STATE OF J&K Vs. AHAD SHEIKH

JUDGEMENT

(1.) 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 RPC read with section 149 RPC and charged them for the commission of offence falling under section 323 RPC. Respondent No. 1, namely, Ahad Sheikh was charged in terms of the said order for the commission of offences falling under sections 307/302 RPC. Further more, the learned Sessions Judge had rejected the application filed by the petitioner -State for impleading Muneer Sheikh and Ishaq Sheikh as co -accused in terms of the said order.

(2.) 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 RPC read with section 149 RPC, 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: 23 -03 -1999 whereby he has been charged for the commission of offence under section 302 RPC read with section 307 RPC. 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 RPC. 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 RPC and the order is perverse in eye of law.

(3.) THROUGH the medium of above said two revision petitions, order dated: 23 -03 -1999 stands challenged and both the revision petitions will be decided by this common order.