Babu Lal And Anr. vs Tilak Kumar And Ors.
1988 Latest Caselaw 31 Del

JUDGMENT

Maiik Sharief-ud-Din, J.

(1) Even though the revision has been on my board none appeared. This revision is directed against an order of the learned Additional Sessions Judge Hated 3rd of January 1980 by which he dismissed a challan and discharged the respondents. 18 persons were prosecuted for offences under sections 366/368/380/411/109 Indian Penal Code . The learned. Additional Sessions Judge by an elaborate order examined the prosecution case and found that it was not a fit case for charge.

(2) Under section 227 Cr.P.C. if, upon re-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. Reverse of the same is provided under section 228 Cr. P C. and the ratio of section 228 is that if the judge is of the opinion on consideration of the record, documents and arguments that there is ground for proceeding that the accused has committed an offence he shall frame the charge.

(3) Now in the present case, the facts are that one Sarla Devi who had strained relations with her husband and was residing with her parents is stated to have been q by Tilak Kumar and Surinder son of Yad Ram from the house of her parents together with some gold ornaments and cash which, according to the prosecution, was stolen from the house of the complainant. This happened on 17th May 1984 and on the same day a report was lodged. There is no dispute that Sarla Devi on the date of the incident was a major. It appears that the prosecution case in brief is that she had been asked by Surinder, his mother and uncle to get all her clothes and ornaments earlier to the date of the incident so that her marriage is performed with Surinder but she declined to do so. On the date of the incident it is alleged that a child was sent to her asking her that Surinder wanted her to come with her luggage. The thereafter threw her belongings including gold ornaments etc. from the balcony and on the asking of Surinder she joined him. At that time Tilak respondent was also accompanying Surinder who saw them off at the bus stand and thereafter they went to different places where the accused persona are stated to have abetted the commission of the offence in different ways.

(4) The admitted position of law is that the court hearing on the point of charge is not to act as a post office or a mouth piece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence before it having regard to the basic infirmities appearing in the case, though the evidence is not to be shifted in the manner in which it is shifted at the time of final adjudication of the case. Even if there is a grave suspicion it would justify framing of charge but whether a prima facie case is made out or not will in the ultimate analysis depend upon the facts of each case and no rule of universal application can be laid down. In the present case, the ornaments and cash obviously belonged to Sarla Devi and it is in fact she who had removed it from her own possession to he carried along with her at the time when she decided to go with Surinder It cannot, therefore, be said that it was an act of stealing on her part or on the part of other accused. All that is attributed to Surinder and others is that they had asked her to bring her jewellery and clothes so that her marriage with Surinder can be performed. The prosecutrix in fact is a major girl and there is absolutely nothing on record to indicate that she was induced or enticed into acting in a particular manner. In arriving at this conclusion one has to remember that she had parted with her husband, she was young grown up girl and chose to go with Surinder of her own sweet will. The main evidence in the case is the testimony of the prosecutrix coupled with the recoveries from Girdhari respondent. The trial court has rightly held that since these ornaments were left by Sarla Devi at the house of Girdhari it cannot be said that Girdhari was aware of the stolen nature of the articles. Girdhari, in fact, had not dealt with these ornaments in any manner prejudicial to the interest of the owner thereof and it was within the knowledge of Sarla Devi prosecutrix that she had left it at the house of Girdhari. In the circumstances of this case, therefore, I find that there is no chance of charging the respondents of the offence muchless of conviction. In my view, the trial court has rightly dismissed the prosecution case and discharged the accused. I find nothing illegal or improper about the order. The revision is dismissed.