Case Note & Summary
The case arose out of a criminal revision application filed under Section 397 of the Code of Criminal Procedure, 1973, challenging an order dated 24 April 2019 by which the Additional Sessions Judge, Greater Bombay, refused to discharge the applicant, accused no.4, in Sessions Case No.471 of 2018. The applicant was the mother of accused no.1, who was prosecuted along with three others for the murder of Shamim Ashfaq Khan. The deceased was the first husband of accused no.1, and the prosecution alleged that on 31 January 2015, accused no.1 and her second husband dealt a blow on the deceased's head and strangulated him in a flat at Gautam Nagar. The body was then carried in a plastic sack by accused no.2 and accused no.3 and burnt at a dumping ground at Shivaji Nagar. A post-mortem report revealed asphyxia following burn with ligature marks around the neck, leading to registration of Crime No.61 of 2015 under Sections 302 and 201 of the Indian Penal Code, 1860. Initially, a final report was filed on 28 April 2015 against accused nos.1 to 3. Subsequently, on a writ petition filed by a witness seeking reinvestigation, the trial court directed further investigation under Section 173(8) of the Code of Criminal Procedure, 1973, by order dated 16 May 2016. In the further investigation, statements of thirteen witnesses were recorded, and the complicity of the applicant, mother of accused no.1, was allegedly disclosed. A supplementary charge-sheet was filed against the applicant in March 2018. The applicant sought discharge under Section 227 Cr.P.C. on the ground that the material against her was insufficient and did not show any prima facie case. The prosecution opposed discharge by relying on Call Detail Records (CDR) showing contact between the applicant and accused no.1 before and after the incident, and on the statements of two witnesses: Shampuri Goswami, a neighbour, and Asma Khatun Khan, another neighbour. The applicant argued that the statements did not implicate her and that the CDRs only showed routine family communication. The court examined the statements and found that Shampuri Goswami's statement actually stated that the applicant was never seen at Nagma's house, so it was kept out of consideration. Asma Khatun Khan's statement was recorded nearly twenty-four months after the incident, in February 2017, and contradicted her earlier account that she came to know about the incident only when police enquired with her in February 2015. She stated she had seen the applicant at Nagma's house on the day of the incident, but this contradicted her earlier assertion of having learned about the incident only later. The court therefore found this evidence unreliable at the prima facie stage. Regarding the CDRs, the court observed that calls between mother and daughter could not be said to be material disclosing complicity in the crime. Applying the principles laid down in State of Karnataka v. L. Muniswamy, State of Maharashtra v. Som Nath Thapa, and Rajbir Singh v. State of Uttar Pradesh, the court held that at the stage of framing charge, the court must see whether there is sufficient ground for presuming that the accused has committed the offence, and probative value cannot be gone into, but mere suspicion is not enough. The material placed before the court gave rise only to suspicion, not grave suspicion, and there was no sufficient ground to proceed against the applicant. Accordingly, the revision was allowed, the impugned order was quashed and set aside, and the applicant was discharged.
Headnote
A) Criminal Procedure - Discharge/Framing of Charge - Sufficiency of Ground for Proceeding - Code of Criminal Procedure, 1973, Sections 227, 228 - The court evaluated whether material on record, if unrebutted, could lead to conviction, following State of Karnataka v. L. Muniswamy and Ors, State of Maharashtra v. Som Nath Thapa; at charge stage, probative value cannot be gone into but accusations must not be frivolous and some material must exist - Held that the material against the applicant raised only suspicion, not grave suspicion, and was insufficient for discharge to be refused (Paras 8-11). B) Evidence - Evaluation of Witness Statements at Discharge Stage - Contradictory and Belated Neighbour Testimony - Code of Criminal Procedure, 1973, Section 227 - Statement of Asma Khatun Khan recorded about twenty-four months after incident contradicted earlier assertion that she came to know of incident only after police enquiry in February 2015; court kept it out of consideration as unreliable at prima facie stage - Held that such contradictory material does not provide sufficient ground to presume the applicant committed the offence (Paras 6, 10-11). C) Criminal Law - Complicity Evidence through Call Detail Records - Family Member Communication Insufficient - Indian Penal Code, 1860, Sections 302, 201, 212; Code of Criminal Procedure, 1973, Section 227 - Calls between the applicant and her daughter accused no.1 before and after incident did not disclose complicity in murder; routine family calls cannot establish participation - Held that CDR evidence alone was insufficient and the applicant was discharged (Paras 6, 10-11).
Issue of Consideration
Whether there is sufficient ground for proceeding against the applicant under Sections 227 and 228 of Cr.P.C. based on material in charge-sheet; whether CDR and belated witness statement establish prima facie case for offences under Sections 302, 201, 212 IPC.
Final Decision
Revision allowed; impugned order dated 24 April 2019 quashed and set aside; applicant discharged. Rule made absolute.
Law Points
- Section 227 Cr.P.C. permits discharge if no sufficient ground for presuming accused committed offence
- At stage of framing charge probative value of materials cannot be gone into
- Purpose of Sections 227 and 228 Cr.P.C. is to ensure accusations not frivolous and some material exists
- Mere suspicion not enough
- grave suspicion required for proceeding
- Call detail records between family members alone insufficient to show complicity
- Belated statement contradicting earlier version to be kept out of consideration
