Jharkhand High Court
Mrityunjay Das vs State Of Jharkhand on 19 May, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.-573 of 2013
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Mrityunjay Das,
Son of Late Alok Nath Das, resident of House no. 3, Babu Line,
Tata Foundry (East Plant Basti), P.S. Burma Mines, PO Golmuri,
Town- Jamshedpur, District- East Singhbhum
.... .... .... Petitioner
--Versus--
The State of Jharkhand .... .... Opposite Party
For the petitioner : Mr. Indrajit Sinha,Advocate
For the State : Mr. Asif Khan, A.P.P.
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
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C.A.V. ON: 07/05/2015 PRONOUNCED ON 19/05/2015
In this Revision Application filed under Sections 397 and
401 of the Code of Criminal Procedure (in short „the Code‟), the sole
petitioner has challenged the order dated 13.05.2013 passed by
Additional Sessions Judge- III, Jamshedpur in S.T. No. 436 of 2012
arising out of Golmuri (Burma Mines) P.S. Case No.162 of 2012
whereby and whereunder the petition filed by the petitioner under
Section 227 of the Code for his discharge, has been rejected.
2. The petitioner has been made accused in Golmuri (Burma
Mines) P.S. Case No.162 of 2012 corresponding to G.R. Case no. 2045
of 2012 for the offence under Section 304(B)/Section 34 of the Indian
Penal Code on the allegation that the deceased Anita Das, the
daughter of the informant Haldhar Das, was married with this
petitioner on 28.01.2007 according to Hindu Custom and Rituals and
in the marriage, cash, ornaments and utensils were given to him and
though the conjugal life passed peacefully for the next two years and
a daughter was born out of the said wedlock but after almost
completion of two years, this petitioner and her in-laws started
torturing the deceased Anita Das for demand of more dowry and on
several occasions, she was subjected to physical assault at the hands
of this petitioner and in-laws and even they intended to kill her. On
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24.07.2012, one Jitendra, who happens to be the elder brother of son- in-law of the informant, informed him on phone that his daughter Anita Das has committed suicide by hanging.
3. It appears that on the basis of the written application of the informant, aforesaid case was lodged under Section 304(B)/34 of I.P.C. but after investigation, the charge-sheet was submitted against this petitioner only under Section 306 of the Indian Penal Code. The court below took cognizance of the offence and it was committed to the Court of Sessions for trial whereafter a petition was filed by the petitioner under Section 227 of the Code for his discharge, which was rejected by the order impugned dated 13.05.2013 as indicated above holding that there is sufficient materials in the case dairy to proceed against the accused-petitioner.
4. Mr. Indrajit Sinha, learned counsel for the petitioner, while assailing the order impugned submitted that the court below without appreciating the evidence available on record, whereby finding no evidences to proceed against the petitioner and other accused under Section 304(B)/34 of I.P.C., charge sheet was submitted against the petitioner only under Section 306 of I.P.C., erroneously rejected the prayer for discharge of the petitioner. It was also submitted that there is absolutely no evidence to show that the petitioner abated the deceased to commit suicide and in absence of that, finding of the court below that prima facie there is sufficient material on record, is bad in law. Learned counsel further relying upon a judgment reported in (2008) 10 SCC 394 submitted that the Hon‟ble Supreme Court has held in the above case 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." Apparently, the charge sheet has been submitted under Section 306 of the I.P.C. though the case was initially registered under Section 304(B)/34 of I.P.C. and this shows that there is no sufficient material on record.
35. Refuting the contentions advanced on behalf of the petitioner, learned counsel representing the State has taken the Court through various paragraphs of the case diary and the autopsy report and submitted that on perusal of different paragraphs of the case diary, it would appear that there is sufficient material on record to frame charge against the petitioner.
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 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 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 4 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.5
(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 can easily be said that at the initial stage, if there is strong and grave suspicion for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. At this stage, 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. Since the deceased died within seven years of the marriage in her matrimonial home at the very outset, this can be presumed that the death was not in natural course. There is also a presumption under Section 106 of the Evidence Act that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Apparently, the deceased died in her matrimonial house and the court below finding sufficiency of materials available on record, took cognizance of the offence against this petitioner and that order taking 6 cognizance was never challenged by the petitioner. I have gone through the different paragraphs of the case diary where in clear words, the witnesses examined during investigation have supported the prosecution case. Hence, a strong and grave suspicion is there for presuming that the physical and mental torture of the deceased at the hands of the petitioner abated the deceased to commit suicide.
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 and grave 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 the sufficiency of material 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, ........... May, 2015 Ritesh/N.A.F.R.