- (1.) This revision has been filed against the order dated 20.01.2005 passed by Vlth Additional Sessions Judge, Hazaribagh in Sessions Trial No. 355 of 2004, whereby he rejected the application of petitioners under Section 227 of the Code of Criminal Procedure and concluded that prima facie offence under Section 302 of the I.P.C. is made out. It is submitted by Sri H.K. Shikarwar, learned counsel for the petitioners, that there is absolutely no evidence to show that petitioners committed the present crime. It is submitted that the petitioners were charge-sheeted merely on suspicion. It is further submitted that though two sisters of deceased claimed that they will identify the culprit, if they would be shown to them, but no test identification parade conducted to establish the involvement of petitioners in the present crime. Accordingly, it is submitted that in the absence of any legal evidence petitioners are entitled to be discharged as per provisions contained under Section 227 of Code of Criminal Procedure.
(2.) On the other hand, Smt Anita Sinha, learned Additional P.P. referred paragraph Nos. 21, 22, 23, 25, 32, 33, 45, 52 & 119 of the case diary to show that there are circumstantial evidence against petitioners from which it can be inferred that petitioners had committed murder of informant's son. Accordingly, it is submitted that the Court below had rightly rejected application of petitioners under Section 227 of the Code of Criminal Procedure.
(3.) Having heard the submissions, I have gone through the record of the case. Admittedly, first information report was lodged by the father of deceased, wherein no allegations made against petitioners. Rather, in the first information report informant (father of deceased) categorically stated that deceased was driving the maruti van in rash and negligent manner and because of that maruti van dashed with a stone causing injury to deceased. In the first information report, it is not stated that two sisters of deceased also accompanied him to the clinic of Dr. Manoj Jain. However, from perusal of statements of two sisters of deceased at paragraph Nos. 21 & 22 of the case dairy, I find that they claimed to have accompanied deceased to the clinic of Dr. Manoj Jain and during that period they came to know that in the afternoon deceased along with petitioners Ranjan Prajapati and Durgesh Gupta went to tea stall for taking tea. Apart from that, they did not state anything against the accused persons. It further appears sisters of deceased claim that they could identify culprits, if shown to them, but unfortunately, T.I. Parade not conducted, thus, whether these petitioners are involved in the present crime or not had not been established. At paragraph Nos. 23 & 24 of the case diary, two brothers of deceased only cast suspicion against petitioner Ranjan Prajapati. The informant (father of deceased) in his subsequent statement, at paragraph No. 25 of the case dairy, also cast suspicion on petitioners. Paragraph No. 46 of the case diary reveals that I.O. gathered some confidential information showing involvement of petitioners in the present crime. However, LO. did not disclose source of aforesaid information. Thus, materials available at paragraph No. 46 of the case diary is no evidence. Now coming to paragraph No. 52 of the case diary, one of the brother of deceased states that he came to know that petitioners had committed present crime, but this witness also did not disclose source of his information. Thus, his evidence at paragraph No. 52 of the case diary is not admissible being hit by Section 60 of the Evidence Act. At paragraph No. 119 of the case diary, a girl namely Manila also cast suspicion against accused persons. Thus, from perusal of entire case diary, I find that save and except suspicion, there is absolutely no legal and positive evidence against the accused persons. It is well settled that suspicion howsoever stronger it may be, cannot take the place of evidence. In my view, merely on suspicion. petitioners cannot be tried for the murder of deceased Rahul Gupta. In view of discussions made above, I find material illegality and/or irregularity in the impugned order of the Court below. Thus, the same cannot be sustained. Accordingly, this revision is allowed and impugned order is set aside. The Court below is directed to make fresh inquiry and pass order in accordance with law.;