Full Text
HIGH COURT OF DELHI
STATE ..... Petitioner
Through: Mr. Manoj Pant, APP for State.
Through: Mr. Varun Dev Mishra, Advocate (through VC)
JUDGMENT
1. The instant criminal revision petition has been filed under Section 397 and 401 read with Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) by the petitioner against order dated 24.08.2018 passed by learned Additional Sessions Judge (ASJ) (North), Rohini Court, New Delhi in FIR bearing No. 834/2017 registered at Police Station Narela, Delhi („PS‟) for offences punishable under Sections 307/34 of the Indian Penal Code, 1860 („IPC‟) and Sections 27/54/59 Arms Act, 1959 vide which he was pleased to discharge accused Savinder for offences punishable under Sections 120B IPC.
2. Brief facts of the present case are that on 30.10.2017, upon receipt of PCR call, police had reached at the spot and recorded the statement of the complainant i.e. Vijay,who had stated that on 30.10.2017 at about 9:00PM,while hewas standing outside his house, suddenly accused Rajesh along with two other companions came there on a Scooty and had stopped few blocks away from his house, in the meanwhile his younger brother Ajay (deceased)was approaching towards the house on another Scooty. It is alleged that as soon as Ajay reached near the house, accused Rajesh and his two other companions stopped him abruptly and had started firing indiscriminately. Thereafter, the accused persons absconded from the spot. Upon investigating the spot, crime team had found nine used cartridges, four lead and one live cartridge and all of them contained a mark i.e., KF
7.65 on the base, the same had been seized by the investigating officer („IO‟) and on the basis of the statement of complainant regarding murder of his brother, the present FIR had been registered.
3. During investigation, Scooty i.e., TVS Jupiter, Grey colored bearing No. DL-11SK-6031 had been seized. It is stated that with the help of complainant, respondent/accused Savinder was arrested. Further search was conducted for other co-accused persons but they could not be traced, as a result, on 08.11.2017, NBWs were issued against other co-accused persons Rajesh, Yogesh, Yudhvir @ Kalu. The CCTV footage of the incident had been examined and it revealed that on 30.10.2017, at about 6:00 PM, accused Yogesh @ Sonu and Rajesh were exchanging pistol with each other. On 24.11.2017, an information was received that injured Ajay expired during treatment. The dead body of the deceased was received from Max Hospital and the doctors had taken out three bullets from the body of deceased during operation. It is stated that during investigation, upon the disclosure statement given by the respondent/accused he had revealed and identified the other co- accused Rajesh, and Yogesh @ Sonu, that they were of his town and that other co-accused Yudhvir @ Kala had been in judicial custody in regards to FIR bearing No. 825/17, dated 17.11.2017 for offence punishable under Sections 25/54/59 Arms Act, and one desi katta (Gun) and one pistol had been recovered from his possession. On 14.12.2017, accused Yudhvir @ Kala was produced before the Court through production warrant, who was arrested after interrogation he had further disclosed that the pistol recovered from him at PS Shahabadhad been used by him in the present incident wherein he along with his companions had shot the deceased.After completion of investigation, chargesheet was filed against the applicant and co-accused persons for commission of offences punishable under Sections 302/201/120B/34 IPC. Thereafter supplementary chargesheet had also been filed against the accused Rajesh.
4. Learned ASJ vide impugned order dated 24.08.2018, discharged the respondent/accused Savinder on the ground that there was no evidence on record to prove his involvement in conspiracy. It is also held by the learned ASJ that merely because the accused was present near the spot and he had disclosed the name of the co-accused, it is not sufficient to infer that he was part of the conspiracy. He was accordingly discharged, whereas rest of the accused persons were charged for offences punishable under Section 341/302/34 IPC and Section 27 Arms Act.
5. Learned APP for the State states that a pistol, two live cartilage and one magazine were recovered at the instance of accused Yogesh @ Sonu. Pursuant to disclosure statement of the respondent/accused, which is admissible under the Indian Evidence Act, 1872 under Section 27 which has been overlooked in the impugned order dated 24.08.2018 passed by learned ASJ. Learned APPsubmits that a T-shirt was seized at the instance of the same respondent/accused. Learned APP further states that accused person have been discharged on the ground that he was only standing at the spot.
6. Learned APP also states that the learned ASJ could not have gone into this question since the case was at stage of charge and it was immaterial as to how he had participated in the conspiracy i.e. physically or not. He also states the fact that the weapon and the vehicle used in offence apart from the other articles mentioned in the charge-sheet had been recovered at the instance of the accused, it was enough to give rise to strong suspicion against accused regarding involvement in the alleged offence. He also states that a criminal conspiracy can be proved only by conducting a trial and it was against the settled law to have discharged the accused person merely on the basis of assumptions as are reflected from the impugned order.
7. Learned Counsel for the respondent on the other hand, states that there is nothing on record except a supplementary statement of the complainant which also does not impute any specific role to the applicant but only a suspicion. He also states that there is no CCTV footage which is on record against the present applicant. He also states that even a perusal of the site plan will reveal that his presence has not been marked by the IO. Learned Counsel therefore, states that there is nothing on record except the disclosure statement of the accused which is not admissible evidence even to prima facie make out a case against the respondent/accused and he has been rightly discharged by the learned Trial Court.
8. I have heard arguments on behalf of both the parties and have perused the material on record.
9. Before getting into the merits of the case, this court finds it necessary to look at the statutory provisions for framing of charge as well as discharge of the accused persons. As provided under Section 228 of Cr.P.C, the Court shall proceed to frame charge against the accused if it is of the opinion that there is ground for presuming that the accused has committed an offence. Section 228 Cr.P.C is reproduced as under:
10. An accused can also be discharged as per provisions of Section 227 Cr.P.C. However, for discharge of an accused, there must be lack of sufficient grounds to believe that the accused has committed the offence. Section 227 Cr.P.C is reproduced as under: "Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf. the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
11. Before dwelling further into the factual matrix of the case on basis of which learned ASJ discharged the respondent/accused, it would be useful to briefly recapitulate the law on point of Section 27 of the Indian Evidence Act, 1872 which is reproduced as under:
12. In Mukesh v. State of NCT of Delhi, AIR 2017 SC 2161, Hon‟ble Supreme Court reiterated the ingredients of Section 27 of the Indian Evidence Act. The same are reproduced as under: “434. The ingredients of Section 27, Indian Evidence Act, 1872 are-
13. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 Hon‟ble Supreme Court observed the following:
14. Hon‟ble Supreme Court in Mehboob Ali v. State of Rajasthan (2014) 14 SCC 640, has held that the disclosure statement of the accused respondent who was arrested first and revealed the name of the co-accused is admissible under Section 27 of the Indian Evidence Act.
15. Applying the above principles in the present case, as per the disclosure statement of respondent/accused, he had disclosed before the police that on 30.10.2017 that at about 8:00 PM he was present before the house of the complainant for a long period of time, & other co-accused Rajesh had already told him that when Ajay (deceased) will arrive the respondent would have to give a signal and Rajesh along with his two associates will remain present at the spot. When Ajay (deceased) had come on his scooty, he had given a signal to coaccused Rajesh who alongwith his two associates had simultaneously started firing with the gun at Ajay (deceased). The respondent had, thereafter, absconded from the spot. Therefore, in his disclosure statement, he has admitted to pointing out Ajay and had remained present at the spot. He had given a signal to Rajesh and his two associates who he has identified and got arrested during police remand, when Ajay had come on his scooty as planned by all of them and had thereafter left the spot after Ajay was shot at. He had also disclosed to the police that he does not know the name and address of the two associates of Rajesh, however, he knows their hide outs in Sonipat and Panipat. The investigation reveals that during investigation as per chargesheet after the disclosure statement of Savinder was recorded during his police custody remand, the CCTV footage of place of occurrence was shown to Savinder who had identified the three accused persons as Rajesh, Yogesh and Yudhvir. It is to be noted that the only accused Rajesh had been identified by the complainant in his statement and he did know about identity of the two other associates of accused Rajesh. It was accused Savinder who had identified Yogesh and Yudhvir in the CCTV footage during the police custody remand and had also disclosed that accused Yudhvir was in judicial custody and the fact was confirmed. During investigation it was also confirmed that the accused Yudhvir was arrested in FIR bearing No. 825/2017 for the offences punishable under Sections 25/54/59 IPC & found in possession of pistol which was the same that was used in the present offence. Therefore, it is clear that it was the present accused Savinder himself who had got accused Yudhvir and Yogesh identified from the CCTV footage whom the complainant did not know and had told the Investigating Officer that there were two associates with accused Rajesh.
16. Therefore, pursuant to the disclosure statement of Savinder, at his identification only, the other co-accused were arrested and the weapon of offence was recovered from accused Yudhvir. The supplementary statement of the complainant also confirms the presence of accused Savinder at the spot,
17. Thus this Court is of the view that the impugned order dated 24.08.2018 passed by learned Additional Sessions Judge is not based on the correct premise of law and facts Considering the same, the order of discharge against the present respondent/ accused is set aside and it is held that prima facie material exists on record, on the basis of which a strong suspicion arises regarding the involvement of the present accused applicant in the offence in question.
18. Keeping in view facts and circumstances of the present case, this case is remanded back to Additional Sessions Judge(North), Rohini Court, New Delhi to frame charge against the respondent/accused Savinder @ Pagal under relevant provisions of law.
19. Accordingly, the present petition is disposed of.
20. The order be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J MARCH 6, 2023