LAWS(J&K)-1995-4-5

HUSSAIN Vs. STATE OF JAMMU AND KASHMIR

Decided On April 13, 1995
HUSSAIN Appellant
V/S
STATE OF JAMMU AND KASHMIR Respondents

JUDGEMENT

(1.) ORDER :- Petitioners are seeking the relief, by means of this petition under Section 561-A of the Code of Criminal Procedure, for quashing all the proceedings including charge framed by the trial Court on 11-7-1994 against the accused under Sections 302/34, 341, Cr. PC after appreciating the evidence and the documents produced before the Court under Section 173 Cr. P.C. The trial Court has relied upon the FIR and the statements of the eye witnesses, namely, Tek Ali, Makhan Din, Faqir Hussain, Mohd, Bashir and Ghulam Nabi.

(2.) The contention of the learned counsel for the petitioners is that the prosecution has roped in and falsely implicated the accused in FIR No. 40 of 1994. The alleged assault on the deceased is the alleged act of Saifu and none of other accused were armed with the weapon of offence, a stone, handy on the spot. There is no evidence that except the accused Saifu other accused participated in the assault on the deceased and the FIR being the first version of the alleged incident, rules out common intention to kill, falsely sought to be attributed to the accused. The statements of the eye witnesses under Section 161 Cr. P.C. is a fabricated evidence and improvements have been introduced on the version narrated in the FIR. On the basis of the evidence on record collected by the prosecution, the accused cannot be made to face trial and the liberty of the petitioners cannot be minimised at this stage. The petitioners have stated that the fact that the deceased having died after six days and infliction of injuries with the stone by the accused Saifu rules out intention to kill and the offence against the said accused even in the extreme view could not be higher than punishable under Section 304-A RPC and the offence against the other accused under Section 325/34, Cr. PC and not punishable under Section 302/34 RPC.

(3.) I have heard the learned counsel for the parties and perused the record carefully.