Harendra Pratap Singh Yadav @ ... vs The State Of Jharkhand
2023 Latest Caselaw 2733 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Revision No.256 of 2023
Harendra Pratap Singh Yadav @ Harendra Pratap Singh
@ Harendra Prasad Yadav                 ..... ... Petitioner
                           Versus
1.The State of Jharkhand
2.Om Prakash                            .... .... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate Mr. Rohan Mazumdar, Advocate For the State : Mrs. Kumari Rashmi, A.P.P.

For the O.P. No.2      : Mr. Gaurav Abhishek
                       --------
C.A.V. on 26.07.2023                  Pronounced on 09.08.2023

1. Heard learned senior counsel for the petitioner, learned counsel for

the State and learned counsel for the Opposite Party No.2.

2. The present criminal revision has been preferred against the order

dated 17th February, 2023 passed by the learned Additional

Sessions Judge-III, Godda in Sessions Trial No.76 of 2021,

whereby and whereunder the discharge petition filed on behalf of

the petitioners under Section 227 Cr.P.C. has been rejected.

3. Learned senior counsel for the petitioner has submitted that the

F.I.R. of this case was lodged under Section 306 of the I.P.C.

against the petitioner - Harendra Prasad Yadav. The charge-sheet

was filed under the said section and the trial court had rejected

the discharge application of the petitioner without appreciating the

evidence collected by the I.O. in proper way. From suicide note

which is annexed with F.I.R., it appears that there is nothing

against the petitioner to show that he had abetted the deceased

to commit suicide. The Whatsapp chat of the deceased also does

not show that the petitioner had blackmailed her or the deceased

was distressed with the conduct of the petitioner before

committing suicide. It is further submitted that so far as Whatsapp

chats are concerned, the same are not admissible without the

certificate under Section 65-B of the Evidence Act. The charge-

sheet has been filed and no certificate to that effect has been

filed on behalf of the prosecution. As such the Whatsapp chat

cannot be read in evidence for framing charge.

4. Learned A.P.P. and learned counsel for the O.P. No.2 vehemently

opposed the contentions made by the learned senior counsel for

the petitioner and contended that the suicide note which is made

part of the F.I.R, in that suicide note, it is mentioned that all the

details are in the mobile phone and rest ask from Sahana. It

shows that the deceased had disclosed the cause of committing

suicide in the mobile phone and she also told to her friend Sahana

why she committed suicide. From the very Whatsapp chat, it is

found that even after marriage of the deceased with Shashi

Bhushan Sidharth, the petitioner was still having love affairs with

the deceased and he was in continuous contact of her on

Whatsapp chat. Though on asking by the deceased, he stated in

Whatsapp chat that he had deleted all her photographs and he

had not recorded the video and he has no intention to blackmail

her. But from the very Whatsapp chat, it is also found that the

victim was aggrieved from the conduct of the petitioner and that's

why she committed suicide. Moreover, Sahana was also examined

by the I.O. during investigation and her testimony was also

considered by the learned trial court while rejecting the application

for discharge. As such, the impugned order bears no infirmity and

same needs no interference by this Court.

5. From perusal of F.I.R., it is found that the father of the deceased

Om Prakash lodged the F.I.R. with these allegations that his

daughter was married with Shashi Bhushan Sidharth in the year

2017 and after two years of marriage the difference between

them arose and she came back to her parental house. It is further

alleged that thereafter talk started between the deceased and her

husband but she does not want to go to Bokaro. It is also alleged

that the deceased started talking to someone and said that she

was talking with her friend Sahana. After few weeks, the

informant's son-in-law sent information that he wanted to take

back his wife, but the deceased did not want to live in Bokaro. It

is further alleged that since 4 to 5 days, the daughter of the

informant was talking on mobile phone whole night with her friend

Sahana and she used to chat with Harendra whose number was

saved as Ambika BHU and at that time, she used to keep quiet all

the time. It is further alleged that the informant took her daughter

to Dr. Ashok Kumar in Godda on 17th May, 2021 and thereafter, in

the evening, she went to her room after taking tea. It is also

alleged that when her brother Gaurav went to open the door, the

door was locked from inside and when the lock was broken, she

was found hanging from a fan with dupatta. It is also alleged that

a diary was also recovered from the place of occurrence. It is

further alleged that the petitioner used to blackmail the daughter

of the informant whose number was saved as Ambika BHU.

6. From perusal of the F.I.R., it is found that the daughter of the

informant, namely, Mili Anand was married but she had love affairs

with the petitioner and even after marriage, the petitioner whose

number was saved in the deceased mobile phone as Ambika BHU

was in contact with her through Whatsapp chat. From perusal of

the suicide note which is made part of the F.I.R., it is found that

the deceased was happy with her brother, father, Bhabhi and also

with her husband Sidhartha. In the said suicide note she had

addressed to her husband Sidhartha which reads as under :

"Sid- You are the bestest person I ever met in my life. आप हमको कभी माफ़ नही ीं कर पाएीं गे करना भी नही ीं चाइये

हम काम ही ऐसा ककया आपसे कमल कर माफ़ी माींगना चाहते थे पर इतनी कहम्मत नही ीं हो रही हो सके तो माफ़ कर दे ना

आप कर भी दे ते तो भी हम जी नही ीं पाते शमम से "

7. From above quoted note, it appears that she was happy with the

conduct of her husband but she was feeling guilty on account of

her own act and she committed suicide. It is pertinent here to

quote the last line of suicide note :

"सारा details mob में है बाकी sahana को call करके puchana."

8. It shows the reason of commission of suicide. The deceased had

disclosed that all the details are in mobile phone and the same has

been also disclosed to her friend Sahana. The chat of mobile

phone of the deceased and the accused Ambika BHU are at page

43 to 52 which are the annexure of this petition. This chat shows

that the deceased was having love affairs with the accused -

Ambika BHU. It is relevant here to quote the Whatsapp chats of

the deceased and Ambika BHU which are as under :

Baki blackmail nahi krege.

Sab Over.

Photos Permanent deleted h.

Ye nhi kroge ap hum jante hai.

Thank you.

Nischint daho.

Ek photo nhi h.

Bas ss aur recording bhej do.

She batao hm kya kre.

Aur Ki sucie na kro.

Humme itni himmat ho jaye.

Apse kuch nhi hoga ab Na hum chahte hai kro Bas ss aur recording bhej do Bhej dege.

Apko jo mujhse chahiyhe tha shsily de rhi... uske sath hi bacha kr lo.

Kr lege.

Aur ho sake toh thodi insanyat ksyam rkhie jaan Thik hai bye.

Bass ss aur recording bhejna.

But baki sab meri feeling.....??? Sexual need ppora kr do khush ho jayege baki mafi mang lena Abhi bhi stuck rhegi apke liye.

Ab lo alag natak h.

Kitna ganda feel hoga.

Phir bathroom me ja kr royenge hum. Kyu Apne video bhi bnai thi kya Meri.....? Never ever.

Hmmm Khali photo thi gall me kiss krte huye.

9. From the above Whatsapp chats between the deceased and the

accused it transpires that even after solemnization of marriage the

accused - petitioner was in close touch of the deceased. He had

prepared the video and also clicked the photographs of the

deceased that's why she was making demand to delete them but

the accused had asked her to fulfill his sexual need and in reply,

the deceased had stated, she would feel much guilty reason being

she was married. As such from this chat also, it is apparent that

though the accused had not abetted directly the deceased to

commit suicide, yet she being in continuous touch of the deceased

even after solemnization of marriage was insisting her to fulfill his

sexual desire. From that conduct she was feeling herself guilty and

it is the very reason she committed suicide. That's why she has

mentioned in the suicide note that find the reason of commission

of suicide from the mobile chat.

10. On behalf of the State a counter affidavit has also filed in which

it is stated at paragraph 8 that detail of conversation of the

deceased with her friend Sahana was given in paragraph 87 of the

case diary from which it appears that the accused was in

continuous chat with the deceased for the purpose of

blackmailing. As per postmortem report, the death was due to

asphyxia as a result of hanging.

A counter affidavit has also be filed on behalf of the Opposite

Party No.2 - Om Prakash, wherein at paragraph 6, it is stated that

the audio call recording between the deceased and her friend

Sahan crystal clears that the petitioner was blackmailing the

deceased for the photograph and video recording which was with

the petitioner. The petitioner had also been taking money from the

deceased which is evident from the money transaction record

between the petitioner and the deceased.

11. So far as the Whatsapp chats are concerned, though the

charge-sheet has been filed in this case and certificate under

Section 65-B of the Evidence Act has not been produced but the

same is not fatal to the prosecution case. It may be produced at

the time of evidence.

12. The Hon'ble Apex Court in the case of State by Karnataka

Lokayukta Police Station, Bengaluru vs M. R. Hiremath

reported in AIR 2019 SC 2377 at paragraph 16 has held as

under :

"16. Having regard to the above principle of law, the High Court erred in coming to the conclusion that the failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise."

13. Therefore from the materials available on record, it is found

that there is sufficient material in the suicide note, wherein the

cause of death is disclosed by the deceased in her mobile chat

and the deceased also stated to know the cause of death from her

friend Sahana. From the mobile chats and conduct of the

petitioner, it is apparent that he wanted to fulfill his sexual desire

from the deceased with whom he was having love affairs, even

after solemnization of marriage, and after marriage the deceased

was happy with her husband thereby she was feeling guilty for her

conduct to be in contact and in love affairs of the petitioner. In

paragraph 6 of the counter affidavit filed on behalf of the

Opposite Party No.2 - Om Prakash, it is stated that the police has

also seized the audio call recording between the deceased and her

friend Sahana from which it is clear that the petitioner was

blackmailing the deceased for the photographs and the video

recording which was with the petitioner. As such there was

sufficient materials collected by the I.O. to frame charge against

the petitioner and the learned trial court has rightly rejected the

discharge application of the petitioner. It is pertinent to mention

here that while framing the charge, the court is not required to

make the minute screening of the evidence and the marshalling of

the evidence at this stage is not permissible. What is required to

see whether there is sufficient ground to proceed against the

accused?

14. The Hon'ble Apex court in the case of Palwinder Singh vs.

Balwinder Singh & Ors. reported in (2008) 14 SCC 504 at

paragraph 13 has held as under :

"13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi wherein it was

held as under:

"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [Satish Mehra v. Delhi Admn. holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

15. The Hon'ble Apex Court in the case of CBI v. Mukesh

Pravinchandra Shroff reported in (2009) 16 SCC 429 at

paragraph 2 has held as under :

"2. By the impugned order, the Special Court has discharged the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal Shroff and Mukesh Pravinchandra Shroff from Special Case No. 4 of 1997. From a bare perusal of the impugned order, it would appear that the Special Court has virtually passed an order of acquittal in the garb of an order of discharge. It is well settled that at the stage of framing of the charge, what is required to be seen is as to whether there are sufficient grounds to proceed against the accused. In our view, the Special Court was not justified in discharging the aforesaid accused persons."

16. The Hon'ble Apex Court in the case of Vikram Johar vs State

of Uttar Pradesh reported in AIR 2019 SC 2109 at paragraph

19 has held as under :

"19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence."

17. In view of the aforesaid discussions and the settled legal

proposition of law as laid by the Hon'ble Apex Court, the

impugned order dated 17th February, 2023 passed by the learned

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Additional Sessions Judge-III, Godda bears no infirmity and the

same is, hereby, affirmed.

18. The present criminal revision is bereft of merits and is

accordingly dismissed.

19. Let a copy of this order be communicated to the court

concerned through 'FAX'.

(Subhash Chand, J.) Rohit/AFR