# Shivam Tiwari v. State of U.P. & Anr

- **Citation:** (2021) 7 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** Criminal Appeal No. 1265 of 2020
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-tiwari-v-state-of-u-p-anr-47100
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860-Sections 323,504,506 &
SC/ST Act-Section 3(1)(d)(dha)-seeking
bail-rejection-accused
casted
abusive
words and inflicted injury to the son of
complainant-six injuries with hard and
blunt object was found in the medical of
the
complainant's
son
who
was
handicapped-prima
facie
sufficient
material is available on the record against
the accused- no irregularity found in the
order passed by the trial court at the stage
of framing charge.(Para 1 to 14)

B. At the stage of section 227, the judge
has merely to sift the evidence in order to
find out whether or not there is sufficient
ground
for
proceeding
against
the
accused.charge may although be directed
to be framed when there exists a strong
suspicion but it is also trite that the court
must come to a prima facie finding that
there
exist
some
materials
therefor.
suspicion alone, without anything more,
cannot form the basis therefor or held to
be sufficient for framing charge.(Para 9 to
11)

The appeal is rejected. (E-5)

List of Cases cited:

## Text

36 INDIAN LAW REPORTS ALLAHABAD SERIES

46. Let a copy of this judgment be
sent
to
the
trial
court
concerned
forthwith.
----------
(2021)07ILR A36
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 1265 of 2020

Shivam Tiwari ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Kaushal Tiwari

Counsel for the Respondents:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860-Sections 323,504,506 &
SC/ST Act-Section 3(1)(d)(dha)-seeking
bail-rejection-accused
casted
abusive
words and inflicted injury to the son of
complainant-six injuries with hard and
blunt object was found in the medical of
the
complainant's
son
who
was
handicapped-prima
facie
sufficient
material is available on the record against
the accused- no irregularity found in the
order passed by the trial court at the stage
of framing charge.(Para 1 to 14)

B. At the stage of section 227, the judge
has merely to sift the evidence in order to
find out whether or not there is sufficient
ground
for
proceeding
against
the
accused.charge may although be directed
to be framed when there exists a strong
suspicion but it is also trite that the court
must come to a prima facie finding that
there
exist
some
materials
therefor.
suspicion alone, without anything more,
cannot form the basis therefor or held to
be sufficient for framing charge.(Para 9 to
11)

The appeal is rejected. (E-5)

List of Cases cited:

1. P. Vijayan Vs St of Ker. & ors. ( 2010) 2 SCC
1398

2. Soma Chakravarty Vs St.(2007)AIR SC 2149

3. Sajjan Kumar Vs C.B.I. JT (2010) 10 SC 413

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

As
per
report
of
CJM,
Ambedkarnagar dated 04.03.2021, notice
was duly served on respondent no.2 but no
one has put in appearance on his behalf.

2. This criminal appeal has been filed
by the appellant against the judgement and
order dated 07.10.2020 passed by learned
Special Judge, SC/ST Act, Ambedkarnagar
in SC/ST Case No.107 of 2019, Crime
No.0125 of 2019, under Sections 323, 504,
506 IPC & Section 3(1)(d)(dha) of SC/ST
Act,
P.S.-
Malipur,
District-
Ambedkarnagar.

3. The brief fact of the case is that
according to the prosecution story, the
complainant namely Udayraj lodged the
F.I.R. on 11.06.2019 with allegation that
the son of the complainant, Amarjeet who
is handicapped was going to Malipur for
repairing his bicycle. When he reached near
Budhawa Baba temple, then one Shivam
Tiwari, S/o Jagdish Tiwari started casting
abusive words and when the son of the
complainant objected, then the accusedappellant inflicted injury to him. The F.I.R.
was lodged against the accused-appellant
under Sections 323, 504, 506 IPC. During
investigation, the son of the complainant,
7 All. Shivam Tiwari Vs. State of U.P. & Anr.
37
Amarjeet was examined medically on
13.06.2019 and following injury was found
on the body of the injured:

1. Contusion of size 3.0cm x
2.0cm present on partial region of skull,
4.0cm above from Lt. ear. Colour- Bluish
Black.

2. Contusion of size 3.0cm x
1.2cm present on Lt. deltoid region.
Colour- Bluish black.

3. Abraded contusion of size
6.0cm x 2.8cm present on dorsal aspect of
Rt. index finger.

4. Abrasion of size 1.5cm x
1.0cm present on dorsal of Rt. middle
finger, 2.5cm below from back of Rt.
middle finger. Colour- Reddish brown scab
present.

5. Contusion of size 4.0cm x
1.5cm present on dorsal aspect of Rt. thigh,
15.0cm above from Rt. knee joint. Colour-
Bluish black.

6. Abrasion of size 3.0cm x
2.0cm present on front of Rt. knee joint.
Colour- Reddish brown scab present.

Opinion- All injuries are simple
in nature caused by any hard and blunt
object, duration about 2-4 days old.

4. Learned counsel for the appellant
submits that the investigating officer
without collecting the credible evidence
wrongly submitted the charge-sheet and
learned trial court without applying judicial
mind convicted the accused-appellant.
Learned counsel further submits that earlier
the appeal was filed by the appellant in
which he got interim protection to move
application for discharge under Section 227
Cr.P.C. before the trial court. But the
learned trial court without hearing the
accused-appellant wrongly rejected the
discharge application filed under Section
227 Cr.P.C. and summoned the accusedappellant.

5. The main contention of the learned
counsel for the appellant is that the
appellant is innocent and has falsely been
implicated due to parti-bandi. Learned
counsel
further
submits
that
the
complainant is a local leader of ruling party
and he always doing the local politics and
in the Lok Sabha election, he made
pressure upon the villagers to cast their
votes in favour of ruling party candidates,
but the appellant opposed the activities of
the complainant and denied to cast his and
his family votes in favour of the ruling
party.

6. Learned counsel further submits
that the complaint against the accusedappellant is frivolous and no offence is
made out against the appellant. Therefore,
the accused-appellant may be granted bail.

7. Learned AGA opposes the prayer
for grant of bail to the accused-appellant
and submits that after collecting the
credible evidence, the investigating officer
submitted the charge-sheet. It is also
transpired from the injury report, six
injuries were inflicted on the body of son of
the complainant, Amarjeet. Therefore, the
bail application of the accused-appellant is
liable to be rejected.

8. I have heard learned counsel for the
parties and perused the record. It transpires
that the investigating officer after collecting
the sufficient evidence submitted the
charge-sheet against the appellant. On
perusal of the entire record, I am of the
view that inference cannot be drawn that no
38 INDIAN LAW REPORTS ALLAHABAD SERIES
offence is made out against the appellant.
Prima facie, sufficient material against the
appellant is available on record and the
allegation shall be tested when the
prosecution witnesses are examined before
the court.

9. The Hon'ble Supreme Court in the
judgment passed in the matter of "P.
Vijayan vs. State of Kerala and Ors.
reported in 2010 (2) SCC 1398 " held that
:-

"10. Before considering the
merits of the claim of both the parties, it is
useful to refer Section 227 of the Code of
Criminal Procedure, 1973, which reads as
under:-

"227.
Discharge.-
If,
upon
consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this
behalf, the Judge considers that there is
not sufficient ground for proceeding
against the accused, he shall discharge the
accused and record his reasons for so
doing."

If two views are possible and one
of them gives rise to suspicion only, as
distinguished from grave suspicion, the
trial
Judge
will
be
empowered
to
discharge the accused and at this stage he
is not to see whether the trial will end in
conviction or acquittal. Further, the words
"not sufficient ground for proceeding
against the accused" clearly show that the
Judge is not a mere post office to frame
the
charge
at
the
behest
of
the
prosecution, but has to exercise his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution. In
assessing this fact, it is not necessary for
the court to enter into the pros and cons of
the matter or into a weighing and
balancing of evidence and probabilities
which is really the function of the court,
after the trial starts.

11. At the stage of Section 227,
the Judge has merely to sift the evidence
in order to find out whether or not there is
sufficient ground for proceeding against
the
accused.
In
other
words,
the
sufficiency of ground would take within its
fold the nature of the evidence recorded by
the police or the documents produced
before the court which ex facie disclose
that there are suspicious circumstances
against the accused so as to frame a
charge against him.

(12) The scope of Section 227 of
the Code was considered by this Court in
the case of State of Bihar vs. Ramesh
Singh, wherein this Court observed as
follows:-

"4. ... 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. The
presumption of the guilt of the accused
which is to be drawn at the initial stage is
not in the sense of the law governing the
trial of criminal cases in France where the
accused is presumed to be guilty unless
the contrary is proved. But it is only for
the purpose of deciding prima facie
whether the Court should proceed with the
trial or not. 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
crossexamination or rebutted by the defence
7 All. Shivam Tiwari Vs. State of U.P. & Anr.
39
evidence, if any, cannot show that the
accused committed the offence, then there
will
be
no
sufficient
ground
for
proceeding with the trial"

This Court has thus held that
whereas strong suspicion may not take
the place of the proof at the trial stage,
yet it may be sufficient for the
satisfaction of the trial Judge in order
to frame a charge against the accused.

10. In a recent decision, in Soma
Chakravarty vs. State, AIR 2007 SC
2149 this Court has held that :-

"The settled legal position is
that if on the basis of material on
record the court could form an opinion
that the accused might have committed
offence it can frame the charge, though
for
conviction
the
conclusion
is
required
to
be
proved
beyond
reasonable doubt that the accused has
committed the offence. 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.... Before framing a
charge the court must apply its judicial
mind on the material placed on record
and
must
be
satisfied
that
the
commission of offence by the accused
was possible. Whether, in fact, the
accused committed the offence, can only
be decided in the trial. (Para 11)

Charge
may
although
be
directed to be framed when there exists
a strong suspicion but it is also trite
that the Court must come to a prima
facie finding that there exist some
materials therefor. Suspicion alone,
without anything more, cannot form the
basis therefor or held to be sufficient
for framing charge."

11. Apart from the aforesaid cases,
in the case of Sajjan Kumar vs. Central
Bureau of Investigation, JT 2010(10)
SC 413, the Apex Court has formulated
the following guidelines with regard to
the question as to how a matter for
framing a charge against the accused is
to be dealt with:

"(i)
The
Judge
while
considering the question of framing the
charges under Section 227 of the Cr.P.C.
has the undoubted power to sift and
weigh the evidence for the limited
purpose of finding out whether or not a
prima facie case against the accused has
been made out. The test to determine
prima facie case would depend upon the
facts of each case.

ii) Where the materials placed
before the Court disclose grave suspicion
against the accused which has not been
properly explained, the Court will be
fully justified in framing a charge and
proceeding with the trial.

iii) The Court cannot act merely
as a Post Office or a mouthpiece of the
prosecution but has to consider the broad
probabilities of the case, the total effect
of the evidence and the documents
produced before the Court, any basic
infirmities etc. However, at this stage,
there cannot be a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducting a trial.

iv) If on the basis of the
material on record, the Court could form
an opinion that the accused might have
committed offence, it can frame the
charge,
though
for
conviction
the
40 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion is required to be proved
beyond reasonable doubt that the accused
has committed the offence.

v) At the time of framing of the
charges, the probative value of the
material on record cannot be gone into
but before framing a charge the Court
must apply its judicial mind on the
material placed on record and must be
satisfied that the commission of offence
by the accused was possible.

vi) At the stage of Sections 227
and 228, the Court is required to evaluate
the material and documents on record
with a view to find out if the facts
emerging therefrom taken at their face
value discloses the existence of all the
ingredients
constituting
the
alleged
offence. For this limited purpose, sift the
evidence as it cannot be expected even at
that initial stage to accept all that the
prosecution states as gospel truth even if
it is opposed to common sense or the
broad probabilities of the case.

vii) If two views are possible
and one of them gives rise to suspicion
only,
as
distinguished
from
grave
suspicion,
the
trial
Judge
will
be
empowered to discharge the accused and
at this stage, he is not to see whether the
trial will end in conviction or acquittal."

12. The aforesaid decisions have
almost settled the legal position that at
the stage of charge the court is not
required to consider pros and cons of the
case and to hold an enquiry to find out
truth. Marshaling and appreciation of
evidence is not in the domain of the court
at that point of time. What is required
from the court is to sift and weigh the
materials for the limited purpose of
finding out whether or not a prima facie
case for framing a charge against the
accused has been made out. Even in a
case of grave or strong suspicion charge
can be framed. The court has to consider
broad probabilities of the case, total
effect of the evidence and the documents
produced including basic infirmities, if
any. If on the basis of the material on
record, the court could form an opinion
that the accused might have committed
offence, it can frame the charge, but the
court should not weigh the evidence as if
it were holding trial. Accused can be
discharged only when the charge is
groundless. In my opinion, the learned
Special Judge, SC/ST Act has taken into
account all the relevant materials and
passed the impugned order keeping in
view the parameters laid down by the
Apex Court in the aforesaid cases.
Therefore, the submission of the counsel
for the appellant that no charge was made
out has no substance.

13. Since prima facie evidence
against the appellant is available, it
cannot be said that the impugned order
dated 07.10.2020 is devoid of merit. The
said order is legal and based on evidence
available against the appellant. There is
no irregularity, illegality or perversity in
the impugned order dated 07.10.2020
passed by learned Special Judge, SC/ST
Act.

14. In view of the above, the appeal
is accordingly rejected.

15. However, if the accusedappellant is surrendered before the court
below, his bail application shall be
decided in accordance with law.

16. A copy of this order be
communicated to the trial court for
necessary compliance.
----------
7 All. Ramanand @ Nandlal Bharti Vs. State of U.P.
41
(2021)07ILR A41
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.07.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1959 of 2016

Ramanand @ Nandlal Bharti ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Jail Appeal, Rajesh Kumar Dwivedi

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-challenge
to-conviction-accused
committed
preplanned and premeditated murder of his
wife and 4 minor children with banka and
thereafter
buried
the
deadbodies
by
pouring kerosene oil in the mid-nightaccused had developed illicit relationship
with other woman and wanted to marry
her-no eye witness of the incident nor
previously convicted-the case is based on
circumstantial evidence- the testimony
furnished by PW-1,PW-2, recovery of
banka, motive of murdering the deceased,
post mortem report, blood stained cloth of
the accused, report of FSL, all shows the
intention of accused-trial court rightly
convicted the accused-the instant case
falls in the category of 'rarest of rare
case'-death sentence awarded to the
appellant is confirmed.(Para 1 to 110)

The appeal is dismissed. (E-5)

List of Cases cited:

1. Marudanal Augusti Vs St. of Ker. (1980)
SCC (Cri) 985

2. Aher Raja Khima Vs St.of Saurashtra(1956)
AIR SC 217

3. Harjit Singh & ors. Vs St.of Punj.(2002) AIR
SC 3040

4. Joydeb Patra & ors. Vs St. of W. B.(2013) 3
JIC 548 SC

5. Najeem Miyan Vs St. of U.P.(2020) 3 JIC 125

6. Manoj Suryavanshi Vs St. of Chhattisgarh
(2020) 2 JIC 491 SC

7. Vijay Kumar Vs St. of J&K (2019) 107 ACC
731 SC

8. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) AIR SC 1622

9. Golakonda Venkateswara Rao Vs St. of A. P.
(2003) AIR SC 2846

10. Ombir Singh Vs St. of U.P. & ors. (2020) AIR
SC 2609

11. St. of Karnataka Vs Suvarnnamma (2015) 88
ACC 317

12. Zahira Habiullha Sheikh (5) Vs St. of Guj.
(2006) 3 SCC 374

13. Balwinder Singh Vs St. of Punj.(1995) Supp.
4 SCC 259

14. Pakkirisamy Vs St. of T.N[ (1997) 8 SCC 158

15. Kavita Vs St. of T.N. (1998) 6 SCC 108

16. St. of Raj. Vs Raja Ram(2003) 8 SCC 180

17. Aloke Nath Dutta Vs St.of W.B.(2007) 12
SCC 230

18. Sansar Chand Vs St. of Raj. (2010) 10 SCC
604