Vishwanath Kumbhkar Alias Bishwanath Kumbhkar Vs. The State of Jharkhand and Anr - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No.841 of 2013 ------------ Vishwanath Kumbhkar @ Bishwanath Kumbhkar, Son of Late Khadu Kumbhakar, Resident of Asanbani, P.O.-Chandra, P.S.-Siyaljori, District-Bokaro, Jharkhand ... ... … Petitioner Versus 1. The State of Jharkhand 2. Kiran Devi, Daughter of Sri Rohan Rajwar, Resident of Asanbani, P.O.-Chandra, P.S.-Siyaljori District-Bokaro, Jharkhand ... ... ... Opp. Parties ------------ CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA For the Petitioner : Mr. Naveen Kumar Jaiswal, Advocate For the State : A.P.P. For the O.P. No.2 : Mr. Asit Baran Mahata, Advocate Mr. Mahesh Kumar Mahto, Advocate ------------ C.A.V. ON:

26. 08.2015 PRONOUNCED ON:- 26.11.2015 Challenge in this revision application is to the order dated 06.08.2013 passed by learned Additional Sessions Judge-II, Bokaro in S.T. No.220 of 2013 arising out of Chas (Muffasil) P.S. Case No.149 of 2012 instituted under Sections 376/511 of the Indian Penal Code whereby and whereunder the petition filed by the petitioner for his discharge under Section 227 of the Code of Criminal Procedure (in short ‘the Code’), has been rejected.

2. Bereft of unnecessary details, the facts which are necessary to be stated are that at the instance of the informant Kiran Devi, the aforesaid case was instituted with the allegation that on 16.12.2012 at about 7.00 p.m. while she was returning from her duty, the petitioner- Nepal Kumbhakar and one Bishwanath Kumbhakar, who were known to her from before the incidence, came on motorcycle and intercepted and caught hold the informant and came down from motorcycle. Both the above persons with an intention to commit rape thrashed her and torn her dress and threatened not to raise alarm. The accused persons also threatened of dire consequence if she raises alarm but ignoring their threatening she raised alarm whereafter several persons hearing her voice assembled near the place of occurrence. The accused persons thereafter fled away. 2 Cr. Revision No.841 of 2013 3. After completion of investigation, the police submitted the charge-sheet under the aforesaid Sections and accordingly cognizance was taken. Thereafter, the case was committed to the court of Sessions where a petition for discharge was filed by the present petitioner but the same was rejected by the court below by the order impugned holding that there is sufficient ground to frame charge against the accused persons.

4. Learned counsel appearing for the petitioner while assailing the order impugned as perverse and bad in law, seriously contended that the court below failed to appreciate the evidence available on record in right perspective and that in different Paragraphs of the case diary it has come during investigation that at the time of alleged occurrence the petitioner was at his work place at Satabdi Project, Barora Area, BCCL and a certificate was also issued by Engineer In-charge and the petitioner was falsely implicated in this case on the basis of the previous enmity between the parties. It was also contended that none of the elements responsible to constitute the offence under Sections 376/511 of the Indian Penal Code is available on record and there is absolutely no evidence to show the complicity of this petitioner in the alleged offence but the court below without considering those evidence, rejected the petition for his discharge by the order impugned.

5. Refuting the above submissions, Mr. Mahto, learned counsel appearing for the opposite party no.2 contended that the court below while rejecting the prayer for discharge of the petitioner rightly held that the plea of alibi taken by the petitioner shall be considered during trial and the truthfulness as of such evidence cannot be judged at this stage. It was also submitted that at this stage meticulous examination of the evidences available on record and roving enquiry of the pros and cons is not permissible.

6. Before adverting to the rival submissions of the learned counsels, I feel it necessary to examine the scope of Section 227 of the Code. True it is that at the time of consideration of the application for 3 Cr. Revision No.841 of 2013 discharge, the court cannot act as mouth piece of the prosecution or act as post office and may shift the evidence in order to point out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar Vs. CBI; (2010) 9 SCC368wherein the Hon’ble Supreme Court has observed in Para 19 as under:

“19. It is clear that at the initial stage, if there is 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves 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.” In another case Rajiv Thapar & Ors. V. Madan Lal Kapoor; (2013) 3 SCC330 similar issue was involved and the Hon’ble Supreme Court while dealing the discharge petition in a complaint case, held in Paragraph-28 as follows:- “This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some 4 Cr. Revision No.841 of 2013 suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has leveled allegations bringing out all ingredients of the charge(s) leveled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations leveled, trial must be held”.

7. Apparently, in view of the above two decisions it can easily be inferred that at the stage of either framing of charge or discharge of accused, the court has not make any roving enquiry into the allegations or meticulously examine the material on record or to evaluate the truthfulness or otherwise the allegations leveled in the First Information Report. At this stage, even if accused is successful in showing some suspicion or doubt, it would be impermissible to discharge the accused before trial because it would result in giving finality to the accusations leveled by the victim or informant without allowing the prosecution to adduce evidence to substantiate the same.

8. In the instant case, the court below while considering discharge petition of the petitioner, appreciated the evidence in right perspective and has also disclosed those evidences available on record and found prima facie case against the petitioner. I have also gone through different Paragraphs of the case diary and found that several accused persons have disclosed the name of this present petitioner and fully supported the prosecution version. The court 5 Cr. Revision No.841 of 2013 below has rightly held that the truthfulness of the plea of alibi taken by the petitioner can be appreciated only during trial. I firmly differ with the argument advanced on behalf of the petitioner that there is no legal evidence against the petitioner so as to array him in the alleged offence.

9. In view of the discussion made above, I do not find any merit in this revision application. This revision application is, accordingly, dismissed. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 26th November, 2015 Anit/N.A.F.R.