Sunil Kumar Alias Ganja vs State (NCT) Delhi

Kailash Gambhir, J.—By way the present revision petition filed u/s 397 read with Section 401 CrPC, the petitioner seeks quashing of the charges framed vide order on charge dated 5/3/2008 u/s 365/302/506 IPC by the Learned ASJ. The brief facts of the case relevant for deciding the petition are as under:

On 29/11/2006 at about 8:30 a.m., an unidentified dead body in two parts, the head part separated from the rest of the body, was found on the railway track within the jurisdiction of PS Hapur Dehat. Inquest proceedings were initiated and completed by the authorities of the PS Hapur Dehat and thereafter the said dead body was sent for post mortem. The surgeon examined the said dead body on the same date at 5:10 pm and a number of AMI were found on the said body. On 1/12/2006 a DD report was lodged by SH. Lokuram, father of the deceased Monu alias Sonu that on 28/11/2006 his son left home at about 5:00 p.m. with a boy named Sunil saying that he would return soon but did not return and asked for his search. At that time he did not suspect anybody. On 1/12/2006 a missing report about Km. Sonia and Km. Savita of being missing from the School SKB No. 1, C-Block was lodged at P.S. Bhajanpura by Smt. Krishna Devi, w/o Dhanram. On 9/12/2007 SI Rajesh Dogra of PS Gokulpuri recorded a statement of Sh. Lokuram at about 8:30 pm and sent the same for registration of an FIR and FIR No. 934/2006 was recorded. Statement of his wife was also recorded wherein for the first time it was recorded that Sunil Kumar had visited their house on motor cycle. On 10/12/2006 Inspector Vijay Pal of NE District called the petitioner, interrogated and arrested him and a statement was recorded wherein he confessed having killed the deceased with the assistance of co-accused Sanjay as the petitioner suspected that the deceased had some illicit relations with the sister of the petitioner and wanted to weed him out. Further a disclosure statement of the petitioner was recorded. On 11/12/2006 Sh. Dhiraj Bhati of NE District produced petitioner in the court and he was taken into custody by the police of PS Gokulpuri. After arrest by Police of Gokulpuri a fresh disclosure statement was recorded and co-accused Rajesh and Sanjay were also arrested and their disclosure statements were also recorded. On 12/12/2006 the State claimed that accused Sanjay and the petitioner took inspector Arvind Sagar Negi to the same railway track and got a site plan prepared of the said site. Further on the same day the state claimed that the ashes alongwith the burnt jacket pieces alongwith black colour shirt was recovered which as per disclosure statement of the petitioner were having blood spots and the same was sent to FSL and in its report it was stated that no blood was detected on the shirt and also the ashes collected and the leather jacket did not show reaction in the matter of grouping of blood. On 12/12/2006 the I.O. seized a cell phone bearing No. 9873273979 from co-Accused Sanjay and on 13/12/2006 another cell phone bearing No. 9868562017 was seized from Pritam Singh, brother of co-Accused Sanjay. The I.O. claimed that the said cell phones were used in District Ghaziabad on 28/11/2006 by the accused Sanjay to talk to the petitioner. On the basis of the aforesaid material, all the three accused were sent for trial and were summoned u/s 302/365/506, 120B IPC. Vide impugned order dated 5.3.2008 the Ld. ASJ discharged Rajesh and Sanjay but framed charges against the petitioner u/s 365/302/506 IPC.

Mr. G.P. Thareja counsel for the petitioner submits that the Ld. Trial Court erred in holding that there were sufficient material on record to frame charges against the petitioner. He urges that since no charges were framed against the other two co-accused, Sanjay and Rajesh, therefore, clearly there was no conspiracy between the petitioner and the other two accused and resultantly there was no evidence against the accused as well. The counsel also avers that the trial court ought to have considered that when as per the inquest report there was a possibility of the deceased dying due to train accident or there could be a possibility of his committing suicide then the benefit of doubt should go to the petitioner accused. Counsel appearing for the petitioner thus submits that the petitioner has been falsely implicated in the present case. Counsel for the petitioner further submits that dead body of the victim was found on the railway track within the jurisdiction of PS Hapur, Dehat and as per the postmortem report the injuries sustained by the victim are antemortem and cause of death opined by the medical surgeon was due to sever shock and hemorrhage. The contention of the counsel for the petitioner is that the prosecution has concocted a false story of the deceased being given fatal blows with the help of stones lifted from the railway track after strangulating him with the help of a handkerchief. Mr. Thareja further submits that the allegations levelled in the FIR are that the accused and victim had consumed the liquor thrice, but the postmortem report does not suggest that the deceased had consumed any liquor prior to occurrence of the incident. Counsel appearing for the petitioner further submits that no chance prints of the petitioner were found upon the pieces of broken bottle which were sent for examination to Figure Print Bureau, Malviya Nagar. Counsel appearing for the petitioner further submits that the Trial Court has not framed any charges against the other co-accused persons and therefore, conspiracy angle cannot sustain against the petitioner. Counsel appearing, for the petitioner further submits that the petitioner has been roped in for committing the said offence only on the disclosure statement given by the accused himself and there is no other evidence on record to even prima facie show the complicity of the petitioner in the commission of the said offence. Even the blood stained clothes did not carry the blood group of the applicant as per the report of the Forensic Science Laboratory and therefore, the applicant deserves grant of bail. The counsel contends that the Ld. ASJ erred in not considering the FSL report according to which nothing could link the accused petitioner with the death-of the deceased. The counsel also urges that there has been no proof either oral or documentary to frame charges u/s 365,302,506 IPC against the petitioner. Counsel further submits that the Ld. ASJ failed to appreciate that even in the post mortem report the autopsy surgeon noted down that there was no consumption of liquor which contradicts the disclosure statement of the petitioner and thus absolved the petitioner from any liability arising out of the said disclosure statement.

Per contra, Mr. Pawan Sharma Ld. APP for the state vehemently refutes the contentions raised by the counsel for the petitioner and submits that the disclosure statement of the accused petitioner and the telephone call record are sufficient material to frame charge against the petitioner. He also submits that blood of the victim was found on the stones used by the petitioner to hit the deceased. Counsel for the State further submits that the blood stained clothes and broken liquor bottle were recovered at the instance of the present applicant from the spot, therefore, it cannot be said that there is a mere disclosure statement of the applicant. Counsel for the State further Submits that there was also a clear motive so far as the present applicant is concerned as the accused was revengeful due to the advances of the deceased towards his sister. The applicant was also lastly seen in the company of the deceased and therefore, there is a clear evidence of his being in the company of the deceased before he was found murdered. He further contends that at the stage of charge the trial court is not to adjudge the matter in detail and it is not to be treated at the same footing as that of holding a person guilty of an offence.

I have heard Ld. Counsel for the parties at considerable length and perused the record.

It is no more res integra that at the stage of framing charge the court is not expected to go deep into the probative value of the materials on record. If the materials on record at their face value disclose the existence of all the ingredients constituting the alleged offence then the court could come to the conclusion that the accused would have committed the offence and the court is obliged to frame the charge and proceed to the trial. 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 the gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. Further it is equally well-Settled that the charge can be quashed 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 defence evidence, if any, cannot show that the accused committed the particular offence then in such a case, there would be no sufficient ground for proceeding with the trial. In this regard the Hon''ble Apex Court in State of Delhi Vs. Gyan Devi and Others, observed as under:

In the backdrop of the factual position discussed above, the question formulated earlier arises for our consideration. The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials paced on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused u/s 482 CrPC seeking for the quashing of charge framed against them the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.

Undoubtedly, each case depends upon its particular facts and circumstances and sometimes even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out. In such a circumstance there has to be strong evidence before the court exercising power u/s 482 CrPC to interfere with the decision of the trial court at the stage of framing of charge. In the instant case also the counsel for the petitioner has failed to satisfy this court that any illegality has been committed be the trial court in framing charges against the petitioner. The material as available on record is sufficient enough to frame charges against the petitioner and at the time of framing of the charge the trial court is not to deeply examine and assess the materials placed on record by the prosecution. The issues raised by the petitioner claiming innocence can be gone into only during the trial of the case and therefore, this court is not inclined to interfere with the order on charge dated 5.3.2008 vide which charges were framed against the petitioner u/s 365/302/506 IPC by the Learned ASJ.

Dismissed.