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2023 DIGILAW 1000 (JHR)

Rohit Kumar Mandal v. State of Jharkhand

2023-08-08

SUBHASH CHAND

body2023
JUDGMENT : Heard the rival submission of learned counsel for the parties. 2. The instant criminal revision has been preferred on behalf of the petitioner against the order dated 27.06.2022 passed in Sessions Trial No.150 of 2021, arising out of Balumath P.S. Case No.149 of 2021 whereby the learned Additional Sessions Judge-III, Latehar had rejected the discharge application of the petitioner under section 227 of Cr.PC. 3. The learned counsel for the petitioner has submitted that the court below has rejected the discharge application of the petitioner without taking into consideration the statement of two independent witnesses, namely, Kaushar Ali and Javed Akhtar who have categorically stated that the dispute between the victim and the petitioner was for salary and he has been falsely implicated in this case. It is also further submitted that no alleged offence is made out against the petitioner and the learned trial court without taking into consideration the statement of these two independent witnesses have rejected the application of the petitioner under section 227 of Cr.PC. 4. The learned APP and learned counsel for the OP No.2 vehemently opposed the contentions made by the learned counsel for the petitioner and contended that the incident is within the fourwalls of the house. At that time these two witnesses were not present there. The salary dispute, if any, was there, no lady would stake her modesty implicating any person in a false case. From the statement of the witnesses who were present at the time of occurrence, who were the family members of victim and were the natural witnesses keeping in view the time and place of the occurrence. No question of discharging the petitioner arises and the order passed by the court below needs no interference. 5. It is the settled law that while framing the charge the court has to take into consideration the allegations made in the FIR and also the evidence collected by the IO during investigation in support of the prosecution case. 6. As per FIR allegations, the victim lodged the FIR with these allegations that accused Rohit Kumar Mandal was doing job at her hotel and on 26.07.2021 her husband had gone out for some work. On the very day in the night at 11:40 pm the accused knocked the door of the house. She alongwith her daughter and mother-in-law were sitting in the courtyard of the house. On the very day in the night at 11:40 pm the accused knocked the door of the house. She alongwith her daughter and mother-in-law were sitting in the courtyard of the house. The 13-14 years old daughter of the informant opened the gate. The accused came inside the house and also took food thereafter her mother-in-law went to sleep in another room. Then the accused Rohit Kumar Mandal came, he set on her thigh and he pushed her. Again he opened his paint and also lifted the shari of the victim in order to commit rape. On raising alarm her mother-in-law and her daughter also attracted there, thereafter the accused fled away. 7. The IO during investigation recorded the restatement of victim who in her statement supported the prosecution story. Kaushaliya Devi is the mother-in-law of victim, she also corroborated the prosecution story. The witness Muskan is the daughter of victim, she also corroborated the prosecution story. Santosh Chourasia is the husband of the victim and he narrated in regard to the occurrence what was told to him by his wife. 8. As per the FIR allegations, the occurrence was of 11:40 of night. Place of occurrence was within the fourwalls house of the victim. At the time of occurrence, the natural witnesses were the mother-in-law and the daughter of victim. Victim and her daughter and mother-in-law all have supported the prosecution version. The husband of the victim also corroborated the prosecution story who had come to know in regard to the occurrence from his wife. So far as the testimony of the independent witness Kaushar Ali and Javed Akhtar are concerned, these two witnesses were not present at the place of occurrence. They are simply the witness in regard to the enmity on the salary issue. As such, on the basis of the statement of these two witnesses the testimony of all the natural witnesses who were present at the place of occurrence and the testimony of the prosecutrix cannot be disbelieved. 9. It is also the settled law that while framing the charge the court has to consider only the evidence collected by the IO and on the basis of same whether there are sufficient ground to proceed with the trial, the prima facie case is to be seen at this stage. 9. It is also the settled law that while framing the charge the court has to consider only the evidence collected by the IO and on the basis of same whether there are sufficient ground to proceed with the trial, the prima facie case is to be seen at this stage. The scrutiny of the evidence, marshalling of the evidence, or mini trial is not permissible at the stage of framing of charge. 10. The Hon’ble Apex Court held in Palwinder Singh vs. Balwinder Singh (2008) 14 SCC 504 : 13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi [ (2005) 1 SCC 568 : 2005 SCC (Cri) 415] wherein it was held as under: (SCC p. 579, para 23) “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [Satish Mehra v. Delhi Admn., (1996) 9 SCC 766 : 1996 SCC (Cri) 1104] holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 11. The Hon’ble Apex Court held in Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay Choudhary & Ors. (2008) 10 SCC 681 : 11. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy [ (1977) 2 SCC 699 : 1977 SCC (Cri) 404] it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (underlined [Ed. In State of Karnataka v. L. Muniswamy [ (1977) 2 SCC 699 : 1977 SCC (Cri) 404] it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (underlined [Ed. : Herein italicised.] for emphasis) The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [ (1989) 1 SCC 715 : 1989 SCC (Cri) 285] and State of W.B. v. Mohd. Khalid [ (1995) 1 SCC 684 : 1995 SCC (Cri) 266].) 12. The Hon’ble Apex Court also held in Rukmini Narvekar vs. Vijaya Satardekar & Ors. A.I.R. 2009 SC 1013 : 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case [ (2005) 1 SCC 568 : 2005 SCC (Cri) 415] by the larger Bench therein to which the very same question had been referred. 13. The Hon’ble Apex Court held in Central Bureau of Investigation vs. Mukesh Pravinchandra Shroff & Ors. (2010) 3 SCC Cr. 315 : “The appreciation of evidence, at the stage of discharge is impermissible what is required is to be seen is whether there are sufficient grounds to proceed against accused.” 14. In view of the submissions made and material on record, the impugned order passed by the court below needs no interference. 15. Accordingly, this criminal revision is, hereby, dismissed.