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2021 DIGILAW 281 (GAU)

Nandan Das v. State of Assam

2021-03-17

MIR ALFAZ ALI

body2021
JUDGMENT : Mir Alfaz Ali, J. 1. Learned senior counsel Mr. A.M. Bora, assisted by Ms. P. Chakraborry, Advocate appearing for the petitioners and the learned Additional Public Prosecutor, Assam, Ms. S. Jahan as well as Mr. S.C. Keyal, learned counsel for the informant were heard. 2. By these two applications under Section 482 CrPC, the Extra Ordinary Inherent Jurisdiction of this Court is sought to be invoked for setting aside the order dated 13.03.2018 passed by the learned Sessions Judge, Karbi Anglong, Diphu, in Sessions Case No. 29/2018, whereby charges were framed against the petitioners. 3. An FIR was lodged with the Diphu Police Station on 11.07.2014 alleging, inter alia, that on 10.07.2014, when the deceased Sambhu Singh was attending classes in the Basic Training Centre, some people took him out from the classes and shot him to death. After killing the deceased Sambhu Singh, the miscreants had left the place. On the basis of the said FIR, Police registered Diphu P.S. Case No. 167/2014 under Section 302 IPC and on completion of investigation submitted charge-sheet against as many as 10 (ten) accused persons including the present petitioners. Based on the said charge-sheet, the learned Judicial Magistrate committed the case to the Court of Sessions and the learned Sessions Judge by the impugned order framed charges against the accused persons including the present petitioner Nandan Das and Suman Kumari Devi under Section 120(B) read with Section 302 IPC. Charges were also framed against some other accused under Section 302 IPC read with Section 27(3)/25(1-A) of the Arms Act. 4. Aggrieved by the order of framing charge the petitioners have approached this Court for setting aside the order and/or quashing the proceeding against them. 5. Learned senior counsel Mr. A.M. Bora submitted, that no material could be collected by the Investigating Agency against the present petitioners, inasmuch as, the witnesses examined under Section 161 CrPC have not implicated the present petitioners. However, learned trial Court framed charges against the petitioners on the sole basis of the confession of a co-accused. Mr. Bora further submits that the confession of the co-accused relied by the learned trial Court for framing the charge was, in fact, exculpatory so far the maker of the confession was concerned and therefore it was not a confession in the eye of law and as such inadmissible in evidence as confession. Further contention of Mr. Mr. Bora further submits that the confession of the co-accused relied by the learned trial Court for framing the charge was, in fact, exculpatory so far the maker of the confession was concerned and therefore it was not a confession in the eye of law and as such inadmissible in evidence as confession. Further contention of Mr. Bora was that even if it is assumed to be a confession of the co-accused, charge could not have been framed against the petitioners solely on the basis of the confession of a co-accused, in absence of any other evidence. Mr. Bora submits that there was absolutely no evidence and materials on record except, the so called confession of the co-accused relied by the learned trial Court for framing charge, and as such the impugned order framing charge against the petitioners warrants interference. To buttress his submission, Mr. Bora placed reliance on the following decisions: (i) Suresh Budharmal Kalani @ Pappu Kalani, (1998) 7 SCC 337 ; (ii) Dipakbhai Jagdishchandra Patel Vs. State of Gujrat, (2019) 16 SCC 547 ; and (iii) 1971 Criminal Law Journal 1232. 6. Learned Additional Public Prosecutor Ms. S. Jahan would submit, that for the purpose of framing charge a strong suspicion is sufficient and the Court is not required to examine the probative value of the evidence and materials brought on record nor the Court is required to come to a decision whether the evidence and materials brought on record would lead to conviction of the appellants. 7. Mr. S.C. Keyal, learned counsel representing the respondent-informant, placing reliance on a decision of the Supreme Court in Bhawna Bai Vs. Ghanashyam & Ors., (2020) 2 SCC 217 submitted, that at the time of framing charge only prima facie case is required to be seen and when the charge is framed by the trial Court on consideration of the materials on record and upon satisfaction that there was prima facie case justifying the faming of charge the High Court should not interfere with such order of framing charge. 8. Before adverting to the submission made by the learned counsel for the parties, it would be beneficial to reproduce the relevant provision under Section 227 and 228 of the CrPC, which deals with framing of charge. Section 227 reads as under: "227. 8. Before adverting to the submission made by the learned counsel for the parties, it would be beneficial to reproduce the relevant provision under Section 227 and 228 of the CrPC, which deals with framing of charge. Section 227 reads 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. Section 228 reads as under: 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, and thereupon the Chief Judicial 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." 9. Thus, the above provision envisages that the Court is required to consider the record of the case and the documents submitted therewith and to hear the parties at the time of consideration of the charge. If upon consideration of the evidence and materials brought on record and upon hearing the accused and the prosecution the Court or the Judge, considers that there is no sufficient ground for proceeding against the accused the Court shall discharge the accused. If after such consideration and hearing the Judge is of the opinion that there is ground for presuming that the accused has committed the offence charge shall be framed. Thus, framing of charge is a judicial exercise and the Judge is required to come to a decision, by applying judicial mind on the basis of the materials on record, whether or not to frame charge. 10. In the case of Union of India Vs. Thus, framing of charge is a judicial exercise and the Judge is required to come to a decision, by applying judicial mind on the basis of the materials on record, whether or not to frame charge. 10. In the case of Union of India Vs. Prafulla Kr. Samal, 1979 (3) SCC 4 , which was also taken note by the learned trial Court, the Hon'ble Supreme Court considered the scope of Section 227 CrPC and after adverting to various earlier decisions of the Apex Court summarized the following principles for framing of charge: "(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 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. (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 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 so 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." 11. In Sajjan Kumar Vs. 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." 11. In Sajjan Kumar Vs. CBI, reported in (2010) 9 SCC 638, the Supreme Court dealing with the scope of Section 227 and 228 CrPC with regard to consideration of charge, laid down the following principle in para 17.: "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. 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. 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." 12. In Chritresh Kumar Vs. State (NCT of Delhi), reported in : (2009) 16 SCC 605 , the Supreme Court observed that the word 'presume' means if on the basis on the materials on record Court could come to the conclusion that commission of offence is a probable consequence, a case for framing charge exist 13. Thus, at the stage of framing charge, the Court is required to form a presumptive opinion on the basis of the materials on record, whether there is prima facie case to proceed against the accused. While considering the records and documents placed before it, the Court cannot enter into a roving enquiry or scrutiny of the evidence and materials to ascertain the probative value of the documents and materials, nor the Court is required to evaluate the materials to ascertain, whether the materials and evidence available on record would lead to conviction. What the Court is required to see is whether the evidence and materials available in the record is sufficient to raise a presumptive opinion, that there is a prima facie case to proceed against the accused. What the Court is required to see is whether the evidence and materials available in the record is sufficient to raise a presumptive opinion, that there is a prima facie case to proceed against the accused. Therefore, while considering the charge, though, Court cannot enter into a roving enquiry as to the probative value of the evidence and materials available on record, at the same time Court also cannot afford to act as a post office or a mouth piece of the prosecution, to frame charge mechanically without applying mind. Rather, court has to apply its judicial mind to consider the broad probability of the case in order to draw a presumptive opinion as alluded hereinabove and the Court is also permitted to sift the evidence and materials on record for the limited purpose of ascertaining whether there is prima facie case to proceed against the accused or not 14. Keeping in view of the above principle, we may now consider the case in hand on the basis of the materials brought on record. 15. The learned Sessions Judge while framing the charge against the petitioners and the other co-accused, observed as under: "During investigation the investigating agency got confessional statement of the accused persons namely Kirim Teron @ Ram Teron, Oliver Engti, Kison Rongpi @ Atur Hanse, Nandan Das and Rongbong Phangso The case of the accused Kirim Teron @ Ram Teron has not been committed and the accused Rongbong Phangso is not facing trial as he already died. The confessional statement of the accused Kison Rongpi who is facing trial shows involvement of the accused person, namely, Nandan Das, Suman Kumari Devi, Oliver Ingti, Rongbong Phangso including himself. Confessional statement of accused Kirim Teron implicates none........................... ................................................................I find that there is ground for presuming that the accused persons, namely, Sri Nandan Das, Smti. Suman Kumari Devi, Sri Raju Tissu, Hemanta Teron and Kison Rongpi committed the offence under Section 120B IPC read with Section 302 IPC and the accused Oliver Engti committed the offence under Section 302 of the IPC/27(30 of the Arms Act and the accused Samson Taro committed the offence under Section 25(1-A) of the Arms Act. Accordingly charges are framed. The particulars of the charge framed is duly read over and explained to the accused person to which they pleaded not guilty and claimed to be tried. Issue summons to PWs." 16. Accordingly charges are framed. The particulars of the charge framed is duly read over and explained to the accused person to which they pleaded not guilty and claimed to be tried. Issue summons to PWs." 16. It is, therefore, evident that the charge was framed against the petitioners under Section 302 read with Section 120(B) IPC, solely on the basis of the confessional statement of Kison Rongpi. For better appreciation, let me reproduce the confessional statement of co-accused Kison Rongpi. "I was a member of KPLT. In the year 2012 I had surrendered. A person named Nandan Das instructed me to kill the teacher who was killed. On being asked by the wife of the teacher in front of Nandan Das, I refused to do the same. I said that the work will be done by taking help of others. I know a person named Oliver Engti and introduced him to Nandan Das. Later on Timung shot and killed the teacher. I did not go on the day when the person was killed as I went to Bokajan. Later on Timung gave me Rs. 10,000/- as I introduced him with Oliver. Previously I was in jail with Oliver." 17. Another purportedly actionable confessional statement was made by the co accused Rongbong Phangso implicating himself and some other co-accused, which is also reproduced below: "I was coming to Diphu to see football match on 10.06.14 at around 3 pm. Then Aptur Rongpi and Raijan Terong called me and asked me whether you will kill one Hindi teacher? At the beginning I refused but they pressed me hard and given me a pistol 9mm as I was ex-UPDS. After that we all boarded on Indigo (black) car and went to the PO. We were Raijan Terong, Aptur Rongpi, Holiwel and me. Aptur Rongpi got down in the field before reaching the PO. I along with Holiwel went near to the school building. Holiwel went inside and I awaited outside. Holiwel came back with the Hindi teacher who was not at all known to me and asked me to kill him. Then I killed him by the pistol in one shot. Then we fled away to Rongkhalang. Rijon terong then picked me up from the PO and stayed at Rongkhalang village. Next day Aptur Rongpi and Raijon Terang gave me a sum of Rs. 20,000/-." 18. Then I killed him by the pistol in one shot. Then we fled away to Rongkhalang. Rijon terong then picked me up from the PO and stayed at Rongkhalang village. Next day Aptur Rongpi and Raijon Terang gave me a sum of Rs. 20,000/-." 18. A bare perusal of the confessional statement of the alleged principal accused Rong Bong Phangso apparently does not implicate the petitioners. The confession of Kison Rongpi, which is the sole piece of evidence relied by the learned trial Court for framing charge against the petitioners would show, that the maker of the confession, Kison Rongpi did not make any averment in the so-called confessional statement inculpating himself. Therefore, so far the confessional statement of co-accused Kison Rongpi is concerned, it was more or less exculpatory. One must bear in mind, that mere admission of certain facts without admitted the guilt does not amount to confession. A statement of the accused recorded under Section 164 CrPC, wherein the accused does not inculpated himself, cannot be considered as confession in the eye of law. A confession being admission of guilt, unless the statement of an accused recorded under Section 164 CrPC is self inculpatory it cannot be considered as a confession in the eye of law and necessarily such statement not being confession, cannot also be translated into the evidence. Even if it is assumed for the sake of argument, that some admission of facts are there in the so-called confession, the same again cannot be used against the co-accused, inasmuch as, admission can be used only against the person who made the same or against his duly authorized agent. The Supreme Court in CBI Vs. V.C. Sukla, 1998 (3) SCC 410 observed that: "where a statement fall short of confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of a fundamental importance". 19. In Suresh Chandra Das Vs. State of Meghalaya (supra), a Single Bench of this Court took the view, that confession of the co-accused would not be a legal evidence whatsoever, warranting framing of charge. 19. In Suresh Chandra Das Vs. State of Meghalaya (supra), a Single Bench of this Court took the view, that confession of the co-accused would not be a legal evidence whatsoever, warranting framing of charge. The Court held in paragraph 9 as under: "The law is, therefore quite settled that although the confession of a co-accused can be taken into consideration and can be regarded as evidence, it cannot be treated substantive evidence. It can only be looked into so as to throw light or give assurance to other substantive and independent evidence. In other words, there must be substantive and independent evidence connecting the accused with the offence charged against him, and only thereafter the confession of a co-accused can be taken into consideration to throw light or to aid in the appreciation of such substantive evidence. Where the only evidence before learned magistrate was the confession of a co-accused there would in my opinion, be no legal evidence whatsoever warranting the framing of a charge." 20. The Apex Court in Suresh Bhadramal Kalani (supra) observed that confession of co-accused cannot be used for framing charge in absence of any other evidence to do so. The Apex Court in paragraph 7 of the judgment held as under: "7. So far as the confession of Jayawant Suryarao is concerned, the same (if voluntary and true) can undoubtedly be brought on record under Section 30 of the Evidence Act to use it also against Kalani but then the question is what would be its evidentiary value against the latter. The question was succinctly answered by this Court in Kashmira Singh V. State of Madhya Pradesh 1952 SCR 526 ) with the following words: "The proper way to approach a case of this kind is first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it sands even though if believed, it would be sufficient to sustain a conviction. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it sands even though if believed, it would be sufficient to sustain a conviction. In aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept." The view so expressed has been consistently followed by this Court. Judged in the light of the above principle the confession of Suryarao cannot called in aid to frame charges against Kalani in absence of any other evidence to do so." 21. In Dipak Bhai Jagadish Chandra Patel (supra) also the Apex Court while dealing with the question as to whether the confessional statement of the co-accused can be the basis of framing charge reiterated the view taken by the Apex Court in the case of Suresh Bhadramal Kalani and held in paragraph 52 of the judgment as under: "52. If the statement made by the appellant on 11.4.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani becomes applicable." 22. What is, therefore, discernible from the above authorities is that if there is no other material on record, charge cannot be framed solely on the basis of confessional statement of a co-accused. In the present case, as already indicated above, learned trial Court framed charges against the present petitioners solely on the basis of so called confessional statement made by the co-accused Kison Rongpi. As alluded hereinbefore, even though, at the time of consideration of charge Court cannot scrutinize the materials so as to ascertain the probative value of the evidence and materials on record, the Court certainly have the power and also a duty to sift the evidence and materials on record for the limited purpose of ascertaining whether there is sufficient ground for proceeding or taking a presumptive opinion that there is prima facie case to proceed against the accused. In order to undertake the aforesaid exercise, for coming to a conclusion whether there is prima facie case for framing charge, Court needs to see, whether the evidence and materials available in the record can be translated into evidence. If the materials available before the Court cannot be translated into evidence, such materials cannot be the basis of framing charge. Therefore, while framing charge the Court must apply its mind to the materials on record in order to see, whether the materials can be legally translated into evidence. Whether the confessional statement of the co-accused Kison Rongpi can be considered as a confession in the eye of law, would certainly need to be considered at the time of trial. Nevertheless, even if it is assumed for the sake of argument, to be a confession of a co-accuse, for the purpose of framing charge, the same cannot form the basis of framing charge in absence of any other evidence or materials on record in view of the ratio laid down by the Apex Court in Suresh Bhadramal Kalani (supra) and Dipak Bhai Jagadish Chandra Patel (supra). 23. In Pawan Bhai Vs. Ghanashyam and others relied by the learned counsel for the respondent-informant Mr. Keyal, the Apex Court reiterated the established principle, that at the time of framing charge only prima facie case is to be seen and it is not required to be seen at the stage of framing charge, whether the case has been proved beyond reasonable doubt or not. The Apex Court also held, that when the trial Judge after considering the materials on record formed an opinion, that there was sufficient ground for presuming that the accused has committed the offence, triable by the Court of Sessions, the Court can frame charge and while framing charge Court is not required to record detailed reason. The Apex Court also took note of the incriminating materials brought on record in the said case i.e. last seen together, recovery of body, conduct of the accused etc. Having taken into account all those materials on the basis of which the learned Sessions Judge framed the charge and the facts and circumstances of the said case, the Apex Court held that interference with the order of framing charge by the High Court was not proper. Having taken into account all those materials on the basis of which the learned Sessions Judge framed the charge and the facts and circumstances of the said case, the Apex Court held that interference with the order of framing charge by the High Court was not proper. On factual matrix, the present case is clearly distinguishable, inasmuch as, in Bhawna Bai (supra) the Supreme Court noticed that there were materials before the trial Court which could be translated into evidence at the time of trial. However, in the present case, as alluded hereinbefore, except the confessional statement of the co-accused, there was no other materials to frame charge Therefore, on factual matrix of the present case, the decision in Bhawanibhai is of no help to the prosecution. In view of what has been discussed hereinabove, this Court is of the view that in absence of any other materials on record which could be translated into evidence, even a strong suspicion could not arose on the basis of the confession of the co-accused, so as to enable the Court to frame charge. Since there was no other evidence and materials on record, except the so-called confession of the co-accused, the framing charge by the learned Sessions Judge, solely on the basis of confessional statement of the co-accused cannot be sustained in view of the ratio laid down by the Apex Court in Suresh Budharmal Kalani @ Pappu Kalani; (supra) and Dipakbhai Jagdishchandra Patel (supra). Accordingly, the impugned order dated 13.03.2018 framing charge against the petitioners Nandan Das and Suman Kumari Singh is set aside. 24. Both the criminal petitions stand allowed.