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2001 DIGILAW 125 (JK)

Sohan Lal v. State Of J. &K.

2001-06-16

O.P.SHARMA

body2001
JUDGMENT 1. The fact giving arise to this petition under section 561 (A) of Code of Civil Procedure areas under: - A case under section 302/201/34 R.P.C. came to be registered in Police Station Nowabad, Jammu on 16.11.1999. In this report Mst. Channo Devi, mother of the deceased Garu Ram alleged that her son whose dead body was cremated on 24.08.1999 did not die his natural death. Instead, on the contrary, he was hit on the head by Vaishno Bera (A-2). Since the deceased became unconscious after receipt of injury, A-2 shifted him to Government Medical College, Hospital, Jammu on the night of 23.08.1999, where he was treated for head injury. It was only because of the statement made by A-2 that the deceased had died of the injury which was suffered due to fall from the house stair. 2. Thus, the police for the first time informed, that how the deceased had died on 24.08.1999. During the investigation, statement, of number of witnesses came to be recorded. However, all of them not being relevant a reference will be made to the statements of PW No. 1, Mst Channo Devi, PW-2, Girdhari Lal, PW-3, Polu Ram, PW-2, Bodh Raj, PW-5 Khadru Ram, PW-6, lal Chand, PW-7 Mst. Poll Devi, PW-8, Rita Devi, PW-11, Madal lal and PW-12, MangatRam. 3. Both accused were sent up for trial on the charge of murder and destruction of evidence of murder punishable under section 302/ 201 RPC. The trial court framed the charge against both of them. The trial court after considering the document referred to under section 173 Cr.P.C. and hearing the prosecution and accused, framed the charge against both of them under section 302/201, RPC, vide its order dated 21.11.2000. 4. The petitioner challenges the order on the ground that the charge is ground less, because there is no evidence connecting him with the crime. The contention of Mr. Bhat appearing for him that the only evidence against the accused in recovery of weapon of offence at the instance of A-1. this recovery was, however, argued, the learned counsel for the petitioner does not connect A-2 with the crime, since there is no direct evidence. Admittedly, the occurrence had taken place in the presence of both the accused, -as alleged by the prosecution. this recovery was, however, argued, the learned counsel for the petitioner does not connect A-2 with the crime, since there is no direct evidence. Admittedly, the occurrence had taken place in the presence of both the accused, -as alleged by the prosecution. There is no circumstance connecting the revision petitioner with the crime because no one had seen the deceased either being attacked or being in the company of the accused. The charge, therefor, has wrongly been framed and the same, according to Mr. Bhat, is liable to be quashed. Mrs. S. Hakim, GA on the other hand defended the order. According to her, even grave suspicion is sufficient to frame the charge. 5. Before, approaching the facts of the case, the scope of section-258 Cr.P.C may be appreciated. It reads as under: - "Section-268. 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 prosecuting in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing". 6. This section corresponding to section 227 of the Cr.P.C (Central code). The Supreme Court in the case reported as Naranjan Singh Karm Singh Punjabi Vs, Jaitendra Bhimraj Bijja, AIR 1990 SC 1962, while considering the scope of section 227 Cr.P.C, 1973 (Central), laid-down the following proposition: "After considering the case law on the subject, this court deduced as under: - 1. That the Judge while considering the question of framing the charges under Section 227 of the code 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. 2. 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. 3. 2. 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. 3. The test to determine a prime facie case would naturally depend upon the facts of each case and it in difficult to lay down a rule of universal application, Buy and large however if two views are equally possible and the judge is satisfied that the evidence accused before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused. 4. That in exercising the Jurisdiction under section 227 of the code the Judge which (Sic) under the present code is senior and experienced Judge cannot act merely as a post office or a mouth-piece 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 appearing in the case and so on. This, however, does not means that the Judge should male a roving enquiry into the pros and cons of the mater and weigh the evidence as if he was conducting a trial". 7. The question arises as to whether the case of the petitioner falls under proposition (1) and (2) or (3) and (4). The trial court, while framing the charge appears to have applied the proposition (1) and (2). 8. As already noticed, there is no direct evidence available. The only evidence available on record is disclosure statement of A-1 leading to the recovery of G.I. pipe. The investigating officer, it appears, that he was influenced by the statement of PW-4, Bodh Raj. According to this witness, he noticed the injury on he head of the deceased at the time, when the dead body was given the bath. He, therefore, suspected that the deceased might have been killed. Later on, he met A-2 and asked him to disclose the real facts. On this, A-2 told him that on the night of 23.08.1999 a quarrel has taken place between A-1 and the deceased and both grappled with each other, in the course of this, A-1, picked up a piece of G.I. pipe and hit the deceased on the head due to which he died. On this, A-2 told him that on the night of 23.08.1999 a quarrel has taken place between A-1 and the deceased and both grappled with each other, in the course of this, A-1, picked up a piece of G.I. pipe and hit the deceased on the head due to which he died. He further stated that A-2 concealed this fact and put the family members of the deceased on a wrong track. However, even, if the statement of this witness is believed without his cross-examination, neither of the accused can be convicted because of the statement made by A-2 exculpatory and, therefore, cannot be read against A-1. So, the statement of PW-4, Bodh raj does not implicate the accused. Same is the evidence of other witnesses. Assuming that the deceased and A-2 had gone to commit theft of cement from the house under construction, where A-1 was the night Watchmen, unless, A-2 had admitted his participation in the crime, his statement cannot be read against A-1. Since, the only fact disclosed by him to PW-4, Bodh Raj was that a quarrel took place between the deceased and A-1, during which latter hit the former with G.I. pipe which resulted into his death, it is evidence against A-1, because the petitioner A-2 has not involved himself. At best, he could have been a witness but the prosecution agency decided otherwise. Therefore, in his enthusiasm to rope in both the accused it lost a valuable piece of evidence against A-1. Since, it is not extra-judicial confession because A-2 has not involved himself, therefore, the evidence of PW-4, Bodh Raj and all those witnesses including (Bodh Raj) is not a evidence. 9. This brings us to recovery of weapon of offence. The weapon of offence in this case is G.I. Pipe. It was not found stained with blood. It, thus, cannot be traced to the crime. Moreover, even, if it was found stained with blood, yet the same would have been compared with the blood of the deceased as no blood samples were obtained. Not only this, even postmortem report is not available, because it was not conducted. In the absence of this, the cause of death cannot be ascertained. No doubt, the deceased was treated in Govt. Not only this, even postmortem report is not available, because it was not conducted. In the absence of this, the cause of death cannot be ascertained. No doubt, the deceased was treated in Govt. Medical College Hospital, Jammu but the only evidence available is that he had injury on his head and that he was bleeding from nostrils, besides swelling of the left eye. As per the certificate of the Doctor, it was reported that the deceased has suffered the injury by fall after consuming some alcohol, who took him to the hospital is not maintained. So the prosecution story that A-2 took the deceased to hospital is not proved, because no evidence is brought on record to establish this fact. Thus, the deceased was not last seen with the accused. This is no evidence that he was hit by A-1 and the weapon of offence has not been traced of the crime as it was not found stained with blood. Since, there is no direct evidence, the circumstances do not connect him. Therefore, the trial court was not justified in framing the charges. In the absence of direct evidence, circumstantial evidence must be such which would lead to the only hypothesis that the accused alone is guilty of committing the offence as laid down by the supreme court in the case reported as Gambhir vs. State of Maharashtra, AIR 1982 SC 1157 which reads as: - "The law regarding circumstantial evidence is well-settled. When a case reach upon the circumstantial evidence, such evidence must satisfy three tests; (1) the circumstances from which an inference of guilt in south to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the quilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence". 10. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the quilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence". 10. It is unfortunate that investigating office (Police Officer) in his enthusiasm to solve mystery of death of Gary Ram has sent up the accused fro trial when there was no iota of evidence against them. So, the charge against the accused persons is groundless because entire evidence collected by the prosecution is inadmissible besides being unreliable. Therefore, this petition is allowed and the charge against A-2 shall stands quashed. 11. The next question arises as to whether the trial court should continue against A-1. However, since there is no evidence against A-1 also, therefore, to continue the trial would be abuse of the process of the court and also waste of the time of the court as held in Satish Mehra vs. Delhi Administration & anr, 1996 (3) Crimes 85 (SC) which reads as under :- "13. But when the judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the sessions courts in India are under heavy pressure of work load. If the sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of section 227 of the code itself." 12. So in exercise of the inherent jurisdiction, the charge against A-1 is also quashed and both the accused are discharged. They released for with.