Jammu & Kashmir High Court - Srinagar Bench
State Of J&K Through vs Abdul Majeed Ganai on 26 September, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRR 23/2012
Reserved on: 23.08.2024
Pronounced on: 26.09.2024
State of J&K through
Additional Advocate General, Srinagar
... Petitioner/Appellant
Through: Mr. Alla ud Din Ganie, AAG with
Ms. Shaila Shameem, Assisting Counsel
V/s
1. Abdul Majeed Ganai
2. Mohammad Ayoub Ganie
sons of Gani Ganie; and 26 others
... Respondent
Through: Mr. Z. A. Qureshi, Sr. Adv. with Ms. Monisa, Adv. for R1-15
Mr. Mohammad Yousuf Parray, Advocate for R16 - 28
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. This revision petition is directed against the order dated 12.12.2011 passed by the court of learned Principal Sessions Judge, Budgam (for short 'the trial court') in case titled as "State versus Abdul Majid Ganai and others" whereby the learned trial court has discharged the respondent Nos. 1 and 2 in respect of allegations of commission of offence under section 302 RPC and instead charged them for commission of offence under section 304 part-II RPC.
2. It is contended by the petitioner that it is settled position of law that the court cannot meticulously examine the evidence collected by the Investigating Officer during investigation, while considering the issue of charge/discharge and rather the court has to only examine whether prima facie case in respect of commission of offence is made out against the accused persons or not. It is further urged that the learned CRR 23 of 2012 Page |2 trial court without perusing the record has simply accepted the plea of defence and brushed aside the evidence brought on record by the prosecution.
3. Mr. Alla ud Din Ganai, learned AAG has argued that the learned trial court could not have discharged the respondent No. 1 and 2 in respect of allegations pertaining to commission of offence under section 302 RPC by accepting the plea of defence of the accused nos. 1 and 2, which otherwise was required to be considered during the trial.
4. Per contra, Mr. Z. A. Qureshi, learned senior counsel appearing for the respondents 1 to 15 has submitted that from the prosecution story itself, it is evident that a sudden fight took place between the two factions of Ahli Hadees and there was no intention on the part of the respondent Nos. 1 and 2 to kill the deceased. Mr. Qureshi has placed reliance upon the judgement of the Apex Court in Surajit Sarkar v. State of W.B, (2013) 2 SCC 146.
5. Heard learned counsel for the parties and perused the scanned record of the trial court.
6. Before this court proceeds ahead to consider the rival contentions of the parties, it would be apt to take note of the relevant pronouncements of the Hon'ble Supreme Court of India, wherein the guardrails have been laid down for the trial courts for the purpose of finding out as to whether the accused is required to be charged or not.
7. In 'Ghulam Hassan Beigh v. Mohd. Maqbool Magrey', (2022) 12 SCC 657, the trial court had discharged the accused from commission of offence under section 302 IPC and had charged the accused for commission of offence under section 304 IPC. The order was upheld CRR 23 of 2012 Page |3 by the High Court of Jammu & Kashmir and Ladakh. The orders of the trial court and the High Court were challenged before the Hon'ble Supreme Court of India and both the orders were set aside by the Hon'ble Supreme Court and it was held and observed as under:
29. What did the trial court do in the case on hand? We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought it fit to discharge the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post-
mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law.
XX XX XX XX XX
31. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recording of oral evidence of the eyewitnesses and the expert witness along with the other substantive evidence on record. The post-mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post-mortem report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.
32. The prosecution should have been given opportunity to prove all the relevant facts including the post-mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High CRR 23 of 2012 Page |4 Court to arrive at the conclusion that since no serious injuries were noted in the post-mortem report, the death of the deceased on account of "cardio respiratory failure" cannot be said to be having any nexus with the incident in question.
33. Whether the case falls under Section 302 or 304 Part II IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the post-mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.
34. We may now proceed to consider the issue on hand from a different angle. It is a settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court. Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by the prosecution. He has only to rebut evidence bearing on the charge. The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject-matter of the charge against him. He need not cross-examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges.
35. Once the trial court decides to discharge an accused person from the offence punishable under Section 302IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II IPC, the prosecution thereafter would not be in a position to lead any evidence beyond the charge as framed. To put it otherwise, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304IPC. In such circumstances, in the facts of the present CRR 23 of 2012 Page |5 case, it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the charge- sheet. Such approach of the trial court at times may prove to be more rationale and prudent.
(emphasis added)
8. In 'State of T.N. v. R. Soundirarasu', (2023) 6 SCC 768, the Hon'ble Supreme Court of India has held as under:
56. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration of this Court in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 1 SCC (Cri) 507] , and referring to its earlier decisions in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659], and State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338] , it was held that at that stage, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the materials on record. The relevant observations made in the judgment are as follows :
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
57. Then again in Som Nath Thapa [(1996) 4 SCC 659] , a three- Judge Bench of this Court, after noting the three pairs of sections i.e. (i) Sections 227 and 228 respectively insofar as the sessions trial is concerned; (ii) Sections 239 and 240 respectively relatable to the trial of warrant cases; and (iii) Sections 245(1) and (2) qua the trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus :
"32. ... 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 CRR 23 of 2012 Page |6 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."
58. In a later decision in Mohanlal Soni [ (2000) 6 SCC 338] , this Court, referring to several of its previous decisions, held that :
"7. The crystallised 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."
59. Reiterating a similar view in Sheoraj Singh Ahlawat v. State of U.P. [ (2013) 11 SCC 476], it was observed by this Court that while framing charges the court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the accused. It was held that the court at this stage cannot speculate into the truthfulness or falsity of the allegations and contradictions and inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge.
9. As per the mandate of law laid down by the Hon'ble Supreme Court of India, at the stage of framing charge, the trial court can sift the material brought on record by the prosecution only for the limited purpose of finding out as to whether the allegations levelled in the chargesheet supported by the statement of witnesses and other evidence brought on record make out a prima facie case for trial of the accused for commission of offences, meaning there by, as to whether the essential ingredients constituting an offence are there in CRR 23 of 2012 Page |7 the case projected by the prosecution against the accused and at that stage, the probative value of the material placed on record by the prosecution cannot be looked into. Further, the court cannot speculate into the truthfulness or falsity of the prosecution case.
10. The prosecution story as it emerges from the chargesheet is that a written complaint was submitted with SHO Police Station, Nowgam on 28.04.2011 by a group of persons through President, Intizamia Committee, Masjid Sharief Jamait Ahli Hadees, Kanihama stating therein that few residents of the locality were bent upon to disturb law and order and there was apprehension of breach of peace on spot. It was also stated that a civil case was already pending in the court at Chadoora.
11. On receipt of that complaint, the SHO P/S Panthachowk along with constables went on spot i.e. Masjid Ahli Hadees. SHO P/S Nowgam camped at Kanihama submitted a report to In-charge P.S Nowgam that on 29.4.2011 at around 1 pm that when people started coming to the mosque for offering Friday prayers, there was hue and cry in the mosque and both the factions attacked & started beating each other. One Mohammad Ismail was seriously injured, who was referred to hospital. On the report of the SHO, an FIR bearing no. 51 of 2011 was registered on 29.4.2011 for commission of offences under section 120-B, 148, 149, 342, 307, 295-A, 353, 510, 323 RPC with police station Nowgam.
12. While the investigation was continuing, injured Mohammad Ismail succumbed to the injures. After recording statement of the witnesses under section 161 and 164-A Cr.PC, the Investigation Officer CRR 23 of 2012 Page |8 established offences under section 120-B, 148, 149, 307, 342, 295- A, 153-A, 353,323 RPC against all the accused persons-respondents other than the respondent Nos. 1 and 2. However, the offence under section 302 RPC was established against the respondent Nos. 1 and 2 only besides other offences as mentioned above.
13. After filing of the chargesheet, the learned trial court discharged the respondent Nos.1 and 2 in respect of offences under section 302 RPC, however, charged them under section 304 Part-II RPC vide order impugned in this petition. Resultantly, the respondent Nos. 1 and 2 were charged for commission of offence under section 304 Part-II RPC, 120-B, 149, 307, 153-A, 295-A, 342, 353, 323 RPC and the other accused were charged under sections 120-B, 149, 307, 153-A, 295-A, 342, 353, 323 RPC.
14. A perusal of the order impugned would show that the learned trial court has critically examined the statements of the witnesses recorded during investigation. Learned trial court has extracted statement of PW constable Mohammad Lateef in the order impugned wherein he has stated that at 12 noon there was hue and cry inside the mosque, people entered into the mosque to offer prayers, they attacked each other with dandas (sticks), hands and fists, the property of the mosque was damaged and one person Mohammad Ismail was seriously injured in this fight. The learned trial court has also proceeded to observe that PWs Mohammad Maqbool, Mohammad Akbar, Aijaz Ahmad and Mushtaq Ahmad have in one voice in their respective statements stated that there was free fight between the two factions in the mosque due to which the CRR 23 of 2012 Page |9 mosque was damaged and Mohammad Ismail and Nowshad Ahmed, who was drunk, were injured.
15. The learned trial court after examining the statements made by these witnesses came to the conclusion that there was free fight between the two factions inside the mosque, where people used dandas (sticks), hands and fists and in the fight Mohammad Ismail, Nowshad Ahmad and few constables were injured.
16. The learned trial court also reproduced the statement of Mohammad Ashraf Bhat son of the deceased Mohammad Ismail wherein he had stated that on the date of occurrence a fight took place between two factions of Jamat Ahli Hadees, in which his father was injured who later succumbed to injuries. The learned trial court also extracted the statement made by Fayaz Ahmed, also the son of the deceased that on the day of occurrence fight took place between two factions, during which his father was injured, and he succumbed to injuries later. Similarly, the learned trial court also extracted statement of PW Bashir Ahmad to observe that there was fight between two groups of Jamat Ahli Hadees, wherein Mohammad Ismail was seriously injured and later succumbed to injuries. In the order impugned, reference has also been made to the statement of Bashir Ahmad son of the deceased who had stated that he had gone to mosque for offering Friday prayers and when he completed two "Rakat of Nimaz", Molvi asked him to call Azan and as soon as he started calling Azan, few persons broke the mike and almirah and there was hue and cry. His father Mohammad Ismail insisted them to observe silence. In the meanwhile, accused Mohammad Ayub CRR 23 of 2012 P a g e | 10 and Abdul Majeed entered the mosque and accused Ayub hit his father with iron rod. His father fell down and accused Majid hit his father with the Danda (stick). His father was referred to hospital where he succumbed to the injuries. The learned trial court has also referred to the statements made by PWs Abdul Rashid and Mohammad Ashraf and has observed that they have stated that accused Ayub hit on the head of the deceased with a pipe, and accused Majid hit Mohd. Ismail on his neck with stick and with the fists also.
17. Perusal of the order impugned makes it abundantly clear that learned trial court has appreciated the statements of the witnesses made during investigation, as if the learned trial court was passing the final judgment after conclusion of the trial. It appears that the learned trial court was swayed by the fact that the deceased was hit by the accused only once and there was free fight between the two parties. In the chargesheet, members of the both the rival factions of the Jamat Ahle Hadees have been arrayed as accused. There is evidence on record in the form of statements made by PW Bashir Ahmad, Abdul Rashid and Mohammad Ashraf that the deceased was hit on his head by the accused Mohammad Ayoub with iron rod and accused Abdul Majid hit him with the stick on his neck. Whether the accused had an intention to cause death of the deceased or not, can be ascertained only after the full-fledged trial and while considering the issue of charge/discharge, the evidence cannot be meticulously and critically appreciated by the court, as has been resorted to by the learned trial court.
CRR 23 of 2012 P a g e | 11
18. This court has not even an iota of doubt in its mind that the learned trial court has in fact conducted a mini-trial and has come to the conclusion that the respondents 1 and 2 had no intention to cause the death of the deceased and the deceased had died due to sudden fight between the two rival factions of Jamat Ahli Hadees. In the postmortem report it is mentioned that the deceased had received severe head injury.
19. As per the law laid down by the Hon'ble Apex Court in Ghulam Hassan Beigh's case (supra) that whether the case falls under Section 302 or 304 Part II IPC, can decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, during trial. This court is of the considered view that the learned trial court has committed grave error of law by discharging the respondent Nos. 1 and 2 from the commission of offence under section 302 RPC and charging them for commission of offence under section 304-II RPC.
20. In view of above discussion, the order dated 12.12.2011 is set aside to the extent of discharging the respondent Nos. 1 and 2 from the commission of offence under section 302 RPC and charging them for commission of offence under section 304-II RPC. The trial court is directed to frame the formal charge against the respondent Nos. 1 and 2 for commission of offence under section 302 RPC and other offences mentioned in the order impugned. As the respondent Nos. 1 and 2 have been granted bail after they were discharged of the offence under section 302 RPC, they are granted two months' time to surrender before the trial court to face the trial. Needless to say CRR 23 of 2012 P a g e | 12 that this court has not expressed any opinion on the merits of the claims of the parties. The trial court shall proceed in the matter without being influenced by any observation, if any, made by this court while deciding the controversy involved in this petition.
21. Disposed of.
22. Record if received in original, be sent back forthwith.
(RAJNESH OSWAL) JUDGE Srinagar 26-09-2024 N Ahmad Whether the order is reportable: Yes/No Whether the order is speaking: Yes/No Nissar Ahmad Bhat I attest to the accuracy and authenticity of this document 27.09.2024 10:36