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TMI Blog2009 (9) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... d; Vipin another son as well as a worker Ram Bura had gone to the residence of Mahesh Sharma at about 7.45 p.m. in connection with certain monies which were owed by him. The complainant was required to come again for the reason that Mahesh Sharma was not available. Consequently, these persons had again visited Mahesh Sharma's residence at about 8.30 p.m. but he was still not available whereupon they had decided to wait for his return. On his return, Mahesh Sharma had refused to give the money. Instead he attacked Dayanand whereupon Vipin, the complainant s younger son tried to stop him. At this, Manish Sharma, brother of Mahesh Sharma accompanied by Prashant Bhaskar @ Rinku came downstairs and both these persons started beating Dayanand and Vipin. After that Mahesh Sharma involved the complainant in certain discussions while Manish Sharma and Rinku kept on beating Dayanad mercilessly with their legs and fists. The complainant and the others thereafter returned to their house and ten minutes later, Dayanand started saying that he was having a burning sensation in his chest. Dayanand was taken to the nearby Manna Clinic and Maternity Home. The doctor gave Dayanand an injection an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e night of the 5th of April, 2006. Some light scuffle is stated to have also taken place. He along with his father Shri Pushkar Raj and Dayanand are stated to have returned to his house thereafter. Dayanand complained of uneasiness whereupon the doctor from the Manna Clinic and Maternity Home was called who after checking gave him an injection and also some tablets. On his request, Dayanand was laid on the floor and then they returned to their room. At about 9.00 O' clock of the next morning, he learnt that his brother Dayanand had expired. He also stated that there was no suspicion or doubt on any person. 7. The police also recorded a statement of Deepika, wife of the deceased Dayanand which was to the same effect. 8. DD No.30 dated 6th April, 2006 was recorded by the investigating officer with regard to the receipt of the information of the death and the statement of the relatives, all of whom had stated that they had no suspicion on any person. 9. The investigating officer recorded D.D. No.24 on 7th April, 2006 with regard to the steps taken by him. The record shows that a postmortem was also conducted on the body of the deceased on 7th April, 2006 by Dr. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned trial court fails to take into consideration the fact that a medical board was constituted only pursuant to the request for the same made on 12th July, 2006 and its report has been received only on 30th April, 2007 whereas the postmortem report and the medical report thereon did not support the case of the prosecution. It is contended that the prosecution had failed to make out a prima facie case for commission of an alleged offence by the petitioner. The material relied upon was contradictory and did not make out suspicion, let alone any element of grave suspicion against the petitioner. 14. Reliance has been placed on the pronouncements of the Apex Court reported at (2009) 1 SCC Crl. 51 Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra 1990 Crl.Law Journal 1869 Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijja Ors. Learned senior counsel has also relied on the pronouncements of this court reported at 2007 (2) JCC 1415 Sunil Bansal Vs. The State of Delhi; 2002 (1) JCC 127 Bhagwanti Devi Vs. State; 96 (2002) DLT 566 Majhar @ Papoo Anr. Vs. State. In support of the submission that the delay in lodging the complaint with the police wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exist sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh 1977 CriLJ 1606 this Court observed that at the initial stage of the framing of a charge, if there is a strong suspicion-evidence 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. xxxx From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefromtaken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (Emphasis supplied) 18. The pronouncement of the Apex Court reported at Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) MANU/SC/1453/2009 on this very issue can also be usefully adverted to and reads thus :- ..... It is trite that at the stage of framing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. To the same effect are the principles laid down by the Apex Court in State of Madhya Pradesh vs. Mohanlal Soni (2000) 6 SCC 338. 21. So far as the instant case is concerned, learned senior counsel has pointed out that the court is required to consider the record of the case which includes, the documents submitted with the police report and after hearing the accused and the prosecution, the court was required to decide whether there is sufficient ground to proceed against the accused and as a consequence thereof, either to discharge the accused or to proceed to frame a charge against him in view of Sections 224 and 228 of the Code of Criminal Procedure so far as the case before the sessions court is concerned. 22. The expression not sufficient ground for proceeding against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom claim to be eye witnesses, which were separated by a period of three months, have been placed on record. The first statement recorded on the very next date after the incident, has named only two persons i.e. Shri Mahesh Sharma and his brother Manish Sharma @ Kallu and is categorical that no other person is involved in the incident. A second statement recorded several months after the incident on 10th July, 2006 has sought to rope in the present petitioner. A graphic description of the alleged incident containing improvements in all material particulars is laid out in which even a role has been attributed to the petitioner. Scrutiny of the record which has been placed before this court would also show that there is no other material on the record at all placed along with the charge sheet under Section 173 of the Cr.P.C. before the trial court to show the presence of the petitioner or to connect him with the crime. 25. These statements/supplementary statements of the witnesses recorded by the investigating officer make no mention about the earlier statement recorded on 6th April, 2006. Neither of these statements even attempts to explain the circumstances in which the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant had made allegations in the supplementary statement recorded by the police. This court held that the statement could be considered when some allegations were made in the original complaint against the petitioners and not otherwise. In this behalf, reliance was placed by the court on the category 1 3 of cases which were set out by the Apex Court in the judgment reported at AIR 1992 SC 604 State of Haryana Ors. Vs. Chaudhary Bhajan Lal Ors. 29. In the instant case, the court is faced with two completely contradictory statements. The first statement which is immediately after the occurrence does not even remotely mention the petitioner as even present at the time of the incident whereas the second statement makes serious allegations against the petitioner. The first statement was categorical with regard to the involvement of only two persons. Even against these two persons, the complainant and his son had sought to absolve them with regard to commission of any offence under the Indian Penal Code. Three months later, a supplementary/second statement is given by these very persons making improvements in all material particulars and implicating the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raming the charges against the accused persons. 35. In (2004) 1 SCC 525 State of Maharashtra Vs. Salman Salim Khan Anr. also these very principles were reiterated. 36. It is to be noted that neither of the aforenoticed judicial pronouncements relates to a case where the accused person was not even named in the initial statement which was recorded by the police. 37. There was also no issue relating to the time gap between the recording of the two completely contradictory statements. These aspects cannot be certainly overlooked. Other than these two contradictory statements, there is not even whisper of an allegation involving the petitioner in the commission of the offence in any of the other relevant documents including the initial MLC and the postmortem report. 38. Following the principles laid down in Dilawar Balu Khurana Vs. State of Maharashtra (Supra), the first version of the prosecution has to be accepted. It, therefore, has to be held that the prosecution has failed to make out a case raising strong suspicion of the involvement of the petitioner in the commission of the offence. In view of the above, the order dated 18th April, 2009 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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