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Hari Shanker Gaur Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 97 of 1981
Judge
Reported in20(1981)DLT59
ActsState of Karnataka v. L. Muniswamy and Ors., 1977 CrLJ 1125; State of Bihar v. Ramesh Singh, 1977 CrLJ 1606; Union of India v. Prafulla Kumar Samal and Anr., 1979 CrLJ 154
AppellantHari Shanker Gaur
RespondentThe State
Advocates: O.P. Soni,; Kamlesh Dutt and; Neelam Allwadi, Advs
Cases Referred and Union of India v. Prafulla Kumar Samal and
Excerpt:
- - if there is strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. by and large however if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused (see in this respect the decisions of the supreme court reported in state of karnataka v......penal code . was framed against hari shankar gaur, petitioner. it was observed that there was sufficient ground for proceeding against him as the material on record, prima facie, indicated his complicity in the alleged offence, and there was no sufficient ground to discharge him at that stage. (2) according to the petitioner, he and abha were married on 10.5.1978, and a daughter was born out of the wedlock in march 1979, on the morning of 2.10.79, abha along with her daughter was inside a room with its door bolted from inside. the baby, however, was crying, and as the knocking at the door did not invite any response from abha, it was pushed open resulting in the belt dislodging. abha was then found lying unconscious. a doctor was called and she was taken to j.p.hospital where she.....
Judgment:

D.R. Khanna, J.

(1) This petition is directed against an order dated 6.3. 1981 of Shri O.P.Divedi, Additional Sessions Judge, Shahdara, whereby Charge under Section 302 Indian Penal Code . was framed against Hari Shankar Gaur, petitioner. It was observed that there was sufficient ground for proceeding against him as the material on record, prima facie, indicated his complicity in the alleged offence, and there was no sufficient ground to discharge him at that stage.

(2) According to the petitioner, he and Abha were married on 10.5.1978, and a daughter was born out of the wedlock in March 1979, On the morning of 2.10.79, Abha along with her daughter was inside a room with its door bolted from inside. The baby, however, was crying, and as the knocking at the door did not invite any response from Abha, it was pushed open resulting in the belt dislodging. Abha was then found lying unconscious. A doctor was called and she was taken to J.P.Hospital where she was declared dead.

(3) Her post-mortem conducted on the next day as also the examination of her viscera by the Chemical Examiner, revealed that the death was due to the existence of Malathion poison in her liver, spleen and kidney.

(4) On 4.10.1979, Shriniwas Sharma, father of Abha, lodged a report with police station Shahdara alleging that the petitioner had been harassing Abha on account of insufficient dowry, and that on 22.9.1979 she had come to her parents house and told her mother that her in-laws would not allow her to live long as she was being tortured for the last seven-eight days. Shriniwas, thereforee, in this report expressed his doubt that Abha had been killed by poisoning by the petitioner and his father.

(5) The investigation in the case thereafter proceeded, and at one stage the same was taken over by the Special Branch. Ultimately the case under section 302 I.P.G. was registered and the petitioner was arrested. He, however, was later granted bail by this court.

(6) The investigating agency submitted challan against the petitioner under section 302 I.P.G. and the case was committed to Sessions. At the stage of framing of the charge, the petitioner took the stand that the circumstantial evidence sought to be relied upon by the prosecution did not warrant such framing, and that there was little possibility of any conviction ultimately following on the basis of those circumstances. He, thereforee, sought that he should be discharged. The learned Additional Sessions Judge, however, in a detailed order covering about 11 pages, came to the view that there were sufficient grounds for proceeding against the petitioner as the material on record, prima facie, indicated his complicity in the alleged offence. In doing so he referred to various circumstances, such as the absence have been, the delay in the calling of doctor in whose opinion the poison was administered about two hours before he was called, the statements of the parents of Abha, the reluctance of the petitioner to spend for taxi for taking Abha to hospital, the report of the Central Forensic Science Laboratory that some unusual tool marks were found on the bold, the Malathion poison was available in the petitioner's office, and the petitioner had purported to tell Abha to take medicine for her cough from the place where the poison was said to be lying etc.

(7) Aggrieved by this order, the present revision petition has been moved.

(8) There is no gain-saying that at the stage of framing of charge, the Court has not to minutely and meticulously go into the merits of the evidence collected by the prosecution and consider in details and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or the trial is sure to end in his conviction. If there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The crucial consideration for purpose of determining whether there is sufficient ground for proceeding against an accused is whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. All this could naturally depend upon the facts of cash case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused (see in this respect the decisions of the Supreme Court reported in State of Karnataka v. L. Muniswamy and Others, : 1977CriLJ1125 , State of Bihar v. Ramesh Singh : 1977CriLJ1606 and Union of India v. Prafulla Kumar Samal and another : 1979CriLJ154 .

(9) What is noticeable in the present case is that the learned Additional Sessions Judge has kept those principles in view while framing the charge. No basic infirmity in the approach adopted by him is discernable in the impugned order. He has taken into account various circumstances which according to him to give suspicion that the petitioner had complicity in the crime. The Court has not as a matter of course and after just making a superficial assessment of the circumstances proceeded to frame the charge.

(10) I am, thereforee, not inclined to interfere in this revision and the same is dismissed.


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