Decided on December 03,1986

SONA ULLAH Appellant


- (1.) This judgment will dispose of both Criminal Revision Petitions No. 36 of 1984 and No. 84 of 1984 which are directed against the order of the learned Sessions Judge, Bhadarwah dt. 27-1-1984 whereby respondents Baraf Singh and Mst. Tippa were discharged of the offences under Ss.302/34 and 201, R.P.C. In Criminal Revision No. 84 of 1984, filed at the instance of the State, an additional prayer has also been made for setting aside the order dt. 25-5-1984 granting bail of Chattar Singh respondent. At the hearing, however, learned Chief Govt. Advocate gave up the prayer with regard to the cancellation of bail.
(2.) Briefly stated the facts of the case are: that one Sona Ullah on 5-7-1983, lodged a report in Police Station, Doda, stating therein that he had found dead body of his younger brother Noor Din. On the basis of the report, inquest was started. Post-mortem was conducted on 7-7-1983 and the doctor opined that death had occurred about 48 hours prior to the conduct of the post-mortem. The cause of death was stated to be due to shock because according to the report of the Director, Forensic Science Laboratory, no poison was detected from viscera. During the investigation, the investigating agency examined a number of witnesses and recorded their statements under S.161, Cr. P.C. One of the witnesses whose statement was recorded was Mst. Imloo daughter of accused No. 2 Baraf Singh. Her statement was also recorded under S.164, Cr. P.C. on 9-8-1983. The prosecution case as revealed from the challan and the documents accompanying the same, was that Mst. Imloo had developed sexual relationship with the deceased and that relationship was not liked by her parents. She deposed in her statement under S.164, Cr. P.C. as also in her statement recorded under S.161, Cr. P.C. that on the date of occurrence she had gone for grazing her goats at Kalak Khand. Noor Din came there and caught hold of her and tried to drag her when she raised noise which attracted her father to the spot. On the arrival of the father, Noor Din escaped and she was given beating by him. Her father narrated the story to Chattar Singh accused who is her uncle and told him that Noor Din had decided to dishonour the family to which Chattar Singh replied that he would decide what to do later on. Subsequently, Chattar Singh came to their house and had consultation with her parents whereafter he left and brought two sheep from the herd of Noor Din to the house of Baraf Singh and confined them there. After about one hour Noor Din came in search of the missing sheep and Chattar Singh told him that his missing sheep were in the house. After Noor Din entered the house Chattar Singh pulled him by his hair and kicked him at his chest, whereupon Noor Din fell down. Chattar Singh hurled another kick at Noor Din at his private part and at the asking of Chattar Singh, her father also kicked Noor Din while he lay on the ground. Noor Din died then and there whereafter Chattar Singh and Baraf Singh lifted the dead body of Noor Din and dumped it in the land of Shanker. Thereafter her father returned home and Chattar Singh went to his house. She had also stated in her statement under S.161, Cr. P.C. that after her father and uncle had removed the dead body, the stains etc. were removed by her mother Mst. Tippa. Besides the statement of Mst. Imloo the prosecution also relied upon the statements of certain other witnesses but it is not necessary for this Court to deal with those statements because the learned Sessions Judge accepted and believed the statement of Mst. Imloo for the limited purpose of charging the accused. The learned Sessions Judge, however, after observing that "I have no hesitation to believe the statement of Mst. Imloo in toto at present for the limited purpose of charging the accused but I will have to see what her statement discloses......" and relying upon the statement of Mst. Imloo and the medical evidence, of which reference had been given in the impugned order by the learned Sessions Judge, he went on to hold that there is prima facie sufficient material against Chattar Singh accused No. 1. He found that there was no prima facie evidence against Mst. Tippa or Baraf Singh and consequently discharged them. It is here that the learned Sessions Judge has fallen in grave error.
(3.) The learned Sessions Judge, as would appear from a perusal of the impugned order, while reproducing the statement of Mst. Imloo on which he had relied, left out certain important portions of her statement for the reasons best known to him. For example, he left out the portion of her statement where she had stated that kicks were also given to the deceased by her father Baraf Singh and that the deceased had fallen down dead and that after his body was removed by Baraf Singh and Chattar Singh, Mst. Tippa removed the stains and the foot prints etc. Since, the learned Sessions Judge, had relied upon the statement of Mst. Imloo in toto it was not open to him to ignore any portion of her statement particularly at the stage of framining of charge because her statement read as a whole did prima facie implicate all the three accused in the commission of the offence.;

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