Alaf Din @APPELLANT@Hash State Of Jammu & Kashmir And Ors

In this petition filed under Section 561-A of the Code of Criminal Procedure Svt. 1989, the petitioner/complainant/injured, seeks quashing of order dated 21.11.2017 passed by the Principal Sessions Judge, Ramban, to the extent charge under section 307 RPC was dropped against respondent Nos.3 to 8 while framing charge in criminal Challan titled 'State vs. Fayaz Ahmed and ors.'.

The facts giving rise to the filing of this petition briefly stated are that the petitioner is a Government Teacher in Education Department and at the relevant time, he was posted in Government Middle School, Nablota, Tehsil Kheri, District Ramban. On 26.07.2016, while the petitioner was coming back to his home after discharging his official duties and on reaching Dangam forest, respondent Nos. 3 to 8 appeared and on account of previous enmity with common intention to murder, restrained and tied the hands of the petitioner. It is contended that the accused were having gun and weapons in their hands. They gave serious blows on the head and other vital parts of the body of the petitioner with intent to commit the murder. Thereafter, the accused persons tied a cloth over the eyes of the petitioner and forcibly put warm water in his mouth and also burnt the ears of the petitioner with lighter. The accused person fled away from the spot leaving the petitioner in a pool of blood, unconscious on the ground.

While framing the charges against the respondent Nos. 3 to 8, the Principal Sessions Judge, Ramban dropped the charges under Section 307 RPC and framed only charge under Sections 364/341/147/382/323/352/201 RPC and Section 30 I.A. Act. In the aforesaid factual background, the petitioner has approached this Court.

The petitioner being aggrieved of the impugned order has challenged the same in the instant petition on the following grounds:

(a) That the trial court has passed the impugned order in a very casual and mechanical manner.

(b) That the trial court while passing the order impugned has not applied its mind to the peculiar facts and circumstances of the present case.

(c) That a bare perusal of the challan makes it amply clear that prima facie case under section 307 RPC is made out against the accused.

(d) That merely on the basis of a medical report, trial court cannot gather the intention of the accused to commit the offence and cannot draw final conclusion that the accused cannot be charged under Section 307 RPC.

The respondent/State has filed the reply/status report, wherein it is stated that on 26.07.2016, the injured, Alaf Din after performing his duties as a teacher at Government Middle School was going back to his home and on the way to home when he reached in the Dangam forest, all of a sudden the accused persons appeared and on account of previous enmity with common intention to murder, restrained and tied his hands and abducted him towards Galeer. Further that the accused Akbar Naik had a rifle in his hand, whereas the other accused persons were armed with small spades and they started severely thrashing him. Later the accused person also tied both the legs of the petitioner. The accused person also snatched cash amounting to Rs.52,500/- and a mobile phone from the injured. Further, the accused persons had also consulted each other either to shoot the injured with the rifle or slit his neck. Later the accused persons tied a cloth over his eyes and forcibly put warm water in his mouth and also burnt his ears with a lighter. Thereafter, one of the accused gave a blow on the head of the injured, as a result of which, he fell unconscious and thereafter the accused persons fled away from the spot. It is further submitted that on the basis of the investigation carried out by the respondent No.1, offence under Sections 307/ 364/341/147/382/323/352/201 RPC and Section 30 I.A. Act were proved and the charge-sheet was produced before the Court of learned Principal Sessions Judge, Ramban, where the same is pending adjudication. However, vide impugned order dated 21.11.2017, the charge under section 307 RPC has been dropped by the learned Sessions Judge, Ramban.

Heard learned counsel for the parties and law on the subject. I have considered the arguments. Counsel for petitioner has relied upon 2001 (4) SCC 333 case titled Smt. Om Wati & anr. v. State through Delhi Adm; and AIR 2004 SC 2678 case titled Vasant Vithu Jadhav v State of Maharashtra.

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 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."

A conjoint reading of sections 268 and 269 of Cr.P.C. would reveals 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.

In present case, from bare perusal of prosecution story, it is evident that accused have abducted the petitioner in order to kill him; one of accused was having rifle in his hand; whereas the other accused persons were armed with small spades and they started severely thrashing him. Later the accused person also tied both the legs of the petitioner. The accused persons have also snatched cash amounting to Rs.52,500/- and a mobile phone from the injured. Further, the accused persons had also consulted each other either to shoot the injured with the rifle or slit his neck. Later on, the accused persons tied a cloth over his eyes and forcibly put warm water in his mouth and also burnt his ears with a lighter. Thereafter, one of the accused gave a blow on the head of the injured, as a result of which, he fell unconscious and thereafter the accused persons fled away from the spot.

Doctor has opined that petitioner has suffered 5 injuries; injury no.1 is Haematoma and abrasions on the left side of the forehead; injury no.2 is bleeding from nostrils; injury no.3 is bleeding from Right ear; injury no.4 is abrasion over the right and left shoulder joint, tenderness; and injury no.5 is bruises over right midial side of foot near ankle joint. As per doctor all injuries are simple in nature except no.5 which is grievous in nature.

Court below on these facts has framed charges u/s 364/341/147/382/323 /325/201 RPC and 30 of A. Act. The injury on forehead is Haematoma means collection of blood outside blood capillaries and abrasion means scratch, both are not fatal injuries. All other injuries are simple in nature and not on vital parts. Injury no.5 is grievous in nature but is not at vital part i.e. at ankle.

Had the accused intention to kill, they would have fired on injured or would have given serious injuries on vital parts of body. Intention of accused person is gatherable from the facts, the way in which injuries were inflicted, weapon of offence used and places where the injuries were inflicted. From the facts and circumstances of present case, it is evident that act committed by accused persons was not such type that if it was not intercepted or prohibited, injured was sure to die or injuries caused by accused were sufficient to cause death of the victim in ordinary course.

At the time of framing of charge, the court has only to consider the evidence collected by investigation agency till filing of challan, to see as to whether there are sufficient grounds for proceeding against the accused under any of penal section; if question is yes, then court has to see under which section he has to proceed by framing charge. Court has ample power to scan the evidence in judicial manner to see as to under which section charge is to be framed, despite the fact police has found proved offence/s under different section/s of law. The detail appreciation of evidence cannot be done, which court is required to appreciate at the time of passing of final judgment. Further, court has power to alter, add or delete charge at any stage of proceeding. If any such evidence will come before court during trial, for adding charge under section 307, court has ample power to do so. The law cited by counsel for petitioner is not applicable. As in 2001 (4) SCC 333 case titled Smt. Om Wati & anr. v. State through Delhi Adm., the court has only laid down general guidelines while framing of charge and in AIR 2004 SC 2678 case titled Vasant Vithu Jadhav v State of Maharashtra, Apex court has laid down the principle for basing conviction under 307 IPC.

In view of above, this petition is dismissed.