Jammu & Kashmir High Court
Surinder Paul Singh vs State Of J And K on 12 November, 2003
Equivalent citations: 2004CRILJ2243, 2004(2)JKJ12
JUDGMENT Y.P. Nargotra, J.
1. In a charge sheet filed by the police against the petitioner and absconding accused, the petitioner has been charged for commission of the offences under Sections 302, 325, 34 RPC and being aggrieved thereby the petitioner by this petition is seeking the quashing of the charge framed by invoking Section 561-A of Criminal Procedure Code.
2. The occurrence took place on 24.05.2002 in village Ajot in District Poonch at about 9.AM. The complainant Kulbir Singh and Gurbaksh Singh, who is the father of the accused Surinder Pal Singh have their respective lands in the village on either side of a Kasi (a water channel). It is the prosecution case that Gurbaksh Singh changed the course of water towards the house of the complainant about months before the occurrence, which led to enmity between the two. On the day of occurrence the absconder accused a resident of Jammu had gone to the house of the accused. Both of them went to the scene of occurrence. They saw the complainant. Gurbaksh Singh, who was returning towards his house after tying his cow in the field. Both the accused called the complainant and when he reached near them they opened the attack. The accused Surinder Pal Singh with the help of his companion beat up the complainant with fists and blows and then after lifting him threw him down on the ground due to which his right knee got fractured.
3. The deceased Mst. Satwant Kour, the mother of the complainant, who was about 90 years of age and was in the house, she on hearing the commotion rushed to the spot. The accused beat her also with fists and gave her a push due to which the deceased fell down and instantly breathed her last. The P.W Parshotam Singh and others came on spot and seeing them the accused fled from the scene. They shifted the complainant and the deceased to the hospital. The police recorded the statement of the complainant in the hospital on the basis of which F.I.R No. 39/2002 was registered in Police Station Poonch for commission of the offences under Sections 302/307109 RPC and was investigated. The offences under Sections 307, 109 RPC were not found made out from the investigation, so were dropped, however, the charge sheet for commission of the offences 302, 325 and 34 RPC was filed in which against the accused/petitioner, charge has been framed by the learned Sessions Judge, Poonch.
4. Before proceeding further at this stage, it would be apt to take notice of the cause of death of the deceased as opined by the Doctor who conducted the post-mortem. The post-mortem report on the file contains the following opinion as to cause of death:--
"In my opinion the cause of death is cardiac arrest due to Ischemia of heart muscle and stimulation of vagus."
5. Mrs. Sindhu Sharma, learned counsel for the petitioner has argued that on the facts of the prosecution case accepted as gospel truth, it cannot said that accused intended to kill the deceased or they intended to cause any such injury which could cause death of the deceased. As per the case of the prosecution the deceased came on the scene of occurrence after hearing the commotion and noise of the quarrel between the accused and the complainant and in which the accused pushed her due to which she fell. The cause of death is not an injury attributable to the accused. The cause of death opined by the doctor is Ischemia which is an old age disease and the accused is, therefore, not responsible for her death. She further submitted that as the cause of death of the deceased is natural and not homicidal, therefore, no offence under Section 302 RPC is constituted prima facie. She argued that the facts of the case do not create even a slightest suspicion against the accused for causing the death of the deceased, therefore, learned Sessions Judge, according to her, committed gross and grave error of law in framing the charge for commission of the offence under Section 302 R.P.C. She further submitted that on the facts of the case, accused could be charged at the most for commission of the offence under Section 323 RPC only.
6. Mr. A.H. Qazi, learned AAG contended that firstly the case of the prosecution cannot be closed under law at the threshold simply because opinion evidence of the doctor indicates the cause of death to be Ischemia. He has further argued that as per the case of the prosecution the accused had pushed the deceased knowing fully that she was a lady of about 90 years. In view of he advanced age, the accused can be deemed to know that simple push and consequent fall could prove fatal for the lady but still they gave the push which made her fall which resulted into her death. According to Mr. Qazi, since the accused are ex-Facie responsible for her death, therefore, offence under Section 302 RPC is constituted and in the alternative he has argued if the acts of the accused are found to be not falling within the definition of murder then these amounts to culpable homicide not amounting to murder.
7. The case is not at the stage of acquittal or conviction. The petitioner-accused has been charged for commission of offence under Section 302 RPC besides other minor offences and the accused is aggrieved of the charge under Section 302 RPC only. Therefore, firstly, let us recapulate the settled principles of law to be followed in framing the charge against the accused by the Criminal Courts. Section 268 Cr. P. C provides that 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, the Judge considers that there is no sufficient grounds for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.
Section 269 of the Code however, provides that if after such consideration and hearing as referred to in Section 268 Cr.P.C. the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by that Court. He shall frame the charge in writing against the accused. Dealing with the scope of Section 227 and 228 of the Central Procedure code, which correspond, to Section 268 and 269 of the Jammu and Kashmir Criminal Procedure Code, the Supreme Court in the case entitled State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 observed as under:--
"Reading the two provisions together in Justa-position, 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 purposes 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 this stage of 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 thinks 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. If 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, if any, cannot show that the accused committed the offence, 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."
8. In another case reported in AIR 1980 SC 52, entitled Supdt. And Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, the Hon'ble Supreme Court has observed that:
"At the initial stage of framing of charges, the prosecution evidence does not commence. The court has, therefore, to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the Judgment which the prosecution purposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even on the basis of strong suspicion founded on materials before it, the court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them."
9. The Hon'ble Supreme court reiterated the legal position in case Satish Mehra v. Delhi Administration, 1996 (9) SCC 766 as follows:-
"That the court is of the opinion that there is ground to presume that accused has committed an offence, procedure laid down therein has to be adopted. When those two Sections are to be in juxtaposition with each other, the test to be adopted becomes discernible; is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding."
10. From the above quoted authorities, the legal principle which emerges is that for framing the charge, the material and the evidence collected by the investigating agency has to be accepted as a gospel truth and after accepting such evidence and material, the question as to whether or not charge is to be framed has to be addressed and while deciding such question, the Criminal court is required to frame the charge if sufficient ground for proceedings against the accused are discernible there from. The expression 'sufficient ground for proceeding' as used under Section 268 and 269 of the Cr.P.C would mean where the facts alleged against the accused in the charge sheet constitute an offence or create strong suspicion for the commission thereof. If the answer is in affirmative, the charge is to be framed.
11. With these principles in mind, let us examine the facts of the present case. The case of the prosecution is that the accused beat the lady with fists and then gave her a push due to which she fell on the ground and breathed her last. The age of the lady was 90 years and the accused thus are presumed to have the knowledge that she is a lady in her advanced age. Can these allegations of the prosecution accepted at the face value constitute the offence of murder? In the circumstances of the case, no intention of causing the death of the deceased can be attributed to the accused. She had appeared suddenly on the scene of occurrence on hearing commotion created by the quarrel between the accused and the complainant. Offence of murder is defined in Section 300 RPC as follows:-
"300. Murder-Except in the cases hereinafter 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 as aforesaid."
12. From the bare reading of the section, it is manifest that if the act by which death is caused, falls in any of the four clauses; it will constitute the offence of murder. Clause-I, makes the act by which the death is caused murder if it is done with the intention of causing death. Clause-II provides that if such act is done with the intention of causing such bodily injury, as the offender knows that it is likely to cause the death of the person to whom harm is caused. It again constitutes the offence of murder under Clause-III, if the act is done with the intention of causing such bodily injury which if inflicted is sufficient in the ordinary course of nature to cause death. If death is caused it would be murder. Cause IV provides that if a 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 as aforesaid, the offence of murder would be constituted. In the present case, first three clauses are ex-facie not applicable in the alleged facts as the necessary intention on the part of the accused is missing.
13. Mr. Qazi, learned additional Advocate General seeks to rely on Clause IV of Section 300 to submit that act of the accused in view of the advanced age of the deceased was imminently dangerous and in view of the age of the lady the accused can be presumed to have knowledge that by doing that act, the possibility of death of the deceased was there. On the other hand, contention of Mrs. Sindhu Sharma, learned counsel for the accused is that in order to see whether the act of the accused was imminently dangerous, the cause of death is relevant and if the act of the accused is directly relatable to the cause of death only then Clause IV of Section 300 would be attracted which is not so in the present case.
14. The cause of death, as per the opinion of the Doctor, who conducted the post-mortem, is Cardiac arrest due to Ischemia of her Muscle and Stimulation of Vagus. The meaning of Ischemia given in Webster's Pocket Medical First Aid Dictionary is as follows:-
"Ischemia -- A deficiency of blood in an organ or part of the body. Ischemia is caused by obstruction of the blood vessels that supply an organ or area of the body. Such obstruction may be the result of narrowing, compression, or damage from conditions such as a blood clot or atherosclerosis and causes oxygen loss that lead to tissue death in the affected area."
15. The other cause of death opined by the doctor is Stimulation of Vagus. The expression of Stimulation of Vagus has been explained in Textbook of Forensic medicine Principles and practice authored by Krishan Vij, Professor and Head of the Department of Forensic Medicine, Government Medical college, Chandigarh, in 1st Edition of 2001 as follows:--
"Vagal Inhibition: -- Also variously known as Vasovagal attack, reflex cardiac arrest, nervous apoplexy, instantaneous physiological death or syncope with instantaneous exitus-or primary neurogenic shock. This state is characterized by sudden stoppage of heart following reflex stimulation of vagus nerve endings. There is a wide network of sensory nerve supply to the skin, pharynx, larynx, pleura, peritoneum covering the abdominal organs or extending to the sprermatic cord, uterine cervix, for the reflex action and pass through the lateral tracts of spinal cord, effect the local reflex connections over the spinal segments and then travel to the vagus nucleus in the brain. The vagus nucleus has connections with sensory cerebral cortex and thalamus, besides the spinal cord, as stated. The efferent then originate from there and affect the heart through the related branches.
Such deaths occur with dramatic suddenness within seconds or at the most in a few minutes. The loss of consciousness is usually instantaneous on these occasions and death follows soon afterwards. Consequently, the mobility is negligible and the victim is likely to be found in the posture/position in which he/she was at the time of death. The condition, therefore, is characterized by fulminating circulatory failure which may be attributed either to reflex slowing/stoppage of heart, reflex vasodilatation leading to profound fall in blood pressure or a varying combination of both the mechanisms. The victims are usually young adolescents of nervous temperament but anyone may be susceptible. The factor responsible for initiating or triggering the vaso-vagal phenomenon may be aminor trauma or relatively simple and harmless peripheral stimulation at the vulnerable sites upon the body as described earlier. Obviously therefore, a variety of circumstances have been incriminated as precipitating factors, as outlined below:
Sudden pressure over the neck especially over the region of carotid sinuses as may be operating in occasional cases of strangulation and hanging (Carotid sinus is a dilated part of the wall of the carotid artery and contains numerous nerve ending from the glossopharyn-geal nerve and communicates with the medullary cardiovascular center and dorsal-motor nucleus of vagus in the brain, related with the control of blood pressure and regulation of heart-activity). Such deaths are of considerable medicolegal significance as death may ensue under the circumstances in which there had been no intention to kill. In some instances it may be reasonable to regard such deaths as borderline between a natural and an accidental death. Sudden blow on the abdomen or scrotum, larynx or genital organs. During intubation of, or from impaction of food/some other material into the larynx.
During minor surgical procedures involving penetration of pleura or peritoneum for tapping purposes, stretching of peritoneal sacs, dilatation of urethra or of a muscle sphincter and dilatation of the cervix in instrumental abortion. Sudden cerebral concussion or blow on the back of the neck.
Sudden immersion of body in cold water. Here, vagal inhibition may act in several ways, i.e. a sudden in-rush of cold water into the nasopharynx or larynx, sudden blow of water upon the abdomen as in horizontal entry into the water with a consequent blow upon the abdomen etc. Keatinge (1969) found sudden rises in arterial pressure and vagal output in men exposed to ice-water showers. Bradycardia and ventricular ectopic beats have also been reported by the ECG studies in the volunteers during the first few minutes of their immersion in cold water.
Sudden death may also be seen as occurring with intense fear, fright, emotions, from extreme unpleasant/horrible sight or smell.
The reflex gets accentuated by a high state of emotional tension and also in many conditions which lower the voluntary cerebral control of reflex responses, like mild alcoholic intoxication, some degree of hypoxia or partial narcosis due to incomplete anaesthesia."
16. From the bare reading of the above quoted meaning of Ischemia, it is manifest that it is natural cause and cannot be connected with the act of the accused directly but as regards the other cause of death i.e. stimulation of vagus, it is directly relatable to the act of the accused as they are alleged to have beaten the deceased with fists also before giving her a push, therefore, while beating the lady, they could have hit the lady on the vital part of the body having receptor of nerve-endings resulting into the instantaneous death of the deceased.
17. In view of the opinion expressed by the Doctor, death of the deceased could be the result of acts of the accused by which stimulation of vagus occurred. Whether the intention of the accused was to cause such bodily injury or not, would depend upon the over all assessment of the evidence which may be led by the prosecution during the trial. However, in the circumstances in which the occurrence has taken place, commission of offence under Section 304 RPC cannot be completely ruled out and, therefore, there is a ground to proceed against the accused for commission of the offence under Section 304 RPC instead of Section 302 RPC.
18. The contention of Mr. Qazi that the order of framing of the charge for commission of offence under Section 302 RPC should not be interfered with simply on the basis of the opinion of the Doctor given in the autopsy report, in view of the law laid down in case reported in AIR 2001 SC 1507 is devoid of any force because in that case, regarding the cause of death the medical opinion contained in the medical report was not the only evidence. There was direct evidence of the eye witnesses as well as the dying declaration of the deceased claimed to be admissible under Section 32 of the Evidence Act and in those circumstances, their Lordships of the Supreme Court in case entitled Smt. Omwati and Anr. v. State through Delhi Administration and Ors. held as follows:--
"The trial Court, in the instant case, rightly held that merely on account of the observations and the opinion incorporated in the post-mortem report, the prosecution could not be deprived of its right to prove that accused were guilty of the offence for which the final report had been filed against them. There was no ground for the High Court to interfere with the well-reasoned order of the trial Court by passing a cryptic and telegraphic order which is impugned in this appeal. It is not safe, at this stage, to deprive the prosecution in proving its case on the basis of the direct evidence, the statement of the deceased claimed to be admissible under Section 32 of the Evidence Act and the other documents including the inquest report allegedly disclosing the infliction of the injuries on the person of the deceased which resulted in his death. The acceptance of the opinion of the doctors, as incorporated in the post-mortem report for the cause of death of the deceased being "hepatic failure following viral hepatitis" cannot be accepted on its face value at this initial stage."
19. For the reasons stated above, I, therefore, quash the charge framed against the accused for commission of offences under Sections 302, 325 read with Section 34 RPC and direct the trial Court to frame a fresh charge for commission of the offences under Sections 304, 325 read with Section 34 RPC against the accused and put him on trial under law. It is, however, made clear that nothing said here in this order shall be construed by the trial Court to be an expression of opinion on the guilt or the innocence of the accused i.e. on the merit of the case.
20. Learned counsel for the petitioner has also made a prayer for granting of the bail to the accused. In the peculiar circumstances of the case, the prayer of learned counsel is allowed and learned trial Court is directed to admit the accused on bail on his furnishing surety bond to the tune of Rs. 25,000/- with personal bond in the like amount and provided also on furnishing of an undertaking by the accused that he shall not directly or indirectly try to influence the witnesses of the prosecution.
21. The petition of the petitioner is, accordingly, disposed of.