Y.K.SANGAL,J. - (1.) HEARD learned counsel for the applicant, learned AGA for the State and perused the record. This is an application under Section 482 Cr.P.C. to quash/set aside the orders dated 27.06.2009 and 04.08.2009 passed by the Session Judge in S.T. No. 1009 of 2008 State vs. Anil and others in Case Crime No. 536 of 2007 under Section 302/34 IPC, P.S. Masoori, district Ghaziabad.
(2.) A first information report was lodged naming all the three applicants that they were seen by the informant and other witnesses when they were coming out from Sugarcane crop filed of Surajpal and when the informant with the witnesses entered in the same sugarcane crop filed as he was searching his son with the witnesses, he found that dead body of his son was layng in the field. Saying that they committed the murder of his son he lodged, the first information report at police station on the same day and investigation was started in the matter. Postmortem of the dead body was conducted by the Doctor and Dr. has opined that death is due to Asphysia as a result of anti-mortem hanging. Ante-mortem injuries were also found by the Dr. around the neck of the deceased. Statement of the witnesses were recorded under Section 161 Cr.P.C. Informant had also given motive to the accused for committing the murder saying that litigation was going on between the parties and earlier they had threatened him and they were annoyed with the informant. After completing the investigation charge-sheet was submitted against all the three accused persons. Cognizance was taken by the learned Magistrate and as the case was exclusively triable by the Court of Session so the same was committed to the Court of Session. Learned counsel for the applicants with reference to the statements of the witnesses recorded by the I.O. during course of the investigation argued that at least there are two eye witnesses namely Smt. Veerwati and Smt. Kunti who claimed themselves eye witnesses of the occurrence and they said that some other persons committed the murder of the son of the informant. It was further said that some other witnesses have also said before the Investigating Officer that they also came to know that applicants are not the persons who committed the murder but murder was committed by some other persons and they have also named them. On the other hand learned AGA argued that after considering all the statements of witnesses recorded by the I.O. during the course of investigation, what the investigating Officer thought correct, he submitted the report of the same in the court and as per the report, he found applicants were the actual culprits who committed the offence of murder. At this stage of framing the charge, court has to see the evidence on which the prosecution relies. Accused person may have their defence, but the same cannot be considered at the time of framing the charge.
(3.) HE referred the case law AIR 2005 Supreme Court 359 State versus Devendra, where the apex Court held that papers filed by the accused at the stage of charge, will not be considered by the court. Application for summoning the record on behalf of the accused will also not be considered as it is not material at the time of framing the charge what is the case of the accused persons. Only case of the prosecution and evidence relied by the prosecution is to be seen. In another case cited by the learned AGA, 2002 Cr.L.J. 3104 G.P.Sharma versus State, it was held that for discharge of the accused persons, report under Section 173 Cr.P.C. only to be seen. After seeing the case diary and treating it as evidence, it is not proper to discharge the accused. In 1984 Allahabad Criminal Report, 156 Krishna Kant vs. Dilip Kumar, it was held that at the time of framing the charge, Session Judge is not required to consider pros and cons of the matter and weigh the evidence as if he was conducting the trial. In 1986 Chandgarh Criminal Cases 146 Madan versus State, it was held that if there is even a strong suspicion that applicants had committed the offence, the report lodged against them then charge should be framed. It will not be appropriate for the superior court to disturb the order of framing the charge. In another case 1979 Cr.L.J. 1390 (Supreme Court) Superintendent and Rememberancer of Legal Affairs versus Anil Kumar, it was held that if from the material on record inference of strong suspicious can be drawn, this will be sufficient for framing the charge.;