Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Evidence Inherently Improbable And Unmerited-charge Under Section 120-B I.P.C. Cannot Be Framed-revision Allowed.
JUDGEMENT TITLE : Dev Sharma & Others Vs. State Of U.P. & Another On 08/26/2011 By Allahabad High Court
CASE NO : CRIMINAL REVISION NO. 512 OF 2010
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
AFR

Criminal Misc. Writ Petition No. 9038 Of 2011


Naresh.....................................................................Petitioner

Versus

State Of U.P. And Another................................Respondents

CONNECTED WITH

Criminal Revision No.512 Of 2010
Dev Sharma And Others ..........................Revisionists

Versus

State Of U.P. And Another...................................Respondents


Hon'ble Vinod Prasad, J.

The Above Two Proceedings Have Been Initiated By Co Accused In The Same S.T. No. 126 Of 2009, State Vs. Dev Sharma And Others, Relating To Crime No. 69 Of 2000, Under Sections 307, 120-B I.P.C., P.S. Rabupura, District G.B. Nagar Pending Before Additional Sessions Judge / F.T.C. Court No. 3, G.B. Nagar And Since Relief Sought In Both The Above Proceedings Relates To Framing Of Charge And/or Discharge Hence Both The Cases Were Clubbed Together And Are Being Decided By This Common Order.
Grievance Of The Petitioner Naresh Is Against The Order Of Framing Charge Dated 5.2.2010, U/s 307/120 B, I.P.C. Whereas In Criminal Revision No. 512 Of 2010, Five Revisionists(Dev Sharma, Jugal Kishore, Nahar Singh, All Real Sibling Brothers, Being Son Of Late Chaturbhuj Sharma), Kanchhi Lal Sharma And Hari Kishan( Both The Real Brothers, Being Son Of Late Murari Lal Sharma) Are Aggrieved By The Impugned Order Dated 18.1.2010 Passed By The Trial Judge By Which He Has Refused To Discharge Them From Aforementioned Offences, Which Revisionist Had Claimed Through Their Discharge Application Paper No. 6 Kha.
Before Proceeding Further, Background Factual Matrix Indicate That On 26.6.2000 At 8.45 A.m., Informant Harish Chandra Accompanied With His Brother Govardhan Sharma (injured) Were Proceeding On Their Bicycles From Their Village Bhaipur Towards Rabupura, Hamlet And When They Reached Near Rajwaha Khera, Culvert They Were Surrounded By Co-villagers Naresh, Girish Kumar And Chhotu Accompanied With Another Accused Netra Pal, Resident Of Village Sauda, Habibpur, Khurja Dehat All Armed With Country Made Pistols. Shouting Instigation Naresh Along With Chhotu And Girish Kumar Shot At Govardhan Sharma With An Intention To Murder Him And Thereby Caused Him Three Fire Arm Injuries. Informant Harish Chandra Raised Hue And Cry, Which Attracted Balli, Bhajan Lal, Udai Chand Towards Scene Of The Incident And Spotting Approaching Witnesses Shooters Escaped From The Crime Spot Towards Rustampur Brandishing Their Country Made Pistols. Injured Was Rushed To The Police Station Rabupura, Where, The Same Day At 9.15 A.m., Informant Eye Witness Harish Chandra Lodged A FIR Against Four Named Accused Naresh, Netra Pal, Girish Kumar And Chhotu As Crime No. 69 Of 2000, Under Section 307 I.P.C., P.S. Rabupura, District G.B. Nagar.
Investigation Into The Crime Commenced, And In Their Interrogatory Statements U/S 161 Informant And Injured Named Only Above Four Accused, Naresh, Chhotu, Girish Kumar And Netra Pal, As The Main Malefactors, Who Had Committed The Crime Because Of Motive That Wheat Crop On A Disputed Agriculture Field Was Got Harvested By The Informant And Injured. In Respect Of That Agricultural Field, There Was A Litigation Going On Between Nahar Singh, Dev Sharma And Kanchhi Lal Sharma On The One Side And Informant And His Brother On The Other Side. Another Eye Witness, Balli Also Supported Informant's Case And Named Only Aforementioned Four Accused As The Culprits, Who Had Orchestrated The Crime. It Transpires That During Investigation, Investigatory Statement Of The Informant Was Inked For The Second Time, Under Section 161 Cr.P.C., Who In This Second Round Exonerated Girish Kumar S/o Kanchhi Lal Sharma From His Complicity In The Crime And Denied His Involvement Into The Offence. It Further Transpires That Pending Investigation, Two Affidavits, Vide Annexure No. 5, Were Filed Before S.O., P.S. Rabupura, District G.B. Nagar On 15.7.2000 By Ram Niwas S/o Momraj And Dinesh Kumar S/o Murari Lal In Which They Testified That On 11.6.2000, Fifteen Days Prior To The Incident At 6-7 P.m. When They Were Passing By In Front Of The House Of Dev Sharma, They Were Called By His Son Chhotu. At That Moment, They Witnessed That On An Erected Platform In Front Of House Of Dev Sharma, He (Dev Sharma), Nahar Singh, Jugal Kishore, Kanchhi Lal Sharma, Hari Kishan, Chhotu, Girish Kumar, Naresh And Netra Pal (revisionist) Were Conspiring Amongst Themselves In A Very Loud Voice That Govardhan Sharma (injured) Is Very Clever And After Instituting Prosecution, He Had Got Their Crop Harvested Because Of His Influence And He Will Not Allow Them To Succeed In The Court Case And, Therefore, There Is No Way Out But To Remove Him From Their Way. They Were Also Yelling Out That Govardhan Sharma Got Their Enormous Money Wasted In The Litigation And If He Is Done To Death, They Will Not Have To Go To The Court. They Were Also Yelling That After Death Of Govardhan Sharma, They Will Get Back Their Agriculture Land And If He Remains Alive They Will Never Regain It. It Was Further Testified In Those Affidavits That Those Persons Were Shouting Simultaneously That They Will Get Rid Of Govardhand Sharma Because Their Sons Have Now Lost Patience And They Have Got Sufficient Arms With Them. It Was Also Testified That Because Of Faux Pas And Temerity They Allowed Govardhan Sharma To Live. Both The Affidavits Of Dinesh Kumar And Ram Niwas Are Of Identical Contents. After These Affidavits Were Tendered Statements Of Dinesh Kumar And Ram Niwas, Under Section 161 Cr.P.C. Were Recorded Wherein They Not Only Repeated Their Versions Mentioned In Their Affidavits But Went A Head By Stating That When They Tried To Overhear The Conversations Further Then They Were Threatened By Them With Dire Consequences. In Their Statements Under Section 161 Cr.P.C., They Therefore Stated That Because Of The Aforesaid Reason, They Have Not Divulged The Said Utterances To Anybody In The Village. In Such Factual Background Initially After Concluding Investigation, I.O. Laid A Charge Sheet, On 9.8.2000, Against Six Accused Naresh, Chhotu, Netra Pal, Nahar Singh, Jugal Kishore And Hari Kishan But Subsequently, He Filed A Supplementary Charge Sheet On 7.11.2000 Against Rest Of The Two Accused Dev Sharma And Kanchhi Lal Sharma. What Is Important And Noticeable Is That In None Of The Two Charge Sheets, Ram Niwas And Dinesh Kumar Were Cited As Prosecution Witnesses Who Had Given Affidavits Regarding The Alleged Conspiracy Hatched Up By The Accused Revisionists.
Since I.O. Had Charge Sheeted All The Accused Persons, They Were Summoned By The Magistrate And Their Case Was Committed To Session's Court For Trial Where It Was Registered As S.T. No.126 Of 2009, State Vs. Deo Sharma And Others And Was Allotted To Additional Sessions Judge, FTC No.3 Gautam Budh Nagar For Trial. Under Section 227/228 Cr.P.C. Five Accused Namely Dev Sharma, Nahar Singh, Jugul Kishore, Hari Kishan And Kanchhi Lal, All The Revisionists Claimed Discharge Through An Application Paper No. 6 Kha. Trial Judge, By Impugned Order Dated 8.1.2010, Rejected Their Discharge Prayer And Hence Challenge To The Said Order Has Been Made In Criminal Revision No.512 Of 2010. Trial Judge Thereafter Charged All The Accused Persons U/Ss 307/120-B IPC On 5.2.2010 And Therefore Another Named Accused Naresh Challenged That Charge By Preferring Criminal Misc. Writ Petition No.9038 Of 2011. In The Revision Injured Govardhan Sharma On Behalf Of Informant As Well As Learned AGA For The State Have Filed Counter Affidavits To Which Rejoinder Affidavit Has Also Been Filed. In The Writ Petition An Impleadment Application On Behalf Of Injured Govardhan Sharma Was Filed, Wherein He Has Stated That Informant Is In Hand And Gloves With The Accused And Hence His Impleadment Application Was Allowed And His Counsel Sri Raj Kumar Has Been Heard In Opposition In Both The Proceedings As He Stated That His Counter Affidavit In Revision Be Considered In This Writ Petition And Therefore, In Joint Agreement With Both The Sides And Learned AGA, Both The Above Case Were Heard Finally And Are Being Decided By This Common Order.
In The Aforesaid Background Facts, I Have Heard Sri Deepak Srivastava, Learned Counsel For The Petitioner Naresh, Sri M.K. Singh Sengar, Learned Counsel For The Revisionists In Criminal Revision No.512 Of 2010 And Sri Raj Kumar, Learned Counsel For The Informant And The Injured In Both The Cases- Writ Petition And Criminal Revision,and Sri Sangam Lal Kesharwani, Learned AGA In Opposition.
Both The Counsel For The Accused Submitted That Order Of Discharge Dated 8.1.2010 As Well As Order Framing Charge Dated 5.2.2010 Are Patently Illegal, Unjust And Must Be Set Aside. They Submitted That Entire Prosecution Is Based On Malafides And Therefore, Both Impugned Orders Be Quashed. Sri Sengar For The Five Revisionists, Additionally Submitted That Against The Revisionists, There Is No Evidence At All To Frame Charges And Prosecute Them. He Submitted That Two Persons Who Had Filed Affidavits Before The I.O. Were Not Cited As Witnesses In Both Charge Sheets And, Therefore, Against Five Revisionists, There Is No Evidence At All For Their Prosecution. In Support Of The Said Argument, Sri Senger Referred To Both The Charge Sheets, Perusal Of Which Indicates That Neither Ram Niwas Nor Dinesh Kumar, The Two Persons Who Had Brought Complicity Of The Revisionists Into The Crime, Were Cited As Witnesses Therein. Sri Sengar, Therefore, Contends That In Absence Of Those Persons As Prosecution Witnesses, Prosecution Of The Revisionists With The Aid Of Section 120-B IPC Cannot Be Allowed To Go On And Will Be An Idle Formality. Learned Counsel Further Argued That In The Opening Statement, Under Section 226 Cr.P.C. Also, Public Prosecutor Had Not Stated That By The Evidence Of These Two Persons, He Would Like To Establish The Charge Against The Revisionist Accused. Further Buttressing His Contention, It Was Submitted That Affidavits Of Two Persons Were Filed Thirty Five Days After The Alleged Conspiracy. He Submitted That Perusal Of The Affidavits Unerringly Indicates That Whatever Has Been Testified In Those Affidavits And Later On Stated Under 161 Cr.P.C. Were Patently Absurd And Could Not Have Been Accepted As Gospel Truth Nor Can Be Accepted By A Man Of Ordinary Prudence. He Contended That No Conspiracy Was Hatched Up While Sitting On An Erected Platform In An Open Place Besides Public Way In Such A Loud Voice So As To Be Audible Even To Passer's By. Contiguously It Was Contended That Conspiracy Is A Clandestine Meeting Of Minds Between Two Or More Persons To Do An Illegal Act Or A Legal Act By An Illegal Means And When It Is Done In A Manner Which Can Be Known To All And Sundry Prior To It's Execution, It Is No Conspiracy At All. He Submits That Nobody Conspire Besides A Public Way In Loud Voice By Shouting And Making Aware Of Their Designs To Every Pedestrian. These Witnesses Heard The Conspiracy On 11.6.2000 At 6 Or 7 P.m. But They Never Informed To The Informant Or Injured And Kept Quiet Albeit Incident Occurred Fifteen Days Subsequent Thereto. Ld. Counsel Pointed Out To Paragraph No.8 Of The Affidavit, Wherein It Has Been Averred By The Testators That They Do Not Have Any Fear From Anybody, To Submit That Their Explanation For Not Disclosing The Conspiracy To Others Is A False Statement As, According To Their Claim Itself They Had No Fear. It Was Only When They Realised The Unnaturalness Of Their Fabricated Version That They Improved Upon Their Affidavits To Attach An Explanation To Their Most Weird And Unnatural Conduct By Appendaging A Note By Stating That Since They Were Threatened, They Had Not Disclosed The Conspiracy Part To Anybody. It Was Therefore, Contended That Entire Scenario Presented By The Prosecution Through These Two Witnesses Is So Palpably Unnatural And Incongruous That It Was Insufficient To Frame Charges Against The Revisionists And Prosecute Them On Such Unconvincing Material. Additionally It Was Contended That After The Incident, Testator Kept Quiet For More Than A Fortnight ( 19 Days) And It Was Only After Such An Inordinate Gap, On 15.7.2000, That They Filed Their Affidavits Before The I.O. Learned Counsel Went On To Contend That Subsequent Conduct Of These Two Witnesses Further Provided Reasons Not To Charge The Revisionist And Put Them On Trial As These Two Persons Moved Another Application With Their Affidavits, Annexure No.9, Denying Their Earlier Affidavits Favouring Prosecution Version. It Is Further Submitted That Trial Judge Instead Of Acting As Post Office Should Have Applied His Judicial Mind, Scanned The Material Dispassionately To Arrive At A Decision Whether To Frame Charges Or Not And Since He Had Eschewed To Under Take That Exercise And Had Acted In A Mechanical Manner Of Accepting Most Absurd Prosecution Version Impugned Order Cannot Be Sustained And Revisionist Be Discharged. It Was Further Submitted That Even If Prosecution Case Is Taken To Be Correct, There Is No Evidence Of Any Conspiracy As, But For Utterance Mentioned Above, There Is No Material On Record In The Whole Case Diary To Suggest That Besides Above Utterances, Revisionist Took Any Step Further And, Therefore, Mere Utterances, Although False, Is Not Sufficient To Make Out An Offence Of Criminal Conspiracy. Learned Counsel Therefore, Prayed That Impugned Order Dated 8.1.2010 Refusing To Discharge The Revisionists Be Set Aside And Revisionist Be Discharged.
Learned AGA On The Other Hand Refuted All The Arguments Of The Revisionists' Counsel And Contended That Since There Was Statements Of Two Witnesses And Their Affidavits Were Also On Record, It Was Sufficient To Frame Charges Against The Accused Persons. He Further Submitted That So Far As Petitioner Naresh Is Concerned, He Is Named In The First Information Report And There Is Cogent, Reliable And Direct Evidence Of Eyewitness Against Him And, Therefore, He Has Been Rightly Charged Under Sections 307/120-B IPC. In The Circumstances, The Writ Petition Is Devoid Of Merit. Concludingly It Was Argued That Revision As Well As Writ Petition Be Dismissed.
I Have Considered Arguments Of Both The Sides And Have Perused The Material On Record. Before Adverting To The Merits Of The Matter, It Is Desirable To Peep Through Legal Proposition Stated By Hon'ble Apex Court In The Matter Of Framing Of Charge. In This Respect, Cr.PC. Ordains That After Committal Of Case, Session's Trial Commences Under Chapter XVIII. Under Section 226 Cr.P.C. Public Prosecutor Makes An Opening Statement Before The Court Describing The Charge Brought Against The Accused And Stating By What Evidences He Proposes To Establish Accused Guilt. Under Section 227 Cr.P.C. Trial Court Has To Hear The Accused And The Prosecution On The Question Of Discharge And If Trial Judge Considers That There Is No Sufficient Ground For Proceeding Against The Accused, He Shall Record Discharge Order Mentioning His Reasons Therefor. It Is Only When Trial Judge Refused To Discharge The Accused, That He Is Required To Frame Charges Under Section 228 Of Code. In Such Scheme Of Trial Procedure, Sections 227/228 Cr.P.C. And The Words "no Sufficient Ground For Proceedings" Have Been Subject Of Many Judicial Pronouncements By Hon'ble Apex Court Wherein The Law In Above Respect Has Been Laid Down Succinctly. To Mention Some Of Those Decisions Hon'ble Apex Court In The Case Of Union Of India Vs. Prafulla Kumar Samal And Another: AIR 1979 SC Page 366,has Been Pleased To Observe As Under;-
"7. Section 227 Of The Code Runs Thus:-
"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."
The Words 'not Sufficient Ground For Proceeding Against The Accused' Clearly Show That The Judge Is Not A Mere Post-office To Frame The Charge At The Behest Of The Prosecution, But Has To Exercise His Judicial Mind To The Facts Of The Case In Order To Determine Whether A Case For Trial Has Been Made Out By The Prosecution. In Assessing This Fact, It Is Not Necessary For The Court To Enter Into The Pros And Cons Of The Matter Or Into A Weighing And Balancing Of Evidence And Probabilities Which Is Really His Function After The Trial Starts. At The Stage Of Section 227, The Judge Has Merely To Sift The Evidence In Order To Find Out Whether Or Not There Is Sufficient Ground For Proceeding Against The Accused. The Sufficiency Of Ground Would Take Within Its Fold The Nature Of The Evidence Recorded By The Police Or The Documents Produced Before The Court Which Ex Facie Disclose That There Are Suspicious Circumstances Against The Accused So As To Frame A Charge Against Him.
8. The Scope Of Section 227 Of The Code Was Considered By A Recent Decision Of This Court In The Case Of State Of Bihar V. Ramesh Singh, (1978) 1 SCR 257 : (AIR 1977 SC 2018) Where Untwalia J. Speaking For The Court Observed As Follows (at P. 2019):-
"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 Guild Of The Accused Which Is To Be Drawn At The Initial Stages 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. If 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."
This Court Has Thus Held That Whereas Strong Suspicion May Not Take The Place Of The Proof At The Trial Stage, Yet It May Be Sufficient For The Satisfaction Of The Sessions Judge In Order To Frame A Charge Against The Accused. Even Under The Code Of 1898 This Court Has Held That A Committing Magistrate Had Ample Powers To Weigh The Evidence For The Limited Purpose Of Finding Out Whether Or Not A Case Of Commitment To The Sessions Judge Has Been Made Out.
9. In The Case Of K. P. Raghavan V. M. H. Abbas, AIR 1967 SC 740 This Court Observed As Follows (at P. 742):-
"No Doubt A Magistrate Enquiring Into A Case Under S. 209, Cr. P. C. Is Not To Act As A Mere Post Office, And Has To Come To A Conclusion Whether The Case Before Him Is Fit For Commitment Of The Accused To The Court Of Session".
To The Same Effect Is The Later Decision Of This Court In The Case Of Alamohan Das V. State Of West Bengal, (1969) 2 SCR 520 : (AIR SC 863) Where Shah, J. Speaking For The Court Observed As Follows (at P. 866) :-
"A Magistrate Holding An Enquiry Is Not Intended To Act Merely As A Recording Machine. He Is Entitled To Sift And Weigh The Materials On Record, But Only For Seeing Whether There Is Sufficient Evidence For Commitment, And Not Whether There Is Sufficient Evidence For Conviction. If There Is No Prima Facie Evidence Or The Evidence Is Totally Unworthy Of Credit, It Is His Duty To Discharge The Accused : If There Is Some Evidence On Which A Conviction May Reasonably Be Based, He Must Commit The Case."
In The Aforesaid Case This Court Was Considering The Scope And Ambit Of Section 209 Of The Code Of 1898.
10. Thus, On A Consideration Of The Authorities Mentioned Above, The Following Principles Emerge:
(1) That The Judge While Considering The Question Of Framing The Charges Under Section 227 Of The Code 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;
(2) 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.
(3) The Test Of Determine A Prima Facie Case Would Naturally Depend Upon The Facts Of Each Case And It Is Difficult To Lay Down A Rule Of Universal Application. By And Large However If Two Views Are Equally Possible And The Judge Is Satisfied That The Evidence Produced Before Him While Giving Rise To Some Suspicion But Not Grave Suspicion Against The Accused, He Will Be Fully Within His Right To Discharge The Accused.
(4) That In Exercising His Jurisdiction Under Section 227 Of The Code The Judge Which Under The Present Code Is A Senior And Experienced Court Cannot Act Merely As A Post-Office Or A Mouth-piece 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 Appearing In The Case And So On. This However Does Not Mean That The Judge Should Make A Roving Enquiry Into The Pros And Cons Of The Matter And Weigh The Evidence As If He Was Conducting A Trial."
(emphasis Supplied)
Subsequently, In Niranjan Singh K.S. Punjabi Advocate Vs. Jitendra Bhimraj Bijja And Others: AIR 1990 SC 1962, Hon'ble Apex Court Has Been Pleased To Observe As Under:-
"7. Again In Supdt. And Remembrancer Of Legal Affairs, West Bengal V. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) This Court Observed In Paragraph 18 Of The Judgment As Under:
"The Standard Of Test, Proof And Judgment Which Is To Be Applied Finally Before Finding, The Accused Guilty Or Otherwise, Is Not Exactly To Be Applied At The Stage Of Section 227 Or 228 Of The Code Of Criminal Procedure, 1973. At This Stage, Even A Very Strong Suspicion Founded Upon Materials Before The Magistrate Which Leads Him To Form A Presumptive Opinion As To The Existence Of The Factual Ingredients Constituting The Offence Alleged May Justify The Framing Of Charge Against The Accused In Respect Of The Commission Of That Offence.
From The Above Discussion, It Seems Well Settled That At The Sections 227-228 Stage The Court Is Required To Evaluate The Material And Documents On Record With A View To Finding Out If The Facts Emerging Therefrom Taken At Their Face Value Disclose The Existence Of All The Ingredients Constituting The Alleged Offence. The Court May 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."
Recently In Case Of P. Vijayan Vs State Of Kerala And Another:2010 SC 663, The Aforesaid View Has Been Reaffirmed By Hon'ble Apex Court As Under:-
"10. 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. Further, The Words "not Sufficient Ground For Proceeding Against The Accused" Clearly Show That The Judge Is Not A Mere Post Office To Frame The Charge At The Behest Of The Prosecution, But Has To Exercise His Judicial Mind To The Facts Of The Case In Order To Determine Whether A Case For Trial Has Been Made Out By The Prosecution. In Assessing This Fact, It Is Not Necessary For The Court To Enter Into The Pros And Cons Of The Matter Or Into A Weighing And Balancing Of Evidence And Probabilities Which Is Really The Function Of The Court, After The Trial Starts. At The Stage Of Section 227, The Judge Has Merely To Sift The Evidence In Order To Find Out Whether Or Not There Is Sufficient Ground For Proceeding Against The Accused. In Other Words, The Sufficiency Of Ground Would Take Within Its Fold The Nature Of The Evidence Recorded By The Police Or The Documents Produced Before The Court Which Ex Facie Disclose That There Are Suspicious Circumstances Against The Accused So As To Frame A Charge Against Him.
11. The Scope Of Section 227 Of The Code Was Considered By This Court In The Case Of State Of Bihar V. Ramesh Singh (1977) 4 SCC 39 : (AIR 1977 SC2018), Wherein This Court Observed As Follows:-
"......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. If 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....."
From The Above Exposition Of Law What Has Been Laid Down Is That At The Stage Of Discharge / Framing Of Charge, Trial Judge Has To Apply His Judicial Mind Only For Limited Purpose To See Whether There Is Sufficient Ground For Proceeding Or Not? At That Stage, He Is Not To Weigh And Sift The Evidences Critically To Find Out Truth Or Otherwise Of The Prosecution Case But At That Same Time He Is Not To Act As Post Office And Be A Mouth Piece Of Prosecution Version. Further If There Is Only A Suspicion And Not Grave Suspicion Then Charge Should Not Be Framed Against The Accused. It Is Only In Cases Where There Is Grave Suspicion Against The Accused Of His Being Involved In The Crime That The Accused Should Be Charged With The Offence Disclosed Against Him. This View Expressed In The Decision Of State Of Bihar Vs. Ramesh Singh: AIR 1977 SC 2018 Has Been Approved In The Decision Of P.Vijayan(Supra).
In View Of The Above Pronouncements, Reverting Back To The Facts Of The Present Case It Seems That So Far As Petitioner Naresh Is Concerned, He Is Named Accused In The F.I.R. Against Him There Is Categorical Clear Averments That He Was The Person Who Had Surrounded The Injured And The Informant Alongwith His Other Compatriate Accused And Had Shot At The Injured Govardhan After Hurling Threats. In Their Statements Under Section 161 Cr.P.C., Informant And The Injured Along With Other Eyewitnesses Have Specifically Stated His Direct Participation In The Crime.Merely On Volatile Plea Of False Implication Because Of Rivalry Is No Ground To Discharge Him. There Is No Scope For Naresh To Be Discharged. His Writ Petition, Therefore, Sans Merit, As The Trial Judge Has Rightly Charged Him With Offence Under Section 307 IPC.
In The Aforesaid View, I Do Not Find Any Merit In The Writ Petition Filed By Naresh. Contention Of Petitioner's Counsel In Writ Petition, Therefore, Is Hereby Repelled. Here At This Juncture, It Would Be Appropriate For This Court To Make A Note That The Trial Judge Has Charged All The Accused Persons Simultaneously With Offences Under Sections 307, 120B IPC Vide It's Order Dated 5.2.2010. This Act Of Trial Judge Is Not In Consonance With The Prosecution Allegations And Materials Contained In The Case Diary Against Naresh. Framing Of Charge Is Not An Idle Formality. An Accused Can Be Charged Only With An Offence, Which He Has Committed As Is Discernible From The Material Placed Before The Trial Court. For Naresh A Named Accused In The FIR And Charge Sheet, Since He Has Been Assigned The Main Role Of Shooting, He Should Have Been Charged With Offence U/S 307 Simplicitor And Not With The Aid Of Section 120 B IPC. He Is One Of The Main Culprits. Learned Trial Judge Will Do Well To Look Into Said Aspect Of The Matter And Correct The Procedural Error. However, On That Score, There Is No Reason For This Court To Interfere In The Writ Jurisdiction And Therefore, Writ Petition Preferred By Accused Naresh Is Hereby Dismissed.
Turning Towards The Revision Preferred By Other Accused Persons, Who Have Been Charged With The Aid Of Section 120B I.P.C. Prima Facie Some Very Disturbing Features Have Surfaced Which, Taken On Its Their Face Value, Will Be Sufficient To Lean In Revisionist's Favour To Set Aside The Impugned Order Refusing To Discharge Them. First And Foremost Only Evidence Against Them Comes From Affidavits And 161 Statements Of Ram Niwas And Dinesh Kumar But Very Queerly They Have Not Been Cited As Witnesses In The Charge Sheet. None Of These Two Witnesses Allege Any Action By The Revisionists To Lend Credence To Their Statements. All That Their Statements Reveal Is Grouse Or Motive Which Is Insufficient To Frame Charges Of Criminal Conspiracy Against The Revisionists. Learned Trial Judge Completely Ignored This Important Aspect Of The Matter. Attour Neither The Informant Nor The Injured Had Stated Anything In That Respect Of Any Conspiracy Being Hatched Up By The Revisionists Either In Their F.I.R. Or Their 161 Cr.P.C. Statements. It Is Very Bizarre That These Two Star Witnesses Of The Prosecution Are Completely Silent On The Said Aspect Of The Matter. It Seems That The Individual Act Of Named Accused Persons Was Stretched To Wreck Vengeance To Rope In Other Persons Of Rival Faction, The Revisionist. Informant And The Injured Were The Best Witnesses To Have Divulged Any Conspiracy Against Them Being Hatched Up By The Revisionists. They Even Did Not Express Their Apprehensions About Any Conspiracy Being Hatched Up For Committing Crime Against Them. Mere Discussion Or Knowledge Or Even Plan Is Not Enough To Bring Element Of Conspiracy. There Has To Be Meeting Of Minds Of The Accused And On This Aspect There Was No Material Available On Record Before The Trial Judge. In This Respect Decision By The Apex Court In Kehar Singh Versus State(Delhi Administration) AIR 1988 SC 1883 Is Apposite Wherein It Has Been Held As Under:-
"268. Before Considering The Other Matters Against Balbir Singh, It Will Be Useful To Consider The Concept Of Criminal Conspiracy Under Ss. 120-A And 120-B, IPC. These Provisions Have Brought The Law Of Conspiracy In India In Line With The English Law By Making The Overt-act Unessential When The Conspiracy Is To Commit Any Punishable Offence. The English Law On This Matter Is Well-settled. The Following Passage From Russell On Crime (12 Ed. Vol. I, 202) May Be Usefully Noted :
"The Gist Of The Offence Of Conspiracy Then Lies, Not In Doing The Act, Or Effecting The Purpose For Which The Conspiracy Is Formed, Nor In Attempting To Do Them, Nor In Inciting Others To Do Them, But In The Forming Of The Scheme Or Agreement Between The Parties. Agreement Is Essential. Mere Knowledge, Or Even Discussion, Of The Plan Is Not, Per Se, Enough."
For The Motive Part Civil Suit Was Pending Between Raj Kumar @ Brij Lal As Plaintiff Against Govardhan, Upendra, Raj Kumar, Sri Niwas,Rakesh, Naresh, Chandramani, Govind, Vijendra, Nagendra, Gaurav And Saurav As Defendants. None Of The Revisionist Was Concerned With Civil Suit. Why Then They Will Hatch Up A Conspiracy? Delay Of More Than A Month, Two Weeks Prior To Happening Of The Incident And More Than A Fortnight After It's Execution, In Making Disclosure Affidavits By The Two Witnesses Makes Then Wholly Unreliable And Got Up Witnesses And, Even Prima Facie, Their Disclosure Does Not Inspire Any Confidence At All. Trial For The Sake Of Trial Should Not Be Encouraged. This View Is Further Strengthened By The Fact That According To The Two Witnesses Ram Niwas And Dinesh Kumar, They Heard The Conspiracy Being Hatched Up By The Revisionists On 11.6.2000 On 6-7.00 P.m. While Sitting On An Erected Pedestal Outside The House Of Dev Sharma When Son Of Dev Sharma Had Called Them. It Is Very Surreal That Dev Sharma And His Associates Will Hatch Up A Conspiracy Outside Their House In Such A Loud Voice So As To Be Audible Even To Passers By Independent Persons To Create Evidences Against Themselves. All The More Dicey And Absurd Is The Fact That It Was Dev Sharma's Son, Chhotu, Who Had Called The Aforesaid Witnesses To Their House. Why Then The Revisionist Will Converse In Such A Loud Voice To Be Audible To The Two Persons. Affidavits As Well As Statements Of These Two Witnesses Are So Unconvincing, Unnatural And Against Normal Human Conduct That It Do Not Inspire Any Confidence To Believe It Even Prima Facie. All This Has Been Noted Not To Scan Evidence In All It's Pros And Cons But Only To Project That There Was No Sufficient Material Before The Trial Judge To Come To A Prima Facie Conclusion That There Was No Sufficient Ground For Proceeding Against The Revisionist. On Such Confidence Shaking Material To Rope In Five Persons To Stand Trial For A Charge Of Attempt To Murder Will Not Be In The Interest Of Justice. On The Face Of It Depositions Of These Two Witnesses, Without Being Tested By Cross Examination Is So Absurd That On That Basis It Is Insufficient To Hold That There Is Sufficient Ground For Proceeding Against The Revisionist. Their Affidavits And Depositions Are On The Face Of It Seems To Be Motivated And Untruthful. If These Two Persons Had Heard The Alleged Conspiracy On 11.6.2000, Then Why They Kept Silent For Another 15 Days Prior To It's Execution?. In The Affidavits, These Witnesses Have Testified That They Do Not Had Fear From Anybody And If That Was A Fact, There Was No Occasion For These Two Persons Not To Intimate The Informant And The Injured About The Alleged Utterances Which They Had Heard Fifteen Days Prior To The Date Of The Incident.
Another Disturbing Feature Of The Case Is That Even After Happening Of The Incident They Chose To Remain Silent For More Than A Fortnight And It Was Only After That They Filed Their Affidavits To The I.O. Their Conduct Makes Them Untruthful And Planted Witnesses. As Held By The Apex Court Trial Court Should Not Be Silent Spectator To The Prosecution Version Nor It Should Be A Mouth Piece Of It And While Treading Into Permissible Area Of Scanning It Should Not Ignore Most Unconvincing Nature Of Allegations To Charge Accused To Face Trial. In Arriving At A Conclusion As To Whether There Is Grave Suspicion Or Not Nature Of Evidence Must Have Some Degree Of Credibility And Not Be Of Such A Category As To Brush It Aside At The Very First Analysis. Adding Another Blow To The Prima Facie Case Being Disclosed Or Not Is The Affidavit Which Was Given After A Gap Of Thirty Four Days Of Hearing Of Conversations. This By Itself Was Sufficient To Come To A Prima Facie Conclusion That There Was No Sufficient Material To Proceed Against The Revisionists As The Facts Disclosed Thereunder Did Not Projected Even Suspicion And Were Most Unnatural Rather Than Real. In Union Of India( Supra) It Has Been Observed By The Apex Court That "if An Evidence Is Unworthy Of Credence" Then There Is No Reason To Charge The Accused. In This Respect Regard Can Be Had To The Apex Court Decision In Alamohan Das And Others Versus State Of West Bengal : AIR 1970 SC 863 Wherein It Has Been Observed By The Apex Court As Under:-
"In Terms Section 209 Applies To Cases Which Are Instituted Otherwise Than On A Police Report. But The Principle Underlying That Section Applies To Cases Which Are Instituted On A Police Report. A Magistrate Holding An Enquiry Is Not Intended To Act Merely As A Recording Machine. He Is Entitled To Sift And Weigh The Materials On Record, But Only For Seeing Whether There Is Sufficient Evidence For Commitment, And Not Whether There Is Sufficient Evidence For Conviction. If There Is No Prima Facie Evidence Or The Evidence Is Totally Unworthy Of Credit, It Is His Duty To Discharge The Accused; If There Is Some Evidence On Which A Conviction May Reasonably Be Based, He Must Commit The Case. The Magistrate At That Stage Has No Power To Evaluate The Evidence For Satisfying Himself Of The Guilt Of The Accused. The Question Before The Magistrate At That Stage Is Whether There Is Some Credible Evidence Which Would Sustain A Conviction."
In View Of Forgoing Discussions, It Is Clear That Prima Facie On Examination Of Prosecution Case, There Was No Sufficient Material To Charge The Accused Revisionists For Offence Of Conspiracy. Trial For The Sake Of Trial, Should Not Be Permitted. If Evidence Against The Accused Is Absurd, Unnatural And Unconvincing Then The Same Has To Be Taken Into Consideration By The Trial Judge At The Stage Of Framing Of Charge. Observation By Hon'ble Apex Court In The Case P. Vijayan (supra) In Paragraph 10 Has To Be Given A Meaningful Application. Hon'ble Apex Court Has Observed; "further, The Words "not Sufficient Ground For Proceeding Against The Accused" Clearly Shows That The Judge Is Not Mere Post Office To Frame Charge At The Behest Of The Prosecution But Has To Exercise His Judicial Mind To The Facts Of The Case In Order To Determine Whether The Case For Trial Has Been Made Out By The Prosecution". The Above Exposition Of Law Has To Be Applied To Curb Uncalled For And Un-necessary Prosecution Launched To Wreck Vengeance.
In The Present Case, Trial Judge Has Completely Eschewed To Do So. Scanning Of The Impugned Order Dated 8.1.2010 By Which Discharge Prayer Of The Revisionists Has Been Refused, It Is Clear That Trial Judge Has Noted Only The Contentions Of The Prosecution And The Accused Submissions But Without Any Discussion And Critical Analysis Has Rejected The Discharge Prayer Of The Accused. On What Basis, The Contentions Of The Accused Has Been Negated, Has Not Been Mentioned Anywhere. The Trial Judge Has Also Not Applied His Judicial Mind To The Fact That Even If Affidavits By The Two Witnesses Are Taken On It's Face Value, It Is Wholly Insufficient To Frame Charges Against Accused As Testimony Of These Witnesses Contained In Those Affidavits Are So Inherently Improbable And Unconvincing That It Cannot Stand The Test And Scrutiny Even For A Moment And, Moreover They Are Not Evidences Of Any Conspiracy And, Therefore, There Was Absence Of Prima Facie Material To Prosecute Revisionists With The Aid Of Section 120-B IPC.
In View Of The Above Discussion, Criminal Revision No.512 Of 2010,Dev Sharma And Others Versus State Of U.P. And Another, Is Hereby Allowed. Impugned Order Dated 8.1.2010 Passed By Additional Session's Judge,/FTC, Court No.3, G.B.Nagar In S.T.No. 126 Of 2009, State Versus Dev Sharma And Others, Rejecting Discharge Application 6 Kha Filed By The Revisionists Dev Sharma, Jugul Kishore, Nahar Singh, Kanchhi Lal Sharma And Hari Kishan, Is Hereby Set Aside And Prayer Of The Revisionist From Being Discharged From Offences U/S 307/120B IPC In The Above S.T. No. 126 Of 2009, State Versus Dev Sharma And Others Pending Before Additional Sessions Judge / F.T.C., Court No. 3, G.B. Nagar Is Allowed.
Writ Petition Dismissed. Revision Allowed As Above.

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