State vs S. Sheetal Singh

B.L. Bhat, J.—This revision petition which is directed against the order of learned Ses-fions Judge, Srinagar recorded on 9-10-1996 in a

case titled as ""State v. S. Sheetal Singh"" whereby he came to discharge the accused, stems out of the following circumstances.

On 8-10-1994 Dr. inderjeet Singh came to lodge a written report before S.H.O. Kothibagh Srinagar alleging therein that on 8-10-1994 at 12-

30 p.m. he was getting his car washed outside Maghaldarbar, suddenly Mr. Sheetal Singh an ex-army officer got down from his Jypsy; security

vehicle along with four gunmen started beating him and pulled off his hair and beard and also asked one of the gunmen to hand-oner the rifle so that

he will shoot him. Said Sheetal Singh also directed the said gunmen to note the number of his vehicle so that he can get him eliminated. Several

people assembled on spot as a result of which said Sheetal Singh managed his escape by the said Jypsy. He has further alleged that few days

back, the accused has sent some boys to his residence for threatening the complainant and also he had been threatening his relatives on telephone.

Pursuant to this report the police Kothibagh came to register a case for offence u/s 307, RPC under FIR No. 166/94 and proceeded with the

investigation of the case. After usual investigation the investigating agency found the accused guilty of offence u/s 307, RPC, challaned the accused-

respodnent Sheetal Singh before the Court of learned Forest Magistrate, Srinagar who in his turn came to commit the case to the Court of learned

Sessions Judge, Srinagar. The learned Sessions Judge after hearing the P.P. and the learned defence counsel and after examination of the entire

documents referred to in u/s 173, Cr. P.C. on the record of the case came to discharge the accused by virtue of his order dated 8-10-1996.

Aggrieved by this order the State came up in revision before this Court. It is maintained in the motion of revision that the impugned order is

illegal and has been passed in abuse of the judicial powers as the learned Sessions Judge has sifted the evidence collected by the prosecution

during the course of investigation, which under law he could not do.

I have heard Mr. M. I. Qadri, learned Sr. A.A.G. at length and have also perused the file very carefully,

Before, approaching the facts of the case, the scope of Section 268, Cr. P.C. may be appreciated. It read as under :-

Section 268. Discharge :- If upon consideration of the record of the case and the documents submitted thereunder and after hearing the

submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the

accused, he shall discharge the accused and record his reasons for so doing.

This section corresponds to Section 227 of the Cr.P.C. (Central Code). The Supreme Court in the case reported as Niranjan Singh Karam

Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, while considering the scope of Section 227, Cr.P.C. 1973 (Central), laid down

the following proposition :

After considering the case law on the subject, this Court deduced as under :-

(1) That the Judge while considering the question of framing the charges u/s 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.

(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 the 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 adduced before him while giving

rise to some suspicion but not grave suspicion against accused, he will be fully within his rights to discharge the accused.

(4) That in exercising his jurisdiction u/s 227 of the Code, the Judge which (sic) 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 inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

From the said principles deduced by the Apex Court in the afore authoritative judgment implies that after the commitment of a case to the Court

of Sessions Judge, the Court on material collected by the investigating agency and after hearing both the P.P. representing the State and the

defence counsel on the point of charge finds that there is no sufficient ground for proceeding against the accused in the case. He after recording his

reasons shall discharge the accused. In doing so he has power to sift and weigh the evidence collected by the prosecution during the course of

investigation and filed before the Court in support of their case.

To constitute the offence u/s 307, RPC the law is that there must be intention to commit the offence of murder, secondly some act must have

been done towards the commission of the said offence and thirdly this some act must be proximate to the intended result of causing murder. The

measure of proximity is not in relation with attempt and action, but in relation to the in tention, in other words the intention must be with reasonable

certainty in conjunction with facts and circumstances and not in iso lation an intention distinguished from mere desire or object to commit offence

Or murder. Intention is a state of mind, has to be gathered from the surrounding circumstances like weapon of offence used, nature of injury

caused and the motive. Besides this the act must be done with such intention knowledge or under such circumstances that if death is caused by that

act, the offence of murder would emerge. Having regard to this principle of law there is nothing on record to show that the respondent-accused

had an intention to cause the death of the complainant. If the statement of the complainant recorded u/s 161, Cr.P.C. is believed to the effect that

the accused demanded rifle from one of the gunmen travelling with him by the jypsy, in that case if his intention would have been to do away with

the life of the complainant then nobody upon the earth would have stopped him Besides this no weapon of offence has been seized in the case nor

a single strain of hair of the complainant has been seized which in his statement he has stated to have been pulled out from his head and beard by

the accused. If this statement of the complain-ant and that of the eye-witnesses namely Farooq Ahmad Sheikh and Riyaz Ahmad4s also taken as

true that the accused pullted out his hair and beard and also beat him, in that case in the course of ordinary events he would have sustained injuries

both on his head and face and would have bled from such injuries but there is nothing on file to show that the complainant has received any injury.

All this goes to show that no offence, is made out, much less the offence u/s 307, RPC.

In this view of the matter, the impugned order recorded by the learned Sessions Judge, Srinagar on 8-10-1996 does not suffer from any

impropriety or illegality. The motion of revision is accordingly dismissed. A copy of this order along with the record of the case be sent back to the

learned Sessions Judge, Srinagar.