Jammu & Kashmir High Court
State Of J&K; vs Ranjit Singh And Ors. on 14 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr.Rev. No. 62/2007 c/w
Cr. Rev.No. 38/2004
Date of order: 14.12.2018
State of J&K Vs. Ranjit Singh and ors.
Gurmeet Singh Vs. State and ors
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Suneel Malhotra, GA (in Cr. Rev. No.62/2007)
Mr. Rajnesh Oswal, Advocate (in Cr. Rev. No.38/2004)
For respondent (s) : Mr. Rajesh Kotwal, Advocate (in Cr. Rev. No.62/2007)
Mr. Suneel Malhotra, GA for respondent No.1 (in Cr.Rev. No.38/2004) Mr. Rajesh Kotwal, Advocate for respondent Nos.2 to 4 (in Cr. Rev. No.38/2004).
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. At the very out-set, it is pertinent to mention here that while perusing the judicial file Cr. Rev. No.38/2004, it became evident that Criminal Revision No.38/2004 was dismissed on 19.05.2006 having become infructuous on the ground that the State has already filed the appeal against the same order and the said appeal was subsequently treated as Criminal Revision No.62/2007 at the request of learned State Counsel.
2. Now vide this judgment Cr. Rev. No. 62/2007 is being disposed of only as the same is directed against the order dated 26.02.2004 passed by 3rd Addl. Sessions Judge, Jammu, by virtue of which accused persons (except Pritpal Singh and Shabil Singh) namely Ranjit Singh, Kuldeep Singh and Kulbir Singh have been discharged in FIR No.116 of 2003 for commission of offences under Sections 302/147 RPC and 4/25 Arms Act.
CRR Nos. 62/2007 & 38/2004 Page 1 of 163. The case of the prosecution as per the F.I.R lodged on 01.08.2003, is that Gurmeet Singh, Mandeep Singh and Manjeet were going towards their home on the Motorcycle No.2662-JK02B and, when they reached at Model Town Chowk N.H.W. at about 10.30 p.m, they saw a Gypsy No.0484-JK06 following them. It is alleged in the F.1.R that in the Gypsy accused Pritpal Singh, Shabil Singh, Kuldeep Singh, Kulbir Singh and Dilawar Singh were found sitting and were following the Motorcycle of the aforesaid persons. When this Gypsy reached at Model Town Chowk crossing, the said Gypsy struck against the Motorcycle and all the three riders of the Motorcycle fell down. Pritpal Singh, Shabil Singh and Kulbir Singh came out of this Gypsy equipped with kirches and started inflicting injuries with these kirches on all the three riders of Motorcycle. The other two persons who were sitting in the Gypsy were instructing these persons to kill all the three riders of the motorcycle, who were seriously injured and after causing serious blows on the riders of the motorcycle, the party fled away from the spot. The injured were taken to the GMC Hospital for treatment. Accordingly, FIR No.116 of 2003 for commission of offences under Sections 307/147 RPC and 4/25 Arms Act was registered and investigation started. During the investigation Manjeet Singh died in the Hospital, and offence under Section 302 RPC was added. After the completion of the investigation, challan was produced in the competent court.
4. The learned 3rd Additional Sessions Judge, Jammu in the impugned order of discharge dated 26.02.2004 has observed that as per the challan produced by the police, story alleged in the F.I.R. has been changed. As per the F.I.R Dilawer Singh had participated in this occurrence, but after investigation of the case the I.O. has stated in the challan that Dilawer CRR Nos. 62/2007 & 38/2004 Page 2 of 16 Singh was not involved in the case. The police in place of Dilawer Singh involved one Ranjit Singh as an accused in the case, and in the challan it has been stated that Dilawer Singh has been given benefit of Section 169 Cr.P.C. and the name of Dilawer Singh has been substituted by someone else, namely, Ranjit Singh. Further that there is one more difference between the contents of challan and F.I.R. As per the F.I.R. accused Pritpal Singh, Shabil Singh and Kuldeep Singh had come down from the Gypsy and inflicted injuries with their kirches, but in the challan it has been concluded that one Pritpal Singh and Shabil Singh came out from the Gypsy and inflicted injuries with their kirch, so the name of the Kulbir Singh has been deleted from the persons who had caused injuries. As per the F.I.R., it is alleged by the prosecution that Dilawer Singh had asked Kuldeep and other three accused persons to kill the injured persons, but in the challan the prosecution has come up with a new story that Kuldeep, Kulbir and Ranjit had not come out from the Gypsy and all these three person, while sitting in the Gypsy had instructed other two accused to kill the injured persons.
5. I have considered the rival contentions. Counsel for petitioners have argued that order of discharge is totally illegal and perverse in nature; that court below while discharging the accused has passed a judgment which court supposes to pass while finally adjudicating the case. That there was sufficient material for framing of charges under section 302 RPC against all accused. Whereas counsel for accused has argued that this court cannot set aside the order of discharge in revision; he has further supported the order of discharge of accused.
6. I have given my thoughtful consideration to whole aspects of the matter and gone through the law on the subjects.
CRR Nos. 62/2007 & 38/2004 Page 3 of 167. The concluding part of the impugned order dated 26.02.2004, reads as under:-
"I have perused the documents produced by the prosecution U/s 173 Cr.P.C. and it is clear that there is no evidence on the file to show that these three persons had shared their common intention of killing or causing grievous injuries on the persons of the riders of motor cycle nor there is an iota of evidence on the file to show that they had common intention with other two accused persons, namely, Pritpal and Shabiltokill the riders of the motorcycle or to cause injuries on the person of riders , there is no evidence on the file to show that there was any meeting of mind between these three persons and actual assailant of causing any grievous injury not to talk of killing a person. As held in 1987 law Jr. by their Lordship for bringing the persons within the four corners of common intention and common objection. the prosecution has prima facie to show the evidence on the file that there was a common intention in the sense of pre-arranged plan between the two sets of the accused persons, nor there is any evidence on the file with regard to these three persons that they had participate in any manner in killing a person or causing injury to any person. As has been held in this by their Lordship unless common intention and participation are both present, no offence under section 149/34 can be fastened on the accused persons.
Further there is no evidence on the file to show that these three persons were cognizant of the intention of their companion who had actually committed the murder or had caused the grievous injuries. As there is no evidence on the file to show that these three persons had any knowledge or intention or common object with other two accused with regard to killing of the riders so keeping in view the above law referred in the mind I am of the opinion that these three persons, namely, Ranjit, Kuldip and Kulbir cannot be fastened with the liability of killing or causing grievous injuries to the motorcycle, because there is no evidence on the file to show that they had ever conspired with other two assailants to kill the rider or cause injury to the rider of the motorcycle or had made common object with assailants causing any injury to the riders of the motorcycle.
From the charge sheet and the other evidence on the file it is prima facie clear that it is a sudden meeting of parties in the late night hours at Model crossing and when the two brothers Pritpal and shabil saw the riders they suddenly stopped their vehicle and both of them attacked the riders without having any common intention or common object with other three accused persons nor there is any evidence on the file to show that they had preplanned to kill a person. It is a sudden occasion that two parties came face to face and two assailants without the consent and concurrence of other three persons attacked riders of the motorcycle. So with no CRR Nos. 62/2007 & 38/2004 Page 4 of 16 stretch of imagination one can say Ranjit, Kulbir and Kuldeep had common intention or common object of killing or causing grievous injuries to the riders of the motorcycle.
Further in F.1. R. the prosecution has come up with an assertion that Dilawer Singh instead of Ranjit Singh was sitting in the Jeep but in the Challan they had ommitted the name of Dilawer Singh and added the name of Ranjit Singh so this fact also states that Ranjit Singh has been arrayed as an accused after thought to give relief to Dilawer.
When the prosecution has failed to bring any evidence on the file that Ranjit, Kuldeep and Kullbir had any common intention or common object shared with assailant Pritpal and Shabil, I am of the opinion that in the light of above discussion and the law referred that no prima facie case as to the commission of offence is made out against the accused Ranjit, Kuldeep and Kulbir as such all the three named persons are discharged as no prima facie case is made out against them. As conceded by the Ld. counsel that an offence U/s 302 is made out against Pritpal and Shabil, I am also of the opinion and it is very clear from the documents produced by the prosecution u/s 173 Cr.P.C that these two accused persons had inflicted grievous injuries on the person of the riders of the motorcycle and thereby had caused the death of one of the riders of motorcycle and had caused grievous injury. Further unlawful Kirch has been seized from Pritpal and Shabil Singh as such prima facie offence u/s 302/307/326 RPC read with section 4/25 Arms Act is made out against the accused Pritpal Singh and Shabil Singh as such, these two persons deserves to be charged of these offences and are hereby charged of these offences by this order. The accused Pritpal Singh has been separately charged for these offences. Shabil who has absconded and has not appeared yet in the court so Shabil Singh can be charged of the offence at this stage. Let the file come upon 5-4- 2004."
8. In order to appreciate the contentions of the parties, it may be noticed that Sections 268 and 269 of Cr.P.C. relate to the trial of cases before the Courts of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote sections 268 and 269 of Cr.P.C as under: -
"268 Discharges:
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 CRR Nos. 62/2007 & 38/2004 Page 5 of 16 there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.
269 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 Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on police report,
b) is exclusively triable by the Court , he shall frame in writing a charge against the accused.
(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."
9. A conjoint reading of sections 268 and 269 of Cr.P.C., would reveal that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence , he may frame charges against the accused or transfer the case to CJM or Judicial Magistrate if he is of the opinion that offence made out against the accused is triable by a Magistrate. At the initial stage if there is 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 Judge while considering the question of framing the charges under section 269 of the Code 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 law of apex court in this regard reads as under:-
CRR Nos. 62/2007 & 38/2004 Page 6 of 16In AIR 2013 SC 52 in case titled Sheoraj Singh Ahlawat & Ors. Vs. State of Uttar Pradesh & Anr., decided on 9 November, 2012 [Criminal Appeal No. 1803 of 2012 arising out of S.L.P. (CRL.) No.4649 of 2010, it held as under:-
"12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri. LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som Nath's case (supra) the legal position was summed up as under:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution have to be accepted as true at that stage."(emphasis supplied)
13. So also in Mohanlal's case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:
"8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well- settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his CRR Nos. 62/2007 & 38/2004 Page 7 of 16 defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police...
xx xx xx xx
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material." (emphasis supplied)
15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:
"While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall sub serve the requirements of law.
16. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
1. That the Judge while considering the question of framing the charges under Section 227 of the Code 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:CRR Nos. 62/2007 & 38/2004 Page 8 of 16
2. 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.
3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4. That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth- piece 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 appearing in the case and so on.
This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
10. The revisional powers of a High Court are very wide. The object of conferring such powers on the High Court is to clothe the highest court in a state with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders. The revisional powers of the High Court is to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that subordinate criminal courts do not exceed their jurisdiction, or abuse the powers vested in them by the Code. The High Court can exercise its powers suo moto or on any petition of any aggrieved party or even on the application of any person. Cases where there is a glaring defect in the procedure or there is manifest on point of law and consequently there has been a flagrant miscarriage of justice, the power can be exercised. The exercise of revisional power is justified only to set right grave injustice not merely to rectify every error however inconsequential. Revisional jurisdiction confers power on the High Court for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed CRR Nos. 62/2007 & 38/2004 Page 9 of 16 and as to regularity of any proceeding of such inferior court. The object of the revision is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals.
11. Now coming to present case, from the perusal of prosecution case, it is evident that on 01.08.2003 Gurmeet Singh, Kuldeep Singh and Manjeet were going towards their home on the Motorcycle No.2662-JK02B, when they reached at Model Town Chowk N.H.W at about 10.30 p.m, they saw a Gypsy No.484 JK06 following them. It is alleged in the F.1.R that in the Gypsy accused Pritpal Singh, Shabil Singh, Kuldeep Singh, Kulbir Singh and Dilawar Singh were found sitting and were following the Motorcycle of the afore said persons. When this Gypsy reached at Model Town Chowk crossing the said Gypsy struck against the Motorcycle and all the three riders of the Motorcycle fell down. Pritpal Singh, Shabil Singh and Kulbir Singh came out of this Gypsy equipped with kirches and started inflicting injuries with these kirches on all the three riders of Motorcycle. The other two persons who were sitting in the Gypsy were instructing these persons to kill all the three riders of the motorcycle who were seriously injured and after causing serious blows on the riders of the motorcycle, the party fled away from the spot. The injured were taken to the GMC Hospital for treatment. Accordingly, FIR No. 116 of 2003 for commission of offences under Sections 307/147 RPC and 4/25 Arms Act was registered and investigation started. During the course of investigation Manjeet Singh died in the Hospital, and CRR Nos. 62/2007 & 38/2004 Page 10 of 16 offence under Section 302 RPC was added. After the completion of the investigation, challan was produced in the competent court.
12. From the bare perusal of these facts, it is evident that, deceased Manjeet Singh was accompanied by Gurmeet Singh and Mandeep Singh at the time of occurrence. The statements of these witnesses (Gurmeet Singh and Mandeep Singh) have been recorded under section 161 Cr.P.C. Even PWs Daljeet Singh and Jyoti Parkash have been cited as eye witnesses. Their statements recorded under section 161 Cr.p.c read as under:-
PW Gurmeet Singh stated that accused Shabil Singh alias Babu S/o Rajinder and Prithpal Singh alias Bali R/o Digana were having some enmity with them with regard to cutting of Matador slips. On 01.08.2003 at about 10.30 night he alongwith his brother Manjeet Singh and Mandeep Singh were riding on a Motorcycle No. JK02B/2662 and were proceedings towards Gangyal Chowk. He was driving the Motorcycle. When they turned towards Model Town, accused Prithpal Singh alias bali along with Ranjeet Singh, Kuldeep Singh, Kulbir Singh, alias Rinku and Shabil Singh were boarding on a Gypsy No. 484/JK06 and they started chasing them. He was scared so he drove the Motorcycle on a High Speed and at Model Town Chowak, Shabil Singh who was driving the Gypsy hit his motorcycle and he along with other two persons riding on the motorcycle fell down. When they were about to stand up, accused Pritipal Singh and Shabil Singh came out from the Gypsy and attacked them, with a Krich, and started inflicting blows after blow on them. Firstly, they attacked his brother with Krich thereafter they attacked on him and Mandeep Singh. They were injured and all of them fell down, in order to save themselves they throw bricks on the Gypsy due to which the glasses of the Gypsy were broken and pieces fallen in the eyes of Prithpal Singh who was also injured. On raising alarm some persons CRR Nos. 62/2007 & 38/2004 Page 11 of 16 came on spot and took them to the Hospital in a van. Accused Kuldeep Singh lifted the accused Prithpal Singh and put him inside the Gypsy and ran away from the spot. At that time Gypsy was being driven by Kuldeep Singh. In the said incident his brother succumbed to his injuries. He and his brother's friend were operated upon. The accused Prithpal Singh and Kuldeep Singh were shouting kill all of them.
PW Mandeep Singh stated that on 01.08.2003 he along with Manjeet Singh, alias Ladi, Gurmeet Singh alias Amita, s/o Sumeer Singh r/o Model Town Gangyal were riding on a Motorcycle bearing No. 2662/JK02B, they were proceeding from Gangyal Chowk to Model Town. Gurmeet Singh was driving the Motor cycle. On reaching National High way, Gangyal when they turned towards Model town accused, Prithpal Singh alias, Laddi, Shabil Singh alias Babu s/o Rajinder Singh, r/o Digana Ashram, Ranjeet Singh alias Shamu s/o Sandoor Singh , Kuldeep Singh s/o Mohinder Singh r/o Santokh Vihar, Kalu Chak, Kulbir Singh alias Rinku s/o Jagdeev Singh r/o Sainik Colony were sitting in Gypsy No. 484 JK06, and started following their Motorcycle on which they were riding. Shabil Singh was driving the Gypsy. At around 10.30 pm when they reached Model Town Chowk, the motorcycle was hit by the Gypsy due to which motorcycle caused damages. He along with other two persons who were riding on the Motorcycle fell down and before they could rise accused Prithpal Singh and Shabil Singh came out from the Gypsy and with a criminal intention and after discussion started inflicting injuries blow after blow with a krich on all of us. First the accused persons attacked Manjeet Singh who was seriously injured and fell down on the ground. Ranjeet Singh, Jagjeet Singh and Kuldeep Singh took the accused- Prithpal Singh in the Gypsy. On making hue and cry, some of the persons gathered on spot due to which all the accused persons ran away from the spot in the said Gypsy CRR Nos. 62/2007 & 38/2004 Page 12 of 16 and at that time Kulbir Singh was driving the Gypsy. All of us were shifted to GMC Hospital by the persons who gathered on spot in a Van. In the said incident Manjeet succumbed to his injuries. He further stated that he was operated in the hospital. The accused- Kuldeep Singh, Ranjeet Singh and Kulbir were shouting from the Gypsy to kill all of them and do not let them go alive.
PW Daljeet Singh S/o Gurnail Singh stated that he is a driver by profession and drives Truck bearing No.8173 JK02F. On 01.08.2003 he had parked his truck at Model Town, Gangyal. At around 10.30 pm, he heard some loud noise and saw a Gypsy bearing No.484/JK06 hitting a Motorcycle from behind and due to which motorcycle fell down on the ground and its riders, namely, Manjeet Singh alias Laddi and Gurmeet Singh alias Amita sons of Sameer Singh cast Sikh r/o Model Town Gangyal, and Mandeep Singh alias Shibu s/o Charanjeet Singh caste Sikh r/o Digana also fell down. In the Gypsy, accused-Prithpal Singh, Shabil Singh alias, Babu s/o Rajinder Singh caste Sikh r/o Digiana, Ashram, Ranjeet Singh alias Shanu s/o Sandoor Singh r/o Sanik Colony Kuldeep Singh alias Laddi s/o Mohinder Singh r/o Santokh Vihar, Kalu Chack, Kulbeer Singh alias Anku s/o Jagdeev Singh r/o Sanik Colony were sitting in the Gypsy. Accused-Shabil Singh was driving the Gypsy. As soon as their Motorcycle fell down, Prithpal Singh Shabil Singh with a criminal intention and after discussion with each other came out from the Gypsy and started inflicting injuries with Kirches on Manjeet Singh, who was seriously injured and fell down on the ground. After that they started inflicting injuries on Gurmeet Singh and Mandeep Singh. Mandeep Singh also fell down. Thereafter, Ranjeet Singh and Kulbir Singh came out from the Gypsy and took Prithpal Singh in the Gypsy. He stated that other persons also gathered at the spot. All the five accused ran away from the spot in the Gypsy and at that time Kuldeep Singh was driving CRR Nos. 62/2007 & 38/2004 Page 13 of 16 the Gypsy. All the three injured persons were shifted to the GMC Hospital in a van for treatment. Later Manjeet Singh alias Laddi succumbed to his injuries at GMC Hospital. Accused-Kuldeep Singh, Kuljeet Singh, Ranjeet Singh and Kulbir Singh were shouting from the Gypsy to kill all of them.
PW Jyoti Parkash Sharma S/o Mulak Raj Sharma stated that he is having a Welding Shop in Model Town Gangyal. On 1.8.2003 at about 10.30 pm he was in his shop and he heard some loud noises, when he reached the place from where the noise was coming he saw that a Gypsy bearing No. 434 JK06 has hit a Motorcycle from behind due to which motorcycle had fell down, Manjeet Singh alias laddi, Gurjeet Singh s/o Sameer Singh and Mandeep Singh who were riding the Motorcycle had fell down. Accused Prithpal Singh, alias laddi Shabil Singh alias Shabu s/o Ranjeet Singh r/o Digana Ashram, Amar Jeet Singh, alias Shamu s/o Sardar Singh r/o Sanik Colony, Kuldeep Singh alias ladi, s/o Mohinder Singh r/o Kalu Chak, Chaggar Singh, alias Rinku s/o Jagdev Singh r/o Sanik Colony were sitting in the Gypsy which was driven by Shabil Singh. As soon as the Motorcycle fell down, Prithpal Singh and Shabil Singh with criminal intention came out from the Gypsy with a Krich in their hands and started inflicting injuries on the person of Manjeet Singh, who became unconscious and fell down on the ground. Thereafter they started inflicting injuries on the persons of Gurmeet Singh and Mandeep Singh with a Krich. Gurmeet Singh in order to save his life started hitting their Gypsy with the bricks due to which the glasses of the gypsy were broken. Accused persons took the Prithpal Singh in the Gypsy which was driven by Kulbir Singh and ran away from the spot. He stated that the injured persons were shifted to GMC Hospital by the people who gathered on spot in a van and he also helped them in shifting the injured persons to the Hospital in the Van. Thereafter he came to know that CRR Nos. 62/2007 & 38/2004 Page 14 of 16 Manjeet Singh has died in the Hospital. He further stated that Kulbir Singh, Ranjeet Singh and Kuldeep Singh were shouting from the Gypsy to kill all of them.
13. From bare perusal of these statements, it is evident that there is sufficient evidence that accused persons Pritpal Singh, Amar Jeet Singh, alias Shamu s/o Sardar Singh r/o Sainik Colony, Kuldeep Singh alias ladi, s/o Mohinder Singh r/o Kalu Chak, Chaggar Singh, alias Rinku s/o Jagdev Singh r/o Sanik Colony were sitting in the Gypsy which was driven by Shabil Singh. As soon as the Motorcycle fell down, Prithpal Singh and Shabil Singh with criminal intention came out from the Gypsy with a Krich in their hands and started inflicting injuries on the person of Manjeet Singh, who became unconscious and fell down on the ground. Thereafter they started inflicting injuries on the persons of Gurmeet Singh and Mandeep Singh with a Krich. Gurmeet Singh in order to save his life started hitting their Gypsy with the bricks due to which the glasses of the gypsy were broken.
14. Therefore, we can say that there are sufficient grounds for presuming that accused persons, who have been discharged, have committed offence of murder along with other accused. There is direct evidence with regard to involvement of accused in commission of crime.
15. The observations of court below in impugned order that as per the F.I.R. Dilawer Singh had participated in this occurrence, but after investigation of the case the I.O. has stated in the challan that Dilawer Singh was not involved in the case and the police in place of Dilawer Singh involved one Ranjit Singh as an accused in the case; that as per the F.I.R. accused Pritpal Singh, Shabil Singh and Kuldeep Singh had come down from the Gypsy and inflicted injuries with their kirch, but in the CRR Nos. 62/2007 & 38/2004 Page 15 of 16 challan it has been concluded that one Pritpal Singh and Shabil Singh came out from the Gypsy and inflicted injuries with their kirch; that as per the F.I.R. it is alleged by the prosecution that Dilawer Singh had asked Kuldeep and other three accused persons to kill the injured persons, but in the challan the prosecution has come up with a new story that Kuldeep, Kulbir and Ranjit had not come out from the Gypsy and all these three persons while sitting in the Gypsy had instructed other two accused to kill the injured persons, are not tenable at the time of passing of order of discharge, because these contradictions in prosecution can be considered at the time of passing of final judgment. Court below has misdirected itself in discharging the accused. As already held that at the time of framing of charge, court has to form an opinion as to whether there is sufficient material to frame charge or not; but at the time of passing final judgment, court has to form opinion as to whether prosecution has proved his case beyond reasonable doubts or not. The court is not required to conduct mini trial while passing the order of charge or discharge. As already held: court has to come to the conclusion as to whether accused might have committed offence or not. In present case there is sufficient material that accused persons namely Ranjit, Kuldeep and Kulbir, who have been discharged, by virtue of impugned order, have committed offence of murder along with other accused.
16. In view of above, I am of the considered opinion that order of court below is illegal, incorrect and is not according to cardinal principles of law governing the subject. Hence, this revision is allowed. Order impugned is set aside. Court below is directed to frame charges accordingly after arresting the accused/respondents. The copy of this order be sent to court below for compliance.
14.12.2018 (Sanjay Kumar Gupta) CRR Nos. 62/2007 & 38/2004 Page 16 of 16 Jammu* Narinder Judge CRR Nos. 62/2007 & 38/2004 Page 17 of 16