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2010 DIGILAW 532 (JK)

Kartar Singh v. Pawan Kumar

2010-10-20

J.P.SINGH

body2010
JUDGMENT (1) DEALING with the Final Police Report filed under Section 173 of the Code of Criminal Procedure, by the Station House Officer, Police Station, Reasi, indicating Pawan Kumar alias Thoru and Ashok Kumar alias Shama, guilty of committing the murder of Joginder Singh son of Kartar Singh, in view of the investigation carried out in FIR No. 234/2009 registered at Police Station, Reasi under Sections 307/34 RPC, the learned Sessions Judge, Reasi, discharged the accused-respondent under Section 302 RPC, finding a case only of culpable homicide not amounting to murder, punishable under Sections 304 Part-I/34 RPC, made out against them, vide his order of April 3,2010. (2) KARTAR Singh complainant and the State of Jammu and Kashmir have questioned the Sessions Judge's order, by their separate Revision Petitions. Learned counsel for the revision petitioners contended that the learned Sessions Judge, Reasi, the trial Court, had committed an error of law, in omitting to appreciate the material placed on records by the prosecution, in support of its case, and adopt requisite approach, contemplated by law, to appreciate the facts and material, in terms of the provisions of Sections 268 and 269 of the Code of Criminal Procedure and the discharge of the respondents was, therefore, liable to be set aside and quashed. (3) SUPPORTING the order, impugned in the Revision Petitions, the respondents learned counsel submitted that there being no irregularity or error of law in the order, it warranted no interference in Revision, as the facts projected by the prosecution would not suggest a case for charge under Section 302 RPC. Learned counsel submitted that in view of the facts and circumstances of the case, Pawan Kumar too was entitled to bail, which had been erroneously denied to him by the trial Court. (4) SUBMISSIONS of learned counsel for the parties have been considered in the light of the trial Court records. The facts leading to the filing of these Petitions in revision, may be stated thus : The complainant and the accused respondents have been stated (sic) in litigation over a land dispute, in the Courts, for the past five years. They had their shops facing each other at village Ransoo of District Reasi. The facts leading to the filing of these Petitions in revision, may be stated thus : The complainant and the accused respondents have been stated (sic) in litigation over a land dispute, in the Courts, for the past five years. They had their shops facing each other at village Ransoo of District Reasi. (5) KARTAR Singh complainant and his son Joginder Singh, have been experiencing hardship in their customers and their reaching the Hotel, which they were running in their shops, because of the interference of the respondents, and, there had been, in this regard, at times, even hot exchanges between them. (6) IT was pursuant to the old enmity, that; on December 14, 2009, Kartar Singh and Joginder Singh had kept shingle, Bajri, outside their shops, which they had lifted from the plot of land in dispute, to construct Shelves in the Hotel, that at about 5 p.m., Pawan Kumar and Ashok Kumar appeared there and started abusing them. Ashok Kumar caught hold of Joginder Singh and pushed him down in the drain nearby. Joginder Singh, rescued him and was in the process of standing up, when, in the meanwhile, Pawan Kumar respondent, hit him with a spade, Belcha, on his head, as a result whereof, he fell down and later succumbed to the injuries in the Hospital. The Postmortem Report placed on records of the trial Court with the final Police Report, reveals the deceased to have suffered following ante-mortem injuries :- (1) A lacerated wound over left side of frontal scalp 2" x 1/2." (2) A lacerated wound over left side of frontal part of scalp 3" x bone deep x 1", underline bone fracture. (3) Black eye left ecchymosis (4) Right temporal region having an abrasion 1' x 1/2' The cause of death shown in the Postmortem Report indicates Joginder Singh to have died "due to injury to head and brain substance". (7) THE trial Court, after appreciating the statements of the witnesses examined under Sections 161 and 164-A Cr. P. C, the material on records, and referring to the case law, cited before him, observed as follows :- "Though the parties were having dispute, but there is no material that earlier fights have taken place between them or various criminal cases have been instituted by the complainant and accused party against each other, though the case is pending regarding dispute in the Reasi Court. THE accused though have come together and abused the complainant initially. THE complainant's son Joginder Singh has objected to the abuses given by the accused to his father, when fight ensued between the accused Ashok Kumar and Joginder Singh deceased, who is said to have been thrown into the ditch by accused Ashok Kumar and when he tried to free himself from him, the co-accused Pawan Kumar inflicted a blow of the spade on his head, as a result of which he fell on spot and was later on hospitalized, but breathed his last on the way"........ ......... "Though it is not clear from the report and the accompanying documents as to what act the accused Ashok Kumar played, while the accused Pawan Kumar inflicted spade blow on the head of deceased, so as to rope him under Section 34, but the sum total of evidence irrespective of the part played by him, points to the fact that he is a participant criminise and the deceased thrown into the ditch by him in the first instance." "In the second phase, the accused Pawan Kumar has attacked him with spade and the injury inflicted on the deceased has caused fracture on his head, leading to haemorrhagic heamatoma and death thereafter. All this has happened at the spur of the moment. Neither of the accused was armed with any weapon when they reached on spot. THEre has been no joint attack in the initial spell of occurrence when accused Ashok Kumar threw him in a ditch and in the subsequent stage, it is accused Pawan Kumar, who had taken spade in his hand and attacked him on his head. THEre has been a single blow. Though the parties were having dispute, but the present occurrence as reflected, does not show that accused initially attacked the deceased with intend (intent) to cause his death." "THE offence has to be evaluated on the basis of degree of probability of causing death of the deceased and the degree of probability does not seem to be of superlative degree to bring it within the four corners of Section 300 thirdly or fourthly, punishable under Section 302 RPC." "THE injury inflicted has been caused with intend (intent) to cause a bodily injury, likely to cause death of the deceased by the accused Pawan Kumar. THE nature of injury determines the culpability and the same is serious enough to cause the death of the deceased under greater probability than what is submitted by the defence counsel. THE same falls under Section 299 fourthly punishable under Section 304 Part-1 RPC." (8) AT the stage of considering the prosecution case for charge or discharge of the accused, the trial Courts are not required to sift, weigh and appreciate the prosecution evidence and the material placed on records by the prosecution in support of its case and all that, they, at this stage, are required to find, is as to whether or not, a case for proceeding against the accused was made out on the basis of the Final Police Report, the statements of the witnesses recorded during the investigation, the material placed on records and sought to be produced during the trial, in support thereof. And in case there was no material to support the indicated charge, to discharge the accused, if the charge against him was found groundless, spelling out reasons, disclosing its mind, in support thereof. The probative value of the material on records, need not be gone into, at this stage, for it is to be accepted as true while considering the case for charge or discharge. The defence of the accused is not considered, at this stage, unless, however, accepting the prosecution case, as projected, and taking the material placed in support thereof, in its entirety, on its face value, the defence of the accused was writ large therefrom. (9) ON finding sufficient ground for proceeding against the accused, the trial Court may, for limited purpose, to find, as to what particular offence(s), the accused was prima facie, found to have committed, sift and weigh the material relied upon by the prosecution. There is, however, a caveat to it. The parameters which a Court is required to keep in mind in coming to the conclusion regarding the offence(s), found to have been, prima facie, committed by the accused, are not, however, the same which the Court so follows while deciding the case finally, after sifting, appreciating and evaluating, the prosecution and the defence evidence and the material in support of their respective case. (10) THUS, considered in the light of what has been indicated herein above, it becomes apparent, that while passing the order of discharge against the respondents, the trial Court had exceeded its jurisdiction, entering the arena of sifting, weighing and appreciating the prosecution evidence and the material placed by it on records, as if it was deciding the case finally. Besides that, the observations made to justify its conclusion to discharge the respondents under Section 302 RPC, are found contradictory and illegal. (11) AFTER having recorded its finding that "the injury inflicted has been caused with intent to cause a bodily injury, likely to cause death of the deceased by accused Pawan Kumar. The nature of injury determines the culpability and the same is serious enough to cause the death of the deceased under greater probability than what is submitted by the defence counsel", the trial Court was not right in saying that "the same falls under Section 299 (300) fourthly punishable under Section 304 Part-I RPC". This is so because :- (1) the permissible parameters, required to be kept in view, at the time of framing charge or considering discharge, would not permit, such deeper appreciation, as has been done by the trial Court, to find as to whether or not the prosecution case was covered by Exception Four(4), for finer and deeper distinction, could be contemplated only after the prosecution had been allowed opportunity to lead evidence, in that, it is only after thorough consideration of the statements of the witnesses, recorded during the trial, indicating the detailed account of the occurrence, looking to their evidence from various angles, and the background indicating the relationship of the assailant and the deceased, that the Court may be able to come to the conclusion as to whether or not the act committed was without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. (2) Because no reasons or for that matter, requisite judicial finding, has been recorded by the trial Court, as to how the prosecution case would, prima facie, fall under Section 304 Part-I RPC. (2) Because no reasons or for that matter, requisite judicial finding, has been recorded by the trial Court, as to how the prosecution case would, prima facie, fall under Section 304 Part-I RPC. (12) THAT apart, no reasons have been spelt out by the trial Court, to hold that the offence found to have been prima facie committed by the respondents does not fall within the four comers of Section 300 punishable under Section 302 RPC. It hardly needs emphasis that while considering the question of charge or discharge of the accused, the prosecution case is required to be examined and evaluated, in its entirety, for discharge or charge of the accused, relying only on part(s) of the evidence and the material placed by the prosecution on records for reliance, may not be permissible. (13) THE observations of the trial Court that "there has been a single blow", too is not supported by the Postmortem Examination Report which indicates the deceased to have received more than one injury in the incident. (14) EVEN otherwise, it is not only the number of injuries, which determines the culpability. Various factors are required to be taken into consideration, inter alia, including the impact of the injury and the intention with which it had been so caused, while considering as to whether or not any particular offence was found to have been committed by the accused. The intention to cause death, may develop even on the spur of the moment and to examine such type of questions, the Court would need before it, the whole gamut of the prosecution evidence and the detailed account furnished by the witnesses regarding the occurrence, to appreciate the case set up by the prosecution against the accused. (15) WHILE considering the case for charge or discharge of the accused in the major offence, the Courts are not required to enter into deeper appreciation of the facts particularly where the cause of death is/are the injuries received by the deceased, for such a course may defeat the intention of law and interests of justice, if the accused, in the ultimate analysis, after the prosecution and defence had led their evidence, was found to have committed the major offence, for which he was discharged at the initial stage. (16) THEREFORE, on finding that the injuries received by the deceased had resulted in his death; the Courts have to ordinarily charge the accused for the major offence, unless however, a strong case admitting of no other course other than that of charging the accused for the lessor offence had been undoubtedly made out. The sum total of the above discussion, therefore, indicates that the discharge of the respondents under Section 302 RPC, was unjustified and against law. The prosecution case, therefore, needs examination by the trial Court afresh, in accordance with law. (17) THESE Revision Petitions, therefore, succeed and are allowed setting aside Order dated 3-4-2010 of the trial Court directing it to examine the prosecution case afresh for framing appropriate charge against the respondents for the offences, which may, prima facie, appear to it to have been committed by them, on the basis of the evidence and the material placed on records by the prosecution in support of its case. (18) IN view of the orders passed on the Revision Petitions, the respondents learned counsel's plea for admitting Pawan Kumar to bail needs no consideration, at this stage. Ordered accordingly. (19) TRIAL Court records be sent back forthwith. Order accordingly.