KARNAIK SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) THROUGH the medium of this petition which has been made u/s 561 -A Cr. P. C. order dated 27 -08 -97 passed by the learned Additional Session Judge, Jammu where by he charged the petitioner, herein forte commission of offence falling u/s 302/ 34 RPC is sought to be set -aside. It is pleaded that a false case was registered under FIR No. 380/92 in Police Station Bakshi Nagar, Jammu for the commission of offence falling under sections 302/34 RPC against the petitioner and in his absence the challan was produced before the sub -Registrar (Judicial Magistrate 1st Class) Jammu who vide order dated 23 -07 -1994 proceeded u/s 512 Cr P. C. against the petitioner.

(2.) THAT before the challan was produced in the committal court the legal heir of the deceased Prem Singh had filled under section 166 of the Motor Vehicles Act (on April 30, 1993) before the Motor Accident Claims Tribunal, Jammu and in the Tribunal interim relief on the basis of no fault liability (u/s 140 of the Motor Vehicles Act) was obtained and realised from the awarded in the sum of Rs. 25.000/ -alongwith interest totalling Rs. 26647/ - and the same was withdrawn. MACT vide its JUDGMENT dated 29 -04 -95 dismissed the claim petition as not maintainable. Before the trial Judge, it was argued on the basis of the Tribunal that offence u/s 302 RPC was not made out, the argument did not prevail and vide order dated 27 -80 -98 the petitioner was charged as stated above. The said order is palpably illegal and has been challenged on the following grounds 1) That the legal representatives of the deceased including the complainant and his brother who is also prosecution witness have falsified the prosecution case by admitting in the claim petition that death had been caused in an accident and the trial judge did not take into account this material defence in favour of the petitioner and wrongly framed the charge. 2) The opinion given by the Doctor who performed the autopsy was that death has been caused due to haemorage, shock as a result of multiple injuries consequent upon blunt force impact and there is no specific opinion that injuries sustained by the deceased were Sufficient in the ordinary course of nature and in the presence of such an evidence the framing of charge u/s 302 RPC was not evidence the framing of charge u/s 304 -A RPC could be framed.

(3.) ) There was no intention to kill the deceased as the fight had taken place at the spur of the moment in the absence of any enmity between the parties and on these facts charge u/s 304 -A RPC should have been framed. 3. Heard the arguments.