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2013 DIGILAW 175 (GAU)

Dwipen Kr. Pathak v. State of Assam

2013-03-13

C.R.SARMA

body2013
JUDGMENT C.R. Sarma, J. 1. Heard Mr. A.K. Bhuyan, learned counsel appearing for the petitioner. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, appearing for the State respondent. By this application filed, under Section 482 Cr.P.C., the petitioner, who is one of the accused persons, in Session Case No. 167 (K) 2006, pending before the learned Sessions Judge, Kamrup, Guwahati, has challenged the order, dated 28.05.2012, whereby and where under the learned Sessions Judge framed the charge against the petitioner for the offence under Sections 201 /34 IPC. 2. The prosecution case, in brief, is that the minor daughter of the informant, herein after called the deceased was, working as domestic assistant (maid servant) in the house of Sri Binod Sharma. On 7.2.1999, she was found hanging, from the roof, of the bath room of Sri Binod Sarma. She was immediately brought down from the hanging position and taken to a nursing home, wherein the medical officer declared her death. On being informed, Police arrived in the nursing home and, at the instance of police, her dead body was taken to the Mohendra Mohan Choudhury Hospital for post mortem examination. After opening her dead body, in course of the post mortem examination, a foetus of about 4/5 months was found in her abdomen. The parents of the deceased and her family members, including her brothers etc. were informed and they arrived in the cremation ground. The foetus of the deceased was buried in the bank of the Brahmaputra river and the dead body of the deceased was cremated in presence of the members of her family. The father of the deceased i.e. the informant, on 18.02.99, lodged FIR with the police, informing that the deceased was pregnant at the time of her death and that he suspected that his said daughter was murdered by Sri Binod Sarma to escape from the liability of her pregnancy. On receipt of the said FIR, police registered a case under section 302 IPC and launched investigation into the matter. During the course of investigation police arrested Sri Binod Sarma, the petitioner and others. At the close of the investigation, police submitted charge-sheet against Sri Binod Sarma for the offence under section 376(1) /302 IPC and under section 201 /34 IPC against the petitioner and Sri Rajen Rosali. 3. During the course of investigation police arrested Sri Binod Sarma, the petitioner and others. At the close of the investigation, police submitted charge-sheet against Sri Binod Sarma for the offence under section 376(1) /302 IPC and under section 201 /34 IPC against the petitioner and Sri Rajen Rosali. 3. Considering the materials, on record, the learned Sessions Judge, by the impugned order, dated 28.05.2012, framed charges under section 376(1) /302 IPC against Sri Binod Sarma and under section 201 /34 IPC against the petitioner and Sri Rajen Rosali. 4. The learned counsel, appearing for the petitioner, has submitted that there is no materials, on record, to substantiate, in any manner, the involvement of the petitioner with the offence, under section 201 /34 IPC, in connection with the death of the deceased. It has also been submitted that the learned Sessions Judge committed gross error and illegality by framing charge under section 201 /34IPC against the petitioner without any basis and as such the said charges are liable to be set aside. In support of his contention the learned counsel has relied on the decisions held in the cases of (1). Col. Mohan Singh Vs. State of Rajasthan reported in 1979 (4) SCC 2, (2). Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra reported in (1998) 7 SCC 337 , (3). Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., reported in AIR 1982 SC 1238 , (4). State of Orissa Vs. Debendra Nath Padhi, reported in (2005) 1 SCC 568 , and (5). Kamal Kishore Vs. State through Delhi Administration, reported in 1997 Cri.L.J. 2106. 5. Refuting the said argument, advanced by the learned counsel, appearing for the petitioner, Mr. B.B. Gogoi, learned Addl. Public Prosecutor, referring to the decisions held by a learned Single Judge of this Court in the case of Raghavendra Awasthi Vs. State of Assam, reported in 2004 (3) GLT 167, has submitted that there is sufficient materials, on record, to presume that the petitioner got involved in committing the offence under Section 201 IPC. It is also submitted that the truth, as to whether the petitioner has committed the said offence or not, would be established at the trial of the case. It is further submitted, by the learned Addl. It is also submitted that the truth, as to whether the petitioner has committed the said offence or not, would be established at the trial of the case. It is further submitted, by the learned Addl. Public prosecutor, that charge can be framed on the basis of strong presumption and as such the learned Sessions Judge committed no error by framing charge as indicated above. 6. Having heard the learned counsel, appearing for both the parties, I have carefully perused the materials, on record, more particularly, the statement of the witnesses, examined by the investigating officer. Admittedly, in the FIR, the informant has not made any whisper against the petitioner. In the present case the investigating agency has examined, as many as, 33 witnesses, including the official witnesses. The official witnesses stated about the various acts done and the formalities observed by the investigating agency. The independent non-official witnesses, more particularly, Sri Sahabuddin Ahmed, Sri Satnam Singh, Sri Om Prakash Balmiki, Sri Dhan Bahadur Thappa, Sri Bappa Talukdar, Sri Krishna Basfor, Sri Lashman Basfor, Sri Dipen Deka, Mrs. Sarubala Ray (mother of the deceased) and Sri Raj Kishore Chandra Ray, informant (father of the deceased), apart from making statement under section 161 Cr.P.C., made statement under Section 164 Cr.P.C. before the Magistrate. The parents of the deceased i.e. Mrs. Sarubala Ray and Sri Raj Kishore Ray did not state anything against the petitioner. Smti. Putuli Basfor, who was also present in the house of Sri Binod Sarma, at the time of the incident, stated that she along with Sri Bappa Talukdar (driver) and Sri Binod Sarma took the dead body of the deceased to the MMC Hospital. She also stated that she accompanied the dead body to the nursing home and that Sri Binod Sarma, along with the petitioner and Sri Rajen Rosali, arrived in the hospital. According to her, in the hospital, at the time of arrival of the said persons, police also arrived in the nursing home. Except making the said statement, she did not state anything regarding the role played by the petitioner. Sri Binod Sarma, in his statement, recorded under section 161 Cr.P.C., stated that, when the dead body was taken to the nursing home, the petitioner also arrived there. Except making the said statement, she did not state anything regarding the role played by the petitioner. Sri Binod Sarma, in his statement, recorded under section 161 Cr.P.C., stated that, when the dead body was taken to the nursing home, the petitioner also arrived there. Sri Bappa Talukdar, who was the driver of Sri Binod Sarma stated that he had taken the dead body to the nursing home and that the petitioner also arrived there after about 5 minutes. From his statement, made before the police, it is found that the petitioner was a friend of Sri Binod Sarma. He further stated, in his statement recorded under Section 161 Cr.P.C., that he along with the son of Sri Binod Sarma, on being directed by Sri Binod Sarma had collected an amount of Rs. 1,500/- from City Dhaba. None of the other witnesses stated anything against the petitioner. From the above discussed evidence, as collected by the investigating agency, it appears that the petitioner, who was one of the friends of Sri Binod Sarma, had arrived in the nursing home and he accompanied Sri Binod Sarma and others to the Mohendra Mohan Choudhury Hospital, where the post mortem was done and then they went to Bhootnath cremation ground. None of the witnesses stated anything indicating that the petitioner had played any role in connection with cremation of the dead body or removal of evidence. From the evidence, on record, it appears that the dead body was sent for post mortem examination, after the arrival of police and the same was taken to the cremation ground, on being released by the police, after the autopsy was done. It is also found from the evidence, collected by the investigating agency, that the cremation was done in presence of the parents and other family members of the deceased. 7. In view of the above evidence, we are required to examine if there is any evidence with regard to Section 201 IPC. Section 201 IPC reads as follows:- 201. It is also found from the evidence, collected by the investigating agency, that the cremation was done in presence of the parents and other family members of the deceased. 7. In view of the above evidence, we are required to examine if there is any evidence with regard to Section 201 IPC. Section 201 IPC reads as follows:- 201. Causing disappearance of evidence of offence, or giving false information to screen offender - Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; If a capital offence - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If punishment with imprisonment for life - and if the offence is punishable with (imprisonment for life), or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; If punishable with less than ten years' imprisonment - and if the offence is punishable with imprisonment for any term no extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. 8. In view of above, in order to draw presumption of committing an offence under Section 201 IPC, there must exist materials to show that the accused person had knowledge or reason to believe that an offence has been committed and that he acted in any manner with intention of screening the offender from the legal punishment or that with intention to save the real culprit, he gave information regarding the offence, which he knew or believed to be false. Therefore, the primary ingredient required to be established to constitute the offence under Section 201 IPC, is that the accused caused disappearance of any evidence of commission of that offence, or he acted with an intention of screening the offender from legal punishment, or with that intention he gave false information. 9. In the present case at hand, except making himself available in the nursing home, from where the dead body was taken to the MMC Hospital for doing the autopsy and also in the cremation ground, there is no other materials to show that the petitioner had, in any manner, caused disappearance of any evidence of offence or gave false statement or information to screen the offender. It has been revealed that the petitioner is one of the friends of Sri Binod Sarma. Hence, there was nothing unusual in his arrival at the said places, after the incident. No doubt, charge can be framed on the basis of presumption, based on the materials, available on record. But, if there is no legal basis, no presumption of committing the offence can be drawn. 10. In the case of Col. Mohan Singh (Supra), one Padam Singh was shot dead by the accused and his dead body was initially carried in a jeep. Subsequently, the body was carried in a car and after taking it to a little distance was thrown into a lonely well. Five days after the murder of said Padam Singh, the petitioner got his car washed at a Petrol pump. The investigating officer charge-sheeted the petitioner for the offence under section 201 IPC and the learned Sessions Judge framed charge under section 201 IPC. The Hon'ble Supreme Court, while allowing the appeal and quashing the charge, observed that mere washing of the car, five days later, could not be prima facie evidence of factual ingredients of an offence under Section 201 IPC. In view of above, in the case at hand also, mere presence of the petitioner in the above noted places, after the incident, cannot suggest involvement of the petitioner with an offence under Section 201 IPC. 11. In view of above, in the case at hand also, mere presence of the petitioner in the above noted places, after the incident, cannot suggest involvement of the petitioner with an offence under Section 201 IPC. 11. In the case of Suresh Budharmal Kalani (Supra), the Hon'ble Supreme Court observed that at the time of framing charge, Court is required to confine its attention to only those materials, collected during investigation, which can be legally translated into evidence and not upon further evidence that the prosecution may adduce in the trial, which would commence only after the charges are framed and the accused denies the charges. 12. In the case of Chandrapal Singh & Ors. (supra), the Hon'ble Supreme Court observed that, in a case under Section 201 IPC, there must be material to show as to what evidence was available, which the appellant had destroyed. 13. In the case of Kamal Kishore (supra), 1997 Cri. L.J. 2106, the learned Magistrate framed charge against the petitioner only on the basis of disclosure statement, which did not lead to discovery of any fact, which were not known to the prosecution before recording statement of the petitioner and no recovery, at the instance of the petitioner, was made. No independent witness had deposed that the petitioner had shared the booty or was involved in the incident in question, except as alleged by the co-accused. There is no corroborating evidence, on record, supporting the allegations, brought against the petitioner. In view of above, a learned Single Judge of Delhi High Court held that the learned Magistrate erred in framing the charge against the petitioner. 14. In the case of State of Orissa Vs. Debendra Nath Padhi, reported in (2005) 1 SCC 568 , the charge framed was put to challenge. The Hon'ble Supreme Court observed that, at the time of framing charge, the Trial Court is required to consider whether there are sufficient ground to proceed against the accused. Further, the Hon'ble Supreme Court has also observed that there is no provision in the Code which grants to the accused any right to file any material or document at the time of framing the charge and that right is granted only at the stage of trial. In the case of State of Madhya Pradesh Vs. Ramdeen & 5 Ors., reported in 1991 Cri. In the case of State of Madhya Pradesh Vs. Ramdeen & 5 Ors., reported in 1991 Cri. L.J. 1192, it has been held that charge can be framed even on the basis of strong suspicion, founded upon material and a presumptive opinion would be sufficient to frame charge against the accused person. Though the court is not required to make roving enquiry into the matter and scrutinize the evidence in the way as done in the trial, the suspicion or the presumption must be based on materials collected by the investigating agency. 15. Section 227 and 228 Cr.P.C., which provide the eventuality when the accused can be discharged read 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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228: Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in accordance with the procedure for the trial of warrant - cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-Section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 16. In view of above decisions and the statutory provisions, charge is to be framed on the basis of the available evidence or materials, collected during the investigation. 16. In view of above decisions and the statutory provisions, charge is to be framed on the basis of the available evidence or materials, collected during the investigation. In the absence of sufficient materials or evidence, suggesting the guilt of the accused person, the court has no other alternative but to discharge the accused person. 17. In the present case, as discussed above, none of the witnesses, examined by the investigating agency, stated anything indicating as to what evidence was available which the petitioner had destroyed or caused disappearance of such evidence. There is also nothing, on record, to show in what manner the petitioner intended to screen the offender from legal punishment or as to what information, in respect of the offence, which he knew or believed to be false, was given. A careful scrutiny of the evidence, on record, reveals that the petitioner played no other role except making himself available in the nursing home, in the place of post mortem examination and in the cremation ground. It has already been noticed that he was a friend of the accused Sri Binod Sarma, who has been charged under Section 376(1) and 302 IPC. Therefore, as a friend, it was quite natural for him to give company to his said friend after the incident aforesaid. 18. In view of above discussion, in the absence of any evidence, there is no basis for framing the impugned charge under section 201 IPC against him. Therefore, the charge framed against the petitioner, under section 201 /34 IPC, cannot be maintained. Accordingly, the criminal petition is allowed and the charge framed against the petitioner, under Section 201 /34 IPC, is quashed. He shall be discharged from his bail bond. With the above direction, this criminal petition is allowed. Petition allowed