Prashant Bhaskar vs Mcd Thorugh Its Commissioner, ...
2009 Latest Caselaw 3873 Del

               IN THE HIGH COURT OF DELHI

            Crl.Revision Petition No.385/2009

                          Reserved on 8th September, 2009

         Date of Pronouncement 22nd September, 2009

       Prashant Bhaskar                 ....Petitioner
                   through: Mr. Ramesh Gupta, Sr. Adv.
                            with Mr. M. Begum, Adv. &
                            Mr. Bharat Sharma, Adv.

                             VERSUS

         State (Govt. of NCT of Delhi) ....Respondents

through: Manoj Ohri, APP for the State.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

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

GITA MITTAL, J

1. By this petition, the petitioner assails the order dated 18th

April, 2009 directing framing of charges as well as the charges

framed against him under Section 302/34 of the Indian Penal

Code in the case arising out of FIR No.765/2006 registered by the

police station Saraswati Vihar. On completion of investigation, the

chargesheet was filed in the case titled State Vs. Prashant

Bhaskar & Others pending before the trial court.

2. To the extent necessary, the case of the prosecution is

briefly noticed hereafter. A complaint dated 10th July, 2006 was

made by one Shri Pushkar Raj, father of the deceased Dayanand

with regard to an incident which allegedly occurred three months

prior on 5th April, 2006. It stated that on 5th April, 2006, Shri

Pushkar Raj accompanied by his deceased son Dayanand; Vipin

another son as well as a worker Ram Bura had gone to the

residence of Mahesh Sharma at about 7.45 p.m. in connection

with certain monies which were owed by him. The complainant

was required to come again for the reason that Mahesh Sharma

was not available. Consequently, these persons had again visited

Mahesh Sharma's residence at about 8.30 p.m. but he was still

not available whereupon they had decided to wait for his return.

On his return, Mahesh Sharma had refused to give the money.

Instead he attacked Dayanand whereupon Vipin, the

complainant's younger son tried to stop him. At this, Manish

Sharma, brother of Mahesh Sharma accompanied by Prashant

Bhaskar @ Rinku came downstairs and both these persons

started beating Dayanand and Vipin. After that Mahesh Sharma

involved the complainant in certain discussions while Manish

Sharma and Rinku kept on beating Dayanad mercilessly with

their legs and fists. The complainant and the others thereafter

returned to their house and ten minutes later, Dayanand started

saying that he was having a burning sensation in his chest.

Dayanand was taken to the nearby Manna Clinic and Maternity

Home. The doctor gave Dayanand an injection and three doses

of medicines. One dose of the medicine was given to him

immediately. Dayanand was left with his wife and he went to

sleep immediately. The next morning, at about 8.30 a.m., when

his wife went to check on him, she found that Dayanand was not

responding and she immediately called the complainant. One

Dr. Harish Bhatia was called who immediately opined that

Dayanand was no more. Dr. Harish Bhatia intimated the police

also about the death. In this complaint, the complainant sought

legal action against Mahesh Sharma, Manish Sharma & Rinku

Sharma who were alleged to have caused the death of his son

Dayanand.

3. It has been urged that the order holding that a prima

facie case had been made out against the petitioner fails to

consider the documents placed by the prosecution on record. It

has been urged that immediately after the occurrence on 5th

April, 2006, the police had recorded statements of the

complainant Pushkar Raj, who is the father of the deceased; Vipin

Mittal, brother of the deceased as well as Deepika, widow of the

deceased.

4. I have heard learned counsel for the parties and have been

carefully taken through the statements of these persons who also

claim to be the eye witnesses to the incident. Their statements

are in identical terms.

5. In his first statement recorded by the police on 6th April,

2006, Pushkar Raj stated that on the 5th of April, 2006 he had

gone to take payment of committee money from Mahesh Chand

and Kallu, who were the priests of the Rama Mandir. There was a

trivial altercation and scuffle with one Mahesh and Kallu on the

one hand and Dayanand on the other. When Pushkar Raj with

his sons Vipin and Dayanand were returning from the spot,

Dayanand had complained of some uneasiness. He was taken to

Manna Clinic and Maternity Home and got treated by the doctor

who gave him an injection and medicines. Dayanand was brought

to his house at about 11.00 p.m. At about 9.00 a.m. of the next

morning, he came to know that his son had died. In this

statement to the police Pushkar Raj categorically stated that he

did not suspect anybody.

6. Vipin Mittal, son of Pushkar Raj had also given a statement

on 6th April, 2009 to the same effect. There is reference to some

verbal altercation which took place over the issue of return of

money between Dayanand on the one hand and Mahesh Sharma

and Kalu on the other in the night of the 5th of April, 2006. Some

light scuffle is stated to have also taken place. He along with his

father Shri Pushkar Raj and Dayanand are stated to have

returned to his house thereafter. Dayanand complained of

uneasiness whereupon the doctor from the Manna Clinic and

Maternity Home was called who after checking gave him an

injection and also some tablets. On his request, Dayanand was

laid on the floor and then they returned to their room. At about

9.00 O' clock of the next morning, he learnt that his brother

Dayanand had expired. He also stated that there was no

suspicion or doubt on any person.

7. The police also recorded a statement of Deepika, wife of the

deceased Dayanand which was to the same effect.

8. DD No.30 dated 6th April, 2006 was recorded by the

investigating officer with regard to the receipt of the information

of the death and the statement of the relatives, all of whom had

stated that they had no suspicion on any person.

9. The investigating officer recorded D.D. No.24 on 7th April,

2006 with regard to the steps taken by him. The record shows

that a postmortem was also conducted on the body of the

deceased on 7th April, 2006 by Dr. Anil Sandilya. Injuries on his

body were found to be simple in nature. The viscera and pieces

of his organs were preserved for obtaining a report of the

chemical analysis and a histopathological study for a final opinion

on the cause of death.

10. The Forensic Science Laboratory reports with regard to the

viscera examination of the deceased were received on 26th June,

2006. On 10th of July, 2006, after examining these reports,

Dr. Anil Sandilya gave an opinion as to the cause of death.

According to him, the death occurred because of asphyxia

consequent to smothering by the other party which was sufficient

to cause death in ordinary course of nature. The record shows

that thereafter supplementary statements of Pushkar Raj and

Vipin Mittal were recorded on the 10th of July, 2006 which was to

the afore-noticed effect based whereupon an FIR No.765/2006

was also registered on the same day.

11. The SHO of police station Saraswati Vihar was of the view

that the facts and circumstances in which the deceased sustained

injuries during the scuffle did not match with the cause of death

as given by Dr. Anil Sandilya. Therefore, a request for the

constitution of a Medical Board was made on 12th of July, 2006 in

order to obtain a final opinion on the MLC and the opinion given

initially by Dr. Anil Sandilya. A medical Board was consequently

appointed which considered the inquest papers, photographs,

postmortem & FSL reports and the histopathology reports. The

Medical Board gave an opinion on 30th April, 2007 that the death

occurred due to head injury consequent upon blunt force.

12. Mr. Ramesh Gupta, learned senior counsel appearing for the

petitioner has urged that there is no material at all to connect the

petitioner with the alleged incident. It is urged that in the first

statements made by the complainant and his son as eye

witnesses, the name of the petitioner does not feature at all and

his name has been added more than three months later in the

supplementary statements which were recorded on 10th July,

2006 which by itself would completely discredit the allegations

made in these supplementary statements. It is contended that

consequently no prima facie case is made out against the

petitioner with regard to his involvement in the alleged incident

or commission of the alleged offence.

13. Learned senior counsel has also urged that the order of the

learned trial court fails to take into consideration the fact that a

medical board was constituted only pursuant to the request for

the same made on 12th July, 2006 and its report has been

received only on 30th April, 2007 whereas the postmortem report

and the medical report thereon did not support the case of the

prosecution. It is contended that the prosecution had failed to

make out a prima facie case for commission of an alleged offence

by the petitioner. The material relied upon was contradictory and

did not make out suspicion, let alone any element of grave

suspicion against the petitioner.

14. Reliance has been placed on the pronouncements of the

Apex Court reported at (2009) 1 SCC Crl. 51 Yogesh @ Sachin

Jagdish Joshi Vs. State of Maharashtra & 1990 Crl.Law

Journal 1869 Niranjan Singh Karam Singh Punjabi Vs.

Jitendra Bhimraj Bijja & Ors. Learned senior counsel has also

relied on the pronouncements of this court reported at 2007 (2)

JCC 1415 Sunil Bansal Vs. The State of Delhi; 2002 (1) JCC

127 Bhagwanti Devi Vs. State; & 96 (2002) DLT 566 Majhar

@ Papoo & Anr. Vs. State. In support of the submission that

the delay in lodging the complaint with the police would by itself

cause grave suspicion on the case of the prosecution, reliance

has been placed on the pronouncement of this court reported at

22 (1982) DLT SN 5 Satpal Vs. State.

Learned senior counsel has urged that in the instant case,

the order of the trial court also fails to consider the well settled

principles of law laid down by this court in the pronouncements

reported at 2007 (II) JCC 1489 Ashok Kumar Nayar Vs. State

and 2009 (2) JCC 1004 Vinita Dhaka Vs. State.

15. On the other hand, Mr. Manoj Ohri, learned APP for the State

has placed reliance on the pronouncement of the Apex Court

reported at (2001) 4 SCC 333 Om Wati Vs. State & Ors. and

(2004) 1 SCC 525 State of Maharashtra Vs. Salman Salim

Khan & Anr. to contend that it is not open to this court to

examine the truthfulness and veracity of the case of the

prosecution and that the statements made by the witnesses

taken at face value, clearly indicate the presence and

involvement of an accused in the incident and the commission of

the offences. Learned APP for the State has strongly supported

the impugned order passed by the learned trial Judge.

16. Before a consideration of these submissions, it becomes

necessary to set down the well settled parameters within which

the court's consideration of the prosecution's case at the stage of

framing of charge has to be confined. The principles with regard

to the scope and jurisdiction of the court under Section 216-219of

the Cr.P.C. which deals with the power of the court in this behalf,

have been clearly enunciated in several binding judicial

pronouncements of the Apex Court.

17. It needs no elaboration that at the stage of framing of

charge, the court is required to evaluate the materials and

documents which have been placed on record by the prosecution

and taken at the face value, whether existence of the ingredients

constituting the alleged offence or offences are disclosed. It is for

this limited purpose alone that the court is permitted to sift the

evidence. In para 7 of the judgment in (1990) 4 SCC 76

Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitendra

Bhimraj Bijja & Ors. the Apex Court defined the parameters of

the scope and consideration thus:

"7. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exist sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh 1977 CriLJ 1606 this Court observed that at the initial stage of the framing of a charge, if there is a strong suspicion-evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal and Anr.1979 CriLJ 154 , this Court after considering the scope of Section 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post-office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts

emerging therefrom taken at their face-value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.

(2) Where the materials placed before the court disclose grave suspicion against the accused which has hot been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code of judge which under the present Code is a senior and experienced judge cannot act merely 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 and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

xxxx

From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefromtaken at

- 10 -

their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

(Emphasis supplied)

18. The pronouncement of the Apex Court reported at

Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi)

MANU/SC/1453/2009 on this very issue can also be usefully

adverted to and reads thus :-

"..... It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

(Underlining supplied)

19. In a subsequent judgment reported at (1996) 4 SCC 659

State of Maharashtra & ors. Vs. Som Nath Thapa & Ors., a

three-Judge Bench of the Supreme Court explained the meaning

of the word "presume". Referring to dictionary meanings of the

said word, the Court observed thus:

"....If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think

- 11 -

that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

20. So far as the test for scrutinising the material laid by the

prosecution on record for the purposes of framing of charge is

concerned, the principles in this behalf were laid down in the

pronouncement of the Apex Court reported at State of M.P. vs.

S.B. Johari & Ors. (2000) 2 SCC 57 when the court stated as

follows:-

"4. ..........It is settled law that at the stage of framing the 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 the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial."

To the same effect are the principles laid down by the Apex

Court in State of Madhya Pradesh vs. Mohanlal Soni

(2000) 6 SCC 338.

21. So far as the instant case is concerned, learned senior

counsel has pointed out that the court is required to consider the

- 12 -

record of the case which includes, the documents submitted with

the police report and after hearing the accused and the

prosecution, the court was required to decide whether there is

"sufficient ground" to proceed against the accused and as a

consequence thereof, either to discharge the accused or to

proceed to frame a charge against him in view of Sections 224

and 228 of the Code of Criminal Procedure so far as the case

before the sessions court is concerned.

22. The expression "not sufficient ground for proceeding

against the accused" was considered by the Apex Court in the

pronouncement reported at (2009) 1 SCC Crl. 51 Yogesh @

Sachin Jagdish Joshi Vs. State of Maharashtra. The Apex

Court held that Section 227 of the Cr.P.C. postulates "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. For this purpose, it was held as follows: -

"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 the 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 so concluding, the Apex Court relied on its earlier

pronouncement reported at (1977) 4 SCC 39 State of Bihar

- 13 -

Vs. Ramesh Singh and (1979) 3 SCC 4 Union of India Vs.

Prafulla Kumar Samal.

23. Mr. Manoj Ohri, learned APP for the State has submitted at

length that these judgments would not apply for the reason that

the same were concerned with the case involving a charge under

Section 120-B of the Indian Penal Code.

This submission has to be noted only for the purpose of

rejection inasmuch as principles laid down by the Apex Court are

not confined to consideration of the framing of charge under

Section 120-B of the Indian Penal Code alone. These principles

would apply to consideration of all materials which are placed

before the sessions court at the stage of framing of charge. The

Apex Court has emphasized that the charge to face a criminal

trial cannot be based on mere suspicion and that the material

which is placed before the trial court must give rise to grave

suspicion of implication and commission of the offence under the

Indian Penal Code.

24. It now becomes necessary to consider the material which

was laid by the prosecution before the learned trial court. Two

contradictory statements recorded by the investigating officer of

the complainant as well as his son both of whom claim to be eye

witnesses, which were separated by a period of three months,

have been placed on record. The first statement recorded on the

very next date after the incident, has named only two persons i.e.

Shri Mahesh Sharma and his brother Manish Sharma @ Kallu and

is categorical that no other person is involved in the incident. A

- 14 -

second statement recorded several months after the incident on

10th July, 2006 has sought to rope in the present petitioner. A

graphic description of the alleged incident containing

improvements in all material particulars is laid out in which even

a role has been attributed to the petitioner. Scrutiny of the

record which has been placed before this court would also show

that there is no other material on the record at all placed along

with the charge sheet under Section 173 of the Cr.P.C. before the

trial court to show the presence of the petitioner or to connect

him with the crime.

25. These statements/supplementary statements of the

witnesses recorded by the investigating officer make no mention

about the earlier statement recorded on 6th April, 2006. Neither

of these statements even attempts to explain the circumstances

in which the second statement was being made or the reason

thereof.

The very gap of three months between the incident and the

statements by itself renders the same suspect and unsafe for

reliance

26. In similar circumstances, this court in the judgment

pronounced at 2007 (2) JCC 1415 Sunil Bansal Vs. State of

Delhi held that while undertaking the permissible and necessary

exercise of sifting of the materials and particularly keeping in

mind the existence of two contradictory statements, a charge

cannot be framed based thereon. The court observed that the

subsequent statements were not only contradictory but unsafe as

- 15 -

well and that the court cannot be expected to accept one version

over another. It was held that the court would be justified in

concluding that the version supporting the discharge of the

petitioner is to be preferred.

In the present case as well, the previous statement has

completely ruled out any complicity of the accused person.

27. In yet another pronouncement of this court reported at

2002 (1) JCC 127, Bhagwanti Devi Vs. State, no allegations

regarding demand of dowry or cruelty against the petitioner were

made by the parents and brother of the deceased wife in the

statements before the SDM conducting the inquest proceedings

which was in quite detail. In subsequent statements recorded by

the police under Section 167 of the Cr.P.C., vague allegations

regarding demand of dowry from the deceased by the petitioner's

mother-in-law were made. The court held that the subsequent

statement may give rise to suspicion but not to grave suspicion

and consequently, no charge should be framed against the

petitioner based on these statements. It was observed that

appreciation of the evidence which is required to be done at the

final stage is not permissible at the time of framing of charge and

that at this stage, only the broad probability of the case and total

effect of the evidence and documents produced before the court

and any basic infirmity appear in the case can be considered.

28. In 96 (2002) DLT 566 Majhar @ Papoo & Anr. Vs.

State, the court considered the petition seeking quashing of the

proceedings arising out of a complaint registered by the police

- 16 -

under Section 498-A against the petitioners. It was observed that

no prima facie case was made out from the allegations in the

complaint on which the FIR was registered. The complainant had

made allegations in the supplementary statement recorded by

the police. This court held that the statement could be

considered when some allegations were made in the original

complaint against the petitioners and not otherwise. In this

behalf, reliance was placed by the court on the category 1 & 3 of

cases which were set out by the Apex Court in the judgment

reported at AIR 1992 SC 604 State of Haryana & Ors. Vs.

Chaudhary Bhajan Lal & Ors.

29. In the instant case, the court is faced with two completely

contradictory statements. The first statement which is

immediately after the occurrence does not even remotely

mention the petitioner as even present at the time of the incident

whereas the second statement makes serious allegations against

the petitioner. The first statement was categorical with regard to

the involvement of only two persons. Even against these two

persons, the complainant and his son had sought to absolve them

with regard to commission of any offence under the Indian Penal

Code. Three months later, a supplementary/second statement is

given by these very persons making improvements in all material

particulars and implicating the petitioner in addition to the two

persons who had been named earlier.

30. The material which has been laid on record by the

prosecution and is part of the chargesheet filed under Section

- 17 -

173 of the Criminal Procedure Code, thus presents a completely

contradictory picture. Inasmuch as the deceased was the son of

the complainant and brother of the other witness, these persons

were certainly interested persons being close relatives of the

deceased.

31. In 2002 SCC Crl. 310, Dilwar Balu Khurana Vs. State

of Maharashtra, the Apex Court had clearly enunciated the

principle that if two versions or two inferences can be reasonably

drawn, the version favourable to the accused has to be accepted

by the court so long as it is a reasonable one.

32. There can be no retraction from the basic and essential test

that at the stage of framing of charge, the court has to form a

reasonable opinion about the existence of grave suspicion

regarding commission of offences for which purpose, the material

placed by the prosecution on record alone has to be sifted.

33. In similar circumstances, noticing that no statement had

been made implicating the accused persons or contradictory

statements had been given on record and were relied upon by

the prosecution, this court has held that the same would show

that it could not be held that there were grave suspicions of the

commission of the offence by the accused persons. (Ref: 2007

(2) JCC 1489 Ashok Kumar Nayyar Vs. The State and 2009

(2) JCC 1004 Vinita Dhaka Vs. State).

34. So far as the judicial pronouncements relied upon by Mr.

Ohri, learned APP are concerned, it is to be noted that the same

do not lay down any different proposition. In (2001) 4 SCC 333

- 18 -

Om Wati Vs. State & Ors., the court only reiterated the

principle that at the stage of framing of charge, the court is not

required to meticulously judge the truth, veracity and effect of

the evidence. Even in this pronouncement, the court had

reiterated the principle that there has to be strong suspicion

which leads the court to think that there is a ground for

presuming that the accused has committed the offence. This

strong suspicion is to be founded on material laid before the

court on which the court can form a presumptive opinion

regarding the existence of factual ingredients constituting the

offence alleged, only then the court be justified in framing the

charges against the accused persons.

35. In (2004) 1 SCC 525 State of Maharashtra Vs. Salman

Salim Khan & Anr. also these very principles were reiterated.

36. It is to be noted that neither of the aforenoticed judicial

pronouncements relates to a case where the accused person was

not even named in the initial statement which was recorded by

the police.

37. There was also no issue relating to the time gap between

the recording of the two completely contradictory statements.

These aspects cannot be certainly overlooked. Other than these

two contradictory statements, there is not even whisper of an

allegation involving the petitioner in the commission of the

offence in any of the other relevant documents including the

initial MLC and the postmortem report.

- 19 -

38. Following the principles laid down in Dilawar Balu Khurana

Vs. State of Maharashtra (Supra), the first version of the

prosecution has to be accepted. It, therefore, has to be held that

the prosecution has failed to make out a case raising strong

suspicion of the involvement of the petitioner in the commission

of the offence.

In view of the above, the order dated 18th April, 2009

passed by the learned Additional Judge, Rohini, directing and

framing charge against the petitioner is hereby set aside and

quashed.

This petition is allowed in the above terms.

September 22, 2009                           Gita Mittal, J.
aa




                                - 20 -