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2022 DIGILAW 66 (JK)

Vinay Kumar v. State of J&K

2022-02-24

SANJAY DHAR

body2022
JUDGMENT : Sanjay Dhar, J. The petitioner has challenged order dated 16.01.2021 passed by the learned Additional Sessions Judge, Jammu (hereinafter referred to as the “Trial Court”), whereby the charge for offences under Sections 302, 201 and 34 RPC has been framed against him. 2. The background facts leading to filing of the instant petition that emerge from the perusal of the Trial Court record are that a charge-sheet was laid by the Police Station, Bishnah, alleging commission of offences under Sections 302, 109 and 201 RPC by co-accused-Sukhvinder Kumar and commission of offences under Sections 201 and 109 RPC against the co-accused-Arun Khajuria and the petitioner herein. 3. As per the charge-sheet, on 19.11.2017, police recovered dead body of the deceased-Vinod Kumar in suspicious circumstances. Accordingly inquest proceedings under Section 174 of the J&K Cr.P.C were set into motion, during which, statements of the persons acquainted with the circumstances of the case in terms of Section 175 Cr.P.C were recorded and the dead body was subjected to post-mortem. After receipt of post-mortem report, it was found that the deceased had died due to damage of vital organs, leading to Cardio Pulmonary arrest due to blunt trauma to head. Accordingly, FIR bearing No. 01/2019 for offence under Section 302 RPC was registered and investigation was set into motion. 4. During investigation of the case, statements of witnesses under Sections 161 Cr.P.C and 164-A Cr.P.C were recorded and it was found that accused-Sukhvinder Kumar owed a sum of Rs. 30,000/- to the deceased. The investigation revealed that on 18.07.2017, the deceased left his home at about 9.30 A.M. on his motorcycle and he was last seen with accused-Sukhvinder Kumar. On 25.07.2019, the accused-Sukhvinder Kumar was taken into custody and during interrogation, he admitted that he owed Rs. 30,000/- to the deceased, as he had purchased 10 grams of heroin from him, out of which 02 grams of heroin were consumed by the deceased. He further narrated before the police that he assaulted the deceased with a screw driver, which resulted in his death, whereafter, he called the other two accused, i.e., Arun Khajuria and Binni Kumar (petitioner herein), who helped him in carrying the dead body of the deceased in van bearing Registration No. JK02BV-9428 for its disposal. The weapon of offence screw driver was recovered on the basis of disclosure statement made by the accused-Sukhvinder Kumar. The weapon of offence screw driver was recovered on the basis of disclosure statement made by the accused-Sukhvinder Kumar. After investigation of the case, police found that offences under Sections 302, 109 and 201 RPC are found established against the accused- Sukhvinder Kumar, whereas against two other accused, only offences under Sections 201 and 109 RPC were found established. 5. At the time of considering the question of framing of charge, the learned Trial Court vide its order dated 06.02.2020, instead of determining as to whether or not the charges are made out against the accused, directed the investigating agency to conduct further investigation in the case after constituting a Special Investigating Team (SIT). It was directed by the learned Trial Court that the investigating agency shall conduct the test identification parade of the accused and collect CDRs of the cell phones of the accused. The further investigation was to be conducted within a period of one month. 6. Pursuant to the directions of the learned Trial Court, the investigating agency conducted further investigation of the case, during which statement under Section 164 of Cr. P.C. of PW-Bahadur Singh was recorded. The said witness in his earlier statement recorded under Section 161 of Cr. P.C. had deposed about the presence of two persons along with main accused in the Van in which dead body of the deceased was being carried. Besides this, as per the directions of the learned Trial Court, the investigating agency also sought CDR data pertaining to mobile cell numbers of the petitioner-Binny Kumar and the co-accused-Arun Khajuria, but they could not succeed in procuring it because by that time, the concerned service providers had already deleted the data. 7. After filing of the supplementary investigation report, the matter again landed before the learned Trial Court for determining the question of framing of charge. The learned Trial Court has vide the impugned order, directed the framing of charges for offences under Sections 302, 201 and 34 RPC against all the three accused. It is this order, which is under challenge in the instant petition. 8. I have heard learned counsel for the parties and perused the record including the record of the learned Trial Court. 9. It is this order, which is under challenge in the instant petition. 8. I have heard learned counsel for the parties and perused the record including the record of the learned Trial Court. 9. Learned counsel appearing for the petitioner has submitted that there is not even an iota of evidence against the petitioner, that would even remotely connect him to the commission of murder of the deceased. He has contended that the investigating agency had rightly after thoroughly investigating the case, formed an opinion that offence under Section 302 RPC is not made out against the petitioner. Learned counsel has submitted that in another petition filed by co-accused-Arun Khajuria bearing CRM(M) No. 70/2021, a Co-ordinate Bench of this Court has vide its judgment and order dated 06.12.2021, quashed the impugned order passed by the learned Trial Court, so far as the same pertains to framing of charge for offence under Sections 302 and 34 RPC against the co-accused-Arun Khajuria. 10. Per contra, learned AAG appearing on behalf of the State has contended that the case of the petitioner falls on a different footing, inasmuch as, there is material on record of the charge-sheet to show that the vehicle, in which the dead body of the deceased was carried for its disposal belonged to him, as such, he cannot claim parity with the case of co-accused-Arun Khajuria. 11. Before examining the merits of the rival contentions of the parties, it would be apt to notice the relevant provisions of the Jammu and Kashmir Cr.P.C, which deal with charged/discharge in a sessions trial case. 12. Section 268 of the J&K Cr.P.C deals with discharge, whereas Section 269 of the said Code deals with framing of charge. These provisions read as under:- “268. 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 no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.” “269. 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 no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.” “269. Framing of charge (I) If, after such consideration and hearing as aforesaid, the Judge is of the 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 a 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 of 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.” 13. From a conjoint reading of the aforesaid two provisions of the Code, it is clear that if the material on record, i.e., the charge-sheet and the documents attached therewith and after hearing the submissions of the parties, it appears that there is no sufficient ground for proceeding against the accused, he is entitled to be discharged, whereas if upon consideration of such material and hearing, there is ground for presuming that the accused had committed an offence, a charge has to be framed. 14. The factors, which a Sessions Court has to take into account while considering the question of charge/discharge of an accused have been debated by the Supreme Court as well as various High Courts of the country in a number of judgments and the principles governing this issue are more or less settled. It would be apt to refer to some of the judgments rendered by the Supreme Court on the issue to make the things more clear. 15. In “Amit Kapoor Vs. It would be apt to refer to some of the judgments rendered by the Supreme Court on the issue to make the things more clear. 15. In “Amit Kapoor Vs. Ramesh Chander and Anr., 2012 (9) SCC 460 ”, the Supreme Court has after noticing the provisions contained in Sections 227 and 228 of the Cr.P.C, which are in para-materia with Sections 268 and 269 of the Jammu and Kashmir Cr.P.C, observed 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 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. 18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases. 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 the case of State of Bihar v. 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. 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. 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. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It 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. From a perusal of the afore-quoted ratio laid down by the Supreme Court, it is clear that at the time of framing of charge, even a strong suspicion against an accused would justify framing of charge. The Court, at this stage, is not required to see whether the accused can be finally held guilty of the offence, but it has to see whether there exist sufficient grounds for proceeding against the accused. The Court has to see whether on the basis of material on record, ingredients constituting the alleged offences are prima-facie made out. For this limited purpose, sifting of evidence is permissible, but probative value of the material brought on record by the prosecution cannot be gone into at this stage. 17. Again in “Satish Chandra Rattan Lal Shah Vs. State of Gujarat and Anr., 2019 (9) SCC 148 ”, the Supreme Court has held that it is the duty of the Court to apply its judicial mind to the material placed before it and to come to a clear conclusion that a prima-facie case has been made out against the accused. Again in “Satish Chandra Rattan Lal Shah Vs. State of Gujarat and Anr., 2019 (9) SCC 148 ”, the Supreme Court has held that it is the duty of the Court to apply its judicial mind to the material placed before it and to come to a clear conclusion that a prima-facie case has been made out against the accused. The Court further noted that an order for framing of charges is of serious concern to the accused, as it effects his liberty substantially. Therefore, Courts must be cautious that their decision, at this stage, causes no irreparable harm to the accused. 18. It is a settled law that a Judge cannot be expected to act as a post office. The aforesaid judgments clearly lay down that there has to be application of mind while framing the charge and this application of mind has to be reflected in the order itself. 19. Adverting to the facts of the instant case, the only material against the petitioner herein is the statement of PW-Bahadur Singh, recorded under Section 161 Cr.P.C during investigation of the case. In his said statement, the witness has stated that on 18.11.2017, at about 4.30 P.M, when he was standing near Girls High Secondary School, Bishnah, he saw three persons sitting in a Van bearing Registration No. JK02BV-9428, out of whom he could identify only one, viz., accused-Sukhvinder Kumar. He goes on to state that the aforesaid Sukhvinder Kumar got down from the said van and he told him that his friend is lying unwell in the van and that he was carrying him to a doctor. The witness stated that he saw one person lying in the vehicle. He goes on to state that on 18.11.2017, when he heard that Sukhvinder Kumar and two more persons have been arrested in connection with murder of a person, he could gather that Sukhvinder Kumar and other two persons sitting in the van were in the process of disposing of the dead body of the deceased. 20. During further investigation of the case, the statement of the above named witness was again recorded under Section 164-A Cr. P.C, because in terms of the directions of the learned Trial Court, identity of other two persons sitting in the van was required to be ascertained. 20. During further investigation of the case, the statement of the above named witness was again recorded under Section 164-A Cr. P.C, because in terms of the directions of the learned Trial Court, identity of other two persons sitting in the van was required to be ascertained. This time the witness, instead of disclosing the identity of the other two persons sitting in the van, resiled from his earlier statement and deposed that he did not make any statement at all before the police. The only other material on record against the petitioner is the fact that the vehicle, in which the dead body of the deceased was carried, belonged to him. 21. The question as to which of the two statements of PW-Bahadur Singh, one recorded under Section 161 Cr.P.C and the other recorded under Section 164 Cr.P.C is to be relied upon, cannot be gone into at the stage of framing of charges. Since statement of PW-Bahadur Singh recorded under Section 164 Cr. P.C. does not throw any light on the alleged crime, so let us see whether on the basis of his statement recorded under Section 161of Cr.P.C., it can be stated that the petitioner is involved in the alleged crime. As per the said statement three persons were carrying a dead body in a van, out of whom, two were unknown. There is further evidence/material on record to show that the van in question belonged to the petitioner. If we read this material in conjunction with the leads which the investigating agency got from the interrogation of the main accused-Sukhvinder Kumar, which though is not admissible in evidence, only a suspicion about involvement of the petitioner in destruction of evidence arises. By no stretch of imagination, even a feeble suspicion of involvement of the petitioner in the murder of the deceased can be raised on the basis of the aforesaid material on record. In fact, there is no legally admissible evidence worth the name on record of the learned Trial Court to suggest the involvement of the petitioner in the murder of the deceased, namely, Vinod Kumar. 22. In fact, there is no legally admissible evidence worth the name on record of the learned Trial Court to suggest the involvement of the petitioner in the murder of the deceased, namely, Vinod Kumar. 22. The observation of the learned Trial Court that the deceased was healthy and able-bodied person and as such, he could not have been overpowered by the accused-Sukhvinder Kumar without the aid of some other persons does not mean that anyone against whom there is no evidence on record can be roped in the charge of murder of such person. Mere recovery of the vehicle, in which the dead body of the deceased was carried from the possession of the petitioner, does not give rise to presumption of guilt against the petitioner. The observations and reasoning made by the learned Trial Court in implicating the petitioner in the charge of murder are perverse, as the same are not based upon any legally admissible evidence. 23. It is a well settled law that the charges can be quashed by the High Court in exercise of its revisional jurisdiction or its jurisdiction under Section 482 Cr.P.C in exceptional cases. It is also a well settled principle of law that order framing charge should be interfered very sparingly and with circumspection in rarest of rare cases, but where the exercise of such power is absolutely essential to prevent patent mis-courage of justice and for correcting some grave error, that might be committed by the subordinate Courts, the High Court would not hesitate to intervene to prevent failure of justice. 24. In the instant case, as already discussed, the material on record of the charge-sheet even if the same remains uncontroverted does not make out a prima-facie offence under Section 302/34 RPC against the petitioner. Therefore, it is a fit case, where the Court should interfere and exercise its jurisdiction to quash the impugned order passed by the learned Trial Court to the extent of framing of charges under Sections 302 and 34 RPC against the petitioner. 25. Accordingly, the petition is allowed in the above terms and the impugned order of the trial Court to the extent it directs framing of charges for offences under Section 302/34 RPC is set aside. The trial Court shall frame charges for offences under Sections 201/109 RPC against the petitioner and thereafter proceed in the matter in accordance with law. 26. Accordingly, the petition is allowed in the above terms and the impugned order of the trial Court to the extent it directs framing of charges for offences under Section 302/34 RPC is set aside. The trial Court shall frame charges for offences under Sections 201/109 RPC against the petitioner and thereafter proceed in the matter in accordance with law. 26. The present petition stands disposed of accordingly. B.A. No. 30/2021 27. In view of the order passed in CRM(M) No. 52/2021, the petitioner is at liberty to approach the learned Trial Court afresh for grant of bail. As and when such an application is made by the petitioner, the trial Court shall decide the same on its own merits expeditiously. 28. The bail application also stands disposed of accordingly.