Nadeem Khan @ Nadim Khan, aged about 36 years, son of Nasim Khan, Resident v. With …. …. Opp. Party Cr. Revision No. 1237 of 2022 Firoza Khatoon @
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1230 of 2022 Nadeem Khan @ Nadim Khan, aged about 36 years, son of Nasim Khan, Resident of Village-Simariya, P.O. Tilaiya Dam, P.S. Jainagar (Tilaiya Dam ….. ...... Petitioner O.P.), District Koderma. The State of Jharkhand Versus With …. …. Opp. Party Cr. Revision No. 1237 of 2022 Firoza Khatoon @ Munni, aged about 53 years, Wife of Late Samim Ahmad, Resident of Village-Simariya, P.O. Tilaiya Dam, P.S. Jainagar (Tilaiya Dam ….. ...... Petitioner O.P.), District Koderma. The State of Jharkhand Versus With …. …. Opp. Party Cr. Revision No. 1239 of 2022 1. Anzarul Haque, aged about 68 years 2. Maqsood Alam @ Maqsood Khan, aged about 56 years, both sons of late Imran Khan 3. Ghulam Mustafa @ Gulam Mustafa, aged about 29 years, son of Anzarul Haque All resident of Village-Simariya, P.O. Tilaiya Dam, P.S. Jainagar (Tilaiya Dam O.P.), District Koderma. ….. ...... Petitioners The State of Jharkhand …. …. Opp. Party Versus
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND ------- ------ For the Petitioners For the State : Mr. Sahil, Advocate (In all cases) : Mr. Pankaj Kumar, P.P. (In Cr. Rev. No.1237 of 2022) Mrs. Priya Shrestha, A.P.P. (In Cr. Rev. No.1230 of 2022) Mrs. Vandana Bharti, A.P.P. (In Cr. Rev. No. 1239 of 2022) Mrs. Nehala Sharmin, Advocate (In all these cases) -------- Order No.06 /Dated: 14th August, 2023 Since all these Criminal Revisions relate to the same case crime i.e. Jainagar (TDOP) P.S. Case No.86 of 2021 wherein the application under Section 227 of the Cr.P.C. has been rejected vide impugned order dated 14.09.2022 passed by the learned Additional Sessions Judge-1st, Koderma in S.T. Case No.26 of 2022 and S.T. Case No.72 of 2022, they are heard together -2-
Decision
and disposed of by this common order. 2. Learned counsel for the petitioner has submitted that as per FIR allegations, the accused Shahil Khan is named in the FIR. The name of the present petitioners transpired during investigation and the independent witnesses of the occurrence have not named the present petitioners, even the informant had developed her restatement under Section 164 of the Code of Criminal Procedure. There is no sufficient evidence against the petitioners to frame the charge, as such, the learned trial Court has rejected the discharge application of the petitioners relying upon the confessional statement and the restatement of the informant and the wife of deceased while the independent witnesses have not named any of the petitioners. 3. Mrs. Nehala Sharmin, learned counsel for the informant appears in all three cases, Mr. Pankaj Kumar, learned P.P. appears in Cr. Rev. No.1237 of 2022, Mrs. Priya Shrestha, learned A.P.P. appears in Cr. Rev. No.1230 of 2022 and Mrs. Vandana Bharti, learned A.P.P. appears in Cr. Rev. No. 1239 of 2022 and have jointly submitted that there is no contradiction in the FIR and the statement made by the informant or any other witnesses. The informant and the wife of the deceased both are the eyewitnesses and being the other independent witness have also corroborated the prosecution story. The role of all the petitioners is shown in commission of the alleged offence though it was Shahid Khan who had inflicted blow with tangi. It is further submitted that the weapon was recovered on the confessional statement of Nadeem Khan from the house of Firoza Khatoon @ Munni and there is ample evidence against all the petitioners to frame the charge. 4. It is well settled law that the learned trial Court while framing the -3- charge has to go through the FIR of the case and also the evidence collected by the Investigating Officer during the investigation. 5. The FIR case is that the informant Nagma Bahar had given the written information with these allegations that her father had gone to offer Namaz on 09.04.2021 on Friday to the Simariya Mosque. Shahid Khan had inflicted with tangi on the forehead of her father whereby he got grievous injury and was taken to Parwati Clinic, Tilaiya and after first aid he was referred to Ranchi Hospital. On this written information, Case Crime No.0086 of 2021 was registered at Jainagar Police Station under Sections 323 and 307 of the Indian Penal Code and after death of injured Section 302 of the Indian Penal Code was enhanced on 16.04.2021. 6. The restatement of the informant was recorded by the Investigating Officer and in her restatement this witness stated that on 09.04.2021, Anzarul Haque had come to her house and he asked her father to offer namaz in Simariya Mosque. While her father was asked to offer Namaz at Simariya Mosque, her mother Praveen Begam was also at the door of the house. Her father was to station the bike at the courtyard (chabutara), all of a sudden, Anzarul Haque, Maqsood Khan, Ghulam Mustafa and Safeek Ahmed caught hold of her father. Sameem Khan handed over axe to Shahid Khand and Shahid Khan assaulted with the same to her father. Hearing the screaming, so her father and mother also shouted and Shahid Khan also rushed to assault to the mother of the informant and her mother intruded in the house. At that time, some persons were making preparation to offer Namaz. 7. Praveen Begum is the wife of the deceased, her statement was recorded in paragraph No.25 of the case diary. She stated that on 09.04.2021, -4- Anzarul Haque came to her house at 09:30 and he began to discuss in regard to some land with her husband. Her husband used to offer Namaz in another Mosque, she asked her husband not to go to Simariya Mosque, as such, she suspected. However, her husband refused to accompany Anzarul Haque to offer Namaz. At 10:00 O’clock of day time she and her daughter Nagma Bahar went to her old house Simariya Bhadar and her daughter was sweeping there outside the house. At 12:30 pm, her husband came to offer Namaz and she heard the sound of bike while her husband was parking the bike at the chabutara. Anzarul Haque and Maqsood Khan chasing Safeek Ahmed her husband, Nadeem Khan and Ghulam Mustafa caught hold of her husband from the back side, at the same time, Firoza Khatoona @ Munni, wife of Sameem Khan handed over the axe to Shahid Khan, who assaulted with the same to her husband. He gave several blows, whereby her husband became severely injured. Anzarul Haque, Maqsood Khan and Ghulam Mustafa also kicked him. Her husband was taken first to the Parwati Clinic, thereafter, he was referred to Ranchi Hospital and on 12.04.2021, her husband was declared dead. Firoz Khan, Mubarak Hussain and Sabir Khan, all these witnesses, have assaulted with tangi to the deceased by Shahid Khan. 8. The independent witnesses Sakeena Khatoon and Parvez Ahmed, whose statements were recorded in paragraph Nos.70 and 71 of the case diary, they stated that they have corroborated the statement of Praveen Begam, wife of the deceased. On the confessional statement of accused Nadeem Khan, the accused Firoza Khatoon @ Munni handed over the weapon used in commission of the offence which was also sent for examination. 9. In view of the paragraph No.90 of the case diary, CDR report in -5- regard to the locations of the accused Gulam Mustafa is shown at the place of occurrence. 10. In view of the statement of the witnesses, there is ample evidence against all the petitioners in regard to their complicity in commission of the alleged offence. Though it was Shahid Khan, who inflicted with tangi, yet all these petitioners were also involved in commission of the alleged offence. The specific role has been attributed to all these petitioners by the witnesses. The wife of the deceased and the daughter of the deceased are eye-witnesses of the occurrence. The old house of the informant is in Simariya Bhandar wherein the Mosque was also situated and the Namaz was proposed to be offered in Simariya Bhandar Mosque. 11. It is the settled law, as laid down by the Hon’ble Apex Court that while framing the charge, the Court has to see whether there are sufficient ground to proceed with the trial of the accused, only the prima facie case is to be seen at this stage. If there is slightest evidence against any of the accused or the grave suspicion, the charge may be framed. While framing the charge, the Court has not to conduct the mini trial or has not to scrutinise the evidence minutely. Marshalling and appreciation of the evidence is not permissible at the time of framing charge. 12. The Hon’ble Apex court in the case of Palwinder Singh vs. Balwinder Singh & Ors. reported in (2008) 14 SCC 504 at paragraph 13 has held as under: “13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal -6- Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi wherein it was held as under: “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [Satish Mehra v. Delhi Admn. holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 13. The Hon’ble Apex Court in the case of CBI v. Mukesh Pravinchandra Shroff reported in (2009) 16 SCC 429 at paragraph 2 has held as under: “2. By the impugned order, the Special Court has discharged the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal Shroff and Mukesh Pravinchandra Shroff from Special Case No. 4 of 1997. From a bare perusal of the impugned order, it would appear that the Special Court has virtually passed an order of acquittal in the garb of an order of discharge. It is well settled that at the stage of framing of the charge, what is required to be seen is as to whether there are sufficient grounds to proceed against the accused. In our view, the Special Court was not justified in discharging the aforesaid accused persons.” 14. The Hon’ble Apex Court in the case of Vikram Johar vs State of Uttar Pradesh reported in AIR 2019 SC 2109 at paragraph 19 has held as under: “19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.” 15. In view of the submissions made and also the allegations made in the FIR and the evidence collected by the Investigating Officer, there are sufficient -7- grounds for framing the charge against the accused persons, who are petitioners herein. The learned trial Court has rightly rejected the application for discharge and the impugned order passed by the learned Court below needs no interference. Accordingly, all the above petitions are being dismissed. 16. Let a copy of this order be communicated to the court concerned through ‘FAX’. (Subhash Chand, J.) Madhav/-