Rajesh Kumar vs Union Territory Of J&K
2021 Latest Caselaw 1656 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                  Reserved on : 10.11.2021
                                                  Pronounced on: 10.12.2021

                                                  CRM(M) No. 464/2020
                                                  CrlM No. 1821/2020

Rajesh Kumar                                       .....Appellant(s)/Petitioner(s)


                        Through: Mr. Jagpaul Singh, Advocate.
                 Vs
Union Territory of J&K                                        ..... Respondent(s)


                        Through: Ms. Pallavi Sharma, Advocate vice
                                 Mr. Ravinder Gupta, AAG

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                 JUDGEMENT

1. The present petition has been filed by the petitioner for quashing the

order dated 31.10.2018 (for short, the order impugned) passed by the

learned Principal Sessions Judge, Samba (hereinafter to be referred as the

trial court) in challan, titled, State vs. Anil Kumar and others by virtue of

which charges under Sections 302, 457, 380, 120-B, 201 and 34 RPC

have been framed against the petitioner along with other accused.

2. It is stated that the petitioner figures as an accused in challan titled "State

vs. Anil Kumar and others" and charges as mentioned above were framed

against the petitioner. The petitioner has impugned the order dated

31.10.2018 on the following grounds:

(i) That the order impugned has been passed in a mechanical manner

and without application of mind.

(ii) That perusal of the challan makes it amply clear that prima facie

no case under Section 302 RPC is made out against the petitioner

as there was no conspiracy between the petitioner and rest of the

accused to murder the deceased lady.

(iii) That the petitioner was not even aware of the commission of the

alleged offence by the rest of the accused persons and the

petitioner came to know about commission of the alleged offence

only when he was arrested by the Police.

(iv) That only allegation against the petitioner is that he told other

accused persons that the deceased lady was living all alone and

was having cash and gold with her and they could easily commit

theft in her house and that the house of the said lady was shown

by the petitioner to the rest of the accused.

3. Response stands filed in which factual aspects of the case have been

narrated and it has been stated that the disputed questions of facts can

only be adjudicated by leading evidence during trial.

4. Mr. Jagpaal Singh, learned counsel appearing on behalf of the petitioner

vehemently argued that there is no evidence that the petitioner was part of

the conspiracy for committing the murder of the deceased lady, as such,

learned trial court has wrongly framed the charges for commission of

offence under Section 302 RPC against the petitioner.

5. Ms. Palvi Sharma, Advocate appearing vice Mr. Ravinder Gupta, learned

AAG vehemently argued that the learned trial court after examining the

material available on record has come to the conclusion that there is

sufficient material for framing the charges against the petitioner for

commission of offences under Sections 302, 457, 380, 120-B, 201 and 34

RPC.

6. Heard and perused the record.

7. It is settled law that while considering the issue of framing

charge/discharge of the accused, the trial court has to form opinion on the

basis of material on record by the Investigating Officer as to whether

there is sufficient ground for presuming that the accused has committed

an offence or not. The material on record would constitute the statement

of witnesses, injury report/post-mortem report along with other material

relied upon by the prosecution. At this stage, the trial court cannot

indulge in critical evaluation of the evidence, as can be done at the time

of final appreciation of evidence after the conclusion of trial but the

charge can be framed against the accused even when there is strong

suspicion about the commission of offence by the accused. At the same

time the trial court is not expected to merely act as post office and frame

the charge just because challan for the commission of a particular offence

has been filed against the accused. The trial court can sift the evidence

brought on record by the prosecution so as to find out as to whether the

un-rebutted evidence placed on record fulfils the ingredients of offence or

not. If the ingredients are lacking then the Court has no option but to

discharge. The Hon'ble Apex Court in Dipakbhai Jagdishchandra Patel

v. State of Gujarat, reported in (2019) 16 SCC 547 has held as under:

"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the

court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."

8. The same principle has been reiterated by Apex Court in Sanjay Kumar

Rai vs State of Uttar Pardesh & Anr, 2021 SCC Online SC 367, in

which it has been held as under:

"17. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal (1979(3) SCC4)]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be."

9. Now, this court would examine the contentions of the parties on the

touchstone of law laid down by Apex Court in the judgments (supra).

From the perusal of the prosecution story, it transpires that on 05.02.2017

a report was lodged by one Govind Sethi that they were five brothers and

one of his brothers was dead and the remaining three brothers were

residing separately and their mother, wife of Late Labu Ram Sethi had

been residing separately from him. His nephews, sons of Parshotam Lal

i.e. the deceased brother had been living near the house of the deceased

mother. She used to prepare food for herself and in the previous night in

routine, after having food, she went to her room to sleep. On next day,

she did not wake up and his nephews went to see her from other way of

the room and found that her body was covered with a quilt and when the

same was removed, she was found dead. Blood was oozing from her head

and a wooden log was lying nearby.

10. On receipt of this information, FIR bearing No. 20/2017 was registered

under Section 302 RPC and during the course of investigation,

Investigating Officer examined the spot, prepared the seizure memos and

also conducted investigation about the golden ornaments etc. During the

investigation, it was found that mobile phone of the deceased lady was

used on the SIM card of one Dharmo Devi who had given the same to her

son Anil Kumar-accused No. 1 who was using the same. He sold the

same to Sunny S/o Sham Lal which was recovered from him and seized.

Anil Kumar was arrested and on his interrogation, the other accused were

also arrested. Anil Kumar made a disclosure statement with regard to pipe

and that was recovered at his instance. Joginder Kumar made a disclosure

about a wooden stick and a golden chain, the same was recovered at his

instance and on the disclosure of the Vikram, a pipe was recovered along

with a pair of earrings and scooty without number. The motorcycle

belonging to the petitioner bearing No. JK21B-4649 on which the

accused had conducted the recce of the area and of the house of the

deceased, was seized. The statements of the witnesses under Section 164-

A Cr. P. C. were also recorded and further it was found that deceased

Kailasho Devi was a peon in Education Department and used to live

alone in her house. She was having the cash worth Rs. 1,36,000/-

including the amount of Rs. 20,000/- that was withdrawn by her from

J&K Bank, Branch Samba on 03.02.2017. Accused No. 1, 2 and 3 were

searching for potential target when accused No. 3 i.e Vikram Kumar told

his friend i.e. petitioner herein that they wanted to commit some theft and

for that purpose, they were in search of a potential wealthy target. All the

four accused including petitioner assembled on 02.02.2017 in the

afternoon and the petitioner told other accused that his name should not

come and that there was an old lady who was residing all alone in his

neighbourhood and was having money, gold and cash. Petitioner took the

accused No. 1 and 3 on his motorcycle bearing No. JK02B-4649 for

conducting the recce of the area who were seen by Sahil Sethi. All the

four conspired together that they will kill the old lady and will commit the

theft of her golden ornaments and hatched a plan.

11. In pursuance of the said plan, on 04.02.2017 accused No. 1, 2 and 3

went together on a scooty driven by accused No. 3 and parked the same

near the house of deceased lady. Thereafter, they went through the

pathway shown to them by the petitioner towards the nallah and they

entered the compound of the deceased lady. The accused No. 2 i.e.

Joginder Kumar took a log of wood and the other two accused took the

iron pipes for killing purpose. Anil Kumar went inside the house through

a window and thereafter, other two also entered and started committing

the theft in the house. When accused No. 1 took the key in order to open

the almirah and opened the same, Kailasho Devi woke up. Accused No. 1

attacked her with a blow of wooden log on her head and murdered her

and her golden rings and cash worth Rs. 1,36,000/-, mobile phone were

stolen by them. Accused No. 1 took the earrings along with accused No. 3

and distributed the same between the two. On the conclusion of the

investigation, charge sheet was filed for commission of offence under

Sections 302, 457, 380, 120-B, 201, 34 RPC against the petitioner and

other accused.

12. A perusal of the record reveals that the petitioner told other accused about

their potential target for commission of theft and even the recce was also

conducted on the motorcycle of the petitioner and it was also established

during the course of investigation that the other three accused trespassed

into the house of the deceased in order to commit theft and while the theft

was being committed by the accused other than the petitioner, the lady

woke up and accused No. 1-Anil Kumar assaulted her on her head as a

result of which she died. In fact, the prosecution story is in two parts.

First part is the conspiracy with regard to the commission of theft and the

other part is the commission of the murder during the commission of the

offence of theft by the accused other than the petitioner.

13. So far as the first part is concerned, there is absolutely no doubt that the

petitioner was part of conspiracy for the purpose of commission of theft

as is evident from the statements of PW-Sahil Sethi, PW-Atma Ram Sethi

and PW-Dev Raj Sethi. But so far as second part is concerned there is no

evidence as such against the petitioner with regard to the participation in

the commission of theft and the commission of the murder of the

deceased during the course of the commission of theft. His role was only

to the extent of informing the other accused persons about their potential

target of theft and further showing them the house of the deceased lady.

The learned trail court too has observed that there is no evidence that the

petitioner has participated in the commission of offence of murder (para-

21of the order impugned) but as he participated in the conspiracy to

commit theft so his involvement cannot be ruled out at this stage. It

requires to be noted that the direct evidence to the conspiracy is rarely

available but in the instant case the prosecution has brought on record

evidence with regard to conspiracy for commission of offence of theft

only. There is nothing on record to show that at the time, when the

petitioner informed the other accused about their potential target, it was

also decided that she be killed. There is no evidence so far as

participation of the petitioner in the commission of murder of the

deceased lady while committing theft and also that he was privy to the

conspiracy for killing the deceased. The accused has also been charged

under section 34 RPC and once he was not present on spot at the time of

commission of offence of murder, he could not have been charged under

sections 302, 34 RPC. As he was privy to the conspiracy for commission

of theft only in view of the statements of witnesses mentioned above, he

was required to be charged for commission of offences under sections

380,457,120-B RPC only.

14. The learned trial court has framed the charges against the petitioner even

for commission of offence under Section 302/34 RPC, when virtually

there was no evidence against the petitioner for commission of the said

offences.

15. In view of all what has been discussed above, order impugned to the

extent of framing of charge against the petitioner under Sections 302/34

RPC, is set aside. The petitioner shall continue to face the trial for other

offences before the trial Court.

16. Disposed of.

(RAJNESH OSWAL) JUDGE

Jammu 10.12.2021 Sahil Padha Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No