1. Petitioner-Prabhu Singh seeks quashment of the charge framed against him for the offences punishable under Section 302, 307,109 RFC vide impugned order dated 4-2-2012 of 1st Additional Sessions Judge, Jammu in case FIR No. 86/2010. Along with him, six other co-accused are also facing the trial including his son (Sunny). 2. Pursuant to notice, Mr. Basotra, learned AAG has put in appearance on behalf of the respondent-State. 3. The allegations as culled out from the challan are: On 10-7-2010 at about 22.05 hours, an information was received in Police Station Bishnah to the effect that Anshu Sharma (deceased) and Akhil Sharma, both sons of Janak Raj, have been admitted in the hospital in an injured condition. SHO Police Station, Bishnah along with other police officials went to the hospital to record the statement of the injured. They were not found fit to make statement and were referred to CMC, Jammu for specialized treatment having in critical condition. Subsequently, state ment of Akhil Sharma was recorded by the police in which he stated that Sunny Singh, son of the present petitioner, Vishwa Pratab Singh alias Kaka S/o Parveen Singh, Billa S/o karan Singh were inimical towards his brother Anshu Sharma and were harbouring ill will. They had also been extending threats to him. It is then alleged that on 10-07-2010 at about 9.45 pm when he was crossing a culvert situated at Deoli on a motorcycle where he found a white coloured vehicle parked on one side of the road. In the meantime, Anshu Sharma along with Sahil Sharma alias Deepu (their first cousin) were also seen coming on a motorcycle and crossing from that place. At that time, Sunny Singh, Vishwa Pratab Singh, Billa and two/three other unknown persons armed with 'toka' came out from the said vehicle and intercepted Anshu Sharma. They started assaulting him with 'tokas', as a result thereof he (Anshu Sharma) received serious injuries. Sahil Sharma, who was also on the motorcycle with the deceased, fell on one side. Akhil Sharma pounced upon the deceased and he too was injured. Certain persons present nearby reached the spot and thereafter, all the accused fled away from the scene of occurrence. Akhil asked his brother (deceased) as to why he was assaulted upon which he said that it was the brain child of the present petitioner. 4.
Akhil Sharma pounced upon the deceased and he too was injured. Certain persons present nearby reached the spot and thereafter, all the accused fled away from the scene of occurrence. Akhil asked his brother (deceased) as to why he was assaulted upon which he said that it was the brain child of the present petitioner. 4. Initially, the present case was registered under Sections 307, 326, 341, 323, 201, 147, 148, 109 RFC and 4/25 Arms Act, but after the death of Anshu Sharma, Section 302 RFC was also added to it. 5. During investigation, the prosecution agency recorded the statements of Sahil Sharma, who was with the deceased and Anita Devi, who also happened to be present at a particular point of time where an altercation had ensued between the petitioner and the deceased. She is otherwise not a witness to the assault. 6. Heard Mr. Sethi, learned Sr. Advocate for the petitioner and Mr. Basotra for the State. Gone through the relevant evidence available in the challan produced by the police. 7. Mr. Sethi submits that there is no evidence available on record, connecting the present petitioner with the commission of the alleged offences. According to him, the evidence so collected does not even raise a suspicion of the involvement of the petitioner much less a grave suspicion. 8. Dwelling upon his arguments, learned counsel submits that the involvement of the petitioner is with the aid of Section 109 RFC only, that too without there being any evidence of abetment qua him. He submits that but for the aforesaid three witnesses, namely, Akhil Sharma, the first informant, Sahil Sharma and Anita Devi, admittedly, the prosecution has not recorded any other statement vis-a-vis the role of present petitioner. He has read over the statements of the aforesaid three witnesses. 9. Taking the court to the first part of the altercation where deceased had shown his displeasure to the petitioner with regard to the activities of his son, Sunny, stating that he was holding threats to him, whereas, he (deceased) had been helping for him for all occasions and this was not liked by Prabhu Singh, learned senior counsel submits that perusal of the evidence would indicate that the deceased was expressing lack of supervision on the part of the petitioner and nothing beyond that.
According to him, this piece of evidence by no stretch can be said to be an abetment, connecting the petitioner with the commission of main offence of murder where his son is allegedly involved, may be by attributing a specific role of assaulting the deceased. 10. Mr. Sethi, would further contend that the only piece of evidence on which the prosecution can harp upon, is the words uttered by Anshu (deceased) to his brother Akhil Sharma after receiving the injuries in which he said that it is the brain child of the present petitioner. Even these words do not bring the case of the petitioner within the mischief of abetment, there being no positive evidence with regard to abetment. This evidence on record does not bring the case of the petitioner within the four corners of Section 107 RFC for the reason that all the ingredients qua the said charge are conspicuously missing. Fie has read Section 107 RFC to the court for his satisfaction. 11. On the basis of the aforesaid submissions, Mr. Sethi submits that in the present case, the learned trial court has not applied its judicial mind on the material placed on record for satisfying itself at the stage of framing of charge as is the requirement of law and in a most casual manner held that there are sufficient grounds for proceeding against the petitioner also along with his co-accused for the purposes of framing of charge under Section 302, 307 RFC with the aid of Section 109 RFC, which undoubtedly is a serious charge, thus, putting the petitioner to unnecessary harassment to face trial without there being his involvement even remotely in the commission of offence. 12. Per contra, Mr. Basotra, learned AAG submits that may be the occurrence is shown to be in two parts, but it requires to be appreciated as one, for the reason that between the first and the second occurrence, hardly any time had elapsed. He submits that in the first occurrence, the deceased who happened to be present at a particular point of time where the present petitioner was also there along with his other son, he requested the petitioner for settling the matter as his son (sunny) was holding out threat to the deceased.
He submits that in the first occurrence, the deceased who happened to be present at a particular point of time where the present petitioner was also there along with his other son, he requested the petitioner for settling the matter as his son (sunny) was holding out threat to the deceased. The petitioner upon this got infuriated and asked his other son to bring the gun from his house and immediately thereafter the deceased was assaulted by the son of the petitioner and his co-accused. 13. Mr. Basotra submits that from totality of evidence on record, the involve ment of the present petitioner, prima facie, is made out, which is sufficient for framing the charge, therefore, rightly charged by the trial court. Supporting the impugned order, Mr. Basotra asks for dismissal of the instant petition. 14. Section 227 of Code of Criminal Procedure (Central Code) is in pari materia to Section 268 of Code of Criminal Procedure Svt. 1989 (State Code). It reads thus: 268. Discharge "If upon consideration of the record of the case and the documents submit ted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceedings against the accused he shall discharge the accused and record his reasons for so doing." 15. In a recent judgement in case Sajjan Kumar v. Central Bureau of Investi gation reported in (2010) 3 SCC (Cri). 1371. the Apex Court on considering its previous judgements rendered on the point has laid down the following principles to be followed while considering the prosecution case for charge: "(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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.
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 officer or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into Jut before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (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 disclose the existence of all the ingredients constituting 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 discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 16.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 16. It is profitable to refer to another Apex Court judgement rendered on the point in case P. Vijayan v. State of Kerala & anr reported in (2010) 2 Supreme Court Cases 398 in which their Lordships in para 10 observed thus: "10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under: "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 no sufficient ground for proceedings against the accused he shall dis charge the accused and record his reasons for so doing." If two views are -possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, 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 a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts." 17. Para 20 of the said judgement reads thus: "20.
In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts." 17. Para 20 of the said judgement reads thus: "20. Learned counsel for the appellant at the foremost submitted that even if the alleged confession of Constable Ramachandran Nair is found to be correct, in view of the fact that the said Ramachandran Nair is no more and died long ago, in the light of Section 30 of the Evidence Act, 1872 and in the absence of joint trial, the same cannot be used against the appellant. It is not in dispute that Constable Ramachandran Nair is not alive and there is no question of joint trial by the prosecution against the other two accused along with the said Ramachandran Nair. 18. Let us examine the case on hand vis-a-vis the present petitioner following the aforesaid principles of law. 19. On the strength of his legal acumen, Mr. Sethi, the learned Senior Advocate, has tried to distinguish the case of the present petitioner, stating that his case does not fall within the mischief of Section 109 RPC, that too by dissecting the occurrence in two parts viz first altercation between the deceased and the petitioner and his younger son on one side and the second occurrence where neither the petitioner nor his younger son were allegedly there. The learned counsel also laid much stress on the sense conveyed by the words uttered by the deceased to his brother Akhil Sharma, stating that taking these words to be true at their face value, still the present case does not connect the petitioner within the mischief of abetment as defined in Section 107 RPC. But in my considered view, all the efforts made by Mr. Sethi would not advance the cause of the petitioner so as to record a finding of discharge qua him. 20. Admitted position before the court is that beyond the statements of afore said three persons, namely, Akhil Sharma, Sahil Sharma and Anita Devi, the prosecution has not collected any evidence against the petitioner.
Sethi would not advance the cause of the petitioner so as to record a finding of discharge qua him. 20. Admitted position before the court is that beyond the statements of afore said three persons, namely, Akhil Sharma, Sahil Sharma and Anita Devi, the prosecution has not collected any evidence against the petitioner. I have perused their statements for a limited purpose, as to whether this piece of evidence can be said to be sufficient for proceeding against the petitioner for the purposes of framing the charge. 21. Akhil Sharma states that on 10th of July, 2010, at about 9.45 PM, he was standing near the shop of Sonu. At that time, his brother Anshu Sharma (since deceased) and Sahil Sharma, who is his first cousin, came from a particular side (village Deoli) and they also asked him to accompany them upon which he started following them on his motorcycle. At that time, his brother Anshu Sharma was driving his motorcycle and Sahil was the pillion rider. When they reached near the culvert of a canal, a vehicle make Bolero (Creamy white colour) was also parked there. The vehicle started with the lights on and it hit the motorcycle of Anshu upon which he fell towards the side of canal and Sahil on the other side. Six persons came out of that vehicle. Akhil names three persons as Kaka, Billa and Sunny as he could identify them. Sunny is the son of the present petitioner. The assailants were armed with weapons and started assaulting the deceased. Kaka has given a specific role of being armed with 'Khukhri' (a sharp edged weapon) and Sunny Singh with Toka'. Akhil then states that he pounced upon his brother to save him and at that time Sahil was raising noise (rolla) to save them. He too received injuries in the occurrence. He then states that because of the noise raised by them, certain persons reached the spot and thereafter all the assailants sat in the said Bolero and left the spot. It is then stated in his statement that he asked his brother, who was in an injured condition, the cause for this assault upon him, he disclosed that this all had happened because of Prabhu Singh (Present petitioner), the father of Sunny.
It is then stated in his statement that he asked his brother, who was in an injured condition, the cause for this assault upon him, he disclosed that this all had happened because of Prabhu Singh (Present petitioner), the father of Sunny. In vernacular (urdu) it is said: "Jab mujhar ka bhai Anshu jakhmo ki halat main sadak par padha that toh mujhar ne Anshu sey poocha unho ne kyon mara, to us ne bola, je sab sunny ke papa Prabhu ka kasoor hai." 22. Sahil Sharma in his statement states that on 10th of July, 2010 at about 9.45 PM, he was standing in front of Jammu Rural Bank. When Anshu Sharma (since deceased) reached there on a motorcycle, he went to meet him and in the mean time, the petitioner after closing his shop was going towards his house. Anshu told him that his son Sunny was threatening him whereas, he had been helping him (Sunny) on every occasion upon which Prabhu Singh (petitioner) said that if he would say anything to his son, he would shoot him. In vernacular it is said as under: "Agar tune mere bete ko kuch kaha toh main goli maar dunga" 23. This witness further states that in the mean time, Anita Devi, his mother also reached there. Prabhu was abusing Anshu Sharma and he was making him understand that he was like his son upon which Prabhu Singh called his younger son and asked him to bring rifle. The younger son also started abusing upon which Anita Devi asked Anshu to go home. This witness then states that Prabhu exhorted that he would teach them a lesson. In vernacular it is said that, "Main lumko m-aja chakhaoon ga." Thereafter Sahil Sharma and Anhsu Sharma left on one motorcycle and Akhil Sharma, who was also standing in front of the shop and was asked to accompany them, started following them on another motorcycle. This witness then describes the occurrence as stated by Akhil Sharma, the first informant. I lowever, he discloses the names of all the six accused in his statement as his statement was recorded on 2nd of August, 2010 i.e after three weeks of the occurrence.
This witness then describes the occurrence as stated by Akhil Sharma, the first informant. I lowever, he discloses the names of all the six accused in his statement as his statement was recorded on 2nd of August, 2010 i.e after three weeks of the occurrence. However, this witness does not talk of a fact that Akhil Sharma asked his brother Anshu(de-ceased) as to why was he assaulted and upon which, he disclosed the name of the present petitioner as a person behind the occurrence. 24. I do not feel the necessity of reproducing the gist of the statement of Anita Devi as she is a witness to the first altercation only, ensued between Prabhu and his younger son on one side and the deceased Anshu on the other side and in this regard, she toes the line of PW Sahil Sharma, her son. 25. It is well settled that at the stage of framing of charge, the trial court has not to examine and assess in detail the materials placed on record by the prosecution, but what is required to be seen is to consider the sufficiency of material to establish the offence alleged against a particular accused. The charge can be quashed, if there is no sufficient ground for proceeding with the trial even after fully accepting the evidence on record. 26. Sufficient ground for proceeding as contemplated in Section 268 of State Code does not contemplate sufficient ground for conviction or acquittal, but a ground for putting the accused on trial. The expression 'sufficient ground' would mean availability of such material on record, if accepted at its face value, if suggests a strong possibility that the accused has committed the offence charged with, the court can frame the charge. It is firmly established principle of law that where the material collected during investigation creates even a grave suspicion in the mind of the court that the accused has committed the offence, the charge must be framed. 27. In the aforesaid two judgements of Hon'ble Supreme Court, the view taken by Apex Court in Union of India v. Prafulla Kumar Samal reported in 1979 SCC (Cri) 609 is reiterated., ' 28.
27. In the aforesaid two judgements of Hon'ble Supreme Court, the view taken by Apex Court in Union of India v. Prafulla Kumar Samal reported in 1979 SCC (Cri) 609 is reiterated., ' 28. In Prafulla's case (supra), the Supreme Court adverting to various decisions enumerated a broad test while considering the question of framing of charge under Section 227 of Code of Criminal Procedure (Central Code), observed that undoubt edly the trial court has the power to sift and weigh the evidence at the time of considering the case for charge, but for the limited purpose of finding out, whether or not a prima facie case is made out against the accused and where the material placed before the Court discloses grave suspicion against the accused, the court will be fully justified in framing a charge and proceeding with the trial. It is further held in the said judgement that this will depend upon the facts of each case and it is difficult to lay down a rule of universal application. It is further held that no doubt in exercising the jurisdiction, the court cannot act merely as a post office or a mouth piece 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 and any basic infirmity appearing in the case and so on. The note of caution is that the Judge 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. 29. In my considered view, the first occurrence and the second occurrence is so interlinked and intertwine that prima facie it cannot be segregated at this stage. Deceased Anshu Sharma is very much present at the first stage when he disclosed a fact to the petitioner and asked for his help, stating that he was like his son and the petitioner rather rebuked him and asked his younger son to bring rifle, stating that he would kill him. It is because of the intervention of the PW Anita Devi that the worst situation was averted as she suggested the deceased and her son (Akhil Sharma) not to enter into altercation and advised them to leave the place.
It is because of the intervention of the PW Anita Devi that the worst situation was averted as she suggested the deceased and her son (Akhil Sharma) not to enter into altercation and advised them to leave the place. Within few minutes, they were waylaid at some distance near the culvert of canal where a vehicle was already parked. The moment deceased reached near the vehicle, he was assaulted by son of the petitioner and others with deadly weapons. The first altercation is in the front or near the shop of the petitioner. In these circumstances, the deceased uttered the words that the assault was the brain child of the present petitioner. All these facts on record when noticed collectively, in my considered view, are sufficient grounds for proceeding against the present petitioner along with his other co-accused, which includes his son also, for framing the charge against him with the aid of Section 109 RFC. It cannot be said to be a case of no evidence against the petitioner at all. 30. Viewed thus, I do not find any illegality manifest on the record committed by the trial court so as to quash/set aside the impugned order. 31. Resultantly, the petition on hand is dismissed being devoid of any merit in it. 32. Cr.M.P., No. 17/2012 also sands disposed of accordingly. 33. Before parting with, I would like to make it clear that the opinion expressed by me in this judgement should not be regarded as an opinion on merits of the case, for expression thereof could not be avoided on the evidence collected by the prosecution in support of its case against the petitioner, for a very limited purpose i.e to arrive at a prima facie conclusion hereinabove and nothing more.