Shortcomings Of Investigative Agency Cannot Hinder Framing Of Charges Based On Evidence Brought On Record: J&K High Court

Quashing an order passed by the Additional District and Sessions Judge (AD&J) Baramulla, directing framing of charges under Section 304 Part-I IPC (culpable homicide not amounting to murder) a bench of Justice Puneet Gupta instead directed framing of charges under Section 302 IPC (murder) against the accused.

The case involved the death of Mushtaq Ahmad Ganai, who succumbed to injuries sustained during an alleged assault by the accused persons, Muneeb Ahmad Shah and Haris Ahmad Sheikh.

The FIR initially registered under Section 307 IPC (attempt to murder) was altered to Section 302 IPC after Ganai's death. However, the AD&J Baramulla, while framing charges, relied on the statement of a key witness (Sabreena) recorded on the second day after the incident, which omitted mentioning the use of a lathi by the accused, unlike her initial statement. The court also factored in the non-recovery of the lathi by the police.

Mumtaz Ahmad Mir, the brother-in-law of the deceased, challenged this order before the High Court, arguing that the gravity of the situation warranted framing charges under Section 302 IPC.

The petitioner's counsel argued that the trial court erred in overlooking Sabreena's initial statement and the medical report which indicated a severe head injury, the cause of death.

The defense counsel, on the other hand, relied on judgements emphasizing that the court, at the stage of framing charges, is not required to delve deep into the evidence. He argued that the prosecution failed to establish a 'grave suspicion' of murder.

After meticulously examining the evidence and procedural aspects the court noted the inconsistencies in PW-Sabreena's statements but emphasized that her initial account, which included the use of a 'lathi', could not be disregarded.

“The star witness in the case namely Sabreenad who was with the victim having stated initially before the police that the 'lathi' was used by the accused during course of occurrence the said version cannot be brushed aside for considering the charge on the aforesaid statement though not stating so in her statement recorded under Section 161 Cr.PC on the second occasion before the police”, the bench recorded.

Pointing at the postmortem report citing traumatic brain injury as the cause of death Justice Gupta observed,

“As per the medical report the victim died due to 'traumatic brain injury' with acute SDH meaning thereby that the accused had received injury on the sensitive & crucial part of his body which ultimately resulted into his death. The accused were required to be charged for offence under Section 302 IPC”.

Acknowledging the investigative flaws, the court stressed that these should not obstruct the framing of appropriate charges based on available evidence and criticized the trial court for overstepping by analyzing evidence as if concluding the trial, rather than focusing on whether there was sufficient suspicion to frame charges.

Relying on a Supreme Court judgment in Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and others' reported in 2022 LiveLaw (SC) 631 the Court observed that allowing the prosecution to present its case strengthens the judicial process. The court also highlighted the difference between framing charges under Section 302 IPC and Section 304 IPC, where the latter restricts the prosecution's ability to present certain evidence.

Setting aside the trial court's order, the court directed that the accused be charged under Section 302 IPC and clarified that the trial court must proceed with the revised charges, ensuring that the prosecution can present its case without the constraints of a lesser charge.

Case Title: Mumtaz Ahmad Mir Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 162

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