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2018 DIGILAW 1792 (HP)

Sukh Dev alias Devi Ram v. Lata Kumari

2018-10-05

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioner/State under Section 482 Cr.P.C. against orders dated 15.09.2016, passed by the learned Judicial Magistrate 1st Class, Bilaspur, in Criminal Case No. 80/1 of 2003 and 02.04.2018, passed by learned Sessions Judge, Bilaspur, in Criminal Revision No. 17/10 of 2016. 2. The key facts necessary for disposal of the present petition can succinctly be summarized thus: The petitioner/complainant (hereinafter referred to as “the complainant”) presented an application in the learned Trial Court under Section 156(3) Cr.P.C., wherein, in nitty-gritty, a prayer had been made to proceed against the respondents/accused persons (hereinafter referred to as “the respondents”) under Sections 420, 468, 471 and 120B IPC. As per the petitioner, he is son of Shri Tikhu Ram, who was married to Smt. Nanaki alias Durgi Devi. Said Durgi Devi expired after the birth of the complainant. The complainant has further averred that Shri Tikhu Ram had no other child, except him. Shri Lal Singh, brother of Shri Tikhu Ram, was married with Smt. Santosh and Smt. Dropti and subsequently he died. Smt. Santokhu alias Santosh Devi, who has been made as accused No. 5 in the learned Trial Court, gave birth to accused No. 1 to 4 (respondents herein). As per the complainant, the name of the father of respondents is unknown, as the Smt. Santosh Devi was a lady of easy virtue. As per the panchayat record, Smt. Santosh Devi, is recorded as wife of Shri Lal Singh, but subsequently her name alongwith the names of all the respondents, in connivance with the Secretary, Gram Panchayat, Dhaun Kothi and Dhar Tatoh, were entered in the register and Smt. Santosh Devi was shown as widow of Tikhu. It is further averred that names of the respondents were shown in the register, as sons and daughters of Tikhu, and the name of the complainant was erased. As per the complainant, the accused persons, in connivance with Panchayat Officials, committed offences punishable under Sections 420, 468, 471 and 120B IPC. The complaint, so moved by the complainant, was forwarded to SHO, Police Station Barmana, whereupon FIR No. 111/2003, dated 18.06.2003, under Sections 420, 468, 471 and 120B IPC was registered and after completion of investigation, police filed cancellation report before the learned Trial Court. The complaint, so moved by the complainant, was forwarded to SHO, Police Station Barmana, whereupon FIR No. 111/2003, dated 18.06.2003, under Sections 420, 468, 471 and 120B IPC was registered and after completion of investigation, police filed cancellation report before the learned Trial Court. However, the complainant filed objections against the cancellation report and the learned Trial Court, vide its order dated 02.01.2008, treated the complaint as private complaint. The complainant led his preliminary evidence and after the closer of the same, on 10.09.2013 the learned Trial Court took cognizance against the accused persons for the commission of the offences punishable under Sections 420 and 466 of IPC and the respondents were summoned. The complainant, in pre-charge evidence, examined four PWs and tendered certain documents. After closer of the evidence, the learned Trial Court, vide its order dated 15.09.2016, discharged the respondents for the offences, as alleged by the complainant against them. The complainant preferred a revision petition against the said order before the learned Revision Court, but the same was dismissed and the order of the learned Trial Court was upheld, hence the present petition preferred by the complainant, wherein it is prayed that the petition be allowed and impugned orders dated 15.09.2016, passed by the learned Judicial Magistrate 1st Class, Bilaspur, and 02.04.2018, passed by learned Sessions Judge, Bilaspur, be quashed and set aside and the learned Judicial Magistrate 1st Class, Bilaspur, be directed to frame charges under Section 420, 468, 471 and 120B IPC and proceed accordingly. 3. Heard. The learned counsel for the petitioner has argued that the learned Trial Court has committed illegality in not framing the charge under Sections 420, 468, 471 and 120B IPC against the respondents, though clear cut case has been made out against them. He has further argued that the learned Revisional Court by upholding the judgment of the learned Trial Court has also committed gross illegality. On the other hand, the learned counsel for the respondents has argued that no case is made out against the respondents and the present litigation is just an abuse of the process of the Court. He has further argued that the present petition deserves dismissal with exemplary costs. 4. On the other hand, the learned counsel for the respondents has argued that no case is made out against the respondents and the present litigation is just an abuse of the process of the Court. He has further argued that the present petition deserves dismissal with exemplary costs. 4. In rebuttal, the learned counsel for the petitioner has argued that from the bare reading of the complaint prima facie case is made out against the respondents, so the impugned orders be quashed and set aside and the learned Trial Court be directed to frame charge against the respondents under Sections 420, 468, 471 and 120B IPC. 5. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 6. The petitioner, under Section 202 Cr.P.C., examined four witnesses, including himself. The complainant (petitioner) reiterated the contents of the complaint. CW-2, Shri Tulsi Ram, stated that the complaint is son of Tikhu Ram and Durgi Devi and when Tikhu Ram died, mutation No. 414, dated 29.05.1982, was rightly attested. He has further deposed that neither Santosh Devi married Tikhu Ram, nor they resided together. As per this witness, the father name of Lata Kumari, Saroj Kumari and Pushpa Devi is not known to any one. This witness, in his cross-examination, has deposed that in a civil case, titled Sukh Dev vs. Lata, Sukh Dev gave statement on 10.06.2004, which is correct. He admitted that a case has been initiated against him and Sukh Dev for attestation of mutation and they got arrested. 7. CW-3, Shri Anil Sharma, Record Keeper, brought record pertaining to Civil Suit No. 72/1 of 2005/02, titled Lata Kumari vs. Sukh Dev @ Devi Ram @ Dev Raj, decided on 03.03.2014. As per this witness, in that case, record of rights for the year 1996-97, Ex. PA, had been brought on record and he proved copy whereof as Ex. PW-3/A. This witness has also proved the certified copy of register, Ex. PC and certified copy of judgment and decree, Ex. PW-3/M. CW-4, Godawari Devi, Panchayat Secretary, produced family register and stated that the name of husband of Smt. Santosh was written as Lal Singh and after cutting it was written as Tikhu Ram. 8. After meticulously scrutinizing the evidence, it is emanating clearly from the panchayat record that the name of the husband of Smt. Godawari Devi is Shri Tikhu Ram. 8. After meticulously scrutinizing the evidence, it is emanating clearly from the panchayat record that the name of the husband of Smt. Godawari Devi is Shri Tikhu Ram. This Court has examined the judgment dated 03.03.2014, rendered in Civil Suit No. 71/1 of 2005/02, decided by learned Civil Judge (Judicial Division), Bilaspur. From the record it is clear that Shri Lal Singh and Shri Tikhu Ram were real brothers. The first wife of Shri Lal Singh, Smt. Dropti Devi, while appearing as PW-2 in the civil suit (supra) stated that Smt. Santosh Devi got married to Tikhu after the death of Lal Singh on 05.11.1958. However, she was not aware as what customs and ceremonies were performed to conduct the marriage and where the marriage took place. In the civil suit (supra) PW-6, Shri Munshi Ram, who got his two sons married to the daughters of Santoshi Devi, was not aware that whether Santoshi Devi was married to Tikhu Ram. 9. The above statements clearly show that there was something with respect to marriage of Tikhu Ram and Santoshi Devi. The birth of the daughters of Santoshi Devi and her continuously living with Tikhu Ram and the statement of earlier wife of Tikhu Ram lucidly shows that there is a presumption with regard to the marriage because of long cohabitation and birth of daughters. Though, Tikhu Ram was also father of the complainant, but it is clear that deceased Tikhu Ram and Santoshi Devi resided together for long time till the death of Tikhu Ram and four daughters were born to them. So, the presumption under Section 114 of the Indian Evidence Act arises in favour of the respondents, as Tikhu Ram and Santoshi Devi resided together as husband and wife for long time and the presumption that they married and that is why daughters were born is always there. The daughters of Tikhu Ram (respondents herein) will always remain daughters of Tikhu Ram and Santoshi Devi. There is nothing to controvert the fact that Tikhu Ram was not having any access to Santoshi Devi. So, the presumption, as drawn by the learned Trial Court, while framing the charge against the respondents, is well reasoned, as per the law and the same needs no interference. 10. The learned counsel for the petitioner has placed reliance on the following judicial pronouncements: 1. So, the presumption, as drawn by the learned Trial Court, while framing the charge against the respondents, is well reasoned, as per the law and the same needs no interference. 10. The learned counsel for the petitioner has placed reliance on the following judicial pronouncements: 1. Soma Chakravarty vs. State through CBI, (2007) 5 SCC 403 ; & 2. State of Bihar vs. Ramesh Singh, AIR 1977 Supreme Court 2018. 11. The Hon’ble Supreme Court in Soma Chakravarty vs. Sate through CBI, (2007) 5 SCC 403 , has held as under vide para 10: “10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.” However, the judgment (supra) is not applicable to the facts of the present case, as the there is nothing on record to proceed against the respondents under Sections 420, 468, 471 and 120B IPC. The petitioner (complainant) has failed to connect the respondents, by leading preliminary evidence before the learned Trial Court, that there exists a prima facie case against the respondents. So, the judgment (supra) is of no help to the petitioner. 12. The petitioner has also placed reliance on State of Bihar vs. Ramesh Singh, AIR 1977 Supreme Court 2018, wherein the Hon’ble Supreme Court vide paras 5, 6 and 7 has held as under: “5. So, the judgment (supra) is of no help to the petitioner. 12. The petitioner has also placed reliance on State of Bihar vs. Ramesh Singh, AIR 1977 Supreme Court 2018, wherein the Hon’ble Supreme Court vide paras 5, 6 and 7 has held as under: “5. In Nirmaljit Singh Hoon v. The State of West Bengal, (1973) 2 SCR 66 : ( AIR 1972 SC 2639 ) Shelat J., delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose, (1964) 1 SCR 639 : ( AIR 1963 SC 1430 ) where this Court was held to have liad down with reference to the similar provisions contained in Ss. 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case." 6. The fact that Tara Devi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or whether she committed suicide by herself setting fire to it. This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge copious reference to Modi's Medical Jurisprudence and judgment the post-mortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the trial Judge. This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge copious reference to Modi's Medical Jurisprudence and judgment the post-mortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the trial Judge. According to the prosecution case the respondent was in love with one of his girl students, named, Nupur Ghosh and this led to the serious differences between the respondent and his wife, the unfortunate Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the alleged love-affair of the respondent led Tara Devi to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any ocular testimony of an eye-witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. But at this stage the Additional Sessions Judge was not right when he said - "it appears that there is neither direct evidence nor any circumstantial evidence to connect the accused with the alleged murder of Tara Devi". He also ought not to have referred to the varying opinions of the Circle Inspector and the Superintendent of Police, Motihari as to the submission of charge-sheet against the respondent. 7. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. 7. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of Chandreshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly that at the time of the said assault the respondent had given her a threat to kill her. The High Court felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added. "There may be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused". The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of Section 227 and 228 of the Code.” Again, the judgment (supra) is of no help to the petitioner, as the material available before the learned Trial Court was intrinsically untrustworthy, which was not rightly be made basis for proceeding against the respondents. So, the judgment (supra) is not applicable to the facts of the present case. 13. In view of what has been discussed hereinabove, the impugned order passed by the learned Trial Court and upheld by the Revisional Court is not required to be interfered with, as the same has been passed after appreciating the material, which has come on record, and also applying the law correctly to the facts of the case. Therefore, the petition sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands disposed of.