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2020 DIGILAW 1369 (ALL)

Naved @ Kadeer v. State of U. P.

2020-11-25

DINESH PATHAK

body2020
JUDGMENT : DINESH PATHAK, J. 1. Heard Sri. Rajesh Kumar Mishra, learned counsel for the revisionist and learned A.G.A. for the State. 2. In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, this Court proceeded to finally decide this matter at the admission stage, without putting notice to respondent no. 2. 3. Instant revision has been preferred with a prayer to set aside judgment and order dated 05.11.2020 passed by Additional Sessions Judge/Fast Track Court (Offence Against Women), District-Rampur in Sessions Trial No. 04 of 2020 arising out of Case Crime No. 374 of 2019, under Section 328, 120 B IPC, Police Station-Kemari, District-Rampur, by which discharge application u/s 227 Cr.P.C. filed by the revisionist, had been rejected. 4. Sageer Ahmad has filed an FIR alleging therein that on 20.08.2019 his son Md. Tehsin Raza, aged about 28 years, was found lying unconscious in his room and froth was oozing from his mouth. He had been rescued by two other sons of the informant to the hospital where doctors diagnosed brain haemorrhage like condition and operated his brain. After operation his memory became week. Subsequently, he had been shifted to Sir Ganga Ram Hospital but no improvement could not seen in his condition and he came into vegetative state. He was not in a position to speak any word and move his limbs. Further allegation is that his daughter-in-law Nida Parween, wife of Md. Tensin Raza (victim), was having illicit relation with some other man namely, Naved alias Kadeer (revisionist herein), with whom she used to talk on mobile no. 9410820370 and after going through whatsapp chat history of the two, their relationship had emerged. Because of their relationship, his daughter-in-law in collusion with Naved alias Kadeer (revisionist) had given poison to his son. 5. Present revisionist had moved a discharge application under Section 227 Cr.P.C. inter-alia on the grounds that there is no evidence available on record to prove that son of informant was poisoned. 6. After considering the material available on record, trial court has rejected the discharge application of present revisionist with an observation that from perusal of statement of prosecution u/s 161 Cr.P.C. and statement of Dr. Monit Agrawal, it cannot be ruled out that patient (victim) was not poisoned. 7. 6. After considering the material available on record, trial court has rejected the discharge application of present revisionist with an observation that from perusal of statement of prosecution u/s 161 Cr.P.C. and statement of Dr. Monit Agrawal, it cannot be ruled out that patient (victim) was not poisoned. 7. It is submitted by learned counsel for the revisionist that with respect to alleged incident dated 20.08.2019, an FIR was lodged on 19.10.2019 at a very belated stage and there was no justification for such delay. It is further submitted that there is no eye witness to the incident as alleged in the FIR. From hospital report it is clear that informant's son was treated for hydrocephalus and there is no report with respect to his poisoning. Learned counsel for the revisionist has shown the part of case diary, at Serial no. 4, (Annexure-4) wherein it has been stated that according to record of hospital, Md. Tehsin Raza (victim) was brought by his brother Wasim on 20.08.2019 at about 6.05 A.M. in unconscious condition but subsequently at about 8.10 A.M. they were absconded from the hospital. It is mentioned in the case diary that attendant of the patient had stated that patient, Md. Tehsin Raza has taken medicine for headache on advice of a private doctor. Learned counsel for the revisionist has also drawn attention of this Court towards statement of Dr. Satnam Singh Chhabra and Dr. Ansul Gupta, who have stated that they have treated the patient Md. Tehsin Raza, who was suffering from hydrocephalus and patient was earlier operated at Sri. Sai Hospital. He was unable to move, eat and drink, therefore, he was kept in I.C.U. and after treatment he had been discharged. It is further stated that there was no sign of poisoning to the patient. Learned counsel for the revisionist has also drew attention of Court towards statement of Dr. Monit Agrawal, Neuro Surgeon, Sai Hospital, who had said that during medical examination he had not found any poison but some of the poisons are in such a nature which cannot be detected in medical report. Submission of learned counsel for the revisionist is that there is no case of poisoning and statutory ingredients as required for commission of crime u/s 328 IPC are lacking in the present matter, inasmuch as, there is no sign of poison which is clearly evident from statements of Dr. Submission of learned counsel for the revisionist is that there is no case of poisoning and statutory ingredients as required for commission of crime u/s 328 IPC are lacking in the present matter, inasmuch as, there is no sign of poison which is clearly evident from statements of Dr. Satnam Singh Chhadha and Dr. Ansul Gupta of Sir Ganga Ram Hospital. Apart that, Serial No. 4 of case diary (Annexure-4) reveals that Md. Tehsin Raza was medicated for headache and not for the poison. 8. Per contra, learned A.G.A. has submitted that FIR was fully corroborated by statement of informant u/s 161 Cr.P.C. Apart from that, Dr. Monit Agrawal of Sri. Sai Hospital has clearly stated that some of the poisons could not be detected in medical report, therefore, poisoning of victim (son of informant) cannot be ruled out. It is further submitted that the order passed by the Court below is legal and there is no infirmity or perversity in the aforesaid order, which has been passed after considering the evidence available on record. No case is made out for discharge of the revisionist, who has to face the trial, inasmuch as, in the facts and circumstances of the present case, his complicity in commission of crime can, prima-facie, be inferred and the offence is made out against him. 9. I have considered the rival submissions made by learned counsel for the parties and perused the record on board. 10. FIR version is clearly worded that son of informant had been poisoned by his wife who was having illicit relationship with Kadeer (revisionist). Version of FIR is fully corroborated by statement of informant u/s 161 Cr.P.C. There is no inconsistency or contradiction between the statement of informant and FIR version. 11. Prima-facie, I do not find any force in the submission made by learned counsel for the revisionist qua non poisoning of victim, inasmuch as, statement of Dr. Monit Agrawal, Neuro Surgeon of Sri. Sai Hospital has clearly stated that some of the poisons are of such nature which could not be detected in medical report, therefore, possibility of poisoning to the victim, cannot be ruled out at this stage, which is a matter of investigation and the motive could be inferred from the whatsapp chat history of the two. 12. Scope of deciding discharge application under Section 227 Cr.P.C. is limited. 12. Scope of deciding discharge application under Section 227 Cr.P.C. is limited. Prima-facie, satisfaction of the trial court is sufficient to frame the charges and the purpose of making out the sufficient ground is only for putting the accused to trial not to hold him guilty. From perusal of the impugned order it reveals that trial court has exercised its jurisdiction very sparingly and consciously in deciding the discharge application and has considered and discussed all the relevant material which was available on record. 13. Scope of applicability of the provisions as embodied under Sections 227 and 228 Cr.P.C. has been discussed in detail by Hon'ble Supreme Court in the case of Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368 and expounded the seven principles in explaining the scope of applicability of Sections 227 and 228 Cr.P.C. in paragraph 21 of the judgment, which is reproduced herein-below: “21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the 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 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 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. (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 therefrom taken at their face value discloses 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.” 14. In a recent judgment in the case of M.E. Shivalingamurthy vs. Central Bureau of Investigation, (2020) 2 SCC 768 , Hon'ble Supreme Court has considered the judgment of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 and reproduced the principle laid down in aforesaid judgment. Relevant paragraphs 17, 18, 28, 29, 30 and 31 are being quoted-below: “17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz. P. Vijayan v. State of Kerala and Another (supra) and discern the following principles: 17.1 If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused. 17.2 The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution. 17.2 The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution. 17.3 The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court. 17.4 If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, “cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial”. 17.5 It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6 The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons. 17.7 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. 17.8 There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.” “18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.P.C. The expression, “the record of the case”, used in Section 227 of the Cr.P.C. is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police.” 28. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police.” 28. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.P.C. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused.” 29. It is not open to the accused to rely on material by way of defence and persuade the court to discharge him. 30. However, what is the meaning of the expression “materials on the basis of which grave suspicion is aroused in the mind of the courts” which is not explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage? 31. In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him.” 15. In another recent judgment passed by Three Judges' Bench in the case of Bhawna Bai vs. Ghanshyam and Others, (2020) 2 SCC 217 , Hon'ble Supreme Court has considered the decision in the case of Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460 wherein scope of Sections 227 and 228 Cr.P.C. has been discussed. Relevant paragraph 15 of Bhawan Bai's case (supra) is being quoted-below: “15. Considering the scope of Sections 227 and 228 Crl. Relevant paragraph 15 of Bhawan Bai's case (supra) is being quoted-below: “15. Considering the scope of Sections 227 and 228 Crl. P.C. in Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460 , the Supreme Court held in paragraphs 17 and 19 as under:- “17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima-facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. 19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39 : “4. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39 : “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing’, as enjoined by Section 227. If, on the other hand “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which .......(b) is exclusively triable by the court, he shall frame in writing a charge against the accused” as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima-facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 16. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 16. Provisions of discharge and framing of charges comes within Chapter XVIII of Cr.P.C. which is captioned as “Trial before Court of Sessions.” Aforesaid chapter starts from Section 225, which denotes that in every trial the prosecution shall be conducted by the Public Prosecutor before Court of Sessions. Under Section 226 Cr.P.C. duty is entrusted upon the Prosecutor to open the case and he has to describe the charges against the accused, and in support of said charges, he has to state the evidences which he is going to produce to prove the guilt of accused. Thereafter, initial duty of the Court starts to consider the documents submitted with the record and to hear the submission of accused and prosecution under Section 227 Cr.P.C. to ascertain the alleged complicity of accused in the commission of crime. After considering the documents and submissions, with his judicial mind, in case, he did not find any ground for initiating the proceedings against the accused, he is empowered to discharge him with the reasonings. In considering discharge of the accused, Court is not supposed to discuss the case under the proposition that the case is beyond reasonable doubt. Strict standard of proof is not required at this stage. Only prima-facie case against accused is required to be seen. While evaluating the materials, the Court has to see as to whether sufficient ground for proceeding against the accused, exists or not. Even in framing the charges, Court is not required to discuss the detail reasons as to why charge has been framed. After perusal of the record and hearing the parties, if the Court is of the opinion that there is sufficient ground for presuming that accused has committed an offence exclusively triable by the Court of Sessions, he shall frame the charges against the accused for such offence. At the stage of discharge, accused is not permitted to adduce any fresh evidence, rather he has to prove his innocence only on the basis of evidence which was produced by the prosecution at the initial stage. At the stage of discharge, accused is not permitted to adduce any fresh evidence, rather he has to prove his innocence only on the basis of evidence which was produced by the prosecution at the initial stage. Availability of material entertaining strong suspicion is sufficient for the prima-facie conclusion qua complicity of the accused in commission of crime. 17. In view of the propositions laid down by Hon'ble Supreme Court as discussed in the preceding paragraphs, alleged complicity of present revisionist in the commission of crime, prima-facie, can easily be inferred in the present matter. After considering the documentary evidence, as available on the board, in totality of facts and circumstances of the present case, it is evident that prima-facie case is made out for framing charges against present revisionist. Sufficient material is available on record to prima-facie infer the complicity of present revisionist in commission of crime. As per FIR version, victim was lying unconscious in his room and froth was oozing from his mouth. Therefore, seeing the condition of victim, in the light of statement made by Dr. Monia Agrawal, possibility of victim's poisoning could be inferred. Mobile number and whatsapp chat history, as mentioned in FIR, also supports the accusation made by prosecution. 18. Accordingly, present revision is dismissed. Judgment and order dated 05.11.2020 passed by Additional Sessions Judge/Fast Track Court (Offence Against Women), District-Rampur in Sessions Trial No. 04 of 2020 is hereby affirmed and maintained. 19. Let a copy of this order be sent to the concerned Court below forthwith for information and follow up action, if required.