Udai Narain Singh vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard Sri Kamal Krishna for the Applicant, Mr. R. N. Rai for the Respondent No. 2 and learned A.G.A. for the Respondent No. 1 and perused the record.

This is a revision against the order dated 22.3.2004, passed by Additional Sessions Judge, Fast Track Court No. 2, Varanasi in S. T. No. 55 of 2004, whereby the learned Additional Sessions Judge refused to discharge the Applicant.

It appears that the Applicant Udai Narain Singh is an accused in S.T. No. 55 of 2004, State v. Udai Narain Singh and Ors. pending before the Additional Sessions Judge, Fast Track Court No. 2, Varanasi.

Learned Counsel for the Applicant contended before the trial court that from the facts placed in support of the charge-sheet no prima facie case for framing charges under Sections 302 and 201, I.P.C. was not made out against the Applicant. The learned Additional Sessions Judge passed the order dated 22.3.2004 and arrived at the conclusion that there were sufficient materials on record to frame the charges against the Applicant, accordingly, refused to discharge him.

Mr. Kamal Krishna, the learned Counsel for the Applicant submitted that there is no evidence against the Applicant except the confessional statement of co-accused Pradeep Kumar made before the witness Manoj Kumar.

It was next submitted that the statement of the witness Anand Kumar was not in any way against the Applicant except that the Applicant moved with his father and others on a tempo in the night of the incident. The other witnesses including the complainant did not state anything against the Applicant, therefore, the learned Additional Sessions Judge has misread the evidence and recorded the incorrect finding that a prima facie case for framing charges was made out against the Applicant. The learned Counsel for the Applicant further submitted that the learned Additional Sessions Judge has himself came to the conclusion that the confessional statement of co-accused was not relevant against the Applicant and as such the learned lower court excluded confessional statement of co-accused Pradeep Kumar, which was made before the witness Manoj Kumar. It was next submitted that after exclusion of the confessional statement of co-accused, there was no material against the Applicant to frame any charge.

Mr. R. N. Rai, on the other hand, submitted that the learned Additional Sessions Judge has considered the statements of Smt. Hira Mani Singh, Amresh Kumar Pandey Smt. Beena Singh, Anand Kumar and Manoj Kumar. The impugned finding based on the statements of these witnesses cannot be upset by the revisional court.

The provisions of Section 227. Code of Criminal Procedure deal with the matter of discharge of an accused. In the case of Dilawar Balu Kurane Vs. State of Maharashtra, the Apex Court had examined the ambit and scope of Section 227, Code of Criminal Procedure and held:

In exercising powers u/s 227, Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the limited purpose of finding out whether or not a prima facie case against the accused has been made out; 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, by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction u/s 227, Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, the Apex Court has almost propounded the same principles in the following terms:

It is trite that the words "not sufficient ground for proceeding against the accused" appearing in Section 227, Code of Criminal Procedure, postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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 a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible.

In the case of Palwinder Singh v. Balwinder Singh and Ors. (2009) 2 SCC 850, the Apex Court reiterated the aforesaid principles and held:

The jurisdiction of the learned Sessions Judge while exercising power u/s 227, Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time.

A perusal of the aforesaid decisions clearly reveals that charges can be framed against the accused, if the materials produced before the Court make out even a case of grave or strong suspicion against the accused. While considering the question of framing charge or discharge the Marshalling and appreciation of evidence is not in the domain of the Court. What is required from the Court is to find out whether on the basis of the materials on record, if unrebutted. a conviction of the accused is reasonably possible. If the answer is in negative, the accused may be discharged.

The learned Counsel for the Applicant submitted that the Additional Sessions Judge has himself excluded the confessional statement of co-accused holding that the same was not admissible in evidence and there is no other evidence against the Applicant, therefore, rejection of discharge prayer was not proper. Learned Counsel further submitted that the learned trial court has perused the statements of the witnesses Smt. Hira Mani Singh, Amresh Kumar Pandey, Smt. Beena Singh, Anand Kumar and Manoj Kumar and on perusal of their statements was of the view that a prima facie case for framing charge u/s 302, I.P.C. was made out against the Applicant, but he has not indicated what were the statements of the said witnesses and how their statements were against the Applicant and he has not assigned reason in this regard, therefore, the impugned order is liable to be set aside.

Learned A.G.A., on the other hand, submitted that the confessional statement of co-accused was relevant u/s 30 of the Evidence Act. He further submitted that no doubt confessional statement of a co-accused is not substantive evidence, but the same can be used for corroboration of other evidence. It was also submitted that when the charge can be framed in a case of existence of grave or strong suspicion, the exclusion of the confessional statement of co-accused was not proper.

The learned Counsel for the Applicant, in rebuttal, submitted that the learned trial court instead of considering the case for the purpose of deciding as to whether any case for framing charge was made out or not proceeded to elaborately examine the matter on merits as if he was writing a final judgment after the trial court. Legally he was not required to do so.

In the case of Union of India v. Bal Mukund and Ors. 2009 (2) EFR 216. In that case the Apex Court has held in para 21 as follows:

21... If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest.

In the case of Monish H. Bhalla Vs. Satya Parkash Bahl alias S.P. Bahl alias S.P. and Others, the Bombay High Court after referring to various decisions of Privy Council and the Apex Court held, in para 6, as follows:

On a specific query by this Court, it was admitted that besides the statement of co-accused there is no other material against the Respondent No. 1, Satya Prakash Bahl. In such case, the question which arises for consideration is whether the confession of one of the accused implicating the other accused, can be treated as substantive evidence. The statements of co-accused have been recorded u/s 67 of N. D. P. S. Act like one u/s 15 of the T.A.D.A. Act, which makes the statement of an accused admissible against the co-accused, conspirators or abettors. In such case, one would have to fall back on Section 30 of the Evidence Act to see what use can be made of the statement of one accused against the co-accused. This aspect has been considered by the Honourable Supreme Court in a number of matters, i.e., in the case of AIR 1949 257 (Privy Council) Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, Kashmira Singh Vs. State of Madhya Pradesh, In Haricharan Kurmi (supra), the Supreme Court has observed in para 12 thus:

It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That briefly stated, is the defect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh Vs. State of Madhya Pradesh, there the decision of the Privy Council in AIR 1949 257 (Privy Council) has been cited with approval.

In the instant case, the learned trial court has relied on the statements of the witnesses, Smt. Hira Mani Singh, Amresh Kumar Pandey, Smt. Beena Singh and Anand Kumar and has excluded the statements of witnesses Manoj Kumar and Anand Kumar on the ground that their statements had merely proved the confessional statements of co-accused, which were not relevant and held that the statements of other witnesses were sufficient to frame charges under Sections 302 and 201, I.P.C., but without indicating as to whether the other witnesses had spoken anything in regard to the complicity of the Applicant or not. The submission of the learned Counsel for the Applicant is that except the confessional statements, there is no other evidence against the Applicant. The statements of the witnesses Smt. Hira Mani Singh, Amresh Kumar Pandey, Smt. Beena Singh and Anand Kumar are not in any way against the Applicant, but the learned Additional Sessions Judge has misread their statements, therefore, the finding of the Additional Sessions Judge, being based on misreading of the statements of the said witnesses cannot be upheld. It is true that the confession of a co-accused is not a substantive evidence and there should be some evidence beyond the confessional statement of co-accused, but the learned Additional Sessions Judge was not expected to write down a final judgment at the stage of charge by holding that the confessional statements of co-accused was not relevant, without giving due consideration to the legal position that the confessional statements of co-accused could be read in terms of Section 30 of the Evidence Act, as a corroborative piece of evidence. Therefore, the learned Additional Sessions Judge was expected to peruse the confessional statements of co-accused and other materials available in the case diary together and to find out whether or not any charge against the Applicant was made out. In doing so, he was not required to consider pros and cons of the evidence and to record a final verdict, only a prima facie consideration of the materials was necessary by taking into consideration the statements of the witnesses and co-accused at their face value.

In view of the facts and circumstances stated above, the impugned order suffers from a material infirmity resulting in causing of failure of justice in the case. As such the impugned order cannot be sustained.

The revision is allowed. The impugned order dated 22.3.2004 is set aside and the matter is remanded to the learned Additional Sessions Judge for a fresh decision in accordance with law.