High Court overturns trial court’s order

Srinagar, Oct 15: The High Court of J&K and Ladakh has set aside an order whereby a trial court had discharged two brothers of murder charges in a case related to the death of a person during a “scuffle” over a decade ago.

On April 29, 2011, following a report that there was a scuffle between two groups of a particular religious organization at Nowgam in which one Muhammad Ismail was seriously injured, an FIR bearing no51 of 2011 with police station Nowgam in outskirts of Srinagar was registered for commission of offences under Sections 120-B, 148, 149, 342, 307, 295-A, 353, 510, and 323 of the Ranbir Penal Code (RPC), now a repealed law.

Ismail, who was injured seriously, succumbed to injuries during the investigation of the case.

After recording statements of the witnesses, the Investigation Officer (IO) established offences under Sections 120-B, 148, 149, 307, 342, 295- A, 153-A, 353, and 323 of the RPC against 24 accused persons.

However, the IO established an offence of murder under Section 302 of the RPC against the two brothers – Abdul Majeed Ganai and Muhammad Ayoub Ganie - in addition to the offences the other accused were booked under.

A trial court in Budgam on December 12, 2011, discharged the brothers in respect of allegations of commission of an offence under Section 302 of the RPC.

The court instead charged the duo under Section 304 part-II of RPC is “culpable homicide not amounting to murder”.

However, the government through its Additional Advocate General challenged the order before the High Court of Jammu and Kashmir in 2012.

A bench of Justice Rajnesh Oswal set aside the trial court’s order of December 12, 2011, after hearing the parties.

“Perusal of the order makes it abundantly clear that trial court has appreciated the statements of the witnesses made during investigation as if the learned trial court was passing the final judgment after conclusion of the trial,” the bench said. “It appears that the learned trial court was swayed by the fact that the deceased was hit by the accused only once and there was free fight between the two parties.”

The court observed whether the accused had an intention to cause the death of the deceased or not could be ascertained only after the full-fledged trial.

The bench held that while considering the issue of charge and discharge, the evidence cannot be meticulously and critically appreciated by the court as has been resorted to by the trial court.

The bench directed the trial court to proceed in the matter without being influenced by any observation, if any, made by it while deciding the controversy involved in this petition.