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2011 DIGILAW 1996 (RAJ)

Amar Singh v. State

2011-09-16

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - This revision petition has been filed by the petitioner Amar Singh aggrieved by the order for framing charge under section 302/34, 307/34 IPC and Section 30 of the Arms Act. 2. Shri Anil Upman, learned counsel for the petitioner has argued that all four injured witnesses in their statements have not stated about the presence of the petitioner at the place of occurrence and in fact one of the injured Shiv Singh has stated that he did not see the petitioner in village on that day. The other statements are those of Narendra, Sugar Singh and Ram Dhakeli. 3. Shri Anil Upman, learned counsel for the petitioner has cited the judgement of Supreme Court in Union of India v. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 and argued that if two views are possible on the evidence of the prosecution, then the one which is favourable to the accused should be preferred at the stage of framing charge. It was argued that mere suspicion cannot be a basis for framing of charge. Even if the licenced gun of the accused-petitioner has been used by his son, he cannot thereby be made an accused for offence under section 302 of IPC or 307 with the aid of Section 34. There is no evidence of premeditation and pre-meeting of minds. Consideration for common intention envisaged in Section 34 are materially different from those of Section 149 of IPC where mere presence can be basis for framing of charge. Learned counsel for the petitioner has argued that the only charge that can be framed against petitioner is one for offence under section 30 of the Arms Act for the reason that his licenced gun was alleged to have been used by his son and no other charge can be framed. 4. Shri Paresh Choudhary, learned Public Prosecutor on the other hand submitted that contention that no witness has named petitioner and no witness stated about his presence, is not correct. He referred to the FIR lodged by said Satyabaran and argued that in that FIR, what is alleged is that at 5.00 PM on 5.2.2008 when he was coming towards his house, suddenly Amar Singh (accused petitioner herein), Ramvaran, and Rakesh Singh came there duly armed and started abusing. He referred to the FIR lodged by said Satyabaran and argued that in that FIR, what is alleged is that at 5.00 PM on 5.2.2008 when he was coming towards his house, suddenly Amar Singh (accused petitioner herein), Ramvaran, and Rakesh Singh came there duly armed and started abusing. The informant, his younger brother Ram Sahai, daughter Ram Dhakeli and another brother Ranchod came out of their house and asked them not to do so. At this stage, Rakesh by using the licenced gun of his father Amar Singh opened fire, which hit Ram Sahai on his head, who died on the spot. Thereafter, Ramvaran opened fire which hit Ram Dhakeli, who fell down. In the face of this statement and the fact that Satyabaran in his statement under section 161 Cr.P.C. has again reiterated the same version. It cannot be said that no prima facie case was made out against accused-petitioner to justify even framing of charge against him. It was argued that the order passed by the learned trial court was perfectly just and valid and does not call for interference. 5. On hearing learned counsel for the parties and perusing the impugned order framing charge, I find that the charge has been framed against the petitioner for offence u/s. under section 302/34 and 307/34 of IPC and under Section 30 of the Arms Act. The learned trial court by the impugned order summoned all the 26 witnesses on different dates. This Court, however, while issuing notice of the petition, stayed proceedings of the trial qua the petitioner, however, permitted the trial court to proceed with recording of statement of witnesses. The evidence that has emerged in the case till that stage was that informant named the accused-petitioner along with two other accused and also alleged that he was armed. However, the four witnesses Narendra, Sugar Singh, Shiv Singh and Ram Dhakeli turned hostile, but the informant stood by his first statement and maintained the same story, which he narrated the police under section 161 Cr.P.C. It is in the back drop of these facts that the law for framing of charge has to be considered and the impugned order has to be tested on the touch stone thereof. 6. 6. The Supreme Court in the cited case of Prafulla Kumar Samal, supra while analysing the provisions of Section 227 of Cr.P.C. in a case of discharge held that the words `not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post-office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities, which is really his function after the trial starts. At this stage, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex-facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. The Supreme Court has relied on its earlier judgement in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 wherein it was held that strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a 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 not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence, which the Prosecutor proposes to adduce to 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. On consideration of the law so laid down earlier, their Lordships observed that the Judge while considering the question of framing the charges under section 227 of the Code 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. In making that analysis, since the Supreme Court was considering a case of discharge, it was also observed by their Lordships that if two views are equally possible and the Judge is satisfied that the evidence produced before him while gives rise to some suspicion but is not a grave suspicion against the accused, he will be fully within his right to discharge the accused. 7. In the present case, this Court is concerned not with an order of discharge, but a positive order framing the charge against the petitioner on the basis of material evidence that has been discussed above. The contention, therefore that if two views are possible, then the one which is favourable to the accused should be preferred even at the stage of framing the charge, cannot be accepted and has to be understood in the context in which those observations were made by the Supreme Court i.e. "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 within his right to discharge the accused", which is not the case in the present matter. 8. 8. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394 , it was held by the Supreme Court that 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, it 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. The broad test to be applied is whether the materials on record, if un-rebutted, make a conviction reasonably possible. 9. In a recent judgement in Chitresh Kumar Chopra v. State, AIR 2010 SC 1446 , it was observed by the Supreme Court 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, disclose the existence of all the ingredients, constituting the alleged offence or offences. For this limited purpose, the Court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. For analysing the meaning of word "presume", their Lordships relied on earlier judgement of Supreme Court in Som Nath Thapa & Ors., AIR 1996 SCW 1977 wherein it as observed that "if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into the materials brought on record by the prosecution has to be accepted as true at that stage." 10. In view of above settled proposition of law as discussed above, I do not find any merit in this revision petition, which is accordingly dismissed. However with the observation that nothing stated hereinabove would be construed to reflect on the merits of the case either way and would not prejudice the accused-petitioner. The trial court is however directed to proceed with the trial and conclude the same at the earliest.Revision Dismissed. *******