This criminal revision has been filed against the order dated 26.8.2010 passed by the learned Additional Sessions Judge, Court No.9, Allahabad in S.T.No.153 of 2009 under Sections 302, 120-B, I.P.C., P.S. Dhoomanganj, District Allahabad.
The brief facts of the case are that an incident of murder had taken place on 24.9.2008 at about 9.30 a.m. near the residential house of one Shiv Kumar Gupta, which is situated in the jurisdiction of Police Station Dhoomanganj, Allahabad. Complainant of the case is one Deo Raj Singh who is opposite party no.2 herein.
According to the F.I.R. the deceased Neeraj Singh, alongwith one Deepak Vishwakarma, was going from his residential house towards the residence of Shiv Kumar. The complainant was going behind them and he was at a distance of some 50 yards when he found that the revisionist alongwith co-accused Sheo Kumar Gupta, Deepak Kumar Gupta and Piyush Singh, who were hiding themselves behind the house of S.K.Gupta, all of a sudden, came out and surrounded the deceased. Thereafter, Piyush Singh and Shiv Kumar Gupta caught hold of the deceased and Deepak Kumar Gupta pulled out a revolver and fired point blank at the head of the deceased. At the same time the revisionist, who was holding another pistol in his hand fired at the abdomen of the deceased. A frightened complainant ran towards his son raising an alarm whereupon all the accused persons ran away from the place of occurrence. Neeraj was rushed to the hospital, but he died on his way. An F.I.R. was lodged with the police on the same day at about 10.05 a.m. i.e. just after 35 minutes of the incident. The distance of the police station is said to be about one km. After the registration of the case the investigation commenced and a charge sheet was filed against the revisionist also.
From the perusal of the records it appears that after filing of the chargesheet the police further investigated the case under Section 173(8)Cr.P.C. and after completion of further investigation the investigating officer, who was conducting such investigation submitted a report under Section 169 Cr.P.C. in favour of the revisionist in the Court of the learned Additional Sessions Judge, Allahabad. In his report under Section 169 Cr.P.C. the investigating officer has said that when he further investigated the case and obtained call details of certain mobile phone he had come to the conclusion that, at the time of the alleged incident, the complainant was not present at the spot, but he was at a distance of some 35 kms. from the place of incident. It should be mentioned here that a charge sheet was filed against the revisionist in the Court of learned C.J.M., Allahabad on 23.12.2008 and cognizance was taken by the learned Magistrate on the same day. It indicates that the supplementary report under Section 169 Cr.P.C. which was filed on 21.4.09 is subsequent to the filing of charge sheet against the revisionist. When the case reached the stage of framing of charges against the accused persons named in the charge sheet, an application and a supplementary application under section 227 Cr.P.C. was moved before the learned trial Judge by the revisionist.
After hearing both the parties the learned trial Judge was of the opinion that there was sufficient material in the case diary on the basis of which charges could be framed against the revisionist also and therefore, he rejected both the applications of the revisionist and directed for framing of charges. Feeling aggrieved by such rejection order, the present revision has been filed.
I have heard learned counsel for the parties and perused the records.
Learned A.G.A. has vehemently opposed the revision.
It has been submitted from the side of the revisionist that the version given by the complainant in the F.I.R. is belied keeping in view the statements of Amit Sharma & Mohd. Sayeed recorded under Section 161 Cr.P.C., that other prosecution witnesses of facts have not supported the prosecution version, that records indicate that the witness Deepak Gupta was on duty at the time of the alleged incident, that statements of Deepak Gupta & Shailendra do not support the F.I.R. version, that the application moved by the complainant on 22.12.2008 before the investigating officer by itself indicates that he himself was not sure regarding the real assailants, that the cell phone call details show that at the time of alleged incident the complainant was at a distance of some 35 kms. from the place of the alleged incident. It has been further contended that due importance has not been given by the learned trial Court to the report submitted by the investigating officer under Section 169 Cr.P.C. after further investigation of the case. Citing some rulings of the Apex Court, it has been further submitted from the side of the revisionist that the learned trial Judge has disposed of the application in a mechanical manner without applying his judicial mind and without giving cogent reasonings. It has been further contended by the learned counsel for the revisionist that the entire order passed by the learned trial Court suffers from illegality which is liable to be set aside and the learned Court may be directed to pass an order of discharge in favour of the revisionist.
Replying to the above contentions, the learned A.G.A. has stated that the arguments of the learned counsel for the revisionist gives the impression that he is arguing the case as if the sessions trial has already concluded and the final arguments are being advanced in the case. Such type of arguments can not be accepted by the Court because the law on the point is clear that defence version of the accused is not to be looked into at the time of framing of charges and only sufficiency of the allegations are to be seen and considered. Learned A.G.A. has further contended that even on the basis of single testimony of a reliable witness supported with documentary evidence, is sufficient to record a finding of conviction. He has vehemently argued that there is no substance in the arguments advanced on behalf of the revisionist and therefore, the revision should be dismissed.
I have perused the entire case diary and also gone through the various rulings relied upon by the parties.
From the perusal of the FIR it is evident that it is a broad day light murder and the accused persons, including the revisionist, have been named in the FIR. Their specific roles have also been assigned. The FIR is prompt as it was lodged just after 35 minutes of the alleged incident and the distance of the police station from the place of incident is only one km. From a perusal of the case diary and the statements of the witnesses under Section 161 Cr.P.C. it is evident that the complainant has fully supported his FIR version. Statements of other witnesses may not appear substantive at this stage, but keeping in view their quality, it can not be said that those statements are altogether ignorable.
Now let us come to the documentary evidence as collected by the investigating officer. The FIR, the site plan, inquest report and post mortem report are totally supporting the prosecution version.
Now let us consider the legal aspects of the matter. Section 227 Cr.P.C. is as follows:-
?227.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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
From the perusal of this Section it is evident that it is necessary for the trial Court to consider all the documents and statements of the witnesses contained in the case diary. Thereafter, if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused with reasonings. It is needless to say here that it is always open to the Judge either to allow or to reject an application moved under Section 227 Cr.P.C.. In the instant case, in his order, the learned Judge had dealt almost all the points as raised before him from both the sides and given his categorical findings before rejecting the applications. The order impugned is with reasonings and is in detail.
The words 'not sufficient ground for proceeding against the accused' appearing in Section 227 postulates exercise of judicial mind on the part of the Judge to the facts of case in order to determine whether a case for trial has been made out by prosecution or not. At this stage, Judge is not to see as to whether trial may end in conviction or acquittal. Such opinion has been expressed by the Apex Court in 2008 AIR SCW, 504.
Further, in a number of cases the Apex Court has stated with specification that truth, veracity and effect of evidence are not to be judged at initial stage of trial. Standard of test and judgment regarding guilt or otherwise of the accused is not to be applied at the stage of deciding matter under Section 227 Cr.P.C. One of such case is AIR 2001 SC 1507, Smt.Omwati & Another Vs. State, through Delhi Adms. & Others.
In another case, (AIR 2000 S.C. 605) giving its opinion about documentary evidence, as produced by the prosecution, the Apex Court has stated that observation and opinion incorporated in post mortem report can not be a ground to deprive the prosecution from proving that the accused was guilty of the offence.
It has been stated by the Apex Court in AIR 2005 SC 359, State of Orissa Vs. Devendranath Padhi,that at the stage of framing of charge the defence of the accused is not relevant.
The Apex Court has also stated in a number of cases that the trial Judge is required to discharge the accused only if he considers that there is not sufficient ground for proceeding against the accused.
In 1977 SC, 1489, State of Karnataka Vs. L.Muniswamy & Others, the Apex Court has stated that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. Some rulings have been filed from the side of the revisionist in which it has been stated that if there is no sufficient material against the accused he should be discharged. There is no quarrel with such proposition of law. Therefore, there is no need to discuss or mention those rulings here. Suffice is to say that if there is no sufficient material on the record, the accused should be discharged but at the same time it is to be kept in mind by the trial Court that each and every case has its distinctive facts and law is to be applied, keeping in view the facts and circumstances of each case.
Reverting back to the facts of the case I have to say that after a careful examination, I am of the view that there is sufficient material on the records on the basis of which charges in the case can be framed against the revisionist also. There is no dearth of decisions in which accused person has been convicted on the basis of circumstantial evidence and in the absence of direct and ocular evidence. In the instant case direct and unambiguous statement of the complaint under Section 161 Cr.P.C.is there, who had stated that he had seen by his own eyes the murder of his son and the assailants. The FIR is prompt which was lodged just after 35 minutes of the alleged incident and complainant's presence at the police station, at the time of lodging of the FIR, can not be doubted at this stage.
A report under Section 169 Cr.P.C. has been filed by that investigating officer of the case, who has conducted further investigation. From perusal of such report it is evident that the investigating officer has given too much importance to the call details of the mobile phone of the complainant. It appears that he has forgotten that it can not be presumed that only the owner of a mobile phone can use his mobile phone and no other person can use or misuse the same. While considering this point the learned lower Court has given a very logical finding when it says that when the presence of the complainant at the police station after 35 minutes of the incident is not doubted how it can be taken as a gospel truth that at the time of the incident he was at a distance of 35 kms. from the said police station.
Before parting with this judgment I find myself unable to restrain from saying that the role of the further investigating officer of the case does not appear to be impartial. The accused can not be given the benefit of doubt at this stage. Once a charge sheet has been filed in the case it indicates that the first investigating officer had found sufficient material against the accused persons named in the charge sheet and if the same finding has been prima facie approved by the learned Magistrate who had taken cognizance of the case, a report under Section 169 Cr.P.C., exonerating the accused, appears to be suspicious.
On the basis of the above discussions, I am of the view that there is no force in this revision and it is accordingly dismissed.
From the perusal of the records it appears that the revisionist is in jail. If it is so, the learned trial Court is expected to proceed with the trial as expeditiously as possible and conclude the same at the earliest possible.
Order Date :- 30.5.2011 IA