Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 649 (JK)

Rajesh Kumar v. Union Territory of J&K

2021-12-10

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed by the petitioner for quashing the order dated 31.10.2018 (for short, the order impugned) passed by the learned Principal Sessions Judge, Samba (hereinafter to be referred as the trial court) in challan, titled, State vs. Anil Kumar and others by virtue of which charges under Sections 302, 457, 380, 120-B, 201 and 34 RPC have been framed against the petitioner along with other accused. 2. It is stated that the petitioner figures as an accused in challan titled “State vs. Anil Kumar and others” and charges as mentioned above were framed against the petitioner. The petitioner has impugned the order dated 31.10.2018 on the following grounds: (i) That the order impugned has been passed in a mechanical manner and without application of mind. (ii) That perusal of the challan makes it amply clear that prima facie no case under Section 302 RPC is made out against the petitioner as there was no conspiracy between the petitioner and rest of the accused to murder the deceased lady. (iii) That the petitioner was not even aware of the commission of the alleged offence by the rest of the accused persons and the petitioner came to know about commission of the alleged offence only when he was arrested by the Police. (iv) That only allegation against the petitioner is that he told other accused persons that the deceased lady was living all alone and was having cash and gold with her and they could easily commit theft in her house and that the house of the said lady was shown by the petitioner to the rest of the accused. 3. Response stands filed in which factual aspects of the case have been narrated and it has been stated that the disputed questions of facts can only be adjudicated by leading evidence during trial. 4. Mr. Jagpaal Singh, learned counsel appearing on behalf of the petitioner vehemently argued that there is no evidence that the petitioner was part of the conspiracy for committing the murder of the deceased lady, as such, learned trial court has wrongly framed the charges for commission of offence under Section 302 RPC against the petitioner. 5. Ms. Palvi Sharma, Advocate appearing vice Mr. 5. Ms. Palvi Sharma, Advocate appearing vice Mr. Ravinder Gupta, learned AAG vehemently argued that the learned trial court after examining the material available on record has come to the conclusion that there is sufficient material for framing the charges against the petitioner for commission of offences under Sections 302, 457, 380, 120-B, 201 and 34 RPC. 6. Heard and perused the record. 7. 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/post-mortem 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 as to 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. 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 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." 8. The same principle has been reiterated by Apex Court in Sanjay Kumar Rai vs State of Uttar Pardesh & Anr, 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) SCC4)]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.” 9. Now, this court would examine the contentions of the parties on the touchstone of law laid down by Apex Court in the judgments (supra). [Union of India v. Prafulla Kumar Samal (1979(3) SCC4)]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.” 9. Now, this court would examine the contentions of the parties on the touchstone of law laid down by Apex Court in the judgments (supra). From the perusal of the prosecution story, it transpires that on 05.02.2017 a report was lodged by one Govind Sethi that they were five brothers and one of his brothers was dead and the remaining three brothers were residing separately and their mother, wife of Late Labu Ram Sethi had been residing separately from him. His nephews, sons of Parshotam Lal i.e. the deceased brother had been living near the house of the deceased mother. She used to prepare food for herself and in the previous night in routine, after having food, she went to her room to sleep. On next day, she did not wake up and his nephews went to see her from other way of the room and found that her body was covered with a quilt and when the same was removed, she was found dead. Blood was oozing from her head and a wooden log was lying nearby. 10. On receipt of this information, FIR bearing No. 20/2017 was registered under Section 302 RPC and during the course of investigation, Investigating Officer examined the spot, prepared the seizure memos and also conducted investigation about the golden ornaments etc. During the investigation, it was found that mobile phone of the deceased lady was used on the SIM card of one Dharmo Devi who had given the same to her son Anil Kumar-accused No. 1 who was using the same. He sold the same to Sunny S/o Sham Lal which was recovered from him and seized. Anil Kumar was arrested and on his interrogation, the other accused were also arrested. Anil Kumar made a disclosure statement with regard to pipe and that was recovered at his instance. Joginder Kumar made a disclosure about a wooden stick and a golden chain, the same was recovered at his instance and on the disclosure of the Vikram, a pipe was recovered along with a pair of earrings and scooty without number. The motorcycle belonging to the petitioner bearing No. JK21B-4649 on which the accused had conducted the recce of the area and of the house of the deceased, was seized. The motorcycle belonging to the petitioner bearing No. JK21B-4649 on which the accused had conducted the recce of the area and of the house of the deceased, was seized. The statements of the witnesses under Section 164-A Cr. P. C. were also recorded and further it was found that deceased Kailasho Devi was a peon in Education Department and used to live alone in her house. She was having the cash worth Rs. 1,36,000/- including the amount of Rs. 20,000/- that was withdrawn by her from J&K Bank, Branch Samba on 03.02.2017. Accused No. 1, 2 and 3 were searching for potential target when accused No. 3 i.e Vikram Kumar told his friend i.e. petitioner herein that they wanted to commit some theft and for that purpose, they were in search of a potential wealthy target. All the four accused including petitioner assembled on 02.02.2017 in the afternoon and the petitioner told other accused that his name should not come and that there was an old lady who was residing all alone in his neighbourhood and was having money, gold and cash. Petitioner took the accused No. 1 and 3 on his motorcycle bearing No. JK02B-4649 for conducting the recce of the area who were seen by Sahil Sethi. All the four conspired together that they will kill the old lady and will commit the theft of her golden ornaments and hatched a plan. 11. In pursuance of the said plan, on 04.02.2017 accused No. 1, 2 and 3 went together on a scooty driven by accused No. 3 and parked the same near the house of deceased lady. Thereafter, they went through the pathway shown to them by the petitioner towards the nallah and they entered the compound of the deceased lady. The accused No. 2 i.e. Joginder Kumar took a log of wood and the other two accused took the iron pipes for killing purpose. Anil Kumar went inside the house through a window and thereafter, other two also entered and started committing the theft in the house. When accused No. 1 took the key in order to open the almirah and opened the same, Kailasho Devi woke up. Accused No. 1 attacked her with a blow of wooden log on her head and murdered her and her golden rings and cash worth Rs. 1,36,000/-, mobile phone were stolen by them. When accused No. 1 took the key in order to open the almirah and opened the same, Kailasho Devi woke up. Accused No. 1 attacked her with a blow of wooden log on her head and murdered her and her golden rings and cash worth Rs. 1,36,000/-, mobile phone were stolen by them. Accused No. 1 took the earrings along with accused No. 3 and distributed the same between the two. On the conclusion of the investigation, charge sheet was filed for commission of offence under Sections 302, 457, 380, 120-B, 201, 34 RPC against the petitioner and other accused. 12. A perusal of the record reveals that the petitioner told other accused about their potential target for commission of theft and even the recce was also conducted on the motorcycle of the petitioner and it was also established during the course of investigation that the other three accused trespassed into the house of the deceased in order to commit theft and while the theft was being committed by the accused other than the petitioner, the lady woke up and accused No. 1-Anil Kumar assaulted her on her head as a result of which she died. In fact, the prosecution story is in two parts. First part is the conspiracy with regard to the commission of theft and the other part is the commission of the murder during the commission of the offence of theft by the accused other than the petitioner. 13. So far as the first part is concerned, there is absolutely no doubt that the petitioner was part of conspiracy for the purpose of commission of theft as is evident from the statements of PW-Sahil Sethi, PW-Atma Ram Sethi and PW-Dev Raj Sethi. But so far as second part is concerned there is no evidence as such against the petitioner with regard to the participation in the commission of theft and the commission of the murder of the deceased during the course of the commission of theft. His role was only to the extent of informing the other accused persons about their potential target of theft and further showing them the house of the deceased lady. His role was only to the extent of informing the other accused persons about their potential target of theft and further showing them the house of the deceased lady. The learned trail court too has observed that there is no evidence that the petitioner has participated in the commission of offence of murder (para-21of the order impugned) but as he participated in the conspiracy to commit theft so his involvement cannot be ruled out at this stage. It requires to be noted that the direct evidence to the conspiracy is rarely available but in the instant case the prosecution has brought on record evidence with regard to conspiracy for commission of offence of theft only. There is nothing on record to show that at the time, when the petitioner informed the other accused about their potential target, it was also decided that she be killed. There is no evidence so far as participation of the petitioner in the commission of murder of the deceased lady while committing theft and also that he was privy to the conspiracy for killing the deceased. The accused has also been charged under section 34 RPC and once he was not present on spot at the time of commission of offence of murder, he could not have been charged under sections 302, 34 RPC. As he was privy to the conspiracy for commission of theft only in view of the statements of witnesses mentioned above, he was required to be charged for commission of offences under sections 380,457,120-B RPC only. 14. The learned trial court has framed the charges against the petitioner even for commission of offence under Section 302/34 RPC, when virtually there was no evidence against the petitioner for commission of the said offences. 15. In view of all what has been discussed above, order impugned to the extent of framing of charge against the petitioner under Sections 302/34 RPC, is set aside. The petitioner shall continue to face the trial for other offences before the trial Court. 16. Disposed of.