Abdul Rehman Reshi vs Bashir Bhat and Others

G.L. Raina, J.—This revision petition calls in question the legality of the order dated : 12-9-97 passed by Sessions Judge Anantnag in

Sessions case No. 11 of 1997 titled State v. Nazir Ahmed.

On considering of the evidence collected during investigation and on application of the case law to the facts of the case, the Ld. Sessions Judge

held accused A-1 to A-4 prima facie guilty of the offences punishable under Sections 148, 323, 341, 366 and 302 read with 34 R. P.C. whereas

the rest of the accused in the case, A-5 to A-15, came to be ex-facie saddled with the criminal liability of having committed the offences punishable

under Sections 148, 323, 336 and 341 R.P.C. The trial Judge accordingly drew up, vide the impugned order, the formal charges against the

accused persons. The order has thus the effect of discharging the accused A-5 to A-15 for the offence punishable u/s 302 read with 149 R.P.C.

Hence this revision motion, which has been filed by the complainant, a private party in the case, that is instituted on behalf of the State.

It needs to be noticed that after the impugned order was passed the trial started during which eight of the listed prosecution witnesses came to

be examined, which included the petitioner, herein, whose statement was recorded on 4th of October, 1997. It was after his statement having been

recorded that the informer, came up to invoke the revisional jurisdiction complaining that the trial Judge has over-stepped his jurisdiction by

adopting, at the stage of framing charges, the approach as if he was to determine the guilt of the accused.

Reverting to the preliminary objection as to the competence of the private party to invoke revisional jurisdiction in respect of a prosecution

launched by the State, it has to be taken note of that criminal law is not to be allowed to be used as an instrument to wreck private vengenance by

an aggrieved party against the person(s) who according to that party has caused injury. The revisional jurisdiction conferred u/s 439, Cr. P.C. is

also not to be lightly exercised when it is invoked by a private complainant against an order of discharge/acquittal against which the State has

expressed no grievance. Revisional powers, in a situation as at hand, are required to be exercised in exceptional cases where the interests of public

justice require interference for the correction of error of law apparent from the record, what may be called a manifest illegality, or for the

prevention of gross miscarriage of justice. The revisional jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a

wrong view of the law or misappreciated the evidence on record. It may be that a different view on prima-facie merits of the case could have been

taken but that is not enough to justify interference in revision, when there is an application by a private party in a State case.

Now that the revision petition stands admitted and the whole record is before this Court, the legality and propriety of the impugned order can be

examined, notwithstanding that the State does not complain against the order nor has it been made a party to the petition. Power of revision being

otherwise also available to the Court, the preliminary objection cannot be sustained, which is accordingly overruled.

The law is well settled that at the stage of Sections 268 and 269, Cr.P.C. the Court is required to evalute the material and documents on record

with a view to find out if the facts emerging from that material, taken on their face value disclose the existence of all the ingredients constituting the

alleged offence. The Court can for this limited purpose, sift the evidence as it cannot be expected, even at that initial stage, to accept that wherever

the prosecution states is truth arid nothing else. At the stage of framing charges the Court has to consider the material, evidence and documents, to

find out if there is ground to presume that the accused has/have committed the offence or that no sufficient ground for proceeding against the

accused exists. The standard of evaluation of the material has not, at that initial stage to be to find whether the accused is/are guilty of that

offence(s). It is thus the consideration of the broad probabilities of the case and the nature of the evidence that determines whether charge should

be framed for a particular offence(s). If a strong suspicion is created by the material on record about the involvement of the accused with the

commission of the offence(s), it is in that eventuality not open to the Court to say that there is no sufficient ground for proceeding against the

accused.

Now the facts, broadly said, of the case wherein the impugned order of discharge of A-5 to A-15 from the offence of murder has been

recorded.

It appears that there had been a dispute of right of passage over some land between the residents of village Khul Chohar and Rain-ipora,

District Anantnag. The dispute had got stretched to the limits of litigation between the rival parties. The story on which this case is founded is that

the complainant party, was in the process of walking 6ver the disputed pathway that they were intercepted and stopped by the accused party.

Accused are said to have resorted to the use of force and violence during which the members of the complainant party were not only pelted but

even physically assaulted whereby some persons sustained injuries. It is ex-facie made out by the material on record that accused A-1 to A-4

caught hold of Abdul Rehman Reshi, a member of the complainant party, on whose head, accused Nazir Ahmed Bhat (A-l) hurled the blow from

the blunt side of the axe, he was carrying at the point of time. The victim is said to have thus sustained the fatal head injury.

The trial Court has in the above said situation rightly found that accused A-1 to A-4 had prima facie the common intention to kill the victim and

accordingly formal charges against these accused persons for the offence punishable u/s 302 r/w 34 R.P.C., as well, beside for other offences,

have been drawn up. The learned Sessions Judge has held that it is not prima facie indicated by the material, that accompanies the report of

investigation, that the common object of the unlawful assembly formed by all the accused persons, was to cause death of any of the members of

the complainant party but the common object was to obstruct, by use of force, the complainant party from using the disputed pathway. The trial

Court has held that the accused resorted, in furtherance of that common object to rioting, pelting and physical assault on some members of the

complainant party whereby they got injured. The lower Court held that the common object having been not to kill anyone, so only those members

of the unlawful assembly who exceeded the common object were prima facie responsible for the offence of murder.

Did all the accused, who formed the unlawful assembly, share the object to cause fatal injuries to the deceased? Answer to this question will

determine the fate of the impugned order.

Admittedly accused Nazir Ahmed alone hurled one stroke, from the blunt side of the axe, to cause the fatal injury on the deceased. There

cannot be any dispute to the proposition that intention to kill, in these circumstances can be attributed to him. Accused A-2 to A-4 helped A-1 in

causing the fatal injury as they held the victim till the blow was hurled. It is not even prima facie indicated by the material on the record that any of

the other accused had the intention or had the shared intention or object to cause death of the victim. This is the presumptive worth of the evidence

collected during investigation. It is hard, nay, not possible, to hold on evaluation of the evidence, collected by the investigating agency, that the

common object of all the members of the unlawful assembly, allegedly constituted by the accused; was to cause death of any of the members of the

complainant party as had that been the common object, then accused, other than A-1, would not have refrained from using the dangerous

weapons they were carrying with them. The evidence unmistakably indicates that the common object of the assembly was to prevent, by use of

force, the user of the dispute passage/pathway.

It again is not possible, in presence on the facts and circumstances of the case, to presume that as the accused were armed with deadly

weapons so knowledge that any member of the assembly formed by them may use them to cause death cannot be attributed to all the accused

persons. It is in this context worthwhile to take note of the trial Judge's prima facie finding that the evidence collected by the Police is of three types

or categories; one category of witnesses having said that it was a free-for-all fight between the complainant party and the accused party. Apart

from this peculiar feature of the case, as indicated by trial Judge, there are the broad facts which un-erringly indicate prima-facie that intention to

kill developed between accused A-1 to A-4 at the spot and it was they alone who shared that intention. As the other accused had neither the

intention nor the object to cause death, so they cannot be roped-in with the aid of Section 149, R.P.C. and charged with the offence of murder,

actually committed by accused A-1 with his common intention with A-2 to A-4. The learned Sessions Judge was thus right not to accept all that

the prosecution stated as gospel truth. The accusation that all the accused persons had the common object or the common intention to kill is

negatived by the evidence and is opposed to the common sense and the broad probabilities of the case.

On appreciation of the evidence and the probabilities of the case the trial Court has been correct to hold prima facie that all the accused

persons had neither the common intention nor the common object to cause death of the deceased, so they could not be held vicariously

responsible for the individual acts of accused A-1 to A-4. The Judge therefore, in proper exercise of jurisdiction, discharged accused A-5 to A-15

from the offence of murder punishable u/s 302 read with Section 149, R.P.C.

No error in law or in jurisdiction can be attributed in the circumstances of the case to the trial Court's impugned order, No manifest illegality

has occasioned by the impugned order nor can it be said that the order has caused any miscarriage of justice. No interference, in the impugned

order, is thus warranted.

The revision petition is for the aforesaid reasons dismissed as misconceived. The record of the case will go back to the trial Court forthwith so

that its trial is concluded as expeditiously as possible