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2016 DIGILAW 171 (JK)

Mohd. Aroof Khan v. State and ors.

2016-04-05

B.S.WALIA, MOHAMMAD YAQOOB MIR

body2016
JUDGMENT Yaqoob, J.-- 1. Present Letters Patent Appeal is directed against the judgment dated 01.10.2015, whereunder petition OWP No. 1016/2011 seeking direction in the name of respondents to re-investigate the case registered as FIR No. 16/2011 P/S Surankote has been dismissed. 2. The factual matrix which has given rise to the instant lis is that on an information received from reliable resources by the Police Station Surankote to the effect that two persons namely Mohd Mahroof Khan and Sarwar Khan armed with 12 Bore rifles had gone for hunting towards Donar Forest near Dearr-ki-Gali, Baffliaz. Sarwar Khan believing movement and sound of the cocks fired from his rifle but the fire shot hit Mohd Mahroof Khan (deceased) who was on opposite side of the bush, consequently died on spot. 3. Case was registered as FIR No. 16/2011 for commission of offence punishable under section 304 RPC and 27/30 of Arms Act Police Station, Surankote. Initially the case was being investigated by ASI Munshi Ram but later on, same was transferred to SHO Surankote for further investigation. During investigation spot demonstration revealed that the accused had fired the shot from a distance of 42 ft at about 1740 hours with an intention to kill the deceased. On his investigation it was established that the Sarwar Khan had committed the offence under Section 302 RPC. 4. For ensuing fair and impartial investigation, the Deputy Inspector General of Police, Rajouri-Poonch Range again constituted two Special Investigating Teams (SITs) i.e. one on 02.04.2011 and the second on 20.04.2011 who further investigated the matter, inspected the spot, recorded the statement of Aroof Khan brother of the deceased under Section 161 CrPC and thereafter under Section 164-A CrPC. Prima facie commission of offence under Section 302 RPC and 27/30 of Arms Act against Sarwar Khan was established. Charge-sheet (Challan) was produced in the court on 18.05.2011, which has been committed to the Court of Principal Sessions Judge Poonch for trial. 5. The prosecutor had filed an application before the trial court for further investigation of the case. The petitioner meanwhile had filed the instant petition seeking reinvestigation of the case. It is during pendency of this writ petition, the application as was filed under Section 173(8) Cr.PC was dismissed as not pressed by the prosecutor stating therein that since the petition had been filed before the High court, application may be dismissed. 6. The petitioner meanwhile had filed the instant petition seeking reinvestigation of the case. It is during pendency of this writ petition, the application as was filed under Section 173(8) Cr.PC was dismissed as not pressed by the prosecutor stating therein that since the petition had been filed before the High court, application may be dismissed. 6. In the reply as filed by the respondents, the method manner of investigation has been highlighted, it has also been stated that sufficient material was collected based on which element of conspiracy did not surface. 7. Learned counsel for the petitioner projected that basically while noticing the injuries on the dead body, it can be visualised that more than one bullet injuries on both sides of the dead body are apparent. Therefore, there was no possibility of one single person shooting him. Conspiracy element as such has been ignored so as to shield the other accused involved. 8. The position as projected is specifically controverted by the respondents in their objections, they have stated that bullet from 12 bore rifle once comes out of the Gun releases 200/250 pallets and it spread into a space of 2/3 feet. In the present case also it has struck on left side of the body above thigh upto head portion and (not on right side) in a space of 2/3 feet showing more than one wound but same is a result of one shot alone which is justified on the basis of available evidences. In addition thereto, all close relatives of the deceased have appeared before the investigating agency whose statements did not reveal any conspiracy between accused and any other person for killing the deceased. Furthermore, the statements of the petitioner have been recorded under Section 161 CrPC and 164-A CrPC. Nothing has been said about the involvement of any other person. The petitioner has not specifically mentioned anywhere name of any person to be a conspirator. 9. Learned single Judge while considering all aspects of the case has also considered the judgment rendered in the case of State of Punjab v. Central Bureau of Investigation and ors reported as 2011(9) SCC 182 which deals with the circumstances in which fresh investigation or re-investigation is necessary to secure the ends of justice. Para-13 and 14 of the said judgment are relevant to be quoted: “13. Para-13 and 14 of the said judgment are relevant to be quoted: “13. Sub-section (1) of Section 173 of the Cr.P.C. provides that every investigation by the police shall be completed without unnecessary delay and sub-section (2) of Section 173 provides that as soon as such investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Under sub-section (2) of Section 173, a police report (charge sheet or challan) is filed by the police after investigation is complete. Subsection (8) of Section 173 states that nothing in the Section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, even where charge sheet or challan has been filed by the police under sub-section (2) of Section 173 Cr.PC the police can undertake further investigation, but not fresh investigation or re-investigation in respect of an offence, under sub-section (8) of Section 173 of the Cr.P.C. 14. Section 482 of the Cr.P.C., however, states that nothing in the Cr.P.C. shall be deemed to limit or affect the inherent powers of the High court to make such orders as is necessary to give effect to any order under the Cr.P.C or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Thus, the provisions of the Cr.P.C. do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 of the Cr.P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of the Cr.P.C. for fresh investigation or reinvestigation if the High court is satisfied that such fresh investigation or re-examination is necessary to secure the ends of justice.” 10. The language of sub-section (8) of Section 173 of the Cr.P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of the Cr.P.C. for fresh investigation or reinvestigation if the High court is satisfied that such fresh investigation or re-examination is necessary to secure the ends of justice.” 10. After quoting the said judgment, learned Single Judge by referring to the statement of the petitioner recorded under Section 161 Cr.P.C. as well as under Section 164-A Cr.P.C. by the ‘SIT’ constituted by the DIG of Police, Rajouri-Poonch Range on 02.04.2011 as also statements of the number of witnesses which include some close relatives and family members of the deceased held that it was on the basis of the said statements that charge sheet (challan) was filed for commission of offence punishable under Section 302 RPC and the story set up by the petitioner about the conspiracy is contrary to the statements of the petitioner recorded under Section 161 Cr.P.C. as also under Section 164-A Cr.P.C. Learned Single Judge has also observed that from the trial court records, it is clear that trial had commenced and as many as 10 prosecution witnesses had been examined. Now the attempt appears to be to prolong the trial and consequent detention of the accused. Finally learned Single Judge has concluded that there is no requirement of ordering any fresh investigation or re-investigation but at the same time has observed that the police has the powers under Section 173(8) Cr.PC to continue with further investigation if anything new in connection with the commission of crime surfaces. 11. The view taken by the learned Single Judge is totally appropriate and in conformity with the position of the law. 12. It is settled that powers exercisable under Section 173(8) CrPC by the police as well as by the trial court are available provided need for exercise of such power arises on finding any fresh evidence or about culpability of any other accused. 13. On the strength of the material collected and in view of Special Investigating Teams constituted, nothing is forthcoming as on date to persuade this court to take a view different to one as has been taken by the learned Single Judge. 14. 13. On the strength of the material collected and in view of Special Investigating Teams constituted, nothing is forthcoming as on date to persuade this court to take a view different to one as has been taken by the learned Single Judge. 14. The position of injuries as made mention of in the post-mortem examination report also suggest that there were two wounds i.e. one multiple pallet injuries on right side of cheek anterior circular 3 mm size and another on right side of the eye which has destroyed the whole anatomy of the right eye. The description of external injuries as made mention of in the said post-mortem report suggest that the deceased had maximum injuries on the left side except for two injuries as mentioned on the right side. Picking up the thread from there, the contention of the learned counsel is that there has been involvement of more than one person in shooting. But it is an area to be explained by the concerned witnesses during trial, that too in the light of the stand of the respondents i.e. bullet from 12 bore rifle when comes out, it released 200/250 pallets and it spread into a space of 2/3 feet. May be the deceased might have been positioning for hunting while he received the bullets and in the process pallets released may have hit him on right side as well. 15. Assessing from any angle, there is no scope to interfere with order of learned Single Judge dismissing the writ petition. Same is maintained. Petition as such dismissed alongwith connected MP(s). However, it is made clear that remedy under Section 173(8) CrPC shall remain available.