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2001 DIGILAW 336 (JK)

State Of J. &K. v. Mir

2001-12-24

S.K.GUPTA

body2001
1. Heard Mr. Baldev Singh, learned Government Advocate, Nobody appeared for the respondent. 2. Considering the facts and circumstances of the case, I propose to dispose of this Criminal Revision even without the appearance of the respondents advocate. 3. This Revision is directed against the order passed by learned Session Judge, Rajouri dated 29.09.1999. By the aforesaid order, the learned Session Judge has framed the charge against accused, Mir, for offence under Section 304 Part - II RPC instead of offence under Section 302/ 447 RPC, in which the challan was presented. 4. With a view to highlight the grievances of the State, a few relevant facts deserve to be noted at the outset. A verbal report came to be lodged by Ghulam Hussain, Complainant, with Police Station, Thanna Mandi, to the effect his real nephew, accused Mir, who was on inimical terms with him over a partition of a landed property and armed with a lathi clandestinely trooped into the land of complainant on 10.04.1999 at 10.00 a.m. and started hurling abuses on Mst. Nikki, who was grazing buffaloes in the said land. The accused thereafter gave a lathi blow to Mst. Nikki and caught hold of her from her hair and pushed her down to a considerable distance, as a result of which, Mst. Nikki fell on the ground and sustained head injury. Mst. Nikki, in injured condition, was removed to her house where she could not withstand to her injuries and cost her breath. This led to the registration of a case for offence under Sections 302/447 RPC and investigation ensued. On the conclusion of the investigation, challan against the accused, Mir, came to be presented before the Judicial Magistrate, First Class, Kala Kote, who committed the same to the Sessions Judge, Rajouri, who vide his impugned order dated 29.09.1999 discharged the accused for offence under Sections 302/447 RPC and charged him under Section 304 Part - II RPC. On the conclusion of the investigation, challan against the accused, Mir, came to be presented before the Judicial Magistrate, First Class, Kala Kote, who committed the same to the Sessions Judge, Rajouri, who vide his impugned order dated 29.09.1999 discharged the accused for offence under Sections 302/447 RPC and charged him under Section 304 Part - II RPC. Aggrieved by this order, the petitioner-State impugned its correctness before me in this Revision on the following grounds: "(a) There was a cogent evidence by virtue of which a prima-facie case is made out against the accused for charge sheeting him under section 302 and not under Sec. 304 and the learned Session Judge by discharging the respondent/accused Sec. 302 and charging the under Sec. 304 has greatly prejudice the case of the prosecution and cause a great injustice so far as the complainant side is concerned which as such requires the setting aside of the said order, (b) That it is a well settled principle of law that when a challan is produced for the commission of major offence then best course for the court is to charge the accused person for offence major offence because of the fact that after producing the evidence if it appealed to the court that the offence is not made out under major offence then accused person can be punished for the minor offence without being charge sheeting for it. This aspect not being followed by the Id. Sessions Judge has resulted into a order of charging the accused under section 403 and riot under Sec. 304 requires the said order to be set aside being illegal and against the provisions of law. That the learned Sessions Judge at the initial stage of framing charges has thoroughly appreciated the evidence of the prosecution which also has greatly prejudiced the case of the prosecution." 5. Mr. Baldev Singh, learned counsel, during his arguments in reiterating the grounds contended that there was copious evidence to frame the charge under Section 302 RPC. That the learned Sessions Judge has over-looked the cogent evidence sufficient to make out prima facie charge against the accused. That the Court has appreciated the evidence of the prosecution case at the time of framing the charge, which has greatly prejudice their case and the order being legally lacunic deserves to be set aside. 6. That the learned Sessions Judge has over-looked the cogent evidence sufficient to make out prima facie charge against the accused. That the Court has appreciated the evidence of the prosecution case at the time of framing the charge, which has greatly prejudice their case and the order being legally lacunic deserves to be set aside. 6. The scope of the powers of a Sessions Judge under Section 227 has been laid down by the Supreme Court in case State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018, and held that the standard of test and judgment, which is to be applied at the end of the case, is not to be exactly applied at the stage under sections 227 and 228; if at the initial stage, there is a suspicion against the accused, it is not open to the Court to say that there is no sufficient ground to proceed against the accused. The Honble Supreme Court has again reaffirmed in case Union of India vs. Prafulla Kumar Samal and another, AIR 1979 SC 336 that the criterion to frame the charges is: 7. "Whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be inquired into." 8. The question of framing charge under a particular section depends on the facts and circumstances of that particular case, in broad aspect, the court has to consider as to whether there is sufficient material collected by the Investigation Agency, which discloses prima facie case to frame a charge. It is not of consideration before the court as to whether the case would result in the conviction or acquittal, and therefore, neither it is obligatory nor expected of the court to consider in detail and weigh in sensitive balance the evidence collected by investigation or recorded. 9. At the stage of Section 227 and 228, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, 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. The Court may, 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. Therefore, at the stage of framing charges, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage of framing the charge where the scope of consideration is whether there is sufficient evidence to presume that the accused has committed that offence. 10. Adverting to the facts of the case, the narration of the occurrence projected in the FIR by the Complainant, Ghulam Hussain, is that the accused, Mir. animated with criminal intention, intended to liquidate, forced his entry into the land, where Mrs. Nikki was grazing buffaloes, started showering abuses and gave a blow with lathi and thereafter held Mrs. Nikki from her hair and threw her down at a considerable distance, as a result of which, she sustained grievous injuries on her head and died soon after. 11. The doctor, who conducted autopsy on the dead body of the deceased found the following injuries: Bone deep lacerated would on the scalp over the rt. Parietal area. Scalphair matted with clotted bid. Bone deep lacerated wound over rt. Parietal area (Rt. Parietal bone). Extradural Haematoma (Rt.). 12. 11. The doctor, who conducted autopsy on the dead body of the deceased found the following injuries: Bone deep lacerated would on the scalp over the rt. Parietal area. Scalphair matted with clotted bid. Bone deep lacerated wound over rt. Parietal area (Rt. Parietal bone). Extradural Haematoma (Rt.). 12. The learned Sessions Judges seems to have been assuaded by the evidence of the eye witnesses recorded under Section 166 Cr.PC by the investigating Officer, wherein it is stated that the accused inflicted fists and kicks blows to the deceased and thereafter caught hold her from her hair and pushed down on the ground where certain stones were lying causing head injury and on account of this mens-rea on the part of the accused is absent, on which the Sessions judge formed his opinion that the accused appears to have inflicted blows and pushed the deceased down to a considerable distance abruptly in the heat of passion and, therefore, it was a case of culpable homicide not amounting to murder contemplated under Section 304 Part - II RPC and not under Section 302 RPC. It is significant to point out that the entire approach of the Sessions Judge is illegal and erroneous. It appears that instead of considering the prima facie case: the Sessions Judge has appreciated and weighed the material on record in coming \o the conclusion that no charge under Section 302 RPC could be framed. It is settled law that at the stage of framing the charge, the Court is not required to enter in roving enquiry and vveigh and sift the evidence for the purpose of finding out if that evidence was sufficient to record the conviction of the accused. The statements of the witnesses, to whom he has referred to are yet to appear during trial and tender evidence and it is at that time that the facts can be got explained by reference to the First Information Report and other material appearing on the record. The witnesses and the Investigating officer have yet to explain on the touch-stone of the cross-examination about the accused having inflicted a lathi blow on the head or the deceased and thereafter caught hold of her from her hair and threw her down at the considerable distance with the purposive intent to kill her. The witnesses and the Investigating officer have yet to explain on the touch-stone of the cross-examination about the accused having inflicted a lathi blow on the head or the deceased and thereafter caught hold of her from her hair and threw her down at the considerable distance with the purposive intent to kill her. It is no stage of estimating and evaluating the evidence as to what is described in the FIR and what part is missing in the evidence of the witnesses whose evidence is yet to be tested on the touch-stone of the cross-examination during trial. At this stage, the court has only to be prima facie satisfied on the ground of prima facie proceedings against the accused. For this limited purpose, the Court can evaluate material and documents on record. It cannot appreciate the evidence as has been done by the Session Judge in the present case. The stage is yet to come during trial after recording the evidence to formulate an opinion as to whether it was a case of culpable homicide not amounting to murder or a clear case of murder in appreciating and evaluating the evidence. Reading the provisions of sections 227 and 228 together in juxtaposition, it would be clear that the truth, veracity and effect of the evidence, which the prosecution proposed to adduce are not to be meticulously adjudged at the stage of framing the charge, nor any weight attached to the probable defence to be put forth by the accused. But at the initial stage, if there is a strong suspicion, which leads the court to think that there is a 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 scope of scrutiny being limited for the purpose of finding out whether or not a prima facie case against the accused has been made out. Section 227 of the Cr.PC itself provides limited scope of enquiry for the purpose of discharging the accused. The provisions clearly envisaged that the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The prime ground contemplated by this provision is not a ground for conviction, but a ground for putting the accused on trial. The provisions clearly envisaged that the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The prime ground contemplated by this provision is not a ground for conviction, but a ground for putting the accused on trial. It is the guilt or innocence of the accused is to be determined in the trial and not at the stage of framing the charge. The Court is, therefore, not required to sift and weigh the material and undertake an elaborate enquiry or dwell upon various other aspects required to be looked into only in trial. 13, Considering the facts and circumstances of the case discussed above, the learned Sessions Judge, in my view, has resorted to scrutiny of the evidence, weighed and evaluated beyond the limited purpose of finding out a prima facie case as contemplated under Sections 227 and 228 of the Criminal Procedure Code. It has, thus, rendered the impugned order legally lacunic and resulted in flagrant miscarriage of justice. Consequently, I allow the Revision Petition and set aside the order dated 29.09.1999 passed by Sessions Judge. The Sessions Judge is directed to frame the charges against the accused under the Provisions of Section 302 RPC and proceed with the trial against the accused as expeditiously as possible. The bail granted by the Session Judge for commission of offence under Section 304 Part-II shall stand cancelled.