JITENDRA KUMAR VERMA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Applicant Jitrendra Kumar being aggrieved by the order dated 27.3.2001 passed in Sessions Trial no. 19 of 2001 by the learned Second Additional Sessions Judge, Baloda Bazar directing to frame charges against the applicant, for offences punishable under Sections 302, 364-A and 201 all read with Section 34 of the Indian Penal Code, has filed this revision-petition. The prosecution case in brief is that a young boy was missing from his house, therefore, a report was lodged with the police. After sometime the dead body of a young boy was found, complainant Lambodar (father of the deceased) identified the said body to be of his son Viru alias Yogendra. The body was recovered and statements of the witnesses were recorded. As the complainant Lambodar expressed his serious doubts against co-accused Miluram, investigation on those lines was also made. During the course of the investigation the police agency recorded memorandums of accused Ram Avatar and Miluram, on 18.4.2000. The accused persons said in their independent memorandums that he along with two others kidnapped the boy, shaved his head, denuded him of his clothes and after committing murder kept the body under the bushes. Thereafter further investigation was made and statements of one Ummedram was recorded. Said Ummedram in his case-diary statements stated that when he had gone to that particular rivulet he had seen the deceased Viru in company of Miluram Verma and also saw the present applicant Ram Avatar and Bhupendra at some distance. On basis of this evidence, the prosecution agency filed the challan against Miluram, Ram Avatar, Bhupendra Verma and the present applicant Jitendra Kumar. The learned trial Court after hearing the parties framed the charges against he present applicant, therefore, he has come to this Court. Shri Pankaj Agrawal, learned counsel for the applicant, submits that barring the statements of Ummedram which do not connect the present applicant with the alleged crime the record does not contain anything against the applicant and even if the challan is taken to be the legal evidence no Court can convict the present applicant in connection with the alleged crime because nobody says that the present applicant was seen in the company of the deceased. He further submits that a perusal of the memorandums of Miluram and Ram Avatar would clearly show that accused Miluram, Ram Avatar and Bhupendra had committed the offence. He submits that present is a fit case for discharge of the applicant.

(2.) Shri R.K. Jajodiya, learned counsel for the State, on the other hand, submits that though barring the allegations as contained in the statements of Ummedram no other evidence is available in the case-diary but circumstances in which the applicant was seen near the place of occurrence would justify framing of the charges. He has prayed for dismissal of the revision-petition. I have heard the parties and have gone through the case-diary and the challan-papers. On 18.4.2000 memorandum of accused Ram Avatar was recorded. He stated in his memorandum that Miluram, Bhupendra and he himself took Viru to the rivulet, shaved his head, caused injuries on the lips and thereafter committed murder of said Viru. In his memorandum he does not even say that present applicant Jitendra Kumar was one of the miscreants or was associated with them or shared the common intention. On the same day that is on 18.4.2000 memorandum of Miluram was recorded. In the said memorandum Miluram stated that Ram Avatar, Bhupendra and he himself took the boy near the rivulet, removed his clothes and thereafter committed his murder. He also does not say that they were accompanied with the present applicant Jitendra Kumar, Jitendra Kumar was associated with them or he had any common intention with them. During the course of the investigation the prosecution agency had recorded statements of Lambodar, Harishankar, Shankar Prasad, Smt. Umabai, Lilaram, Chhatrasal Sahu, Narottamdas, Parameshwar Prasad, Rameshwar Prasad, Manidas, Ramkumar, Lakhanlal, Fitturam, Suresh and Ummedram. Except Ummedram none of the witness has named the present applicant. The entire case rests upon the statements of Ummedram.

(3.) The cardinal principle for framing the charges against an accused is that whether prima facie evidence to connect the accused with the crime is available in the diary or not. At this stage the Court is not required to scrutinize the evidence thoroughly or discuss the same as it is required to discuss the evidence at the time of the final disposal of the case. The Court is required to see that if the allegations made in the case diary statements are not rebutted whether it would lead to conviction of the accused and in cases of the circumstantial evidence the Court is required to see that the chain is complete or not. At this stage the Court is required to give a little margine to the prosecution in cases of circumstantial evidence, but in cases where the ocular testimony is available then the Court is required to see the statements of those witnesses. Present is a case based upon the circumstantial evidence, therefore, some margine will have to be given to the prosecution agency. At this stage the Court is required to see that if the statements made by Ummedram are taken on their face value and relied upon as absolute and gospel truth would it lead to conviction of the applicant. Ummedram, in his case-diary statements recorded under Section 161 Cr.P.C. had categorically stated that at about 2-2.30 he had gone near Lami Nala (rivulet), he found deceased Viru in company of Miluram. He further states that at some distance Jitendra Kumar was standing with Ram Avatar and Bhupendra. According to him he made enquiries from Miluram on which Miluram informed him that he was fishing. Barring this statement that the accused was standing at some distance with some other accused, Ummedram did not speak even a single word against the accused. He does not say that Jitendra Kumar was in company of Miluram or he made any enquiry from Jitendra as to why he was standing at that place. These statements given by Ummedram, in the opinion of this Court fall short to convict the accused even if these are taken to be gospel truth. If these statements as those are cannot lead to conviction of the accused then the same would not provide a foundation even for framing the charges.