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2015 DIGILAW 284 (JK)

State of J&K v. Kaisar Ahmad Ganai

2015-06-01

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. On 16th of May 2014, after election result for parliamentary constituency, Baramulla was announced and candidate of a particular political party declared elected, a public rally was arranged by the supporters of the elected candidate from Kalaroos to celebrate the result. When the rally reached Dogripora Kalaroos a few fire crackers were bursted, near the house of Sarpanch of the village who happened to be member of the opposite political party. Bursting of fire crackers led to exchange of hot words between rival groups, though without any major incident. The controversy died down after the rally proceeded towards village Thaine, where it was to conclude. However, tempers seemingly remained high. Sometime after the rally crossed Dogripora, as per the prosecution case, one Mohammad Ashraf-respondent No. 7 in the present petition, a sympathizer of the elected candidate, while returning to his home at Dogripora in his Maruti car, was allegedly attacked by a group of people near the house of Sarpanch. His Maruti Car got damaged in stone pelting. He however, managed to leave the car and run for safety from the place of occurrence. Sometime thereafter, the rally on its return from Thaine reached Dogripora and few participants from the rally on being informed that Mohammad Ashraf had been attacked and his car damaged, allegedly pelted stones at the residential house of the Sarpanch. When Mohammad Shafi Ganai brother of Sarpanch, came out to intervene and ask miscreants not to indulge in stone pelting, stones were pelted on him resulting in serious injuries to him. Shri Ali Mohammad Ganai respondent No. 3 allegedly threw a stone at the head of the injured. He fell down in an injured condition and laid on the ground in a pool of blood for some time. He was later moved to hospital at Kupwara and thereafter to SKIMS where he breathed his last on 25.05.2014. It is alleged that the stone pelters did not allow the injured to be taken to the hospital and by doing so made his condition to worsen, that ultimately resulted in his death due to the injuries sustained in the attack. 2. The occurrence was reported by Mehraj-ud-Din Ganai brother of deceased to Police post Kalaroos. The report led to registration of case FIR No. 94 of 2014 under section 307, 147, 148, 149, 336 RPC at Police Station Kupwara. 2. The occurrence was reported by Mehraj-ud-Din Ganai brother of deceased to Police post Kalaroos. The report led to registration of case FIR No. 94 of 2014 under section 307, 147, 148, 149, 336 RPC at Police Station Kupwara. The offence under section 307 was converted into one punishable under section 302 RPC after the injured breathed his last at SKIMS Soura on 25.05.2014 i.e. ten days after the occurrence. The investigation culminated in a charge sheet allegedly commission of offence u/s. 307, 147, 148, 149, 336 RPC against respondents 1 to 17. It was presented before the magisterial court on 16.07.2014. The case was committed to the court of Sessions Judge Kupwara on 16.07.2014 itself. 3. Ld. Sessions Judge, Kupwara upon consideration of record of the case, documents submitted with the charge sheet and after hearing the accused and Special Public Prosecutor appointed by the Government vide SRO 18 dated 16.01.2012, opined that there was ground for presuming that respondent have committed offence punishable under section 304 (II), 148, 149, 336, 323, 427 RPC and that there was sufficient ground for proceeding against the respondents. Ld. Trial Judge accordingly charged respondents of the offences punishable under sections 304 (ii), 148, 149, 336, 323, 427 RPC. The Trial court in other words took a prima facie view that the respondents in furtherance of common object of unlawful assembly convened by them, attacked the deceased with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. The respondents, therefore, were charged of "third degree murder" as against the "first degree murder" alleged in the charge sheet i.e. offence punishable under section 304 (II) as against the offence punishable under Section 302 alleged in the charge sheet. 4. Petitioner is brother of the deceased and complainant in case FIR No. 94/2014 P/S Kupwara. It is at his instance that the police machinery was set into motion, a case registered, investigation conducted and charge sheet laid before the competent court. He aggrieved with the order dated 04.02.2015 whereby the respondents were formally charged of the offence punishable under section 304(II), 148, 149, 336, 323, 427 RPC, seeks quashment of the order, in exercise of inherent powers of the court under section 561-A Cr. He aggrieved with the order dated 04.02.2015 whereby the respondents were formally charged of the offence punishable under section 304(II), 148, 149, 336, 323, 427 RPC, seeks quashment of the order, in exercise of inherent powers of the court under section 561-A Cr. P.C. Petitioner's case is that the order impugned in effect amounts to discharging respondents of the offences punishable under section 302 RPC and therefore would call for intervention of court in exercise of its inherent powers. Exercise of inherent powers, is said to be necessary to prevent miscarriage of justice. 5. Petitioner questions the trial court order broadly on the following grounds: "(i) That the Trial court delved deep into the material collected by the Investigating Officer and embarked on an exercise to sift and analyze material, as if the trial court was to return a finding of involvement of the respondents in the alleged occurrence and hold them guilty of offences alleged against them. (ii) That the trial court at the initial stage was only to take an over view of the record of the case to find out whether there was sufficient reason to proceed against the respondents and not to find out whether respondents had committed the offence alleged against them. (iii) That the trial court while passing the impugned order ignored the case law relied upon by the Special Public Prosecutor including State v. S.B. Johari 2000 Legal Eagle (SC) 111, State v. Dev Raj & others 2006(1) JKJ 78 : SLJ 2006 83 and Ranjodh Singh v. State & others 2011 (4) JKJ 471 [HC] authoritatively laying down that trial court at the initial stage is not to marshal the material or make a roving enquiry or weigh evidence as such an exercise is to be left to the final stage of the trial, after the evidence is recorded. (iv) That the trial court failed to appreciate that in view of law laid down on the subject, even a strong suspicion is to lead the court to frame the charge and that material pointing to such suspicion, was conveniently ignored by the trial court." 6. I have gone through the petition, the order impugned order as also the trial court record. I have heard counsel for the parties at length. 7. I have gone through the petition, the order impugned order as also the trial court record. I have heard counsel for the parties at length. 7. The fate of petition on hand hinges on scope and ambit of enquiry contemplated under sections 268, 269 Cr.P.C. it is to be examined whether Ld. Trial Judge while dealing with the matter has over stepped his jurisdiction and embarked on enquiry at the threshold to an extent not permissible under law or perusal of record of the case is limited to parameters laid down under law. In case it is found that Ld. Trial Judge has examined the matter within the four corners of law, it is next to be seen whether the conclusions drawn on such examination, are possible or deducible from the record of the Case. 8. The argument advanced by Ld. Counsel for the parties on either side, are in tune with and elaborates case set up by them respectively. While Mr. Bhat assisted by Mr. M.A. Pandit Special Public Prosecutor, insists that Ld. Trial Judge has travelled far beyond scope of enquiry required to be undertaken at the stage of framing charge and that had the enquiry been restricted to true meaning and scope of section 268 and 269 Cr.P.C., the respondents would have been formally charged of offence punishable under section 302 Cr. P.C. it is contended by Ld. Counsel for the respondents that enquiry made, is strictly in accordance with the mandate of section 268, 269 and that the view taken by Ld. Trial Judge finds support from charge sheet and the material appended there to. 9. Ld. Counsel for the parties to buttress their arguments have extensively referred to case law on the subject. Mr. Bhat places reliance on (2000) 2 SCC 57 , (2003) 8 SCC 625 , (2012) 9 SCC 460 , AIR 2014 SC 782 . Mr. Qayoom, on the other hand seeks to draw support from AIR 1976 SC 28, AIR 1977 SC 45 , (1995) (1) SC 1956, AIR 2001 SC 3973 , (2012) 9 SCC 512 , AIR 2013 SC 52 . It is not be necessary to reproduce the law laid down in each and every reported case cited at bar, as the principles laid down find reference in subsequent case law and have been quoted with approval, or distinguished on facts. It is not be necessary to reproduce the law laid down in each and every reported case cited at bar, as the principles laid down find reference in subsequent case law and have been quoted with approval, or distinguished on facts. This apart the principles laid down, are likely to be referred wherever necessary in the course of the judgment. 10. Chapter XXIII Cr. P.C. Svt. 1989 deals with trial before a court of sessions. Sections 267, 268 and 269 are relevant to the present controversy and need to be noticed. "Section 267. Opening case for prosecution: When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 205-D the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 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 prosecution 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. Section 269. Framing of charge: (1) if, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to who a case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police report,] (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 11. (2) Where the Judge frames any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 11. The expression "consideration", "no sufficient ground for proceeding" appearing in section 268 of the Code and the expression "as aforesaid" and " ground for presuming that accused has committed.....offence" in section 269 of the Code are of pivotal importance for the present discussion and required to be dealt with in some detail. 12. The meaning of word "consideration" according to Oxford English Dictionary is "careful thought", a fact taken into account while making a decision." The meaning given in Webster Dictionary is "the act of thinking carefully about something you will make a decision about", "continuous and careful thought", "the matter weighed or taken into account while formulating the opinion or plan". The trial Judge is required under Section 268 and 269 Cr.P.C. to "consider" the record of the case and the documents submitted therewith. Having regard to the choice of expression "consideration" made by law makers, it is sufficiently clear that the trial Judge while arriving at a conclusion in terms of Section 268 and 269 Cr.P.C. has to give a "careful thought" to the material and weigh the material for the limited purpose of deciding whether there is sufficient ground for proceeding against the accused. The expression "sufficient ground" would mean a prima facie case and include a strong suspicion of involvement of the accused in alleged offence. It is to be examined "whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime". Once the trial Judge after giving careful thought to the record and documents is of the opinion that there is no sufficient ground for proceeding against the accused, the accused is to be discharged for the reasons recorded in support of the conclusion. In case, the trial Judge is of the opinion that there is sufficient ground for proceeding against the accused, it is also to find out the offences, the accused is to be presumed to have committed and frame charge against the accused accordingly. 13. In case, the trial Judge is of the opinion that there is sufficient ground for proceeding against the accused, it is also to find out the offences, the accused is to be presumed to have committed and frame charge against the accused accordingly. 13. It follows that the trial Judge on receipt of chargesheet from committing Magistrate and after the Public Prosecutor opens his case by describing the charge brought against the accused and the evidence proposed to be adduced to prove guilt of the accused, is to apply his mind to the record of the case and the documents submitted therewith to arrive at an objective decision, whether accused is to be sent for trial and on what charge. The trial Judge is not to act in a mechanical manner and take whatever is alleged as final word and frame charge against the accused. It has to take its own independent decision based on the objective appraisal of the record of the case and the documents submitted therewith. However, he has not to assess and evaluate such material so as to conclude whether accused has committed offences alleged against him at the threshold. The trial Judge is not to declare the accused guilty or otherwise. The object of limited assessment and the evaluation of the material, is not to find out whether the accused has committed the offences but whether the accused having regard to material available on record, might have committed the offences alleged against him. 14. The object and the extent of the enquiry expected to be made by the trial Judge has been a subject of discussion in a number of reported cases before various High Courts and the Supreme Court. The Apex Court in Shoraj Singh Ahlawat v. State of U.P AIR 2003 SCC 52 after discussing case law on the subject from 1997 till date, quoted with approval principle laid down in Union of India v. Prafulla Kumar Samal & anr (1979) 3 SCC 4 ( AIR 1979 SC 366 ). It would be appropriate to extract para 16 of the Judgment: "To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal & anr. (1979) 3 SCC 4 ( AIR 1979 SC 366 ), where this Court was examining a similar question in the context of Section 227 of the Code of Criminal procedure. (1979) 3 SCC 4 ( AIR 1979 SC 366 ), where this Court was examining a similar question in the context of Section 227 of the Code of Criminal procedure. The legal position was summed up as under; "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (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) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced 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 his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Officer 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 mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial". 15. Learned trial Judge in the present case has, as careful examination of the order dated 04-02-2015 would reveal restricted enquiry to the parameters laid down in Prafulla Kumar Samal's Case, followed in Shorey Singh Ahlawat's Case. 15. Learned trial Judge in the present case has, as careful examination of the order dated 04-02-2015 would reveal restricted enquiry to the parameters laid down in Prafulla Kumar Samal's Case, followed in Shorey Singh Ahlawat's Case. The trial Judge to assess and evaluate the record of the case and documents submitted therewith was necessarily, to take an overview of the material collected by the Investigating Agency in shape of statements of witnesses recorded under section 161 Cr.P.C., the expert opinion like medical record, postmortem report etc. The material has not been sifted and analyzed to find cracks and contradiction or comment on its veracity-a course forbidden under law. Learned trial judge cannot be faulted for focusing attention on the statements of two constables from local police post, present on spot in connection with discharge of their official duty. 16. The trial Judge has not concluded that there is no sufficient ground for proceeding against the accused, but while holding that there is sufficient ground for proceeding against the accused, opined that offences presumed to have been committed by the respondents are different from the offences alleged in the chargesheet. The trial court, therefore, was to give a closer look to the statements recorded under Section 161 Cr.P.C., to find out the offences, accused on the basis of such material were to be presumed to have committed. Learned trial Judge, on going through the record of the case and the documents submitted therewith found the accused to have prima facie committed offences punishable under Section 304(II), 148, 149, 336, 323, 427 RPC and not the offences under Section 302, 147, 148, 149, 336 RPC as alleged in the chargesheet. There in the circumstances is no merit, in the petitioners' case that the trial Judge has dived too deep into the material, sifted and analyzed the material to an extent not permitted under law and overstepped jurisdiction delineated under Section 268, 269 Criminal Procedure Code. 17. Having said so, let us now try to find out, whether opinion framed by the trial court is based on an objective perusal of the record of the case and documents submitted therewith or is arbitrary and unwarranted. First a word of caution. 17. Having said so, let us now try to find out, whether opinion framed by the trial court is based on an objective perusal of the record of the case and documents submitted therewith or is arbitrary and unwarranted. First a word of caution. It is well settled law that any interference with the trial court order under Section 268 and 269 of the Code of Criminal Procedure would not warranted only because of the opinion of a superior court differs from the opinion framed by the trial judge on a particular aspect of the case. In the words of Supreme Court "there may be as many opinions on a particular matter as there are courts." Reference in this regard may be made to law laid down in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Choridia 1989 SCR (1) 560, 1989 SCC (1) 715 and Omwati & anr. v. State through Delhi Administration AIR 2001 SC 1507 . 18. Chapter XVI Ranbir Penal Code 1969 Samvat defines and prescribes punishment of offences affecting the human body and offences affecting life Section 299 of the Code defines culpable homicide. It provides that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such an act to cause death, commits the offence of culpable homicide. The intention on part of the offender to cause death or to cause an injury as is likely to cause death or cause injury within the knowledge of the offender, is likely to cause death come within the sweep of offence of culpable homicide. 19. Murder as defined under Section 300, RPC is an aggravated form of culpable homicide. The difference between culpable homicide and murder lies in the intention of the offender and the nature of the bodily injury caused. 19. Murder as defined under Section 300, RPC is an aggravated form of culpable homicide. The difference between culpable homicide and murder lies in the intention of the offender and the nature of the bodily injury caused. Where the act by which death is caused is done with the intention of causing death or with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the injury is caused or of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or offender knows that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, offence of murder is committed. Exception 1-5 to Section 300 of the Code, exclude the case of culpable homicide, from definition of murder that having regard to definition of murder would otherwise fall within its ambit. The exceptions deal with the case of grave and sudden provocation, cases where the offender is a public servant, the case of sudden fight or where the deceased of his own, takes the risk of death. The knowledge that act committed is likely to cause death would make the offence culpable homicide. The knowledge that the act done must in all probability cause death would make the act murder. The trial court, therefore, in all cases where murder punishable under Section 302 is alleged, is required to scan the record of the case and the documents submitted therewith give a careful thought to such material to find, out whether prima facie alleged act was done with the intention of causing death, or of causing such a bodily injury as is likely to cause death or with the knowledge that the act is likely to cause death or with the intention of causing bodily injury, sufficient in the ordinary course of nature to cause death or so imminently dangerous in all probability to cause death. 20. 20. The trial court in the fact and the circumstances of the case and on the basis of record of the case and the documents submitted therewith was justified in opining that the act alleged was done with the knowledge that it was likely to cause death but without any intention of causing death or to cause such bodily injury as is likely to cause death. The act done by respondents as discernable from the material collected during the investigation did not prima facie point to intention on their part to cause death or cause such bodily injury as was likely to cause death but all the same they were prima facie aware that the attack on deceased was likely to cause death. It may not be advisable to make a threadbare discussion of the material on record to opine on exact role of the respondents in alleged occurrence as such an exercise is likely to prejudice the parties. The trial court has gone through the material to the extent it was required to be considered and arrived at a conclusion that the material prima facie discloses commission of offence punishable under Section 304(II), 148, 149, 336, 323, 427 RPC. The conclusions drawn by the trial court as already observed are well reasoned and not tainted with arbitrariness or non-application of mind. 21. For the reasons discussed, the petition is devoid of any merit. The grounds urged in the petition do not call for exercise of inherent powers under Section 561-A Cr. PC and quashment of trial court order. Petition therefore fails and is accordingly dismissed. The trial court record be returned/sent down.