G. K. SHARMA, J. - (1.) THIS petition u/s. 482 Cr. P. C. is against the order of Additional Sessions Judge No. 3, Jaipur City, Jaipur, dated 21st Oct. , '87 by which, he ordered framing of charge against the petitioners u/s. 302 read with S. 120-B, IPC.
(2.) THE police submitted a challan against 6 persons u/ss. 302 & 120-B, IPC. THE trial court, after hearing both the sides, at the time of framing charge, passed the impugned order by which, it framed charge against all the accused persons u/s. 302/120-B, IPC. The learned counsel for the petitioners argued that the case against the present petitioners is that they had conspired with other accused persons to murder one Satish, and that on account of that conspiracy, the alleged occurrence had taken place, which was told by Kamlesh, who later on, succumbed to his injuries, in the hospital. The learned counsel for the petitioners, while reading the statements of Ramjilal and Sarvanlal, recorded by the police u/s. 161, Cr. P. C, argued that these witnesses were examined by the police, twice, u/s. 161 Cr. P. C. According to him, the first statement of Ramjilal was recorded by the police on 14th July, 86, i. e. , after complete two months of the alleged occurrence, who further argued that the incident had taken place on 14th May, 85. Then the investigation was transferred to CID, in the month of September, 85, as is clear from the charge-sheet itself. Thereafter, the Addl. S. P. , CID again not recorded statement of Ramjilal u/s. 161, Cr. P. C. on 14th Sept. , 85. Another statement referred to by Mr. Sharma at the time of argument, is that of Sarvanlal. His statement was recorded by the Addl. S. P. , CID, why the date of recording his statement is not mentioned in the statement, which is also not appreciable, because, when an investigating officer records statements of witnesses, it is expected that the dates would also be mentioned while recording statements. The Addl. S. P. while recording the statement of Ramjilal, has mentioned the date under his signature, as 14th Sept. , 85; and intentionally, he did not mention the date under his signature on the statement of Sarvanlal. Why did he try to avoid the date? I can, however, only say that it was not fair on the part of the Addl S. P. to have suppressed certain things. What was the reason for not writing the date under the statement of Sarvanlal, when, from the charge-sheet, it is clear that the investigation of the case, was handed over to the CID, in the month of Sept, 85, i. e , after 4 months after the alleged occurrence? Thus, though the Addl. S. P. tried to hide the date, but, he could not get success, because, the charge-sheet shows the month September, 85, when the case was transferred to CID, I take pity on the working of the Addl. S. P. who tried to put a gap and not mentioning the date, which shows that he wanted to mislead the court. It is clear from the record of the case that Sarvan Lal was examined by the police after the transfer of the investigation of the case to the CID. Why the statement of Sarvanlal was not recorded by the first investigating officer? The Addl. S. P. record the statement of Sarvanlal after 4 months of the alleged occurrence. This delay gives reflection on the fairness of the investigation of the case. No doubt, as argued by Mr. A. K. Gupta, the learned counsel for the complainant the Court has to see only the statements of the witnesses recorded u/s. 161, Cr. P. C. and it has nothing to do with the way they have been recorded. I do not agree with this argument. It is not for the court to rely on the statements of the witnesses without examining the correctness of each and every line. Therefore it was the duty of the trial court in this case, to have looked into the matter, while finding a prima facie case against the accused-petitioners, and it should have judged as to when the statements of the witnesses were recorded, while framing the charges. It is not the principle of law that whatever documents are submitted alongwith the charge-sheet, by the police, the trial court need not go into those documents or scrutinize them, and because a challan has been filed by the police, which says something against the accused, charge should be framed. This is not in the interest of justice. The law does not require the trial court to act like a presiding officer for the prosecution. Another argument which was advanced by Mr. Sharma, the learned counsel for the petitioners was that the statement of Ramjilal which was recorded earlier u/s. 16!, Cr. P. C. on 14th July, '85 by the police, and that which was recorded on 14th Sept. , '85, are two different and contradictory statements, and that practically, a new case has been made out in his second statement. The trial court has relied on the statement of Ramjilal which was recorded on 14th Sept. , '85, but, I feel sorry to find that it did not look into the earlier statement of this witness recorded by the first investigating officer on 14th July, '85. The statement of 14th July, '85 was the first version of Ramjilal, wherein, he did not mention even a single word about the conspiracy by these petitioners. The case of conspiracy was made out in the statement of Ramjilal dated 14th Sept. , '85, that was after the transfer of the case to the CID, and the petitioners were charge-sheeted u/s. 120b. Has it not the duty of the trial court to have scrutinized this type of evidence? Has it not its duty to have looked into the papers submitted by the police. There-, fore, in the interest of justice, it is the duty of this Court u/s. 482, Cr. P. C, to go into the merits of the evidence and appreciate correctly the documents and the statements filed by police. Both the statements of Ramjilal were on the record, but, it seems that either the trial court did not read both of them, or it has not been able to understand the difference in both those statements, and merely because the police had submitted the statement recorded u/s. 161, Cr. P. C. dated 14th Sept. ,'85 it framed charges against the petitioners. The learned counsel for the complainant, who is assisting the State in this petition, has cited certain case laws. Here, I would straightway like to say that there is no dispute about the principles laid down by Hon'ble the Supreme Court, but, what I find is that these rulings do not apply to the present case, and hence. they are of no assistance to the prosecution. Every ruling is based on the particular facts of that case. There cannot be two cases of similar facts. In Mohd, Akbar Dar Vs. State of Jammu & Kashmir (1), their Lord-ships have observed that the High Court need not enter into meticulous conside-rations of evidence and material at that stage.
(3.) IN the present case, the stage was of framing charge. I have gone through the above judgment of Hon'ble the Supreme Court, which is a very small judgment, and therein, it has been observed: "both the trial and the High Court have generally given a brief survey of the evidence sought to be adduced against the appellants. It is true that the High Court has not gone into the details or the pros and cons of the matter. This was obviously because that is not the stage when the court could enter into meticulous consideration of the evidence and materials. The High Court has clearly observed that after perusing the statement of the witnesses recorded u/s. 161, it was unable to find that charges could be said to be ground-less. " IN view of the above principle, their Lordships in that case have observed that regarding meticulous consideration, the High Court need not worry about it, but certainly, the statements recorded u/s. 161, Cr. P. C. should be looked into; and if from those statements, the High Court comes to the conclusion that it is not sufficient evidence to frame charge, then, certainly it can interfere in the order of framing charge. The above ruling, however, does not say that this Court is not empowered to enter into the correctness of the statements recorded u/s. 161, Cr. P. C. or that in no circumstance, the High Court should interfere in the orders of framing charge. Another case relied upon by Mr. Gupta was the case of State of Bihar Vs. Ramesh Singh (2 ). This case was also of the stage of framing charge and the accused was discharged. The State, thereafter, preferred an appeal, and then, the matter came before Hon'ble the Supreme Court. In this case, their Lordships observed as under: "at that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or where the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But, at the initial stage if there is a 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. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before, it is challenged in cross-examination or rebutted by the defence-evidence if any, cannot show that the accused committed the offence, then, there will be no sufficient ground for proceeding with the trial. If the scales of pan as to the guilt or innocence of the accused are some thing like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But, if on the other hand, it is so at the initial stage of making an order under S. 227 or 228, then, in such a situation, ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227. " The principle laid down in this case, is thus, not helpful to the prosecution. It does not say that the statements recorded are not to be scrutinized by the Court while framing charge; and if the evidence adduced by the prosecution proves the guilt of the accused, and that is challenged in the cross-examination of the witnesses or rebutted by the defence evidence and it cannot show that the accused has committed any offence, then, there will be no sufficient ground for proceeding with the trial. In the present case, there are two statements of Ramjilal recorded u/s. 161, Cr. P. C. This witness is a star-witness. One, i. e. , the earlier statement does not disclose any conspiracy of murdering Satish. Even his second statement recorded on 14th Sept. , '85, which gives no complete story about a conspiracy, if read minutely and in detail, does not entangle the accused persons in this case. Therefore, the case of Ramesh Singh (supra) also is of no help to the prosecu-tion. ;