ????? ?? ??? ???? ????? ?? ?????? ???? ?? ????? ??? ??? ?????? ????? ??? ????? ?? ?? ??? ???
25. He has further contended that Vijay Chaudhary introduced his friend Dara Singh as Vinod instead of Dara Singh and asked his friend Asgar Peer that he may allow him at his residence for some time. Dara Singh stayed at the residence of Asgar Peer as Vinod. Lastly the learned counsel has drawn attention of this court towards section 114 of the Evidence Act. Section 114 of the Evidence Act reads as under :
114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
26. The learned counsel further drawan attention of this court towards statements of PW.87 Vijendra Singh @ Tilliya son of Ranjit Singh, PW.121 Pratap Singh Sevda, former Sub Inspector Malsisar, Police Station, PW.131 Virendra Jakhad, who have been threatened by Rajendra Rathore. The extract of the statements of PW.121 Pratap Singh Sevda and PW.131 Virendra Jakhad read as under :
PW.121 ???? ?????? ???? ?????
????? ?? ????? ???? ??? ??? ?? ????????? ???? ???? ??????, ????????? ???? ?????? ????????, ???? ???? ???, ?????? ????????, ???? ?????? ????? ???? ???, ?????? ?????, ???? ??????, ??????? ??????? ??? ????????? ?? ????? ???? ???? ?? ???? ???? ??? ??? ?? ?? ??? ??? ??? ??? ??? ?????? ???? ??? ?????? ????? ??? ????????? ???? ???? ?????? ?? ?? ??? ?? ??? ????? ??? ??? ????????? ???? ??????, ?????? ???? ?????, ???? ?????, ??????? ???? ??????, ?????? ???????? , ???? ???? ??? ?????? ???????? ?? ????? ??? ??? ????????? ?????? ???????? ???? ????? ?? ???? ????????? ??????, ???????? ??????????? ?????? ?? ??????? ??????? ?? ?? ?????? ?? ?? ????? ?? ?? ??? ?? ??? ???? ??? ???? ?? ??? ??? ?? ???? ???? ???? ??? ??????? ?? ?? ?? ????? ?????????????? ????????? ????, ???? ??????? ?? ????? ???? ??? ?? ?????? ????? ?? ????? ?? ????? ?? ?? ? ???? ??? ?? ????? ????? ?? ?????
?????? ????? ?? ??? ??? ?? ????? ?? ?? ???????? ???????? ??????? ??????????? ?????? ???? ????????? ?????? ?? ??? ??? ???? ?? ???? ??? ???? ???? ? ????????? ???? ?????? ?? ?????? ????? ?? ?????? ??? ?? ????? ?? ?????? ??? ?? ???? ????, ?????? ????????, ?? ???????????? ????? ?? ?? , ????? ???????? ?? ?????????????? ???? ????? ??? ?? ?? ??? ??????????? ?????? ?? ?????? ?? ???????? ?? ?? ???? ??? ????????? ???? ? ???? ?????? ? ???? ???? ?? ????? ????? ????? ??? ??? ???? ?? ?????? ??? ???????? ?? ??????? ???? ???? ??0??0??0 ??? ????? ??? ?? ???? ????? ?? ?? ????? ??? ??????? ??? ???? ???????, ????? ???? ? ???? ?? ????? ?? ?? ? ??????? ???? ?????? ??? ????????? ???? ???? ??????, ??????? , ???????, ????, ???? ????, ???? ???? ???? ?? ?????? ??? ????? ???? ??? ????? ???
PW.131 ???? ???? ????????? ?????
????? ?????? ?? ?? ??????? ????? ?????? ?? ?? ????? ???? ?? ????? ???? ???? ????? ??? ????????? ???????? ????? ?? ??????? ????? ???????? ????? ??? ??? ???? ?? ???? ????? ??? ?? ?? ???? ??? ???? ?? ?????? ?? ????????? ?????? ?? ?? ??? ?? ?? ???? ????? ???? ???? ?? ?? ??? ????? ?? ????? ????
27. Learned counsel for the petitioner has further contended that this is a case where the learned Sessions Judge has not considered these arguments at the time of hearing of the charge arguments and ignoring all the facts discharged the accused Rajendra Rathore. For this purpose he has drawn attention of this court towards the case reported in (2000) 2 SCC 57 State of M.P. vs. S.B.Johari and others where the Hon'ble Supreme has held 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 stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials 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 the 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 v. Jitendra Bhimraj Bijjayya1 after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the 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 Singh2, Union of India v. Prafulla Kumar Samal3 and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja4 and held thus: (SCC p. 85, para 7) 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 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.
28. In view of the arguments raised by the learned counsel for the petitioner, it was prayed that the judgment of the Sessions Judge discharging the accused Rajendra Rathore is liable to be set aside.
29. I have gone through the impugned order dated 31.5.2012 and the other orders framing charge against the other accused persons on the basis of the charge sheet and the set of evidence enclosed with the charge sheet and the material made available to me and on the basis of the record of the trial court, and the details of the calls made from the cell phone. I have also gone through the statements of the witnesses whose statements have been extracted above. It is clear from the impugned order dated 31.5.2012 that the Sessions Judge has not considered pros and cons, reliability or acceptability etc. of the statements of the witnesses quoted above while discharging the accused Rajendra Rathore. I have also gone through the rulings of the Apex Court cited above. In my view before proceeding further in the matter it is necessary to issue notice of this petition to the respondent Rajendra Rathore.
30. For these reasons, I issue notice to the respondent Rajendra Rathore, returnable on July 10, 2012.
Put up on 10.7.2012.
(M.C. SHARMA )J. OPPareek/ All corrections made in the judgment/order have been incorporated in the judgment/ order being emailed (O P Pareek) PS-cum JW