Page No.# 1/18 vs Page No.# 2/18
2024 Latest Caselaw 4774 Gua

Gauhati High Court

Page No.# 1/18 vs Page No.# 2/18 on 28 June, 2024

                                                                Page No.# 1/18

GAHC010087512023




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : Crl.Pet./374/2023

         SASHI KUMAR DUTTA AND 2 ORS
         SON OF SRI SUBRATA DUTTA
         PERMANENT RESIDENT OF BASHBARI,
         BARUAH PATHER UNDER DIBRUGARH POLICE STATION, IN THE
         DISTRICT OF DIBRUGARH, ASSAM,
         PIN-786001.

         2: SRI RAVI YADAV
          S/O SRI SATISH CHANDRA YADAV
         PERMANENT RESIDENT OF B-522

         VISHWA BANK

         BARRA
         KANPUR UNDER BARRA POLICE STATION IN THE DISTRICT OF KANPUR
         UTTAR PRADESH

         PIN-208027

         3: SRI HIMANK SHARMA
          SON OF SRI SUNIL KUMAR SHARMA
         PERMANENT RESIDENT OF 6
          KRISHNA KUNJ
          IMERTIYA BERA
          INCOME TAX COLONY

         PAOTA
          C. ROAD
          JODHPUR
          RAJASTHAN
          PIN-34200

         VERSUS
                                                                       Page No.# 2/18

            THE STATE OF ASSAM AND ANR
            REP. BY THE PP, ASSAM

            2:SRI RINKU MALAKAR
             SON OF LATE RAMA KANTA MALAKAR
            R/O SUPRAKANDI
             FAKIRA BAZAR
             UNDER KARIMGANJ POLICE STATION IN THE DISTRICT OF KARIMGANJ
            ASSA

Advocate for the Petitioner   : MR. B M CHOUDHURY

Advocate for the Respondent : PP, ASSAM

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Petitioners :Mr. BM Choudhury, Senior Advocate

For the Respondents : Mr. MP Goswami, Additional PP Mr. A Ahmed, Advocate

Date of Hearing : 21.05.2024

Date of Judgement : 28.06.2024

JUDGEMENT & ORDER (CAV)

1. Heard Mr. BM Choudhury, learned counsel for the petitioners. Also heard Mr. MP Goswami, learned Additional Public Prosecutor, Assam and Mr. A Ahmed, learned counsel for the respondent No. 2.

2. The present application is filed under Section 482 read with Section 397 of the Code of Criminal Procedure for quashing the charge-sheet No. 684/2013 dated 05.11.2013 arising out of Silchar PS case No. 1356/2011 Page No.# 3/18

dated 18.08.2011. The further challenge is an order dated 04.03.2023 passed by the learned Additional Sessions Judge (FTC), Cachar at Silchar in Sessions Case No. 135/2019, whereby formal charge under Section 302/34 IPC has been framed against the petitioners and one Amit Mishra.

3. The brief facts leading to filing of the present case is that on 18.08.2011 one Ratnadeep Malakar (since deceased) lodged an FIR before the Officer-in-Charge, Silchar (S) Police Station, alleging, inter-alia, that he is a student of Assam University and on 17.08.2011 at about 3 p.m., some students of IT department of the University assaulted him with rod, branches of trees, iron chain and belt etc. causing serious injury in various part of his body, including his right eye. It was further alleged that an amount of Rs. 2,340/- was also snatched away from the said informant. It was also alleged in the FIR that out of the said students, he could identify one Amit Mishra of IT department and he could recognize the other accused persons, if he sees them.

4. On receipt of the aforesaid FIR, Silchar PS case No.1356/2011 was registered under Section 143/325/379 IPC. Thereafter, on 15.09.2011, the victim died and after death of the victim, the investigating officer added Section 302 IPC and subsequently charge-sheet was filed as recorded hereinabove and charges were framed.

5. Argument advanced on behalf of the petitioners:

I. Mr. Choudhury, learned counsel for the petitioners, referring to the material available on record, argues that the incident took place on 17.08.2011 and on 19.08.2011, the deceased was examined by Page No.# 4/18

doctor and he was advised for eye treatment at Sankardev Netralaya, Guwahati. Accordingly, the deceased was taken to eye specialist at Sankardev Netralaya on 23.08.2011 and he was treated at Sankardev Netralaya as an outdoor patient till 30.08.2011. When his injury in the eye got a little better, he was asked to come for checkup after 21 days. According to Mr. Choudhury, learned counsel, it is also on record that on 31.08.2011, the deceased came back to his residence at Karimganj. He felt unwell on 12.09.2011 and was taken to Karimganj Hospital. Treating doctor referred him to Assam Medical College & Hospital, Silchar, however, on the way to hospital, when his condition deteriorated, he was taken to Redcross Hospital, Silchar and he was released from the said hospital on 14.09.2011 with an advice to take rest. However, on 15.09.2011, his condition started deteriorating and he expired on the same date. Therefore, in the aforesaid factual backdrop projected by the prosecution itself, according to Mr. Choudhury, there cannot be any causal relation between the death and the injury inflicted upon the deceased.

Accordingly, Mr. Choudhury contends that on the basis of such material, there cannot be any suspicion not to say grave suspicion of commission of an offence of murder.

II. It is the further contention of the learned counsel that the impugned order dated 04.03.2023, whereby the charge has been framed, the learned trial court itself is not confident about the material on the basis of which charge under Section 302 IPC can be framed inasmuch as the charge has been framed subject to evidence that can be produced during the course of trial. According to Mr. Page No.# 5/18

Choudhury, such course of action is not permissible under section 212 and 213 of the Cr.P.C. and therefore the order of framing charge is liable to be set aside and the petitioners are entitled for discharge from the charge under Section 302 IPC.

III. Mr. Choudhury, learned counsel further contends that there is no material on record to charge the petitioners under Section 302 IPC inasmuch such charge cannot be subject to future available material. In this regard, Mr. Choudhury submits that the cause of death as disclosed in the postmortem report is also cardio respiratory failure due to septicemia and no external and internal injury was found during the postmortem examination. That being the position, there cannot be any suspicion of commission of offence of murder under Section 302 IPC inasmuch as there is 28 days gap between the date of injury and the date of death.

IV. It is further contended that the prosecution case and the material collected by the investigating agency, clearly discloses that incident is a free fight due to love triangle. It is also clear from the material collected by the prosecution that the petitioners are not involved in the love triangle. According to Mr. Choudhury, the initial injury report relied on by the prosecution reflects that the injury is in the eye only and the injured was not even hospitalized inasmuch as the X-ray reflects normal study. According to him, the material relied by the prosecution, without any dispute discloses that the injured was taken to Guwahati after three days of the incident for eye treatment, nobody has named the petitioners as involved in the commission of Page No.# 6/18

the offence. Admittedly, the victim, between the date of injury till his death was travelling across the cities, went to Guwahati and returned to his residence at Karimganj, went to Silchar and returned home at Karimganj and that admittedly the victim died after 28 days of the incident of the initial injury. The postmortem report also reflects that there was no external injury on the date of death and the cause of death was septicemia. Therefore, the aforesaid material relied on by the prosecution cannot lead even to a suspicion that the cause of death was homicidal in nature.

V. While proceeding further, Mr. Choudhury, learned counsel argues that the material relied on by the prosecution to the effect that according to the version of the aunt of the victim, the victim before leaving for his residence at Karimganj, he had written four names in a piece of paper, even if assumed to be true, such material cannot lead to a suspicion that the petitioners were involved in beating him inasmuch as only the names of the petitioners were written in a piece of paper without any implication/ allegation against them. The statement of the aunt of the victim recorded under Section 161 Cr.P.C., according to Mr. Choudhury, even if treated to be correct cannot create a suspicion of a case of murder inasmuch as there is no proximity and nexus between the injury and cause of death.

VI. Mr. Choudhury further contends that the learned trial court had failed to apply its judicial mind to the material placed before it to come into a clear conclusion that a prima-facie case has been made out against the accused. Therefore, the order of framing charge is Page No.# 7/18

liable to be set aside.

VII. According to Mr. Choudhury, learned counsel in the case in hand, there are two possible views and the view of commission of the offence by the petitioners can be taken only on the basis of suspicion, as distinguished from the grave suspicion and therefore the learned court below ought to have discharged the petitioners from the charges under Section 302 IPC.

VIII. The learned trial court, according to Mr. Choudhury, has failed to consider the broad probabilities, the total effect of evidence and the documents produced before it and thus framed the charges under Section 302 IPC. According to him, there is no iota of evidence, which in any manner, connect the present petitioners in the commission of the crime and the learned trial court has failed to look into the record as to whether there is any oral or documentary evidence available, which in any manner, connect the petitioners with the alleged incident of crime.

IX. In support of the aforesaid contentions, Mr. Choudhury relies on the decision of Hon'ble Apex Court in Satish Chandra Ratanlal Shah vs. State of Gujarat reported in (2019) 9 SCC 148 and P Vijayan vs State of Kerela reported in (2010) 2 SCC 398.

6. Argument advanced on behalf of the State and the respondent No. 2:

I. Per contra, Mr. A Ahmed, learned counsel for the respondent No. 2 as well as Mr. MP Goswami, learned Additional Public Prosecutor Page No.# 8/18

contend that the impugned order was rightly passed by the learned trial court below considering the materials available on record within the parameter of Section 228 of Cr.P.C. According to the learned counsels, at this stage, the argument that cause of death was cardio respiratory failure following septicemia cannot be a ground to discharge the petitioners from the charges under Section 302 IPC inasmuch as the dispute raised can be settled only when the doctor appears before learned court, he is examined and cross-examined. In support of such contention, the decision of the Hon'ble Apex court in Ghulam Hassan Beigh vs. Md. Mohammad Maqbool Magrey reported in (2022) 12 SCC 657 is being relied on.

II. It is further argued that from the material available on record, it is clear that the victim was assaulted by the accused persons and subsequently the victim died. Whether the case falls under Section 302 IPC or Section 307 IPC or Section 304 IPC can be determined during the trial only inasmuch there is a grave suspicion of commission an offence of murder.

III. According to Mr. Ahmed, mere lapse of time between the death and the date of occurrence would not absolve the petitioners from the liability from the offence of murder. In this regard, Mr. Ahmed relies on decision of Hon'ble Apex Court in Prasad Pradhan and Anr. Vs. State of Chhattisgarh reported in AIR 2023 SC 643.

7. This court has given anxious consideration to the submissions advanced by the learned counsels for the parties. Perused the material available on record including the material collected by the investigating authority, the Page No.# 9/18

statements of the witnesses recorded under Section 161 Cr.P.C.

8. It is by now well settled that at the stage of framing charges, the court has power to see and weigh the evidence collected by the investigating authority, for a limited purpose of finding out whether any prima-facie case against the accused has been made out. It is equally well settled that when the material placed before the court discloses grave suspicion against the accused, the court will be justified in framing charge. It is also a settled proposition of law that neither a roving enquiry can be carried out nor any mini trial is required to be taken at the stage of framing of charges. When on the basis of materials collected by the investigating authority, the court comes into a conclusion that commission of an offence is a probable consequence, a charge can be framed.

9. The learned counsel for the petitioners, as recorded hereinabove has relied on some important decisions in this regards. From the aforesaid judgments of the Hon'ble Apex Court, the following propositions of law can be culled out:

I. The purpose of framing a charge is to intimate to the accused clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of trial.

II. The prima-facie case must be made out before a charge can be framed.

III. A court while exercising its power under Section 227 of the Code is having power to shift and weigh the evidence for the limited purpose of finding out, whether any prima-facie case against the Page No.# 10/18

accused is made out.

IV. Where grave suspicion exists against the accused, a court shall be justified in framing a charge.

V. When two views are equally possible and the material produced by the prosecution gives rise to some suspicion but not grave suspicion against the accused, the court shall be within its jurisdiction to discharge the accused.

VI. At the time of framing of charge, the probative value of the material produced by the investigating authority, though cannot be gone into but the court must apply its judicial mind on the material placed on record and must be satisfied that commission of offence by the accused is possible.

VII. A trial court, while exercising its power under Section 227/228 of the Code, is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record.

10. Now coming to the case in hand, after careful scrutiny of the material evidence collected by the investigating authority, including the statement of the victim recorded under Section 161 Cr.P.C., the postmortem report and other documentary evidence, the following facts as projected by prosecution emerges:

I. On 18.08.2011, the deceased lodged the FIR, alleging, inter-alia, that on 17.08.2011 at about 3 p.m., some students of IT department of the University assaulted him with rod, branches of trees, iron Page No.# 11/18

chain and belt etc. causing serious injury in various part of his body, including his right eye. It was also alleged in the FIR that out of the said students, he could identify one Amit Mishra of IT department and he could recognize the other accused persons, if he sees them.

II. On receipt of the aforesaid FIR, Silchar PS case No.1356/2011 was registered under Section 143/325/379 IPC. Thereafter, on 15.09.2011, the victim died and after death of the victim, the investigating officer added Section 302 IPC and subsequently charge-sheet was filed.

III. One of the witness, who was owner of a barber shop also stated of witnessing the incident and that he could not save the victim though victim tried to take shelter in his shop, however, the accused took the victim away.

IV. There are three other witnesses who claim to be injured in the incident and also alleges identifying Amit Mishra and that there are three other perpetrators whom they recognized and can identify, though their names are not known to them.

V. As per the statements of the father and aunt of the victim, the victim took shelter on the date of incident in the house of the aunt at Silchar. As per version of the father of the deceased after reaching Silchar from Karimganj on 18.08.2011 he along with the deceased went to the resident of the Superintendent of Police and thereafter went to the police station.

VI. the Victim and his father went to Silchar Medical College Hospital but Page No.# 12/18

as Senior Doctors were not available, junior doctors did various examinations and asked them to come on the next day. Accordingly, they came back to aunt's place.

VII. On 19.08.2011 Senior Doctors examined Ratnadeep and referred him to Sankardev Netralaya at Guwahati and accordingly, they came back to aunt's house at about 3 p.m.

VIII. At about 7 pm on 19.08.2011 they went back to their residence at Karimganj to manage money to go to Guwahati.

IX. The aunt of the deceased stated before police that while leaving for Karimganj, the deceased gave her a piece of paper wherein he wrote the names of the accused petitioners and informed her that these three persons assaulted him and further requested her not to disclose these names to his father as his father may creat a situation and that he will inform the police after completing his treatment.

X. On 21.08.2011, Ratnadeep was taken to an eye specialist of Sankardev Netralay, who sits at a Pharmacy at Karimganj.

XI. On 22.08.2022, he by night super went to Guwahati from Karimganj. From 23.08.2011 to 30.08.2011 Ratnadeep was treated at Sankardev Netralay, Guwahati.

XII. When Ratnadeep's eye got little better, doctor asked him to come for check up after 21 days.

XIII. On 31.08.2011, he came back to house at Karimganj and on 12.09.2011, when Ratnadeep felt unwell and started feeling severe Page No.# 13/18

pain in his abdomen and chest, 108 was called and he was taken to Karimganj Civil Hospital at about 2 am.

XIV. Treating doctors referred him to SMCH and on the way, when his physical condition deteriorated, he was taken to Red Cross Hospital, Silchar and admitted there at about 7 p.m.

XV. Ratnadeep was discharged on 14.09.2011 advising him to take rest at home, medicines were prescribed and at about 3 pm he was taken back home.

XVI. On 15.09.2011 at about 3.30 p.m. he again started having severe pain in his abdomen and chest and became restless and before he could be taken to any hospital, he expired at 4.45 p.m.

XVII. On 15.09.2011, aunt of the deceased along with her husband went to Karimganj from Silchar, on getting the news of death of victim and she informed the father of the deceased giving her the sheet of paper, wherein the names of the accused were written.

XVIII. The said white paper was seized by the investigating officer and is a part of the prosecution evidence as MR No. 422/2012. The investigating officer also allegedly collected admitted signature of the deceased and the MR No. 422/2012 was sent to FSL for determination of the hand writing, which gave a positive result to be hand writing of the deceased.

XIX. To prove the incident, the prosecution has also relied on the statements of three injured eye witnesses, who deposed that apart Page No.# 14/18

from the Amit Mishra other persons also were involved in the incident of assault upon the deceased, whom they could identify, if seen.

XX. The postmortem report is part of the prosecution material which discloses that the cause of death was due to cardio respiratory failure due to septicemia.

11. From the aforesaid, it is clear that the prosecution has projected a case that there was an incident of assault on the deceased and three others, the deceased and other three injured witnesses were injured as a result of such assault, the deceased was under continuous treatment for the injury inflicted on the date of incident till his death, the injured witness could identify one Amit Mishra to be one of the persons, who committed the offence and though they do not know the names of the other accused persons, but they can identify them. It is the further projection of the prosecution that the deceased was taken to hospital, the treatment of the deceased continued till his death, the cause of death is cardio respiratory failure due to septicemia. According to the prosecution, the deceased could recall the name of the petitioners as the perpetrators of the crime and accordingly, had written their names in a piece of paper and handed it over to one of the proposed witness (aunt of the deceased). The said piece of paper according to the prosecution has also been confirmed through forensic expert to be in the handwriting of the deceased.

12. In the aforesaid context, the whole plank of argument of Mr. Choudhury, learned counsel for the petitioners is that the time gap Page No.# 15/18

between the assault and the death, shows that there cannot have any cogent connection inasmuch as the cause of death disclosed in the post mortem report is cardio respiratory failure due to septicemia. Therefore, according to Mr. Choudhury, even if the materials collected by the prosecution are taken on its face value, no case at all, under Section 302 IPC is made out. However, such arguments do not find favour of this court. It is the considered opinion of this court that whether septicemia is having any nexus with the assault, would have to be determined on the basis of the oral evidence of the eye witnesses as well as of the medical officers concerned. It is well settled that the postmortem report, by itself does not constitute substantive evidence. Whether septicemia had any nexus with the incident of assault or whether the injuries inflicted resulted in septicemia, would have to be determined on the basis of the testimony of the witnesses including the expert witness i.e. medical officer, more particularly in the given fact of the present case that the prosecution has prima facie been able to show that the treatment continued till death. Thus, such factum can be established only after recording of oral evidence of the eye witnesses and expert witness along with the other substantive evidences collected during the investigation that may be produced and proved by the prosecution.

13. To come to a conclusion as projected by the learned counsel for the petitioners, the court, on the basis of the material, will have to conclude that that no prima-facie case is made out and that there cannot be any grave suspicion as regards commission of offence under section 302 IPC, which is not possible in the given facts of the present case, as recorded hereinabove.

Page No.# 16/18

14. The reason that there was no external or internal injury were found on the body of the deceased at the time of postmortem examination, cannot be a ground to have a grave suspicion. Such course of action on the basis of material collected in the present case, in the considered opinion is not permissible. In this regard, this court can very well rely on the decision rendered by the Hon'ble Apex Court in Ghulam Hassan Beigh vs Md. Maqbool Magrey and Ors. reported in AIR Online 2022 SC 1130, wherein it was laid down that that a medical witness is an expert to assist the court, is not a witness of fact and the evidence given by the medical officer is an advisory in character, given on the basis of the symptoms found on examination. It is also observed by the Hon'ble Apex Court that the expert witness is expected to put before the court all materials inclusive of the data, which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of signs so that the court although not an expert, may form its own judgment on those materials, after giving due regards to the expert opinion inasmuch as once expert opinion is accepted, it is not the opinion of the medical officer but of the court. In the case in hand, the dispute whether the septicemia was a result of already sustained injury, can be determined through such expert witness and not by this court in exercise of its power under Section 482 Cr.P.C.

15. The argument of Mr. Choudhury, learned counsel that there was 28 days time gap between the injury and the death and therefore, it cannot be termed as an offence under Section 302 IPC, also does not find favour of this court. In this regard, this court can very well place reliance upon the decision of the Hon'ble Apex Court in Prasad Pradhan Page No.# 17/18

(supra). The Hon'ble Apex Court in the said case, after elaborately dealing with the relation of time gap between the injury sustained and death and resultant liability of the offender, held that there can be no stereotypical assumption or formula that as the death occurred after lapse of time, it can be treated as 'culpable homicide amounting to murder'. In the case in hand also, as discussed hereinabove, the prosecution has placed material to show that the victim was under treatment for his injury resulted from the assault for a long time and therefore, this court at this stage, cannot make a determination that the nature of injury sustained by the deceased cannot lead to death inasmuch as it cannot also be determined at this stage whether the septicemia resulted from the injury inflicted.

16. Another aspect of the matter is that, there is sufficient and prima-facie material as regards the commission of offence of assault upon the deceased and the resultant injury. There are also sufficient materials to have a grave suspicion as regards involvement of the accused petitioners in the commission of the offence of assault. That being the position, this court for the reason discussed hereinabove, cannot also held that there is no grave suspicion as regards the causal relation between the injury inflicted and death. Accordingly, the petitioners cannot be discharged from the charge under Section 302 IPC.

17. From the materials as discussed hereinabove, this court is of unhesitant view that the death of the deceased can be a probable consequence of the assault inflicted, and therefore the learned trial court below has rightly framed the charges under Section 302 IPC.

Page No.# 18/18

18. It is correct to say that the learned trial court has not properly framed the charges in terms of the Section 212/213 of Cr.P.C. read with Form 32 appended to the Schedule 2 of the Code of Criminal Procedure. The object of framing charges is to inform the accused the exact nature of charge and the material on the basis of which he has been charged so that he can know the exact charge against him. However, the learned trial court below has committed error in not properly framing the charges in terms of Section 212/213 read with Form 32 appended to the Schedule of the Code of Criminal Procedure. Accordingly, while dismissing this petition as regards framing of charge under Section 302/34 IPC, the learned trial court is directed to reframe charge in terms of Section 212/213 Cr.P.C. read with Form-32 appended to the Schedule of the Code of Criminal Procedure.

19. Accordingly, in view of the determination made hereinabove, the criminal petition stands dismissed with the aforesaid observations and determination.

JUDGE

Comparing Assistant