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Gujarat High Court
Judgename :C.K.BUCH
Sureshbhai Jayantilal Shah - Appellant
Versus
State Of Gujarat - Respondent
CRIMINAL REVISION APPLICATION 54 of 2004
Decided On : 04/06/2005
Framing of charge - Whether sustainable when material indicates string suspicion about complicity of accused - Finding as to.
Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Section 397 - [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sections 302, 114 & 120-B - Bombay Police Act, 1951 (Bom. Act 22 of 1951) - Section 135 - Framing of charges - Order of - Sustainability - The prosecution in the case rests on circumstantial evidence - This is not a case of No evidence against petitioner - The son of the deceased and the petitioner had quarrelled and cause was collusion between two vehicles - There is evidence that one of the accused was demanding money from deceased - On the say of two other accused as to telephonic conversation with petitioner and the intimation given to petitioner that deceased is murdered cannot be ignored - The consistence conversation on the day of incident between the other accused and petitioner need appreciation - The probative value of the evidence require to be gone into at proper stage but before that charges framed by trial Court and criminal proceeding cannot be terminated or quashed legally - In view of the revision petition to quash the charges can not be allowed.
Held :
This is not a case of "No Evidence" against the present petitioner. The son of the deceased and the present petitioner had quarrelled and cause was the collusion between two vehicles. Undisputedly, there is sufficient evidence to show that the accused No. 3-Laxman @ Lachchu, was demanding money from the deceased. On the say of Bhavesh Dave and Indravadan Vyas as to telephonic conversation with the petitioner and the intimation given to the present petitioner that Gautambhai is murdered, of course, whether any legal weightage could be given, is a question and it will depend on the type of evidence that the prosecution may lead. The consistence conversation on the day of incident and especially the time of incident i.e. 28th April, 2003, between Bhavesh and the present petitioner, needs appreciation. There is a statement of Nitin recorded under Section 164 of the Code, though the same is retracted statement. When there is sufficient evidence as to the use of cellular phone having No. 9825074157, by the present petitioner, has some relevance. So the probative value of the statement of the witness or the contents of a particular document collected and produced by the Investigating Agency cannot be gone into even at the stage of framing of the charge. Obviously, therefore, in such a case, the charge framed by the trial Court and the criminal proceedings cannot be terminated or quashed legally. [Para 14]
Undisputedly, in the present case no overt act in actual commission of offence is attributed to the present petitioner. In other words, the prosecution case rests mainly upon the circumstantial evidence. In such a case, the Court is not bound to ascertain as to whether the prosecution intends to rely on any direct cogent circumstance or intends to bank upon certain assumptions or presumption. Here the use of cellular phone and some rapo between the accused No. 1 and the present petitioner, with some animosity between the accused and the present petitioner, are the direct circumstances indicated by the prosecution and the Investigating Agency very much relies on these aspects. [Para 16(ii)]
Law Laid Down :
(i) While dealing with revision application for quashing of charge Court is not supposed to enter into the disputed questions of facts or even complicated questions of law.
(ii) Infirmity or lacuna in the case of prosecution by itself has not been found favourable situation for quashing of a charge or criminal proceedings.
Cases Law Analysis :
State of Madya Pradesh vs. Avadh Kishore Gupta, AIR 2003 SCW 6501 [Para 13].-Distinguished
G.B. Rathod vs. State of Gujarat, 2003 (3) GLR 2656 [Para 16(i)];; State of Maharashtra & Ors. vs. Som Nath Thapa & Ors., 1996 (4) SCC 659 [Para 16(i)];; State of Maharashtra vs. Priya Sharan Maharaj, 1997 (4) SCC 393 [Para 16(iii)];; Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya, 1990 (4) SCC 76 [Para 16(iii)].-Relied on
Case Referred :
Union of India vs. Prafull Kumar Samal & Anr., 1979(3) SCC 4.
Decided in Favour of :
Non-Applicant
Petition Dismissed
( 1 ) BY way of this Revision Application under Section 397 of the Code of Criminal procedurer 1973 (hereinafter referred to as the Code), the petitioner-orig. accused No. 4 (hereinafter referred to as the accused) has challenged the legality and validity of the order dated 7th January, 2004, passed by the learned Additional City Sessions Judge, ahmedabad, and the framing of the charge against the accused in Sessions Case No. 278 of 2003. 1 (i) The accused persons facing trial in the Sessions Case have been charged for the offences punishable under Sections 302, 114 and 120 (B) of the Indian Penal Code r/w. Section 135 of the Bombay Police Act. All the accused have been chargesheeted after investigation of the crime registered with Saher Kotda Police Station vide C. R. No. 1-128 of 2003. The accused after his arrest was in Judicial custody for some period but at present he is on bail and this court vide order dated 21st November, 2003, has enlarged the accused on bail, after discussing the case of the prosecution against the present petitioner in brief after filing of the chargesheet. In the list of events, tendered to the Court, it is averred that the petitioner-accused has filed an application for quashing the complaim/fir by way of filing application under Section 482 of the Code being Criminal Misc. Application No. 10067 of 2003 and on the day of filing of the present Revision Application, the said quashing petition was pending. A copy of the quashing petition, of course, is not available on record. Pending the petition filed under section 482 of the Code, the case came to be committed to the Court of Sessions and then listed before the Ld. Additional City sessions Judge for framing of charge. After hearing an application filed by one of the co-accused praying discharge, the ld. Additional City Sessions Judge rejecting the said application decided for framing of charge and framed the charge. 1 (ii) It is contended that the petitioneraccused was under impression that he would also get the similar opportunity to pray for his discharge and, therefore, the Ld. Presiding Judge would not take up the matter for framing of charge. The advocate of the present petitioneraccused was not present during these proceedings i. e. hearing of discharge application filed by the co-accused, etc. and the grievance of the petitioner-accused before the Court, is that after disposal of the application filed by the co-accused, the ld. Presiding Judge took up the matter immediately for framing of the charge and thereby framed the charge. The present petitioner as per the charge framed, is facing serious charge as to involvement in a criminal conspiracy and thereby, committing offence punishable under Section 302 r/w. Section 120 (B) of the Indian Penal Code.
( 2 ) AS par the case of the prosecution, one Gautambhai K. Shah, a person residing in neighbouring area of the petitioner- accused, has been killed on 28th April, 2003 and the FIR for the said incident has been lodged by one Nilesh Jasvantlal Mehta, on early hours of 29th April, 2003 at about 00- 40 hrs. In para:3 of the present Revision application, the petitioner-accused has narrated the details of the FIR in his own language and to appreciate the contentions raised by the Ld. Counsel appearing for the petitioner-accused, it would be beneficial to reproduce the facts disclosed by the first informant before the police, which are reproduced in the memo of the petition as under :"3. The petitioner states that the first information report has been lodged by one mr. Nilesh Jashwantlal Mehta on April 29, 2003 recorded in Shardaben Hospital at ahmedabad, wherein the first informant has alleged that on April 28, 2003 he was present at his residence at night. He was called by mr. Gautam K. Shah by visiting his house personally and informed him that since mr. Gautam Shah wanted to visit Bapunagar, the first informant was requested to accompany Mr. Gautam Shah. Accordingly, both started f
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