CRL.REV.P./455/2012 of MUNIM CHOUDHARY Vs STATE NCT OF DELHI

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRIMINAL REVISION PETITON NO.455 OF 2012

Decided on : 24[th] August , 2012

MUNIM CHOUDHARY …… Petitioner Through: Mr. V.N. Jha & Mr. B.K. Singh, Advs.

Versus

STATE (NCT) OF DELHI …… Respondent Through: Mr. Sunil Sharma, APP for the State.

CORAM: HON’BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

Crl. M.A. No.14270/2012 (for exemption)

Exemption allowed, subject to the deficiency being rectified.

The application stands disposed of.

Crl. Rev. P. No.455/2012 & Crl. M.A. No.14269/2012(for stay)

1. This revision petition has been filed by the petitioner against the order dated 3.8.2012 passed by the learned Additional Sessions Judge in FIR No.234/2011, registered at Police Station Kalyan Puri, directing the framing of charge against the petitioner under Sections 307/324/323/34 IPC.

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2. Briefly stated the facts of the case are that on 16.7.2011, an FIR was registered on the basis of complaint of one Yogesh Kumar @ Boby that at about 8:30 p.m. in front of P.S. Tent House, 4/256, Trilokpuri, Delhi, all the accused persons, namely, Amit, Rishi Raj, Munim Chaudhary and Rahul Tej Rana in furtherance of their common intention attacked the complainant Yogesh Kumar @ Boby, Ram Kishor and Chander Shekhar, as consequence of which they suffered injuries. It is alleged that Amit had fired on the chest of Yogesh Kumar @ Boby from country made pistol (katta); accused Rishi Raj is alleged to have caused injuries on the left arm of Ram Kishore with sharp edged weapon and accused Munim Chaudhary is alleged to have caused injuries to one Chander Shekhar with sharp edged weapon while as accused Rahul Tej Rana is alleged to have caused injuries by giving kicks and fist blows. All the injured persons were medically examined and their MLCs were prepared. After investigation, the charge sheet was filed. The name of accused Munim Chaudhary was shown in Column No.12 and he was not sent for trial by the Police.

He had taken the plea before the Investigating Officer that on the date of incident at about 8:38 p.m., he was present at Shani Dev Mandir, Sector 14, Noida, U.P. Apart from CCTV footage which he handed over to the Investigating Officer showing his presence at the Shani Dev Mandir around the time when the incident had taken place, he had also handed over his mobile phone details around the time of incident and contended that the location of his mobile phone showed that he was not near the place of incident.

3. On the basis of these documents which were seized by the police, the petitioner sought discharge from the trial court while as the said prayer of the petitioner was dismissed vide impugned order by holding that there was sufficient prima facie evidence against the petitioner warranting framing of charge under Sections 307/324/323/34 IPC. The reasoning given by the court for framing the charge against accused Munim Chaudhary was that at the stage of framing of the charge, ‘grave suspicion’ is sufficient enough to proceed with the framing of charge against the accused.

4. The petitioner, feeling aggrieved, has preferred the present revision petition and the learned counsel has contended that while framing the charge, the learned trial court has ignored the CCTV footage as well as the call details which clearly belied the accusations made by the complainant that he was attacked by the petitioner, Munim Chaudhary with sharp edged weapon. It was contended by the learned counsel that the trial court has not considered this unimpeachable evidence which has not been disputed by the prosecution and this was the very reason for which he was not sent for trial by the investigating agency. 5. The learned counsel for the petitioner has sought to rely on number of judgments in support of his submissions. These judgments are Baldev Singh vs. State & Ors.; 2006 (3) JCC 1281, Shakuntala vs. State of Delhi; 139 (2007) DLT 178, State of Madhya Pradesh vs. Mohan Lal Soni; AIR 2000 SC 2583, Dr. P.J. Alexander, IPS vs. Central Bureau of Investigation, New Delhi; 08 KLC 2317, Union of India vs. Prafulla Kumar Samal & Anr.; (1979) 3 SCC 4and

Ramakrishna & Ors. vs. State of Bihar & Anr.; (2000) 8 SCC 547.

6. I have gone through the said authorities. I do not find that any of the authority is helpful to the petitioner inasmuch as the law with regard to framing of charge is well-settled by now by the Apex Court as well as by various High Courts. The quantum of proof for the purpose of framing of charge has been observed to be as ‘grave suspicion’. It is generally observed in criminal trials that if there is ‘grave suspicion’ or prima facie case is made out against the accused, then the charge against the accused person has to be framed. In simpler words, it can be said that if at the stage of charge, there is ‘doubt’ regarding the involvement of the accused in commission of an offence then the charge against him has to be framed and in case, there is ‘doubt’ about his involvement at the time of final arguments, the benefit of doubt has to be given to the accused and he is to be acquitted.

7. The contention of the learned counsel that the petitioner has been able to provide unimpeachable evidence by way of

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CCTV footage and call details, if accepted, would mean that the version of the accused is accepted as gospel truth and the statement made by the injured Yogesh Kumar @ Boby, on the basis of which FIR has been registered, where he has specifically named the petitioner and attributed definite role to him, will be held to be as not acceptable. This would mean that at the stage of framing of the charge, the court would be accepting the version of the accused to be superior and more credible than the version of the prosecution, which is against the basic tenets of criminal law as has been stated hereinabove for the purpose of framing of the charge, the court does not have to see the respective merits or demerits of the case of the prosecution or the defence, the court has to only see if there is sufficient prima facie evidence brought on record by the prosecution agency to proceed against the accused person. This evidence would be either by way of statements or by way of seizure of documents coupled with medical record, etc.8. In the instant case, the petitioner’s name has been specifically mentioned by the complainant, who is the author of the FIR and he has attributed definite role to the present petitioner of having caused injuries to Chander Shekhar, his friend, who was accompanying him at that time. The injured Chander Shekhar’s MLC is on record where he is shown to have suffered injuries. Therefore, this version cannot be completely discarded and the version of the accused that he was present at Shani Dev Mandir, cannot be accepted as gospel truth. It has already come in record that the two places, i.e. the location of the Shani Dev Mandir, and the place where the petitioner was located by virtue of his cell phone location, are in the immediate vicinity of the place of occurrence. Therefore, it becomes matter of proof as the petitioner is essentially taking plea of alibi which he will have to establish at the stage of trial.

9. I do not find any infirmity in the impugned order dated 3.8.2012 having been passed by the trial court directing the

framing of charge against the petitioner under Sections 307/324/323/34 IPC.

10. Before I close, I must briefly mention the judgments which the learned counsel for the petitioner has referred. In Shakuntala’s case (supra), the High Court had only observed that the investigation has to be fair and just and the job of the Investigating Officer is not to strengthen the prosecution case by withholding the evidence collected by him. No dispute can be raised regarding this proposition of law laid down by High Court. It is not the case of the petitioner that the Investigating Officer has not been fair. On the contrary, the CCTV footage and the details of his cell phone location were taken into consideration by the police and he was not sent for trial and it is only the court which has taken into consideration the evidence against the petitioner, including the one which was favourable to him, that is, CCTV footage and the telephone details and taken cognizance and proceeded against the present petitioner. Therefore, this judgment, in my view, is not applicable. Baldev Singh’s (supra) judgment is also not at all

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applicable. Similarly, I have gone through the other judgments and they also do not help the petitioner in any manner whatsoever.

11. For the reasons mentioned above, I feel that there is no illegality, impropriety or incorrectness in the order of the Trial Court directing the framing of charge against the petitioner and accordingly, the petition is misconceived and the same is hereby dismissed.

AUGUST 24, 2012 ‘AA’

V.K. SHALI, J.