Dead body not found, Police files challan for murder

HC upholds charges framed for murder, destruction of evidence holds at stage of framing of charge there can’t be a ‘mini trial’


CRM(M) No. 232/2021
Bail App No. 106/2021

Liakat Ali and others .....Appellant/Petitioner(s)
Through :- Mr. Basit Manzoor Keng, Advocate
Union Territory of J&K .....Respondent(s)
Through :- Mr. Aseem Sawhney, AAG
1. The present petition has been filed by the petitioners for quashing/setting aside the order dated 03.03.2021 passed by the 2nd Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) in case, titled, State of J&K vs Liakat Ali and others, by virtue of which the petitioners have been charged for commission of offences under sections 302, 392, 201/ 34 RPC.
2. It is stated that the order impugned is bad in law as the learned trial court has failed to appreciate the fact that a case of missing persons has been converted into a case of murder without there being any primary evidence of the crime i.e. the dead body. It is further stated that the DNA report also does not corroborate the investigation and further that the postmortem report too is inconsequential as nothing has been stated with regard to the cause of death.
3. Mr. Basit Manzoor Keng, learned counsel for the petitioners has reiterated the grounds those have been taken in the petition.
4. Per contra, Mr. Aseem Sawhney, learned AAG has vehemently argued that while considering the issue of charge/discharge, the court is not expected to conduct a mini trial.
5. Heard and perused the record.
6. The facts which are necessary for the disposal of the present petition are that a written report was lodged on 15.05.2017 by one Kala Ram S/o. Shah Ram R/o Rakh Khroon Garkhal with Police Station, Gharota that his son, namely, Sunil Kumar alias Titu, who deals in sale and purchase of goats and sheep, on 17.04.2017 had gone out of home in connection with his business, but he did not return home. He searched for his son but in vain. It is stated in the written report that the complainant learnt that the accused persons who were having enmity with his son regarding some transaction, were extending threats on the basis of old enmity and they(petitioners) with criminal intention to kill his son, kidnapped him on 17.04.2017 and killed him with the some sharp edged weapon and had concealed his dead body.
7. Pursuant to this information, FIR bearing No. 51/2017 for commission of offences under sections 302/34 RPC was registered and the investigation commenced. During the course of investigation, the statement of the witnesses under section 161 and 164-A Cr.P.C. were recorded and pursuant to the disclosure statement of petitioner No. 1, skull mandible and other bones of the deceased were recovered. Similarly pursuant to the disclosure statement of petitioner No. 2, broken mobile phone with sim card of the deceased was recovered and likewise petitioner No. 3 also made a disclosure statement with regard to one black cord etc. and recovery was effected.
8. During the course of investigation, the parts of the body of the deceased allegedly recovered pursuant to the disclosure statement of one of the petitioners were sent to CFSL, Delhi for DNA examination. However, no result could be elicited because the DNA could not be yielded from the said sample. Even in the postmortem report, nothing has been mentioned with regard to the cause of death of the deceased.
9. From the record, it is revealed that certain witnesses have been cited by the prosecution with regard to the factum of deceased being with the petitioners prior to his disappearance. Precisely, the prosecution case is based upon the circumstantial evidence, particularly with regard to the last scene theory, disclosure statements and the recoveries effected pursuant thereto.
10. The contention of Mr. Keng that the proposed evidence to be led by the prosecution is weak and frail and on the basis of such evidence, no charge can be framed. Needless to say that while considering the issue with regard to the framing of charge/discharge, the court is not expected to hold a mini trial. The contentions raised by the petitioners, pertain to the merits of the case those cannot be adjudicated upon while considering a question of charge/discharge. In State of Karnataka v. M. R. Hiremath, (2019) 7 SCC 515, the Apex Court has held as under:
“25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529: (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29)
“29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”
11. The learned trial court has rightly framed the charges against the petitioner and there is no infirmity in the order impugned. In view of the above, this Court is of the considered view that the present petition is without any merit, as such, the same is dismissed.
12. At this stage, Mr. Basit Manzoor Keng, learned counsel for the petitioners, submits that the trial has been pending before the learned trial court for the last more than four years and till date no witness has been examined. The perusal of the record revels that the charges have been framed vide order dated 03.03.2021 so it cannot be said that the trial has remained pending for examination of prosecution witnesses. Be that as it may, it is expected that the learned trial court shall make all possible efforts to ensure that the witnesses cited by the prosecution are examined expeditiously and no unnecessary adjournments shall be granted to either of the parties.
13. Along with the aforesaid petition, the petitioners have also filed the application for grant of bail. As this Court has already upheld the order passed by the learned trial court for framing of charge for commission of offences under sections 302, 392, 201 and 34 RPC, so the petitioners in the case of conviction are liable to be punished with either death penalty or life imprisonment.
14. The Apex Court in Prahlad Singh Bhati v. NCT, Delhi, reported in (2001) 4 SCC 280 has held as under:
“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
15. As the petitioners are facing trial for commission of heinous offence of murder, which is punishable with imprisonment of death penalty or imprisonment for life and the prosecution has yet to lead its evidence, as such, this Court is of the considered view that the petitioners are not entitled to bail at this stage. However, liberty is granted to the petitioners to lay a motion for grant of bail after the material witnesses are examined by the prosecution.
16. The present bail application, as such, is dismissed.

JAMMU (Rajnesh Oswal)
02.09.2021 Judge

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