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2017 DIGILAW 970 (JK)

Nazir Hussain v. State Of Jammu And Kashmir

2017-10-28

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. The petitioner has filed this criminal revision against order dated 23.08.2016 passed by the Court of Ld. Additional Sessions Judge, Rajouri in criminal challan titled State of J&K vs. Mohd. Shafi and others whereby respondents 2 to 6, who are arrayed as accused persons, have been wrongly and erroneously been charged for commission of offence punishable under section 306 instead of 302 Ranbir Penal code. 2. It is stated in the petition that the petitioner is unfortunate father of Mst. Zahida Parveen, who was married to respondent No. 2 and has been brutally murdered by the respondents No. 2 to 6 in a well hatched conspiracy on 31.12.2015 i.e. just after two years of her marriage. The petitioner is aggrieved of the order dated 23.08.2016 passed by the Court of Ld. Additional Sessions Judge, Rajouri in criminal challan titled State of J&K vs. Mohd. Shafi and others whereby the respondents 2 to 6, who are arrayed as accused persons, have been wrongly and erroneously been charged for commission of offence punishable under section 306 Ranbir Penal code instead of 302 Ranbir Penal code. 3. It is stated in the petition that the marriage of the daughter of the petitioner was solemnized with respondent no.2 at Rajouri. Just after the marriage, her husband and in-laws i.e. respondents 2 to 6 started maltreating and harassing the daughter of the petitioner and just after few months of the marriage, she was thrown out of her matrimonial home. She started living with respondent no.2 at Rajouri in a rented accommodation. That the respondent no.2 even while living with the daughter of the petitioner at the rented accommodation used to harass, beat and assault her on trivial issues on the instigation of respondents no. 3 to 6. All the atrocities and physical assault made on the daughter of the petitioner were complained by the daughter to the petitioner and the matter was also brought to the notice of relatives and due to their intervention number of Panchayats was convened in the village to resolve the matrimonial issue. That the respondent no. 2 to 6 time and again admitted their guilt before the Panchayat and undertook that they will not harass the daughter of the petitioner. Because of their assurance, undertaking and promise before the Panchayat, the daughter of the petitioner went to her matrimonial home. That the respondent no. 2 to 6 time and again admitted their guilt before the Panchayat and undertook that they will not harass the daughter of the petitioner. Because of their assurance, undertaking and promise before the Panchayat, the daughter of the petitioner went to her matrimonial home. That on 31.12.2015 when the daughter of the petitioner was at her matrimonial home, the respondents no. 2 to 6 picked up a quarrel with the daughter of the petitioner and finally in a well planned criminal conspiracy brutally murdered her. However, the death of the daughter of the petitioner was projected by the respondents 2 to 6 as a case of suicide as after committing murder of the daughter of the petitioner, she was hanged with the roof just to project as if the daughter of the petitioner has committed suicide. 4. It is also stated in the petition that with respect to the death of the daughter of the petitioner, inquest proceedings were initiated by the respondent no. 1 in which statements of the witnesses were recorded who before the Investigating officer specifically stated that the daughter of the petitioner has been murdered by the respondents no. 2 to 6 as all of them were highly inimical against the daughter of the petitioner and murdered her in a well planned conspiracy. One of the witnesses namely Mohd. Rafiq specifically told the Investigating Officer that he had seen the dead body of the deceased lying on the floor of the house where all the accused persons were sitting together and he reached the spot, the respondent no. 6 abused him and asked him to leave her house. That after holding inquest proceedings, FIR No. 28 of 2016 dated 16.01.2016 for commission of offences punishable under section 306 Ranbir Penal code against the respondents no. 2 to 6 were registered and respondents no. 2 to 6 were arrested. That the post-mortem of the deceased was conducted and as per the post mortem report and observations made therein by the doctors concerned it prima facie proves to be a case of murder and not a suicide. 2 to 6 were registered and respondents no. 2 to 6 were arrested. That the post-mortem of the deceased was conducted and as per the post mortem report and observations made therein by the doctors concerned it prima facie proves to be a case of murder and not a suicide. That after postmortem was conducted, the dead body of the deceased was brought back where the ladies namely Zatoon Begum, Farzand Begum, Rashida Begum and Jasbir Begum gave bath to the dead body before burial, had observed that number of injuries on the dead body and especially right upper arm of the deceased fractured, right thumb fractures, injury marks over buttocks, lower abdomen and clavicle fracture, which they all narrated before the Investigating officer, but their statements were not recorded apparently due to the pressure and influence yielded by the accused persons. All these witnesses have duly sworn affidavits swearing therein the aforesaid incident in detail. 5. That the cloth which was used by the respondents no. 2 to 6 for the purpose of hanging the dead body clearly depicts the true picture of the occurrence as the photographs of the hanging dead body clearly show that there is no knot of the cloth on the neck of the deceased, which proves that the dead body was hanged after the deceased was murdered by the accused persons. That after conducting the investigation the respondent no.1 presented a criminal challan titled State of J&K vs. Mohd. Shafi and others which is pending trial before the Court of learned Additional Sessions Judge, Rajouri. That the Court of learned Additional Sessions Judge, Rajouri after hearing the accused persons on framing of charge, despite strong and prima facie evidence led by the prosecution with respect to charging the accused persons for commission of offence punishable under section 302 RPC, the learned Trial Court passed the order impugned dated 23.08.2016 whereby the respondents no. 2 to 6 have been charged for commission of offence punishable under section 306 Ranbir Penal code instead of charging them for commission of offence punishable under section 302 Ranbir Penal code. 6. 2 to 6 have been charged for commission of offence punishable under section 306 Ranbir Penal code instead of charging them for commission of offence punishable under section 302 Ranbir Penal code. 6. That the petitioner is aggrieved of the order impugned dated 23.08.2016, therefore, seeks to challenge the same on the following amongst other grounds: (a) That the order impugned is against law and facts of the case, therefore, the same deserves to be set aside (b) That there is prima facie evidence projected before the learned Trial Court which clearly warrants framing of charges against the accused persons for commission of offence punishable under section 302 RPC, but the learned Trial Court without proper appreciation of the said evidence has charged the accused persons for offence u/s 306 Ranbir Penal code. On this ground also, the order impugned deserves to be set aside. (c) That the Ld Trial Court has failed to appreciate that the prosecution in its case has specifically pleaded before the Ld. Trial Court that if the observations and symptoms of the deceased as recorded in the postmortem report are evaluated and weighed on the touchstone of the criminal jurisprudence, then there could have no occasion for the learned Trial Court to arrive at the impugned conclusion. In the post mortem report it is clearly indicated that the deceased had suffered serious injuries, which cannot be suffered by a person who had hanged himself/herself that too without a knot of the cloth on the neck. This crucial aspect has been clearly overlooked and brushed aside by the Ld. Trial Court while passing the order impugned On this ground also, the impugned order is not legally sustainable, therefore, the same deserves to be set aside. (d) That the evidence of the doctor recorded during the trial clearly proves the case of the prosecution that the accused persons are guilty of commission of crime punishable under section 302 Ranbir Penal code. The doctor in her evidence has clearly stated that there were no ligature marks present on the neck of the deceased. (e) That the investigating agency in order to help the accused persons have committed serious illegality in not recording the evidence of aforesaid female folks who have duly sworn affidavits and who have witnessed various injuries and fractures suffered by the deceased. The learned Trial Court while framing the charges against the respondents no. (e) That the investigating agency in order to help the accused persons have committed serious illegality in not recording the evidence of aforesaid female folks who have duly sworn affidavits and who have witnessed various injuries and fractures suffered by the deceased. The learned Trial Court while framing the charges against the respondents no. 2 to 6 has shown no inclination towards the aforesaid factors which rendered the order impugned highly vitiated and is able to be set aside. (f) That the respondents are guilty of commission of crime punishable under section 302 Ranbir Penal code as they all in a well planned conspiracy, brutally murdered the deceased after inflicting various injuries and fractures on the person of the deceased and later on succeeded in giving it a color of suicide, by getting the dead body of the deceased hanged in such a manner which does not in any manner proves to be a suicide by hanging. The learned Trial court has just swayed away with the case projected by the accused persons and did not return any findings which respect to the observations and symptoms observed by the doctor in the light of medical jurisprudence and thus committed a serious illegality in charging the accused persons for commission of offence punishable under section 306. (g) That since the Ld. Trial Court has passed the order impugned without properly evaluating the evidence and available material; therefore, the order impugned is not legally sustainable. 7. With the aforementioned submissions made in the petition, petitioner has prayed that the instant petition be allowed by setting aside the order dated 23.08.2016 passed by the Court of learned Additional Sessions Judge, Rajouri whereby the respondents No. 2 to 6, who are arrayed as accused persons, have been wrongly and erroneously been charged for commission of offence punishable under section 306 Ranbir Penal code instead of 302 Ranbir Penal code. 8. Status Report stands filed on behalf of respondent No. 1 stating therein that on 31.12.2005 a reliable information was received at Police Station, Rajouri that one lady namely Zahida Kouser, W/o Mohd. Shafiq found died, hanged in the roof of her house at Kote Dhara under suspicious circumstances, so inquest proceeding u/s 174 Cr.PC was initiated vide DDR No. 28, dated 31.12.2015 and enquiry was entrusted to ASI Roshan Lal. Shafiq found died, hanged in the roof of her house at Kote Dhara under suspicious circumstances, so inquest proceeding u/s 174 Cr.PC was initiated vide DDR No. 28, dated 31.12.2015 and enquiry was entrusted to ASI Roshan Lal. The enquiry officer visited, prepared site plan and completed all legal formalities, also recorded statements of witnesses u/s 175 Cr.P.C., dead body of deceased has been shifted to District Hospital, Rajouri through ambulance for autopsy and kept in mortuary room, got conducted autopsy later on. Dead body of the deceased was handed over to its legal heirs for last rites. Later on a Special Investigation Team (SIT) was constituted headed by SI Mohd. Rafiq (SIT) was constituted for enquiry. During the course of investigation, the inquest proceeding was converted into case FIR No. 28/2016, u/s 306 Ranbir Penal code. That the I.O. seized the inquest file in the case, enquired the matter from alleged accused persons and reflected details in the case diaries. SHO also recorded the statements of witnesses u/s 161 Cr.P.C. and on the basis of statements recorded u/s 161 Cr.P.C., linked accused persons with the commission offence u/s 306 Ranbir Penal code and during investigation offence u/s 306 Ranbir Penal code proved against accused persons namely 1. Mohd. Shafiq, 2. Mohd. Ali, 3. Abdul Gafoor, 4. Mohd. Mobine, Ss/o Mohd. Rafiq, 5. Mst. Saleema Begum, W/o Mohd. Rafiq Mughal, R/o Kote Dhara, who were arrested into the case and lodged in Judicial remand at District Jail, Dhangry. The investigation of the case was closed as challan and challan was produced in the Court of Law against the supra mentioned accused persons. 9. Heard learned counsel for both the sides and considered the law on the subject. 10. In order to appreciate the contentions of the parties in this petition, it may be noticed that Section 268 and 269 of Cr.P.C. relate to the trial of cases before the Court of Sessions. It is apt to quote sections 268 and 269 of Cr.P.C as under: - 268 Discharges: 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. 11. A conjoint reading of sections 268 and 269 of Cr.P.C. would reveal 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 exclusively triable by Court of Session, he shall frame charges against the accused person/s. At the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Judge while considering the question of framing the charges under section 269 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 12. In present case charge sheet has been laid u/s 306/RPC, before court below and court has also framed charges under section 306/ Ranbir Penal code against all the accused persons. 12. In present case charge sheet has been laid u/s 306/RPC, before court below and court has also framed charges under section 306/ Ranbir Penal code against all the accused persons. In order to solve controversy, it is apt to define section 306 RPC:- Sec.306 Abetment of suicide If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 13. Abetment has been defined under section 107 of Ranbir Penal code. Section 107 Ranbir Panel Code reads as under:- 107. Abetment of a thing; A person abets the doing a thing, who-Firstly- Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Internationally aids, by any act or illegal omission, the doing of that thing. 14. A conjoint reading of both sections, it comes that accused should have done some active suggestion or support to the commission of offence. The word instigates literally means to urge forward, provoke, incite or encourage to do an act and a person is said to instigate another, when he actively suggest or stimulate him to act by any means. Legality of Section 306 Ranbir Penal code is dependent upon the act of abetment for commission of the suicide. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to commission of suicide. 15. In cases like, abetment to suicide founded on the grounds of demand of dowry, cruelty or mental torture, evidence of systematic demand of dowry, cruelty or mental torture or physical assault are required to be proved by prosecution. Section 114-C of Evidence Act is also relevant in abetment of suicide by a married woman. 15. In cases like, abetment to suicide founded on the grounds of demand of dowry, cruelty or mental torture, evidence of systematic demand of dowry, cruelty or mental torture or physical assault are required to be proved by prosecution. Section 114-C of Evidence Act is also relevant in abetment of suicide by a married woman. Section 114-C reads as under: - 114-C. Presumption as to abetment of suicide by a married woman; When the question is whether the commission of suicide by a woman has been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation For the purpose of this section cruelty shall have same meaning as in section 498-A of the State Ranbir Penal Code, Samvat 1989). 16. As per wording in presumptive provision of Section 114-C of Evidence Act, one of essential ingredients is that woman must have been soon before her death subjected to cruelty or harassment, which forced her to commit suicide. Term cruelty has been defined under Section 498-A Ranbir Penal code. Firstly prosecution has to prove the essential ingredients of Section 498-A Ranbir Penal code and only thereafter Section 306 of Ranbir Penal code is applicable. Section 498-A Ranbir Penal code is reproduced as under:- 498-A. Husband or relative of husband of a woman subjecting her to cruelty, Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section cruelty means (a) any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 17. In the present case, prosecution case is that due to continuous harassment and cruelty by accused persons, deceased committed suicide. Even on fateful day, she was beaten. There is ample evidence in shape of statements of witnesses, who are father and brother, recorded u/s 164-A Cr.P.C and the statement of other witnesses other is that accused including husband and parents in laws of deceased used to beat and humiliate; due to ill-treatment and harassment by accused persons, she hanged herself. Further, it is also a fact that deceased committed suicide within two years of marriage and at this stage, a presumption can be drawn in terms of section 114 C of Evidence Act that deceased had committed suicide as her husband and parents in law had subjected her to cruelty. 18. The argument of learned counsel for petitioner is that the cloth which was used by the respondent nos. 2 to 6 for the purpose of hanging the dead body clearly depicts the true picture of the occurrence as the photographs of the hanging dead body clearly show that there is no knot of the cloth on the neck of the deceased, which proves that the dead body was hanged after the deceased was murdered by the accused persons, is not tenable at this stage because it is a fact to be established during trial. There is no dispute with regard to criminal jurisprudence that court while framing charge, it has not to act like post office and has to frame charge as noted in charge sheet by police. The court has to take cognizance of offence and so has to evaluate the all record of the case and the documents submitted therewith. There is no dispute with regard to criminal jurisprudence that court while framing charge, it has not to act like post office and has to frame charge as noted in charge sheet by police. The court has to take cognizance of offence and so has to evaluate the all record of the case and the documents submitted therewith. If after doing so and after hearing of accused and prosecution court comes to definite conclusion that other offence /s is/are made out, than court shall frame that charge/s accordingly. Court should not perform this judicial act casually. This is serious and valuable step for court, prosecution and accused. Because charge framed is base for prosecution and defense in future trial. Further court has power to alter the charges at any stage of proceeding before final judgment. 19. In this way I do agree with the order of trial court that there is ground for presuming that the accused persons have committed an offence u/s section 306/34 R.P.C. and not 302 /34 Ranbir Penal code. The order of court below is well reasoned based on law pronounced by Apex Court on which reliance has been made. 20. In view of what has been discussed above, I am of the view that there is no infirmity of law and facts in order of court below. Hence, this petition is dismissed. The trial court record be sent back immediately for future trial.