State of J & K vs Ahad Sheikh and Others

Through the medium of revision petition No. 16/99, the State has challenged the order dated: March 23, 1999 passed by the learned Sessions

Judge, Budgam whereby he discharged respondent No. 2 to 5 for the commission of offences falling under section 302 RFC read with section 149

RFC and charged them for the commission of offence falling under section 323 RFC. Respondent No. 1, namely, Ahad Sheikh was charged in

terms of the said order for the commission of offences falling under sections 307/302 RFC. Further more, the learned Sessions Judge had rejected

the application filed by the petitionerState for impleading Muneer Sheikh and Ishaq Sheikh as coaccused in terms of the said order.

The order has been challenged on the plea that the evidence of majority of the eye witnesses was not considered by the learned Judge while

passing the impugned order and wrongly relied upon the testimony of Gulzar Ahmad, Rashid Ahmad Mir, Maqbool Mir and Shahzad Khan. The

incriminating documentary evidence was also not taken into consideration. The evidence on record had implicated respondents herein, including

Muneer Sheikh and Ishaq Sheikh, for the commission of offences falling under section 302 RFC read with section 149 RFC, but the learned

Sessions Judge by ignoring the evidence discharged respondents 2 to 5 and not impleaded Muneer Sheikh and Ishaq Sheikh as accused. The

order is stated to be suffering from patent illegality.

Criminal revision petition No. 19/99: The petitioner has challenged the order of the learned Session Judge dated: 23031999 whereby he has been

charged for the commission of offence under section 302 RPc read with section 307 RFC. The order has been challenged on the ground that the

trial court has not properly appreciated the arguments put forth on behalf of the petitioner and in the light of the entire material on the record, case

was not made out under section 302 RPC, but at the most a charge could be framed under section 304 Part II RPC. The trial Judge committed an

illegality when, after arriving at the conclusion that there was no intention to cause death, he still charged the accused under section 302 RFC. The

medical opinion is that death was caused due to cardio pulmonary arrest, but the fatal injury has been found on the front side of the temporal region

and thus the injury was not itself sufficient in the ordinary course of nature to cause death. It is prayed that the charge has been framed without

establishing the ingredients of the offence under section 302 RFC and the order is perverse in eye of law.

Through the medium of above said two revision petitions, order dated: 23031999 stands challenged and both the revision petitions will be

decided by this common order.

Heard the arguments.

The facts of the case briefly stated are that on 10081998 at 7.40 P.M., Mr. Ghulam Muhammad Mir. Advocate lodged written report in police

station, Saddar stating therein that about 4 PM his cousin brother Farooq Ahmad Mir alongwith cosharers were looking after the trees grown in

their land when accused Ahad Sheikh and his sons, Muneer Sheikh and Ishaq Sheikh in the company of five labourers (whose names were not

known) were noticed extracting sand nearby roots of the trees which were standing on the land of Farooq Ahmad Mir and the cosharers. The

deceased, Farooq Ahmad Mir asked them to desist from doing so as the trees would be washed by the flow of water of the Nallah and erosion

caused to the land. This advice tendered by the deceased and his cosharers enraged accused Ahad Sheikh and his sons, Muneer Sheikh and Ishaq

Sheikh as well as the labourers and all of them with the common object of murdering the deceased formed an unlawful assembly, caused fist blows

and stick blows whereas, accused Ahad Sheikh caused an injury with a shovel from the wooden handle with full force on his head and injured him.

the deceased was taken to the Medical Institute for treatment where his condition was precarious. In this report, the list of eye witnesses is given

which include the names of Muhammad Yousuf Mir, Muzaffar Iqbal, Muhammad Maqbool Mir, Muhammad Ishaq Mir, Jandad Khan, Imitiaz

Ahmad Mir, Muhammad Akram Mir, Ghulam Muhammad Ahanger and Abdul Rashid Sheikh. It was alleged that besides these named persons

some other person had also witnessed the occurence. Upon this report, case under FIR No. 254 of 1998 falling under sections 3Q7/148/34 RFC

read with section 149 RFC was registered in the Police Station. The injured succumbed to the injuries on 11081998 and investigation was

conducted under section 302 RFC. In the final report submitted in the court, the accused Ahad Sheikh was stated to have committed an offence

under section 302 RFC whereas, Muneer Sheikh and Ishaq Sheikh were released under 169 RFC. Respondents 2 to 5 of revision No. 16/99

were found to have committed offences under section 302 RPc read with section 149 RFC. The Committal Magistrate committed the case before

the learned Sessions Judge, Budgam who in terms of the impugned order charged the respondents of revision petition No. 16/99 for the offences

stated above.

The learned counsel appearing for the petitioner (revision No. 16/99) have contended that the learned Sessions Judge has not taken into

consideration the depositions of the eye witnesses when all of them in one voice have stated that the respondents, who had assembled there, got

enraged on the plain exhortations of the deceased not to extract sand from the embankment of the Nallah. Their assembly was not unlawful in the

beginning but it became unlawful subsequently when their action was challenged and they with the common object attacked the deceased and

inflicted him injuries. Section 141 Cr. PC. defines unlawful assembly and explanation appended thereunder states that an assembly, which was not

unlawful when it assembled, may subsequently become an unlawful assembly. The learned Sessions Judge without the basis of any evidence has

held that it was a case of sudden fight when there is no evidences that respondents were also attacked by the deceased or his cosharers. Though

the murder was not preplanned, yet on the spur of the moment on account of heat which was created in the minds of the respondents at the

behaviour of the deceased and his companies, they picked up the quarrel and inflicted injuries. One of such injuries was on the vital part of the

body which proved fatal and because of their conduct it has to be gathered that they had intention of murdering the deceased. At this stage, the

learned Judge was required to arrive at the prima facie conclusion about the material on the record and not to make a roving enquiry with regard to

the guilt. A strong suspicion for the commission of the murder was established on the basis of evidences and all the respondents were required to

be charged for the commission of the offences, falling under section 302 RFC read with section 149 RFC. In support of this contention, the

learned counsel have cited AIR 1979 Sc 366 and AIR 1972 SC 545. In AIR 1972 SC 545, the trial court was required to fully advert to the

material on the record. It is contended that the trial court has not done this in the present case. There was incriminating evidence against Muneer

Sheikh and Ishaq Sheikh also, but they have not been charged by wrongly referring to Section 319 Cr. P.C. which has been deleted from the

Statute (Code or Criminal Procedure). The nonrecovery of the sticks from the respondents could not be a ground for discharging respondents 2 to

5.

Rebutting the arguments of the counsel of the petitioner, Mr. M.A. Qayoom, Advocate has contended that the trial court has rightly discharged

respondents 2 to 5 because the material produced does not disclose grave suspicion against them. The Apex Court in the case of Union of India

Vs. Prafulla Kumar (1979 Criminal Law Journal 154) has held that if two views are equally possible and the judge is satisfied that the evidence

produced before him while giving rise to some suspicion, but not a grave suspicion against the accused, he will be fully within his rights to discharge

the accused. The Judge has to evaluate the evidence and material 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 offence. For this purpose the trial court exercised the limited power and after

shifting the evidence and taking into account the broad probabilities has held that it was a case of fight and rightly discharged respondents 2 to 5.

The order of the learned Judge is validated by the law laid down by the Apex Court in case ""Nirajan Singh Karam Singh Punjabi Vs. Jitendra

Bhimraj"" (Air 1990 SC 1962). The learned counsel has also cited the law laid down by the Apex Court in the case of ""State of J&K Vs. Romesh

Chander"" (AIR 1997 SC 2401) wherein it is held that the charge sheet constitutes prima facie evidence constituting the offence. Adverting to the

facts of the case, he has contended that the deceased alongwith cosharers approached the respondents outside the boundary of their land and

asked them to desist from extracting sand from a place which was not owned by them. That eye witnesses, namely, Muhammad Maqbool Mir,

Ghulam Muhammad Ahanger, Abdul Rashid Mir, (Sheikh), Jan Mohd Sheikh and Shahdad Khan have excluded the presence of Muneer Sheikh

and Ishaq Sheikh from the spot and according to their version it was a fight between two parties and on this factual matrix the benefit given by the

investigating agency of Section 169 Cr. P.C. to Muneer Sheikh and Ishaq Sheikh is based on facts and it cannot be said that there is any violation

of law. He has further contended that respondent No. 1 has wrongly been charged for the commission of an offence falling under section 302 RFC

(also under section 307 RFC) and that he should have been charged under section 304 Part II PRC as the case falls under exception (4) of

Section 300 RFC. In support of this contention he has cited the case of ""Hanumappa Bhimappa Huklannavar Vs. State of Mysore"" (1996 CAR

281 SC) wherein an ace was used to cause the injuries, but only from the back side and not from the sharp side. On the basis of evidences it had

appeared that the accused had not intended the murder. The injuries caused the death of the deceased subsequently and conclusion could not be

drawn that those injuries could be regarded as sufficient in the nature to cause death. The offence committed was found culpable homicide not

amounting to murder and the conviction of the accused was altered from section 302/149IPC to Section 304 Part I read with Section 149 IPC.

The case of ""Balaur Singh Vs. State of Punjab"" (AIR 1995 SC 1956) is also cited and in this case free fight between the parties had taken place.

Accusedappellant was found responsible for causing sole fatal injury and the deceased, however, died six days later because of complications of

coma on account of the injury despite medical attention. The appellant accused had caused single blow. The conviction of the accused was altered

from Section 302 to Section 304 Part II IPC. In the case of "" Surinder Kumar Vs. Union Territory Chandigarh"" (AIR 1989 SC 1049) murder was

committed after sudden quarrel and the accused could not be said to have acted in a cruel manner. He was given the benefit of exception (4) to

Section 300 IPC and convicted under Section 304 Part I IPC. The view of the Apex Court is reiterated hereunder:

to invoke Exception (4) to Section 300 four requirements must be satisfied, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act

was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not

relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurence is not a decisive

factor but what is important is that the occurence must have been sudden an unpremeditated and the offender must have acted in a fit of anger. Of

course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the

moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception

provided he has not acted cruelly. Thus wherein a case of quarrel between the deceased and the accused regarding possession of premises, it was

reasonable to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle he received

injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to Section 300. Merely because three injuries

were caused to the deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. Under such circumstances the

accused could be convicted under Section 304 Part I.

In the case of ""Mahesh Vs. State of M.P."" (AIR 1996 SC 2513) Exception 4 to Section 300 was attracted when on facts it was found that the

death was caused in, a sudden quarrel with out premeditation. The accused had given a single blow and ran away form the spot. He had not acted

in cruel or unusual manner. Also he did not assault other persons who were present with the deceased. The conviction was altered from 302 IPC

to Section 304 Part I IPC.

In the present case in the first information report, the complainant, Ghulam Muhammad Mir. Advocate has named nine prosecution witnesses,

namely, Muhammad Yousuf Mir, Muzaffar Iqbal, Mohd Maqbool, Muhammad Ismail Mir. Jandad Khan, Imtiaz Mir. Muhammad Akram Mir,

Ghulam Muhammad Ahanger, Abdul Rashid Sheikh (Mir) to have witnessed the occurence.

Muhammad Yousuf (PW 1) has named the respondents as well as Muneer Sheikh and Ishaq Sheikh to have attacked the deceased when he had

challenged their act of extracting the sand nearby their field where poplar and willow trees were planted by them. He has also stated that all of

them had formed an unlawful assembly and attacked the deceased with fist blows, legs and sticks and that respondent Ahad Sheikh, who was

carrying a shovel in his hands, caused the injury on the head of the deceased by the wooden handle and the deceased fell on the ground. He has

named the other persons mentioned in the FIR to have witnessed the occurence. The weapon of offence was left on the spot by respondent Ahad

Sheikh which was picked up by Muhammad Akram Mir and lateron produced in the police.

Muzaffar Iqbal (PW 2) has corroborated the testimony of the said witness. Muhammad Maqbool Mir (PW 3) has also deposed alike and

further stated that the named witnesses of the FIR had intervened in the quarrel. Mohd Ismail Mir (PW 4) had named the respondents as well as

the sons of Ahad Sheikh to have participated in the attack. He gives the same account of the incident which is given by other witnesses. Jandad

Khan (PW 5) besides giving the account of the occurence has also stated that before this occurence respondents had threatened to kill somebody

from the party of the deceased. He has not named Muneer Sheikh and Ishaq Sheikh to have participated in the occurence. Imtiaz Ahmad Mir

(PW 6) has named the respondents as well as the sons of respondent Ahad Sheikh to have caused the incident. Mohd Akram Mir (PW 7) has

also named all the respondents, including the sons of Ahad Sheikh to have caused the incident in the manner deposited by other witnesses.

Ghulam Mohd Ahanger, (PW 8) has stated that he saw the people running towards the Nallah and he enquired and was told that a fight had

taken place. He closed his shop and went to the spot. He saw Mohd Akram Mir accompanied by some people lifting deceased Farooq Ahmad in

a vehicle who was in an injured condition. He shows his ignorance about the occurence.

Abdul Rashid Mir (Sheikh), PW 9, has stated that when he reached the spot, he saw the deceased who was arguing with the respondents

regarding the extraction of sand from the spot. He does not name Muneer Sheikh and Ishaq Sheikh to have participated in the incident.

Ali Mohd Sheikh is an eye witness cited at No. 16 in the calendar of the witnesses. He has stated that respondent in his presence had attacked the

deceased and inflicted the injuries. Injury on the head was caused by respondent, Abdul Ahad Sheikh. He does not name Muneer Sheikh and

Ishaq Sheikh.

Fayaz Ahmad Mir has also been cited as an eye witness in the calendar of the witnesses. He has stated that he had gone to Doodhganga Nallah to

look after his land where he saw the deceased looking after his trees. He names the respondents and the sons of respondent Ahad Sheikh, namely,

Muneer Sheikh and Ishaq Sheikh to have attacked the deceased and caused the injuries. He corroborates that an injury with wooden side of the

shovel was caused by Ahad Sheikh.

The deposition of the above stated witnesses falsifies the findings of the learned Sessions Judge that it was a fight between two parties. None

of the witnesses has stated that deceased and his cosharers had also attacked or offered any fight to the respondents. Rather, the evidence is that a

sudden quarrel was started by the respondents who got provoked when deceased and his cosharers had resisted their action of extracting the sand

from the bank of the Nallah. On such a factual matrix prima facie it was established that respondents had formed an unlawful assembly and caused

the injury to the deceased. The injury on his head proved fatal who died on the next day i.e. on 11081998. On the basis of prima facie evidence, it

is a case of grave suspicion against the respondents which presently is not explained. No doubt some witnesses have excluded the presence of

Muneer Sheikh and Ishaq Sheikh from the spot, yet they cannot deface the whole evidence of majority of the prosecution witnesses discussed

above. The face value of the evidence establishes that in pursuance of the common object respondents had caused the injuries. The injury caused

by respondent No. 1 by shovel was not premeditated but caused at the spur of the moment in a manner which was not cruel. The discharge of

respondent No. 2 to 5 by the learned Sessions Judge for the commission of murder while members of the unlawful assembly and charging them

under Section 323 RFC is illegal and carried the miscarriage of justice. Similarly, charging respondent No. 1 for the commission of offences under

Section 302 RFC read with Section 307 is not in accordance with law.

Now the question arises whether Muneer Sheikh and Ishaq Sheikh could be implicated as accused when they had been released by the

Investigating Officer under Section 169 Cr. P. C. Section 319 Cr. P.C. has been deleted from the Jammu and Kashmir Code of Criminal

Procedure and such a contigency has been left unattended in the Code and unlike in the Central Cr. P. Code where section 319 takes care. When

this case was committed by the Committal Magistrate to the learned Sessions Judge they were not the accused in the case. The learned Sessions

Judge took the cognizance of the case under section 193 Cr. P.C. The trial of the case is regulated by the procedure prescribed under Chapter

XXIII of the Code of Criminal Procedure. Section 269 Cr. P.C. mandates that charge is to be framed after hearing the prosecution and the

accused. At this stage, Muneer Sheikh and Ishaq Sheikh were not the accused before the learned Sessions Judge and could not be heard. The

learned Sessions Judge rightly rejected the application for impleading them as coaccused. This does not mean that they can remain above the reach

of law. Section 190 Cr. P.C. empowers a Magistrate to take cognizance of an offence:

a) upon receiving a complaint of facts which constitutes such offence;

b) upon a report in writing of such facts made by any Police Officer;

c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been

committed.

This Section has to be read in harmony with Section 193 Cr. P.C. A Magistrate, who is subordinate to the Sessions Judge can take cognizance of

an offence even upon his own knowledge or suspicion. It does not sound to reasons that a Sessions Judge can remain an idle spectator when there

comes incriminating evidence against a person on the record of a case, whose cognizance has been taken by him. He has unfettered and unbridled

powers to implicate such person in the proceedings and after giving an opportunity of being heard under Section 269 Cr. P.C. proceed with the

trial alongwith other accused. Such a course advances the cause of justice in administering the criminal justice and any other view will run contrary

to the raisonedetre to the provisions of Cr. PC. which regulates the trial of criminal cases.

Revision petition No: 19/99 filed by the petitioner is not maintainable as the framing of charge under Section 302 RPC read with Section 307 RPC

has been challenged on the merits of the main controversy. But in view of the law laid down by the Apex Court in the case of ""Madhu Limaya Vs.

State of Maharahstra"" (AIR 1979 SC 47) this order can be interfered by invoking the inherent powers in order to secure the ends of justice. While

disposing revision petition No: 16/99 (supra) the legal effects of the impugned order have been discussed so there remains no necessity for

dialating further on the averments of this petition.

Viewing the case from all its perspectives it is held with no manner of doubts that respondents of petition No. 16 of 1999 had committed the

offences at the spur of the moment because of a sudden quarrel and the fatal injury was not caused with an intention to cause death. Respondent

Abdul Ahad Sheikh had not acted cruelly as only one injury was caused with a wooden side of the shovel which he was carrying in his hands. The

act is covered by exception (4) to Section 300 RFC. The other respondents 2 to 5 were members of the unlawful assembly as they had in

furtherance of the common object inflicted the injuries with fist and stick blows. In the result, the impugned order is set aside and the learned

Sessions Judge is directed to frame the charge against respondents of revision petition No. 16 of 1999 under Section 304 Part I RFC read with

section 149 RFC. Revision Petition No: 16/99 also accordingly stands disposed of. The respondents are directed to appear before the leaned

Sessions Judge Budgam on 31121999. The registry shall immediately despatch the record.