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2017 DIGILAW 738 (JK)

Laila Ram v. State of J&K

2017-08-25

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner invokes inherent jurisdiction of this Court under Section 561-A Cr.P.C. for quashing of order dated 18.05.2016 passed by the learned Sessions Judge Kishtwar in case FIR No.196/2015, whereby charge under Section 302 RPC is framed against petitioner. 2. In the petition, it is stated that as per the prosecution story deceased and accused had gone together to forest area Shadah Dhar Gota Cherji of Tehsil and District Kishtwar for hunting, where while hunting a wild goat, the deceased accidently suffered a gunshot at the hand of the accused. As per the challan presented by the prosecution under Section 173 Cr.P.C, the deceased had died due to the accident caused by the negligence of the accused. As such, offence under Section 304-II RPC was established against the accused. On 31.12.2015 challan under Sec.304-II RPC was presented by the police in the Court of learned Chief Judicial Magistrate, Kishtwar, who committed the case to the Court of learned Sessions Judge, Kishtwar in a routine manner, though the case was tryable exclusively by the Court of Judicial Magistrate Ist Class. As per the mandate of Sec 268/269 Cr.PC, the learned Sessions Judge Kistwar was required to either discharge the accused from the offence charges or charge the accused under Sec.304-II RPC and send the case back to the Magistrate for trial. Instead, the learned Sessions Judge Kishtwar in total disregard to the prosecution case, evidence on file, legal and factual matrix of the case converted the charge of 304-II RPC in to 302 RPC. By virtue of the impugned order, oblivious of the fact those ingredients of Sections 302 and 304-II RPC cannot be inferred from same set of evidence at different times. It is further contended that the impugned order of converting of charge against the petitioner by the learned Sessions Judge by shear non-application of judicial mind is palpably erroneous, legally perverse, factually incorrect and is abuse of the process of the Court, even the prosecution has prayed for the framing of charge under Section 304-II RPC before the learned Sessions Judge, Kishtwar. The prosecution has even submitted that material on file is sufficient to presume that the accused has committed the offence under Section 304-II RPC. The prosecution has even submitted that material on file is sufficient to presume that the accused has committed the offence under Section 304-II RPC. It is also contended that in order to frame the charge under Section 302 RPC, the learned Sessions Judge, Kishtwar has based his finding solely on the postmortem report to infer the intention for the commission of offence. Strange enough the learned Sessions Judge has not given any plausible reasons for rejecting the version of the prosecution and how such a long distance of case being that of an accident for charging the petitioner/accused for commission of murder, which was to be covered. The only reasoning given by the learned Sessions Judge, Kishtwar for converting the charge from 304-II to 302 RPC is that “perusal of evidence on record especially postmortem report and statement of father of the deceased u/Sec 164-A shows that prima facie offence under Section 302 RPC made out against the accused”. But how is mystery shrouded in doubt. It is further stated that on the basis of this perverse and illegal order charge under Section 302 RPC read with Section 3/25 IAA was framed against the petitioner. It is, therefore, prayed that the order of charge dated 18.05.2016 and the proceedings whereby the charge under Section 302 RPC has been framed against the petitioner being illegal, ultra-virus of the law and against all cannons of criminal jurisprudence, which amounts to abuse of the process of court, may be quashed and the petitioner may be discharged of the charges framed. 3. This Court vide order dated 26.04.2017, issued notice to respondent and also called for the trial Court record. Mr. R.S. Jamwal, learned Dy AG waived notice on behalf of the respondent and sought time to file objections. But despite granted several opportunities for filing objections, same has not been filed. 4. Heard learned counsel for the petitioner and have perused the record. 5. Learned counsel for the petitioner, in support of his arguments, has relied upon the judgment of Hon’ble the Supreme Court in case titled “Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra”, reported in AIR 2008 SC 2991 . It is apt to reproduce paragraph 15 of the said judgment, which reads as under: “15. 5. Learned counsel for the petitioner, in support of his arguments, has relied upon the judgment of Hon’ble the Supreme Court in case titled “Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra”, reported in AIR 2008 SC 2991 . It is apt to reproduce paragraph 15 of the said judgment, which reads as under: “15. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible.” 6. I have considered the rival contention of parties. I have also gone through the order dated 18.5.2016, which reveals that a charge sheet u/s 304-II RPC and 3/25 Arms Act was produced before Court below. The case of prosecution is that on 1.11.2015 an information was received from reliable source at police station that a dead body of Kuldeep Singh was lying in suspicions circumstances at Shadah Gotha and cause of death was not known. The case of prosecution is that on 1.11.2015 an information was received from reliable source at police station that a dead body of Kuldeep Singh was lying in suspicions circumstances at Shadah Gotha and cause of death was not known. Proceeding u/s 174 Cr.P.C. was started by police; police officer went at Chichwara where dead body was lying in the house of one Sunder Singh; it was seized and postmortem was got conducted; statements of witnesses u/s175 Cr.P.C. were recorded; it was found that on 13.10.2015, accused Laila Ram and deceased had gone for hunting along with 12 bore gun; they saw one jungly goat in bushes; deceased asked the accused to move at top and he will remain there; accused walked and he saw goat in bushes; he fired in bushes to kill the goat, but when he went there he found that fire had hit deceased and he was injured. Accused lifted the deceased/injured and brought him to safe place. Thereafter, he informed the wife of deceased and other residents of Gullar Basti. Accused then brought the deceased to Mohdmad Shafi’s house where he died. Police after completing the investigation produced the challan u/s 304-II RPC and 3/25 Arms Act. But Court by virtue of impugned order framed charge under section 302 RPC instead of 304-II RPC on the ground that from the statement of father of deceased and postmortem report, offence under section 302 RPC is made out. 7. It is noticed that for constituting offence u/s 302 RPC, the important thing to be borne in mind is that as to whether accused had intention to commit murder or not. Intention of a criminal in committing offence is gather-able from the way in which act has been committed and weapon of offence with which he has committed the crime. As per prosecution story accused fired on a jungly goat, but fire hit on deceased mistakenly. Culpable homicide has defined in section 299 RPC. There is illustration (c) in section 299 of RPC. It reads as under:- “A by shooting at fowl with the intent to kill it, kills B who is behind a bush; A not knowing that he was there. Culpable homicide has defined in section 299 RPC. There is illustration (c) in section 299 of RPC. It reads as under:- “A by shooting at fowl with the intent to kill it, kills B who is behind a bush; A not knowing that he was there. Here although A was doing unlawful act , he was not guilty of culpable homicide, as he did not intent to kill B or cause death by doing an act that he knew was likely to cause death” 8. Present case squarely falls within the sphere of above illustration. No substantial motive has been explained in challan from which inference can be drawn that accused was having intention and pre-meditation for committing murder. The cumulative effect and keeping in view the whole discussion, I am of the opinion that accused was having knowledge that his act may cause death, but was not having intention and pre-mediation for committing murder of deceased. So the act falls under section 304-II RPC. 9. In view of above, the contents of charge sheet framed under section 302 RPC by Court below is set-aside. Court below to frame charge under section 304-II RPC and proceed under law. File of court below be sent back immediately. 10. This petition is allowed in the aforementioned terms.