Cr. Appeal No. 50/2009 and Confirm. No. 16/2009. Case: Jagdish Raj Vs State. Jammu and Kashmir High Court

Case Number:Cr. Appeal No. 50/2009 and Confirm. No. 16/2009
Party Name:Jagdish Raj Vs State
Counsel:For Appellant: R.P. Sharma, Advocate and For Respondents: Raghu Mehta, A.A.G.
Judges:Mohammad Yaqoob Mir and B.S. Walia, JJ.
Issue:Criminal Law
Judgement Date:February 03, 2017
Court:Jammu and Kashmir High Court
 
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Judgment:

Mohammad Yaqoob Mir, J.

  1. Appellant vide judgment impugned dated 18.08.2009 has been convicted for having committed murder punishable under Section 302 RPC. After hearing on quantum vide order dated 19.08.2009 has been sentenced to undergo imprisonment for life and fine of Rs. 2,000/-.

  2. The learned trial court has submitted the proceedings of the case for confirmation of the sentence as required in terms of Section 374 Cr.P.C. Same stand registered as Confirmation No. 16/2009.

  3. Registration of the case as Crime No. 34/1998 P/S. Nowshera Rajouri on completion of investigation has culminated in filing the Charge sheet (Challan) before the Court of Judicial Magistrate First Class (Sub Judge) Nowshera on 23.06.1998 for commission of offence punishable under Section 306 RPC. Learned Magistrate on the same date committed the case to the Court of Sessions Judge Rajouri.

  4. Learned Sessions Judge vide order dated 24.07.1998 framed the charge against the accused for commission of offence punishable under Section 306 RPC to which accused pleaded not guilty, as such prosecution was asked to lead evidence in support of the case. Out of the listed 13 PWs, from 24.07.1998 to 02.08.2002, 10 witnesses were produced and examined. Prosecution evidence was closed by the trial court vide its order dated 02.08.2002.

  5. After hearing the learned PP as well as counsel for the defence in terms of Section 273 Cr.P.C. on 14.09.2002, it was opined by the learned trial court that accused is required to enter upon the defence. So was asked to produce the witnesses in defence. On the next date, i.e. 11.10.2002 as was fixed, counsel for the accused made a statement that witnesses in defence are not required. Case was finally heard on 12.12.2002 and reserved for judgment.

  6. On 30.05.2003, learned trial court recorded that the trial has been completed and final arguments have been heard. One of the prosecution witnesses Dr. Swatantar Singh, Assistant Surgeon, SDH, Nowshera, who had conducted the post-mortem on the dead body of the deceased on 18.05.1998 has stated that one of the injuries found on the person of the deceased at the time of post mortem by the Doctor was

    A well defined ligature mark, slightly depressed over the neck, just below the level of thyroid cartilage, encircling the neck completely and horizontally. The margins of the mark are having abrasions. Ligature mark is half inch in width.

  7. The opinion of the doctor as recorded in the post mortem report EX. P.W. SS/1 was reiterated by him in his statement so as to show that the cause of death was

    "Asphyxia and Venous congestion as a result of ligature around the neck".

  8. Learned trial court observed that the post mortem report in itself did not indicate that the death of the deceased was suicidal. Further noticed that doctor in his statement as witness has made it clear that the said injury could most probably be caused by strangulation and the strangulation can only be homicidal or accidental. Learned trial court considering the nature of post mortem report and after reading the prosecution evidence felt that the evidence of the police officers/officials connected with the investigation of the case is essential for the just decision of the case. Prosecution has not produced the said witnesses i.e. P.W. 11 and 12 when they are required to be examined in light of the points raised, invoking the powers under Section 540 Code of Criminal Procedure summoned P.Ws. 11 and 12 who had investigated the case. PW12 was produced and examined whereas whereabouts of the P.W. 11 could not be traced when for the long time till 31.03.2004 his presence could not be secured. Learned trial court in its order dated 31.03.2004 recorded that despite all efforts presence of the P.W. 11 could not be secured, as such cannot be again summoned.

  9. As reflected in order dated 30.03.2009 by the trial court, that pursuant to the order of the High Court dated 05.03.2009, the case had been withdrawn from the file of learned Sessions Judge Rajouri and transferred to the court of Additional Sessions Judge Rajouri.

  10. Learned Additional Sessions Judge during the course of final hearing vide its order dated 20.04.2009 has opined that the deceased appeared to have been murdered. As such parties have been put on notice as to why charge under section 306 RPC be not altered to Section 302 RPC or in alternative same to be added. After further hearing prosecution as well as counsel for the defence, learned trial court (Court of Additional Sessions Judge) vide order dated 01.05.2009 opined as under"

    I am prima facie of the view that charge under Section 306 RPC needs to be altered into charge of culpable homicide amounting to murder under Section 302 RPC. Charge has been read over and explained to the accused who denied the same. Since accused now has been charged for more heinous offence, he shall be taken into custody. In view of the commission of offence u/s. 302 RPC, trial has to be conducted de novo. Learned PP seeks opportunity to produce evidence in support of charge. Put up on 15.05.2009.

  11. On 15.05.2009, PP made a submission that the evidence already produced may be read and he will not produce any further evidence. Prosecution evidence was accordingly closed. On 19.05.2009, the accused was examined under Section 342 Cr.P.C. In terms of Section 273 Cr.P.C. after hearing PP and defence, learned trial court has asked the accused to enter upon the defence. The opportunity was availed. The accused in defence produced two witnesses namely Alam Din and Ashok Kumar and also filed an application for summoning the prosecution witnesses (Dr. Swatantar Singh) for cross examination. It was allowed, P.W. doctor was produced and cross examined by the defence counsel.

  12. The judgment impugned recording conviction under Section 302 RPC and the order awarding sentence of life imprisonment and fine of Rs. 2,000/- is contended to be unwarranted and illegal because in absence of cross-examination of the prosecution witnesses in reference to altered charge, the trial is vitiated.

  13. The first plank of the argument as advanced by the counsel for the appellant is that when a charge is altered, it was incumbent upon the prosecution to recall the witnesses and to examine them with reference to alteration. Elaborating the submissions, submitted that on conclusion of trial, the case was being finally heard. During the trial, the focus of the defence while cross examining the prosecution witnesses was in reference to the offence punishable under Section 306 RPC, not to altered offence punishable under Section 302 RPC. With the alteration or addition of the charge, the prosecutor was bound to recall the prosecution witnesses, which he has not to the prejudice of the accused. Trial as such is vitiated. Therefore judgment is liable to be set aside and the accused entitled to acquittal. In support of this submission placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of R. RACHAIAH vs. Home Secretary, Banglore reported in 2016 AIR (SC) 2447.

  14. In the reported judgment, against the accused charge was framed for the commission of offence punishable under Sections 306 and 364 read with Section 34 IPC. 26 witnesses were examined thereafter under Section 216 of the Code of Criminal Procedure (Central Code) which correspond to Sections 227 to 230 of the State Code of Criminal Procedure, for framing additional charge i.e. under Section 302 IPC, the objections raised by the accused therein before the trial court was rejected and the trial court framed alternative charge under Section 302 IPC read with Section 34 IPC. At that time, 26 witnesses had been examined, thereafter only one more witness P.W. 27 therein was examined. Accused were also examined in terms of Section 313 of the Centre Code (which correspond to Section 342 of the State Code). All the accused were convicted in respect of alternative charge under Section 302 IPC and also for commission of offence punishable under Section 364 IPC. Appeal filed in the high court was dismissed.

  15. Hon'ble Supreme Court while referring to Section 216 & 217 of the Code of Criminal Procedure has ruled as under:

    The bare reading of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-section (3) and 4 of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position become further clear from the bare reading of sub-section (4) of section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.

  16. Para 8 of the Judgment is relevant to be quoted:

    8. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such...

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