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2021 DIGILAW 580 (JK)

Arun Khajuria v. Union Territory of J&K

2021-11-06

RAJNESH OSWAL

body2021
JUDGMENT : Rajnesh Oswal, J. 1. The petitioner has impugned the order dated 16.01.2021 passed by the learned Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) in challan, titled, Union Territory of J&K vs. Sukhwinder Kumar and others by virtue of which the learned trial court has ordered the framing the charges for commission of offence under sections 302, 201 and 34 RPC against the petitioner. It is stated that the challan against the petitioner and one Binny Kumar was initially filed for commission of offences under sections 201 and 109 RPC and the main accused, namely, Sukhwinder Kumar, was charge sheeted for commission of offences under sections 302, 201 and 109 RPC. 2. During the course of arguments on charge/discharge, the learned trial court ordered for further investigation vide order dated 06.02.2020. Pursuant to the order of learned trial court for further investigation, the Senior Superintendent of Police constituted a Special Investigation Team (SIT) for conducting the further investigation. The SIT submitted the detailed report dated 09.01.2021 in which it was stated that the statement of eye witness, namely, Bahadur Singh was got recorded before the JMIC Bishnah and in his statement under section 164-A Cr.P.C., he categorically stated that he has no knowledge about the occurrence due to which the identification parade of the accused persons was not conducted. 3. After the report was filed by the SIT, the learned trial court vide order dated 16.01.2021 (supra) framed the charges against the petitioner for commission of offences under sections 302, 201 and 34 RPC. It is submitted that there was no material before the learned trial court that necessitated the framing of charge for commission of offences under sections 302, 201 and 34 RPC against the petitioner. 4. Mr. Prince Khanna, learned counsel for the petitioner has reiterated the submissions made in the petition. 5. On the contrary, Mr. Aseem Sawhney, learned AAG has vehemently submitted that the learned trial court can frame the charges on the basis of material collected during the investigation and is not bound by the opinion of the Investigating Officer. 6. Heard and perused the record. 7. In order to appreciate the controversy between the parties, it is necessary to have brief resume of the allegations against the petitioner. 6. Heard and perused the record. 7. In order to appreciate the controversy between the parties, it is necessary to have brief resume of the allegations against the petitioner. On 19.11.2017, an information was received that the dead body of a person, namely, Vinod Kumar S/o Nek Ram R/o Laswara is floating in a canal and on the basis of this information, inquest proceedings under section 174 Cr.P.C. were initiated by the Police and the post-mortem report was also obtained and from the report it transpired that the deceased died due to damage of the vital organs leading to Cardio Pulmonary Arrest due to Blunt Trauma on the head of the deceased and thereafter a formal FIR bearing No. 01/2019 stands registered on 04.01.2019 for commission of offence under section 302 RPC and investigation commenced. Further on 24.11.2017 one motorcycle bearing JK02BV 6801 belonging to the deceased was also found parked near bank of the canal at a place called Bhadur Khan. The deceased had left home on the said motor cycle and did not return. The said motorcycle was also seized. The statements of the persons acquainted with the circumstances were also recorded. In March, 2019 the said motorcycle was released in favour of the owner on supurdnama. During the course of investigation, the statement of the father of the deceased was also recorded. He stated that on 18.11.2017 his son left home on motorcycle at about 9.30 AM and later was seen with the accused Sukhvinder Kumar alias Kutto S/o Gharu Ram R/o Smailpur, Bari Brahmana. His son did not return home and on the second day, his dead body was found in a canal. He further stated that few days before the death, his son told him that accused Sukhvinder Kumar owed Rs. 30,000/- to him, which he was not returning and Sukhvinder Kumar was absconding from his home. Therefore, his father suspected that perhaps Sukhvinder Kumar had killed his son. On the basis of this statement, on 25.07.2019 the accused Sukhvinder Kumar was arrested. In his disclosure statement, he revealed that the deceased was demanding Rs. 30,000/- from him as he had taken 10 grams Heroin from the deceased to sell and out of 10 grams, 2 grams he had already consumed but the deceased was demanding full payment of Rs. 30,000/- from him. In his disclosure statement, he revealed that the deceased was demanding Rs. 30,000/- from him as he had taken 10 grams Heroin from the deceased to sell and out of 10 grams, 2 grams he had already consumed but the deceased was demanding full payment of Rs. 30,000/- from him. Further, on 18.11.2017 both took Heroin at Sarore Samba and thereafter at Choohachak near Shamshan Ghat, he inflicted injuries on the head of deceased with screw driver and killed him. After killing, he contacted other two accused, namely, Arun Kumar, petitioner herein and Binny Kumar S/o. Kali Dass R/o Fatehpur on phone and then in a Van bearing No. JK02 BV 9428, the dead body was carried and thrown in the canal. As per the charge sheet, all the three accused committed the offence of destruction of evidence in connivance with each other and finally the accused Sukhvinder Kumar was charge sheeted for commission of offence under sections 302, 201 RPC while as accused Nos. 2 and 3 were charge sheeted for offences under sections 201 and 109 RPC. 8. In the charge sheet filed earlier only allegation against the petitioner was that all the three accused used the Van for the purpose of disposal of the dead body and further PW Bahadur Singh whose statement was recorded under section 161 Cr.P.C. had categorically stated that he had seen all the three accused in the Van carrying the dead body in it. Further when the matter was further investigated by the SIT, his statement was recorded under section 164-A Cr.P.C. in which he categorically denied to have any knowledge about the occurrence and as a result of which even the identification parade was not conducted. In the report filed after further investigation, certain other observations were also made, those are not relevant for the purpose of consideration of the present controversy qua the petitioner. In the charge sheet that was initially filed, the only allegation against the petitioner was that with regard to the carrying of the dead body in a Van and that too pursuant to the statement of PW Bahadur Singh. After the matter was further investigated even the said evidence is wiped out by the denial of PW Bahadur Singh. In the charge sheet that was initially filed, the only allegation against the petitioner was that with regard to the carrying of the dead body in a Van and that too pursuant to the statement of PW Bahadur Singh. After the matter was further investigated even the said evidence is wiped out by the denial of PW Bahadur Singh. Further the perusal of the order passed by the learned trial court reveals that the learned trial court has passed the order on the basis of assumption that as the deceased was a healthy and was an able bodied person so he could not have been over powered by accused singly and further that the other person must have been the petitioner only. It is on the basis of these assumptions only that the trial court framed the charges for offences under sections 302, 201 and 34 RPC against the petitioner. 9. It is settled law that while considering the issue of framing charge/discharge of the accused, the trial court has to form opinion on the basis of material on record by the Investigating Officer as to whether there is sufficient ground for presuming that the accused has committed an offence or not. The material on record would constitute the statement of witnesses, injury report/postmortem report along with other material relied upon by the prosecution. At this stage, the trial court cannot indulge in critical evaluation of the evidence, as can be done at the time of final appreciation of evidence after the conclusion of trial but the charge can be framed against the accused even when there is strong suspicion about the commission of offence by the accused. At the same time the trial court is not expected to merely act as post office and frame the charge just because challan for the commission of a particular offence has been filed against the accused. The trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfils the ingredients of offence or not. If the ingredients are lacking then the Court has no option but to discharge. The Hon'ble Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, reported in (2019) 16 SCC 547 has held as under:- "23. If the ingredients are lacking then the Court has no option but to discharge. The Hon'ble Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, reported in (2019) 16 SCC 547 has held as under:- "23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence." 10. The same principle has been reiterated by the Apex Court in Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr. reported in 2021 SCC Online SC 367, in which it has been held as under:- “17. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. Union of India v. Prafulla Kumar Samal ( 1979 (3) SCC 4 )]. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. Union of India v. Prafulla Kumar Samal ( 1979 (3) SCC 4 )]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.” 11. No doubt the trial court can sift the evidence for the purpose to find out as to whether there is sufficient ground for presuming that the accused has committed an offence or not but cannot frame the charges on the basis of imaginations, without there being any material on record to justify the said approach of the trial court. There is nothing on record to demonstrate that the petitioner participated in the commission of offence of murder and without there being any iota of evidence, the learned trial court has charged the petitioner for commission of offence under section 302, as such, I am of the considered opinion that the order dated 16.01.2021 so far as pertains to framing of charge against the petitioner for commission of offence under section 302/34 RPC is concerned, the same is not sustainable in the eyes of law as such, the order impugned is set aside to that extent. The trial court is directed to frame charges against the petitioner for commission of offence under sections 201 and 109 RPC only and thereafter proceed with the trial in accordance with law. 12. Disposed of.