Vikramjit Kakati vs The State Of Assam

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)

JUDGMENT

Rastogi, J.

1. Leave granted.

2. The instant appeal is directed against the order passed by

the High Court of Gauhati dated 3rd 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

under Section 227 Cr.P.C.

Date: 2022.08.04 17:49:59 IST Reason:

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3. The seminal facts relevant for the purpose are that on 28 th

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.

4. The learned trial Judge initially by order dated 21 st June,

2012, after hearing learned counsel for the appellant, came to the

conclusion that there is prima facie case against him and others

and fixed 17th July, 2012 as the next date of hearing for framing 2 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

Jahanara Islam and the appellant by the order dated 17th July,

2012.

5. The revision preferred by the appellant against framing of

charge came to be dismissed by the High Court under the order

impugned dated 3rd 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

3 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 &

Another1, which has been further reiterated by this Court in the

recent judgment in M.E. Shivalingamurthy v. Central Bureau

of Investigation, Bengaluru2 and discerned the following

principles:

1 (2010) 2 SCC 398 2 (2020) 2 SCC 768

5 “17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. 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 offence, 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 rise to the grave suspicion.

17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.”

11. Taking into consideration the aforesaid legal principles, if

we consider the facts of the present case, it reveals from the

perusal of charge­sheet and other material available on record

that the investigating officer has not brought even prima facie

material in the charge­sheet as to what was the motive on the

6 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

at about 5.30 a.m. on 22 nd 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

7 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

8 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

sheet on 30th 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

9 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

by the High Court of Gauhati dated 3rd December, 2021 as well

as the order dated 21st 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.

10 …………………………J. (AJAY RASTOGI)

.………………………… J. (C.T. RAVIKUMAR) NEW DELHI August 04, 2022.

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