KHURSHEED AHMED AND ORS Vs. STATE OF J&K

JUDGEMENT

(1.) Through the medium of instant revision, the petitioners have assailed the validity of order dated 22.02.2017 passed by the Sessions Judge, Bhaderwah whereby the petitioner Nos.1 to 5 have been charged with offences under Sections 302/109 RPC and petitioner No.6 under Section 302 RPC, with further prayer for setting aside the charges framed and the petitioners may be discharged of the charges framed against them, to meet the ends of justice.

(2.) Petitioner have stated in memo of petition that the whole of the prosecution case, as projected by the investigation agency in Challan presented under Section 173 Cr.P.C., hinges on the story of dispute having arisen between the deceased wife with her husband, with allegations made by the deceased against her husband (petitioner No.6) that accused was making and receiving calls to and from some girls during the night time, because of which the relationship between the duo had become strained that too only 15 days prior to the occurrence and before that the deceased was pleasant and cordial and there has been not a whisper of any dispute between the deceased and accused/petitioner No.6 nor there being any allegation of any kind of harassment or any sort of complaint against any of the petitioners from deceased for the last three years of matrimonial life in the house of the petitioners. Taking the whole prosecution case on its face value, there was no role attributed to the petitioner Nos.1 to 5 nor has been there any allegation of any kind even any sort of a trivial harassment against petitioner Nos.1 to 5. There is not even an iota of evidence against petitioner Nos.1 to 5 for having played any sort of role in instigating the accused No.6 to commit the offence. The case being that of a circumstantial evidence not even a single prosecution witness has whispered a word so as to constitute an offence with which the petitioner nos.1 to 5 have been charged. There is neither any role attributed to the petitioner Nos.1 to 5 nor is there any motive. Even in the conclusion part of the investigation (challan), the investigating agency has not made any allegation against the petitioner Nos.1 to 5 for having abetted the commission of offence. It is further stated that the impugned order of framing of charge against the petitioners by the learned Sessions Judge in cryptic stereotypical and mechanical manner by sheer non-application of judicial mind is palpably erroneous, legally perverse, and factually incorrect and the same being abuse of the process of the Court and is, therefore, liable to be quashed to meet the ends of justice. It is further averred that to charge a person for the commission of an offence in a criminal trial there has to be a prima facie evidence against accused to constitute an offence with which the accused is to be charged. If the elements and the ingredients of the offence/Sections are not borne out of the evidence the accused has to be discharged to prevent the abuse of the process of the Court and that is the scope and ambit of Section 268 Cr.P.C. read with Sections 223 and 224 Cr.P.C. For constituting an offence under Section 109 RPC, the element of abetment and instigation for the commission of an offence is sine qua non. In the absence of there being any allegation of abetment or instigation, a person cannot be charged with offence of abetment under Sec.109. The explanation as attached to Sec 109 RPC expressly specifies the ingredients of Section 109 RPC. There is not a whisper of evidence on the file against petitioner Nos.1 to 5 for having committed the offence of abetting the commission of offence under Section 302 RPC. The impugned order of framing of charge has, as such, resulted in grave injustice to accused petitioners whose whole family has been spoiled for having committed no offence at all. The right to be discharged as has been recognized under Section 268 Cr.P.C. is a valuable right which is borne out of the concept of right to liberty of an individual to be of a precious right as recognized by the Constitution, which cannot be taken away by the undue process of law. It is further submitted that before charge sheeting the petitioners, the trial Court also passed a brief order. Even in that order the trial Court has failed to appreciate as to how the petitioner Nos.1 to 5, have abetted the commission of offence of murder in the absence of there being any evidence. The only reasoning given by the trial court is that;

(3.) Though the above finding of the trial court is ambiguous, but otherwise also it is in total contradiction of the requirement of the Section 109 RPC as is elaborated in the explanation to Sec. 109 RPC. It is further contended that the impugned order has been passed in a very casual manner and in total disregard of the legal rights of accused persons is perverse, illegal, unjust and is liable to be quashed. It is also stated that even otherwise there is no substantial evidence on the file, direct or circumstantial, as to how the fire had broken-out in the room of the deceased; whether the death is suicidal, homicidal or accidental. The story of murder of the deceased is hypothetical and is based on surmises which sans any cogent evidence. It is therefore, prayed that the impugned order dated 22.02.2017 passed by the learned Sessions Judge, Bhaderwah may kindly be quashed and the petitioners may be discharged of the charges framed, to meet the ends of justice.