Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1140 OF 2022
(Arising out of SLP(Crl.) No(s).1211 of 2022)
VIKRAMJIT KAKATI …..Appellant(s)
VERSUS
THE STATE OF ASSAM …..Respondent(s)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeal is directed against the order passed by
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the High Court of Gauhati dated 3 December, 2021 declining to
interfere with the order passed by the Additional Sessions Judge
(Fast Track Court), Sivasagar, in Sessions Case No.57(SS) of
2012, rejecting the discharge application filed by the appellant
Signature Not Verified
Digitally signed by
Rachna
Date: 2022.08.04
17:49:59 IST
Reason:
under Section 227 Cr.P.C.
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3. The seminal facts relevant for the purpose are that on 28
April, 2009, an FIR was lodged by one Smt. Rajia Islam (mother
of the deceased) at Sivasagar Police Station stating, inter alia,
that her son Lt. Qureshi Sahidul Islam was burnt to death under
suspicious circumstances inside his rented house at Sivasagar by
his wife and the present appellant. Her son succumbed to the
injuries sustained by him while on the way to hospital. On
receipt of the complaint, an FIR was registered at Sivasagar P.S.
Case No.198/2009, under Section 302 IPC. The police filed
chargesheet under Sections 302/120B/201/118 IPC against
three persons namely Smt. Zahida Imdad Islam (wife of the
deceased), Smt. Jahanara Islam (mother of Zahida Imdad Islam)
and the present appellant, along with a list of thirteen witnesses.
The only allegation levelled against the present appellant was
that he had, in conspiracy with other accused persons, removed
the evidence of offence from the place where the alleged crime
had been committed.
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4. The learned trial Judge initially by order dated 21 June,
2012, after hearing learned counsel for the appellant, came to the
conclusion that there is prima facie case against him and others
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and fixed 17 July, 2012 as the next date of hearing for framing
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of charges and thereafter, charges were framed against accused
Zahida Imdad Islam, Jahanara Islam and the appellant under
Sections 302/120B IPC and under Section 201 IPC against
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Jahanara Islam and the appellant by the order dated 17 July,
2012.
5. The revision preferred by the appellant against framing of
charge came to be dismissed by the High Court under the order
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impugned dated 3 December, 2021, which is the subject matter
of challenge in the present appeal.
6. The main thrust of the contention of the counsel for the
appellant is that the appellant has no nexus with the commission
of crime. He was a friend of the deceased working in the same
office. At the time of the incident, the appellant was working for
the Indian Oil Tanking (IOT), a joint venture of Indian Oil
Corporation and Oil Tanking of Germany, as Project Engineer,
Sivasagar. On the fateful morning, the appellant received a
telephonic message from the wife of the deceased that her
husband had sustained burn injuries and requested him to come
to their house and after receipt of the information, he, along with
other colleague Tariqul Rafique @ Maju, came to the house of the
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deceased by his car. Seeing burn injuries on the body of
deceased, he along with Tariqul Rafique took him to the nearby
Nursing Home at Sivasagar and after preliminary treatment, he
was taken to Dibrugarh Medical College, where he succumbed to
the injuries. So far as the present appellant is concerned, his
intention was only to help out the deceased in getting proper and
immediate medical treatment. Except this, there is no nexus of
the appellant in the commission of alleged murder of the
deceased and there is no material against him and no witness
has deposed against the appellant.
7. Learned counsel further submits that the Ld. trial Judge
was at least required to examine the existence of prima facie
material regarding participation of the appellant in the
commission of crime or existence of grave suspicion against him
and when there is no prima facie material of suspicion what to
say of grave suspicion, the charge cannot be framed and
accordingly the counsel submitted that the charge framed against
the appellant by the learned trial Judge is not sustainable as
there is no evidence against him and prayed for its discharge.
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8. Learned counsel for the respondent, on the other hand,
submitted that there is sufficient evidence against the appellant
to suspect commission of crime and only after examining the
chargesheet and other material available on record, the charges
were framed by the learned trial Judge and in the given facts and
circumstances, there is no error committed by either the trial
Judge by framing of charge or the High Court in dismissing the
revision preferred by the appellant under the order impugned.
9. We have heard learned counsel for the parties and with
their assistance perused the material available on record.
10. Before we proceed to examine the matter on merits any
further, it will be apposite to take note of the legal principles
applicable seeking discharge, for which we may refer to a
judgment of this Court in P. Vijayan v. State of Kerala &
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which has been further reiterated by this Court in the
Another ,
recent judgment in M.E. Shivalingamurthy v. Central Bureau
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and discerned the following
of Investigation, Bengaluru
principles:
1 (2010) 2 SCC 398
2 (2020) 2 SCC 768
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| “17.1. If two views are possible and one of them gives rise to<br>suspicion only as distinguished from grave suspicion, the trial Judge<br>would be empowered to discharge the accused. | |
|---|---|
| 17.2. The trial Judge is not a mere post office to frame the charge at<br>the instance of the prosecution. | |
| 17.3. The Judge has merely to sift the evidence in order to fni d out<br>whether or not there is sufficient ground for proceeding. Evidence<br>would consist of the statements recorded by the police or the<br>documents produced before the Court. | |
| 17.4. If the evidence, which the Prosecutor proposes to adduce to<br>prove the guilt of the accused, even if fully accepted before it is<br>challenged in cross-examination or rebutted by the defence<br>evidence, if any, “cannot show that the accused committed offence,<br>then, there will be no sufficient ground for proceeding with the trial”. | |
| 17.5. It is open to the accused to explain away the materials giving<br>rise to the grave suspicion. | |
| 17.6. The court has to consider the broad probabilities, the total<br>effect of the evidence and the documents produced before the<br>court, any basic infirmities appearing in the case and so on. This,<br>however, would not entitle the court to make a roving inquiry into<br>the pros and cons. | |
| 17.7. At the time of framing of the charges, the probative value of<br>the material on record cannot be gone into, and the material<br>brought on record by the prosecution, has to be accepted as true. | |
| 17.8. There must exist some materials for entertaining the strong<br>suspicion which can form the basis for drawing up a charge and<br>refusing to discharge the accused.” | |
| 11. Taking into consideration the aforesaid legal principles, if<br>we consider the facts of the present case, it reveals from the<br>perusal of chargesheet and other material available on record<br>that the investigating officer has not brought even prima facie<br>material in the chargesheet as to what was the motive on the |
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part of the appellant to commit the alleged offence. The
deceased, in the instant case, was a colleague/friend of the
appellant working in the same organization. On the fateful
morning, the appellant learnt about burn injuries of the deceased
through accused no.1 i.e. the wife of the deceased on telephone
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at about 5.30 a.m. on 22 April, 2009. Without any loss of time,
the appellant along with his colleague Tariqul Rafique @ Maju
went to the house of the deceased by his car and took the
deceased along with his wife (A1) to the nearby nursing home at
Sivasagar. Since the said nursing home was not having the
burn ward, after giving the initial treatment, deceased was
referred to the Dibrugarh hospital. The deceased along with his
wife and colleague of the appellant went to the Dibrugarh
hospital on an ambulance, but unfortunately, the deceased
succumbed to the burn injuries in the hospital.
12. The only eyewitness in the present case is Hosna Begum,
domestic servant present in the house of the deceased. She
neither in her statement under Section 161 Cr.P.C. nor under
Section 164 Cr.P.C. stated anything about the involvement of the
appellant in the commission of the alleged offence, rather she
categorically stated in the statement that at the instance of the
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deceased, the wife of the deceased called the appellant for help
and further stated that the appellant took the deceased to the
hospital in his car. She is the best witness of the case. Rest of
the witnesses whose statements were recorded by the police
nowhere implicated the appellant, except the complainant who
was not even an eyewitness to the incident.
13. Regarding the allegation of destruction of evidence by the
appellant along with the wife of the deceased (A1), no material,
oral/documentary, has been placed by the police in the charge
sheet, which, in any manner, connect the appellant with the
destruction of evidence. To the contrary, as per the statement of
the witnesses which are recorded, the fact that reveals is that the
appellant accompanied the deceased to the hospital at Sivasagar
and from there to Dibrugarh, where the deceased succumbed to
the injuries and based on the information given by the appellant,
the deceased’s relatives, including the complainant, came to the
hospital and from there his body was taken to his native place
Tezpur for performing the last rites. Here, no other witnesses,
whose statements were recorded, stated anything about the
appellant visiting the house of the deceased either before or after
the alleged destruction of evidence has taken place, except the
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complainant, who even in the FIR did not make any statement
against the appellant, but later made a bald statement of her
strong suspicion in her statement under Section 161 Cr.P.C.
14. So far as the conspiracy, as alleged, is concerned, some
evidence ought to have emerged or the prosecution could have
brought on record some prima facie material whereby the
appellant along with the accused persons had prior meeting of
mind to execute the alleged offence and in the given facts and
circumstances, there is no justification for the appellant to
undergo the agony of facing trial, to which the appellant is not
even prima facie connected. Still the prosecution filed charge
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sheet on 30 August, 2011 for offence implicating the appellant
under Sections 302/120B/201 IPC along with the wife of
deceased (A1) and mother of wife of the deceased (A3).
15. There is no iota of evidence which, in any manner, connect
the present appellant with the commission of crime and neither
the trial Court nor the High Court has even taken pains to look
into the record as to whether there is any oral/documentary
evidence which in any manner connect the appellant with the
alleged incident of crime and, in our considered view, in the
absence of even a prima facie material, oral/documentary, being
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placed by the prosecution in the chargesheet, the trial Court as
well as the High Court have committed serious error in framing
charge against the appellant. Even the complainant also in the
complaint has not named the appellant as the perpetrator of the
offence, rather she stated that she suspects foul play.
16. In the given facts and circumstances, we are of the view that
the appeal deserves to be allowed. The order impugned passed
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by the High Court of Gauhati dated 3 December, 2021 as well
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as the order dated 21 June, 2012 passed by the Additional
Sessions Judge (Fast Track Court), Sivasagar, in Sessions Case
No.57(SS) of 2012 are quashed and set aside and the appellant
stands discharged from the charges framed against him.
17. We further make it clear that the observations made in this
judgment are only confined to the appellant, Vikramjit Kakati
and the trial Court may proceed with the matter against other
accused persons independently without being influenced by the
observations made herein and conclude the trial on its own
merits in accordance with law.
18. The appeal is accordingly allowed. Pending application(s) if
any, also stand disposed of.
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…………………………J.
(AJAY RASTOGI)
.…………………………
J.
(C.T. RAVIKUMAR)
NEW DELHI
August 04, 2022.
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