Anil and Others vs State of U.P. and Another

Y. K. Sangal, J.—Heard learned Counsel for the applicant, learned A.G.A. for the State and perused the record.

This is an application u/s 482, Code of Criminal Procedure to quash/set aside the orders dated 27.6.2009 and 4.8.2009, passed by the Session Judge in S.T. No. 1009 of 2008, State v. Anil and Ors. in Case Crime No. 536 of 2007 u/s 302/34, I.P.C., P.S. Masoori, district Ghaziabad.

A first information report was lodged naming all the three applicants that they were seen by the informant and other witnesses when they were coming out from sugarcane crop field of Surajpal and when the informant with the witnesses entered in the same sugarcane crop field as he was searching his son with the witnesses, he found that dead body of his son was laying in the field. Saying that they committed the murder of his son he lodged, the first information report at police station on the same day and investigation was started in the matter. Post-mortem of the dead body was conducted by the Doctor and Doctor has opined that death is due to asphyxia as a result of ante-mortem hanging. Ante-mortem injuries were also found by the Doctor around the neck of the deceased. Statement of the witnesses were recorded u/s 161, Code of Criminal Procedure Informant had also given motive to the accused for committing the murder saying that litigation was going on between the parties and earlier they had threatened him and they were annoyed with the informant. After completing the investigation charge-sheet was submitted against all the three accused persons. Cognizance was taken by the learned Magistrate and as the case was exclusively triable by the Court of Session so the same was committed to the Court of Session.

Learned Counsel for the applicants with reference to the statements of the witnesses recorded by the Investigating Officer during course of the investigation argued that at least there are two eye-witnesses namely Smt. Veerwati and Smt. Kunti who claimed themselves eye-witnesses of the occurrence and they said that some other persons committed the murder of the son of the informant. It was further said that some other witnesses have also said before the Investigating Officer that they also came to know that applicants are not the persons who committed the murder but murder was committed by some other persons and they have also named them.

On the other hand learned A.G.A. argued that after considering all the statements of witnesses recorded by the Investigating Officer during the course of investigation, what the Investigating Officer thought correct, he submitted the report of the same in the Court and as per the report, he found applicants were the actual culprits who committed the offence of murder. At this stage of framing the charge, Court has to see the evidence on which the prosecution relies. Accused person may have their defence, but the same cannot be considered at the time of framing the charge.

He referred the case law State of Orissa Vs. Debendra Nath Padhi, where the Apex Court held that papers filed by the accused at the stage of charge, will not be considered by the Court. Application for summoning the record on behalf of the accused will also not be considered as it is not material at the time of framing the charge what is the case of the accused persons. Only case of the prosecution and evidence relied by the prosecution is to be seen. In another case cited by the learned G.P. Sharma Vs. State of M.P., it was held that for discharge of the accused persons, report u/s 173, Code of Criminal Procedure only to be seen. After seeing the case diary and treating it as evidence, it is not proper to discharge the accused. In Krishna Kant v. Dilip Kumar 1984 ACR 156, it was held that at the time of framing the charge, Session Judge is not required to consider pros and cons of the matter and weigh the evidence as if he was conducting the trial. In Madan v. State 1986 SCC 146 : 1987 ACR 392 , it was held that if there is even a strong suspicion that applicants had committed the offence, the report lodged against them then charge should be framed. It will not be appropriate for the superior Court to disturb the order of framing the charge. In another case Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, it was held that if from the material on record inference of strong suspicion can be drawn, this will be sufficient for framing the charge.

In the present case, the applicants were seen coming out from the sugarcane crop field, immediately when the informant and other witnesses went inside the field they saw the dead body of the informant''s son. Time of death in first information report tallies with the time when the accused persons were seen coming out from the field. Learned A.G.A. argued that accused persons have not explained their presence on the place of occurrence at that time. It will be seen from the evidence to be adduced by the prosecution during the trial whether they were present there at that time or not. There is no reason at this stage to disbelieve the case of the prosecution which is case of strong suspicion against the accused persons that they might have been involved in committing the murder. It is correct that statement of the two witnesses are there who claimed themselves eye-witnesses of the occurrence saying that murder by some other persons but the Investigating Officer has not relied upon their statements. When the Investigating Officer will come in the witness box during the trial, he may explain in this regard. If the accused persons adduce defence evidence, their evidence will be considered by the trial Court.

Giving detailed and sufficient reasons, the trial Court has passed the impugned order and had taken decision to frame charge against the accused/applicants. There is no illegality, invalidity and impropriety at this stage in the impugned order. There is no reason for interference by this Court u/s 482, Code of Criminal Procedure in this matter. Application has no force and it is accordingly dismissed.