Rajasthan High Court - Jaipur
Himanshu Moorjani vs State Of Rajasthan on 24 May, 2002
Equivalent citations: 2002CRILJ3141, RLW2003(2)RAJ801, 2002(3)WLC668
JUDGMENT Sharma, J.
1. This revision petition under Section 397 read with Section 401 Cr.P.C. arises out of the order dated 3.8.2001 passed by the learned Special Judge (Sati Nivaran), Jaipur by which he has framed charge under Section 201 IPC against the accused petitioner.
2. Brief facts giving rise to this revision petition are summarised as follows :
Hemant, the principal accused in Sessions Case No. 7/2001 had intimacy with Kumari Darshna, sister of deceased Jatin, but after of Ku. Darshna arranged her marriage else where. Hemant became annoyed when he came to know about the engagement of Darshna. On the day bf incident i.e. 17.2.2001, Hemant along with his elder brother himanshu, the petitioner before this court, telephoned at the residence of Darshna and asked about Darshna and his brother, since deceased. Thereafter, Hemant called the deceased boy from the place where he was playing with one Umang Mathur and took the boy with him.
3. It has come in the statements of witnesses that at the time when Hemant telephoned and took the deceased boy with him, Hemant was wearing a black/dark blue coloured jacket. In the course of investigation, he disclosed that he handed over the jacket to his brother Himanshu and accordingly, on the information of Himanshu, the police recovered the said jacket in half burnt condition from his possession.
4. Considering the evidence and material collected during investigating, the learned trial court framed charges under Sections 364, 302 and 201 IPC against accused Hemant and under Section 201 IPC against accused Himanshu vide its order dated 3.8.2001. It is against this order of framing charges, the present petitioner has preferred this revision petition.
5. I have heard learned counsel for the parties, perused the impugned order and the material placed on record.
6. In assailing the order framing charge under Section 201 IPC, Mr. S.S. Hora, learned counsel for the petitioner has contended with vehemence that mere recovery of jacket only from the possession of petitioner Himanshu is no evidence of commission of murder of deceased boy. Learned counsel submitted that the recovered jacket was sent to FSL for chemical examination, but the FSL report produced on record also does not indicate presence of blood on it. Placing reliance on a judgment of the Gujrat High Court in Jogta Kiela v. State (1), it has submitted that to make a person guilty under Section 201 IPC, it must be proved that the person had caused the evidence of actual commission of the offence to disappear. In the case at hand, it is not established from the evidence collected during investigation that the petitioner had caused the evidence of actual commission of the offence to disappear. Learned counsel has invited my attention to the observations made by the Gujrat High Court in para 4 of its judgment, that the discovery of the scythe and the blood stained clothes of the accused would not amount to an offence under Section 201, and even assuming that the accused had concealed them, he would not be guilty under Section 201 IPC.
7. Per contra, learned Public Prosecutor and the learned counsel for the complainant have argued that the jacket recovered from the possession of accused petitioner belonged to accused Hemant, which, as per the prosecution case, he was wearing at the time of commission of offence. The evidence of recovery of jacket from the petitioner is material and important to pinpoint the identity of accused Hemant involved in the commission of murder of an innocent boy and to connect the petitioner with the offence under Section 201 IPC. In support of the argument, Mr. Amar Singh, learned counsel for the complainant has relied upon V.L. Tresa v. State of Kerala (2), State and etc. v. Siddarth Vashish @ Manu Sharma and Ors. (3), Prakash Dhawal Khairnar v. State of Maharashtra (4), and State of M.P. v. Molai (5).
8. I have given my anxious consideration to the rival submissions and have gone through the case laws cited at the bar.
9. In V.L. Tresa v. State of Kerla (supra), a wife was indicated for murder and also for giving false information regarding the incident of murder of her husband in order to screen the offender from punishment and was held guilty under Section 201 IPC. Having regard to the language used in Section 201 IPC, their lordships of the Supreme Court noted the following ingredients.
(I) Committal of an offence.
(II) Person charged with the offence under Section 201 must have the knowledge land reason to believe that the main offence has been committed;
(III) person charged with the offence under Section 201 IPC should have caused disappearance of evidence or should have given false information regarding the main offence and (IV) the act should have been done with the intention of screening the offender from legal punishment.
10. After noting the ingredients of Section 201 IPC, their Lordships held that both the Sessions Judge and the High Court categorically disbelieved the evidence of the wife and it is in this regard it cannot but be said that the falsity of information given by, the accused cannot but warrant a punishment under Section 201 IPC since information regarding the offence was available only with the accused and there was a deliberate attempt to screen the offender from legal punishment by way of providing false information regarding offence.
11. In State v. Siddarth Vashisth (supra) the Delhi High Court after considering the law laid down by the Apex Court and various High Courts on the point in issue held as under:
"....Therefore, I am of the considered view that there are good and sufficient grounds for framing a charge under Section 201 IPC against A-6. He also ought to have been charged under Section 212 IPC for the reason that the material on record clearly suggests that he had helped A-10 R.K. Sudan to move out of India knowing that he was also likely to be arrested in this case in as much as he had helped A-1 regarding disappearance of weapon of offence which was a material piece of evidence for the prosecution."
12. In Prakas Dhawal Khairnar v. State of Maharashtra (supra), the son of accused father destroyed the evidence relating to multiple murders committed by his father by throwing the articles belonging to his father, from Mhatre bridge on two separate occasions. On a careful reading of the judgment it appears that the appellant No. 2 who was charged with the offence under Section 201 IPC had seen his father committing multiple murders. With a view to destroy the evidence of commission of offence, accused No. 2 threw a plastic bag containing blood stained T-shirt, handkerchief, gloves pair of while sleepers, six empty cartridges from mhatre bride. It has come in the confessional statement that the T-shirt (blood stained), gloves and pair of white chappal lying in the bag, which he threw from Mhatre bride were put on by his father at the time of committing offence. As regards handkerchief, it has come in the confessional statement that his father had wiped the gun with the handkerchief. In these circumstances, the High Court held that it was absolutely clear that he did this with primary object of saving his father and, therefore, he would be liable to be convicted for the offence under Section 201 IPC. On appeal, the Apex Court confirmed the finding of the High Court. Similar is the position in the present case, wherein, a half burnt black/dark blue coloured jacket, which the principal accused had put on at the time of commission of offence was recovered from the possession of the petitioner.
13. In State of M.P. v. Molai (supra), the Division Bench of Madhya Pradesh High Court held as under :
"The evidence on record fully established that these accused concealed and took steps to destroy vital pieces of evidence of rape and murder. They threw body as well as cycle in the septic tank. They removed the blood marks and semen marks in the fodder room and also the knife in the cow dung heep. So they caused the evidence of the commission of offence to disappear with intention to screen themselves from punishment. Thus they have been rightly convicted for the offence punishable under Section 201 IPC. They knew that this offence which they committed was punishable with death. So they could be punished under Section 201, Part II IPC with imprisonment up to 7 years."
14. Thus in view of the law laid down by the Apex Court in V.L. Tresa's case (supra) and Prakash Dhawal Khairnar's case (supra) and in view of the law laid down by Delhi High Court and M.P. High Court, referred above, I am of the considered view that the interpretation of language used in Section 201 IPC and the law laid down by the Gujrat High Court in Jogta Kikla's case (supra) that "when Section 201 uses the expression "whoever causes any evidence of the commission of that offence to disappear," it refers to a person who causes the evidence of actual commission of the offence to disappear and not to person who causes the disappearance of evidence as to by whom the offence was committed and made a distinction between evidence of commission of offence and the evidence as to by whom the offence was committed, does not hold good and is of no help to the accused petitioner. It must be held that a person who attempts to screen the offender from legal punishment and for that, causes to disappear or destroy the evidence of offence is liable to be held guilty for offence under Section 201 IPC. In other words, the expression "whoever causes any evidence of the commission of that offence to disappear", includes the evidence as to by whom the offence was committed.
15. What the trial court is required to do while framing charge, is to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it. It is well settled that the Court framing charge is not supposed to make a roving enquiry into the pros and cons of the matter and weigh the evidence as if the trial judge was conducting trial of a case. The trial court is required to sift and weigh the evidence for the limited purposes of finding out whether or not a prima facie case against the accused has been made out.
16. In Dilawar Balu Kurane v. State of Maharashtra (6), their Lordships while dealing with the same controversy as in the present case, propounded as below :
"....In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
17. In Satish Mehra v. Delhi Administration and Ors. (7), their Lordships of the Supreme Court have propounded the law that what should be considered by the court is to find out whether a prima facie case against an accused is made out or not.
18. Recently, the Apex Court in Smt. Om Wati and another v. State through Delhi Administration and Ors. (8), observed that "it is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is sufficient ground for proceeding." Their Lordships while allowing the Appeal, setting aside the order of the High Court discharging the accused further observed as under:
"We would again remind the high Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigations should be discouraged from protracting the trial and preventing cultimation of criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law."
19. In the case at hand, from a perusal of the order of the trial court it appears that the trial court on the basis of the evidence collected during Investigation and produced before it, arrived at a conclusion that the accused petitioners appear to be connected with the commission of offence. In my considered view there is no ground to interfere with the well reasoned order of the trial court and it is not safe at this stage to deprive the prosecution in proving its case on the basis of the evidence, oral as well as documentary allegedly disclosing commission of offence under Section 201 IPC. Therefore, it must be held that if the trial court was satisfied that a prima facie case was made out for proceeding further then a charge has to be framed. It must also be held that even if two views are equally possible from the evidence and material collected during course of investigation, the view favouring the prosecution must be taken if the evidence so collected gives rise to grave suspicion. I am fortified in my view by the observations of the Apex Court in Dilawar Balu Kurane's Case (supra), which have already been referred to in the earlier part of this order.
20. That apart, the revisional powers under Section 397 Cr.P.C. cannot be exercised in a routine and casual manner. It may be exercised sparingly so as to avoid needless multiplicity of proceedings, unnecessary delay in trial and protraction of proceedings. Such power could be exercised only when it is shown that there is a legal bar against the continuance of criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.
21. It may be noted that the trial of the case is in progress and the statements of 13 witnesses have already been recorded so far. In this fact situation, without expressing any opinion of the merits of the case and considering the material on record as also the legal position stated above, I do not consider it proper to interfere with the impugned order at this stage. However, it is made clear that the petitioner would be at liberty to raise all such factual and legal points before the trial court. Any observation made by this court on legal and factual aspect of the matter would not affect the case of either side.
22. With the above observations, the revision petition stands dismissed. Considering the facts and circumstances of the case, I direct the trial court to expedite trial of the case.