Manoj Surana vs State Of Rajasthan
2022 Latest Caselaw 2921 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 167/2022 Moin Khan S/o Chhote Khan, Aged About 38 Years, R/o 257, Pathan Manzil, New Sancheti Bhawan, Gandhi Nagar, District Bhilwara (Raj.)

----Petitioner Versus

1. State of Rajasthan, Through PP.

2. Smt. Krishna Vyas W/o Lalit Vyas, Aged About 40 Years, R/o H.No. 170, Jawahar Nagar, Police Station Pratapnagar, District Bhilwara.

----Respondents Connected With S.B. Criminal Revision Petition No. 129/2022 Manoj Surana S/o Sh. Manak Chandra Surana, Aged About 37 Years, R/o Flat No. A-107 Anukampa Residency, P.S. Pratapnagar, Dist. Bhilwara.

----Petitioner Versus State of Rajasthan, Through PP.

                                                                ----Respondent


For Petitioner(s)        :     Mr. M. R. Khatri.
                               Ms. Shobha Prabhakar.
For Respondent(s)        :     Mr. Gaurav Singh, P.P.


               HON'BLE MS. JUSTICE REKHA BORANA

                                    Order
23/02/2022

The present revision petitions have been filed against the

order dated 15.12.2021 passed by the Additional Sessions Judge

No.2, Bhilwara, whereby the charges under Sections 384 and 306

of the Indian Penal Code have been framed against the accused

petitioners.

Learned counsel for the petitioners submitted that besides

the dying declaration of the deceased, there was no other

evidence corroborating the version of the deceased. Counsel

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argued that neither is there any document on record pertaining to

any transaction between the deceased and the accused nor was

there any call entry pertaining to his mobile numbers in the call

details procured by the Investigating Officer. Counsel argued that

for the purpose of framing of the charges, the Court has to satisfy

itself to the extent that there is sufficient material available on

record so as to eventually convict the accused. He submitted that

in the present matter prima facie there is no evidence on record

which could lead to conviction of the accused and therefore,

framing of the charges against the accused is not proper by the

trial court.

Counsel further argued that the dying declaration which has

been made the basis of framing of charges against the accused,

does not fulfill the parameters as laid down by the Hon'ble Apex

Court, as the dying declaration was not recorded at the time when

the deceased was in a healthy state of mind. Counsel relied upon

the judgment of the Hon'ble Apex Court in 1996(5) Supreme

742 ; Satish Mehra v. Delhi Administration & Anr. to

substantiate his submission that before framing of charges the

Court has to consider the material available on record other than

those produced by the prosecution. Section 226 of the Code of

Criminal Procedure obliges the prosecution to describe the charges

brought against the accused and state by what evidences the guilt

of the accused would be proved.

In support of his submission regarding the parameters qua

the dying declaration, the counsel relied upon 2016 AIR(SC)

4150 ; Pankaj v. State of Rajasthan, 1982 AIR(SC) 1021 ;

Kake Singh @ Surendra Singh v. State of Madhya Pradesha,

2002 AIR(SC) 2973 ; Laxman v. State of Maharashtra and

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the order passed in S.B. Criminal Miscellaneous Bail

Application No. 12474/2019 ; Shyam Lal v. State.

Per contra, learned Public Prosecutor submitted that it is the

settled proposition of law that under Section 226 of the Code of

Criminal Procedure, the Public Prosecutor is only required to

describe the charge against the accused and state by what

evidences he proposes to prove the guilt of the accused. Counsel

further argued that in terms of Section 228, at the beginning and

the initial stage of trial, the truth, veracity and effect of the

evidence which the Public Prosecutor proposes to adduce is not to

be meticulously judged. The only fact required to be seen by the

judge during the framing of the charges is that there is sufficient

ground for presuming that the accused has committed the

offences triable by the Court of session. Counsel relied upon the

judgment passed by the Hon'ble Apex Court in Criminal Appeal

No. 1820/2019 ; Bhawna Bai v. Ghanshyam & Ors.

Heard learned counsel for the parties and perused the

material available on record.

The present is a matter based on a dying declaration of the

deceased wherein he has specifically stated that the petitioners

herein, i.e., Manoj Surana and Bhaijan (Moin Khan) threatened

him regarding the non-payment of the borrowed amount and the

interest thereupon. In the dying declaration, the deceased

specifically stated as under:

"fd esjs esa eukst lqjk.kk ftldk xaxkiqj pkSjk;k ds ikl oksMkQksu dk vkWfQl gS ogka cSBrk gS mlds lkFk HkkbZtku uke dk O;fDr ftldk uke eSa ugha tkurk nksuksa ogha cSBrs gS eSaus 45]000 :i;s eSaus eukst lqjk.kk ls QnZu QnZu 20000] 15000] 10000] 15000 bl izdkj eSaus 45000 :i;s 1 o'kZ igys fy;s

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ftldk C;kt 20 izfr"kr ;k 1 fnu ;k 2 fnu Åij fudy tkrs gSa rks 1000 :i;s isuYVh esa ysrs gSa eSa mDr 20]000 :i;s 4000 :i;s C;kt izfr efgus ysrs gS ugha :i;k C;kt le; ij ugha nsrs gS rks eukst lqjk.kk o HkkbZtku ekjus fiVus o eukst lqjk.kk dguk gS fd tgka cSBk ogk eSa tkds ykÅxk :i;k tSlk nsrk gwa ysuk Hkh tkurk gwaA"

The statement as made by the deceased in the declaration

specifically names the petitioners and the said statement fulfills all

the parameters to prima facie make out the offences under

Sections 384 and 306 of the India Penal Code. The learned

Sessions Judge has specifically dealt with the fact and reached to

a conclusion that prima facie the offences under Sections 384 and

306 of the Indian Penal Code are found to be made out against

the accused and therefore, the charges ought to be framed

against the accused.

So far as the judgment passed in Satish Mehra's case

(supra) as relied upon by the counsel for the petitioners is

concerned, the same also specifies that the standard of proof

normally adhered to at the final stage is not to be applied at the

stage where the scope of consideration is whether there is

"sufficient ground for proceeding". The Hon'ble Apex Court in

Satish Mehra's case (supra) opined as under:-

"When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible: is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding". (Vide State of Bihar v.

(5 of 7) [CRLR-167/2022]

Ramesh Singh1 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja."

So far as the other judgments relied upon by the counsel for

the petitioners regarding the parameters pertaining to dying

declaration are concerned, this Court is of the specific opinion that

this is not the stage where the Court can go into the question

whether the dying declaration was recorded as per the parameters

laid down by the Hon'ble Apex Court. The fact that whether the

deceased was in a fit state of mind at the time of the making of

the dying declaration is also not a subject which can be looked

into at this stage. This is not a stage where the appreciation of

evidence can be done by this Court. This Court is only required to

look into the aspect whether there was sufficient evidence

available on record which makes out a prima facie case against

the accused so as to proceed against him for the trial of the

offence.

It has been held by the Hon'ble Apex Court in the case of

Bhawna Bai's (supra) as under:-

"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh (1977) 4 SCC 39: (SCC pp. 41-42, para 4) "4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against

(6 of 7) [CRLR-167/2022]

the accused and state by what evidence he proposes to prove the guilt of the accused.

Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If 'the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing', as enjoined by Section 227. If, on the other hand, 'the Judge is of opinion that there is ground for presuming that the accused has committed an offence which

-- ... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion 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

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accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.""

In view of the ratio as laid down by the Hon'ble Apex Court

and in view of the observations as made above, this Court does

not find the present to be a fit case to interfere with the order

impugned, whereby the charges have been framed against the

accused. Therefore, the revision petitions are dismissed.

(REKHA BORANA),J 77-Sachin/-

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