Jammu & Kashmir High Court - Srinagar Bench
Ghulam Hassan Beigh vs < on 26 November, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on 09.11.2020
Pronounced on 26.11.2020
CM(M) No. 99/2020
CM No. 5060/2020
Caveat No. 1253/2020
Ghulam Hassan Beigh ...Petitioners(s)
Through :- Mr. Sameer Hassan Dar, Advocate
V/s
<
Mohammad Maqbool Magrey and others .....Respondent (s)
Through :- Mr. Altaf Haqani, Advocate Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE (through Video Conference from residence in Jammu) Judgment <<,
1. The petitioner has filed the instant petition for quashing order dated 23.10.2020 passed by the Additional Sessions Judge, Sopore (hereinafter to be referred as trial court) by virtue of which respondent Nos. 1 to 7 have been discharged for commission of offence under section 302 IPC and have been charged for commission of offence under section 304 part II IPC.
2. The petitioner has impugned order dated 23.10.2020 on the ground that at the stage of arguments on charge/discharge, the learned trial court could not have meticulously discussed the evidence and acquitted the respondent Nos. 1 to 7 particularly, when there was evidence that the deceased died due to assault by the aforesaid respondents. It is further pleaded that the respondent Nos. 1 to 7 were required to be charged for commission of offence under section 302 IPC as 2 CM (M) No. 99/2020 all the ingredients of the section 302 IPC were present in the allegations leveled against the respondent Nos. 1 to 7. It is further argued that the trial court while passing the impugned order has referred to the sections 267, 268, 226 and 227 of the Code of Criminal Procedure those were not applicable in the instant case as Code of Criminal Procedure that was prevalent in the erstwhile State of the Jammu and Kashmir, was repealed at that point of time.
3. Before examining the validity of the order impugned, it is necessary to have brief resume of the allegations leveled against the respondent Nos. 1 to 7. On 22.03.2020, petitioner herein had lodged a written complaint against the respondent Nos. 1 to 7 that they attacked him as also his wife and daughter in law and seriously injured them. They also tore their clothes and outraged their modesty and on the basis of written complaint, FIR bearing No. 26/2020 was registered with Police Station, Dangiwacha for commission of offences under sections 147, 354, 323, 451 IPC against the respondent Nos. 1 to 7. On 23.02.2020 at 1.37 AM, deceased Aisha Begum was brought dead in the Government Associated Hospital (GMC), Baramulla and her postmortem was conducted on the same day at 11.00 AM. Prior to her death, the statement of Aisha Begum was also recorded in which she deposed that the respondent Nos. 1 to 7 entered their compound and gave blow upon her husband (petitioner) as result of which he got injured. When she and her daughter in law tried to intervene, they also got hold of them and started beating her as a result of which she got injured and outraged her modesty. Injury report relied upon by the prosecution and placed on record by the petitioner reveals that Aisha Begum received injury at her upper and lower lips and except that there was no injury on 3 CM (M) No. 99/2020 any other part of the body of the deceased Aisha Begum. The postmortem was conducted and after obtaining the FSL report, the concerned Medical Officer has given opinion regarding her death that the deceased died due to cardiac arrest with alleged history of scuffle with neighbours. After the demise of the deceased, offence under section 302 IPC was also added and thereafter challan for commission of offences under sections 147, 451, 354, 324, 34, 149 and 302 IPC was presented against the respondent Nos. 1 to 7.
4. The learned trial court after hearing the arguments on charge/discharge, framed the charges against the respondent Nos. 1 to 7 for commission of offences under sections 304 part II, 323, 354, 451, 147, 149 read with 34 IPC vide order dated 23.10.2020 and this is the order that has been impugned in the present petition.
5. Learned counsel for the petitioner has vehemently argued that the respondent Nos. 1 to 7 were required to be charged under section 302 IPC and the learned trial court has committed grave error of law while charging the respondent Nos. 1 to 7 for commission of offence under section 304 part II IPC as the court could not have evaluated the evidence at this stage. It is further contended that the learned trial court has referred the sections 268 and 269 of the Code of Criminal Procedure those were repealed at the time the matter was considered by the learned court below. He further contended that the learned trial court has fixed 15 hearings with in the span of one and the half month time frame through video conferencing and framed the charge under haste.
6. Heard learned counsels for the parties and considered the matter.
7. Caveat discharged.
4 CM (M) No. 99/2020
8. As per the mandate of sections 227 and 228 of Cr. P.C, while considering the issue of framing charge/discharge of the accused, the trial court has to form opinion on the basis of material on record by the Investigating Officer as to whether there is sufficient ground for presuming that the accused has committed an offence or not. The material on record would constitute the statement of witnesses, injury report/postmortem report along with other material relied upon by the prosecution. At this stage, the trial court cannot indulge in critical evaluation of the evidence, as can be done at the time of final appreciation of evidence after the conclusion of trial but the charge can be framed against the accused even when there is strong suspicion about the commission of offence by the accused. At the same time the trial court is not expected to merely act as post office and frame the charge just because challan for the commission of a particular offence has been filed against the accused. The 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 fulfills the ingredients of offence or not. If the ingredients are lacking then the Court has no option but to discharge. The Hon'ble Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, reported in (2019) 16 SCC 547 has held as under:
"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the 5 CM (M) No. 99/2020 question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
9. The perusal of the order passed by trial court reveals that the trial court after considering the statement of the eye witnesses including the injured witnesses and the statement of the deceased has come to the conclusion that the ingredients of offence under section 302 I.P.C are lacking. The injury report of the deceased reflects that she was examined at 3.15 p.m on 22.03.2020 and except slight bleeding over upper and lower lips, there was no injury on any part of the body of the deceased Aisha Begum and at that time she had not suffered cardiac arrest. In the postmortem report, the concerned Medical Officer has given opinion regarding death of Aisha begum that the deceased died due to cardiac arrest with alleged history of scuffle with neighbours. Even the deceased Aisha Begum in her statement has stated that the respondent Nos. 1 to 7 entered their compound and gave blow upon her husband (petitioner) as result of which he got injured and when she and her daughter-in-law tried to intervene, they also got hold of them and started beating her as a result of which she got injured and outraged her modesty. The cause of death in the post mortem report is cardiac 6 CM (M) No. 99/2020 arrest and not that the deceased died as a result of injury suffered by her. It would be relevant to note that the deceased was examined on 22.03.2020 at 3.15 P.M by Medical Officer. She was declared brought dead on 23.03.2020 in the Hospital at 1.37 A.M as per the death certificate placed on record by the petitioner. The trial court has rightly come to the conclusion that no offence under section 302 IPC is made out against the respondent Nos. 1 to7. There is no force in the contention of the petitioner that the trial court has critically evaluated the evidence but the trial court has simply examined the material facts so as to find out as to whether there is sufficient material to charge the private respondents for commission of offence under section 302 IPC or not and the conclusion of the trial court is rather the only conclusion that can be drawn from the material brought on record by the prosecution.
10. The contentions of the petitioner that the reference to sections 268 and 269 of the erstwhile Code of Criminal Procedure has been made by the trial court is of no consequence and the other contention as to allegations of the framing of charge in haste too deserves to be rejected. The order impugned, as such, is upheld.
11. In view of above discussion, the petition is mis-conceived and, is accordingly, dismissed.
(RAJNESH OSWAL) JUDGE JAMMU 26.11.2020 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No RAKESH KUMAR 2020.11.26 15:17 I attest to the accuracy and integrity of this document