State Of J&K And Another vs Tanveer Ahmad Salah And Others
2021 Latest Caselaw 560 j&K/2

            HIGH COURT OF JAMMU AND KASHMIR
                          AT SRINAGAR
                                                 Reserved on     23.03.2021
                                                 Pronounced on   19.05.2021

                                                  CRR No. 27/2010

State of J&K and another                          ...Petitioner/Applicant(s)

              Through :- Ms. Asifa Padroo, AAG
             v/s<




Tanveer Ahmad Salah and others
't
                                                        .....Respondent (s)

                Through :- Mr. M. A. Qayoom, Advocate
Coram:      HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                 JUDGMENT

1. The present revision petition has been preferred against the order dated

27.07.2010 (hereinafter to be referred as the order impugned) passed by

the Court of Learned 1st Additional Sessions Judge, Baramulla

(hereinafter to be referred as the trial court) by virtue of which the

respondents have been discharged for commission of offences under

sections 302, 307 RPC and section 3 of the Public Properties

(Prevention of Damages) Act and have been ordered to be charged for

commission of offences under sections 304-A, 323, 336, 341, 427, 148

and 149 RPC.

2. The order impugned has been assailed primarily on the ground that the

learned trial court has exceeded its jurisdiction and has virtually

appreciated the statements of the witnesses recorded under sections 161

and 164-A Cr.P.C while passing the order impugned as if the trial court

was passing final judgment of conviction or acquittal. It is also stated

that the trial court has discharged the accused on the ground that there

are no chances of conviction of the accused under the provisions of

sections 302, 307 and section 3 of Public Properties (Prevention of

Damages) Act. It is also further stated that the learned trial court has

committed a material irregularity by returning a finding that there is

contradiction between the opinions submitted by the two medical

officers.

3. Briefly stated, the prosecution case is that on 22.02.2010, FIR bearing

No. 47 of 2010 was registered in Police Station, Baramulla for

commission of offences under sections 148, 149, 302, 307, 336 and 341

RPC and section 3 of Public Properties (Prevention of Damages) Act on

the basis of a reliable information that at Stadium Colony Baramulla, a

group of unruly stone pelters boarded the Sumo vehicle of unknown

registration number, are raising objectionable slogans and are forcibly

de-boarding the passengers from the vehicle coming from Rafiabad in

order to enforce a hartal call and beating the passengers and have also

caused damage to the vehicles. It was also reported that the said persons

have also dragged a lady, namely, Kulsuma W/o Nissar Ahmad Magray

with a intention to kill her and infant in her lap, namely, Irfan Ahmad

Magray was killed while her another son, namely, Ubaid age 4 years

was injured. The riders were having „dandas and stones‟ and were doing

these activities in order to implement the call of hartal. After the

registration of FIR, investigation was started and it was found that the

incident had actually occurred near Aqua Impex Foods Baramulla

instead of Stadium Colony, Baramulla and after the inspection of place

of occurrence, the site plan was prepared by the Investigating Officer

and dandas, stones, glass pieces and shoes of different sizes from spot

were also recovered and seizure memos were prepared. The statements

of the witnesses were recorded. The dead body of the deceased was

taken into possession from the Dangi Wacha Hospital and injury memo

in respect of the injured child was also prepared but due to his being of

tender age the statement was not recorded. PW 29 i.e. Medical Officer,

Dangi Wacha Hospital reported the cause of death of the infant as

"crushed to death by a mob followed by his bleeding from nose and

mouth". However, the opinion for the injured child was reserved. As the

parents of the deceased did not agree for post-mortem, so the body of

the deceased(infant) was handed over to them for performing of his last

rites. The Medical Superintendent of District Hospital Baramulla was

also communicated for report in respect of the treatment and the cause

of death of the infant and on receipt of his report, it was found that the

cause of death as opined by the Superintendent, District Medical

Hospital, Baramulla could be due to „Septicemia‟.

4. In order to clear the confusion with regard to the contradictory medical

opinions, District Magistrate, Baramulla was requested for the

exhumation of the body of the infant but no order was received. The

search of the vehicle in which the deceased and his injured brother had

boarded along with their parents and grandparent was concluded but no

clue could be ascertained in respect of the said vehicle.

5. The respondents Nos. 1 to 8 were arrested, however, accused Nos. 9 to

11 could not be apprehended and they were proceeded against under

section 512 Cr.P.C. As the period of sixty days was expiring, the challan

was filed by the Investigating Officer and it was stated that further

investigation in respect of other important material will continue. The

challan was committed by the learned Magistrate vide order dated

23.04.2010 and the same was finally transferred to the court of learned

1st Additional Sessions Judge, Baramulla.

6. The learned trial court after hearing the arguments on charge/discharge,

discharged the respondents 1 to 8 for commission of offences under

sections 302 and 307 RPC and also section 3 of the Public Properties

(Prevention of Damages) Act and charged the respondents for

commission of offences under sections 148, 149,341, 336, 323, 304-A,

and 447 R.P.C.

7. Ms. Asifa Padroo, learned AAG appearing for the petitioners has

vehemently argued that the learned trial court has passed the order

impugned as if the learned trial court was passing a judgment after the

conclusion of the trial and the exercise of appreciation of evidence as

conducted by the learned trial court, can be conducted only after the

conclusion of the trial and the learned trial court virtually prejudged the

case. Ms. Padroo has vehemently argued that the respondents were well

aware about the consequences of their act that they were performing

and as such, the learned trial court at this stage, could not have returned

any finding with regard to lack of intention to cause of particular

offence. Ms. Padroo further argued that by no stretch of imagination

offence under section 304-A RPC could be attributed to the respondents

and they were required to be charged for commission of offences under

sections 302 and 307 RPC.

8. Mr. M. A. Qayoom, learned counsel appearing for the respondents has

vehemently argued that the learned trial court has rightly passed the

order as the intention of the respondents was never to cause death of any

person and they were simply enforcing the hartal and if in enforcing the

hartal, death of the infant has taken place, the respondents cannot be

charged of offence under section 302 RPC. He has also vehemently

argued that even offence under section 304-A RPC is not made out

against the respondents.

9. Heard and perused the record of the trial court.

10. As per the mandate of section 267 and 268 of the Code of Criminal

Procedure (now sections 227 and 228 of the Cr.P.C.), while considering

the issue of framing of charge/discharge of the accused, the learned trial

court has to form an opinion on the basis of material placed on record by

the Investigating Officer as to whether there is sufficient ground for

presuming that the accused has committed an offence or not and the

material on record would constitute the statement of witnesses, injury

report/post-mortem report along with other material relied upon by the

prosecution. At this stage, learned trial court cannot indulge in critical

evolution of the evidence, that can be done at the time of final

appreciation of evidence after the conclusion of the trial.

11. The charge can be framed against the accused even when there is a

strong suspicion about the commission of offence by the accused and at

the same time, the learned trial court is not expected to merely act as a

post office and frame the charge just because challan for commission of

a particular offence has been filed against the accused. The learned trial

court can sift the evidence brought on record by the prosecution so as to

find out whether the un-rebutted evidence placed on record fulfils the

ingredients of the offences or not. But at the same time, the learned trial

court cannot conduct a mini trial to find out as to whether the

accused/respondents can be convicted for a particular offence or not. If

the ingredients are lacking then, the court has no option but to discharge.

12. The Apex Court in Sajjan Kumar v. CBI reported in (2010) 9 SCC

368 after considering its various pronouncements has culled out the

following principles of law:

"Exercise of jurisdiction under Sections 227 and 228 CrPC

21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed

offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, 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 disclose the existence of all the ingredients constituting the alleged offence. 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.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

13. In State of Karnataka v. M. R. Hiremath, (2019) 7 SCC 515, the

Apex Court has held as under:

"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) "29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has

been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

14. Now this Court would examine the order impugned on touchstone of

law mentioned above.

15. Sections 299 and 300 RPC are reproduced as under:

"299. Culpable homicide whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Explanation: (1) a person who causes bodily injury to another who is laboring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that others, shall be deemed to have caused his death (2) where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. (3) the causing of the death of a child in the mother‟s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth though the child may not have breathed or being completely born."

300. Except in the cases herein after excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or;- Secondly,- if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly,- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly, if the person committing the act knows that it is so imminently dangerous that it must in all probability 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 aforesaid."

16. Thus, the persons can be charged for offence of murder if the act by

which death is caused falls within the essentials as prescribed under

section 300 RPC and in other cases of culpable homicide not amounting

to murder, the accused can be prosecuted for offences under section

304-part I or 304-part II RPC. A person can be charged for commission

of offence under section 304-part II RPC if the act is done with the

knowledge that it is likely to cause death but without any intention to

cause death or to cause such bodily injury as is likely to cause death.

Thus, it is clear when an accused has a knowledge that a particular act is

likely to cause death though he never intended to cause death, still he

can be prosecuted for commission of offence under section 304-part II

RPC.

17. So far as the instant case is concerned, this is the prosecution story that

the respondents in order to enforce hartal armed with dandas and stones,

were stopping the vehicles and were forcibly dragging the passengers

out of the vehicles and while they were doing so, they entered into the

vehicle, Tata Sumo in which PW-24 Ghulam Rasool Tali, PW-25 Mst

Kulsuma and PW-26 Nissar Ahmad Magray were travelling with infant

Irfan Ahmad Magray a child of 11 days old in the lap of his mother and

Ubaid. There are statements of witnesses of PW Nos. 24 to 26 about the

forcible de-boarding of the passengers from the vehicle (Tata Sumo).

Once the respondents were forcibly de-boarding the passengers, they

can be presumed to have a knowledge that forcibly de-boarding a lady

having a minor infant in her lap may result in to death or fatal injury to

infant. Even the death or injury to any other major person travelling in a

vehicle may occur. No doubt there is no evidence on record that the

respondents intended to cause the death as it is evident that the

respondents were enforcing hartal but at the same time, they can be

presumed to have a knowledge that by dragging and forcibly throwing

out any person out of the vehicle may result into injury/death of any

person.

18. I have perused the order of the learned trial court and the learned trial

court instead of sifting the evidence, has virtually conducted the mini

trial by pointing out the contradictions between the statements of the

witnesses i.e. PWs 24, 25 and 26 i.e. the grandfather, mother and the

father of the deceased-infant. No doubt, the PWs 24, 25 and 26 have not

said anything about the identification of the respondents but at the same

time, there is set of evidence in the form of statements of PWs, 5, 13,

16, 20, 21, 22 and 23 with regard to the identification of the accused

persons. The learned trial court further seems to have been swayed by

the contradictory evidence of the two doctors as one has opined that the

death in this case was due to crushing while the other has opined that the

death was due to „septicemia‟. The learned trial court has also observed

at page no. 35 that PWs 5, 13, 16, 20, 21, 22 and 23 had given evidence

during investigation regarding the identification of the accused persons.

The prosecution has cited as many as 42 witnesses out of which almost

more than 20 witnesses are the eye witnesses. The learned trial court, at

the time of framing of charge, should not have given much value to the

contradictions between two medical reports as when the eye witnesses

with regard to the occurrence were available then the medical evidence

has to be appreciated in light of the ocular evidence. After testimonies of

eye witnesses in the court, the trial court could have appreciated the

medical evidence in light of the direct evidence. Otherwise also opinion

of Medical Superintendent District Hospital that death could be due to

septicemia, was not conclusive in nature.

19. From the evidence brought on record, there is no evidence with regard

to the offence under section 302 RPC but at the same time there is

sufficient material on record in the form of statements of eye witnesses

coupled with the medical report of Medical Officer Dangi Wacha

Hospital that the minor child of 11 days died because of the act of the

respondents of forcibly de-boarding the passengers from the vehicle in

question. The accused at this stage can be presumed to have a

knowledge that by enforcing hartal in such a manner by forcible

dragging the passengers out, their act may result into injury or death of

any person, as such, I am of the considered opinion that the learned trial

court has wrongly framed the charge for commission of offence under

section 304-A RPC against the respondents. The respondents are

required to be charge sheeted for commission of offences under sections

304-part II, 323, 336, 341, 427, 148 and 149 RPC. So far as the

discharge of the respondents for commission of offence under section

307 RPC and 3 Public Properties (Prevention of Damages) Act is

concerned, there is no illegality in the order impugned.

20. In view of the above, the order of the trial court so far as the framing of

charge for commission of offence under section 304-A RPC is

concerned, the same is required to be set aside, as such, the same to that

extent is set aside. The trial court is further directed to frame the charges

against the respondents for commission of offence under sections 304-

Part II, 323, 336, 341, 427, 148 and 149 RPC.

21. As this Court has ordered the framing of charge against the respondents

for commission of offence under section 304-Part II RPC, this Court

deems it proper to grant one month‟s time to the respondents to

approach the trial court for seeking bail in the said offence as the

accused-respondents have been enlarged on bail for commission of

offence under section 304-A RPC only along with other offences. Till

the trial court decides the bail application, respondents shall remain on

bail subject to same terms and conditions.

22. Accordingly, this petition is partly allowed. Record of the trial court be

sent to Learned 1st Additional Sessions Judge Baramulla along with a

copy of this judgment. Parties shall cause their appearance before the

trial court through the mode available on 07.06.2021.

(RAJNESH OSWAL) JUDGE JAMMU 19.05.2021 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes