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2018 DIGILAW 196 (JK)

Arun Sharma v. State of J&K

2018-04-02

JANAK RAJ KOTWAL

body2018
JUDGMENT : Heard. 1. In this petition under section 561-A Cr.P.C. petitioners (accused) seek quashing of order dated 23.05.2017 passed by the trial court, whereby the trial court on consideration of the record produced by the prosecution found prima facie case of commission of offences under Sections 307, 341, 325, 323, 427/34 RPC and Section 30 Arms Act by petitioner (accused) No. 1, under Sections 307, 341, 325, 323, 427/34 RPC and Section 4/25 Arms Act by petitioner (accused) No. 2 and under Sections 307, 341, 325, 323, 427/34 RPC by petitioner (accused) No. 3. By the same order learned trial court framed charges against the petitioners, which, however, were read over and explained to them on the next date thereafter, that is, 26.05.2017. Petitioners also seek quashing of the charges framed against them. 2. Learned counsel for the petitioners, Mr. D.S. Saini, Advocate, would say that the material (evidence) produced by the prosecution does not disclose the commission of offence under Section 307 RPC at all and any offence by petitioner No. 3. Learned AAG, however, supports the impugned order. 3. Prosecution version precisely is that PWs (victims) Pardeep Sharma and Rakesh Sharma were waylaid by the petitioners. Petitioner, Arun Sharma, was armed with revolver, petitioner, Ajit Sharma, with Toka and petitioner, Ajay, with hockey-stick. The statements of these two witnesses recorded during investigation of the case would show that no shot was fired through the said revolver though according to them, petitioner, Arun Sharma had pointed the revolver towards PW Pardeep Sharma. The medical certificates issued by the Doctor would show that none of the injuries found on the person of both the victims was caused with sharp weapon and all were caused by blunt weapon/object though two injuries in the head/face area and one injury on right hand of PW Pardeep Sharma and only one injury on upper lip of PW Rakesh Sharma were grievous in nature. It is, thus, clear that no shot was fired through the revolver nor the sharp edge of the weapon, that is, Toka was used in the course of alleged assault/attack by the petitioners on the victims. 4. It is, thus, clear that no shot was fired through the revolver nor the sharp edge of the weapon, that is, Toka was used in the course of alleged assault/attack by the petitioners on the victims. 4. For commission of an offence under Section 307 RPC, the act, which is done by the accused should have been done with the intention or knowledge, and under such circumstances that if by that act death was caused, assailant would be guilty of murder. 5. That none of the petitioners had used the revolver or the sharp edge of the Toka, which were available with them as also the gravity of the injuries clearly indicate that neither there was intention to cause death nor the assault and infliction of blows was carried out with the knowledge that death would be caused. No prima facie case for proceeding against the petitioners for commission of offence under Section 307 RPC is, therefore, made out. I, however, find no substance in the contention of the learned counsel for the petitioners that no prima facie case is made out against the petitioner No. 3 once it is evident that he was accompanying the other petitioners. It is stated by the witnesses that he was also involved along with other in inflicting fists and blows on the victims. 6. Learned counsel for the petitioners has rightly pointed out the irregularity in the procedure committed by learned trial Judge. The impugned order passed on 23.05.2017 would show that petitioner (accused) No. 2 was not present in the court on that day and the learned Judge did not allow the application for his exemption from personal appearance filed by the defence counsel. Nonetheless, learned trial Judge heard arguments in the case and found a case for framing charge against all the petitioners. On the same day learned Judge prepared the charge-sheets but did not read over and explain the same even to the petitioners who were present before the court due to absence of one of petitioners. Particulars of charge were read over and explained to all the petitioners on the next date when all of them were present. Trial court better should have exempted the petitioner (accused) who was not present and, after finding prima facie case for framing charge, should have adjourned the case for the next date for framing of charges and explaining them to the petitioners. Trial court better should have exempted the petitioner (accused) who was not present and, after finding prima facie case for framing charge, should have adjourned the case for the next date for framing of charges and explaining them to the petitioners. 7. Be that as it may, as the conclusion in regard to framing of the charges has been arrived at after hearing learned defence counsel and charges have been read over and explained to the petitioners on the next date, no illegality in the proceedings can be said to have taken place, though I may reiterate that the things could have been done in a better way. 8. Viewed thus, all the petitioners are discharged of offence under Section 307 RPC and impugned order dated 23.05.2017 and the charge-sheets drawn by the trial court stand modified accordingly. 9. Record of the trial court be remitted back along with a copy of this order. Disposed of.