9911796707
TMI Blog2009 (5) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication on 11-12-2008, all the five accused persons requested for their discharge as contemplated under Section 227 of the Cr.P.C. The application came to be dismissed by the learned 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar imposing special costs of Rs. 5,000/-. However, the said order is challenged by the original accused No. 4 by preferring this revision application. 4. As per the prosecution case, the incident occurred on 12-1-2005 at about 12-45 in the noon in the area called Motipura near one Dulara Complex in the city of Himatnagar. It is alleged that at the relevant time when the first informant Maganbhai Parkhabhai Barot was passing on his motorcycle, two persons who were standing near one Yamaha motorcycle, came near him and inflicted knife blow on left back shoulder and when he tried to resist more blows, he sustained injuries in his right wrist and left hand little finger. It is alleged that cover of one knife remained in his hand. He shouted for help and his son Prafulbhai Maganbhai and one Prashantbhai Padhiyar, who were passing on their bike, came near him and others also gathered. Thereupon, both the assailants made their escape good on said Yamaha moto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., came to be seized by drawing necessary panchnamas, and ultimately charge-sheet came to be filed in the Court of the learned Chief Judicial Magistrate, Sabarkantha at Himatnagar against in-all 5 accused persons, wherein the petitioner was original accused No. 4, for the offences punishable under Sections 307, 120B of the I.P.C. and Section 135 of the B.P. Act. Since, the offence punishable under Section 307 of the I.P.C. was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Sabarkantha at Himatnagar. 5. On the first day of appearance before the Sessions Court on 11-12-2008, all the 5 accused persons preferred an application under Section 227 of the Cr.P.C requesting their discharge. The learned 2nd Addl. Sessions Judge, after considering the material available with him along with the charge-sheet, rejected the said application with special costs of Rs. 5,000/-. 6. Learned Senior Counsel Mr. Lakhani for learned Advocate Mr. Dagli for the petitioner submitted that the case of the prosecution even at investigation stage, is full of contradictions, material improvements and omissions. It is submitted that initially as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to be arrested, allegedly found with the same Yamaha motorcycle, creates reasonable doubt about the possession of the motorcycle with the co-accused persons. It is submitted that thus such important link is missing during the course of the investigation and the possession of the motorcycle of the co-accused becomes seriously doubtful at this stage. 6.3. Learned Sr. Counsel Mr. Lakhani took me through the statements of Vajirbhai Yakubbhai, Sabbirbhai Habibbhai, Anvar Husen Shaikh and Akbarali Umravali and submitted that the I.O. collected stray evidence of one hotel owner and his Manager as well as owner of one motorcycle garage and tried to create a case that after inflicting blows on the first informant, the accused Nos. 2 and 3 on their motorcycle left the place and while coming to Ahmedabad, because of some mechanical defect, the motorcycle stopped, and therefore, it was required to be kept in some garage and both the co-accused visited the place of their acquaintance, namely the house of witness Akbarali Saiyed and witness Safiyana and from there, they came to Ahmedabad and from Ahmedabad the accused No. 3 came with one mechanic Anvar Hussein to the place where the motorcycl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 given by the witnesses in their statements does not tally with the description of the clothes alleged to have been recovered. The cover of the knife alleged to have remained in the hand of the first informant Maganbhai, is not attempted to be ascertained as to whether any of the knives seized, fits in the cover or not. It is further submitted that only after the statement of Rajendrasinh came to be recorded on 10-2-2007, a new story came on record during the course of investigation that the accused No. 3 Nasir alias Najjo has some defect in one eye. None of the witnesses stated about such important aspect of description of the original accused No. 3 in their statements. 6.7. Therefore, it is submitted that taking into consideration the entire evidence collected by the police during the course of investigation, no prima facie case is made out against the petitioner original accused No. 4. It is submitted that perusing the impugned order passed by the trial Court, it clearly transpires that the trial Court weighed and evaluated the evidence as if the final judgment is required to be pronounced. The trial Court in the order itself, has expressly recorded that this Court has totally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, there is nothing that the accused Nos. 2 and 3 had any motive to commit any offence qua the first informant. The relevant statements which came to be recorded by the police and required material seized by the police like diary, clothes of the first informant, etc., would reveal at this stage about the conspiracy regarding murdering the first informant. Learned A.P.P. Mr. Pandya, therefore, submitted that at this stage, merely because the medical evidence reveals injuries on wrist and little finger of the first informant, it cannot be presumed that the offence of simple hurt is made out. As a matter of fact, as per the prosecution case, the first informant Maganbhai Barot was assaulted upon by the accused Nos. 2 and 3 to see that he is murdered, but he resisted the assault and shouted for help and his son and other persons gathered, and therefore, the accused Nos. 2 and 3 could not materialize their intention and escaped from the site. Therefore, it is submitted that keeping all these aspects in background, the charge-sheet filed for the commission of offences punishable under Sections 307 and 120B of the I.P.C. cannot be said to be illegal or irregular exercise of powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for discharge under Section 227 of the Cr.P.C, it cannot be presumed that the accused have adopted delaying tactics. Section 227 of the Cr.P.C. provides remedy to the accused to claim for discharge. Thus, if the accused have exercised the remedy provided under the Statute, it cannot be said that it is a delaying tactic. Under such circumstances, the order of costs imposed upon the accused persons by the trial Court in the impugned order deserves to be set aside. 10. Considering provisions of Section 227 of the Cr.P.C, it is provided that if the Court comes to the conclusion that there is no sufficient ground for proceeding against the accused, the Court shall discharge the accused. Section 228 of the Cr.P.C, if considered, provides that if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, then he shall frame charge in writing. So far as Section 227 regarding the discharge is concerned, if the trial Court comes to the conclusion that there is no sufficient ground for proceeding against the accused, the trial Court shall discharge the accused and shall record his reasons for doing so. Under such circumstances, when the trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lmet. They were of the age group between 22 to 24 years. It is specifically stated in the F.I.R. that he can identify those assailants if they are shown to him. 11.1. It is true that after the lodgment of F.I.R., I.O. commenced investigation and there is no dispute that on 10-3-2005 I.O. filed report before the learned Chief Judicial Magistrate, Himatnagar, claiming A Summary and by order dated 12-4-2005 the learned Chief Judicial Magistrate granted A Summary with direction to continue the investigation. 11.2. The I.O. continued investigation, and ultimately, as stated above, charge-sheet came to be filed in the Court of learned Chief Judicial Magistrate, Himatnagar against 5 accused persons, wherein the petitioner herein is accused No. 4. The charge-sheet came to be filed for the offence punishable under Sections 307 and 120B of the I.P.C. and Section 135 of the B.P. Act. 12. It is true that at the time of lodgment of F.I.R., the offences punishable under Section 324 read with Section 114 of the I.P.C. and Section 135 of the B.P. Act came to be registered. However, as prima facie reveals from the papers annexed with the charge-sheet, it transpires that it is the case of the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he I.O. is required to be made. 14. Now, as stated above, in the F.I.R. itself, the first informant - injured had expressed his doubt about the attack. It is specifically referred in the F.I.R. that because of the land dispute between himself and the petitioner, the petitioner, as per his pre-plan, through his persons, caused the assault upon him. It is further pertinent to note that though in the F.I.R. the registration number of the motorcycle of the assailants has not been stated, the description is given in the F.I.R. that it was Yamaha motorcycle. It transpires that on or about 6-2-2007 the original accused Nos. 1, 2 and 3 were found in suspicious circumstances near one Yamaha motorcycle bearing registration No. GCC 1525 and the Assistant Police Commissioner, Crime Branch, Ahmedabad City nabbed them under Section 41(1)(a) of the Cr.P.C and upon some interrogation, their involvement in the offence came to be revealed, and therefore, they were sent to Himatnagar Town Police Station for further investigation. 15. Considering the statement of witness Samsuddin Gafurbhai, prima facie, it transpires that the accused Nos. 1 and 2 had purchased the Yamaha motorcycle No. GCC 1525 on 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Considering the statements of witnesses Sabbirbhai Habibbhai and Vazirbhai Yakubbhai, it prima facie transpires that on the night of 11-1-2005 at the instance of present petitioner and with the help of original accused No. 5, some accommodation was given in Navjivan Hotel to the co-accused persons and the hotel is situated in Himatnagar town itself. 19. After the lodgement of the F.I.R., further statements of the first informant Maganbhai came to be recorded by the police on 17-1-2005 and 8-2-2007 wherein the first informant-Maganbhai elaborately assigned details regarding the doubt and suspicion he had raised in the F.I.R. regarding the role of the present petitioner. It further transpires that on 8-2-2007 T. I. Parade was arranged and as it reveals from that panchnama, the first informant-Maganbhai identified the original accused Nos. 2 and 3 as the assailants, who assaulted upon him at the time of the incident. Considering the relevant panchnamas, it further transpires that the weapon knife, clothes of the first informant and of the original accused Nos. 2 and 3 were recovered. It further transpires that in presence of panchas, the house of the original accused No. 1 came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the case is required to be proceeded further against the petitioner, then the offence which can be said to have been constituted is of simple hurt punishable under Section 324 of the I.P.C. and at any rate not the offence of attempt to murder made punishable under Section 307 of the I.P.C. 20.1. It is true that the injury certificate reveals 2 simple injuries, namely one on right wrist and the same was muscle deep and the second one was on surface of left little finger. It is also true that the first informant-Maganbhai left the hospital against medical advice. However, the certificate prima facie reveals that the 2 injuries noted down in the certificate were possible by sharp-cutting weapon. Considering the panchnama of the clothes of the first informant, it prima facie transpires that some cut-marks were on left side back of sweater, shirt and baniyan. However, no injury came to be revealed on the left back side of the first informant. The bare reading of the medical certificate may reveal offence of simple hurt. However, at this stage, for the purpose of framing charge, the background of this offence is required to be considered. I need not again discuss the same here, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. 22. Thus, as observed by Hon'ble the Apex Court, if on the basis of the materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. It is further observed that if the Court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. At this stage, probative value of the materials on record cannot be gone into, but the materials brought on record by the prosecution has to be accepted as true at this stage. In the background of the ratio laid down by Hon'ble the Apex Court in Som Nath Thapa's case (supra) and in light of the entire above discussion, prima facie it cannot be said that the learned trial Judge erred in ultimately rejecting the request of the petitioner-or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication just like stone throwing in progress of the matter and in the operative part of the order, therefore, it is further observed that the said learned Advocate to give his co-operation for the progress of this case. Learned Advocates representing both the parties herein, stated that such remarks deserve expungement. 24.1. For the sake of clarification, it is hereby clearly observed that whatever discussions made by this Court in this order is confined only for the purpose of disposal of the present revision application and those observations shall not have any bearings whatsoever at the time of final disposal of the Sessions Case on the basis of the evidence that may be adduced in accordance with law in future in this case. The trial Court shall decide the case on the basis of the evidence that may be adduced in this case in accordance with law uninfluenced by whatever observations made in this judgment as well as made by the learned 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, in the impugned order dated 4-3-2009. 25. For the foregoing reasons, the revision application is partly allowed. The impugned order passed by the learned 2nd Addl. Sessions Judge, Sabarkantha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
