The Trial Court must wait for all relevant reports and evidence before discharging an accused, and the judgment should be based on whether the prosecution has proved its case beyond reasonable doubt.

JUDGMENT :

1. Through the medium of this petition, the petitioner-State seeks setting-aside of the Order dated 19th October 2010, passed by the court of Principal District & Sessions Judge, Kupwara (for short “Trial Court”) on the grounds made mention of therein.

2. I have heard learned counsel for parties and considered the matter.

3. Perusal of the file reveals that on 28th November 2009, one Alam Din Khan S/o Noor ud din Khan R/o Dragad, lodged a written complaint in police station Tangdar, alleging that Shireena Begum D/o Sharief Din R/o Dragad, his Niece, was married to accused about two years back but the accused had been giving beating to her every day and that in view of beating given to her she left for her parental house on 25th November 2009, but on the next day she was made to go back to her matrimonial house but on 26th November 2009 the accused beat here. On 28th November 2009, the accused again gave beating to her and caused her death. This resulted in registration of case FIR no.42/2009 under Section 302 RPC.

4. During investigation, as prosecution would contend, dead body of deceased was subjected to post-mortem examination and the viscera was sent to FSL, Srinagar, for chemical analysis. Police also caused seizure of wearing garments of deceased. Site map was prepared and beddings and nylon rope from the house of the accused was seized. Statement of witnesses was recorded. While the report about viscera was awaited and on the basis of investigation conducted, the offence under Section 302 RPC was found made out against accused, who was arrested on 24th December 2009. An incomplete Challan was presented on 22nd October 2010 in the court of JMIC, Kupwara, who committed the case for trial to the Trial Court.

5. According to counsel for petitioner, the Trial Court has not only admitted the accused/respondent to bail in a heinous offence, like 302 RPC, but has also discharged him without following the procedure made out prima facie in the charge sheet produced before the court under Section 173 Cr.P.C. It is also contended that since certain documents were awaited and the prosecution has power under Section 173 (8) Cr.P.C. to submit further report in respect of the evidence collected which too has not been appreciated but instead the accused stands let off in a most mechanical manner. He also avers that medical evidence also suggests death of wife of accused has been caused because of cardio respiratory arrest and it was to be established by prosecution that the rope has been used for strangulation of wife of accused which chance, however, has not been afforded to prosecution. It is also contended by counsel for petitioner that the Trial Court, at the stage of charge, without appreciating the law on the point which was pari materia to the facts and circumstances of the case, discharged accused/ respondent on the count that post mortem report which reflects that the death has been caused due to cardio respiratory arrest, which post mortem report though being confronted by evidence on record as also by the evidence to be deposed by the prosecution witnesses more particularly the experts who have conducted the post mortem examination at the threshold that too of a very heinous offence under Section 302 RPC. He also states that the Trial Court while admitting that the actual cause of death can be ascertained from the FSL report, which is yet to be examined by the Trial Court as the same has not been produced before the Trial Court, when the accused came to be discharged of heinous offence under Section 302 RPC, virtually of no material.

6. Counsel for petitioner also submits that prosecution has not been provided a chance to adduce evidence in support of their charge-sheet submitted under Section 173 Cr.P.C. but the Trial Court on a cursory look, on the report of post mortem, has not only opined to decide the case of a dowry death without following the provisions contained in the Code of Criminal Procedure.

7. It is a