Delhi District Court
State vs . Vikas @ Tittu Etc. on 16 March, 2012
State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
State Vs. Vikas @ Tittu
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
ORDER ON THE POINT OF CHARGE
1.Arguments on the point of charge have already been advanced by Ld. Defence Counsels as well as Ld. Addl. Public Prosecutor. I have perused the entire records and carefully considered the matter.
2. Brief facts as per chargesheet are that on 20.12.2010 a PCR call was received at 9:40 pm in PS Chhawla vide DD No.57B wherein it was disclosed that "Najafgarh Paprawat Road, Rao Maan Singh School ke aage gaadi DL 8CK 1307 Wagon R mein ek aadmi ko kisi ne goli maar di hai". The said DD was entrusted to SI Naresh Kumar who reached at the spot alongwith HC Yogesh, but no eye witness was found at the spot and it was learnt that injured persons had been shifted to hospital. In the meantime, SI Naresh Kumar received information vide DD No.32 A through constable Ajay Kumar
-:1:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) that injured Satender @ Lilu and Suresh were admitted in Mata chanan Devi Hospital. Therefore SI Naresh Kumar left Constable Ajay Kumar at the spot and he left for the hospital where it was learnt that injured person were brought dead. The brother of the deceased Ajit Singh met SI Naresh Kumar and produced the said Wagon R. The detailed statement of Varun was recorded by SI Naresh Kumat at the spot. The detailed statement of Varun was recorded wherein it is stated that he alongwith the Suresh and Satender was coming from Mayapuri to their village. At about 9:30 pm, when Varun alongwith Suresh and Satender (since deceased), reached ahead of Rao Man Singh School on Paprawat Road, then suddenly one motorcycle came from behind and overtook the car from right side and stopped in front of the car. Three boys were riding on the motorcycle and the last pillion rider signaled to stop the car by waving his hand and Suresh Kumar stopped the car. After that last pillion rider alighted from the motorcycle and came towards Suresh and cocked the pistol already held in his hand and pointed the same at Suresh Kumar and fired in the back side of his neck. In the mean time, second pillion rider came towards Satender and broke the window glass of the car and fired 23 times at Satender and thereafter all the boys fled away from the scene of occurrence.
3. During investigation IO Inspector Sandeep Gupta prepared the unscaled site plan of the place of occurrence at the instance of the complainant Varun and recorded the statement of
-:2:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) PWs ASI Attar Singh, Cosnt. Arun Kumar (photographer), Ajit Kumar and Naresh Kumar (both brothers of deceased persons). The said car was got inspected from the Ballistic as well as Biology experts at FSL, Rohini, Delhi through SI Naresh Kumar.
4. On 25.12.2010, eye witness Varun handed over one used/fired cartridge to IO inspector Sandeep Gupta and on the same day statement of one Sanjay Yadav, S/o Sh. Daya Chand Yadav got recorded who revealed that Naveen @ Pahalwan, Vikas @ Medium, Vijay @ Bhattu, Vikas @ Titu, Naresh @ Neshi, Arvind @ Bindu, Naresh @ Titte, Sandeep @ Dhaidu and one Polu were involved in the crime of present case. Sanjay Yadav further revealed that Naveen @ Pahalan, R/o VPO Mitraon had hatched the conspiracy to kill both the brothers who were residents of VPO Paprawat, Delhi and his scooter Eterno No. DL 9SS 0592 was also used by them to chase the victims from their shops. His statement was recorded under section 161 Cr.PC and his scooter and mobile phone with two SIM cards having mobile numbers 9716989909 and 8802778678 were seized through seizure memos. Therefore the investigation of the case was transferred from PS Chhawla to Crime Branch and subsequently to Anti extortion Cell of Crime Branch. Statement of one witness namely Azad recorded in which he had disclosed that his friend Sandeep @ Dhaidu took him to Gurgaon as Naveen @ Pahalwan and Vikas @ Medium had called him to Gurgaon. He revealed the sequence of the incident and roles of the accused persons in
-:3:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) commission of the crime of the present case. He also corroborated the statement of other PW Sanjay Yadav. During the investigation, all the accused persons were arrested. The accused made disclosure statement and transpired that the accused Naresh @ Titte and Vikas @ Titu did recci of the deceased persons when they left their shop from Mayapuri to their residence in village Paprawat. Accused Sandeep @ Dhaidu disclosed that how he had brought Maruti car of PW Azad to Gurgaon on the direction of Naveen @ Pahalwan and Vikas @ Medium and disclosed the sequence of the events of the crime. Accused Naresh @ Titte disclosed that on the direction of Naveen @ Pahalwan he went to Maya Puri on the Eterno Sckooter and passed the information of departure of deceased to Naveen @ Pahalwan and Vikas @ Medium
5. On 07.01.2011, statement of Sanjay Yadav and Azad were recorded under section 164 Cr.PC by the Ld. Trial Court in which they corroborated their statements under section 161 Cr.PC. During investigation, it further transpired that accused Naveen @ Pahalwan and Arvind @ Bindu are facing trial in another FIR No.875/05 dated 24.12.2005 under section 302/120B/34 IPC and 25/27 Arms Act PS Najafgarh, Delhi in which they killed one Virender Kumar Yadav at the instance of Veermati who is the sisterinlaw of deceased Satender and in the year 2006, accused Naveen @ Pahalwan got bail on the ground of ailment of his father and he borrowed an amount of Rs. 1.75 lakhs from the deceased Suresh Kumar and accused Naveen
-:4:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) @ Pahalwan handed over a post dated cheque of the said amount of his uncle Om Prakash as security of the loan amount but the accused could not pay the said amount as he had again went to jail. Thereafter, deceased Suresh Kumar filed complaint under section 138 NI Act and when accused Naveen @ Pahalwan came to know about the proceedings under section 138 NI Act, he got annoyed and wrote a threatening letter to deceased Suresh Kumar. In the year 2010, accused Naveen @ Pahalwan got bail in the said case and on the night of 12.09.2010, he killed another person Pradeep Kumar and fled away. When the accused Naveen @ Pahalwan was on his run, he decided to settle score with deceased Suresh Kumar as he dared to pursue the proceedings under section 138 NI Act against the uncle of the accused Naveen @ Pahalwan. As per planning, accused got a rented room through Vikas @ Titu in Gurgaon and on 19.12.2010, he hatched a conspiracy with his associates namely Vikas @ Medium, Arvind @ Bindu, Naresh @ Neshi, Vijay @ Bhattu, Vikas @ Titu, Naresh @ Titte, Sandeep @ Dhaidu and Kanish Sharma @ Polu to kill both real brothers Suresh & Satender.
6. As per planning, on 20.12.2010 initially accused Vikas @ Tittu took PW Sanjay Yadav with him on his Honda Eterno Scooter No.DL 9SS 0592 to Maya Puri to receive the deceased persons on the ptetext of meeting his known person who was owing money to him. He had promised to PW Sanjay Yadav that he will lend him a sum of Rs.5,000/out of the money, he will receive as repayment of the debt.
-:5:- 16.03.2012
State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
Accused Vikas @ Titu could not trace the shop of deceased persons as he had never gone there. Accused Vikas @ Titu conveyed this to Naveen @ Pahalwan on mobile No. 9211738467 from his mobile No. 9268290257. Naveen called them back to Gurgaon and sent accused Vikas @ Medium on Polu's motorcycle to take accused Naresh @ Tite (BC of PS Chhawla) who also had seen the shop of deceased persons, after having telephonic conversation in this regard with him on mobile No.8750564842 from mobile No.9268290257. Accused Vikas @ Titu dropped PW Sanjay Yadav at his rented room in Gurgaon and took Naresh @ Tite to Maya Puri on Sanjay Yadav's Honda Eterno Scooter No. DL 9SS 0592. From Mayapuri, they confirmed to Naveen @ Pahalwan on mobile No.9873060241 from mobile No.9268290257 regarding the presence of both deceased persons at their shop. After that Naveen asked them to further contact him on mobile No. 9211738467 and asked not to call on mobile No.9873060241. Accused Kanish Sharma @ Polu had alrady handed over two loaded pistols of 9mm and 7.65 mm and one loaded Desi Katta and his friend Lakshay's black Pulsar motorcycle No. HR 26AZ 3094 to accused Naveen @ Pahalwan and Vikas @ Medium on same day.
7. Accused Naveen and Vikas @ Medium called Sandeep @ Dhaidu on his mobile phone No.9210036401 and asked him to come with his car in Gurgaon as they were in need of a car. At that time Sandeep @ Dhaidu was with witness Azad in his Maruti Van No. DL 9SC 7106. He revealed this fact to Naveen @ Pahalwan and Vikas @
-:6:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) Medium that he was not having his car at that point of time. They asked him to bring Maruti Van of Azad. Azad intially denied to go to Gurgaon as he had to go for his night duty but Sandeep @ Dhaidu convinced him and took him alongwith his Maruti Van to Gurgaon at the rented room of Vikas @ Titu. On reaching there, accused Sandeep @ Dhaidu joined Naveen @ Pahalwan, Vikas @ Medium, Arvind @ Bindu, Naresh @ Neshi and Vijay @ Bhattu at the room and Azad parked his Maruti Van on main road near petrol pump. At about 8:15 pm, accused Naveen called Vikas @ Titu on mobile No.9268290257 from 9211738467 and asked him to pass the information as the target (deceased persons) departs from Mayapuri in their car and they all departed for Najafgarh. Naveen @ Pahalwan, alongwith Naresh @ Neshi, Sandeep @ Dhaidu boarded in Maruti Van of PW Azad and accused Vikas @ Medium and Vijay @ Bhattu rode as pillion riders on Black Bajaj Pulsar motorcycle No.HE 26AZ 3094 and accused Arvind @ Bindu drove the motorcycle.
8. Accused Naveen was having loaded desi Katta, Vikas @ Medium was having loaded 7.65 mm pistol and accused Vijay @ Bhattu was having loaded 9 mm pistol in his possession at that time. At about 8:30 pm, accused Vikas @ Titu informed accused Vikas @ Medium on mobile No.9211738467 (at that time mobile phone was with him) from mobile No.9268290257 regarding departure of deceased Suresh and his brother Satender from Mayapuri in their Maruti Wagon R car, accused Vikas @ Medium immediately passed
-:7:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) this information to Naveen @ Pahalwan on mobile phone no. 9210036401 of Sandeep @ Dhaidu as Naveen was with him in the Maruti Van of PW Azad. After that they all rached at Kharkhari More at NajafgarhKhaira road as directed by accused Naveen @ Pahalwan. Naveen asked Sandeep @ Dhaidu to wait with Naresh @ Neshi and Arvind @ Bindu in Azad's Maruti Van for them there only and also asked accused Vikas @ Titu telephonically to reach there with Naresh @ Tite on Honda Eterno Scooter. He also directed accused Sandeep @ Dhaidu and other not to allow Azad to go with his Maruti Van till they came back after finishing their job of killing Suresh and Satender. After that Naveen started driving the bike and accused Vijay @ Bhattu and accused Vikas @ Medium rode the bike as pillion riders and they left for Paprawat Road.
9. At about 9:30 pm, accused Naveen @ Pahalwan forced to stop the Maruti WagonR car No. DL 8CK 1307 of deceased persons as it reached slightly ahead of Rao Man Singh School on Paprawat Road by stopping their motorcycle in front of the car. Accused Vikas @ Medium signaled to stop the car by waving his hand and deceased Suresh Kumar stopped the car. After that Vikas @ Mediuma nd Vijay @ Bhattu alighted from the motorcycle and Vikas @ Medium came towards Suresh and fired at him and accused Vijay @ Bhattu came towards Satender and broke the window glass of the car by hitting the pistol and also smashed his pistol on the forehead and chest of Satender. After that, he fired 2/3 times at Satender. Accused Naveen
-:8:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) @ Pahalwan continuously directed accused Vikas @ Medium and Vijay @ Bhattu to eliminate both the deceased persons and kept the motorcycle in start position. After that all the three fled away on the same motorcycle.
10. In the mean time, accused Vikas @ Titu alongwith Naresh @ Tite reached at Kharkhari More at Najafgarh Khaira road and they alongwith other accused persons namely Sandeep @ Dhaidu, Naresh @ Neshi and Arvind @ Bindu threatened PW Azad to keep quite and abide their directions otherwise he would have also been eliminated. PW Azad obeyed their direction for the sake of his life. After that accused Naveen @ Pahalwan, Vijay @ Bhattu and Vikas @ Medium came to them on motorcycle and all three revealed them that they have killed Suresh and Satender R/o Paprawat Village. Then accused Vijay @ Bhattu with all three weapons boarded in the Maruti Van with Sandeep @ Dhaidu, Naresh @ Neshi and Naresh @ Tite and they forced PW Azad to drive his Maruti Van and drop them at Gurgaon. Naveen @ Pahalwan and Vikas @ Medium fled away on motorcycle and Vikas @ Titu with Arvind @ Bindu fled away on the Eterno Scooter and they all reached Gurgaon at the rented room of Vikas @ Titu. Sandeep @ Dhaidu alongwith PW Azad went back to their village after dropping other accused persons at Gurgaon. Accused Kanish Sharma @ Polu collected back all the three weapons and black colour Bajaj Pulsar motorcycle No. HR 26AZ 3094.
-:9:- 16.03.2012
State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
11. All the Ld. Counsels for accused persons except accused persons Sandeep @ Dhaidu and Kanish Sharma @ Polu have conceded that the charge may be framed against the accused person as per law. Whereas, Ld. Counsel for the accused Sandeep @ Dhaidu has contended that no offence is made out against the accused Sandeep @ Dhaidu as he had never been a part of the conspiracy alleged to have been hatched by the other conspirators as there was no prior meetings of mind of the accused Sandeep @ Dhaidu with other conspirators/coaccused to eliminate the deceased Satinder and Satish.
12. It has been further contended that not even a single piece of evidence is there on record to connect accused Sandeep @ Dhaidu with the alleged offence and it is further submitted that the offence of conspiracy has been defined in Halsbury's Law of England as under: "Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied and the offence continues to be committed so long as the combination persists, that is until the
-:10:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) conspiratorial agreement is terminated by completion of its performance of by abandonment or frustration or however it may be".
It is further stated that the definition of conspiracy in "American Jurisprudence, 2nd Edn., vol.16, Page 129 is given as: "A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy."
13. It has been further submitted by the Ld. Counsel for the accused Sandeep @ Dhaidu that in case "Kehar Singh & Ors. Vs. State (Delhi Administration) [1988 (3) SCC 609] while defining conspiracy it was observed by Jagannatha Shetthy. J.:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is
-:11:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) essential. Mere knowledge, or even discussion, of the plan is not, per se enough" (emphasis ours). It has also been observed in the celebrated judgment of State Vs. Nalini & Ors. [1999 (5) SCC 253] that "When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime."
In order to contend that no conspiracy had been hatched between accused Sandeep @ Dhaidu and other coaccused as no agreement between them was there to do an illegal act, the Ld. Counsel for the accused Sandeep @ Dhaidu has further relied upon Yashpal Mittal VS. State of Punjab [1977(4) SCC 540] State of Himachal Pradesh Vs. Krishan Lal Pradhan & Ors. [1987 (2) SCC 17]. Mohd. Khalid Vs. State of West Bengal [2002 (7) SCC 334], Mohammad Usman Mohd. Hussain Maniyar Vs. State of Maharashtra [1981 (2) SCC 443], State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru [2005(11) SCC 600], V.C. Shukla Vs. State [1980 (2) SCC 665].
14. It has been further contended that in the offence of criminal conspiracy, there must be evidence, direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It has further been submitted that there must be meeting of minds resulting in ultimate decision taken by the conspirator regarding the commission of offence and where the
-:12:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) factum of conspiracy is sought to be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Conspiracy is stated to be constituting of three elements : (1) agreement; (2) the said agreement between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is further stated that the law with regard to the conspiracy is well settled that in order to held that all the conspirators need not to take active part in the commission of each and every conspiratorial act but mere knowledge even discussion of the plan would not constitute conspiracy. In this regard, he has relied upon " K.R. Purushothaman Vs State of Kerala [2005 (2) SCC 631] and Navjot Sandhu's cases.
15. It has been further contended by the Ld. Counsel for accused Sandeep @ Dhaidu that the accused Sandeep @ Dhaidu had never shared the common intention alongwith other coaccused persons at any point of time in committing the murder of the deceased as neither any statement of witnesses namely Azad Singh and Sanjay Yadav nor disclosure statements of any of the coaccused persons which have been recorded assigned any role of the accused Sandeep @ Dhaidu. It has come on record that there is no prior meetings of mind between Sandeep @ Dhaidu and other coaccused
-:13:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) in this regard. It is further submitted that in the absence of any common intention being shared by the accused Sandeep @ Dhaidhu with other coaccuse persons, no offence under Section 34 IPC is made out. In this regard, he has relied upon "Noorul Huda Maqbook Ahmed Vs. Ram Deo Tyagi & Ors. 2011 (3) Crimes 69". It is further submitted that at the stage of framing of charge, the Court is not supposed to give any probative value to the material on record and Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. In this regard, Ld. Counsel has relied upon "Onkar Nath Mishra Vs. State (NCT of Delhi)2008 (2) SCC 561" ; "Dilawar Balu Kurane Vs. State of Maharashtra2002 SCC (Crl.) 310" ; "Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitender Bhimraj Bijja & Ors.MANU/SC/0337/ 1990" ; "State of Karnataka Vs. L. Muniswamy & Ors. AIR1977 SC 1489" ; "Sarbans Singh & Ors. Vs. State of NCT of Delhi2005(1) JCC 255" ; "Rakesh Kumar Gupta Vs. State (Govt. of NCT of Delhi)2010(1) JCC 433 DHC".
16. It has been further contended by the Ld. Counsel for the accused Sandeep @ Dhaidu that for making an offence criminal conspiracy, the existence of conspiracy and its objective can be inferred from surrounding circumstances and conduct of the accused to incriminative circumstances must be forming a charge of events from which conclusion about guilty of the accused can be drawn. But in the present case no such inference can be drawn from
-:14:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) the surrounding circumstances and the conduct of the accused, as per prosecution story, accused Sandeep @ Dhaidu has not come into picture upto 3.00 p.m. on 20.12.2010 when he was called by co accused persons to bring his car at Gurgaon. In this regard, he has relied upon "Yogesh @ Sachi Jagdish Joshi Vs. State of Maharashtra
- MANU/SC/7528/2008".
17. It has been further contended that mere threat is no offence, as such, no offence under Section 506 IPC is made out against the accused Sandeep @ Dhaidu. In this regard, he has relied upon "Kanshi Ram Vs. State2001 (1) JCC (Delhi) 320" and "Amitabh Adhar & Anr. Vs. NCT of Delhi & Anr.2000(2) AD(Crl.) DHC 676".
18. Ld. Counsel for the accused Kanish Sharma @ Polu has contended that admittedly the accused Kanish @ Polu was not at the spot, when the alleged double murder was committed. But as per the prosecution story, accused Kanish Sharma @ Polu has supplied weapons and motorcycle for using them in committing the offence and only on the basis of his disclosure statement, no charge can be framed as the confession in the disclosure statement are inadmissible per se. It is further submitted that the offence of conspiracy there should be agreement between two or more persons but in the present case there is no offence for connecting the accused with the alleged weapon of offence and motorcycle allegedly used by the other coaccused and there is no evidence on record to show
-:15:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) that the accused Polu was a member of any conspiracy or conspiracy was hatched in his presence and even the identify of motorcycle has not been disclosed by the Ct.Varun who was the alleged eyewitness when the double murder was committed in his presence and the said motorcycle belongs to the mother of one person namely Lokesh who is the registered owner of the said motorcycle. But neither the mother or the Lokesh have joined the investigation nor there is any statement of Lokesh in order to connect the accused with the motorcycle. As the same is stated to be taken away by the accused Polu from Lokesh. It is further admitted that as per the statement of Sanjay Yadav, the alleged eyewitness, there is no allegation or evidence that the conspiracy was hatched in the presence of accused Kanish Sharma @ Polu.
19. It has further been submitted that alleged weapon of offence are shown to have been recovered from coaccused and no recovery has been effected from the accused Polu. It is further submitted that there is no evidence on record to show that accused Polu is also known as Kanish Sharma and that Polu and Kanish Sharma are one and the same person. It is further submitted that in the statement of Sanjay Yadav, recorded under Section 161 Cr.P.C. on 07.01.2011, parentage and address of other coaccused persons have been mentioned but there is no mention in the said statement about the parentage of accused Polu or that accused Polu is also known as Kanish. And in that statement of Sanjay, address of Polu is disclosed
-:16:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) as village Sukhrali but, however, no TIP has been conducted to establish the identity of Polu.
20. Strongly rebutting the arguments, Ld. Addl. Public Prosecutor has contended that the accused has taken the vehicle/Maruti Van of the eyewitness namely Azad Singh and approached the other accused at a room of one of the coaccused at Gurgaon and from Gurgaon he brought some of the accused at Khatkari More and kept waiting for their return and when they returned he brought three coaccused back to the room of one of the coaccused at Gurgaon so he was part and parcel of the said conspiracy and he has to be charged under the relevant Sections.
21. Chapter XVIII of the Code lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
-:17:- 16.03.2012
State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
22. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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, a prima facie case, depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is no to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted make a conviction reasonably possible.
23. Similarly, in respect of warrant cases triable by Magistrate, instituted on a police report, Section 239 and 240 of the Code are the relevant statutory provisions. Section 239 require the Magistrate to consider "the police report and the documents sent with it under Section 173" and, if necessary, examine the accused and after giving the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be
-:18:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) groundless, the accused is liable to be discharged by recording reasons thereof.
24. What is the meaning of the expression "the record of the case" as used in Section 227 of the Code. Though the word "case" is not defined in the Code but Section 209 thrown light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable shall commit "the case" to the Court of Session and send to that court "the record of the case"
and the documents and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the cse and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
25. Further, the scheme of the Code when examined in the light of the provisions of the old Code of 1898, make the position more clear. In the old Code, there was no provision similar to Section
227. Section 227 was incorporated in the Code with a view to save
-:19:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential material gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Section 207 and 207A was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207A. Under Section 207A in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under subsection (1), to take evidence as provided in subsection (4), the accused could crossexamine and the prosecution could reexamine the witnesses as provided in subsection (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in subsection (6) and to commit the accused for trial after framing of charge as provided in subsection (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in sub section (11) and sent the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in subsection (14). The aforesaid Sections 207 and 207A have been omitted from the Code and a new Section 209
-:20:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) enacted on the recommendation of the Law Commission contained in its 41st Report. It was realized that the commitment inquiry under the Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of the committal Magistrate framing the charge, it is now to be framed by the Court of Session under Section 228, in case, the accused is not discharged under Section 227. This change brought out in the Code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge.
26. The law regarding framing of charge is well settled and what needs to be considered at this stage is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, the court is no expected to go deep into the probative value of the material on record. The court is not required to appreciate evidence to conclude whether the material produced are sufficient or not for convicting the accused. The materials brought on record by the prosecution has to be accepted as true at that stage. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that
-:21:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) offence.
27. In exercising powers under Section 227 Cr.P.C., 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 proceedings with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him gave 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 Cr.P.C., 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.
28. From the above discussion it seems wellsettled that at the Sections 227228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the
-:22:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) 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 that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sence or the broad probabilities of the case.
29. Now, let use examine decision which have a bearing on the point in issue.
30. In State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39 1977 SCC (Cri) 533 considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the judge 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. 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, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
31. In Supdt. And Remembrancer of Legal Affairs, W.B. Vs. Anil Kumar Bhunja (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : (1980) 1 SCR 323 a three Judge Bench held that the Magistrate at the stage of
-:23:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) framing charges had to see whether the facts alleged and sought to be proved by the prosecution prime facie disclose the commission of offence on general consideration of the material placed before him by the investigating police officer, (emphasis supplied). Though in this case the specific question whether an accused at the stage of framing of charge has a right to produce any material was not considered as such, but that seems implicit when it was held that the Magistrate had to consider material placed before it by the investigating police officer.
32. In State of Delhi Vs. Gyan Devi (2000) 8 SCC 239 : 2000 SCC (Cri) 1486 this Court reiterated that at the stage of framing of charge the trial court is not to examine and assess indetail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the material to establish the offence alleged against the accused persons.
33. In State of M.P. Vs. S.B. Johari (2000) 2 SCC 57 : 2000 SC (Cri) 311 it was held that 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, cannot show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.
34. In State of Maharashtra Vs. Priya Sharan Maharaj
-:24:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) (1977) 4 SCC 393 : 1997 SCC (Cri) 584 it was held that at Section 227 and 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 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.
35. In Sajjan Kumar Vs. CBI VI (2010) SLT 753, following principles have been reiterated with regard to framing of charge.
(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
-:25:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) 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.
(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 probaative 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 at the commission of offence by the accused was possible.
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State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
(vi) At the stage of sections 227 and 228, the Court is required
to evaluate the material 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 constitutiong the alleged offence. For this limited purpose, 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 dischage the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
36. It is settled law that at the stage of framing of charge, the court has only to take a prima facie view and not to minutely examine the material. In Onkar Nath Mishra & Ors. Vs. State ( NCT of Delhi) & Anr. 2008(1)JCC 65 the Hon'ble Supreme Court observed :
"It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record.
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State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
In another case reported as Palwinder Singh Vs. Balwinder Singh , Cr. Appeal, No. 1681/2008, the Supreme Court ruled that 'the jurisdiction of the learned Sessions Judge while exercising power under section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time.'
37. All the decisions when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decision proceed on the basis of settled legal position that the material as produced by
-:28:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused through has not been specifically stated, yet it is implicit in the decision . It seems to have not been specifically so stated as it was taken to be a well settled proposition. This aspect, however, has been adverted to in State AntiCorruption Bureau Vs. P. Suryaprakasam 1999 SCC (Cri) 373 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at the stage is of being heard and nothing beyond that."
38. Thus at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not prima facie case is made out against the accused. However, the court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term "prima facie" nor can the term "strong suspicion" have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the
-:29:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) Court shall have to decide each case on the basis of its own independent facts and circumstances.
39. It is manifest from above that the charges can be framed against an accused person only in those discerning few cases where the Court comes to the conclusion that the prosecution has shown, a prima facie case, against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charges. The matter with regard to the framing of the charges came up for consideration in a catena of authorities wherein time and again it was observed that that prosecution must show a prima facie case against the accused in order to enable the Court to frame a charge against him. If the evidence before the Court is of such type which if unrebutted and unchallenged by way of cross examination would not be sufficient enough to convict the accused ultimately then the court woul not be justified in framing the charge against the accused. The Court at that stage is under no obligation to make an elaborate enquiry by sifting and weighing the material to find out a case against the accused beyond a reasonable which it is required to do at the time of the final hearing. The Judge at that preliminary stage is simply required to find out that there was material which may lead to the inference that the accuse has committed an offence. Thus the charge can be framed by the Ld.Court against an accused if the material placed before it raised a strong suspicion that the
-:30:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) accused has committed an offence. In other words, the court would be justified in framing the charges against the accused, if the prosecution has shown the seed in the form of the incriminating material which has got the potential to develop itself into a full fledged tree of conviction later on.
40. Now applying the abovesaid proposition of law to the fact of the present case, in the prosecution story only two witnesses namely Azad Singh and Sanjeev Yadav are stated to have assigned the role to the accused Sandeep @ Daidu. In the statement of these two witnesses, not even a single word is uttered against the accused Sandeep @ Dhaidu that he had at any time conspired or had meeting prior in time with other coaccused in connection with any plan for committing the murder of the deceased. These two witnesses had stated that accused Sandeep @ Dhaidu was called by accused Naveen at the room of Vikas @ Tittu at Gurgaon. When witness Azad alongwith Sandeep @ Dhaidu reached at the room of Vikas @ Tittu at Gurgaon. Both Sandeep @ Dhaidhu and witness Azad were asked to wait in the Maruti van in the lane. Thereafter, the accused Sandeep @ Dhaidu alongwith witness Azad and coaccused Naveen @ Pahalwan, Naresh @ Titte had come at the Kheda More and after crime having been committed by Naveen @ Pahalwan, Vikas @ Medium, Vijay @ Bhattu, the accused Sandeep @ Dhaidu alongwith witness Azad brought the three coaccused at the room of Vikas @ Tittu at Gurgaon. Prior to that no role has been assigned by any of
-:31:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) the coaccused in their disclosure statement including witnesses Azad Singh and Sanjay Yadav that accused Sandeep at any point of time worked as an agent of other coaccused. Even Azad had not disclosed as to what purpose accused Sandeep was called by accused Naveen @ Pahalwan at Gurgaon. Witness Azad came to know about the murder after three coaccused Naveen @ Pahalwan, Arvind @ Bindu and Vikas @ Medium came on the motorcycle at Paprawat Village and disclosed that these three coaccused have committed the crime, where this witness had parked his Maruti Van at Khadkari More. So prior to this event, it was neither in the knowledge of witness Azad that accused had hatched a conspiracy to commit the murder of the deceased. Neither the coaccused had implicated Sandeep @ Dhaidhu that he was a part and parcel of the alleged conspiracy at any point of time. Therefore, from the statement of two witnesses namely Azad Singh and Sanjay Yadav and the disclosure statements of coaccused, prima facie, it appears no role has been assigned by any of these persons to coaccused Sandeep @ Dhaidu either in the conspiracy hatched by the other co accused or sharing of any common intention by accused Sandeep @ Dhaidu with other coaccused or he did any act in furtherance of common intention of other accused in committing the murder of Suresh and Satinder. Mere extending threat also does not tantamount to an offence within the meaning of Section 506 IPC as per the ratio laid down in Kanshi Ram (Supra).
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State Vs. Vikas @ Tittu Etc.
SC No. 53/11
FIR No. 207/10
PS : Chhawla (C.B.)
So from the above discussion, I am of the opinion that no offence is made out against Sandeep @ Dhaidu under section 302/120B/34 IPC so the accused is hereby discharged of these offence but as he had harboured the other accused persons so he is being only charged under section 212 IPC.
41. Now come to the role of accused Kanish Sharma @ Polu. As per the statement of coaccused, he had supplied the arms to the accused before committing the murder of the deceased and even the witness Sanjay Yadav had stated in his statement that accused Polu had come in the evening of 19.12.2011 and consumed liquor in the presence of coaccused. Coaccused particularly Naveen @ Pahalwan had also stated that accused Polu had supplied the weapons and motorcycle and after committing the murder of the deceased, Polu had collected the weapons of offence from the co accused so, prima facie, it appears that accused Polu was a part and parcel of the conspiracy hatched by the coaccused to commit the murder of the deceased. So the contention of the counsel for the accused Kanish Sharma @ Polu that accused Polu is not a part and parcel of the criminal conspiracy and he cannot be chargesheeted under section 302/120B/506/34 IPC is hereby rejected and thus accused Kanish Sharma @ Polu is also being chargesheeted under section 302/120B/506/34 IPC.
42. For all these reasons, I am satisfied that prima facie
-:33:- 16.03.2012 State Vs. Vikas @ Tittu Etc. SC No. 53/11 FIR No. 207/10 PS : Chhawla (C.B.) charge under section 302/120B/506/34 IPC against the accused persons Vikas @ Titu, Naresh @ Titte, Naveen @ Pahalwan, Vikas @ Medium, Naresh @ Neshi, Arvind @ Bindu, Vijay @ Bhattu and Kanish Sharma @ Polu, section 212 IPC against the accused Sandeep @ Dhaidu, section 25 Arms Act 1959 against accused Arvind @ Bindu, Naveen @ Pahalwan and Vikas @ Medium are attracted. Charge framed accordingly to which accused persons pleaded not guilty and claimed trial. Put up on 23/24.04.2012 for PE.
Announced in the open court (Vijay Kumar Dahiya)
on the 16th Day March of 2012 ASJ/ Dwarka Courts
New Delhi/16.03.2012
-:34:- 16.03.2012