Satpal and Others vs State of Rajasthan and Others

Banwari Lal Sharma, J.—The present revision petition has been preferred by the petitioners-accused against the order impugned dated 19.12.2014 passed by the learned Additional Sessions Judge, Phalodi, District Jodhpur in Sessions Case No. 06/2014 whereby the learned Additional Sessions Judge ordered to frame charges against the petitioners-accused for offences under Sections 148, 364, 379 and 302 read with Section 149 IPC.

Brief facts of the case are that on 08.10.2013 complainant Jagdish Ram submitted a written report addressing to Station House Officer P.S. Bhojasar, District Jodhpur at Postmortem room, MDM Hospital Jodhpur stating therein as under:

On the aforesaid written report FIR No. 130/13 under Sections 147, 148, 365, 384 and 302/149 IPC was registered and investigation commenced. After investigation, the police submitted charge-sheet against the petitioners-accused Satpal, Radha Kishan and Jagmal Ram for the offences under Sections 147, 148, 365, 384 and 302/149 IPC, against accused Soda Ram for offence under Section 147, 148, 365, 384, 302 and 120-B IPC and against the accused Ugrasen and Manohar Ram Vishnoi for offence under Section 147, 148, 365, 384, 302 and 120-B IPC.

Since the matter was exclusively triable by the court of Sessions, therefore, learned Magistrate committed the case before the learned Additional Sessions Judge, Phalodi.

The Learned Additional Sessions Judge, after hearing ordered to frame charges against the present petitioners for offence under Sections 148, 364, 379 and 302/149 IPC vide impugned order dated 19.12.2014 against which petitioners-accused have preferred this revision petition.

Learned counsel for the petitioners-accused submits that petitioners-accused have been falsely implicated in this case and they were not present at the place of occurrence as the petitioners Soda Ram, Ugrasen and Manohar Ram Vishnoi were at Jodhpur at the time of alleged incident. He submits that during the course of investigation, the Investigating Officer collected their call details which shows the presence of accused Manohar Ram at Jodhpur, accused Soda Ram at Panchayat Samiti Baap, Phalodi and accused Ugrasen at village Jaisala at the residence of Ashok Kumar and Shiv Kumar which is 7 km away from the place of incident. He submits that accused Mohan Lal operated ATM of IDBI Bank by his ATM card and withdrew Rs. 5,000/- at Jodhpur on 07.10.2013 at 13.10 P.M. and witnesses Chain Singh, Megh Singh, Adu Ram, Magna Ram, Ashok Kumar and Shiv Kumar clearly stated that petitioners-accused were not present at the place of incident and they were at their respective places as aforesaid. He further submits that when there is impeachable oral and scientific evidence available on record then, there is no ground to discard the same and frame charges against the present petitioners. The learned court below without considering these facts wrongly framed charges against the present petitioners, therefore, this revision petition may be allowed and they may be discharged from the alleged charges.

Learned counsel relied upon the judgment delivered in State through Inspector of Police Vs. A. Arun Kumar and Anr. [2015 SAR (Criminal) 298 ], Rajiv Thapar and Others Vs. Madan Lal Kapoor, (2013) 2 AD 69 : (2013) CriLJ 1272 : (2013) 1 Crimes 169 : (2014) 1 DMC 644 : (2013) 2 JT 209 : (2013) 1 RCR(Criminal) 911 : (2013) 1 SCALE 665 : (2013) 3 SCC 330 : (2013) AIRSCW 784 : (2013) 1 Supreme 435 and Prashant Bharti Vs. State of NCT of Delhi, (2013) 2 AD 89 : AIR 2013 SC 2753 : (2013) CriLJ 3839 : (2013) 1 Crimes 195 : (2013) 2 JT 240 : (2013) 3 RCR(Criminal) 399 : (2013) 1 SCALE 652 : (2013) 9 SCC 293 : (2013) AIRSCW 4428 : (2013) 1 Supreme 493 .

Per contra, learned Public Prosecutor, Mr. Jagmal Singh Choudhary, learned senior Advocate, Mr. Pradeep Choudhary and Mr. Mahipal Bishnoi, learned counsel for the respondent submit that at the stage of framing of charge roving inquiry is not necessary. They submit that the incident took place on 07.10.2013 at about 5.00 P.M. and written report was submitted at MDM Hospital, Jodhpur on 08.10.2013, wherein, the name of the accused were clearly mentioned and the names of the eye-witnesses i.e. Jagdish (complainant himself) and Puna Ram has been mentioned. They submit that Birda Ram was also an eye-witness and the statement of eyewitnesses were recorded soon after the incident on 09.10.2013, wherein, all the accused persons were named. They submit that ground of alibi cannot be considered at the stage of framing of charge and it is the defence of accused persons which can be considered at the time of trial. They further submit that Bhagwana Ram, Anachhi and Ramkaran, in their respective statements, stated that complainant Jagdish at the time of cremation narrated the incident before them and named the present petitioners as accused. They submit that there is sufficient material for proceeding the trial against the present petitioners and no question of discharge arises. They further submit that when the statement of witnesses Chain Singh, Megh Singh, Adu Ram were recorded on 23.11.2013 and statement of Magna Ram was recorded on 29.11.2013 and statement of Ashok Kumar was recorded on 05.12.2013 by another Investigating Officer and their names did not find place in FIR and in the statements of eyewitnesses. They submit that initially the matter was investigated by Mr. Surendra Singh, SHO, Bhojasar and thereafter at the instance of petitioners-accused, the investigation was handed over to Mr. Ghewar Singh, CI, P.S. Matora who recorded the statements of witnesses suggested by the petitioners-accused. They submit that since there are two sets of eye-witnesses, therefore, soon after incident the witnesses who named the petitioners-accused, should be considered and on that basis, it cannot be said that there is no ground for framing of charge.

In rebuttal, learned counsel for the petitioners-accused submits that investigation was changed at the instance of complainant and not at the behest of the petitioners-accused. He submits that petitioners have been implicated falsely. He also submits that prosecution witnesses Shrawan Kumar, Ram Narayan, Mohan Ram, Mangi Lal and Gopal Ram did not name petitioners Soda Ram, Ugrasen, and Manohar Ram Vishnoi.

I have considered the submissions made by learned counsel for the petitioners, learned Public Prosecutor and the learned counsel for the respondent and also perused the material available on record.

In the matter of Rajiv Thapar and Anr. (Supra) death of bride occurred within one year of marriage at her in-laws'' house. The father of deceased filed complaint that his daughter had been poisoned to death by her in-laws due to strange relationship and demand of dowry. The postmortem report and FSL Report as also inquest report did not show that death occurred due to administering poison but the death was due to heart attack. Thereafter complainant/father of deceased took a stand before the Additional Sessions Judge that deceased has been strangulated by the accused persons. The learned trial court called the Doctors who had conducted postmortem examination but the Doctors affirmed that death had not been caused by strangulation. In such circumstances, the Hon''ble Supreme Court quashed the proceedings. However, it was observed that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 Cr.P.C. specially because the Additional Sessions Judge, in his order dated 07.08.1999 had concluded on the basis of material relied upon by the accused that no case was made out against the accused.

But in the case in hand, the cause of death is shock due to injuries as mentioned in the postmortem report and there are 22 injuries mentioned in the postmortem report with multiple fractures. Therefore there is no dispute regarding cause of death. Further, prosecution witnesses, in their police statements, stated that deceased was abducted and thereafter accused persons committed his murder. Therefore, facts of the present case are altogether different from the above judgment.

In the case of State through Inspector of Police Vs. A. Arun Kumar (Supra), the Hon''ble Supreme Court observed as under:

"(i) The Judge while considering the question of framing charges under Section 227 of the Cr.P.C. has the undoubted power to shift and weight 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) Whether 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 board 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 Section 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 there from taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, shift 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."

In the case of Prashant Bharti (supra) accused did sexual intercourse with a married woman and the prosecution filed charge-sheet against the accused alleging that accused has made false promise to marry the prosecutrix. The Hon''ble Supreme Court held that in the circumstances prosecutrix could not have been induced in the physical evidence based on an assurance of marriage and considering that prosecutrix was a consenting party and was in relationship of adultery with accused, quashed the FIR.

The facts of the present case are altogether different from the facts of this case. Since, there were call details of the prosecutrix and accused who was showing that they were in talks in odd hours also, Hon''ble Supreme Court considered it as consenting party.

In the present case, soon after the incident the petitioners-accused were named by the complainant in the FIR and after commencing investigation, police recorded the statements of eye-witnesses i.e. Jagdish, Puna Ram and Birda Ram and all three witnesses soon after the incident named all the petitioners.

As per postmortem report there are 22 injuries on the body of the deceased Shambhu Ram. From the statements, it also reveals that deceased Shambhu Ram RTI activist, made complaints against the Sarpanch Soda Ram regarding the scam undertaken by him during his tenure as Sarpanch. Therefore, accused were having enmity with the deceased. Hence, at this stage, it cannot be said that there is no grave suspicion against the petitioners-accused and no material for framing charge. The learned court below considered all these aspects and passed the impugned order and ordered to frame charges against the petitioners-accused as aforesaid which does not require any interference by this court.

This revision petition is devoid of merit and deserves to be dismissed, which is hereby dismissed.

Record of the court below be returned forthwith with copy of this order.