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2023 DIGILAW 845 (JHR)

Deepak Gupta v. State of Jharkhand

2023-07-07

DEEPAK ROSHAN

body2023
JUDGMENT : Heard learned counsel for the parties. 2. The instant revision application is directed against the order dated 26.07.2021 passed by the learned District & Additional Sessions Judge-IV, Bokaro in Misc. Cri. Application No. 112 of 2020 corresponding to Sessions Trial Case No. 352 of 2019 arising out of Protest-cum-Complaint Petition No. 124 of 2016, registered for the offences under Sections 448, 342, 506, 109, 307, 34 of the Indian Penal Code and the learned court found prima facie case under Section 307/34 of I.P.C. and the application preferred by the petitioner under Section 239 of the Code of Criminal Procedure for discharge has been rejected. 3. The brief facts of the case is that initially an F.I.R. was lodged being B.S. City P.S. Case No. 268 of 2009 on 03.11.2009 against the petitioner, his father Hira Lal Gupta and two unknown persons, under Section 448, 342, 506, 109, 307/34 of the Indian Penal Code. It is alleged in the F.I.R. that the informant/ complainant was residing in Limca hotel, Sector-1, B.S.City, P.S.- B.S.City, Bokaro. The further case of the complainant is that on 27.07.2009 at about 7:10 A.M. in the morning while, as usual she was coming from Ram Mandir after offering Puja and went inside the Limca Hotel, after opening the door, she saw accused Deepak Gupta and Hira Lal Gupta along with two unknown persons talking to themselves. On seeing her all of them stopped talking. The complainant did not know the name of other two persons but she had seen them with Deepak Gupta and Hira Lal Gupta earlier. One of the two persons was heavy built and dark in colour while the second was fat and fair with average height and the complainant could identify them on seeing. The complainant went ahead and while she was climbing on stairs, and when she saw turning her head, she found that the accused persons were looking at her. The Complainant did not bother much and came to her room. After 5 to 7 minutes the door of the room of the complainant was forcibly opened and she found that accused Deepak Gupta and two other persons came to her room and put on the latch of the door. The complainant was afraid and she went other side of the bed. After 5 to 7 minutes the door of the room of the complainant was forcibly opened and she found that accused Deepak Gupta and two other persons came to her room and put on the latch of the door. The complainant was afraid and she went other side of the bed. The accused Deepak Gupta told her that complainant and all should leave otherwise they will have to face serious consequences. He had requested the complainant and her family earlier but the complainant and all did not listen to him. The accused Deepak Gupta was son of elder brother of the complainant's husband. The complainant told him that she was not afraid of the accused persons and her husband was also living there for last 35 years and was equally an owner of the business. The complainant told that she would not leave the place. The accused Deepak Gupta told her that if she would not leave, her entire family would be done to death. The complainant was astonished and told that she would tell about the deeds of accused persons to others. Then Deepak Gupta told that she could only tell others when she remained alive. Deepak Gupta further instructed two unknown persons to finish of the complainant and he stated that he was going down stairs. The two persons started threatening her and also threatened her that her daughter was also studying in Delhi and they would destroy her and they also told that her son would also not be left alive. The two unknown persons started pushing her and told that the complainant would die with their hand. The complainant was terrified and went towards windows. The complainant wanted to call Hira Lal Gupta and wanted to know as to why he wanted to get her killed. She shouted but nobody came. One person told her that her husband was the target of his man and if she failed to jump from the window, her husband would be shot dead. The complainant sat on the window and somebody lifted her legs and she had no knowledge of what happened after that. Deepak Gupta had physically and mentally tortured her for the last four months and the complainant and her sister-in-law Nirmal Gupta were also assaulted with fists and slap and the complainant remained in hospital for 8 days. The complainant sat on the window and somebody lifted her legs and she had no knowledge of what happened after that. Deepak Gupta had physically and mentally tortured her for the last four months and the complainant and her sister-in-law Nirmal Gupta were also assaulted with fists and slap and the complainant remained in hospital for 8 days. Thereafter all the staff were ordered by Deepak Gupta and Hira Lal Gupta not to do any household work of the complainant and also not to give food and water to her. The staff were also told not to open the door or even to wish them so that complainant and her family would leave the hotel. The Complainant has further stated that there is a property dispute behind the occurrence. The I.O. after completion of investigation submitted the Final Form No. 204 of 2015 dated 25.06.2015 in favour of the petitioner due to lack of evidence against the petitioner and his father namely Hiralal. Thereafter, vide order dated 25.07.2015, the learned CJM, Bokaro had accepted the final report submitted by the I.O. but the same was challenged before the learned Additional Sessions Judge-II, Bokaro vide Cr. Rev. No. 157 of 2015 and vide order dated 20.01.2016, the learned court has set aside the order accepting the FRT. Thereafter a Protest cum Complaint Case No. 124 of 2016 was filed by the complainant/ informant against the petitioner, his father and two unknown persons under Section 448, 342, 506, 109, 307/34 of the Indian Penal Code before the learned CJM, Bokaro on 11.02.2016. After the SA of the complainant and examination of enquiry witnesses, the learned court vide order dated 04.12.2018 found prima facie case against the petitioner under Section 307/34 of the Indian Penal Code. 4. Learned counsel for the appellant submits that during course of investigation, statement of independent witnesses have been recorded in Para-10, 11 & 12 of the case diary and the said witnesses have falsified the entire story narrated by the informant/ complainant and have clearly stated that due to property dispute, the complainant had jumped from the window of the hotel and no one had pushed her from the window. He further submits that while dismissing the discharge application filed by the petitioner, the learned court had relied on some of the Paras of the case diary i.e. paras 156, 157, 172, 175, 191, 199, 213, 221 and 223 and from the aforesaid material on record, it transpires that the present criminal prosecution has been initiated and actuated with malice only in order to wreck vengeance against the petitioner on account of admitted dispute of property. The Hon’ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 at Para-102 – Category-7, held that the Hon’ble High Court can quash the entire criminal proceeding if it is found that – “Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Learned counsel for the petitioner further submits that in order to constitute an offence u/s 307 of IPC, there has to be some sort of evidence to show that accused with intent to commit murder has assaulted the victim in such a manner that in all probabilities, it will cause death. But in the instant case, there is no evidence on record to suggest the culpability of the petitioner in the alleged offence and essential ingredient of Section 307 of IPC is totally lacking in the present facts and circumstances of the case. That Section 227 of Cr.P.C. deals with consideration of discharge petition and if the learned Judge found that there is no sufficient ground for proceeding against the accused, he shall discharge the accused. That from the aforesaid paragraphs of the statement of the witnesses of the case diary, no case under Section 307/34 of I.P.C. is made out against the petitioner and that the learned court has erroneously rejected the discharge application on the ground that “there is sufficient ground and material for presuming that the accused Deepak Gupta/ petitioner has committed the offence under Section 307/34 of the I.P.C.” and rejected the discharge application vide order dated 26.07.2021. 5. Learned APP submits that the learned trial court has not committed any error in convicting the appellant. 6. 5. Learned APP submits that the learned trial court has not committed any error in convicting the appellant. 6. Having heard learned counsel for the parties and after going through the relevant documents on record including different paragraphs of the Case Diary, it appears that admittedly; there is quarrel for share in hotel property between the petitioner and his father with that of the complainant’s husband. It is also an acknowledged fact that the victim has sustained injury and the factum of occurrence has been corroborated by the injury report. In this background, it is to be seen that when the victim sustained injury who are the persons involved in this case. All these aspects cannot come without a full-fledged trial. Looking to the entire facts and the paragraphs mentioned by the learned trial court; discharging this petitioner from the offence under section 307 does not seems to be judicious at this initial stage of the matter, as such this court is of the firm view that since the occurrence / injury is admitted and it is only to be seen that whether the petitioner is involved in the same or not and for that trial of the case is necessary and discharging of the accused at this initial stage would be miscarriage of justice. In the case of Sajjan Kumar verus Cental Bureau of Investigation, reported in 2010 (9) SCC 368 reported in 2010 (9) SCC 368 the Hon’ble Apex Court has laid down several principals in para 21 of its judgment which is quoted hereinbelow;- “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 7. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 7. By perusing the aforesaid judgment and the facts of this case along with the records it appears that materials which have been placed before the learned trial court disclose grave suspicion against the accused which has not been explained and on the basis of such material, the trial court has formed an opinion that accused might have committed offence and that is the reason the learned trial court has held that there is sufficient ground and material presuming that the accused has committed an offence punishable under section 307 IPC/34 IPC. 8. Having regard to the discussion made hereinabove and the documents placed before this court no interference is required with the order dismissing the discharge application, inasmuch as, in the instant case the victim has sustained grievous injury by falling down from 3rd floor and the learned Sr. Counsel has failed to point out any illegality or perversity in the impugned order. Thus, allowing this application will be miscarriage of justice. 9. With the aforesaid observations the instant criminal revision application stands dismissed. 10. Let the lower court record be sent to the court concerned forthwith.