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2010 DIGILAW 73 (AP)

Mohd. Younus v. State of Andhra Pradesh

2010-02-09

B.CHANDRA KUMAR

body2010
JUDGMENT (1) This revision case has been filed challenging the order, dated 14.7.2009 in Crl. MP No.355 of 2009 in SC No.206 of 2009 on the file of the III Additional Metropolitan Sessions Judge at Hyderabad. (2) The brief facts of the case are as follows: The second respondent herein, who is the de facto complainant, filed a complaint under Section 200 of Cr.P.C. alleging that she was married to Al on 14.4.2006 as per Muslim Law. A2 and A3 are the parents, A4 and A5 are the brothers, A6 and A7 are the sisters and As is the maternal aunt of Al. A9 is the son of A8. The accused, after receiving huge cash, gold ornaments, electronic items and jahez articles towards dowry from the complainant, harassed her to get additional dowry of Rs.1,00,000/-. It is also her case that her brother Minhajuddin paid the said amount of Rs,1,00,000/- to the accused by obtaining loan from the bank. It is also her case that on 10.8.2007, Al to A9 with a common intention attempted to kill her due to which she received bleeding injuries on both the hands and that when her brother, who visited the house of the accused, tried to rescue her, he was also attacked due to which he also received bleeding injuries. The complainant and her brother were treated in Yashoda Hospital, and thereafter, filed a dowry harassment case against the accused. On 29.9.2007, A8 to A10 were arrested in the above dowry harassment case. AT to A7 have forcibly and illegally entered into the house of the de facto complainant situated at Prakash Nagar and started abusing her and her family members and threatened her to withdraw the dowry case and when she refused for the same, Al and A2, at the instigation of A3 to A7, attacked her by giving fist blows and pressed her neck with his waist belt with an intention to kill her and also snatched away her 214 tulas gold chain from her neck. Due to attack by the accused, she fell down and the accused fled away by threatening to spoil her life and to sell away her gold ornaments and jehaz articles. Due to attack by the accused, she fell down and the accused fled away by threatening to spoil her life and to sell away her gold ornaments and jehaz articles. (3) ThereAFTER, she filed a complaint on 13.10.2007 against the accused, which was registered as Crime No.385 of 2007 by Begumpet Police Station, for the offences under Sections 307, 382, 506 read with 34 of IPC. The police, after completing the investigation, laid the charge-sheet. (4) AL to A9 in the FIR are shown as A8, A9, A3, A4, A10, A5, A6, A7 and AL respectively in the charge-sheet. The police, after completing the investigation, laid the charge-sheet holding that AL to A10 committed the offences punishable under Sections 147, 450, 382, 307, 354 and 506 read with 149 and 109 of IPC. The petitioners filed an application in Crl. MP No.355 of 2009 praying to discharge them. The learned Sessions Judge, holding that at the time of framing of charge it is not necessary and proper for the Court to consider the inconsistencies and contradictions in the statements of witnesses and that the Court has to see whether there exists any prima facie or not and if it appears that there exists the prima facie case, charges have to be framed against the accused, dismissed the said application. (5) The learned Counsel for the petitioners submitted that though the alleged incident had occurred on 20.9.2007, the FIR was issued on 13.10.2007 and there is inordinate delay in registering the case. It is further argued that in the FIR, there is no whisper about A2 and the de facto complainant for the first time referred the name of A2 when her statement was recorded under Section 161(3) of Cr.P.C. It is further argued that the allegation against A2 is that he had caught hold of the hands of the de facto complainant when Al, as shown in the charge-sheet, beat her. It is further argued that the in the FIR, it is mentioned that when the complainant became restless and fell down, the accused ran away. Whereas in the charge-sheet it is mentioned that the complainant raised cries and when neighbours came, on seeing them, the accused ran away. It is further argued that the in the FIR, it is mentioned that when the complainant became restless and fell down, the accused ran away. Whereas in the charge-sheet it is mentioned that the complainant raised cries and when neighbours came, on seeing them, the accused ran away. It is further mentioned that the mother of the de facto complainant in her 161(3) Cr.P.C. statement says that she saw the incident her son was locked in a room and that her son in his 161(3) Cr.P.C statement says that both of them were locked in the room. It is also argued that no test identification parade has been conducted though the neighbours are cited as witnesses. It is also argued that the doctor found only abrasions on the neck of the de facto complainant, but he did not explain what kind of abrasions were found on the neck of the de facto complainant. It is also argued that the entire case is made up to take revenge against the Accused and when it is a clear case of false implication, the petitioners are entitled to discharge. (6) The learned Counsel for relied on the judgment of the Supreme Court in Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, AIR 2008 SC 2991 , in support of his contention that where the material relied upon by the prosecution, even if accepted in entirety, only creates suspicion of motive, which is not sufficient to make out a case for conviction of the accused, the accused are entitled for discharge particularly when the other co- accused have been discharged. The points arises for consideration is: 1. Whether the material on record shows that there is any prima facie case against the petitioners-accused to frame charge against them? 2. Whether the petitioners are entitled for discharge? 9. Section 227 of Cr.P.C, reads as follows: "51 227, Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing," (7) The Court has to see whether there is sufficient ground to proceed against the accused. Reasons have to be recorded if the Court conies to a conclusion that the accused have to be discharged. The approach of the Court should be pragmatic. The charge should not be framed in cases where the available material does not disclose the ingredients of the offence. Framing of charge in such cases is an exercise in futility and results in wasting the valuable time of the Court. The Court has to consider the material placed before it and come to the conclusion whether a prima facie case is made out. Though the Court is not required to appreciate the entire evidence, but it has to see whether a prima facie case is made out or not. (8) In Yogesh @ Sachin Jagdish Joshi's case (supra), the Hon'ble Supreme Court, referred to the decision in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 , observed that: "It is true 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 not to see as to whether the trial will end in conviction or not." In the case Union of India v, Prafulla Kumar and Samal and another, AIR 1979 SC 366 , it was held that even a very strong suspicion founded upon materials leading the Magistrate to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charges. 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, any basic infirmities and find out whether a prima facie case against the accused has been made out. The Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as done at the time of final judgment. The standard of test, proof and judgment which is to be finally applied before finding the accused guilty or otherwise is not to be applied at the stage of deciding the matter under Section 227 or 239 Cr.P.C as the case may be. (9) As seen from the contents of the complaint, the alleged incident took place on 29.9.2007 at about 9 p.m. at the parents' house of the de facto complainant. Even according to the complainant, Al, A2, A5 shown in the FIR, who are cited as A8 to A10 respectively in the charge-sheet, were arrested by the police, North zone and therefore, they were admittedly not present on 29.9.2007 at the time of alleged incident. Admittedly, there is no whisper in the complaint as shown in the charge-sheet. The specific allegation made by the de facto complainant in her complaint is that since Al, A2, A5 in the FIR, who are shown as A8 to A10 respectively in the charge-sheet, were arrested, the other accused became angry and they trespassed into their house. According to her, the accused, who trespassed into their house, are Al and A3 to A7 as shown in the charge-sheet and on the instigation of the other accused, Al (A9 in the FIR) gave fist blows to the de facto complainant and pressed her neck with his waist belt on the instigation of the other accused with an intention to kill her and snatched away her 2 1/2 gold chain. It is also her case that when she became restless, the accused ran away. Whether the de facto complainant was referred to the doctor or not and whether there are material contradictions in the statements of the witnesses or not and whether the test identification parade was necessary or not, are the aspects to be considered at the time of trial and judgment. Whether the de facto complainant was referred to the doctor or not and whether there are material contradictions in the statements of the witnesses or not and whether the test identification parade was necessary or not, are the aspects to be considered at the time of trial and judgment. The complaint allegations made by the de facto complainant prima facie go to show that Al and A3 to A7 shown in the charge-sheet went to the house of the de facto complainant and Al is alleged to have gave fist blows and pressed her neck with waist belt at the instigation of the other accused. Therefore, it appears that a prima facie case has been made out against Al and A3 to A7 as shown in the charge-sheet, who are shown as A9, A3, A4 and A6 to A8 respectively in the FIR. (10) As far as A8 to A10 shown in the charge-sheet are concerned, admittedly they were arrested on the date of accident and were not present at the time of incident. Similarly, the name of A2 is also not referred by the complainant in her complaint filed under Section 200 of Cr.P.C, It has to be seen that the alleged incident took place on 29.9.2007 and the complaint is filed on 1.10.2007. Thus even after two days of the incident, the de facto complainant did not make any allegations against A2 or even did not say that A2 shown in the charge- sheet was present at the time of alleged incident. It is not her case that she had no contact with the other witnesses before lodging the complaint. It is not her case that, the other witnesses had subsequently informed her about the role played by A2. In fact the allegation against A2 is that he had caught hold the hands of the de facto complainant. In the above circumstances, it is against normal human conduct and most improbable on the part of the de facto complainant not to mention the name of A2 in her complaint. Thus it appears that A2 shown in the charge-sheet has been falsely implicated in this case. In the above circumstances, it is against normal human conduct and most improbable on the part of the de facto complainant not to mention the name of A2 in her complaint. Thus it appears that A2 shown in the charge-sheet has been falsely implicated in this case. Merely because the statements of the other witnesses recorded under Section 161(3) Cr.P.C. referred the name of A2 (as shown in the charge-sheet), the Court is not bound to blindly accept the same and proceed against him when it appears that he has been falsely implicated in this case. In view of the above discussion, I am of the view that no prima facie case has been made out against A2 and A8 to A10 shown in the charge-sheet, who are Al, A2 and A5 in the FIR. Therefore, A2 and A8 to A10 shown in the charge-sheet are entitled for discharge. (11) Accordingly, the criminal revision case is allowed and the order of the lower Court is set aside in respect of A2 and A8 to A10 shown in the charge-sheet and they are discharged for the offences with which they were charged. Consequently, the criminal revision case stands dismissed in respect of the other accused as shown in the charge-sheet. (12) The criminal revision case is allowed in part and dismissed in part as indicated above.