Murari Lal Gautam And Another vs State Of U.P. & Another
2016 Latest Caselaw 2297 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved/AFR
 

 
Case :- CRIMINAL REVISION No. - 3052 of 2011
 

 
Revisionist :- Murari Lal Gautam And Another
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Amit Misra
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Amar Singh Chauhan, J. 

Heard Shri Amit Mishra, learned counsel for the revisionists and learned Additional Government Advocate and perused the record of the case.

This criminal revision has been filed against the order dated 19.7.2011 passed by the learned Additional Sessions Judge, Court No. 8, Moradabad whereby the learned Judge has framed the charges against the revisionists under Sections 406/34/35, 376(2)(g) and 366 IPC, police station Hayatnagar, district Moradabad.

In brief, the facts of the case as set up in the First Information Report lodged by the victim, Bharti Varshney, opposite party No. 2 herein, are that the victim and co-accused Priyanka were friend being classmates. Whenever co-accused Priyanka comes to Moradabad along with her husband, she used to call the victim to her house. On 02.9.2009 Priyanka and her husband Pawan came to their house at Shahji Pura and called the victim. They asked the victim that they shall arrange a good job for her, for which she is to prepare with original marks sheet, certificates, jewellery and cash kept in the house and handed over a mobile bearing No. 9528154814 to the victim and asked the victim that they shall remain in touch at that mobile number. The victim agreed to the offer as her economic condition was not good because of the death of her father due to illness. On 03.9.2009 co-accused Pawan and his wife Priyanka made a call to her from mobile No. 9548830888 and asked the victim to reach the crossing of Chaudhary Sarai after taking away all the cash and jewellery kept in the house where she will meet Murari Lal Gautam and Arun. As the victim was in the dire need of job, she left for the place told to her by Pawan, after taking away her original marks sheets and certificates of High School, Intermediate and B.A, rupees fifty thousand, and certain jewelleries where Murari Lal Gautam and Arun met her and took her to Moradabad where Priyanka and her husband Pawan met her and took her to their quarter. They took the articles of the victim in their custody. In the night Pawan with the assistance of his wife Priyank committed rape on her. They also threatened her of dire consequences in case the matter is reported.

The learned Sessions Judge while framing the charges against the accused held that the evidence collected by the investigating officer and put forward by the prosecution, prima facie, reveals that the victim Km. Bharti Vashney was, prima facie, raped by the accused Pawan in furtherance of the common intention of his father Murari Lal and brother Arun and this criminal acts come within the purview of gang rape. The learned Sessions Judge further held that all the accused persons dishonestly in furtherance of their common intention misappropriated the valuable belongings and property of Km. Bharti Vashney under the pretext of providing her a job and thereby all the accused have, prima facie, committed the criminal breach of trust punishable under section 406 IPC read with sections 34/35 IPC.

Learned counsel for the revisionists submits that no case for gang rape is made out against the revisionists.

It is also submitted that the learned Additional Sessions Judge has illegally and arbitrarily framed the charge against the revisionists.

Per contra, learned Additional Government Advocate submitted that there were sufficient materials before the learned court below to frame the charges against the revisionists under sections 406 read with sections 34/35 IPC, 376(2)(g) and 366 IPC.

Before considering the claim of the parties, it is useful to refer to sections 227 and 228 of the Code of Criminal Procedure, which are reproduced below:

Discharge.

"227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Framing of charge.

228. (1) If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases in accordance with the procedure for the trial of warrant cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frame any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon'ble Supreme Court in Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460. The Hon'ble Supreme Court held as under:

"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charage. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgement of the court while section 228 is tentative. Thus, to say that at the stage of framing of charage, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code."

"19. At the initial stage of framing of a charge, the court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."

In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the Hon'ble Supreme court held in paragraph 7 as under"

" 7.The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. "

In Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013)11 SCC 476, Hon'ble Apex Court after citing the catena of judgements has summorised the principles in respect of framing of charges or discharge of the accused and held as under:

"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if, there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charge against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon fact and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charges."

Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010) 9 SCC, held in paragraph 24 of the judgement as under"

"At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."

In the present case, there were allegations against the revisionists that the victim was raped by co-accused Pawan in furtherance of the common intention of the co-accused. The charges can even be framed only on the basis of strong suspicion as held by the Hon'ble Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander and another (Supra).

In view of what has been indicated herein above, I find no illegality or impropriety in the impugned order framing charges against the revisionists.

There is no force in this revision. It is accordingly dismissed.

Office is directed to communicate this order to the court concerned.

Dated: 06.5.2016

Ishrat

( Amar Singh Chauhan, J)