Jammu & Kashmir High Court
Amarjeet Singh And Etc. vs Amarjeet Singh Alias Happy And Anr. on 13 August, 2007
Equivalent citations: 2008CRILJ1208, 2008(3)JKJ292
Author: J.P. Singh
Bench: J.P. Singh
ORDER J.P. Singh, J.
1. Seized with the question as to whether or not charge was required to be framed against respondent Amarjeet Singh, and if so under which Section of the Ranbir Penal Code, Learned Principal Sessions Judge, Jammu came to the conclusion that the respondent was required to be charged under Section 304, II RPC. He did not find any case to frame a charge under Section 302, RPC against the respondent.
2. State of Jammu and Kashmir has questioned the order of Learned sessions Judge in Criminal Revision No. 31/2006 whereas one Amarjeet Singh, the brother-in-law of the deceased Amarjeet Singh has filed 561-A No. 24/2006 seeking similar relief.
3. Both these petitions have thus been taken up for joint consideration.
4. Facts necessary for the disposal of these petitions, as unfolded in Police Report under Section 173 of the Code of Criminal Procedure may, in brief, be stated thus:
One Narinder Singh alias Bittu was standing on a road near a bridge across the canal on 14-8-2005 when Amarjeet Singh alias Happy, armed with an iron rod (tyre lever) came on a scooter from his house at about 10 p.m. It was because of the old enmity between Narinder Singh and Amarjeet Singh that Amarjeet Singh respondent, made a murderous attack on Narinder Singh hitting him on his head and other parts of the body with the tyre lever which he had brought along with him. Narinder Singh received injuries on the head, nose and knees, Narinder Singh, succumbed to his injuries on the same day. The post-mortem examination of the deceased indicates following external and internal injuries:
1. Lacerated wound present over Lt. Side of face obliquely going upwards towards Lt. Ear 9 cm x 0.5 cm.
2. Abrasion over Rt. side of face 6 cm x 3 cm.
3. Abrasion over Nose 3 cm x 2 cm.
4. Abrasion over anterior aspect of Lt. Knee 4 cm x 2 cm.
5. Lacerated wound present over Lt. Parietal region 4 cm x 0.5 cm.
6. Haemotoma present over Lt. Parietal region 8 cm x 6 cm.
The injuries received on the head had been reflected in the post-mortem report in the following manner:
1. Scalp-Bruising present over Lt. Parietal region under scalp 10 cm. x 8 cm.
2. Bones-Fissure fracture Lt. Parietal Bone 3 cm.
3. Membrances Extradural haemorrhage Lt. Parietal Region.
4. Brain Substance subdural haemorrhage present.
5. Base of Skull : Membrances Intact.
Brain substance-Intra cerebral haemorrhage on Lt. side.
FIR No. 173/05 initially registered under Section 307/323, RPC at Police Station Domana, Jammu on the death of Narinder Singh was converted into one under Section 302, RPC.
5. While considering the case for framing charge against the respondent, the Learned Sessions Judge, Jammu, observed as follows:
While framing the charge the Court cannot over look the size of the weapon of offence used in the commission of the offence and the number of injuries inflicted on the vital part of the body which are most material to formulate an opinion with regard to the intention of the accused to commit murder. Further evidence of witnesses recorded under Section 161 Cr. P. C. amply transpires that there was hostility between the deceased and the accused long back and it was after 3-4 years of old hostility that on the fateful day accused met the deceased at 8.30 P. M. in the bazzar Gole Gujral where accused and the deceased had an altercation and deceased was told by the accused that he will kill him and thereafter the accused came on his scooter at 10.00 after one and a half hour of altercation in the night along with one iron rod (tyre lever) and inflicted its blow on the head of the deceased Narinder Singh. Had the intention of the accused been to commit the murder of the deceased Narinder Singh he would have not come on scooter with a tyre liver rod blunt object that too of the size of 201/2 inches but would have come with a sharp edged weapon like axe, swords, kirpan or with gun for the purpose of eliminating the deceased in a planned manner. Looking to the number of the injuries inflicted, which seems to be the single injury which has resulted in the death of the deceased and the evidence available on the file the intention on the part of the accused to cause death of the deceased cannot be imputed. Rather the evidence available on the file imputes knowledge of the accused to cause the death of the deceased which is amply made out from the evidence available on record. In this connection I am fortified by I (1997) CCR 320 : 1997 Cri LJ 1416 (Rajasthan H. C.) which is a direct authority on the point. Under this authority the weapon used was a sharp edged weapon and injury was caused on the vital part of the body i.e. head which resulted in the death of the injured, has held that the intention was to cause grievous injury not likely to result in his death. I am also fortified in my view by the authorities reported as JT 2004 (1) SC 358 : AIR 2004 SC 2688 and AIR 1994 SC 474 : 1994 Cri LJ 144.
In view of his observations, he accordingly held as follows:
In view of the above facts, the nature of the weapon used, the length of the weapon used, the number of injuries caused which is a single injury that caused death, the cumulative effect of the evidence and the fact that there is no evidence that the accused was openly carrying iron rod (tyre lever) in his hand while going on his scooter are sufficient to hold that accused had only knowledge that the injury inflicted by him is likely to cause the death but had no intention to cause the death of the deceased. As such offence under Section 302 RPC is prima facie not made out against the accused.
6. M/s. B.S. Salathia, Additional Advocate General, Learned State Counsel and Mr. Sakal Bhushan, appearing for the brother-in-law of the deceased have questioned Order dated 23rd of February, 2006 of Learned Sessions Judge, Jammu saying that the Learned Sessions Judge, Jammu had erred in discharging respondent Amarjeet Singh under Section 302 RPC although sufficient evidence was on records to justify charge under Section 302 RPC on the respondent.
7. Mr. Sunil Sethi, Learned Counsel for the respondent, however, justifies the Order of Learned Sessions Judge relying upon Pappu v. State of Madhya Pradesh reported as , Pratap Singh v. State of Madhya Pradesh reported as and Chacko alias Aniyan Kanju and Ors. v. State of Kerla reported as .
8. I have considered the submissions of learned Counsel for the parties and gone through the records of the case and judgments cited at the Bar.
9. Section 268 of the Code of Criminal Procedure Svt. 1989 contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that the Judge shall discharge the accused when he considers that there is no sufficient ground for proceeding against the accused. The expression "ground" in the context, in which it is used does not contemplate ground for conviction, but on the other hand, a ground for putting the accused on trial. It is in the trial, that the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court is, therefore, not required to undertake an elaborate inquiry in sifting and weighing the material on records. Nor is it necessary for the Court, at this stage, to delve deep into various aspects of the case. All that the Court has to consider is whether the evidentiary material on record, if generally accepted would reasonably connect the accused with the crime. It is only when the Court finds that the trial of the accused shall result in harassment to an innocent person by the arduous trial or the ordeal of prosecution that the Sessions Judge may consider discharge of the accused.
10. The prosecution, in the present case had relied upon oral as also documentary evidence to prove that the respondent had attacked the deceased with intention to kill him. The statements of the prosecution witnesses indicate that on the day of occurrence, the respondent had an altercation with the deceased about l 1/2 hours before the occurrence when the respondent had threatened the deceased to kill him. Pursuant to the disclosure of the respondent, the investigating agency had seized an iron rod (tyre lever) which was 20.5 inches long and 2 inches round, which had been projected as the weapon of offence with which the respondent had attacked the deceased. The post-mortem report of the deceased had indicated that because of the attack of the respondent on the deceased, he had received lacerated wound over left parietal region measuring 4 cm x 0.5 cm and lacerated wound over left side of face obliquely going upwards towards left ear measuring 9 cm x 0.5 cm, besides abrasions on face, nose and anterior aspect of left knee. A Haematoma was also noticed over left parietal region. Because of the impact of the injuries, there was fissure fracture of the left parietal bone measuring 3 cm. Extradural haemorrhage of parietal region, subdural haemorrhage as also Intra cerebral haemorrhage was noticed on the left side.
11. Learned Sessions Judge has not considered the effect of oral and documentary evidence which had been assembled by the investigating agency for its proof during the trial of the case. He has omitted to consider the evidence which the prosecution had proposed to lead during the trial of the case to demonstrate that the respondent had attacked the deceased with an intention to kill him. On the other hand, Learned Sessions Judge appears to have been influenced by the selection of the act of the respondent in selecting a blunt edged weapon of offence rather than a sharp edged weapon of offence, in coming to the conclusion that the respondent cannot be attributed intention to kill the deceased.
12. I do not find any justification in the view of the Learned Sessions Judge, for selection of a blunt edged weapon, by itself cannot lead one to believe that the assailant did not have the intention to kill the deceased. Learned Sessions Judge Jammu appears to have ignored the weight of the iron rod which was 20 1/2 inches long with 2 inches width which is usually used by the drivers of heavy vehicles. Selection of heavy tyre lever (iron rod) as a weapon of offence, by the respondent was not a circumstance which could be used in favour of the respondent. This circumstance was one which could be used by the prosecution to demonstrate the intention of the respondent in selecting a heavy iron rod to cause injuries to the deceased. The statements of the witnesses and the prosecution case as such, that the respondent had attacked the deceased with intention to kill him because of the old enmity and pursuant to the threat which the respondent had given to the deceased one and half hour before the occurrence when there had been some altercation between the respondent and the deceased appears to have been ignored by the learned Sessions Judge.
13. I am of the view that Learned Sessions Judge, Jammu had exceeded his jurisdiction in delving deep into the arena of appreciation of prosecution evidence at a stage when he was not required to do so. Rather than considering the prosecution allegation that the respondent had attacked the deceased with a heavy iron rod on his vital parts of the body resulting in his death on the same day. Learned Sessions Judge, Jammu had proceeded to presume absence of intention of the respondent to attack him without any intention to cause his death on mere surmise and conjecture. He has further erred in imputing knowledge rather than intention to the accused to cause the death of the deceased. Learned Sessions Judge was not deciding the case finally and had no evidence on records on the basis whereof such a distinction as to whether the respondent accused had the knowledge and not the intention to cause the death of the deceased.
14. All these questions as to whether the attack of the accused was backed by his intention to commit murder or he had only knowledge that his act would result in death of the deceased are such matters which may be adjudicated upon only when the witnesses in support of the prosecution case indicating that the accused had attacked the deceased with an intention to kill him had been examined during the trial of the case and the Court, in view of the cross examination of these witnesses and host of other factors would come to the conclusion as to what actually had been the intention of the accused in attacking the deceased. These are not such matters on which a final opinion may be given by the Sessions Judge at the stage of framing charge or considering the case for the discharge of the accused. The finding of the Learned Sessions Judge that the evidence on the file would impute knowledge of the accused to cause death of the deceased and in that view of the matter, he was required to be charged only under Section 304 Part-II RPC is unwarranted in view of the law laid down by Hon'ble Supreme Court of India in Santosh v. State of Madhya Pradesh , where, dealing with the question and relying upon Kapur Singh v. State of Pepsu , their lordships held as follows:
The learned Sessions Judge had relied upon Kapur Singh v. State of Pepsu to hold that, as injuries were inflicted upon the limbs of the three men, who died of bleeding, but infliction of injuries on vital parts of the body was deliberately avoided, an intention of any body to murder was established. The learned Sessions Judge appears to have overlooked the various clauses of Section 300, I. P. C. An intention to kill is not required in every case. A Knowledge that the natural and probable consequences of an act would be death will suffice for a conviction under Section 302, I.P.C.
15. It would be profitable to refer to what was held by their Lordships of Supreme Court of India in Pappu v. State of Madhya Pradesh reported as . Paragraph 14 of this Judgment reads thus:
It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302, I. P. C. is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given on and several such relevant factors.
16. The judgments cited by learned Counsel nor the respondent, do not deal with the sc5pe of inquiry contemplated at the stage of framing charge or considering discharge. These judgments, on the other hand, demonstrate that number of factors are required to be kept in view while considering as to whether the act of the accused would require him to be punished under Section 302 RPC or 304 RPC. These factors, besides the facts of the case, would include the nature of the weapon used, its size, the force applied, the part of body selected by the accused, previous enmity, if any, the time selected by the accused for making attack and host of other factors. All those cases refer to the determination of these factors at the time of the final defence had led their evidence and not at the stage of framing of charge or considering discharge of the accused. Judgement cited by learned Counsel for the respondents, therefore, do not support the view taken by Learned Sessions Judge in discharging the respondent of offence under Section 302 RPC and charging him only under Section 304 Part-II RPC.
17. For all what has been said above, I am of the view that Learned Principal Sessions Judge's finding that the respondent did not have intention to kill the accused is both unwarranted besides being unjustified.
These petitions are accordingly allowed and order dated 23rd of February, 2006 of Learned Principal Sessions Judge, Jammu is set aside. Learned Sessions Judge, Jammu is directed to consider framing an appropriate charge against the respondent in accordance with law.