IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2206 of 2003 Date of Decision : September 21, 2010 Jangsher Singh ....Petitioner Versus State of Haryana and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.K. Sud, Advocate for the petitioner. Mr. Raja Sharma, Assistant Advocate General, Haryana for respondent No.1. Mr. Saurabh Dalal, Advocate for respondents No.2 to 4. T.P.S. MANN, J. Order dated 6.9.2003 passed by Additional District and Sessions Judge (Ad hoc), Jhajjar while discharging accused/respondents No.2 to 4 of the offence punishable under Sections 302/34 IPC has been impugned by the complainant by filing the present revision. DDR No.9 dated 23.2.1999 was entered at Police Station, Jhajjar at 11.50 a.m. on the basis of a statement made by Dhir Singh, Deputy Sarpanch of village Dhakla. It was stated by Dhir Singh that on 23.2.1999 at about 7.00 a.m. when he was present at his house, Bhagwan Singh, who was Chowkidar of Mini Bank of village Dhakla, Criminal Revision No.2206 of 2003 -2- came and informed him that a dead body of a young man with his face downward was lying near the building of Mini Bank. Accordingly, Dhir Singh accompanied Bhagwan Singh, Chowkidar to the spot and saw the dead body lying there. He identified the dead body to be that of Vijay Kumar @ Bablu son of Dilawar Singh of village Dehroli, who at that time used to reside at village Jhakala. He was married with Vinod Bala @ Devi. The couple was, however, not on good terms as Vinod Bala had filed a petition against her husband for the return of dowry articles. Some froth and blood had come out from the nose of Vijay Kumar. Following entering of DDR No. 9, ASI Sant Ram visited the spot with Dhir Singh for conducting proceedings under Section 174 Cr.P.C. He obtained photographs of the dead body and prepared the inquest report. The dead body was then sent to Civil Hospital, Jhajjar for post-mortem. The doctor, who conducted the post mortem, gave a report that the death had occurred on account of head injury. At the time when ASI Sant Ram was still present in the hospital at Jhajjar, petitioner- Jangsher Singh came there and submitted a written complaint to the effect that his younger brother Vijay Kumar deceased was married with Vinod Bala in the year 1977. Said Vinod Bala was a hot tempered lady and her relations with her husband were not smooth. She started living at the house of her parents. The deceased filed a petition for restitution of conjugal rights, whereas Vinod Bala filed a suit for the return of dowry articles. About 20 days thereafter, Vijay Kumar was called at Criminal Revision No.2206 of 2003 -3- Dhakla and the family members of Vinod Bala gave him beatings and a false case was registered against him. Accordingly, their relationship had virtually come to an end. Still, on 22.2.1999, respondent-Sanjay @ Gapu, brother of Vinod Bala, accompanied by sons of Braham Dev and Ajit and one another boy came to the shop of the complainant at Gudhiani. The time was about 2/2.30 P.M. At that time, deceased-Vijay Kumar, Brahma Nand and Om Parkash Pandit of Surakhpur were also sitting there. Sanjay @ Gapu and his three companions took Vijay Kumar with them saying that a Panchayat had been convened in their village for effecting some compromise. Vijay Kumar accompanied them. On the next day, at about 12.00 noon, the complainant received the information that the dead body of his brother Vijay Kumar was found lying near Mini Bank of village Dhakla and there were injuries on his body. Accordingly, the complainant stated in his written complaint that he was quite confident about his brother Vijay Kumar having been murdered by Sanjay @ Gapu, Vinod Bala, Kamla Devi, wife of Om Parkash, sons of Braham Dev and Ajit and one another boy, whose name he did not know but could identify him. In view of the complaint and the post-mortem report, commission of offences under Sections 302/34 IPC was made out. Accordingly, the complaint was sent to the Police Station, on the basis of which FIR No.74 dated 23.2.1999 was registered at 8.45 p.m. at Police Station, Jhajjar under Sections 302/34 IPC. Criminal Revision No.2206 of 2003 -4- During investigation, ASI Sant Ram visited the spot and prepared rough site plan of the place where dead body was lying. He also picked up blood stained earth from the spot. On 26.2.1999, the investigation of the case was taken up by Inspector Rohtash Singh of CIA Staff, who recorded the statements of Brahma Nand and Om Parkash, the two witnesses named by the complainant in his statement. As those two persons failed to support the version of the complainant, the police left the matter there and collected no other evidence. On 25.6.1999 SI Randhir Singh recorded the statement of one Dharambir Singh wherein he stated about his meeting Vijay Kumar on 22.2.1999 at about 2.30 P.M. when he was accompanied by his brother-in-law Sanjay @ Gapu, Surender son of Braham Dev, Sandeep son of Ajit and Mula son of Mukhtiar Singh. On 7.7.2000, the statement of Umesh son of Hans Raj was also recorded by SI Randhir Singh, wherein he stated that on the night intervening 22/23.2.1999 at about 2.30 A.M. when he was passing through village Dhakla with his buffalo, he saw Vijay Kumar rushing out of the house of his father-in-law and was being followed by Sandeep and Surender. One woman having danda in her hand and Vinod Bala wife of Vijay Kumar were also running after him. Those boys over- powered Vijay Kumar and the woman handed over the danda to Vinod Bala exhorting her to set Vijay Kumar right as he had spoiled her life Criminal Revision No.2206 of 2003 -5- and defamed them. Vinod Bala struck a danda blow on the head of Vijay Kumar, who was then dragged to their house. Upon completion of investigation, final report under 173 Cr.P.C. for commission of offence under Sections 302/34 IPC was submitted against respondents No. 2 to 4. It was followed by commitment of the case to the Court of Sessions. After going through the final report and the documents submitted therewith, besides hearing learned counsel for the parties, learned Additional Sessions Judge (Ad hoc), Jhajjar came to the conclusion that the prosecution had failed to establish a prima facie case against the accused persons challaned by it. Accordingly, the accused were discharged. I have heard learned counsel for the parties and perused the impugned order. At the time of consideration of the case for the purpose of framing the charges, the Court has to find out as to whether or not a prima facie case against the accused has been made out. In doing so, the Court can sift and weigh the evidence. However, where the material placed before the Court discloses grave suspicion against the accused, the Court would be fully justified in framing charges and proceeding Criminal Revision No.2206 of 2003 -6- with the trial. If two views are equally possible and the trial Judge is satisfied that the evidence produced before him gives rise to some suspicion and not grave suspicion against the accused, he would be well within his right to discharge the accused as he has not to act merely as a post office or a mouth piece of the prosecution but has to consider the broad probabilities of the case. However, the total effect of the evidence and the documents produced before the Court is required to be seen. This, however, does not require the Judge to make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he is conducting a trial. Referring to State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the Hon’ble Supreme Court in Union of India v. Prafulla Kumar Samal and another, AIR 1979 SC 366, laid down the following principles to be followed by the Courts under Section 227 of the Code of Criminal Procedure while taking up consideration of the case for the purposes of framing the charges :- “(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; Criminal Revision No.2206 of 2003 -7- (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 to 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.” Criminal Revision No.2206 of 2003 -8- The scope of Section 227 Cr.P.C. was also considered in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, 1991 (1) Recent Criminal Reports 88, wherein it was held as under :- “The next question is what is the scope and ambit of the 'consideration' by the trial Court at the stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed ? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh, (1978) 1 SCR 257, this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion/evidence which leads the Court to think that there is ground for Criminal Revision No.2206 of 2003 -9- 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. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by 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. In Union of India v. Prafulla Kumar Samal, (1979) 2 SCR 229, this Court after considering the scope of Section 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that 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 weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value established the ingredients constituting the said offence.” In Soma Chakravarty v. State through CBI, (2007) 5 SCC 403, it was held that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can Criminal Revision No.2206 of 2003 -10- frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused had committed the offence. At the time of framing of the charges, the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true. 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. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge. In the present case while discharging the accused- respondents at the time of consideration of charge, the learned Court below observed as follows :- “I have heard the learned Public Prosecutor for the State and the counsel for the applicant. The witnesses cited by the complainant in his written complaint, i.e. Brahma Nand and Pandit Om Parkash failed to support the version that Sanjay, Surender, one boy son of Ajit and one more boy all came to his clinic at Gudhiana when his brother Vijay was there and they took Vijay with them to Criminal Revision No.2206 of 2003 -11- Dhakla for having some talk for compromise. Instead, Brahma Nand stated that Vijay came to the Clinic and told his brother that some persons of Dhakla including his brother-in-law had come to take him with them. His brother advised him not to go with them because he was earlier beaten by them but still he insisted that he should go there and then he went with them. The other witness Pandit Om Parkash stated only that Vijay was saying to his brother that he would be coming with them. Their statements were recorded on 26.2.1999 when the FIR was registered on 23.2.1999 under Section 302/34 IPC and the name of both of them was available in that FIR. The dead body had also been recovered that day and post-mortem examination had also been obtained. The delay for three days in recording the statement of witnesses is abnormal. There are no reasons why that much delay occurred. Thereafter, no progress took place nor the case was forwarded for conciliation (sic) as untraced. Further, after 1½ or 2 years the statements of other two witnesses were recorded by another Investigating Officer. One of them is Dharambir resident of Khandwa, District Bhiwani. He claimed himself to be friend of Vijay but he has not stated how he is related with him or in what way he knew him. Vijay met him at Bus Stand, Gudiani per chance when three/four other persons were also with him. He mentioned the name of all the four persons saying that he knew them all earlier. This shows that he was visiting Vijay at his house and also the house Criminal Revision No.2206 of 2003 -12- of his father-in-law. When he was so much familiar with both the families he made no report either to the police in that behalf nor he told anything to the complainant that he saw Vijay sometime earlier to his death. As he was quite close to the family and was friend of Vijay he must have come to know about his death. His remaining silent for such a long period of about two years throws doubt on his version. Otherwise too the evidence of last seen is a weak type of evidence. It was held in 2001(2) Criminal Courts Judgments 7 by the Hon'ble Punjab & Haryana High Court that evidence of last seen which suffers from unnatural conduct of the witness who last saw the deceased with the accused who were quarreling and did not disclose the same to the police or members of the family of the deceased though he was present on funeral ceremony, his conduct was unnatural and could not be relied upon. This witness who was so close to both the families as he knew the name of all must have come to know about his death but he remained silent for two years and it is unnatural conduct on his part. It was held in 1992(2) CCJ 253, Harikant V. State of Haryana that in so far as evidence of last seen is concerned no conviction on the said solitary piece of circumstantial evidence can be based. The other witness Ramesh saw the deceased Vinod Bala giving danda blow at the head of the Criminal Revision No.2206 of 2003 -13- deceased, her husband. As claimed by him he knew the deceased as well as his wife. He is resident of village Gudhiani where the complainant Om Parkash brother of the deceased is running his clinic. He was known to the entire village. The death of his brother could not be a secret. When the dead body was brought to the village on the next day of the night of occurrence everybody in the village must have come to know about it. But the witness did not disclose anything to the complainant or to the police that day or on the next day and no such disclosure was made upto a period of 1½ years of the occurrence. It was held in 1992 Supreme Court Cases (Crl.) 329 State of Karanataka V. Venkatesh that where the ace prosecution witness did not disclose relevant information to any one at the earliest i.e. for a long period of two days it created serious doubt on the genuineness of the prosecution case. Again he was not supposed to take a buffalo through the village at 2.00 A.M. He could be apprehended anywhere on suspicion of theft. He knew the deceased and his wife also and the complainant was running a Clinic in his village. So he knew the entire family and he could do something for the deceased. He raised no alarm nor any protest against the beating nor he intervened. He went ahead silently and even after reaching in his village he did not disclose it to the complainant. So his conduct was unnatural. As already mentioned the statements of these two witnesses was recorded by the police after a period of more than 1½ years. In 2001(1) Criminal Revision No.2206 of 2003 -14- RCR (Criminal) 210, the Hon'ble Supreme Court held when the statement of eye witnesses was recorded by the police three months after the incident and the delay was unexplained it threw a serious doubt as to whether he was really an eye- witness or not. As per the witness the deceased was running out of the house of his father-in-law at 2.00 A.M. apprehending danger to his life. Such person must raised alarm for seeking help of others. Five/six persons were running after him. It is strange that none in the village could woke up and saw the occurrence. The danda blow was given forcefully and the deceased ultimately died. Even then neither any alarm was raised nor he cried. He was dragged back to the house but none in the village could see the occurrence. The entire matter appears improbable. In Gurdayal Singh v. State of Haryana, 1996 (2) RCR 656, it was held that it is the duty of the prosecution to prove its case beyond all reasonable doubt and that the accused is entitled to the benefit of doubt if the prosecution case appears to be improbable. A Panchayat was held in the village and about a dozen of respectable persons were named to have a probe in the matter and they concluded that in the murder of the deceased there was no hand of the family of the in-laws of the deceased nor of his own family. He was addicted to drugs and some excessive dose could be cause of his death. The police challaned three persons Sanjay, Criminal Revision No.2206 of 2003 -15- Vinod Bala and Sandeep while the remaining three persons Kamla Devi, Surender and Mool Chand were shown in column No.2. Ramesh had specifically named two persons and two ladies. He knew Vinod Bala personally and stated that the other lady was having danda and when the deceased had been apprehended she handed over the danda to Vinod Bala saying daughter he should not be spared. Thus, she was mother of Vinod Bala. No reasons have been given for not including her name in the persons challaned by the police. She was the only person who was having danda while pursuing the deceased. All other were empty handed. It is also strange that the deceased tried to escape at 2.00 A.M. and by that time all the six accused persons were present in the house. What they all were doing up to that time is not known, in case they had an intention of killing him he could be killed in the house itself. Moreover, six persons could not allow him to escape from the house. Surender, Sandeep and Mool Chand are not brothers of Vinod Bala. They were not supposed to participate in the murder.” It is apparent from the conclusions arrived at by the learned Court below that the said Court did not take up consideration of the case for finding out as to whether or not a prima facie case against the accused had been made out. In fact, an attempt was made to conduct a roving enquiry into the pros and cons of the matter and weighing the Criminal Revision No.2206 of 2003 -16- evidence as if it was conducting a trial. There may be some contradiction between the statement of Brahma Nand and Pandit Om Parkash, who were mentioned by the complainant in his written complaint, yet that could not have been made the basis for discharge of the accused. Similarly, the delay of three days in recording the statements of the aforementioned two witnesses could not have been made the basis for rejecting their testimonies. The effect of delay in recording of their statements had to be seen at the time of the trial. Similarly, the observation made by the Courts below that the evidence of last seen was weak type of evidence was too early in the day and the effect of the evidence of last seen was to be considered and appreciated after the recording of the statements of witnesses of the prosecution and the defence as well as the statement of the accused under Section 313 Cr.P.C., if any. The actual incident of causing of injuries could not have been doubted at the stage of consideration for the purposes of charge. In fact, to say the least, the Court below while passing the impugned order adopted the yard-stick which is