State vs Tariq Ahmed Sheikh

Hakim Imtiyaz Hussain, J.—This is a petition u/s 561A/435 Cr.P.C. for quashing the order of Sessions Judge, Baramulla dated 22.5.2004.

The facts are as under:-

One Seema daughter of Rehman Lone R/o Tawheed Gunj was married to the respondent namely Tariq Ahmad Sheikh S/o Nazir Ahmad R/o

Javind, Nowshera Uri (Baramulla) in the year 2001. She was living with the respondent at Nowshera and died in mysterious circumstances on

13th of June 2003. Police Station Boniyar received information of her death through a wireless message received from Police Control Room. On

receipt of the signal a report was entered in the concerned register of the Police Station on the same day and Executive Magistrate Uri was

approached for initiating inquest proceedings. The dead body of the deceased was recovered from the house of the accused and after completing

the necessary formalities was sent to District Hospital, Baramulla for post-mortem. Meanwhile father of the deceased namely Abdul Rehman Lone

lodged a report with SSP Baramulla alleging therein that his daughter was soon after her marriage in the year 2001 subjected to mental and

physical cruelty by her husband and in-laws and she was compelled to part with the ornaments and the money. He further stated that the couple

stayed in his house on 12th June, 2003 and left after taking leave from them but on 13th June, 2003 he found the dead body of his daughter in the

hospital. He, therefore, prayed to the police to take necessary action against the accused as he believed that his daughter has been murdered for

not meeting the demands.

After completing the inquest proceedings and also investigation of the case Police Station Boniyar filed a charge sheet against accused Tariq

Ahmed Sheikh Under 302, 498A RPC. The case ultimately came before Session Judge, Baramulla who after hearing the parties and considering

the matter came to the conclusion that offence u/s 302 RPC was not made out against the accused. He, therefore, discharged the accused u/s 302

RPC but framed charge against him u/s 306 & 498A RPC and put him to trial. Learned Session Judge has given various reasons for his order of

discharge as according to him the allegations in the application lodged by the father of the deceased before SSP, Baramulla were vague in nature

and the report is full of emotions and less of substances. According to the Ld. Session Judge not even suspicion against the accused for

commission of offence punishable u/s 302 RPC is made out against him. The death of deceased, according to the Ld. trial court has admittedly

been caused due to poison but there is no evidence to show that poison was administered by the accused to the deceased. The trial court has also

taken note of the inordinate delay in lodging FIR and has found that the delay has not been sufficiently explained on the basis of which the Court

inferred that the case is an after thought. It has also been observed that no independent witness has come forward to support the statement of the

parents of the deceased. The trial court has, therefore, concluded as under:

The evidence on record does not make out an offence punishable u/s 302 RPC by the accused. There is no direct evidence which would connect

the accused with the commission of offence punishable u/s 302 RPC by administering poison to the deceased and even circumstantial evidence is

conspicuous by its absence from the record in this connection because as already stated hereinabove, there is no evidence to show that the

accused was in possession of Aluminum Phosphide (Poison) immediately before the death of the deceased or he purchased it from any person for

the said purpose. The presumption which has been the basis for this allegation is not well founded presumption as such cannot be relied upon. The

charge against the accused in these circumstances is ordered to be framed u/s 306 and 498A RPC. The charge against the accused is accordingly

framed. The accused denies commission of offences and as such the prosecution is directed to adduce evidence in the matter.

Aggrieved by the order of the Ld. Session Judge in discharging the accused u/s 302 RPC the present application u/s 561A/435 Cr.P.C has

been filed for quashing the discharge order.

In the circumstances of the case and the nature of the order passed by the Ld. Session Judge which is impugned before this court the present

petition is treated as revision petition u/s 435 Cr.P.C and is considered on these lines.

It has been vehemently argued by Mr. M.A. Rathore, AAG that the Ld. Session Judge has committed grave illegality in observing that there was

no evidence on the fact that the accused has administered poison to the deceased. The trial court has gone into the merits of the case without

affording an opportunity to the prosecution to lead the evidence. According to the Ld. Counsel the trial court ought to have confined itself to see as

to whether there was sufficient material on record to proceed with the matter rather than sifting and weighing the evidence and coming to a

conclusion that prosecution had not established its case against the accused u/s 302 RPC. Ld. Counsel for the State has further referred to the

observations of the Ld. Session Judge regarding delay in filing the report, absence of independent evidence etc. and pleaded that all these issues

were required to be looked into at the conclusion of the trial as the Ld. Session Judge had no jurisdiction to look into all these points at the

charge/discharge stage.

Per contra, Mr. A.R. Bhat Ld. Counsel appearing for the respondent contended that the Ld. Session Judge was justified in taking the view it

took in the impugned order because in view of the material available before the court, if taken into consideration there can be no conviction as

there is no evidence on record to show that it was the accused-respondent who had caused death to the deceased. According to the Ld. Counsel

the court of Sessions is not a mere post office and it is within its jurisdiction to sift and weigh the evidence placed before it by the prosecution to

see as to whether the case is made out against the accused which is likely to end in conviction.

Heard. I have considered the matter and have gone through the trial court's record.

Section 227 and 228 of the Code of Criminal Procedure deal with the discharge/framing of charge by the Court of Sessions. u/s 227 of the

Code in cases which are triable by the Court of Sessions, if it appears to the court on consideration of the material before it and after hearing the

parties that there is no sufficient ground for proceeding against the accused the court can discharge the accused after recording reasons for the

same but if the court comes to the conclusion that there is ground for presuming that the accused has committed an offence, the court has to frame

charge u/s 228 of the Code. Thus for a discharge there should be no sufficient ground for proceeding against the accused and for framing the

charge there should be ground for presuming that the accused has committed an offence. Words ""no sufficient ground"" and ""ground for presuming

are very significant. The court no doubt has to sift and weigh the evidence but not to see as to whether or not the accused will get conviction at the

end of the trial but to see as to whether there are sufficient grounds for presuming that the accused has committed an offence. For determining the

question whether a charge is to be framed against the accused or not, what the trial court has therefore to be satisfied is whether there is ""sufficient

ground for proceeding"" and not whether there is sufficient ground for conviction. In Supdt. and Remembrancer of Legal Affairs, West Bengal Vs.

Anil Kumar Bhunja and Others, the Supreme Court following State of Bihar Vs. Ramesh Singh, held:-

It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had,

therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this

stage, as was pointed out by this Court in State of Bihar Vs. Ramesh Singh, , the truth, veracity and effect of the evidence which the prosecutor

proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the

accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this

stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the

existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the

commission of that offence"".

If two views are possible- one in favour of the accused and another against him at the conclusion of trial, one which is in favour of the accused

is to be accepted on the principle that prosecution must prove its case beyond any shadow of doubt but if the two views are there at the stage of

framing of charge, the court must proceed to frame the charge against the accused. Benefit of doubt or defects in the prosecution case may be

relevant factors at the conclusion of trial but not at the charge/discharge stage unless the defect is such, like want of sanction etc, which is fatal to

the prosecution case. The Apex Court has explained it in the following words in State of Bihar Vs. Ramesh Singh, (at page 42):

If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit

of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order u/s 227 or Section 228, then in

such a situation ordinarily and generally the order which will have to be made will be one u/s 228 and not u/s 227.

In the same authority Hon'ble court, while dealing with the scope of Sections 227 and 228 of the Code held (at page 41):

Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial

the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be

attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a

sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment

which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of

deciding the matter u/s 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the

accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion,

cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a 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.

Apex court reiterated its view in Ramesh Singh's case (supra) in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another,

and observed ( at page 721):

In fact, Section 227 itself contains enough guide lines as to the scope of enquiry for the purpose of discharging an accused. It provides that ""the

judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. ""The 'ground' in the context is not a

ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and

not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it

necessary to delve deep into various aspects. 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. No more need be enquired into.

In Union of India (UOI) Vs. Prafulla Kumar Samal and Another, the court laid down that in exercising his jurisdiction u/s 227 of the Code the

Judge which under the present code is a senior and experienced court 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. But despite going to such an extent the Hon'ble Court warned that this however does not mean that the

judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Applying these principles to the present case, I find that the Ld. Session Judge should not have discharged the accused u/s 302 RPC by giving

a finding on the merits of the case when the prosecution had yet to lead its evidence.

Perusal of the trial court file shows that there is an allegation that the deceased has died of poison i.e. Almunium Phosphade. The trial court has

presumed that deceased might have, getting harassed by her in-laws, consumed the poison herself. Presumption could be either way. Presumption

in favour of the accused could not have been drawn in absence of the material to that effect on record. Even the accused has not been examined to

ascertain the fact from him. Such a finding therefore, could not and should not have been given at such an early stage without giving the prosecution

an opportunity to present its case against the accused.

The fact that deceased Seema died an unnatural death is not in dispute. The question to be decided at the trial would be whether the accused-

respondent, as alleged by the prosecution, had killed her by administering poison to her or whether she committed suicide. This undoubtedly is a

serious matter for decision at the trial.

The fact that there was inordinate delay in filing FIR should have been considered only at the conclusion of the trial as the prosecution would

have got an opportunity to explain the delay. Similarly the court fell in error in coming to the conclusion that there was no evidence that the accused

had riot administered the poison to the deceased. All these issues should have been decided at the end of the trial.

Under these circumstances I find that the trial court order in discharging the accused u/s 302 RPC cannot sustain and is, therefore, set aside.

There is sufficient material on file to presume that the accused has committed the offence as the victim was at the time of her death in the custody of

the accused. It is for the accused to explain all these facts, which he can do only during the trial. No doubt the prosecution has a duty to establish

its case against the accused beyond shadow of doubt but that too can be done only by framing a proper charge u/s 302 RPC against the accused

and starting a trial against him.

For the reasons stated above, the impugned order of the Sessions court is set-aside. It is directed that appropriate charge or charges be

framed against the accused and the trial shall proceed further in accordance with law.

Respondent shall appear before the trial court on 28.11.2004.

Petition disposed of accordingly.