State of J. and K. vs Dev Raj and Others

Nirmal Singh, J.—This revision-petition has been filed by the State against the order dated 27-3-2003 passed by learned 2nd Addl.

Sessions Judge, Jammu in File No. 22/Session whereby he has discharged the accused-respondents u/s 302, RPC but charged-sheeted them u/s

304, Part-II read with Section 34, RPC.

The relevant facts for the disposal of this revision-petition are that, originally a case under Sections 279/337, RPC was registered on reliable

information that deceased Amrik Singh son of Sardar Singh was driving his Scooter bearing Registration No. 0637-JK02Q rashly and negligently

on the road and he could not control the scooter and fell down and sustained grievous injuries and remained admitted in G.M.C. Hospital, Jammu.

The investigation was conducted and during investigation, statements of witnesses were recorded including the statement of Amrik Singh

deceased and said statement of the deceased was treated as dying declaration. In his dying declaration, the deceased has stated that on 30-6-

2002 he had gone to Bishnah on a scooter in connection with some domestic work along with one Rinku and when he reached Deoli from

Bishnah, one Sukhdev Raj, Panch, told him that there is a ""Naka"" against him ahead and he should not go from that way but it was not told to him

that who has held that ""Naka."" He further deposed in his statement that he told Sukhdev Raj, Panch, that he has no enmity with any person so that

how any body will kill him. When he along with Rinku went ahead for going to Lasora and reached near Deoli temple accused Sucha, Baldev Raj

alias Billa and Puppi who are real brothers along with 10/12 persons, assaulted him with Lathies. He fell down from the scooter and Rinku raised

alarm, he became unconscious. Amrik Singh succumbed to his injuries, a case against the accused was registered under Sections 302/34, RPC

and 201, RPC.

After completion of the investigation, a challan was presented and case was committed to the Court of Session and thereafter the same was

entrusted to the Court of 2nd Additional Sessions Judge, Jammu. Learned 2nd Addl. Sessions Judge, instead of framing charge against the

accused persons u/s 302, RPC, framed charges u/s 304 -II, RPC and held that there is no prima facie case against the accused, aggrieved by

which the present revision-petition has been preferred by the State.

Mr. Ajay Vaid, learned Counsel for the respondents raised preliminary objections that discharging the accused u/s 302, RPC and framing

charge u/s 304, Part-II, RPC is an interlocutory order, therefore, revision is barred u/s 435(4)(a) of the Code of Criminal Procedure. He also

placed reliance on S.K. Mahajan and Etc. Vs. Municipality, He contended that with the framing of charge against the accused u/s 304 -II, RPC,

the proceedings are still subsisting before the trial Court and the order has not assumed finality.

I have given my thoughtful consideration to the preliminary objection raised by learned Counsel for the respondents but find the same without

any substance.

When a report u/s 173(2), Cr. P.C. has been submitted for one offence or under more than one offence, either under the RPC or under any

other special Act, but the trial Court, at the time of framing the charge charge-sheeted the accused for a lesser offence of the accused is charged

for any of the offence for which the report has been submitted, discharging the accused for a major offence and charging under a lesser offence or

the order of discharging the accused for one offence is a final order and is not an interlocutory order. The trial Court has no power to recall the

order and reframe the charge under the section for which the accused has been discharged. Same view has been taken by Himachal Pradesh High

Court in State of Himachal Pradesh Vs. Harbans Singh and Another, , wherein it has been observed as under :--

Where the accused were committed by the Magistrate to Sessions Judge to frame charge under Sections 302 and 342 of I.P.C. and the Sessions

Judge discharged the accused for an offence u/s 302. Held that the order of discharge put an end in so far as offence u/s 302 was concerned and

so was not an interlocutory order.

Therefore I am of the view that discharge of the accused u/s 302, RPC is a final order and revision against which is maintainable.

The next point which has to be considered is whether the learned Sessions Judge was justified in discharging the accused as there was no

material before the learned Sessions Judge to discharge the accused u/s 302, RPC. At the time of framing of charge, the Court has only to see

whether from the evidence collected during investigation, there are sufficient grounds for charging the accused, at that stage the Court is not to see

whether the accused has to be convicted or acquitted as has been held in State of Bihar Vs. Ramesh Singh, , where it has been held as under :--

Reading Sections 227 and 228 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 arid 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 and 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.

Same view has been taken in R.S. Nayak Vs. A.R. Antulay and Another, .

When an offence is triable by the Court of Session, the accused can be discharged u/s 268, Cr.P.C., which reads as under :--

Discharge : 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 proceeding against the accused, he shall

discharge the accused and record his reasons for so doing.

Perusal of Section 268 (supra) shows that before discharging an accused the Sessions Judge has to record his reasons for doing so, so that the

correctness of the order can be examined by superior Court. The learned Sessions Judge while discharging the accused u/s 302, R.P.C. has

observed as under:

Therefore applying the above mentioned rulings, considering the arguments advanced by learned APP and the defence counsel in the instant case it

reveals that as per the dying declaration made by the deceased-Amrik Singh there was no inimical relation between the deceased and the accused.

Therefore, while going through the dying declaration placed on the file and statements of the witnesses recorded u/s 161. Cr. P.C. the offence

under Sections 304, Part 11/34, RPC is prima facie made out against the accused instead of Section 302, RPC.

These observations made by the learned Addl. Sessions Judge are palpably erroneous. The learned Sessions Judge, while passing the order

has relied upon Joseph Vs. State of Kerala, , and Rajangam Vs. State (Tamil Nadu), . These judicial precedents referred to by the learned

Sessions Judge in his order have no applicability at the time of framing the charge. In all these cases, evidence, of the witnesses was recorded by

the trial Court and after recording the evidence Court came to the conclusion that the offence u/s 302 is not made out but offence u/s 304 -II is

made out.

I have perused the statement of the deceased-Amrik Singh and other witnesses recorded u/s 161, Cr. P.C. as well as the post-mortem report.

From the material on record there was a prima facie case to presume that the accused have committed the offence u/s 302, RPC but the learned

Sessions Judge has held that there was no previous enmity between the accused and the deceased, therefore, offence u/s 302, RPC is not made

out and offence u/s 304 -II, RPC is made out. Under law the Court, at the time of framing the charge has not to record such a finding. Such finding

can be recorded only after evidence is recorded and the defence cross-examine the witnesses. The Court cannot presume of its own, without the

evidence that there was no previous enmity between the parties. Some time murders are committed on trifle matters, without any previous enmity,

therefore, the order of discharging the accused u/s 302, RPC, cannot sustain and is set aside and the learned Sessions Judge is directed to frame

the charge against the accused persons under Sections 302/34, RPC.

Mr. B.S. Salathia, learned AAG, contended that the charge has been framed u/s 304 -II, RPC with a ulterior motive to allow ball to the

respondents as if charge u/s 302, RPC is framed than the accused would not be entitled to bail as there is legal bar as provided u/s 497A, Cr.P.C.

Ball was allowed to the respondents-accused solely on the ground that the charge has been framed u/s 304 -II, RPC, but now as the charge

u/s 302, RPC has been directed to be framed against the accused persons, as such, ball granted in their favour stands cancelled. They are directed

to be taken into custody. However, they are at liberty to move application for bail, which will be considered by the trial Court on its own merits.

The revision-petition is accepted in terms of the above order.