Karnataka High Court
Vijayakumar P vs State Of Karnataka By on 20 March, 2024
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.1144 OF 2024
BETWEEN:
VIJAYAKUMAR.P
S/O. POOVANNA,
AGED ABOUT 40 YEARS,
R/AT MELATAYALUR VILLAGE,
TAYALUR HOBLI,
MULABAGALU TALUK,
KOLAR DISTRICT - 563 136.
...PETITIONER
(BY SRI. VISHNUMURTHY, ADVOCATE)
AND:
1 . STATE OF KARNATAKA BY
SATHNOOR P.S. KANAKAPURA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
2
2 . RAVIKUMAR. C
WORKING AS POLICE SUB INSPECTOR,
SATHANOORU POLICE STATION,
KANAKAPURA TALUK,
RAMANAGAR DISTRICT - 562 126.
...RESPONDENTS
(BY SMT. ANITHA GIRISH N., HCGP FOR R1 & R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST HIM IN S.C.NO.5028/2022
(C.C.NO.1977/2021) OF SATHANOOR POLICE STATION,
KANAKAPURA FOR AN OFFENCE P/U/S 302, 201 R/W 34 OF
IPC, WHICH IS PENDING ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KANAKAPURA.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.02.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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ORDER
This petition is filed by the petitioner-accused No.2 under Section 482 of Cr.P.C. for quashing the criminal proceedings in S.C.No.5028/2022 arising out of Crime No.153/2021 registered by Sathnoor Police Station, Kanakapura Taluk, Ramanagara District for having charge sheeted for the offences punishable under Sections 302, 201 read with Section 34 of IPC.
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondents.
3. The case of the prosecution is that the respondent No.2-PSI of Sathnoor Police Station had given report that on 30.08.2018 around 12.30 p.m. one Mahesh who is the resident of Dhanthoor Village of Sathnoor Hobli, Kanakapura Taluk lodged a complaint stating that on 29.08.2018, when he was in Bengaluru at 1.30 p.m., he received a call from the Villagers that his elder brother was 4 succumbed to death by committing suicide. While burying the dead body, he found some injuries on the body, therefore, suspected the death of his brother. Based upon the report, the Police registered the UDR No.17/2018 under Section 174(c) of Cr.P.C. and enquiry was conducted. Subsequently, the dead body was subjected to the post mortem examination and the doctor has not given any opinion. However he has collected viscera of the deceased, sent the same to the FSL and after receiving the report, the opinion was obtained from the doctor stating that death was due to strangulation. Then after the enquiry, he registered the FIR against the wife of the deceased showing the name of this petitioner as accused No.2 contending that there was intimacy between accused Nos.1 and 2 and they have committed the murder of the deceased by strangulation. Hence, he registered the FIR in Crime No.153/2021 on 4.9.2021 and also filed the charge sheet which is under challenge.
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4. The learned counsel for the petitioner has strenuously contended that the name of the petitioner was not found in the complaint given by the brother which was registered as UDR. There is no material to show that there was intimacy between the accused Nos.1 and 2. There is no connection or telephonic conversation or CDR collected by the Investigating Officer to say that this petitioner had conspired with accused No.1 and committed murder on 29.08.2018.
5. The learned counsel further contended that there is no witness suspected the petitioner at the time of death of the deceased who was committed suicide. Even in the post mortem report, there was nothing revealed and it was a homicidal death. Absolutely, there is no material to show that this petitioner was found near the place of occurrence either prior to the incident or after the incident on the ground of suspicion. His name has been implicated without any evidence on record.
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6. The learned counsel also contended that after three years of incident, the FIR was registered against the petitioner and filed the charge sheet by falsely implicating the petitioner and further contended that there are two witnesses examined just prior to the filing of the charge sheet that they came to know there was intimacy between accused Nos.1 and 2. But there is no direct evidence that they have seen or witnessed accused Nos.1 and 2 were together at any point of time. The Investigating Officer created false story while filing the charge sheet by showing the petitioner as accused No.2. Hence, the criminal proceedings against this petitioner is not sustainable. Hence, prayed for quashing the same. In support of his case, the learned counsel has relied upon some judgments.
7. Per contra, learned High Court Government Pleader has objected the petition contending that the death was homicidal death and the doctor has given opinion that the death was due to strangulation. He has further contended that there are circumstantial witnesses C.Ws.10, 7 14 and 15 who have stated that accused No.2 used to visit the house of the deceased to see accused No.1, the wife of deceased. The complaint has been lodged on the suspicion and after three years, the FIR has been registered and the charge sheet has also been filed and therefore, contended that there is material for framing charges. Hence, prayed for dismissing the petition.
8. In reply, learned counsel for the petitioner has contended that the aforesaid witnesses were examined just prior to registering the FIR. After three years of the incident, the police have manipulated the statements, which were undated statements, and that cannot be relied. Absolutely, there is no material to proceed with the case, which amounts to abuse of process of law. It is further contended that the case is based upon the voluntary statement of the co-accused, which is not sustainable. Hence, prayed for allowing the petition.
9. Having heard the arguments of learned counsel for the parties, perused the records.
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The learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Satish Mehra vs. Delhi Administration and Another reported in 1996(2) Supreme (Cr) 126, wherein the Hon'ble Apex Court has held that the Sessions Judge is empowered to consider even the materials which the accused may produce at the stage contemplated in Section 227 of Cr.P.C.; if the Session Judge is fairly certain that there is no prospect of case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. The Hon'ble Supreme Court has further held that where there is sufficient ground for proceeding, the standard of proof adhered to at final stage is not to applied. Exercise is to find out whether the prima facie case against the accused has been made out, a roving enquiry into pros and cons of the case by weighing the evidence not warranted. 9
10. The Hon'ble Apex Court has held that the Court can not weigh the evidence for pros and cons by enquiry, and when the prima facie material is not made out, the Court can quash the criminal proceedings.
11. In another judgment in the case of Gian Mahtani and Another vs. The State of Maharashtra and Another reported in 1971 SCC (Crl.) 601, the Hon'ble Supreme Court has held that the suspicion, however grave, cannot take the place of proof, a dictum which can always bear repetition.
12. By keeping the guidelines and the principles laid down by the Hon'ble Supreme Court in the aforesaid judgments, now coming to the place of the prosecution which reveals that it is not in dispute that the husband of accused No.1 died in the house by hanging position. Accused No.1 intimated to the relatives that her husband has committed suicide. When the dead body was taken for burial, the brother of the deceased found some injuries on the neck of the deceased. Therefore, he suspected that his 10 brother might have been murdered. The police initially registered UDR No.17/2018 under Section 174 Cr.P.C. The dead body was subjected to post mortem examination. The doctor done autopsy and he found some multiple abrasions on the arm and chest of the deceased. However, the doctor was unable to give the preliminary opinion for cause of death as to whether it was homicidal hanging or suicidal hanging. Hence, the doctor collected the viscera of the deceased, i.e. the part of liver, stomach, small intestine, brain, heart, lungs, kidney and spleen and sent to the FSL for opinion. Subsequently, on 31.10.2019, the FSL opinion has been received where it was found that "residues of volatile poison, pesticides, etc. were not detected" that means that the death was caused not due to any poison. Thereafter the Investigating Officer once again approached the doctor who has conducted autopsy and requested to give final opinion as to cause of death of the deceased. Accordingly, the doctor has opined that death was due to asphyxia as the result of strangulation. Based upon the doctor's opinion, dated 4.9.2021, the FIR came to be 11 registered by the police on 4.9.2021 against the petitioner and accused No.1-the wife of the deceased. The alleged offence said to have took place on 29.08.2018. The post mortem was also conducted on 30.08.2018 and no cause of death issued by the Doctor for homicidal death or strangulation. But he has opined only after three years and given opinion as the death was due to asphyxia as a result of strangulation after three years of the post mortem examination. Even the doctor while dissection of the neck, he has not opined the death was due to strangulation, but the opinion given after three years only on the request of the Investigating Officer and then the FIR was registered. Absolutely, there is no basic material for registering the FIR against the petitioner.
13. That apart, there is no witnesses examined by the Investigating Officer at the time of inquest and also he has conducted any investigation or enquiry, recording the statement immediately after the incident that the presence of this petitioner was found near the house of the deceased. 12 The so called two witnesses said to be given statement i.e., CWs.10, 14 and 15, they have stated that they came to know from the public that there was intimacy between accused Nos.1 and 2. But they have not stated anything about the presence of the petitioner on the spot either prior to the incident or after the incident while accused Nos.1 and 2 talking together at any point of time. That apart, the another witness-CW.11 has stated that he has seen accused at 11 p.m. on the date of the incident. But his statement was recorded only just prior to the registering the FIR after three years and he has suspected that the accused might have committed murder.
14. It is well settled by the Hon'ble Supreme Court in the case of Devi Lal vs. State of Rajasthan in Crl.A.No(s). 148/2010 and connected matter, has held that the suspicion, howsoever grave, cannot substitute proof and the same is relied by the Hon'ble Supreme Court in the recent judgment in the case of Santosh @ Bhure vs. State (G.N.C.T.) of Delhi in Crl.A.No.575/2011 and 13 connected matter, and the Hon'ble Supreme Court has set aside the conviction of the accused persons. The Hon'ble Supreme Court also held in the case of Satish Mehra stated above has held that when there is no material placed on record for framing of charge, the Court can discharge the accused without holding for trial. Therefore, when there is no material placed on record for framing of charge by the prosecution, the Court can exercise the power under Section 482 of Cr.P.C. for quashing the criminal proceedings.
15. Apart from that, the case of the prosecution is based upon the confession statement of the co-accused i.e., accused No.1 who is the wife of the deceased. It is well settled by the Hon'ble Supreme Court in catena of decisions that the confession of the co-accused cannot be used against the other accused until any recovery has been made. It is settled position of law, any voluntary statement/confession statement made before the Investigating Officer is inadmissible under Sections 24, 25 and 26 of Indian Evidence Act, 1872 and except any 14 recovery under Section 27 of the Evidence Act. But here in this case, nothing has been recovered, no material placed on record to show that the accused was present on the spot and he has colluded with accused No.1-the wife of the deceased and strangulated the deceased.
16. In a similar case, a Madras High Court in the case of Selvan @ Rathinapandian & Others vs. State by Inspector of Police, Kulasekaranpatinam reported in 1996 (4) Crimes 186 has held, it is unsafe to frame a charge against the accused solely upon the basis of the confession made by one of the co-accused during the investigation. My respectful agreement with the principle laid down by the Madras High Court and in this case, the accused No.1 given voluntary statement that she has committed murder along with the accused No.2-the petitioner herein, that too after three years of the death of the deceased. Therefore, the confession statement of the co-accused cannot be used against this petitioner without any sufficient material evidence collected against this 15 petitioner and belated statements recorded by the so called circumstantial evidence after three years of the incident by falsely implicating the petitioner and registered the FIR after three years of the incident without any material. Therefore, the proceedings against the petitioner is nothing but abuse of process of law and it is a fit case for exercise the power under Section 482 of Cr.P.C. for quashing the criminal proceedings.
17. Considering the facts and circumstances of the case, delay in registering the FIR for three years without any material records and based upon the confession statement of the co-accused named this petitioner in the investigation, it is unsafe to frame the charges against the present petitioner and therefore, conducting the trial against the petitioner is waste of court time and it is a futile exercise. Therefore, the proceedings is liable to be quashed. 16
18. Accordingly, the petition is allowed. The criminal proceedings against the petitioner- accused No.2 in S.C.No.5028/2022 arising out of Crime No.153/2021 registered by Sathnoor Police Station, Kanakapura Taluk, Ramanagara District is hereby quashed.
Sd/-
JUDGE GBB/CS CT:SK