DATE : 03-12-1986  1987-(093)-CRLJ -1656 -J&K

JUDGE(S) : A S Naidu  JAMMU & KASHMIR HIGH COURT

ORDER

This judgment will dispose of both Criminal Revision Petitions No. 36 of 1984 and No. 84 of 1984 which are directed against the order of the learned Sessions Judge, Bhadarwah dt. 27-1-1984 whereby respondents Baraf Singh and Mst. Tippa were discharged of the offences under Section 302/34 and 201, R.P.C. In Criminal Revision No. 84 of 1984, filed at the instance of the State, an additional prayer has also been made for setting aside the order dt. 25-5-1984 granting bail of Chattar Singh respondent. At the hearing, however, learned Chief Govt. Advocate gave up the prayer with regard to the cancellation of bail

2. Briefly stated the facts of the case are : that one Sona Ullah on 5-7-1983, lodged a report in Police Station, Doda, stating therein that he had found dead body of his younger brother Noor Din. On the basis of the report, inquest was started. Post-mortem was conducted on 7-7-1983 and the doctor opined that death had occurred about 48 hours prior to the conduct of the post-mortem. The cause of death was stated to be due to shock because according to the report of the Director, Forensic Science Laboratory, no poison was detected from viscera. During the investigation, the investigating agency examined a number of witnesses and recorded their statements under S. 161, Cr.P.C. One of the witnesses whose statement was recorded was Mst. Imloo daughter of accused No. 2 Baraf Singh. Her statement was also recorded under S. 164, Cr.P.C. on 9-8-1983. The prosecution case as revealed from the challan and the documents accompanying the same, was that Mst. Imloo had developed sexual relationship with the deceased and that relationship was not liked by her parents. She deposed in her statement under S. 164, Cr.P.C. as also in her statement recorded under S. 161, Cr.P.C. that on the date of occurrence she had gone for grazing her goats at Kalak Khand. Noor Din came there and caught hold of her and tried to drag her when she raised noise which attracted her father to the spot. On the arrival of the father, Noor Din escaped and she was given beating by him. Her father narrated the story to Chattar Singh accused who is her uncle and told him that Noor Din had decided to dishonour the family to which Chattar Singh replied that he would decide what to do later on. Subsequently, Chattar Singh came to their house and had consultation with her parents whereafter he left and brought two sheep from the herd of Noor Din to the house of Baraf Singh and confined them there. After about one hour Noor Din came in search of he missing sheep and Chattar Singh told him that his missing sheep were in the house. After Noor Din entered the house Chattar Singh pulled him by his hair and kicked him at his chest, whereupon Noor Din fell down. Chattar Singh hurled another kick at Noor Din at his private part and at the asking of Chattar Singh, her father also kicked Noor Din while he lay on the ground. Noor Din died then and there whereafter Chattar Singh and Baraf Singh lifted the dead body of Noor Din and dumped it in the land of Shanker. Thereafter her father returned home and Chattar Singh went to his house. She had also stated in her statement under S. 161, Cr.P.C. that after her father and uncle had removed the dead body, the stains etc. were removed by her mother Mst. Tippa. Besides the statement of Mst. Imloo the prosecution also relied upon the statements of certain other witnesses but it is hot necessary for this Court to deal with those statements because the learned Sessions Judge accepted and believed the statement of Mst. Imloo for the limited purpose of charging the accused. The learned Sessions Judge, however, after observing that “I have no hesitation to believe the statement of Mst. Imloo in toto at present for the limited purpose of charging the accused but I will have to see what her statement discloses ……” and relying upon the statement of Mst. Imloo and the medical evidence, of which reference had been given in the impugned order by the learned Sessions Judge, he went on to hold that there is prima facie sufficient material against Chattar Singh accused No. 1. He found that there was no prima facie evidence against Mst. Tippa or Baraf Singh and consequently discharged them. It is here that the learned Sessions Judge has fallen in grave error.

3. The learned Sessions Judge, as would appear from a perusal of the impugned order, while reproducing the statement of Mst. Imloo on which he had relied, left out certain important portions of her statement for the reasons best known to him. For example, he left out the portion of her statement where she had stated that kicks were also given to the deceased by her father Baraf Singh and that the deceased had fallen down dead and that after his body was removed by Baraf Singh and Chattar Singh, Mst. Tippa removed the stains and the foot prints etc. Since, the learned Sessions Judge, had relied upon the statement of Mst. Imloo in toto it was not open to him to ignore any portion of her statement particularly at the stage of framining of charge because her statement read as a whole did prima facie implicate all the three accused in the commission of the offence.

4. At the stage of framing the charges, the learned Sessions Judge was required to peruse the entire documents filed under S. 173, Cr.P.C. with a view to find out whether or not there was prima facie evidence as regards the involvement of the accused persons and it appears that the learned Sessions Judge omitted to notice portions of the statements which were material for the purpose of framing a charge. Indeed, the value of evidence cannot be appreciated at the stage of framing of the charge and meticulous sifting of the evidence is not required but it is the bounden duty of the trial Court to see whether or not there is prima facie evidence warranting the framing of charges. The discharge of Baraf Singh and Mst. Tippa in the face of the material on the record has resulted in miscarriage of justice. The order of the learned Sessions Judge in so far as it discharges respondents Baraf Singh and Mst. Tippa cannot, therefore, be sustained and the same is hereby set aside and I direct him to hold further inquiry as may be required in law and proceed in accordance with law.

5. Before parting with this Order I must also record my strong disapproval of the manner in which the learned Sessions Judge dealt with the case. In the impugned order while discharging Mst. Tippa, he observed as follows :-

“….. not there is any evidence connecting Mst. Tippa with any sort of association in the assault committed upon the deceased. So there is no case against her and deserves to be discharged. The order regarding her discharge has already been announced ……”

A perusal of the record shows that on 21-1-1984, the following order for discharging Mst. Tippa was passed and the case was adjourned to 25-1-1984 :

“I have heard arguments and perused the file. The only evidence recorded about the occurrence is the statement of Mst. Imloo which is to be read in close comparative study of medical report as both are interlinked. The report of the doctor is so ambiguous as to require further time for its study. However there is no material against accused No. 3 Mst. Tip and I feel it sheer harassing her if she is further dragged from a far flung area of Doda to this place. She is therefore discharged. Put up on 25th January, 1984 for orders about the other accused. P.P. will further provide the Court authorities on medical jurisprudence for studying report of the doctor. The reason of discharge order in favour of Tip will be elaborately discussed in subsequent order.”

6. It is strange that the learned Sessions Judge after observing that he required more time for study of the case should have proceeded to discharge Mst. Tippa who has been clearly implicated by her own daughter Mst. Imloo in so far as the commission of the offence is concerned. It is not open to a Sessions Judge to deal with the serious case like this in such a slip shod manner and piecemeal for considering the question of charge-sheeting or discharging an accused. To say the least, he adopted a novel course because on 25-1-1984 again he discharged Mst. Tippa, as noticed hereabove, also recording at the same time that the order regarding her discharge had already been announced.

7. That apart, there is another glaring circumstance which shows that the learned Sessions Judge has dealt with a case in a manner which is unbecoming of a Sessions Judge. In his order dt. 27-1-1984, he charge-sheeted accused Chattar Singh after observing :

“As the kick of the accused had hit the deceased and caused the death so accused No. 1 needs to be charged for offence punishable under S. 302, R.P.C. He is accordingly charge-sheeted.”

Yet, on 25-5-1984, the learned Sessions Judge admitted Chattar Singh to bail, observing thus :

“The learned prosecutor has not been able to show that there is any other material on the record which can connect the accused with the crime of murder warranting the penalty of death or life imprisonment. In these circumstances I come to this definite conclusion that the prosecution case, at the moment is not one which even if logically proved, will invite either the punishment of death or punishment for imprisonment for life ……”

8. It is regrettable that a Sessions Judge should not know that the only permissible sentence provided by law for an offence under S. 302, R.P.C. is either life imprisonment or death. It belies common sense as to how after finding that an accused is prima facie guilty of an offence, under S. 302, R.P.C., the learned Sessions Judge should say that even if the offence is proved logically, the punishment of death or punishment for life would not be awarded. The approach in the entire case was wholly fallacious and it appears that sound judicial considerations which are expected of a Sessions Judge to be observed in dealing with such cases, were observed more in breach. The case was dealt with in a manner which does not speak well of the working or the knowledge of the Sessions Judge.

9. A copy of this order shall be sent to be concerned Sessions Judge and his explanation obtained. A copy of this order shall also be kept on the personal file of the officer. The Registrar shall take appropriate steps in that behalf.

Order accordingly.