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2016 DIGILAW 206 (RAJ)

Sant Ram v. State of Rajasthan

2016-02-03

MAHESH CHANDRA SHARMA

body2016
JUDGMENT : Mahesh Chandra Sharma, J. This revision petition has been filed by the accused petitioners against the order dated 8.1.2016 passed by the Addl. Sessions Judge, Neem-ka-Thana, (‘the trial court' for short hereinafter) in Sessions Case No. 32/2015 by which charges have been framed against the petitioners for the offences u/S. 147, 148, 447 and 302/149 IPC. 2. The brief facts of the case are that on 9.6.2011, Mahesh Kumar submitted a written report to the SHO, Police Station, Patan in which he has stated that on 9.6.,2011 at 12 noon his grand father Bhagwana Ram was sleeping in the field under a Neem tree. Then about 30-35 men and women namely; Madan alias Manoj son of Bhoma Ram, Gopi Chand son of Bhoma Ram, Sant Ram son of Ramlal, Birdi Chand son Bhura Ram, Laxminarain son of Chhaju Ram, Rakesh son of Jagdish, Mahaveer son of Sant Ram, Rajesh son Hiralal, Kashi Ram son of Birdi Chand, Hawa Singh son of Ram Kuwar, Mali wife of Pooranmal, Gyan Chand son Chhaju Ram, Dharam Pal son Chhaju Ram, Mahipal son Kailash, Ramli w/o Santaram, Mahipal son Kailash, Ramli w/o Santaram, Rajesh son of Kailash , Sanjay son of Pooran, Jenendra son of Bhoma Ram, Ramswaroop son of Bhoma Ram, Sandeep son of Ramswaroop, Jai Singh son of Pooran, Ramesh son of Ramlal, Ruda Ram son of Bhuraram, Ramkuwar son of Bhurarm, Gajendra son Chhajuram, Chhajuram son of Ramlal, Pooran son of Ramdhan, Lila Ram son of Ramdhan, Vikram son of Lila Ram, Moolchand son of Hiralal having Barchhi, lathis, axe and sharp weapons came there and soon after they started beating his grand father. These persons assaulted on the head and on hands and legs and other parts of body. He was working at nearby well. And when he went there for rescue, these persons gave beating to him from lathis and also gave fists and slaps. Hearing noise, from neighbouring field Inderaj Gurjar who was driving tractor and other persons rushed to the spot and rescued them. These persons are keeping political enmity with his grand father and family for this reason they caused beating. On the basis of this written report, police registered an FIR No. 122/2011 for offences under sections 147, 148, 323 and 302/149 IPC. 3. These persons are keeping political enmity with his grand father and family for this reason they caused beating. On the basis of this written report, police registered an FIR No. 122/2011 for offences under sections 147, 148, 323 and 302/149 IPC. 3. After Investigation, Police submitted charge-sheet against accused Madan @ Manoj for offence under Section 302 and 447 IPC and the investigation was kept pending under Section 173(8) Cr.P.C. against other persons named in the FIR. 4. The trial was held against accused Madan @ Manoj for above offences in Sessions case No. 14/2011 and vide judgment dated 10.03.2015 passed by the learned Additional Sessions Judge, Neem-ka-thana, accused Madan @ Manoj was convicted for offences under Section 304 Part-I, IPC and Section 447 IPC and for offence under Section 304 Part-I, IPC he was sentenced for seven-years R.I., and for offence under Section 447 he was sentenced for three months R.I. Madan @ Manoj filed an appeal bearing number as S.B. Criminal Appeal No. 234/2015 against the judgment dated 10.03.2015 before this Court which is pending. 5. During the course of further investigation, complainant filed affidavit/affidavits his some of relatives before the Investigating Officer. 6. After that complainant filed S.B. Qriminal Misc. Petition No. 2209/2011. On 29.08.2011 an interim order was passed directing Director General of Police that investigation of the matter to be conducted by an Officer not below the rank of Additional Superintendent of Police, under his supervision and thereafter, the said petition was disposed of. Thereafter, complainant filed another S.B. Criminal Misc. Petition No. 597/2013 and this Court vide interim order dated 19.03.2013 directed the Police to submit charge-sheet against remaining nine accused persons within three weeks. The said order was challenged by nine accused persons including the petitioner before Hon’ble the Supreme Court. The Special Leave to Appeal No. 3156/2013 with Criminal Misc. Petition No. 7513/2013 was called for hearing on 24.03.2015. The Hon’ble Supreme Court passed the following order "..... Shri Shiv Mangal Sharma, learned counsel appearing for the State of Rajasthan, has brought to our notice that the Superintendent, Jhunjhunu, has already completed the investigation in F.I.R. No. 122 of 2011. If that is so, then we do not intend to go into other details of the case. The Hon’ble Supreme Court passed the following order "..... Shri Shiv Mangal Sharma, learned counsel appearing for the State of Rajasthan, has brought to our notice that the Superintendent, Jhunjhunu, has already completed the investigation in F.I.R. No. 122 of 2011. If that is so, then we do not intend to go into other details of the case. We now direct the Superintendent of Police, Jhunjhunu, to follow the procedure prescribed under the Code of Criminal Procedure, 1973 without being influenced by the observations made by the High Court. If for any reason, the charge sheet is filed by the Police Officer, we grant liberty to the petitioners to make appropriate applications before the appropriate court for their discharge." 7. Thereafter, the accused petitioner Santram was arrested on 24.4.2015, Gyanchand, Ramesh Chand, Vikram Singh, Rakesh Kumar, Rajesh @ Jhbbu were arrested on 25.4.2015, Laxminarayan @ Laxman, Birdichand and Gopiram were arrested on 10.05.2015. On 22.05.2015 Police submitted supplementary charge sheet against nine persons for offences under Sections 147, 148, 149, 447 and 302 IPC. 8. The learned Additional Sessions Judge, Neem-ka-thana vide order dated 27.10.2015 framed charges for offences under Section 147, 148, 447 and 302/149 IPC. Against the order dated 27.10.2015, the petitioners have filed S.B. Criminal Revision Petition No. 1459/2015 before this Court and this Court vide order dated 18.11.2015 quashed and set aside the order dated 27.10.2015 and remanded the matter to the trial Court with a direction to pass fresh order within a period of one month from the date of receipt of certified copy of the order. The trial court vide order dated 08.01.2016 framed charges against the accused petitioners for offences under Sections 147, 148, 149, 447 and 302 IPC. The accused petitioners being aggrieved with the aforesaid order has preferred instant criminal revision petition before this Court. 9. Ld. counsel for the accused petitioners submitted written submissions before this Court praying therein to be taken on record and same be also dealt with in the judgment. 10. The aforesaid submission of Mr. Ashvin Garg counsel appearing for the accused petitioners seems to be genuine. 11. 9. Ld. counsel for the accused petitioners submitted written submissions before this Court praying therein to be taken on record and same be also dealt with in the judgment. 10. The aforesaid submission of Mr. Ashvin Garg counsel appearing for the accused petitioners seems to be genuine. 11. By way of written submission counsel for the accused petitioners has submitted that no charges under Section 147, 148 and 149 were framed against accused Madan in earlier sessions case No. 14/2011 and no permission was obtained for further investigation against present accused petitioners from concerned Judicial Magistrate and fair and impartial investigation was conducted. He has further contended that no offence under Section 447 IPC is made out against the petitioners and prima facie no charge under Section 447 IPC is made out. It has been submitted that in the present case no fair and impartial investigation was conducted by the police. Rather the investigation was fully influenced by the orders of this Court as stated above. Counsel has submitted that the Hon’ble Apex Court had passed stay order dated 9.4.2013 and the same was within the knowledge of the Investigating Officer, the Public Prosecutor and the complainant, in-spite of that, while the stay order of the Hon’ble Apex Court was in force, this Court passed the order dated 13.12.2013 to submit final report under section 173 Cr.P.C. within 15 days. Counsel also submitted that after the order dated 24.3.2015 of the Hon’ble Apex Court, no investigation was conducted except to arrest the petitioners and to submit charge-sheet. The Investigating Officer i.e. the Superintendent of Police, Jhunjhunu did not follow the procedure prescribed under the Code of Criminal Procedure, 1973 without being influenced by the observations made by this Court. Thus no fair and impartial investigation was conducted and the same was influenced by the orders of this Court and on the basis of such investigation the charge-sheet has been filed. Otherwise, prima facie no offence is made out against the accused petitioners. 12. Counsel also submitted that in this case earlier the charge-sheet was filed against accused Madan @ Manoj. In Sessions case No. 14/2011, charges under sections 447, 302 IPC were framed against him. Otherwise, prima facie no offence is made out against the accused petitioners. 12. Counsel also submitted that in this case earlier the charge-sheet was filed against accused Madan @ Manoj. In Sessions case No. 14/2011, charges under sections 447, 302 IPC were framed against him. After recording evidence of prosecution witnesses and after hearing arguments, the trial court vide its judgment dated 10.3.2015 held that no offence under section 302 IPC is made out against him and only charge under section 304 Part-I IPC was found to be proved against him and for that offence he was convicted and sentenced. When no offence under section 302 IPC was found proved against main accused, how can it be said that charge under section 302 IPC is prima face made out against the present accused petitioners. In-fact there is no sufficient and clinching material available on record to frame charge for offence under section 302 IPC against the accused petitioners. 13. Counsel has further submitted that vide order dated 24.3.2015 the Hon’ble Apex Court directed the Superintendent of Police, Jhunjhunu to follow the procedure prescribed under the Cr.P.C. without being influenced by the observations made by this Court. But the I.O. being influenced by the orders of this Court did not consider the charge-sheet filed against Madan @ Manoj, did not consider and include the statements of Shakeel, Devan, Soni, Mahavir Prasad, Kana Ram Saini, Suresh Subhash, Prakash, Tiku Ram, Shriram, Kailash, Mukesh Kuar, Dhoona Ram etc., earlier examined by the police. Even their supplementary statements were not recorded. If investigation would have been made from these independent witnesses, the innocence of petitioners could come on record. The site plan prepared in the earlier investigation and present investigation are different and no verification was properly made regarding two different site plans. All these relevant factors were not considered by the trial court while considering the application of accused petitioners under section 227 Cr.RC. for discharge. If the trial court would have considered statements of these independent witnesses then it would be clearly reflected that the petitioners were not present at the place of occurrence and they have been wrongly named by the highly interested and relative witnesses. 14. Counsel has further submitted that there is no prima facie sufficient material on record to frame charge against the accused petitioners. 14. Counsel has further submitted that there is no prima facie sufficient material on record to frame charge against the accused petitioners. In view of the directions of the Hon’ble Apex Court, the accused petitioners also submitted an application under section 227 Cr.PC. for discharge. The trial court was required to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it. As stated above, as per judgment dated 10.3.2015 in the trial of co-accused Madan, when no charge under section 302 IPC was found to be proved and only offence under section 304 Part-I was found to be proved, then, there was no justifiable reason to put the petitioners for trial of the offence under section 302 IPC which is not prima facie made out against the accused petitioners. 15. Counsel has further submitted that even from perusal of post mortem report as well as considering the statement of Dr. Subhash Yadav recorded in trial against co-accused Madan, the injuries received by the deceased were not sufficient in the ordinary course of nature to cause death of deceased Bhagwana Ram. No fracture was found on the head and face of deceased. He had fracture on left hand and left thumb/(toe) of leg. The injuries No. 4, 8, 13 were post-mortem injuries which could be sustained while handling the deceased. Thus no offence under section 302 IPC is prima facie made out against the accused petitioners. 16. Counsel also submitted that in the FIR 30 persons were named. The police submitted charge-sheet for the offence under sections 302, 447 IPC against accused Madan @ Manoj. No charges for offences under sections 147, 148 and 149 IPC were framed against Madan @ Manoj. In the police statements of witnesses, names of other persons were also mentioned, in the FIR also names of 30 persons were mentioned, yet no charges under sections 147, 148, 149 IPC were framed against co-accused Madan. At that time the prosecution did not raise any objection for not framing charges against accused Madan @ Manoj for offences under sections 147, 148, 149 IPC. Therefore, now, there is no justification to frame charges for the offences under section 147, 148 and 149 IPC against the accused petitioners. 17. At that time the prosecution did not raise any objection for not framing charges against accused Madan @ Manoj for offences under sections 147, 148, 149 IPC. Therefore, now, there is no justification to frame charges for the offences under section 147, 148 and 149 IPC against the accused petitioners. 17. Counsel further submitted that as per the case set up by the prosecution in the FIR and in the main charge-sheet and supplementary charge-sheet, the allegations against the present petitioners and their alleged acts are similar to the allegations and alleged act of accused Madan. Therefore, on the same set of evidence, framing of charges against the accused petitioners different to charges of accused Madan is illegal. 18. Counsel has also submitted that in this case no recovery of whatsoever nature was made from the petitioners. No weapons of offence were recovered from there. In the police statements also the interested witnesses have made vague and unspecific allegations of carrying weapons but they have specifically not stated that which petitioner was having what, type of weapon with him at the time of alleged incident. Therefore, on the basis of vague statements, no charge under section 148 IPC could have been framed. Counsel also submitted that the trial court has wrongly framed charge under section 44 IPC against the accused petitioners. From the statements of independent witnesses it is prima facie clear that no criminal trespass was committed by the petitioners. Further, as per the site plan submitted with the supplementary charge-sheet the place of occurrence has been shown under Neem Tree which is at the border of field of deceased and in the field of Harnath. The property was not in possession of deceased Bhagwana. 19. Counsel further submitted that while framing charges against the accused petitioners, the trial court has toed the line of its earlier order dated 27.10.2015. The trial court did not give thoughtful consideration to all grounds raised by the petitioners in the application under section 227 Cr.RC. for their discharge. No objective consideration was given to these grounds. 20. Counsel lastly submitted that the trial court has failed to appreciate that mere giving out names of accused petitioners in the FIR is not sufficient to connect them with the alleged offences. It is a clear case of over implication. The complainant has alleged in the FIR that there were 30-35 accused persons. 20. Counsel lastly submitted that the trial court has failed to appreciate that mere giving out names of accused petitioners in the FIR is not sufficient to connect them with the alleged offences. It is a clear case of over implication. The complainant has alleged in the FIR that there were 30-35 accused persons. Out of them, the police has submitted charge-sheet only against 1+9 = 10 persons and no charge-sheet has been filed against remaining 20 persons. The statements of complainant and other relatives witnesses were not found truthful qua these 20 persons. Admittedly, there is long standing enmity between complainant party and accused party. Due to this long enmity and village politics, the names of petitioners were falsely given in the FIR. In the FIR he had falsely written that beating was also done with him. This allegation is not supported from the medical evidence. There is no injury report to suggest that he received any injury. Even in the police proceedings drawn under FIR, there is no mention that any injury was seen on the person of complainant. It shows that from very beginning the complainant has cooked up false story-to falsely implicate all members of accused party. The anxiety of complainant for false implication of petitioners is also evident from the fact that subsequently, he has materially developed the facts and got filed affidavits of those persons showing them as eye-witnesses, who were not shown as eye-witnesses in the FIR. From very inception of the case when the complainant has indulged in over-implication then possibility cannot be ruled out for false implication of present petitioners with oblique motive because most of the petitioners are in Government service and their false implication would adversely affect their service career and livelihood. Thus, merely on the ground that names of accused persons were mentioned in the FIR, it would not be proper to frame charges against them unless the allegations are corroborated from any other independent evidence. 21. Per-contra learned PP assisted by Mr. Mahendra Counsel have opposed the aforesaid submissions and submitted that the trial court framed the charges against the accused petitioners on the basis of the material made available to it Thus, the trial court has not committed any material illegality or irregularity in passing the order of framing the charge against the accused petitioners. 22. Mahendra Counsel have opposed the aforesaid submissions and submitted that the trial court framed the charges against the accused petitioners on the basis of the material made available to it Thus, the trial court has not committed any material illegality or irregularity in passing the order of framing the charge against the accused petitioners. 22. I have heard learned counsel appearing for the respective parties and carefully scanned the entire material made available to me. 23. In my considered opinion, the order dated 8.1.2016 passed by the trial court by which it framed charges against the accused petitioners for the offences under sections 147, 148, 447 and 302/149 IPC is just and proper and no irregularity or illegality has been committed by the trial court in passing the same. The criminal revision petition is accordingly dismissed. 24. However, the accused petitioners shall be at liberty to move an application under section 216 Cr.RC. before the trial court at the appropriate stage of the case.