Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 262 (JK)

Tanveer Jan Mir v. State of J&K

2017-05-26

MOHAMMAD YAQOOB MIR

body2017
Judgment 1. This revision petition is directed against the order dated 03.03.2017 passed by the Court of learned Sessions Judge, Kupwara, where-under as against the respondent No.2 charge has been framed for commission of offence punishable under Section 304(II) and 447 RPC. Dissatisfied therewith, instead of State, complainant (petitioner) has filed the instant petition 2. Background of the case is that on 17.07.2016 a written report was lodged by the petitioner with Police Station, Kralpora alleging therein that on 17.07.2016 at about 11.30 AM, one Haji Khazir Mohammad S/o Saifullah R/o Dardpora (deceased) (father of the complainant) was in his orchard setting right the water pipe. Ab. Rashid Sheikh, Rahim Sheikh and Bilal Sheikh sons of Ab. Majeed Sheikh caught hold of the deceased and injured him with some sharp weapon. Prior to the occurrence, water supply pipe line to the orchard was blocked by the people. The deceased was ascertaining as to who had blocked the water pipe line. In the meantime, all of a sudden three persons entered into the orchard, bet him and caused deep injury on his head. Case was registered as FIR No.74/2016 P/S Kralpora. On completion of investigation, final report (challan) under Section 173 Cr. P. C for commission of offence punishable under Section 302 and 447 RPC was filed before the concerned Magistrate, same was committed to the Court of learned Sessions Judge, Kupwara. Learned Sessions Judge while hearing counsel for the parties under Section 268 and 269 of the State code which correspond to Section 227 and 228 of the Central Code of Criminal Procedure concluded that, prima-facie, offence punishable under Section 302 RPC is not made out instead offence under Section 304(II) RPC is made out. Charge was directed to be framed against the respondent No.2 for commission of offences punishable under Section 304(II) and 447 RPC. 3. The first contention of the counsel for the respondent No.2 is that the revision petition is filed by the complainant not by the State, as such, same is incompetent. 4. Repelling this contention, learned counsel for the petitioner referred to section 435(3) Cr. P. C., which according to him, provide that any person can file the revision petition. 3. The first contention of the counsel for the respondent No.2 is that the revision petition is filed by the complainant not by the State, as such, same is incompetent. 4. Repelling this contention, learned counsel for the petitioner referred to section 435(3) Cr. P. C., which according to him, provide that any person can file the revision petition. Reliance was placed on the judgment reported in AIR 2001 SC 1142 wherein at Para 12 it has been held as under: “…All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them”. 5. Para 11 of the judgment rendered by this Court reported in 2007(I) S. L. J 203 is relevant to be quoted: “11. It is equally true, in law, that Criminal revisional jurisdiction of the High Court may be invoked even suo moto in view of the language employed in Sections 435 and 439 of the Code of Criminal Procedure. It would, thus, mean that if the power could be invoked suo moto, nothing prevents a complainant or an aggrieved party to invoke the jurisdiction of the Court, for, the jurisdiction will be exercised by the High Court only if it is found that there was jurisdictional error or error apparent on the face of the records or the interest of justice required interference by the High Court. The petition of the complainant cannot, thus, be thrown out merely on the ground that criminal revisional jurisdiction cannot be exercised at the behest of a private party/complainant as urged by Sh. Gandhi, unless grievance projected by the private party is examined and considered.” 6. In the judgment reported in 1998 S. L. J. 312 same principle has been laid down. 7. Gandhi, unless grievance projected by the private party is examined and considered.” 6. In the judgment reported in 1998 S. L. J. 312 same principle has been laid down. 7. Para 6 of the judgment rendered in the case of “K. Pandurangan vs. S. S. R. Velusamy and another”, reported in (2003) 8 SCC 625 is apposite to be quoted: “So far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of Code of Criminal Procedure, 1973, the court has suo moto power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan vs. The State (Delhi Administration).” 8. In view of the law laid down and quoted hereinabove, the revision petition filed by the complainant cannot be said to be incompetent. After all, if the State has not chosen to challenge the order of the trial court, complainant cannot be deprived from challenging the same. It is the complainant who has lost his father, therefore, care has to be taken of two things, one that there is no injustice, and second that the accused is proceeded in proper manner but at the same time wreaking vengeance cannot be permitted. Viewed thus, petition filed by the complainant is maintainable. 9. Now the question is as to whether trial court was right in holding that the act committed by the accused falls within the ambit of exception to Section 300 RPC punishable under Section 304(II) RPC. It is trite that at the stage of framing or otherwise of the charge, learned trial court is governed by the procedure prescribed under Chapter XXIII of the Code of Criminal Procedure. Section 268 Cr. P. C provides for discharge whereas Section 269 Cr. P. C provide for framing of charge. It is trite that at the stage of framing or otherwise of the charge, learned trial court is governed by the procedure prescribed under Chapter XXIII of the Code of Criminal Procedure. Section 268 Cr. P. C provides for discharge whereas Section 269 Cr. P. C provide for framing of charge. At such a stage, meticulous sifting of the material is not permissible. The Court has to evaluate the material collected by the investigating agency for a limited purpose of ascertaining as to whether ground exist for presuming that the accused has committed the offence, then has to frame the charge. In this context, it shall be relevant to quote Para 7 of the judgment rendered in the case of “Niranjan Sing, Karam Singh Punjabi vs. Jitendra Bhimraj Bijja and others ( AIR 1990 SC 1962 ): “7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 this Court observed in paragraph 18 of the Judgment as under: “The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or other- wise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence”. From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 10. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 10. Learned counsel for the respondent No.2 while relying on the judgment reported in AIR 1995 SC 1956 tried to project that cumulative effective of the material collected, on proper appreciation, would suggest that there was no intention to kill the deceased but the submission of learned counsel has to be repelled because the test which has to be applied at the stage of framing or otherwise of the charge is altogether different than what is to be applied at the final stage of the trial. At the initial stage of framing or otherwise of the charge, suspicion favours the prosecution but at the final stage same favours the accused. 11. It is settled that neither roving enquiry into the pros and con is permissible nor meticulous sifting of the material collected by the investigating agency is permissible. Sifting of the material is permissible for a limited purpose of ascertaining whether ground exist for presuming commission of offence. The grounds as are agitated by the respondent No.2, in essence, call for appreciation of the material collected by the investigating which is not permissible. 12. Every case has its own facts and features. Opinion regarding existence of grounds for presuming commission of offence depends upon facts of each case. Whether offence committed by the respondent No.1 amounts to murder punishable under Section 302 or 304(II) RPC can be well judged from the statements of the witnesses as have been recorded under Section 161/164-A Cr. P. C during the course of investigation. In order to show that on the strength of material available on the records, there was ground for presuming commission of offence under Section 302 RPC is clear from the statements of the prosecution witnesses. Precisely to quote the statements in that direction will be relevant, same are quoted here-under: (a) Tanveer Jan, son of the deceased, is shown to have stated that the accused picked up a stone of 2/3 kgs weight and threw it on the head of the deceased who fell down. Precisely to quote the statements in that direction will be relevant, same are quoted here-under: (a) Tanveer Jan, son of the deceased, is shown to have stated that the accused picked up a stone of 2/3 kgs weight and threw it on the head of the deceased who fell down. (b) Naza Begum, daughter-in-law of the deceased, has stated that the accused caught hold of her father-in-law and hit his head with a heavy stone and injured him seriously. (c) Khalid Bari Mir has stated that the accused with the intention to kill the deceased, threw a heavy stone on his head. (d) Ghulam Mohammad Mir has stated that the accused picked up a big stone and with the intention to kill him threw it on the head of the deceased who got seriously injured. (e) Ghulam Qadir Mir has stated that the accused picked up a stone and threw it on the head of the deceased who got badly injured. (f) Two other witnesses, namely, Bilal Ahmad Sheikh and Mohammad Yousuf Mir have also stated that the accused picked up a stone, then stated a piece of clay and threw it on the head of the deceased, then stated that both sides pelted stones. 13. The medical opinion is as under: “Alleged cause and circumstances attending death: Alleged history of head trauma patient referred to SKIMS Soura Sriangar where C.T head (Contrast Tomography done and mentioned depressed fracture left side parieto-temporal with SDH (Sub Dural Hematoma) with mid line shift leading to damage higher centers causing Cardio Pulmonary Arrest and death. Final cause of death is head trauma with parietal bone fracture left side leading to massive hematoma leading to damage of higher centers causing cardio respiratory arrest and death”. 14. It is quite clear that vital part of the head of the deceased has been hit. When a vital part of the head has been hit with a stone and when some of the witnesses have stated that with the intention to kill the deceased stone has been thrown on his head, what more is required to hold that the ground exist for presuming commission of offence punishable under Section 302 RPC. 15. Learned trial court, no doubt, has referred to various judgments as to what is the principle to be followed at the time of framing or otherwise of the charge. 15. Learned trial court, no doubt, has referred to various judgments as to what is the principle to be followed at the time of framing or otherwise of the charge. Then in the concluding para of the judgment has referred to as to what has been laid down in the judgment captioned “Pulicherla Nagaraju vs. State of A.P reported in (2006) II SCC 444. Same is relevant to be quoted here as well: “Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot;(iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention”, 16. In the said judgment it has been clearly laid down that the intention to cause death can be gathered generally from combination of few several circumstances as referred to above which include (iii) whether the blow is aimed at vital part of the body, and (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner. Applying the test to the present case, it is clear that vital part of the body i.e. head has been hit with a heavy stone which resulted in injury to parietal region and opinion of the doctor in this regard is clear, as referred to above. 17. Applying the test to the present case, it is clear that vital part of the body i.e. head has been hit with a heavy stone which resulted in injury to parietal region and opinion of the doctor in this regard is clear, as referred to above. 17. The act committed by the accused squarely falls within the ambit of clause fourth OF Section 300 RPC which is quoted hereunder: “Fourthly if the person committing the act knows that it is so imminently dangerous that it must in all probabilities cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 18. The intention, prima-facie, at this stage is gatherable from the fact foundation as it exists on date. The act committed by the accused, prima-facie, as has been committed was likely to cause death because throwing of a heavy stone on the head of the deceased means intention was there to cause death. 19. It is a fact that framing of charge is not an idle formality. An onerous duty is to be discharged so as to balance that no person suffers incarceration or no person un-necessarily is dragged into trial. Formation of opinion about existence of ground to presume commission of offence, in essence, has to be based on the material collected by the investigating agency. If the material collected does not suggest commission of offence, trial can be truncated right at that stage by discharging the accused or in alternative charge can be framed appropriately on the basis of available material. If the police has concluded that the offence under Section 302 RPC is committed by the accused, that is not final. It is open to judicial scrutiny. Therefore, at the stage of framing or otherwise of the charge, trial court has been clothed with the power to sift the material collected but for a limited purpose. A word of caution i.e. roving enquiry into pros and con is not permissible. Trial court while referring to the statements of witnesses though has been conscious that there can’t be meticulous sifting but in the process has erred in holding that the murder has been committed without intention. A word of caution i.e. roving enquiry into pros and con is not permissible. Trial court while referring to the statements of witnesses though has been conscious that there can’t be meticulous sifting but in the process has erred in holding that the murder has been committed without intention. It appears that the trial court has been swayed away by the fact that there has been a sudden fight, therefore, there was no premeditation. That may be true but the question is when some of the witnesses under Section 161 Cr. P. C have stated that the accused with the intention to kill the deceased picked a big stone and threw it on the head of the deceased which has damaged the head, as is clear from the medical opinion, how could it be said that intention was missing. Hitting the head in all probabilities is not free from risk and any person hitting the head means he has hit vital organ of the body which, in all probabilities, is likely to cause death. The dangerous act of hitting the head with a stone can’t be said to be an act which falls within the ambit of Section 304(II) RPC. Trial court has erred in ordering framing of charge under Section 304(II) RPC. 20. On the strength of material available on records, for the discussions and law as referred above, the order to the extent it provides for framing of charge under Section 304(II) RPC is set aside. The charge against the accused has to be framed for commission of offence punishable under Section 302 and 447 RPC. Trial court shall frame the charge accordingly and to proceed with the trial with promptitude. 21. Petition is allowed to the extent indicated above. 22. Copy of the judgment be sent to the trial court for information.