Karnataka High Court
Nandeppa And Ors vs State Of Karnataka on 17 July, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL REVISION PETITION.NO.200111/2017
BETWEEN:
1. NANDEPPA S/O PANDAPPA
AGE: MAJOR OCC: AGRICULTURE
2. SETHAPPA S/O PANDAPPA
AGE: 39 YEARS OCC: AGRICULTURE
3. BALAPPA S/O PANDAPPA
AGE: MAJOR OCC: AGRICULTURE
4. PANDAPPA S/O TUKEPPA
AGE: MAJOR OCC: AGRICULTURE
ALL ARE R/O: MYDARAL TANDA
TQ: LINGASUGUR
DIST: RAICHUR-586101.
... PETITIONERS
(BY SRI.SHIVANAND.V.PATTANSHETTI, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY ADDL. SPP
2
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585107
(THROUGH MASKI P.S.
DIST: RAICHUR-586101)
... RESPONDENT
(BY SRI.MALLIKARJUN SAHUKAR, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 10.10.2017 PASSED IN S.C.NO.52/
2016 BY THE II ADDL. DISTRICT AND SESSIONS
JUDGE RAICHUR AND CONSEQUENTLY DISCHARGE
THE PETITIONERS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498 (A) AND 302 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have called in questioning the order passed by the II Additional District and Sessions Judge, Raichur in S.C.No.52/2016, on the application filed by the prosecution under Section 319 of Criminal Procedure Code, wherein the learned Sessions Judge has allowed the said application against the petitioners who are subsequently arrayed as accused Nos.2 to 5. 3
2. I have heard the arguments of learned counsel for the petitioners and learned High Court Government Pleader and perused the entire charge sheet papers and as well as evidence of PWs.1 to 6 and as well as order impugned under the petition.
3. At the initial stages when crime was registered in the First Information Report which is marked before the trial Court as Ex.P.1, lodged by one Lachamappa s/o Dakappa Naik, wherein it is stated that, the deceased by name Ambavva was given in marriage to accused No.1. She started living with accused No.1 and petitioners in her matrimonial home. They were happy with each other for about 10 years and begot four children. It is specifically stated that, accused No.1 has started ill-treating his wife and harassed her by suspecting her fidelity. About 20 days prior to the date of incident it is alleged that, all the accused persons have ill-treated and harassed her and thrown 4 her out from the matrimonial home. Later it is alleged that on 04.02.2016 accused No.1 took her along with him and thereafter it is alleged that, accused No.1 has committed the murder of the deceased. Therefore, there are only casual allegations made against the petitioners in the First Information Report. Even during the course of recording of the statement of witnesses, all the related witnesses have stated that, i.e., mother, father, brother and sisters also ill-treat the deceased, but they have not made any specific allegations against the petitioners herein. But they have made specific allegations only against the accused No.1. The police though registered a case against all the accused persons at the initial stage on the basis of the First Information Report with the casual remark made in the First Information Report, but ultimately, after evaluating the entire material on record, the police have left out the names of the petitioners from the charge sheet and laid the charge sheet only against the accused No.1. 5
4. During the course of evidence, the prosecution has examined PWs.1 to 6 and alleged that some of the witnesses have implicated in their examination-in-chief by explaining the role of the petitioners herein. Therefore, on that ground, the learned prosecutor has made an application under Section 319 of Criminal Procedure Code, requesting the Court to summon the petitioners also as accused persons to face the trial along with accused No.1. The notices were issued to the petitioners on the application filed under Section 319 of Criminal Procedure Code and in fact they contested the said application. Thereafter the learned Sessions Judge allowed the application on the basis of some evidence led by the prosecution.
5. On careful perusal of the evidence of PWs.1 to 6, except stating in an omnibus manner that, all the family members of the accused have harassed the deceased, nothing worth is elicited about specific role of 6 the present petitioners who are sought to be arrayed as accused persons. The only one sentence which has been stated by all the witnesses is culled out in the order of the learned Sessions Judge that;
"the deceased was harassed by all her family members since two years prior to her death alleging that her characters are not good".
6. Except that, there are no other allegations whatsoever stated by any of the witnesses. In fact above allegations are made even in the First Information Report and in the statements of some of witnesses recorded under Section 161 of Criminal Procedure Code. But the police found that, there was no sufficient material to send the petitioners for trial. Therefore, this Court has to examine whether the said casual allegations deposed during the course of evidence which was already appropriately considered by the police is sufficient to call the accused to appear before the Court 7 and face the trial along with accused No.1. In this background it is worth to refer a decision of the Hon'ble Apex Court reported in (2017) 7 S.C.C. 706 in the case of Brijendra Singh and others /vs/ State of Rajasthan, wherein the Hon'ble Apex Court made certain observations and guidelines, as to under what circumstances the Court can exercise the power under Section 319 of Criminal Procedure Code.
7. It is worth to note some of the portions of the judgment of the Hon'ble Apex Court;
"Powers of Court to proceed under Section 319 of Criminal Procedure Code, even against those persons who are not arraigned as accused, cannot be disputed. Such provision is meant to achieve the objective that, real culprit should not get away unpunished. The power under Section 319 of Criminal Procedure Code can be exercised by trial Court at any stage during trial i.e., before conclusion of trial. To summon any person as an 8 accused and face trial in ongoing case, once trial Court finds that there is some "evidence" against such a person, on basis of which evidence, it can be gathered that he appears to be 'guilty' of the offence alleged.
8. The Hon'ble Apex Court also observed that "Evidence" means material that, is brought before Court during trial. Insofar as material/evidence collected by the Investigating Officer at the stage of inquiry is concerned, it can be utilized for corroboration and to support evidence recorded by Court to invoke power under Section 319 Criminal Procedure Code. No doubt, such evidence that has surfaced in examination-in- chief, without cross-examination of witnesses, can also be taken into consideration. It is further observed by the Hon'ble Apex Court that "However, since it is a discretionary power given to Court under Section 319 of Criminal Procedure Code and is also an extraordinary one, same has to be exercised sparingly and only in 9 those cases where circumstances of case so warrant. Degree of satisfaction is more than the degree which is warranted at the time of framing of charges against others in respect of whom charge sheet was filed. Only where strong and cogent convincing evidence occurs against a person from evidence led before the Court, then only such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima- facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
9. Therefore, it is clear from the above guidelines that, "Notwithstanding some evidence available on record, the trial Court went by the depositions of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, "evidence" recorded during trial was nothing more than statements which were already there under Section 161 10 of Criminal Procedure Code recorded at the time of investigation of case. No doubt, trial Court would be competent to exercise its power even on basis of such statements recorded before it in examination-in-chief. However, in a case like this, where plethora of evidence was collected by Investigating Officer during investigation, which suggested otherwise, trial Court was at least duty bound to look into the same while forming prima-facie opinion and to see as to whether much stronger evidence than mere possibility of complicity has come on record. There is no satisfaction of such nature recorded by the trial Court. Therefore, Hon'ble Apex Court came to the conclusion on facts also that the order passed under Section 319 of Criminal Procedure Code is devoid of merits and same was set- aside.
10. If above principles are applied to the factual matrix of this case, as I have already noted from the First Information Report and the charge sheet that, lot 11 of materials were already been collected about these petitioners which are in an omnibus manner. It is stated that, all the accused persons have harassed the deceased suspecting her fidelity, except that under Section 161 of Criminal Procedure Code statement and in the First Information Report nothing has been stated by the witnesses. Therefore, the Investigating Officer has not chosen to send the petitioners as accused persons in the charge sheet. Even the same wording as stated in the statement under Section 161 of Criminal Procedure Code and in the First Information Report have been reiterated before the court by the witnesses, nothing more is elicited from the mouth of some of the prosecution witnesses which is corroborated by any other material on record. The learned Sessions Judge has not looked into the charge sheet papers, statement of the witnesses and the view taken by the Investigating Officer in order to ascertain whether some evidence is available to the Court which establishes the guilt of the 12 accused so far as to array them as accused. The Court has to tentatively come to the conclusion that on the basis of such evidence, if such evidence is un-rebutted, same is sufficient to hold that accused are guilty. If it is only on the basis of preponderance of probabilities some evidence is relied upon led by the prosecution, and if it not higher in degree, the trial Court should not unnecessarily call upon any such person to face the trial. Without looking into such material on record if any person is called upon to face the trial, it virtually affects the constitutional liberty of such person.
11. Looking into the facts and circumstances of this particular case, there is no satisfactory findings given by the trial Court with comparative study of the material available in the evidence of the prosecution which is sufficiently higher in degree. Without there being such satisfaction, the trial Court has committed serious error in allowing the application under Section 13 319 of Criminal Procedure Code. In my opinion the said order requires to be quashed. Hence, I pass the following:
ORDER The petition is allowed.
Consequently, the order passed by the learned II Additional District and Sessions Judge, Raichur in S.C.No.52/2016 on the application filed by prosecution under Section 319 of Criminal Procedure Code vide order dated 10.10.2017 is hereby quashed.
Office is directed to transmit the records of the trial Court forthwith for further proceedings.
Sd/-
JUDGE KJJ