GULABCHAND KISANLAL CHANDAK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Criminal revision application is directed against the order below Exh. 13, dated 10-9-1991 passed in sessions trial No. 482/88 by Shri B. N. Jagtap, Addl. Sessions Judge, Nagpur rejecting the application of the applicants/accused under section 227 of the Code of Criminal Procedure.

(2.) THE facts giving rise to the prosecution of the applicants/accused are as follows : for the homicidal death of Ku. Anita which occurred on 29-6-1985, the applicants/accused are prosecuted for the offence punishable under sections 302, 201, 202 and 12-B of I. P. C. The applicant Nos. 1 and 3, Shri Gulabchand Chandak and Shri Narayandas Chandak are the real brothers. The applicant No. 4 Gayatribai Chandak is the wife of the applicant No. 1 Gulabchand. The applicant No. 2 Smt. Rajkumari is the wife of the applicant No. 3 Narayandas Chandak Applicant No. 5 is the son of the applicant No. 1 Gulabchand and his wife applicant No. 4 The applicant No. 5 was then doing his post-graduation in Medicine. Deceased Ku. Anita was the daughter of the applicant Nos. 1 and 4 and younger sister of the applicant No. 5. Deceased Anita who was a student of a L. A. D. College and had appeared for B. Com. Past-I examination and the result was declared on the very day i. e. on 29-6-1985. She had passed in first division. The applicants reside on the Main Road, Sitabuldi, Nagpur in a three storyed building. The ground floor being occupied for the business purposes, whereas the first, second and third floor being in their occupation as a residential house. The prosecution alleges that on 29-6-1985, deceased Ku. Anita was admitted in the casualty ward of Medical College and Hospital Nagpur by her brother applicant No. 5 as she had suffered 3 stab injuries and a punctured wound on her abdomen. Two injuries were completely penetrating the abdomen. At the relevant time the applicant No. 5 Dr. Rajendra Chandak was doing his post-graduation in medicine, was in the Hospital. He received message of assault and having injuries on his sister Ku. Anita on telephone. This fact is substantiated by Dr. Kamble who is cited as a prosecution witness. Immediately after receiving the telephonic message the applicant No. 5 alongwith Dr. Kamble rushed to the house and shifted Ku. Anita to the Medical College and Hospital Nagpur and she was operated upon. The applicant No. 5 Dr. Rajendra being a doctor he was all the time in the hospital. On two occasions he had brought the blood from the outside. In the Medical College and Hospital, Nagpur, there is a police booth. The report of incident was recorded at the police booth of Medical College, Nagpur. The police attached to the police booth in Medical College, Nagpur sent telephonic message at 16. 45 hours to Sitabuldi Police Station about Ku. Anita having suffered injuries and her brother applicant No. 5 having admitted her in the Medical College and Hospital Nagpur. Shri Upadhyaya- P. S. I. went to the Medical College and Hospital, Nagpur to record her dying declaration. Ku Anita was in the operation theatre and operation was in progress. She could not regain consciousness and, therefore, her statement was not recorded. She succumbed to the injuries on the same night at about 9. 30 p. m. To this effect Shri Upadhayaya-P. S. I. sent the message to Sitabuldi Police Station and to that effect entry is taken in station diary. Initially the investigation was conducted by Sitabuldi Police and subsequently it was handed over to Crime branch. After the investigation, the charge-sheet came to the presented against all the applicants/accused for the offence enumerated herein above. The entire prosecution case is based on the circumstantial evidence. The incriminating circumstances appearing against each of the accused are detailed in para 5 of the application. The circumstances are as under :

(3.) ADMITTING the prosecution as it is, an application before the 8th Addl. Sessions Judge, Nagpur was filed under section 227 of Cri. P. C. Contending that on the material referred to above unrebutted as it may be, the accused could not be put on trial and were liable to be discharged. It was specifically submitted that while framing a charge under section 228 of the Code on the material produced by the prosecution, there must be a reasonable possibility or a chance of the accused being found guilty of the offence and the provisions under section 227 of Cri. P. C. are engrafted and was calculated to eliminate the accused being put to a further harassment of a prolong and protracted trial and the Court is bound to discharge the accused if the circumstances alleged against the applicants/accused only create merely suspicion and did not cross the parameters converting into the circumstances of grave suspicion resulting in probability of a possible conviction.