GUJARAT HIGH COURT
S.G. Shah, J.
Veljibhai Vitthalbhai Kuvadiya —Appellant
versus
State of Gujarat —Respondent
Criminal Revision Application (Against order passed by Subordinate Court) No.725 of 2016 with Criminal Revision Application
No.773 of 2016
Decided on 9.1.2018

IMPORTANT POINT
At the time of considering the application for discharge, Court has not to scrutinize the availability of entire evidence so as to arrive at any particularly findings regarding commission of offence by the accused, more particularly to confirm that whether there is every possibility of conviction of accused. What is required to be considered is to the limited extent to find out, whether there is prima-facie evidence against the accused to believe that he has committed any offence as alleged in the chargesheet.

Headnote:Criminal Procedure Code, 1973—Sections 227 and 228—Order discharging accused No.2 of charge of murder—Revision—Mother of petitioner-complainant was found from the well—Prosecution confirmed in charge-sheet that since deceased had not agreed to pay Rs. 3000/- in advance to respondent-accused who was cultivating land of deceased in partnership, had killed deceased and thrown her body in well—Trial Court recorded that since there was no eyewitness to the alleged offence there appeared no evidence of murder and only charge u/s 201 and 114 IPC made out—Standard test, proof and judgment which is the applied finally before finding an accused guilty is not exactly to be applied at the stage of sections 227 or 228 Cr.P.C.—Record showed that it would be difficult for a single person to manage all activities right from killing victim to dragging her and then to throw her in well—Prima facie evidence was in charge-sheet that accused no.2 helped accused no.1 in disposing the dead body—Trial Court committed material irregularity and illegality in discharging accused No. 2 of charge of murder.

       Held: I have perused the papers of chargesheet. It would be inappropriate to discuss the evidence at this stage. However, it is to be noted that trial Court has simply relied upon some undertaking by police department during investigation. However, except papers of investigation, other communication may not be treated as an evidence. It is also clear from the record that it would be difficult for a single person to manage all the activities right from killing the victim to dragging her and then to throw her in well. It is also clear from evidence that dead body was thrown into a well which can be only possible by two persons or at least with help of some other persons and, therefore, when there is categorical prima facie evidence available in chargesheet that accused No.2 has helped the accused No.1 in disposing the dead body and, thereby, when it can be confirmed from such evidence that accused No.2 was present at the place of incident, considering the common conspiracy of both the accused to kill the victim since she has denied to defend them, it can certainly be said that there is prima facie evidence against accused No.2 also even such evidence is circumstantial and may not be in the form of direct evidence again in the form of statement of any eye witness or other witness.

       It is also clear that prosecution is yet to adduce evidence and if there is no evidence against the accused No.2 so as to convict him under Section 302 then, he may not be convicted under Section 302 but there is difference in saying that there is no prima facie evidence and there is no evidence at all. Therefore, when there is some prima facie evidence available against the accused No.2, in my opinion the Sessions Court has committed material irregularity and illegality in discharging the accused No.2 from the charges under Section 302 of IPC when he has accompanied accused No.1 in all the activities.

       If we peruse the settled legal position so far as right to get discharge is concerned, it becomes clear that at the time of considering the application for discharge, Court has not to scrutinize the availability of entire evidence so as to arrive at any particularly findings regarding commission of offence by the accused, more particularly to confirm that whether there is every possibility of conviction of accused. What is required to be considered is to the limited extent to find out, whether there is prima-facie evidence against the accused to believe that he has committed any offence as alleged in the chargesheet. If prima facie the evidence is available against the accused then there cannot be an order of discharge. (Paras 10 to 12)

       Result: Revision allowed.