State vs Amarjeet Singh alias Happy and Anr.

Seized with the question as to whether or not charge was required to be framed against respondent Amarjeet Singh and if so under which Section

of the Ranbir Penal Code, Learned Principal Sessions Judge, Jammu came to the conclusion that the respondent was required to be charged under

Section 30411 RPC, He did not find any case to frame a charge under Section 302 RPC against the respondent.

State of Jammu and Kashmir has questioned the order of Learned Sessions Judge in Criminal Revision No. 31/2006 whereas one Amarjeet Singh,

the brotherinlaw of the deceased Amarjeet Singh has filed 561A No. 24/2006 seeking similar relief.

Both these petitions have thus been taken up for joint consideration.

Facts necessary for the disposal of these petitions, as unfolded in Police Report under Section 173 of the Code of Criminal Procedure may, in

brief, be stated thus:

One Narinder Singh alias Bittu was standing on a road near a bridge across the canal on 14082005 when Amarjeet Singh alias Happy, armed with

an iron rod (tyre lever) came on a scooter from his house at about 10p.m. It was because of the old enemity between Narinder Singh and

Amarjeet Singh that Amarjeet Singh respondent, made a murderous attack on Narinder Singh hitting him on his head and other parts of the body

with the tyre lever which he had brought along with him. Narinder Singh received injuries on the head, nose and knees. Narinder Singh, succumbed

to his injuries on the same day. The postmortem examination of the deceased indicates following external and internal injuries:

Lacerated wound present over Lt. Side of face obliquely going upwards towards Lt. Ear 9cm x 0.5cm.

Abrasion over Rt. side of face 6cm x 3 cm.

Abrasion over Nose 3cm x 2cm.

Abrasion over anterior aspect of Lt. Knee 4cm x 2cm.

Lacerated wound present over Lt. Parietal region 4cm x 0.5cm.

Haemotoma present over Lt. Parietal region 8cm x 6cm.

The injuries received on the head had been reflected in the postmortem report in the following manner:

ScalpBruising present over Lt. Parietal region under scalp 10 cm x 8cm.

BonesFissure fracture Lt. Parietal Bone 3cm.

Membrances Extradural hemorrhage Lt. Parietal Region.

Brain Substance subdural hemorrhage present.

Base of Skull: Membrances Intact.

Brain substance Intra cerebral hemorrhage on Lt. side.

FIR No. 173/05 initially registered under Section 307/323 RPC at Police Station Domana, Jammu was, on the death of Narinder Singh was

converted into one under Section 302 RPC.

While considering the case for framing charge against the respondent, the Learned Sessions Judge, Jammu, observed as follows:

While framing the charge the Court cannot over look he size of the weapon of offence used in the commission of the offence and the number of

injury inflicted on the vital part of the body which are most material to formulate an opinion with regard to the intention of the accused to commit

murder. Further evidence of witnesses recorded under section 161 Cr. P.C amply transpires that there was hostility between the deceased and the

accused long back and it was after 34 years of old hostility that on the fateful day accused met the deceased at 8.30p.m in the bazaar Gole Gujral

where accused and the deceased has an altercation and deceased was told by the accused that he will kill him and there after the accused came on

his scooter at 10.00 after one and a half hour of altercation in the night along with one iron rod (tyre lever) and inflicted its blow on the head of the

deceased Narinder Singh. Had the intention of the accused been to commit the murder of the deceased Narinder Singh he would have not come

on scooter with a tyre liver rod blunt object that too of the size of 201/2 inch but would have come with a sharp edged weapon like axe, swords,

kirpan or with gun. for the purpose of eliminating the deceased in a planned manner. Looking to the number of the injury inflicted, which seems to

be the single injury which has resulted in the death of the deceased and the evidence available on the file the intention on the part of the accused to

cause death of the deceased cannot be imputed. Rather the evidence available on the file impute knowledge of the accused to cause the death of

the deceased which is amply made out from the evidence available on record. In this connection I am fortified by I (1997) CCR 320 (Rajasthan

H.C) which is a direct authority on the point. Under this authority the weapon used was a sharp edged weapon and injury was caused on the vital

part of the body i.e. head which resulted in the death of the injured, has held that the intention was to cause grievous injury not likely to result in his

death. I am also fortified in my view by the authorities reported as JT 2004(1) SC 358 and AIR 1994 SC 474.

In view of his observations, he accordingly held as follows:

In view of the above facts, the nature of the weapon used, the length of the weapon used, the number of injury caused which is a single injury that

caused death, the cumulative effect of the evidence and the fact that there is no evidence that the accused was openly carrying iron rod (tyre lever)

in his hand while going on his scooter are sufficient to hold that accused had only knowledge that the injury inflicted by him is likely to cause the

death but had no intention to cause the death of the deceased. As such offence under section 302 RPC is prima facie not made out against the

accused.

M/s B.S. Salathia, Additional Advocate General, Learned State Counsel and Mr. Sakal Bhushan, appearing for the brotherinlaw of the

deceased have questioned Order dated 23rd of February, 2006 of Learned Sessions Judge, Jarnmu saying that the Learned Sessions Judge,

Jammu had erred in discharging respondent Amarjeet Singh under Section 302 RPC although sufficient evidence was on records to justify charge

under Section 302 RPC on the respondent.

Mr. Sunil Sethi, Learned Counsel for the respondent, however, justifies the Order of Learned Sessions Judge relying upon Papu versus State of

Madhya Pradesh, reported as 2006 Cr. L.J, 3640, Partap Singh Versus State of Madhya Pardesh, reported as 2006 Cr. L.J, 314 and Chacko

alias Aniyan Kunju and others versus State of Kerala, reported as JT 2004(1) SC, 358.

I have considered the submissions of learned counsel for the parties and gone through the records of the case and judgments cited at the Bar.

Section 268 of the Code of Criminal Procedure Svt. 1989 contains enough guidelines as to the scope of inquiry for the purpose of discharging

an accused. It provides that the Judge shall discharge the accused when he considers that there is no sufficient ground for proceeding against the

accused. The expression ""ground"" in the context, in which it is used does not contemplate ground for conviction, but on the other hand, a ground

for putting the accused on trial. It is in the trial, that the guilt or the innocence of the accused will be determined and not at the time of framing of

charge. The Court is, therefore, not required to undertake an elaborate inquiry in sifting and weighing the material on records. Nor is it necessary

for the Court, at this stage, to delve deep into various aspects of the case. All that the Court has to consider is whether the evidentiary material on

record, if generally accepted would reasonably connect the accused with the crime. It is only when the Court finds that the trial of the accused shall

result in harassment to an innocent person by the arduous trial or the ordeal of prosecution that the Sessions Judge may consider discharge of the

accused.

The prosecution, in the present case had relied upon oral as also documentary evidence to prove that the respondent had attacked the

deceased with intention to kill him. The statements of the prosecution witnesses indicate that on the day of occurrence, the respondent had an

altercation with the deceased about 11/2 hours before the occurrence when the respondent had threatened the deceased to kill him. Pursuant to

the disclosure of the respondent, the investigating agency had seized an iron rod (tyre lever) which was 20.5 inches long and 2 inches round, which

had been projected as the weapon of offence with which the respondent had attacked the deceased. The postmortem report of the deceased had

indicated that because of the attack of the respondent on the deceased, he had received lacerated wound over left parietal region measuring 4cm x

0.5 cm and lacerated wound over left side of face obliquely going upwards towards left ear measuring 9cm x 0.5 cm, besides abrasions on face,

nose and anterior aspect of left knee. A Haemotoma was also noticed over left parietal region. Because of the impact of the injuries, there was

fissure fracture of the left parietal bone measuring 3cm. Extradural hemorrhage of parietal region, subdural hemorrhage as also Intra cerebral

hemorrhage was noticed on the left side.

Learned Sessions Judge has not considered the effect of oral and documentary evidence which had been assembled by the investigating

agency for its proof during the trial of the case. He has omitted to consider the evidence which the prosecution had proposed to lead during the

trial of the case to demonstrate that the respondent had attacked the deceased with an intention to kill him. On the other hand, Learned Sessions

Judge appears to have been influenced by the selection the act of the respondent in selecting a blunt edged weapon of offence rather than a sharp

edged weapon of offence, in coming to the conclusion that the respondent cannot be attributed intention to kill the deceased.

I do not find any justification in the view of the Learned Sessions Judge, for selection of a blunt edged weapon, by itself cannot lead one to

believe that the assailant did not have the intention to kill the deceased. Learned Sessions Judge, Jammu appears to have ignored the weight of the

iron rod which was 20 1/2 inch long with 2 inches width which is usually used by the drivers of heavy vehicles. Selection of heavy tyre lever (iron

rod) as a weapon of offence, by the respondent was not a circumstance which could be used in favour of the respondent. This circumstance was

one which could be used by the prosecution to demonstrate the intention of the respondent in selecting a heavy iron rod to cause injuries to the

deceased. The statements of the witnesses and the prosecution case as such that the respondent had attacked the deceased with intention to kill

him because of the old enemity and pursuant to the threat which the respondent had given to the deceased one and half hour before the occurrence

when there had been some altercation between the respondent and the deceased appears to have been ignored by the learned Sessions Judge.

I am of the view that Learned Sessions Judge, Jammu had exceeded his jurisdiction in delving deep into the arena of appreciation of

prosecution evidence at a stage when he was not required to be so Rather than considering the prosecution allegation that the respondent had

attacked the deceased with a heavy iron rod at his vital parts of the body resulting in his death on the same day, Learned Sessions Judge, Jammu

had proceeded to presume absence of intention of the respondent to attack him without any intention to cause his death. He appears to have erred

in imputing knowledge rather than intention to the accused to cause the death of the deceased. Learned Sessions Judge was not deciding the case

finally and had no evidence on records on the basis whereof such a distinction as to whether the respondentaccused had the knowledge or for that

matter the intention to cause the death of the deceased.

All these questions as to whether the attack of the accused was backed by his intention to commit murder or he had only knowledge that his

act would result in death of the deceased are such matters which may be adjudicated upon only when the witnesses in support of the prosecution

case indicating that the accused had attacked the deceased with an intention to kill him had been examined during the trial of the case and the

Court, in view of the crossexamination of these witnesses and host of other factors would come to the conclusion as to what actually had been the

intention of the accused in attacking the deceased. These are not such matters on which a final opinion may be given by the Sessions Judge at the

stage of framing charge or considering the case for the discharge of the accused. The finding of the Learned Sessions Judge that the evidence on

the file would impute knowledge of the accused to cause death of the deceased and in that view of the matter, he was required to be charged only

under Section 304 PartII RPC is unwarranted in view of the law laiddown by Hon'ble Supreme Court of India in Santosh versus State of Madhya

Pardesh, AIR 1975 SC 654, where, dealing with the question and relying upon Kapur Singh Versus State of Pepsu, AIR 1958 SC 654, their

lordships held as follows:

The learned Sessions Judge had relied upon Kapur Singh vs. State of Pepsu, AIR 1958 SC 654 to hold that, as injuries were inflicted upon the

limbs of the three men, who died of bleeding, but infliction of injuries on vital parts of the body was deliberately avoided, an intention of any body

to murder was established. The learned Sessions Judge appears to have overlooked the various clauses of Sec. 300, I.P.C. An intention to kill is

not required in every case. A Knowledge that the natural and probable consequences of an act would be death will suffice for a conviction under

Section 302, I.P.C.

It would be profitable to refer to what was held by their Lordships of Supreme Court of India in Papu Versus State of Madhya Pradesh

reported as 2006 Cr. L.J 3640. Paragraph 14 of this judgment reads thus:

It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302, I.P.C is ruled out. It would depend upon

the weapon 'used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.

The judgment cited by learned counsel for the respondent, do not deal with the scope of inquiry contemplated at the stage of framing charge or

considering discharge. These judgments, on the other hand, demonstrate that numbers of factors are required to be kept in view while considering

as to whether the act of the accused would require him to be punished under Section 302 RPC or 304 RPC. These factors, besides the facts of

the case, would include the nature of the weapon used, its size, the force applied, the part of body selected by the accused, previous enemity, if

any, the time selected by the accused for making attack. All these cases, refer to the determination of these factors at the time of final hearing of the

case after the prosecution and the defence had led their evidence and not at the stage of framing of charge or considering discharge of the accused.

Judgment cited by learned counsel for the respondents, therefore, do not support the view taken by Learned Sessions Judge in discharging the

respondent of offence under Section 302 RPC and charging him only under Section 304 PartII RPC.

For all what has been said above, I am of the view that Learned Principal Sessions Judge's finding that the respondent did not have intention to

kill the accused is both unwarranted besides being unjustified.

These petitions are accordingly allowed and Order dated 23rd of February, 2006 of Learned Principal Sessions Judge, Jammu is set aside.

Learned Sessions Judge, Jammu is directed to consider framing an appropriate charge against the respondent in accordance with law.