State of J. and K. vs Darshan Singh and Others

M.L. Kaul, J.—This revision arises out of a charge levelled by the police against the respondents under Sections 302/34, RPC read with

Section 201 of the RPC for the murder of one Kanta Devi.

The facts giving rise to these proceedings are as under:-

That on 8-6-1993 Amar Chand Sharma, A.S.I. Police Post Parole on some, information learnt that at about 7 p.m. on 7-6-1993 some

Prakashoo Devi, Swaranlatta alias Jalli and Darshan Singh alias Bagha had mercilessly beaten Kanta Devi with fists and kicks and she succumbed

to the injuries. In this regard he went on spot and found that Kanta Devi was dead and her dead body had already been destroyed by the accused

by putting it to the flames. On registration of the case investigation was conducted and the respondents were challaned for the offences mentioned

above. The trial court upon the perusal of the material placed before him by the Investigating officer and after hearing the prosecution and the

defence, came to the conclusion that prima facie offence u/s 304, Part II read with Section 34, RPC was made out against the accused and they

were charged accordingly. However, the accused Darshan Singh, Attar Singh, Trilok Singh and Vakil Singh were charged for an offence u/s 201,

RPC as well.

The prosecutioabeihg aggrieved of the said order of charge filed the present revision petition on the ground that the deceased was beaten with

brickbats and her chest was struck with brickbat blows as a result of which she vomited some material out of stomach and the same caused her

instantaneous death. Her daughter namely Asho who is a child withness and an eye witness to the occurrence disclosed to the police that the

accused did away with the life of the deceased intentionally and destroyed the evidence as well which fact is apparent from the circumstances of

the case that they did not even inform her maternal people about her death and put her to flames during the dead of night between 3 a.m. to 4 a.m.

'The same creates a strong circumstance against the accused that they killed the deceased intentionally and their action was quite venomous that

they even did not get the autopsy of her dead body to be conducted and instead put her to flames leaving no evidence to show that she was killed

by them, so much so that the material which she vomited from her stomach was also destroyed.

Heard Mr. B. Singh for the prosecution and Mr. Sakal Bushan for the respondents.

At the outset it can be said that at the time of framing of charge against the accused it is the duty of the court to ensure that the accusations as

against the accused are not fallacious, frivolous and when they create strong suspicion about his involvement in the commission of an offence, he is

to be charged for the offence for which he has been charge- sheeted by the Police. The Sessions Judge in compliance of Section 268, Cr.P.C. has

to consider only the records of the case and the documents submitted u/s 173 Cr.P.C. and is not competent to make a roving enquiry into pros

and cons of the matter and weigh the evidence as if he was conducting a trial. The Sessions Judge has not to sift and weigh the evidence recorded

by the police meticulously.""As has happened in the present case"". He is not to discuss the probabilities of the allegations in defence of the acccused

so as to determine the truth, veracity and effect of the evidence of the prosecution and foresee the probable defence of the accused. He could not

enter upon a roving enquiry so as to apply all the tests of evidence to be referred by him finally at the conclusion of the trial. He is not competent to

give benefit of doubt to the accused for a particular offence for which he has been charged upon the evidence recorded by the police and is not in

a position to find out the ultimate result of the crime at the time of framing of the charge.

In the present case in that context it is to be seen as to whether the trial Judge, i.e, the learned Sessions Judge Kathua has stood to such test and

has framed the charge in accordance with the evidence recorded by the prosecution which could not be diverted at the moment on the foreseeable

defence to be raised by the accused. The trial Judge has drawn some presumptions to hold that the intention to kill the deceased Kanta Devi by the

accused is not prima facie made out. Firstly, he observed that had the accused any intention to kill her, they would not have beaten her with fist

blows and kicks.

He secondly observed that the allegation put forth by the prosecution shows that the accused have given kicks and fist blows to the deceased

and have also struck her body with brickbats and the same goes to show that had the accused -the intention to kill her they could use any deadly

weapon of offence available in their house. They only used two brickbats and fist blows and kicks with which they are alleged to have beaten the

deceased.

Thirdly he has said that the injuries inflicted upon the body with two brickbats and fists are not to be presumed to be sufficient in the ordinary

course of nature for causing the death of the deceased.

Fourthly he has observed that the factum of failing to inform the death of the deceased Kanta Devi to police also speaks volumes about the

intention of the accused. He also observed that the consigning of the dead body to the flames in the early hours of morning on 7-6-1993 has not

fully been explained by the defence counsel.

It appears that the learned Sessions Judge in his wisdom has found that the factum of consigning the dead body to the flames in early hours of

morning of 7-6-1993 has not been fully explained by the defence counsel which shows that he believed the prosecution story that the accused after

causing intentional death of the deceased did not wait for her relatives to attend the funeral ceremony and instead they put the dead body to the

flames at 3 a.m. in the night with an intention to destroy the whole evidence in the matter making it impossible to know as to how the deceased was

killed and what injuries were sustained by her on her body.

It is quite amazing that the learned Sessions Judges has observed that the deceased could not have received the injuries on her person which in

the ordinary course of nature could cause her death. The learned Sessions Judge without having recorded any evidence about such circumstance

could not raise such a defence in favour of the accused knowing that he was not deciding the matter on merits after trial but was dealing with the

matter for charge or discharge of the accused. The very fact that the accused have destroyed the dead body and have not allowed the prosecution

to collect evidence about the injuries sustained by the deceased and the same is indicative of the fact that they have intentionally killed her as is

borne out from the evidence of her daughter Ashoo who is only seven years old. She in nutshell has depicted the whole scene of the incident as to

how Prakashoo Devi, Jalli and Darshan Singh put her to death firstly beating her with fists and blows and then with brickbats upon her chest as a

result of which she vomited some material which was also destroyed by the accused and she died instantaneously. The learned Sessions Judge has

fallen in an error in writing a four page order which almost resulted in dismissal of the prosecution case and the accused indirectly have been

acquitted of an offence u/s 302, RPC.

In this regard I am motivated to make mention of Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others,

wherein their Lordships have observed as under at page 1967:-

It is well settled that at the Sections 277, 228 stage, i.e., stage of framing of the charge, the court is required to evaluate the material and

documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients

constituting the alleged offence. The court may for this limited purpose sift the evidence and it cannot be expected even at that initial stage accept

all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

It is further observed in that case that, ""a judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out

adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give

rise to a strong suspicion of the accused having committed the crime allegedly against him"".

From the above case law it becomes manifestly clear that while exercising jurisdiction u/s 268, Cr.P.C. the Sessions Judge has to consider the

broad probabilities of the case and the total effect of the evidence, and the documents produced before him and to consider the basic infirmities in

the case. But that does not mean that he should make a roving enquiry into pros and cons of the matter and weigh the evidence as if he was

considering the trial. The Sessions Judge at the stage of charge is required to evaluate the material and the documents on record only with a view to

find out that the facts emerging thereupon from the police report and the documents collected oh evidence taken at their face value disclose the

existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence and it cannot be expected

even at the initial stage of charge to accept all that the prosecution states as gospel truth even (if) it is opposed to common sense or the broad

probabilities of the case. In the like manner it is the duty of the Sessions Judge not to take the arguments of the defence at its face value to say that

what they say is gospel truth and even if that is opposed to common sense and broad probabilities of the case. The broad probabilities of the case

were that the deceased Kanta Devi was killed by the accused with fist blows and infliction of certain injuries on her body with brickbats as a result

of which she died instantaneously. In order to conceal the offence the accused put her\dead body to the flames in the dead of night. The

probabilities of the case show that the accused have prima facie committed an offends u/s 302, RPC for which they have been discharged by the

Sessions Judge and instead charged them for a lesser offence. A great injustice has been caused to the prosecution. This Court, therefore,' while

exercising the powers under the provisions of Sections 435 and 439, Cr. P.C., set aside the order, of charge and send back the case to the trial

Court for framing appropriate charge against the accused u/s 302, RPC and other provisions of RPC which he deems fit and put them to trial in

accordance with law.

An argument was advanced by the learned counsel for the accused that this revision petition is not maintainable and in that regard he referred

to S.K. Mahajan and Etc. Vs. Municipality, . That judgment appears to me, does not hold good in view of Niranjan Singh Karam Singh Punjabi

and Others Vs. Jitendra Bhimraj Bijja and others, , wherein, their Lordships have observed that a Judicial Officer called upon to decide whether or

not a case for framing of charge under the Act is made out should adopt negative attitude. He should frame the charge if the prosecution shows that

the material placed on record and the documents relied upon give rise to a strong suspicion of the accused having committed the crime alleged

against him. The. above Division Bench ruling is applicable to a case where the order of charge has been passed upon the merits of the main

controversy, i.e. whether or not the accused stand guilty of the offence charged or not. In the case on hand the accused in a manner have been

discharged from an offence u/s 302, RPC and have instead been charged for some different offence. Therefore the change of charge, I feel, does

not fall within the rigours of interlocutory order as conveyed u/s 35(4-a) of the Cr. P.C. and such order of discharge of the accused from an

offence u/s 302, RPC is an order which is devoid of the merit of the case as covered by the Division Bench ruling S.K. Mahajan and Etc. Vs.

Municipality, especially in view of the law laid down by the Apaex Court in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj

Bijja and others, . Hence the argument advanced by the learned counsel for the respondents fails and the petition is held maintainable, for

adjudication as discussed above.