Delhi High Court

Raj Kumar Sharma vs State Of Delhi on 30 July, 2009

Author: V.K.Shali

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL. REV. P. NO.407/2009

                                        Date of Decision : 30.7.2009

RAJ KUMAR SHARMA                                   ......Petitioner
                                  Through:   Mr.Anupam S.Sharma,
                                             Advocate.

                                  Versus

STATE OF DELHI                                    ...... Respondent
                                  Through:   Mr.Pawan Bahl, APP for
                                             the State.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                     YES
2.     To be referred to the Reporter or not ?          YES
3.     Whether the judgment should be reported
       in the Digest ?                                  YES

V.K. SHALI, J. (Oral)

1. The petitioner by virtue of the present petition has

challenged the order dated 25th April, 2009 by which a

charge under Section 302/365/201/34 IPC was ordered to

be framed against Raj Kumar Sharma.

2. I have heard the learned counsel for the petitioner as well

as learned APP for the State. The contentions of the

learned counsel for the petitioner are as under.

i) The first submission of the learned counsel for the

petitioner is that Yashwant Kaushik, star witness of

the prosecution is purported to have made a

contradictory statement with regard to the killing of the

deceased Tapas and Anuj. The learned counsel took

me through the statement of Yashwant Kaushik

recorded under Section 164 Cr.P.C. as well as through

his statement recorded under Section 161 of Cr.P.C.

It is alleged that Yashwnt Kaushik in his statement

under Section 164 Cr.P.C. has specifically stated that

the deceased was strangulated while the FSL report

clearly shows that the various parts of the body of the

deceased like intestine, pieces of liver, spleen and

kidney were found to contain Zinc Phosphide and Ethyl

Alcohol. Some amount of Sodium Chloride were also

found. It was urged that this clearly belies the

statement of Yashwant Kaushik recorded under

Section 161 Cr.P.C. with regard to the cause of death

which is stated to be by pressing throat of the

deceased.

ii) The second contention of the learned counsel for the

petitioner is that although the incident is alleged to

have been taken place on 4th February, 2008 but the

FIR was registered only after a delay of five days on 9th

February, 2008 despite the fact that the mother of

Tapas Smt. Bhullu Dutta had expressed her doubt of

involvement of one Panditji and his family members in

the death of Tapas Dutta. Therefore, it was urged that

this factor, if taken into consideration, cumulatively

and clearly entitled the petitioner to discharge. The

learned counsel for the petitioner also referred to a

case titled as Hem Chand Vs. State of Jharkhand,

2008 (2) SCC (Cri) 537 wherein in para 13 it has been

held that :-

"13. The learned counsel for CBI is, thus, correct in his submission that what has been refused to be looked into by the learned Special Judge related to the documents filed by the appellant along with his application for discharge. The court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any."

3. Another judgment which has been relied upon by the

learned counsel for the petitioner is Dilwar Bal Vs. State

of Maharashtra 2002 (I) JCC 172 wherein para 12 it has

been observed as under:-

"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the 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."

4. The learned APP has disputed the contentions of the

learned counsel for the petitioner and urged that at the stage of

framing of charge a meticulous examination of the evidence is

not to be carried out nor the Court is expected to see probative

value of the material on record. The Court must see whether a

prima facie case is made out against the accused or not. The

prima facie case has been interpreted as urged by the learned

APP is that there must be a „grave suspicion‟ against the

petitioner about his involvement in the commission of offence.

The learned APP has also relied upon the judgment of 2008 (2)

SC 561 in support of his submission.

5. I have considered the respective submissions as well as

gone through the three judgments cited by the learned counsel

for the parties. There is no dispute about the fact that the Apex

Court consistently in all the authorities including the two cited

by the learned counsel for the petitioner, has laid down that

while ordering framing of charge, the limited enquiry, which the

Court has to conduct is whether a grave suspicion existed

against the accused for the purpose of framing the charge or not.

The Court at the stage of framing of charge is not expected to do

meticulous dissection or evaluation of the evidence produced by

the prosecution. In other words, the Court does not have to see

the probative value of the different material, which have been

filed along with the charge sheet at the time of framing of the

charge.

6. Keeping this broad principle of law in mind, if we examine

the case, no doubt there is variation in the complaint as well as

in the statement under Section 164 of Cr.P.C., but the fact of the

matter remains that the statement recorded under Section 161 of

Cr.P.C. is very categorical as to the manner in which the ghastly

crime of killing of Tapas and Anuj has been done. No doubt, the

deceased was allegedly strangulated to death but the forensic lab

report shows the presence of some Zinc Phosphate or Sodium

Chloride or ethyl alcohol in some parts of the body, which is

contradictory to the oral statement, but it cannot earn the

discharge to the petitioner at this stage. This is possible that

accused may not have given the complete picture of the causing

of death of the deceased. Therefore, this so-called contradiction

in the method of killing of the deceased at this stage if made a

ground for discharge of the petitioner then it will attach a

probative value to one version over the other, which cannot be

permitted at the stage of framing of charge. Therefore, these two

points which have been taken by the learned counsel for the

petitioner namely the variance in the stand taken by the witness

in two different statements or the variance in the stand taken in

contrast to the FSL report are not of such a nature which can

result in discharge of the petitioner at the moment.

7. So far as the question of submission made by the learned

counsel for the petitioner that the nature of evidence which must

be adduced by the prosecution at the time of framing of charge

must be of such a nature which will result in conviction is not

with respect a correct enunciation of law. It seems that one

sentence in this regard observed by the apex Court in 2008 (2)

SCC Cri. 517 in para 13 has been torn out of context. If para 13

is read in its entirety and especially in the background of the

subsequent para 14 then the Apex Court was very clear that at

the time of framing of the charge, the quantum of evidence which

is required for the purpose of framing the charge is such as to

create only a grave suspicion and not of such a nature which will

result in conviction of the accused.

8. It may be pertinent to state here that in para 14 of the

same judgment the Apex Court has referred to another judgment

of the Supreme Court that is State of MP Vs. Mohan Lal (2006)

6 SCC 338 wherein it has been observed as under:-

"7. The crystallized 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." It was furthermore observed :

"11. ....As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even

if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed."