Jharkhand High Court
Chandrashekhar Singh & Ors vs State Of Jharkhand on 14 May, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 325 of 2010
-----------
1. Chandrashekhar Singh, son of Brinda Singh
2. Kedar Yadav, son of Moti Yadav
3. Bishun Ganjhu @ Bigan Ganjhu @ Rambesar Ganjhu
All residents of village-Honhe, PO & PS- Tandwa, District- Chatra
4. Chaturgun Sao, son of late Punit Sao
Resident of village Koyad, PO & PS- Tandwa, District- Chatra
.... .... .... Petitioners
--Versus--
1. State of Jharkhand
2. Malti Devi, wife of Late Sarvajit Yadav, resident of village Honhe,
PO- Saradu, P.S.-Tandwa, District-Chatra
.... .... .... Respondents
For the petitioners : Mr. Jitendra S. Singh &
Mr. Arun Kumar Pandey, Advocates
For the Respondent-State : Mr. Md. Hatim, A.P.P.
For the O.P. No.-2 : Mr. Pradip Kumar Prasad, Advocate
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
-----------
C.A.V. ON: 06/05/2015 PRONOUNCED ON14/05/2015
In this Revision Application filed under Sections 397 and
401 of the Code of Criminal Procedure (in short „the Code‟), the four
petitioners have challenged the order dated 30.03.2010 passed by
Additional Sessions Judge, F.T.C.- II, Chatra in S.T. No. 37 of 2010
whereby and whereunder the petition filed by the petitioners, for
their discharge under Section 227 of the Code, has been rejected.
2. The petitioners have been made accused in Tandwa P.S.
case no. 27 of 2008 corresponding to G.R. Case no. 390 of 2008 for the
offence under Sections 302/34 of the Indian Penal Code on the
allegation that on 07.04.2008 at about 8:30 P.M., the petitioners came
to the house of the informant Malti Devi and called her husband
Sarvjit Yadav and took him along with them for eating chicken but
when the husband of the informant did not return in the night, she
tried to search her husband when one Prabhu Yadav, who found the
husband of the informant lying dead on the road in the morning,
2
informed the informant. The informant came to know that after
eating chicken, her husband along with the petitioners had gone for
quarrying boulder in village Koyad whereafter the dead body was
found. The informant suspects that petitioners have killed her
husband.
3. It appears from the record that after investigation, the
police submitted the charge sheet against only one accused
Chandrasekhar Singh under Sections 279, 304(A) of the Indian Penal
Code and also under Section 134 of M.V. Act and submitted the final
form against the other petitioners namely Kedar Yadav, Bishun
Ganjhu @ Bigan Ganjhu @ Rambesar Ganjhu and Chaturgun Sao and
they were not sent up for trial. The learned Chief Judicial Magistrate
finding sufficiency of evidence and materials on record including the
statements of two witnesses Lal Kishun Yadav and Triveni Yadav
differing from the police report, took cognizance of the offence under
Section 302/34 of the Indian Penal Code not only against the
petitioner no.1 Chandrasekhar Singh but also against the other three
petitioners. Thereafter, the case was committed to the Court of
Sessions where the petitioners filed the petition under Section 227 of
the Code for their discharge, which was rejected vide order dated
30.03.2010. It further appears from the record that the petitioners never challenged the order taking cognizance before any Court.
4. Mr. Jitendra S. Singh, learned counsel for the petitioners, while assailing the order impugned submitted that the court below without appreciating the evidence on record rejected the prayer for discharge of the petitioners on erroneous ground. Learned counsel has taken the Court through various paragraphs of the case diary and submitted that on mere perusal of those paragraphs of the case diary, it would appear that without appreciating the contents of those paragraphs though the entire allegation is based on circumstantial evidence, the order impugned was passed. It was further seriously contended that though the charge sheet was submitted under Sections 279 and 304(A) of the Indian Penal Code and 134 of M.V. Act 3 but merely relying upon the statements of two witnesses, who were not even the eye witnesses of the occurrence, took cognizance under Section 302/34 of the Indian Penal Code. It was also submitted that the entire case of the prosecution case rests on suspicion though it is well settled that on mere „suspicion however strong it may be‟ cannot take place of evidence though several independent witnesses have supported the factum of accidental death. Learned counsel further relying upon a judgment reported in (2008) 10 SCC 394 submitted that the Hon‟ble Supreme Court has held that "if two views are equally possible and the Judge is satisfied that evidence produced gives rise to suspicion only, as distinguished from grave suspicion, he would be fully within his right to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or not."
5. Refuting the contentions advanced on behalf of the petitioners, learned counsel representing the State submitted that there is no illegality or irregularity in the impugned order worth interference in the revisional jurisdiction and at the stage of framing of charge or discharge, roving enquiry into the pros and cons of the matter is not at all permissible and mere prima facie case and strong/grave suspicion are sufficient to frame charge.
6. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or being discharged, I would like to examine the scope of Section 227 of the code. The law at this point is succinctly analyzed by the Hon‟ble Supreme Court in Sajjan Kumar Vs. CBI [(2010) 9 SCC 368 ]wherein the Hon‟ble Court has observed in para 19 as under:
" 19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima 4 facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial."
In another judgment State through Inspector of Police Vs. A. Arun Kumar and Anr. [ 2015(1) East Cr. C. 450 (S.C.)], the Hon‟ble Supreme Court on consideration of the authorities about the scope of 227 and 228 of the Code, held as follows:-
(i) "The Judge while considering the question of framing the charges under Section 227 of the Cr PC 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.5
(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 materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, to sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to 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."
7. From the above ratio decided by the Hon‟ble Supreme Court, it is clear that at the initial stage, if there is strong and grave suspicion for presuming that the accused has committed an offence, 6 in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. At the stage of consideration of the matter under Section 277 of the code, the evidences are not to be weighed and appreciated in the same as is done at the trial. It is also not possible at this stage to make any roving enquiry into the pros and cons of the matter. Apparently, the charge sheet was submitted against petitioner no. 1 only and, the petitioner nos. 2 to 4 were not sent up for trial and final form was submitted against them but the court finding sufficiency of materials available on record, took cognizance of the offence against all the petitioners and that order taking cognizance was never challenged by the petitioners. There is no denial of the fact that these petitioners came to the house of the deceased and took him for dining thereafter for quarrying purposes and so the deceased was last seen with the petitioners. The witnesses examined during investigation especially in paragraphs 7 and 8 of the case diary have stated in clear words that the petitioners have killed the deceased and thrown the dead body in the forest area. The witnesses examined in paragraphs 66 and 67 have also supported the prosecution version and the same finds support from the postmortem report also where the doctor, who conducted the autopsy, found six ante-mortem injuries and the death was due to those injuries. It has come in the evidence of some of the witnesses examined during investigation that the deceased was treated by a local quack doctor where he was declared dead. If such is believed then in that case, the dead body would have been found in the clinic of the said doctor but it was found lying in the forest area on kacha road. Undoubtedly, during investigation, different versions have come in the case diary out of which one supports the accidental death of the husband of the informant while some of the witnesses have stated that the deceased was killed by the petitioners and this version finds support from the postmortem report vis-à-vis the place from where the dead body was recovered. Hence a strong and grave suspicion is there for presuming that the offence has been committed.
7The Court below while dealing with this aspect has rightly observed that only after trial, the complicity and role of the petitioners can be decided and not at this stage. After going through the evidences and materials available on record, I also find that there is sufficiency of materials against the petitioners to frame charge against them.
8. In view of the authoritative pronouncements and principles laid down in the above cases, the Court has only to look into the broad probabilities of the case, the strong suspicion and the materials produced before the Court along with the charge sheet under Section 173 of the Code. Since this court under revisional jurisdiction is dealing with the limited aspect of the issue of being charged or discharged, I am purposely and deliberately steering of making any positive assertions or even referring to certain aspect of the matters lest, any observations made by me, may prejudice the case. Whatever indirect observations I have made in course of this order, are only to the limited aspect of examining and interfering with the order impugned.
9. Hence in the light of observations made above, I see no good reason to interfere in the order impugned.
10. The revision application is, thus, dismissed.
(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 14th May, 2015 Ritesh/N.A.F.R.