Harveer Singh & Others vs State Of U.P. & Another
2015 Latest Caselaw 1567 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 3822 of 2007
 

 
Revisionist :- Harveer Singh & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Dharmendra Singhal
 
Counsel for Opposite Party :- Govt. Advocate,Nasiruzzaman
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The instant criminal revision has been preferred against the judgment and order dated 29.11.2007, passed by learned Additional Session Judge, Court No. 9, Aligarh in S.T. No. 897 of 2007, whereby refusing to discharge the revisionists from Section 307 I.P.C. and consequently framing charge against them in the aforesaid section.

Affidavits have already been exchanged between the parties.

Heard learned counsel for the parties and perused the record.

Learned counsel for the revisionists has questioned the legality of the impugned order dated 29.11.2007 on the ground of its being perverse and based on surmises and conjectures. The submission of learned counsel for the revisionists is that a perusal of the F.I.R. clearly shows that none of the revisionists were armed with deadly weapon at the time of occurrence. He has contended that separate weapons have been assigned to all the accused persons clearly mentioning in the F.I.R. that Surajpal Singh was armed with country made pistol, Harveer Singh (revisionist no. 1), Bhola (revisionist no. 2), Guddu (revisionist no. 3), Ram Avtar (revisionist no. 4) and Jugendra (revisionist no. 5) were armed with lathi danda and accused Shiv Kumar was armed with Farsa. The submission of learned counsel for the revisionists is that under these circumstances when the revisionists were armed only with lathi danda, it cannot be assumed that they had an intention to kill the victim and in absence of any such intention, the charge under Section 307 I.P.C. should not have been framed against them. Learned counsel for the revisionists has submitted that considering this aspect, this Court vide interim order dated 10.12.2007 was pleased to stay the trial of the revisionists so far as it related to Section 307/147 of I.P.C.

Learned A.G.A. and learned counsel representing the opposite party no. 2 have vehemently opposed the aforesaid submissions advanced by learned counsel for the revisionists by arguing that all the accused persons including the revisionists have acted in furtherance of their common intention of committing the murder of victim, hence all of them are liable to be tried under Section 307 I.P.C. notwithstanding the separate roles or separate weapons assigned to them. Moreover, the Investigating Officer, during investigation found that the revisionist no. 3 Guddu was armed with country made pistol and it was by the fire, shot by Guddu, that the injured sustained grievous gun shot injury. In this regard, learned counsel for the opposite party no. 2 and learned A.G.A. have drawn the attention of this Court to Annexure No. CA-1 of the counter affidavit, which is the true copy of statements of witnesses Harendra Singh and Tota Ram showing that Guddu was armed with country made pistol. The submission of learned counsel for the opposite party is that by the aforesaid statements of witnesses, it appears that revisionist Guddu was the main accused who was armed with country made pistol. Learned A.G.A. has contended that it does not make any difference as to who was armed with which weapon or who among the group inflicted gun shot injury for the reason that being member of an unlawful assembly all the revisionists shared common intention. Moreover, where several persons in a group were inflicting injuries on the victim by using various kinds of weapons, it was impossible for the person receiving injury to see who was inflicting injury on him by which weapon.

After having heard learned counsel for the parties and considering the facts of the case, the arguments advanced by learned A.G.A. appears to have force. The law with regard to the applicability of Section 149 of I.P.C., is well settled that mere presence of the accused as member of unlawful assembly is sufficient for his conviction even if no overt act is imputed to him (Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539). It is also well settled that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient because every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed (State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom)).

The undisputed legal position is that at the stage of framing charge, the Court is required to see only prima facie evidence available on record and it has not to consider whether the prosecution is able to prove its case against the accused persons beyond reasonable doubt. At the stage of charge only a reasonable doubt in the mind of the Court with regard to complicity of the accused persons is sufficient.

The Sessions Judge has the power to discharge the accused in the following circumstances;

A-where the evidence produced is not sufficient,

B- where there is no legal ground for proceeding against the accused,

C-where the prosecution is clearly barred by limitation, or

D-where he is precluded from proceeding because of a prior judgment of High Court.

In State of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, the Hon'ble Apex Court has held that at the time of framing charge, what the Trial Court is required to see and consider, are only the Police Papers referred to under Section 173, Cr.P.C. and documents sent with it. The accused cannot be permitted to produce documents to put forth his defence case for purpose of seeking discharge.

In Soma Chakravarty v. State (through CBI); 2007 (2) SCC (Cri) 514, it has been held by the Hon'ble Apex Court that at the time of framing of 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 at that stage. If on the basis of material on record the Court could form an opinion that the accused might have committed the 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. Whether, in fact, the accused committed the offence, can only be decided in the trial.

In Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others; 2009 (1) SCC (Cri) 87, it has been held by the Hon'ble Apex Court that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge.

In Omwati v. State; AIR 2001 SC 1507, the Hon'ble Apex Court has restricted the High Court from interfering by holding that the High Court should not interfere at initial stage of framing the charges merely on hypothesis, imagination and farfetched reasons, which in law amount to interdicting the trial against the accused persons.

Hon'ble Apex Court in Om Prakash Sharma vs. C.B.I. AIR. 2000 SC 2335, has held that at the stage of 227 of the Code of Criminal Procedure, it is not open to the Sessions Judge to weigh the pros and cons whether improbability and then proceed to discharge the accused holding the said statements existing in the case diary as unreliable.

In Kanti Bhadra Shah vs. State of Bengal AIR 2000 SC 522, Hon'ble Supreme Court has held that the discharge order must contain reasons but an order of framing charge cannot be quashed merely because it does not contain reasons.

In State of J & K vs. Sudarshan Khakkar AIR 1995 SC 1954 and in Rukmani Narvekar vs. Vijaya Satardekar, AIR 2009 SC 1013, it has been held that no weight is to be attached to the probable defence of the accused and at the time of framing of the charge, the Court has to confine its attention to documents referred to unde Section 173 Cr.P.C. only.

In wake of the aforesaid legal position and considering the facts and circumstances of the present case and the prima facie evidence available on record against the revisionist, discussed in detail by the court below, the revision appears to have no force and it is liable to be dismissed.

The revision is accordingly dismissed.

At this stage learned counsel for the revisionists prayed that the court below be directed to release the applicants on bail, if possible on the same day, and the trial proceedings be also directed to be expedited and to be concluded within a stipulated period.

As expeditious disposal of a case is the right of a litigant, the court below is directed to proceed with the case and try to bring the trial to its logical end without giving any unnecessary adjournment to either of the parties and to conclude the trial expeditiously, if possible, within six months from the date of production/receipt of certified copy of this order.

It is further directed that if the revisionists appear and surrender before the court below within one month from today and apply for bail, their bail application shall be disposed of expeditiously keeping in view the settled law laid down by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Cr.L.J. 755 approved by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

Order Date :- 31.7.2015

S.B.