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2022 DIGILAW 839 (GAU)

Techi Kak, S/o. Techi Mutie v. Bijay Biswas @ Dengu, S/o. Jaharlal Biswas

2022-08-02

ROBIN PHUKAN

body2022
JUDGMENT : 1. In this petition, under Section 397/401 of the Cr.P.C., the petitioner, Shri Techi Kak has challenged the legality, propriety and correctness of the order dated 20.12.2021, passed by the learned Sessions Judge, Yupia in Sessions Case No.02/2021, under Section 120B/302/316/201/34 IPC. 2. It is to be noted here that vide impugned order dated 20.12.2021, the learned Court below had discharged the respondent No.1 -Shri Bijay Biswas @ Dengu and respondent No.2-Smti Taya Chumi, from the charges under Section 227 of the Cr.P.C. 3. The factual background, leading to filing of the present petition is briefly stated as under:- “On 05.11.2020, at about 13.00 hours, the Officer-In-Charge, Banderdewa P.S. received telephonic information about an accident that took place near Karsingsa Block Point, in between Nirjuli and Banderdewa. Thereafter, the Officer-In-Charge, Inspector GochamTassa of Banderdewa P.S. and his team rushed to the spot, which is situated at a distance of 4 KM from the P.S. Having arrived at the place of occurrence, the Officer-In-Charge found that there were two persons in the vehicle at the time of accident, namely, Techi Meena Lishi, wife of Roni Lishi and her driver, resident of A Sector, Naharlagun. Both the persons were evacuated to the Hospital and later on; Techi Meena Lishi succumbed to her injuries at TRIHMS Hospital, and the driver Shri Dathang Suyang survived with minor injuries. No apparent damage to the vehicle was observed, which skidded off the road for about 3 mtrs, from NH-415. Thereafter, the Officer-In-Charge, prepared rough sketch map of the place of occurrence, taking photographs and seized the Innova vehicle, bearing Registration No. AR-01H-3782. Later on, at about 19.00 hours, on the same day, the Officer-In-Charge received one written F.I.R. from Shri Techi Lir, to the effect that on that day at about 12.39 hours, Smti Techi Meena Lishi called him from her mobile number 8575201455 and informed him that she was going to Karsingsa on being called by her husband Shri Lishi Roni and her mother-in-law (Lishi Nami). Thereafter, at about 2.15 PM, his wife informed him that his sister Techi Meena Lishi has already died. Thereafter, at about 2.15 PM, his wife informed him that his sister Techi Meena Lishi has already died. Hence, he suspects that on 05.11.2020, in between 12.40 to 2.00 PM, at Karsingsa Block Point towards Banderdewa, one driver Dathang Suyang, under Khonsa P.S. and Shri L. Roni son of Shri Lishi Legi of A Sector, Naharlagun have murdered his sister Techi Meena Lishi with pre-planned preparation and hatching a criminal conspiracy. Upon the said F.I.R. the Officer-In-Charge, Banderdewa P.S. registered Banderdewa P.S. Case No.22/2020, under Sections 279/304-A IPC, which was registered upon the initial telephonic information of the vehicle accident. Thereafter, the case was endorsed to Inspector Minli Geyi, Officer-In-Charge, Nirjuli P.S. for further investigation, by an order of the SDPO, Naharlagun, dated 11.11.2020, bearing no. SDPO/NLG-05/2016. Accordingly, Inspector Minli Geyi has investigated the case and after completion of investigation, he laid Charge-sheet against 7(seven) accused persons namely, (1) Lishi Roni, (2) Kapwang Letey Lowang, (3) Dathang Suyang, (4) Taney Khoiyang, (5) Damreit Khoiyang (6) Taya Chumi and (7) Bijay Biswas @ Dengu to stand trial in the Court, under Section 120B/302/316/201 IPC. While submitting the Charge-sheet, the Officer-In-Charge has informed the Court that CFSL report have not yet been received and investigation is still going on to find out more supporting facts and evidence and supplementary Charge-sheet will be filed, as per the provision of Section 173(8) Cr.P.C. Thereafter, the learned Court below, complying the provision of Section 207 Cr.P.C., and thereafter hearing the learned Advocates of both the sides, vide impugned order dated 20.12.2021, had framed charges against the accused Lishi Roni, Damreit Khoiyang, Dathang Suyang, Kapwang Letey Lowang and Taney Khoiyang under Section 120B/302/316/201 read with Section 34 IPC, and on being read and explained over, they pleaded not guilty and claimed for trial. Vide the same order the learned Court below has discharged accused Taya Chumi and Bijay Biswas, having found no primafacie case against them under Section 227 of the Cr.P.C”. 4. Being highly aggrieved by the discharge order of accused Taya Chumi and Bijay Biswas, the petitioner, who is the father of the deceased women approached this Court by filing the present petition, challenging the legality, propriety and correctness of the discharged order dated 20.12.2021. 5. I have heard Mr. P.K. Tiwari, learned senior counsel assisted by Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. 5. I have heard Mr. P.K. Tiwari, learned senior counsel assisted by Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. M. K. Chowdhury, learned senior counsel assisted by Mr. M. Kato, learned counsel for the respondent No.2, and also heard Mr. L. Narah, learned counsel for the respondent No.1 Shri Bijoy Biswas, as well as heard Mr. J. Tsering, learned P.P. for the State respondent No.3. 6. Mr. Tiwari, learned counsel for the petitioner submits that the Charge-sheet was submitted against all the 7(seven) accused by the Officer-In-Charge on 01.02.2021, and the order of discharge of respondent No.1 and 2 was passed on 20.12.2021, and prior to that day on 10.12.2021, the Officer-In-Charge has written a letter to the P.P. of the learned Court below informing him that investigation was continuing and supplementary Charge-sheet will be submitted soon. But, without waiting for submission of Charge-sheet the learned Court below has discharged the respondent No.1 and 2, vide impugned order. 6.1 Mr. Tiwari, further submits that the I.O. had submitted supplementary Charge-sheet on 15.01.2022, and he Officer-In-Charge has collected sufficient materials against the respondent No.1 and 2 in the supplementary Charge-sheet and the same gone without consideration of the learned court below at the time of discharge. 6.2 Further, Mr. Tiwari submits that sufficient materials were collected by the I.O., in the first Charge-sheet also but, ignoring all these materials the learned Court below has discharged the respondent No.1 and 2 and as such, the impugned order suffers from manifest illegality. 6.3 Mr. Tiwari, further submits that there are sufficient materials against respondent No.1 and 2, to show that they were part of the conspiracy of killing the wife of accused Lishi Roni. It is further, submitted that in order to constitute the conspiracy, there must be knowledge and facilitation in fructification of the said conspiracy and also facilitate in taking the conspiracy to a logical end. And all these materials are there against both the respondent No.1 and 2. 6.4 Mr. It is further, submitted that in order to constitute the conspiracy, there must be knowledge and facilitation in fructification of the said conspiracy and also facilitate in taking the conspiracy to a logical end. And all these materials are there against both the respondent No.1 and 2. 6.4 Mr. Tiwari, further submits that there are sufficient materials against the respondent No.1 Shri Bijay Biswas as he had purchased 3 mobile hand-sets and also he has purchased 3 pre-activated sim cards without any documentation and he has taken care and caution, so that, his name does not come into the picture and besides, he has deleted all call data records from his mobile before being arrested and thus, all these facts raised a grave suspicion of his involvement with the offence alleged and as such, his discharged order is illegal. 6.5 Mr. Tiwari, further submits that respondent No.2 Taya Chumi is the live-in partner of accused Lishi Roni, who is the husband of the deceased and she had given option to Lishi Roni either to choose her or to his wife, after hearing the news of carrying pregnancy of the 1st wife of Lishi Roni and this option triggered murder of 1st wife of Lishi Roni, and Taya Chumi had transferred a sum of Rs. 50,000/-in the account of the deceased, 2 days before her murder and there is financial trail which shows that she has withdrawn a sum of Rs. 5 laks from her account and the said sum was later on paid to the contract killer for executing murder of the wife of the accused Lishi Roni. And, she knows Kapwang very well prior to the occurrence but, she has given false statement before the Officer-In-Charge about the same and she is the facilitator of taking the conspiracy to a logical end. And as such, the order discharging her suffers from manifest illegality and impropriety. 6.6 Mr. Tiwari, further submits that respondent No.2 Smti Taya Chumi is the franchisee of Apong.in and she has handed over the 3 mobile hand-sets, which were used in commission of the crime by accused Lishi Roni. And therefore, Mr. Tiwari, contended to set aside the impugned discharged order passed on 20.12.2021. 6.7 Mr. Tiwari, has referred following case laws in support of his statement:- (a) Union of India Vs Prafulla Kumar Samal, (1979) 3 SCC 4 . And therefore, Mr. Tiwari, contended to set aside the impugned discharged order passed on 20.12.2021. 6.7 Mr. Tiwari, has referred following case laws in support of his statement:- (a) Union of India Vs Prafulla Kumar Samal, (1979) 3 SCC 4 . (b) Dilawar Balu Kurane Vs State of Maharashtra, (2002) 2 SCC 135 . (c) Luckose Zachariah @ Zak Nedumchira Luke and Ors Vs Joseph Joseph and Ors, 2022 SCC Online SC 241. 7. On the other hand, Mr. L. Narah, learned counsel for the respondent No.1 submits that respondent No.1 -Shri Bijay Biswas is an employee of accused Lishi Roni and whatever he had done was as per, the direction of his master Lishi Roni. He simply obeyed the command given to him by his employer. Mr. Narah further submits that it is a fact that he has deleted the phone call record on 05.11.2020, but, he did so out of fear and at best, the respondent No.1 ought to have been a witness here in this case. 7.1 Mr. Narah, further submits that respondent No.1 Bijay Biswas has engaged someone to collect the mobile hand-sets and sim cards and he got the same handed to one lady who handed it over to Taya Chumi and he was not in the picture and none of the witnesses made any utterance of his name in the offence, and he is afraid of police therefore, he has not collected the receipt of purchasing the mobile hand-sets and sim cards, also he has no motive for committing the offence and he and his family is entirely dependent upon Lishi Roni and therefore, Mr. Narah submits that the impugned order requires no interference of this Court. 8. On the other hand, Mr. M. K. Chowdhury, learned senior counsel appearing for respondent No.2 Taya Chumi submits that the impugned order is a speaking order, wherein the learned court below had considered all aspects before discharge of respondent No.2 and that she was never a part of the conspiracy. Mr. Chowdhury, pointed out that though, the Officer-Incharge has written a letter to the learned P.P. of the learned Court below yet, the said letter was never part of the learned Court record. 8.1 Mr. Mr. Chowdhury, pointed out that though, the Officer-Incharge has written a letter to the learned P.P. of the learned Court below yet, the said letter was never part of the learned Court record. 8.1 Mr. Chowdhury, further submits that prior to filing of the supplementary Charge-sheet, the learned Court below has already framed charge and discharged the respondent No.1 and 2 and at that time the Charge-sheet was not before the learned Court below. Mr. Chowdhury, also pointed out that there is no sufficient materials to frame charge against the respondent No.2, not only in the Charge-sheet but, also in the supplementary Charge-sheet, and that no new materials have been collected in the supplementary Charge-sheet, which were already there in the main Charge-sheet. 8.2 Mr. Chowdhury, further pointed out that transferring a sum of Rs. 50,000/-to the account of the first wife of her live-in partner shri Lishi Roni, cannot be an incriminating circumstance and that the account of accused Lishi Roni, was freezed in a different case by police and therefore, the accused Lishi Roni has used her account and he withdrawn a sum of Rs. 5 laks from there and she does not know where he has used the same. 8.3 Further, Mr. Chowdhury submits that she knows Kapwang but, the same cannot also be an incriminating circumstance against her. It is the further submission of Mr. Chowdhury, that in order to constitute the offence of conspiracy there must be a meeting of mind, but, there is no material to show that respondent No.2 Smti Taya Chumi had any meeting of mind with the other accused persons. It is also pointed out that accused Lishi Roni, might have some motive in eliminating his first wife, as he has extra marital affairs with the respondent No.2 and he had also property interest. 8.4 Mr. Chowdhury, also submitted that there is nothing in the call details record to show her involvement and also nothing in the bank statement to show her involvement and she has nothing to do with the mobile hand-sets, which were purchased by another person and that the impugned order is a reasoned order and no interference is required and further, Mr. Chowdhury, also submitted that there is nothing in the call details record to show her involvement and also nothing in the bank statement to show her involvement and she has nothing to do with the mobile hand-sets, which were purchased by another person and that the impugned order is a reasoned order and no interference is required and further, Mr. Chowdhury submits that the Court can proceed against the respondent No.2, if during trial, any materials come out against her by invoking the provision of Section 319 Cr.P.C. It is also submitted that even, if, some materials are there on the record and, if, 2 view is possible upon the same materials this Court by exercising its revisional jurisdiction cannot impose its own view. 8.5 Mr. Chowdhury, also referred following case laws to make good of his submission:- (a) State of Orissa Vs Sudansu Shekhar Mishra and Ors, (1968) 2 SCR 154 . (b) Superintendent of Police, CBI Vs S.P.Singh and Ors, 2007 (4) GLT 39. (c) State through CBI SPE/Silchar Vs Partha Sanyal and Ors, 2002 (1) GLT 355. (d) Yogesh @ Sachin Jagdish Joshi Vs State of Maharashtra, 2008 SCC Online SC 722. (e) Padma Sundar Rao (dead) and Ors Vs State of T.N. and Ors 2002 SCC Online SC 334. (f) State of M.P Vs S.B. Johari and Ors, 2000 SCC Online SC 213. (g) Hardeep Singh Vs State of Punjab and Ors, (2014) 3 Supreme Court Cases 92. 9. Having heard the submissions of learned Advocate of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the case laws referred by the learned counsels of both the sides and also perused the impugned order dated 20.12.2021. 10. It appears that while discharging the respondent No.2 Smti Taya Chumi, the learned Court below has observed that police has filed Charge-sheet against her on 2 grounds, firstly, she had pressurized the accused No.1 Lishi Roni, husband of the deceased to choose, either her or the deceased wife and it is alleged that it was due to the pressure exerted by her the accused No.1 had made a plan to eliminate the deceased and accordingly, conspiracy was hatched along with 4 other accused and the deceased was eliminated. The learned Court below also found that the second allegation against Taya Chumi is on the direction of accused No.1 Lishi Roni, 3 mobile hand-sets were purchased by accused Bijoy Biswas, who handed over the same to Taya Chumi and subsequently, she handed over the phone to accused Lishi Roni and these mobiles were used by the accused to hatch the criminal conspiracy and to execute the plan to eliminate the deceased. Thereafter, the learned Court below has observed that pressurizing accused No.1 to choose, either to her or the deceased wife, it was obvious for a lady who is in live-in relationship for 3 years and had aborted her pregnancy twice, would pressurize accused No.1, either to accept her or to accept his wife and discontinue the relationship with her and therefore, pressure, if any, either to accept her as wife or to discontinue with the relationship, cannot be termed as a part of the criminal conspiracy, hatched by the 5 accused to eliminate the deceased. 10.1 The learned Court below also found that handing over all 3 mobile phones by accused Taya Chumi to accused No.1 is concerned, it is on the record that accused No.1 has directed his employee accused Bijay Biswas @ Dengu to purchase 3 mobiles and 3 sim cards without leaving any record of such purchase and after purchasing those mobiles, accused No.1 directed accused Bijay Biswas to deliver those 3 mobiles to Taya Chumi, as at the relevant time he was outside the State and accordingly, 3 mobile phones were handed over to accused Taya Chumi and later on, she has handed over the same to the accused No.1 and neither, she was involved in the procurement of these mobile phones or sim cards, nor, she has any role in distribution of the mobile phones and the only role she has played is that she received the 3 mobile phones from one lady and handed over to accused No.1, as per the direction of accused No.1. 10.2 The learned Court below also found that police had submitted Charge-sheet against respondent No.1 Bijay Biswas, only on the grounds that he had purchased 3 mobile phones and 3 sim cards without leaving any document of such purchase, which has been used in the case by the accused for conspiracy and to eliminate the deceased and that Bijay Biswas was working under accused No.1 as an employee for many years and therefore, as directed by his employer, he has purchased the mobile phones and sim cards without leaving any documents and got the same handed over to accused No.1 through a lady and that he had no idea as to why, those mobiles and sim cards were directed to be purchased by his employer. And as such, it cannot be said that he was a part of the conspiracy to eliminate the deceased. And according to the learned Court below, these materials are not sufficient to show complicity of respondent No. 1 and 2 with the offence alleged, and therefore, discharged them. 11. Having gone through the record, I find that the impugned order of discharge of respondent No.1 and 2, was passed on 20.12.21 and the supplementary Charge-sheet was filed on 20.12.22 and as such, the supplementary Charge-sheet was not before the learned Court below, while, the impugned order dated 20.12.21, was passed. 12. Though, Mr. P.K. Tiwari, learned counsel for the petitioner, tried to persuade this Court that the I.O. had filed one petition before the learned Court below, addressing the learned P.P. and appraised the Court that he is going to file supplementary Charge-sheet very soon and as such, it was in the knowledge of the learned Court below that the Officer-In-charge will be submitting supplementary Charge-sheet in the case, but, the submission so advanced by Mr. Tiwari left this Court unimpressed in as much as, the letter informing the learned Court below about the submission of supplementary Charge-sheet was not reflected, in any of the order of the learned Court below. Mr. Chowdhury, the learned senior counsel for the respondent had rightly pointed out this during argument and I find substance in the same. 13. Be that as it may, it is not in dispute that while the impugned order was passed discharging respondent No.1 and 2, by the learned Court below, the supplementary Charge-sheet dated 20.12.22 was not available before the learned Court below. 13. Be that as it may, it is not in dispute that while the impugned order was passed discharging respondent No.1 and 2, by the learned Court below, the supplementary Charge-sheet dated 20.12.22 was not available before the learned Court below. 14. It is now well settled in catena of decisions of Hon’ble Supreme Court that right to fair trial is a fundamental right, as enshrined in Article 21 of the constitution of India. It (fair trial) is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened at any stage of trial in any manner. Fair trial encompasses the interests of all the stakeholders of the system i.e. the accused, the victim and of the society. And therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is also a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. Reference in this context can be made to the following decision of Hon’ble Supreme Court-(i) Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114 ; (ii) Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367 ; (iii) Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136 ; and (iv) Sudevanand v. State through C.B.I. (2012) 3 SCC 387 .)" 15. In the case in hand, non consideration of the supplementary charge sheet filed by the I.O. under section 173(8) Cr.P.C., at the time of consideration of charge and discharge of respondent No.1 and 2, would amount to denial of fair opportunity to the prosecution side/petitioner to present its case. The prosecution side would get no opportunity to place the same before the court. Though Mr. The prosecution side would get no opportunity to place the same before the court. Though Mr. M.K. Chowdhury, the learned senior counsel for the respondent No. 2 submits that if during trial any materials comes out against the respondent No.2, then the learned court will be at liberty to invoke its jurisdiction under section 319 of the Code of Criminal Procedure, which is a different aspect altogether and the learned court below cannot by invoking the jurisdiction under section 319 Cr.P.C. consider the materials in supplementary charge sheet. Therefore, I am unable to record concurrence with the submission of Mr. Chowdhury. 16. Therefore, instead of discussing the merits and demerits of the other submission of learned Advocates of both sides and also sufficiency or insufficiency of the materials to frame charge against respondent No.1 and 2, which is the business of the trial court, this Court is of the view, end of justice will be advanced if, by setting aside the impugned order, so far it relates to discharge of respondent No.1 and 2, from the charges, and the burden is relegated to the learned trial court by remanding the matter to it. 17. Accordingly, the impugned order stand set aside. The matter is remanded back to the learned Court below for consideration of the matter afresh on the basis of materials available in the supplementary Charge-sheet and to pass a fresh order upon the same, after affording opportunity of being heard to both the parties. 18. Both the parties are directed to appear before the learned court below, positively within 10 days, from today. In the result this revision petition stands allowed to the extent indicated above. The parties have to bear their own cost.