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2017 DIGILAW 673 (JK)

Mohd. Din v. Nek Mohd.

2017-08-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of this revision petition, petitioner/complainant has prayed for setting aside of order dated 30.06.2015 passed by 2nd Additional Sessions Judge, Jammu by virtue of which accused-respondents have been charge-sheeted under Sections 325/323/451/506/147 instead of Section 307 RPC on the strength of grounds set out in it. It has also been prayed that there was specific allegation of outraging modesty of woman, but no charge u/s 354 ROC has been framed. 2. The main facts emanating from the case set up by the petitioner are that on 01.07.2014 at about 6.00 p.m., the accused by making unlawful assembly started damaging the wall of the collapsed house of the complainant, to which son of the complainant-Farooq Ahmed asked accused not to damage the standing wall of the house and the accused hit the Farooq Ahmed on the head with a brick causing serious injury on the head and also outraged the modesty of Parveen Bibi and caught hold her from the breast, tore her clothes and dragged her. It is contended that Farooq Ahmed suffered multiple head injuries, i.e., hemorrhagic contusion right frontal region, continued depressed, fracture of frontal bone right side, fracture frontal sinus extending upto rod of right orbit. A certificate in this regard was issued by Board of Doctors of Dayanand Medical College, Ludhiana and same is annexed as Annexure-B to the petition. It is further contended that FIR No.38/2014 for commission of offence punishable under Sections307/451/354/323/147/506 RPC was also registered with Police Station Gharota and challan was produced before the Court of learned Judicial Magistrate Ist Class (Sub Registrar), Jammu who committed the same before the learned Sessions Judge, Jammu and accordingly it was transferred to 2nd Additional Sessions Judge, Jammu, who at the time of framing of charge modified the charge by giving explanation that as per the medical opinion the injuries on the person is grievous in nature caused by blunt object and the injuries suffered by Mohd. Irfan and Arsha Bibi are simple in nature. The accused was armed with lathi and gathered the intention of the accused and came to the conclusion that since the accused were not having lethal weapons, so the offence under Section 307 RPC is not made out. Irfan and Arsha Bibi are simple in nature. The accused was armed with lathi and gathered the intention of the accused and came to the conclusion that since the accused were not having lethal weapons, so the offence under Section 307 RPC is not made out. It is contended that the finding returned by learned trial Judge is not based on facts and is contrary to the record, therefore, the modification of the charge is unsustainable. Feeling aggrieved of the order impugned, petitioner has challenged it on the following grounds:- (i) That the order impugned is against the law and facts as such liable to be set-aside. The son of the petitioner who suffered grievous injuries as a case of assault HT Hemorrhagic contusion, right frontal region as per the medical jurisprudence such type of injuries produced by blunt force and are found in grey and white matter due to injury of blood vessels by mechanical stress and are present as streaks or group of punctuate hemorrhages accompanied by variable amounts of necrosis. Often, these injuries occur I cerebral and cerebella and deeper structures basal ganglia, mid-brain stem are contused especially from impacts to forehead vertex. The medulla may be contused in association with fracture which extend into the foramen thus such types of injuries could cause death. Therefore, the court below had wrongly come to the conclusion that the injuries could not cause death. Thus, the court below had made the opinion and modified the charge. Therefore, the order impugned is bad and liable to be quashed. (ii) That the order impugned is otherwise bad and liable to be quashed on the ground that the injuries have been shown comminuted depressed and fracture of frontal bone. As per the medical jurisprudence such types of injuries create contusion and laceration of the brain are two degrees of the same process and oftenly there is fracture of skull. The court below has not appreciated the nature of injuries and laid more stress to the weapon used in the commission of offence. There is specific allegation against the accused Farroq Mohd. son of Yousuf who caused serious injuries with the brick on the head of Farooq Ahmed. Therefore, there is no question of considering that the nature of the weapon was not lethal. Therefore, the order impugned is bad and liable to be quashed. There is specific allegation against the accused Farroq Mohd. son of Yousuf who caused serious injuries with the brick on the head of Farooq Ahmed. Therefore, there is no question of considering that the nature of the weapon was not lethal. Therefore, the order impugned is bad and liable to be quashed. (iii) That the order impugned is otherwise liable to be quashed on the ground that the procedure as laid down in Section 266 to 277 of the Criminal Procedure Code which envisages that the court while framing the charges has not to return the finding on the merit of the case by appreciating the opinion of the witnesses. The Magistrate on the basis of material on record only to see that there is a ground to presume that the accused has committed an offence as held by the Three Judges Bench of the Hon’ble Supreme Court, it is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record but needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredient constituting the offence alleged would justify the framing of the charge against the accused in respect of the commission of that offence. Similar view was taken by the Hon’ble Court in number of cases where the Hon’ble Supreme Court has held that if on the basis of material on record, a court could come to the conclusion that commission of of the offence is a probable consequence, a case for framing of charge exists. Similar view was taken by the Hon’ble Court in number of cases where the Hon’ble Supreme Court has held that if on the basis of material on record, a court could come to the conclusion that commission of of the offence is a probable consequence, a case for framing of charge exists. It is apparent that at the stage of framing of a charge the court is not required to presume that the accused might have not committed the offence thus in view of the facts the learned 2nd Additional Sessions Judge, Jammu has committed an error in modifying the charge under Section 307 RPC and charge sheeted the accused for the commission of offence under Section 325 RPC, therefore the order impugned in bad. (iv) That the order impugned is otherwise bad, there is a specific allegations against the accused Nek Mohd. Caught hold the daughter of the complaint from the breast, tore her clothes and dragged thus has committed the offence under Section 354 RPC but the court below deleted the charge of 354 RPC and framed the charge under Section 325 and 323 RPC. Thus, the order impugned is liable to be quashed. (v) That the order impugned is otherwise illegal, perverse and liable to be quashed. 3. Whereas other side has supported the order of Court below. 4. I have heard learned counsel for the parties and have perused the record of court below. 5. In order to appreciate the contentions of the parties, it may be noticed that Section 268 and 269 of Cr.P.C. relate to the trial of cases before the courts of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote sections 268 and 269 of Cr.P.C. as under: - “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 proceedings against the accused, he shall discharge the accused and record his reasons for so doing. 269 Framing of charge (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground 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 whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or 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.” 6. A conjoint reading of section 268 and 269 of Cr.P.C would reveals that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused or transfer the case to CJM or Judicial Magistrate if he is of the opinion that offence made out against the accused is triable by a Magistrate. 7. For appreciating the above contentions, provisions of Section 307 RPC are required to be reproduced as under:- “307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.” 8. It is noticed from the perusal of Section 307 RPC that important thing to be borne in mind in determining the question whether offence under section 307 is made out or not, is the intention or knowledge, besides intention or knowledge of the accused must be such as necessary to constitute murder. What I mean to say that Section 307 of RPC is of two parts. The part -1 envisages such intention or knowledge in such circumstances the act done by an offender that would cause death and he would be guilty of murder.2nd part relates to causing of hurt by such act that is having such intention or knowledge and under such circumstances that by such act death cannot be caused. Substance of offence is intention or knowledge that acts done as such, death would be caused and offender will be guilty of murder and actually death is not caused. This would amount to an offence of attempt to murder. 9. For elucidating the question as to whether there was intention or knowledge that act committed by accused would have caused death and he would be guilty of murder. From the perusal of medical reports of injured persons, it would reveal that injuries caused to injured Mohd. Irfan and Arshan Bibi are simple in nature, whereas single injury caused on forehead of Farooq Ahmed is 4x4 cm and is grievous in nature. The weapon of offence is brick. From perusal of FIR, it further reveals that there was no premeditation or preplanned for commission of crime; sudden quarrel has started. 10. In view of what has been discussed above I don’t find any infirmity of law and facts in the order of court below while framing the charge u/s 325 RPC instead of 307 RPC. But from the perusal of statement u/s 161 Cr.P.C of PW Parveen Bibi, it is evident that she has specifically stated that Nek Mohd. caught her from breast, so charge under section 354 RPC is required to frame. 11. In view of above, this revision petition is partially allowed and Court below is directed to frame charge u/s 354 RPC against accused Nek Mohd. also. Rest of order is upheld. File of Court below along with this order be sent back.