Munim Choudhary vs State (Nct) Of Delhi
2012 Latest Caselaw 4987 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CRIMINAL REVISION PETITON NO.455 OF 2012

                                   Decided on :   24th August , 2012

MUNIM CHOUDHARY                                ...... Petitioner
             Through:         Mr. V.N. Jha & Mr. B.K. Singh, Advs.

                          Versus

STATE (NCT) OF DELHI                           ......     Respondent
                Through:      Mr. Sunil Sharma, APP for the State.

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

V.K. SHALI, J. (ORAL)

Crl. M.A. No.14270/2012 (for exemption)

Exemption allowed, subject to the deficiency being

rectified.

The application stands disposed of.

Crl. Rev. P. No.455/2012 & Crl. M.A. No.14269/2012 (for stay)

1. This revision petition has been filed by the petitioner

against the order dated 3.8.2012 passed by the learned

Additional Sessions Judge in FIR No.234/2011, registered at

Police Station Kalyan Puri, directing the framing of charge

against the petitioner under Sections 307/324/323/34 IPC.

2. Briefly stated the facts of the case are that on 16.7.2011,

an FIR was registered on the basis of a complaint of one

Yogesh Kumar @ Boby that at about 8:30 p.m. in front of P.S.

Tent House, 4/256, Trilokpuri, Delhi, all the accused persons,

namely, Amit, Rishi Raj, Munim Chaudhary and Rahul Tej Rana

in furtherance of their common intention attacked the

complainant Yogesh Kumar @ Boby, Ram Kishor and Chander

Shekhar, as a consequence of which they suffered injuries. It

is alleged that Amit had fired on the chest of Yogesh Kumar @

Boby from a country made pistol (katta); accused Rishi Raj is

alleged to have caused injuries on the left arm of Ram Kishore

with a sharp edged weapon and accused Munim Chaudhary is

alleged to have caused injuries to one Chander Shekhar with a

sharp edged weapon while as accused Rahul Tej Rana is

alleged to have caused injuries by giving kicks and fist blows.

All the injured persons were medically examined and their

MLCs were prepared. After investigation, the charge sheet

was filed. The name of accused Munim Chaudhary was shown

in Column No.12 and he was not sent for trial by the Police.

He had taken the plea before the Investigating Officer that on

the date of incident at about 8:38 p.m., he was present at

Shani Dev Mandir, Sector 14, Noida, U.P. Apart from CCTV

footage which he handed over to the Investigating Officer

showing his presence at the Shani Dev Mandir around the time

when the incident had taken place, he had also handed over

his mobile phone details around the time of incident and

contended that the location of his mobile phone showed that

he was not near the place of incident.

3. On the basis of these documents which were seized by

the police, the petitioner sought discharge from the trial court

while as the said prayer of the petitioner was dismissed vide

impugned order by holding that there was sufficient prima

facie evidence against the petitioner warranting framing of

charge under Sections 307/324/323/34 IPC. The reasoning

given by the court for framing the charge against accused

Munim Chaudhary was that at the stage of framing of the

charge, a 'grave suspicion' is sufficient enough to proceed with

the framing of charge against the accused.

4. The petitioner, feeling aggrieved, has preferred the

present revision petition and the learned counsel has

contended that while framing the charge, the learned trial

court has ignored the CCTV footage as well as the call details

which clearly belied the accusations made by the complainant

that he was attacked by the petitioner, Munim Chaudhary with

a sharp edged weapon. It was contended by the learned

counsel that the trial court has not considered this

unimpeachable evidence which has not been disputed by the

prosecution and this was the very reason for which he was not

sent for trial by the investigating agency.

5. The learned counsel for the petitioner has sought to rely

on number of judgments in support of his submissions. These

judgments are Baldev Singh vs. State & Ors.; 2006 (3) JCC

1281, Shakuntala vs. State of Delhi; 139 (2007) DLT 178,

State of Madhya Pradesh vs. Mohan Lal Soni; AIR 2000 SC

2583, Dr. P.J. Alexander, IPS vs. Central Bureau of

Investigation, New Delhi; 08 KLC 2317, Union of India vs.

Prafulla Kumar Samal & Anr.; (1979) 3 SCC 4 and

Ramakrishna & Ors. vs. State of Bihar & Anr.; (2000) 8 SCC

547.

6. I have gone through the said authorities. I do not find

that any of the authority is helpful to the petitioner inasmuch

as the law with regard to framing of charge is well-settled by

now by the Apex Court as well as by various High Courts. The

quantum of proof for the purpose of framing of charge has

been observed to be as 'grave suspicion'. It is generally

observed in criminal trials that if there is a 'grave suspicion' or

a prima facie case is made out against the accused, then the

charge against the accused person has to be framed. In

simpler words, it can be said that if at the stage of charge,

there is a 'doubt' regarding the involvement of the accused in

commission of an offence then the charge against him has to

be framed and in case, there is a 'doubt' about his involvement

at the time of final arguments, the benefit of doubt has to be

given to the accused and he is to be acquitted.

7. The contention of the learned counsel that the petitioner

has been able to provide unimpeachable evidence by way of

CCTV footage and call details, if accepted, would mean that

the version of the accused is accepted as a gospel truth and

the statement made by the injured Yogesh Kumar @ Boby, on

the basis of which FIR has been registered, where he has

specifically named the petitioner and attributed a definite role

to him, will be held to be as not acceptable. This would mean

that at the stage of framing of the charge, the court would be

accepting the version of the accused to be superior and more

credible than the version of the prosecution, which is against

the basic tenets of criminal law as has been stated

hereinabove for the purpose of framing of the charge, the

court does not have to see the respective merits or demerits of

the case of the prosecution or the defence, the court has to

only see if there is sufficient prima facie evidence brought on

record by the prosecution agency to proceed against the

accused person. This evidence would be either by way of

statements or by way of seizure of documents coupled with

medical record, etc.

8. In the instant case, the petitioner's name has been

specifically mentioned by the complainant, who is the author

of the FIR and he has attributed a definite role to the present

petitioner of having caused injuries to Chander Shekhar, his

friend, who was accompanying him at that time. The injured

Chander Shekhar's MLC is on record where he is shown to

have suffered injuries. Therefore, this version cannot be

completely discarded and the version of the accused that he

was present at Shani Dev Mandir, cannot be accepted as a

gospel truth. It has already come in record that the two

places, i.e. the location of the Shani Dev Mandir, and the place

where the petitioner was located by virtue of his cell phone

location, are in the immediate vicinity of the place of

occurrence. Therefore, it becomes a matter of proof as the

petitioner is essentially taking a plea of alibi which he will have

to establish at the stage of trial.

9. I do not find any infirmity in the impugned order dated

3.8.2012 having been passed by the trial court directing the

framing of charge against the petitioner under Sections

307/324/323/34 IPC.

10. Before I close, I must briefly mention the judgments

which the learned counsel for the petitioner has referred. In

Shakuntala's case (supra), the High Court had only observed

that the investigation has to be fair and just and the job of the

Investigating Officer is not to strengthen the prosecution case

by withholding the evidence collected by him. No dispute can

be raised regarding this proposition of law laid down by High

Court. It is not the case of the petitioner that the Investigating

Officer has not been fair. On the contrary, the CCTV footage

and the details of his cell phone location were taken into

consideration by the police and he was not sent for trial and it

is only the court which has taken into consideration the

evidence against the petitioner, including the one which was

favourable to him, that is, CCTV footage and the telephone

details and taken cognizance and proceeded against the

present petitioner. Therefore, this judgment, in my view, is not

applicable. Baldev Singh's (supra) judgment is also not at all

applicable. Similarly, I have gone through the other judgments

and they also do not help the petitioner in any manner

whatsoever.

11. For the reasons mentioned above, I feel that there is no

illegality, impropriety or incorrectness in the order of the Trial

Court directing the framing of charge against the petitioner

and accordingly, the petition is misconceived and the same is

hereby dismissed.

V.K. SHALI, J.

AUGUST 24, 2012 'AA'