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2018 DIGILAW 901 (JK)

Parveen Singh v. Abdul Rashid

2018-11-22

SANJAY KUMAR GUPTA

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JUDGMENT : 1. No one has appeared on behalf of the parties. 2. The instant revision petition has been filed against the order of Principal Sessions Judge, Rajouri, dated 27.04.2012 by virtue of which he has discharged respondents Nos. 1 to 3 in file No. 60/Murder arising out of FIR No.62/2009 registered at Police Station, Budhal, for commission of offences under Sections 302/120-B/201/195-A RPC. Since this Court in exercise of jurisdiction under Revision can see the illegality or impropriety of any order passed by the Court below, so I am deciding the matter, accordingly on merits. 3. From the perusal of the record, it reveals that on 12.09.2009, a source report was received in Police Station, Budhal that the dead body of one Karnail Singh alias Rano was lying on a thoroughfare at Phalni in suspicious circumstances. The proceedings under section 174 Cr.P.C. were started to ascertain the cause of death of the deceased. On examination of the dead body, it was found that the deceased had multiple wounds on his head and other parts of the body and it was concluded that it is a case of murder. Accordingly, murder case under Section 302 RPC was registered and investigation started. During the investigation, nothing conclusive came to the fore and in the meantime, a writ petition bearing OWP No. 508/2010, came to be filed in this Court by the son of the deceased and this Court directed for constitution of Special Investigation Team (SIT) for conducting the investigation within 12 weeks. Thereafter, the SIT collected the evidence and came to the conclusion that the crime was committed by accused persons/respondent Nos.1 to 3 after hatching a conspiracy. The SIT during investigation concluded that deceased was working in Ration Depot of accused No.1 since 7 to 8 years, and he was having friendly relationship with accused No.1 and his relatives. It was also found that deceased was a flirt and was having illicit relationship with the mother of accused No.4-Nissar Ahmed. A day before the alleged occurrence accused, Saleem Khan, Sher Khan, Zamarud Khan, Nissar Ahmed and Tilak Raj were found talking about the illicit relationship of deceased with mother of respondent No.4 and were discussing about bringing an end to their relationship by killing the deceased. 4. A day before the alleged occurrence accused, Saleem Khan, Sher Khan, Zamarud Khan, Nissar Ahmed and Tilak Raj were found talking about the illicit relationship of deceased with mother of respondent No.4 and were discussing about bringing an end to their relationship by killing the deceased. 4. On 12.09.2009, at about 09/10 p.m., accused 2 and 7, Sher Khan and Tilak Raj were travelling in a Maruti Car towards Phalni and they stopped the car at some place and informed the accused No.5-Abdul Rashid that deceased had consumed liquor and it was high time to kill him. Thereafter, they left for Phalni and on the same day the dead body of the deceased was found on the road side. During investigation, accused No. 2-Sher Khan was found standing there and he was talking with accused No.5-Abdul Rashid in detail about the said incident. Accused No.5-Abdul Rashid, accused No.6-Barkat Hussain and accused No.7-Tilak Raj were arrested and they confessed the guilt, whereas the accused No. 4-Nissar Ahmed made a disclosure statement about the weapon of offence. The call details of Phone Numbers of accused Nos.1 and 6, Saleem Khan and Barkat Hussain were taken. Accordingly, offences under Sections 302/120-B/201/195-A RPC were established. 5. The Court below after hearing the arguments of learned counsel for the accused and PP for the State came to the conclusion that offence under Section 302 has been found proved against Saleem Khan, Sher Khan, Zamarud Khan and Nissar Ahmed, whereas the rest of the accused, i.e., Abdul Rashid, Barkat Hussain and Tilak Raj were not found involved in the case, so they were discharged, accordingly. 6. I have carefully gone through the grounds taken in the memo of the revision petition. 7. In order to appreciate the contentions of the parties, it may be noted that sections 268 and 269 of Cr.P.C relate to the trial of cases before the Courts of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. 7. In order to appreciate the contentions of the parties, it may be noted that sections 268 and 269 of Cr.P.C relate to the trial of cases before the Courts of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote section 268 and 269 of Cr.P.C as under:- “268 Discharges: 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 discharge the accused and record his reasons for so doing . 269 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 Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on 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.” 8. A conjoint reading of sections 268 and 269 of Cr.P.C., reveals that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused or transfer the case to CJM or Judicial Magistrate, if he is of the opinion that offence made out against the accused is triable by Magistrate. 9. In case Union of India Vs. 9. In case Union of India Vs. Prafulla Kumar Samal reported in 1979 (Cri) 609, in which after adverting to various decisions, the Hon’ble Supreme Court has enumerated the following principles:- “(1) 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. (2) Where the materials placed before this 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however 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. (4) That in exercising his jurisdiction under section 227 of the Code of the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office 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 appearing in the case and son on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 10. In Dilawar Balu Kurane V. State of Maharashtra (2002 SCC (Cri) 310), the above principles enunciated in Prafulla Kumar Samal’s case (Supra) were reiterated. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 10. In Dilawar Balu Kurane V. State of Maharashtra (2002 SCC (Cri) 310), the above principles enunciated in Prafulla Kumar Samal’s case (Supra) were reiterated. It was observed thus:- “While exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted powers 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 and 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. It was further held hat by and large 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 justified to discharge the accused. However, their Lordship has held that the Judge would not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 11. In a recent judgment in case Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 3 SCC (Cri) 1371, the Apex Court on considering its previous judgments 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 Cr.P.C. 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. (ii) Where the material 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. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the material 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 office 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 but 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 there from 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. “ 12. The relevant extract of the order of discharge dated 27.04.2012 passed by court below reads as under:- “7. “ 12. The relevant extract of the order of discharge dated 27.04.2012 passed by court below reads as under:- “7. In so far as accused No.5 to 7 are concerned, I suppose they have been roped in for nothing. It has been pointed out above that the investigating agency was annoyed with accused No.5, that he did not support their case during his statement under Section 164-A Cr. PC, so they made him an accused. It is true that some witnesses have stated in their depositions, that accused No.5 was also associated with accused No.1 to 4, but then, mere association with somebody without their being any supporting incriminating evidence, could not justify the framing of charges. Even if we assume that accused No.5 was associated with other accused directly or indirectly, that alone would not justify an inference that he was involved in the crime, when neither any motive is attributed to him nor any direct or indirect role. Simply expressing suspicion about his involvement without any logical basis, would not to my view make him an accused. About accused No.6, some witnesses have stated that he misled the people that deceased had died due to accident. Be that as it is, such an allegation can be leveled against any individual. No direct or indirect role is assigned to him, in so far as the actual crime is concerned. Even if it is so, he can't be said to be a particeps criminis with other accused. Accused No.7, as per the witnesses, was the driver of accused No.l, and that probably was his sin and he has been arrayed as an accused. If he was a driver, as the witnesses speak, he was supposed to be associated to accused No.1, but that would not mean that he was anyhow involved in the commission of the crime. The Investigating agency has demonstrated an unskillful approach in concluding the investigation of this case. The Investigating officer has in the charge-sheet stated, that accused No.7 and accused No.2declared before accused No.5, that the deceased has consumed excess alcohol, and so it was high time to kill him. Even if it was a fact, would anybody declare that he was going to commit a crime and thus create evidence for himself. This seems to be an unsuccessful attempt on the part of investigating agency to rope as many persons as it could. Even if it was a fact, would anybody declare that he was going to commit a crime and thus create evidence for himself. This seems to be an unsuccessful attempt on the part of investigating agency to rope as many persons as it could. Accepting the police version as it is as a whole, would not be a justifiable approach, and would surely lead to a serious miscarriage of justice, Accused No.5 and accused No. 7, as stated above, have been booked simply on the basis of their alleged association with accused I to 4, otherwise there seems to be plausible reason to array them accused in the case, because nothing serious or substantial is attributed to them. Mere association with the actual culprit without there being any intention motive, any substantial evidence of conspiracy, or evidence of instigation etc, would not make them the culprits, There should at least be a case of strong suspicion, and as the facts and evidence exist, there is no such case record of some Call details has also been placed on record to show that accused 6, and accused 1, were in touch with each other, One of the Cell No's, in respect of which Call details have been collected, appears to be in the name of son of accused 6, and about other Cell number, nothing is known. So if at all, Investigation team believed that Call details reveal the nexus, it could be between son of accused 6with some unknown person, but they have booked accused 6 patently for no reason. Even otherwise also, Call details without any other evidence may not reveal the culpability of a person. Accused No.6, is also stated to have spread rumours that deceased died in road accident also threatened the kin of deceased to desist from speaking against other accused. All this appears to be bereft of logic and reasoning. Mere whispers about the involvement of a person, may not suffice to put a person to trial unless some plausible theory is put forth, which I suppose is missing, in so far as accused 5 to 7 are concerned. So, suppose the facts alleged against accused No.5 to 7, are opposed to common sense and logic, and even if taken cumulatively, would not even remotely connect accused 5 to 7 with the commission of the crime. 8. So, suppose the facts alleged against accused No.5 to 7, are opposed to common sense and logic, and even if taken cumulatively, would not even remotely connect accused 5 to 7 with the commission of the crime. 8. Thus, after considering all the facts and evidence, I am of the view, that accused No.1 to 4 prima facie appear to be involved in commission of offences under Sections 302/120-B/201 RPC, and so they deserve to be charged and shall accordingly be charged. Accused No.5 to 7, on the face of the allegations and evidence, appear to be not connected with the crime attributed to them. There is, as such no reason, to put them to trial. They are accordingly discharged. Put upon 28.04.2012 for framing of charges. Accused 1 to 4 shall be sent to judicial lock up, and accused 5 to 7 shall be set free, if not required in any other case.” 13. While applying the above principles of laws, the facts /evidence collected during investigation by police, do not form grave suspicion that respondents were involved in commission of crime. The order of court below does not suffer from any infirmity of law and facts. Further accused/ respondents have been discharged on 27.4.2012, since more than six years ago. Main case would have been decided, as after issuing notices on 29.11.2012 in this petition, no serious effort has been made by the petitioner to contest the petition. 14. Hence this petition is dismissed.