Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 647 (JK)

Tarsem Singh v. State

2015-12-09

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J. 1. The petitioners have called in question the order dated 4th February, 2015 passed by learned Principal Sessions Judge, Kathua in case FIR No. 176/2014 registered at Police Station Kathua Under Sections 302/447/34 RPC and 4/25 Arms Act. In terms of the aforesaid order, the petitioners have been charged for having committed offences under Sections 302/447/34 RPC and 4/25 Arms Act and have been put on trial for facing aforesaid charges. In view of the submissions made by learned counsel for the petitioners at the Bar, it is pertinent to refer to the prosecution case in brief. One Abdul Karim filed FIR No. 176/2014 at Police Station Kathua in which he alleged that his father namely Shri Mubarak Ali was harvesting the wheat crop in the land measuring 7 kanals 11 marlas covered by Khasra No. 221 situated at village Chak Sajan which land was in his possession as an owner thereof. It is also alleged in the FIR that the accused persons with criminal intention trespassed into the land and attacked the father of the applicant/complainant with sharp edged weapons, in consequence whereof he sustained injuries. It is also alleged that because of the presence of the complainant and his uncle Shri Bahadur Ali, the accused persons fled away from the spot. It is also stated in the FIR that the accused persons had struck the deceased on the face, on the forehead and on the left side of the eye. 2. The Police registered the case under Sections 447/323 RPC. The alleged occurrence had taken place on 18th May, 2014. The deceased was shifted to GMC Hospital, Jammu where he was admitted for being medically treated. After few days, he was discharged and thereafter for medically treating him further, the deceased when being shifted to Ludhiana, succumbed to his injuries. In view of nature of injuries and the weapon of assault used by accused, offence under Section 307 RPC was added and after the death of the deceased offence under Section 302 RPC was added. 3. Learned counsel for the petitioner submitted that the Post-mortem report which is the part of the Police Report does not support the case of the prosecution inasmuch as in the post-mortem report, it has been opined by Doctors that the deceased might have been probably died due to sudden cardiac arrest. 3. Learned counsel for the petitioner submitted that the Post-mortem report which is the part of the Police Report does not support the case of the prosecution inasmuch as in the post-mortem report, it has been opined by Doctors that the deceased might have been probably died due to sudden cardiac arrest. Learned counsel while further referring to Post-mortem report submitted that it does not show that any fatal injury was sustained by the deceased which could be the cause of his subsequent death. Learned counsel submitted that if the learned trial Court had considered the postmortem report then petitioners would have not framed charge under Section 302 RPC against the accused. 4. Learned counsel further submitted that after providing treatment to the deceased he was discharged from the hospital, and thereafter when he was being shifted to DMC Ludhiana he died due to sudden Cardiac arrest which is the cause of death given in the Post-mortem report. Learned counsel for petitioners submitted that the charge framed under Section 302 RPC is not made out from the record and requires to be set aside and quashed. 5. Learned counsel in support of his contention referred to and relied upon the judgment of the Hon'ble Supreme Court in case titled "Noorul Huda Maqbool Ahmed - Appellant v. Ram Deo Tyagi and Ors. Respondents" reported in 2011 (3) RCR (Criminal) 550, judgment of this Court in case titled "Abdul Rashid Lone and Ors. v. State of J&K through SHO P/S Bandipora" reported in 2012 (4) JKJ 435 [HC] and in case titled "Khangar v. State of Rajasthan" reported in 2012 (2) Cri. L.R. 933. 6. Learned State counsel submitted that the material evidence before the learned trial Judge was sufficient for framing the charge under Section 302 RPC against the petitioners. Learned counsel further submitted that the issues raised in this petition and the submissions made by learned counsel for the petitioners cannot become a ground for this Court while exercising powers under Section 561-A Cr.P.C. to quash the charge framed against the petitioners. Learned counsel submitted that the issues raised would require to be dealt with during trial of the case. 7. Mr. S.K. Shukla, learned counsel appearing for the complainant impleaded party submitted that at this stage in these proceedings under Section 561-A, it may not be possible for the Court to record findings about the innocence of the petitioners. Learned counsel submitted that the issues raised would require to be dealt with during trial of the case. 7. Mr. S.K. Shukla, learned counsel appearing for the complainant impleaded party submitted that at this stage in these proceedings under Section 561-A, it may not be possible for the Court to record findings about the innocence of the petitioners. Learned counsel while referring to the material available on record submitted that the Trial Court in framing charge under Section 302 RPC has not committed any illegality. Learned counsel prayed for dismissal of the petition. 8. After the case was registered, the investigating agency recorded statement of the deceased under Section 161 Cr.P.C. and in his statement corroborated allegations made in the FIR. The issue raised to be considered, and which has been strenuously argued by learned counsel for the petitioners is whether on the basis of the medical report which includes post-mortem report, opinion can be framed at this stage in the proceedings under Section 561-A about the innocence of the accused persons and/or about the non-commission of offence punishable under Section 302 RPC. 9. A perusal of the trial Court record would show that when the deceased was admitted in the hospital, Ward report was prepared and in the Ward report, it is mentioned that there is stitched wound over left eye and nose and there is also Lacerated wound over head. The doctors in the Post-mortem report recorded the opinion with regard to the cause of death "probably as sudden Cardiac arrest". It is this observation "deceased probably might have died due to sudden Cardiac arrest" which is pressed into service by learned counsel for petitioners for seeking annulment of the impugned order. 10. The trial Court has yet to record evidence in the case. In this case there is direct evidence available launching of alleged assault with sharp edged weapon on the deceased. The Ward report shows that besides there being Stitched wound over left eye and nose and there was a lacerated wound over the head. The doctor shall have to explain during the trial as to what would be the effect of the lacerated wound which was found over head of the deceased. It will be premature for this Court at this stage to record a finding either way. The doctor shall have to explain during the trial as to what would be the effect of the lacerated wound which was found over head of the deceased. It will be premature for this Court at this stage to record a finding either way. The Doctors who are experts have to be subjected to examination in chief and the cross examination during trial of the case. Only after evidence is recorded an ultimate opinion can be framed. This Court in proceedings under Section 561-A cannot frame any opinion in the aforesaid facts of the case and record findings that offence under Section 302 is not made out. 11. In Abdul Rashid Lone's case (Supra) at para-13, this Court while referring to post-mortem report of the deceased, stated, that there was no external injury and the probable cause of death was indicated as Cardiac Tamponade Secondary to Trauma Chest (hemopericardium which leads to cardio respiratory failure.) At paragraph 14 of the said case, it has been brought on record of the judgment that the 10 sought clarification from the Medical Officer, who in answer thereto, reported that the injuries found on the Post-Mortem examination of the deceased could be caused because of the fall from height on left side of the chest or some blunt object like stone or it could be trauma caused during stampede. This Court in the aforesaid case after considering entire material on record recorded findings that there was no evidence against the accused on record. For this reason, a finding was recorded that the impugned order cannot be sustained. In Khangar's case (Supra), the Rajasthan High Court ruled that the deceased and the accused persons were consuming liquor and thereafter deceased expired. In the inquest proceedings and on the basis of Post-mortem report, it was found that there were some bruises on the body of deceased but they were not stated to be responsible for death of the deceased. It is in this fact situation, the order framing charge under Section 302 was set aside and matter was sent back to the trial Court for fresh consideration. In Noorul Huda's case (Supra), the Hon'ble Supreme Court has set out the broad tests which are to be applied while considering the case for framing of charge or discharge of the accused. 12. Section 268 of the Code of Criminal Procedure, Svt. In Noorul Huda's case (Supra), the Hon'ble Supreme Court has set out the broad tests which are to be applied while considering the case for framing of charge or discharge of the accused. 12. Section 268 of the Code of Criminal Procedure, Svt. 1989 (for short, Cr.P.C.) provides for consideration of the record of the case and the documents submitted therewith and also provides that after hearing the submissions of the accused and the prosecution, if the Judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for doing so. 13. Section 269 provides that if, after such consideration and hearing the accused and prosecution, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence then he shall frame in writing a charge against the accused. 14. For discharging of an accused, the learned Judge has to record a finding that there is no sufficient ground for proceedings against the accused. The expression "no sufficient ground" would mean that there is no shred of evidence available on record which would warrant framing of charge, whereas in terms of Section 269 of Cr.P.C., the learned trial Judge has to only frame opinion that there is a ground for presuming that the accused has committed an offence. For framing of charge, the opinion has to be framed on the material/evidence available on record. Section 269 uses this expression "ground of presuming" and it does not use the expression "ground for proof. The learned trial Judge can frame an opinion by presuming on the basis of material on record that the accused has committed the offence for which he needs to be put on trial. 15. While considering the trial Court record and in view of the discussion made in this order, it is prima facie found that there is ground for presuming that the accused has committed offence for which they have been charged by the learned trial Court. 16. For the above stated reasons, this petition is held to be meritless and is accordingly dismissed. Record be sent back forthwith The learned trial Judge shall take steps for expeditious disposal of the case. 16. For the above stated reasons, this petition is held to be meritless and is accordingly dismissed. Record be sent back forthwith The learned trial Judge shall take steps for expeditious disposal of the case. The observations made in this order are only for the purposes of disposing of the petition and shall not affect the trial and ultimate result of the case. B.A. No. 6/2015, MP No. 1/2015 In view of the dismissal of the petition, this bail application is held to be not maintainable at this stage and is dismissed. The petitioner shall be at liberty to file fresh bail application before the trial Court at an appropriate stage of the case.