Jammu & Kashmir High Court - Srinagar Bench
Farameena Jan And Others vs Union Territory Of J&K &Anr on 29 March, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 25.03.2022
Pronounced on:29.03.2022
Crl. R No.21/2021
c/w
Bail App No.108/2021
FARAMEENA JAN AND OTHERS ... PETITIONER(S)
Through: - Mr. Hakim Suhail Ishtiyaq, Advocate
Vs.
UNION TERRITORY OF J&K &ANR. ...RESPONDENT(S)
Through: - M. A. Chashoo, AAG-for R1.
Mr. Z. A. Qureshi, Sr. Adv. With
Mr. M. Asif-for R2.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By this common order, revision petition filed against order dated 24.01.2021, passed by learned Principal Sessions Judge, Anantnag, whereby the petitioners have been charged for offences under Section 147, 341, 447, 307, 302 and 120-B IPC, and the application for grant of bail to the petitioners are proposed to be disposed of.
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2) Before coming to the grounds urged by the petitioners in the above two petitions, it would be apt to notice the case projected by the prosecution in the charge sheet.
3) On 09.07.2020, a written report was lodged by the complainant before Police Station, Kokernag, alleging therein that he along with his son, Zakir Hussain, were working in their fields situated near Dawoodia Public School, Gohan Vailoo. In the meanwhile, the petitioners including the co-accused came over there and they trespassed into the land of the complainant. It was alleged that the land of the accused party is also situated adjacent to the land of the complainant party. The accused are alleged to have given a beating to Zakir Hussain and in the meantime another son of the complainant, namely, Ishfaq Ahmad Sheikh tried to intervene but he was caught by the accused persons and was thrown on the ground with an intention to kill him whereafter he was beaten up and was given kicks on his abdomen. Said Shri Ishfaq Ahmad Sheikh fell unconscious and the accused persons fled away from the spot. The injured was taken to the hospital where he was declared as brought dead.
4) After registration of the FIR, statements of some of the witnesses were recorded under Section 164 of Cr. P. C whereas statements of certain other witnesses were recorded under Section 161 Cr. P. C. After collecting the evidence, the investigating agency came to the conclusion that offences under Section 147, 341, 447, 307, 302 3 and 120-B IPC stand established against the accused including the petitioners herein and the charge sheet was laid before the trial court.
5) Vide the impugned order dated 24.01.2021 passed by the learned trial court, the charges for offences under Section 147, 341, 447, 307, 302 and 120-B IPC were framed against all the accused including the petitioners herein. While holding so, the trial court observed that there is sufficient ground for presuming that the accused persons have trespassed into the land of the complainant and committed murder of the deceased. It appears from the trial court record that the statements of as many six eye witnesses have been recorded so far.
6) In the revision petition filed by the petitioners, all of whom happen to be ladies, it has been contended that there are no specific allegations, either in the charge sheet or in the statements of prosecution witnesses, against the petitioners and, as such, there was no occasion for the trial court to frame charges against them. It is further contended that the statements of prosecution witnesses are contradictory and some of the prosecution witnesses have not named the petitioners. It has been further contended that the cause of death of the deceased as given by the doctor is cardiac arrest and, as such, it is not a case of murder,
7) So far as the grounds for grant of bail are concerned, besides urging the aforesaid grounds, it has been urged that the statements of the eye witnesses recorded before the trial court during the trial of the 4 case do not support the prosecution case, inasmuch as these statements are contradictory and no specific role in the alleged crime has been attributed to the petitioners by the prosecution witnesses. It is also contended that the petitioners being ladies are entitled to bail in terms of proviso to Section 437 of Cr. P. C.
8) I have heard learned counsel for the parties and I have also gone through the record of the trial court.
9) The Sessions Court, while considering the question of framing of charge against an accused is guided by the provisions contained in Section 227 and 228 of the Cr. P. C. The same read as under:
227. 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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. 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 Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1 [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
5(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.
10) From a perusal of the aforesaid provisions it is clear that if upon consideration of record of the case and documents submitted therewith coupled with the arguments of the defence and the prosecution, the Court finds that there is no sufficient ground for proceeding against the accused, the order of discharge of the accused has to follow and in case, in the opinion of the Court, there is a ground for presuming that accused has committed an offence, the order framing charge has to follow.
11) The Supreme Court had an occasion to consider both these provisions in the case of Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460. The Court has, after noticing the provisions contained in Section 227 and 228 of the Code of Criminal Procedure, which relate to framing of charge against an accused, observed as under:
"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence 6 and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
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19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well settled law laid down by this Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39:
"4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-- ... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of 7 deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a 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 presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."
12) From a perusal of the afore-quoted ratio laid down by the Supreme Court, it is clear that at the time of framing of charge even a strong suspicion against an accused would justify framing of charge. The Court at this stage is not required to see whether the accused can be finally held guilty of the offence but it has to see whether there exist sufficient grounds for proceeding against the accused. The Court has to see whether, on the basis of material on record, 8 ingredients constituting the alleged offences are, prima facie, made out. For this limited purpose, sifting of evidence is permissible but probative value of the material brought on record by the prosecution cannot be gone into at this stage and there cannot be any roving enquiry into the pros and cons of the matter. The material cannot be weighed and evaluated in the manner in which the same is to be done at the conclusion of the trial.
13) In the backdrop of aforesaid legal position, the material produced by the prosecution along with the charge sheet is required to be evaluated for the limited purpose of ascertaining as to whether there is ground for presuming that the accused have committed the offences.
14) If we have a look at the statements of material witnesses recorded under Section 164 of Cr. P. C, it comes to the fore that PW Ghulam Nabi Sheikh (the complainant) has, in his statement, clearly stated that on the day of occurrence when he was working in his field along with his son, Zakir Hussain Sheikh, accused Ishfaq Ahmad Sheikh, Imtiyaz Ahmad Sheikh, Aamir Ahmad Sheikh, Gousia Jan, Farmeena alias Meena D/o Mohammad Ashraf Sheikh, Ruby Jan alias Aali Jan w/o Ishtiyaq Ahmad Sheikh and Shahijahan (Driver) came over there and they launched an attack on them. The accused started hitting his son, Zakir Hussain, with stones and in the meantime seven more accused, namely, Mudasir Ahmad Sheikh, Rahil Ahmad Sheikh sons of Ghulam Mohammad Sheikh, Ashiq Hussain Khanday S/o Ab. 9 Rashid Khanday, Ghulam Hassan Sheikh S/o Ghulam Rasool Sheikh, Abdul Majid Sheikh S/o Ama Sheikh, Jawhara W/o Abdul Majid Sheikh and Mohammad Ashraf Sheikh S/o Ghulam Rasool Sheikh, came over there and they participated in the quarrel. At this stage, the other son of the witness, namely, Ishfaq Ahmad Sheikh, tried to intervene but the accused committed his murder by launching an attack upon him. The deceased was given kicks on his belly until he went unconscious whereafter the accused fled away from the spot.
15) From the foregoing statement of the complainant, PW Ghulam Nabi Sheikh, it is clear that he has named all the accused including the petitioners herein and he has in clear terms attributed role to the petitioners with regard to killing of the deceased.
16) The other eye witnesses, whose statements have been recorded under Section 164 of Cr. P. C, include PW Zakir Hussain Sheikh, son of the complainant, and Rasik Ahmad, who have also deposed on the similar lines. Even the statements of other eye witnesses recoded by police under Section 161 of Cr. P. C. during the investigation of the case are also on the similar lines. Therefore, there is sufficient material on record to presume that the accused including the petitioners herein have committed the offences for which they have been charged by the trial court. It is not a case where there is no material on record against the petitioners but it is a case where there is sufficient material on record to suggest their involvement in the alleged crime. At the stage of framing of charge, contradictions inter 10 se the statements of prosecution witnesses cannot be looked into by the Court.
17) So far as the contention of learned counsel for the petitioners that as per postmortem report the cause of death of the deceased is cardiac arrest and, as such, it is not a case of murder, is concerned, the merits of the same can be determined only after the trial of the case when statement of the medical expert who has conducted the postmortem of the deceased is recorded.
18) Apart from the above, a perusal of the charge sheet shows that the Investigating Officer has sought clarification from the concerned Medical Officer with regard to postmortem examination report of the deceased. In his clarification, the Medical Officer has stated that cardiac arrest can be also caused when a person is beaten up. In the face of this material on record, it would be premature for this Court to frame any opinion in favour of the accused on the basis of the postmortem report of the deceased.
19) The learned trial court has passed an elaborate and detailed order dealing with all these contentions while framing charges against the accused including the petitioners herein. There is no infirmity or impropriety in the order passed by the learned trial court and, therefore, the same does not deserve to be interfered with in exercise of revisional jurisdiction of this Court.
20) That takes us to the grounds that have been urged by the petitioners for grant of bail. Before testing the merits of these grounds, 11 the legal position relating to grant of bail in heinous offences like murder is required to be noticed.
21) The Supreme Court in its catena of judgments has laid down the guidelines illustrating the matters which are required to be considered in such cases. The same read as under:
1. Whether there is a, prima facie, reasonable ground to believe that the accused had committed the offence;
2. Nature and gravity of the charge;
3. Severity of punishment in the event of conviction;
4. Danger of accused absconding or fleeing, if released on bail;
5. Character, behavior, means, position and standing of the accused;
6. Likelihood of the offence being repeated;
7. Reasonable apprehension of the witnesses being tampered with;
8. Danger of course of justice being thwarted by grant of bail;
22) So far as the instant case is concerned, the petitioners are facing the charge of murder which is punishable with death sentence or imprisonment for life. The Supreme Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another, (2004) 7 SCC 528, while laying down the guidelines for grant or refusal of bail in serious offences like murder, has observed as under:
"11.The law in regard to grant or refusal of bail is very well settled. The Court granting bail 12 should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others and Puran Vs. Rambilas and another.
12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay, supra)
23) In the aforesaid judgment, the Supreme Court has also observed that the conditions laid down in Section 437(1)(i) of Cr. P. C are sine qua non for granting bail even under Section 439 of the Code, meaning thereby that in a case where a person is alleged to be involved in an offence punishable with death sentence or 13 imprisonment for life, he cannot be released on bail if there appear reasonable grounds for believing that he has been guilty of such an offence. So, the petitioners in the instant case, in order to succeed in making out a case for grant of bail in their favour on merits, have to satisfy this Court that on the basis of the evidence led by the prosecution and the evidence that is proposed to be led by the prosecution, there is absence of reasonable grounds for believing that they have committed the offence.
24) Adverting to the facts of the instant case, as per the trial court record, as many as six eye witnesses have been examined by the prosecution which includes the complainant, PW-Ghulam Nabi Sheikh. A perusal of the statement of PW-Ghulam Nabi Sheikh reveals that he has implicated all the accused including the petitioners herein and he has, in his examination-in-chief, clearly attributed role to the petitioners in the alleged crime. His son, PW-Zakir Hussain Sheikh, has, prima facie, corroborated what PW-Ghulam Nabi Sheikh has stated and on the similar lines appear to be the statements of other eye witnesses, namely, Rasik Ahmad, Hilal Ahmad Parray and Manzoor Ahmad Sheikh.
25) It has been vehemently contended by learned counsel for the petitioners that there are contradictions in the statements of these eye witnesses inter se and even what they have stated in their cross-
examination, 14
26) It is a settled law that at the time of considering the bail plea of an accused, the Court has to avoid meticulous evaluation of the evidence led by the prosecution. The statements of prosecution witnesses at this stage are required to be evaluated for framing a prima facie opinion as to whether there are grounds for believing that the accused are guilty of offence of murder. If upon evaluation of the prosecution evidence, the Court is prima facie of the view that there are no such grounds, it is only then that an accused is entitled to grant of bail in an offence where the punishment provided is death sentence or imprisonment for life. As already noticed, the evidence led by the prosecution so far, prima facie, does suggest the involvement of the petitioners in the alleged crime. Therefore, at this stage it is not open to this Court to go into the contradictions in the statements of the prosecution witnesses and frame an opinion on this basis.
27) Even otherwise, out of as many as 18 eye witnesses, only 06 eye witnesses have been examined by the trial court. The statements recorded under Section 161 of Cr. P. C of those eye witnesses who are yet to be examined before the trial court, clearly implicate the petitioners in the alleged crime. Therefore, from the evidence that is proposed to be led by the prosecution, it cannot be stated that there is absence of reasonable grounds for believing that the petitioners have committed the offence. The petitioners, therefore, cannot claim bail on merits at this stage.
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28) Lastly, it has be contended by learned counsel for the petitioners that being ladies, the petitioners are entitled to concession/lenient view in the matter of grant of bail in their favour. It is correct that while considering the bail plea of a woman or an infirm person, the Court has a discretion to take a lenient view but then merely because the petitioners happen to be women does not give them a vested right to grant of bail in a offence which carries the punishment of death sentence or imprisonment for life. The fact that petitioners along with co-accused, numbering 14 in all, launched a murderous attack upon a hapless victim makes the crime of the petitioners' graver. Therefore, having regard to the character and behaviour of the petitioners and co-accused, the discretion of granting bail in their favour cannot be exercised at this stage.
29) For the foregoing reasons, I do not find any merit in any of the two petitions. The same are, accordingly, dismissed.
30) A copy of this order be sent to the learned trial court for information.
(SANJAY DHAR) JUDGE Srinagar, 29.03.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No