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2011 DIGILAW 428 (JK)

Sham Singh and ors. v. State of J&K and anr.

2011-08-24

J.P.SINGH

body2011
1. Suram Chand, a temporary employee of the Power Development Department of the State Government, was laying Electric Lines on the newly Erected Pole after switching off the Electric Current at the Transformer, on April 30, 2009 at village Achhar, when Abdul Majid, an employee of the same Department, who was not posted in that area, switched on the Electric Current, as a result whereof, Suram Chand was electrocuted. FIR No. 75 of 2009 was registered in this respect at Police Station, Banihal. 2. During the course of investigation of the case, it transpired that the deceased had given money to Abdul Majid to seek regularization in service, which, however, did not mature and the deceased had been demanding the money back from Abdul Majid, which he was avoiding. 3. According to the evidence collected during investigation of the case, Abdul Majid had switched on the Electric Current despite having been cautioned not to do that as Suram Chand was busy laying the electric lines on the Pole. Mr. Abdul Majid is alleged to have switched on the Electric Current to save himself from the liability of paying Rs. 40,000/- to the deceased which he had taken from him to facilitate his regularization in service. The Investigating Agency, ultimately, came to the conclusion that a case for commission of offence punishable under Section 304 Part-II RPC was proved against Abdul Majid. 4. Learned Sessions Judge, Ramban found a prima facie case under Section 304 Part-II RPC made out against Abdul Majid and charged him accordingly. 5. The complainant has approached this Court by his Petition under Section 561-A Cr. P. C seeking modification of the charge urging that the learned Sessions Judge had erred in omitting to frame Charge under Section 302 RPC which was, prima facie, made out on the basis of the evidence collected by the Investigation. 6. Abdul Majid has also approached this Court for his release on bail pending trial. 7. P. C seeking modification of the charge urging that the learned Sessions Judge had erred in omitting to frame Charge under Section 302 RPC which was, prima facie, made out on the basis of the evidence collected by the Investigation. 6. Abdul Majid has also approached this Court for his release on bail pending trial. 7. Learned Sessions Judge does not appear to have taken into consideration the evidence collected during investigation of the case which suggests that the accused, who was a permanent employee of the Power Development Department, had reasons to believe that his act of switching on the Fuse of the Transformer, would result in escape of high voltage Electric Energy, which was likely to result in causing such bodily injury to the deceased, which was likely to cause his death. It is also in the evidence that the place where the deceased was working on the electric Pole was visible to the accused. 8. Before considering as to whether the case projected by the prosecution on the strength of the evidence collected by the prosecution, justified grounds, for presuming that the accused had committed the offence of Culpable Homicide amounting to Murder or Culpable Homicide not amounting to Murder, the learned Sessions Judge was required to keep in mind the provisions of Section 300 RPC and various Sub Clauses appearing thereunder, to come to the right conclusion as to what charge needed to be framed against the accused. 9. Learned Sessions Judge does not appear to have taken note of the provisions of Clause fourthly of Section 300 RPC and her omission so to do has resulted in an error apparent on the face of records which if not corrected would result in failure of justice. 10. The order passed by learned Sessions Judge without considering as to whether or not the provisions of Clause fourthly of Section 300 RPC was attracted in the facts and circumstances of the present case, cannot, therefore, be sustained. 11. The trial Court is required to examine the matter again. 12. This Petition, therefore, succeeds and is, accordingly, allowed setting aside learned Sessions Judge Ramban's Order of December 16, 2010. The case is remanded to the trial Court for framing such Charge(s) against the accused, as warranted under law, on the material relied upon by the prosecution. 13. 11. The trial Court is required to examine the matter again. 12. This Petition, therefore, succeeds and is, accordingly, allowed setting aside learned Sessions Judge Ramban's Order of December 16, 2010. The case is remanded to the trial Court for framing such Charge(s) against the accused, as warranted under law, on the material relied upon by the prosecution. 13. Looking to the seriousness of the Charge and the stage when the prosecution evidence has yet to be examined, it may not be appropriate to consider the petitioner's release on bail at this Stage. 14. No case for admitting him to bail has, therefore, been made out at this stage. 561-A Cr.P.C No. 5/2011 and Bail Application No. 9/2011 are disposed of accordingly.