Karnataka High Court
Krishna vs The State Of Karnataka on 21 December, 2018
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.632/2011
BETWEEN:
1. KRISHNA,
S/O THIRUMALA GOWDA @ THIMMAIAH,
AGED ABOUT 32 YEARS,
LORRY DRIVER,
R/A BEHIND GOVT. HOSPITAL,
BHUTANAGUDI, BHADRAVATHI,
SHIMOGA DISTRICT.
2. NAGARAJA,
S/O THIMMAIAH,
AUTO DRIVER,
R/A BEHIND GOVT. HOSPITAL,
BHUTANAGUDI, BHADRAVATHI,
SHIMOGA DISTRICT.
3. SMT. JAYAMMA
W/O RAMANNA,
AGED ABOUT 40 YEARS,
HOUSEHOLD WORK,
R/A BEHIND THE VINAYAKA TALKIES,
1ST CROSS RIGHT SIDE,
BHADRAVATHI,
SHIMOGA DISTRICT.
4. SMT. NINGAMMA W/O THIMMAIAH,
AGED ABOUT 70 YEARS,
2
HOUSEHOLD WORK,
R/A BEHIND GOVT. HOSPITAL,
BHUTANAGUDI, BHADRAVATHI,
SHIMOGA DISTRICT.
5. SMT. SHIVAMMA W/O NAGRAJ,
AGED ABOUT 28 YEARS,
HOUSEHOLD WORK,
R/A BEHIND GOVT. HOSPITAL,
BHUTANAGUDI, BHADRAVATHI,
SHIMOGA DISTRICT.
... PETITIONERS
(BY SRI VIGHNESHWAR S. SHASTRI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY OLD TOWN POLICE,
BHADRAVATHI.
... RESPONDENT
(BY SRI K.P. YOGANNA, H.C.G.P.)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 14.01.2011 PASSED BY
THE PRESIDING OFFICER, FTC, BHADRAVATHI IN
S.C.NO.145/2009.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 12.12.2018 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS, THIS DAY THE
COURT PRONOUNCED THE FOLLOWING:
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ORDER
This Revision Petition is filed by the petitioner - accused under Section 397 of Code of Criminal Procedure ('Cr.P.C.' for short) challenging the order of framing of charge by the FTC, Bhadravathi in S.C.No.145/2009 against the petitioner/accused for the offences under Sections 498-A, 302 r/w 34 of Indian Penal Code ('IPC' for short).
2. The ranks of the parties are referred to as in the trial Court for the sake of convenience.
3. The factual matrix of the case of the prosecution in brief is that: complainant-Kariyappa filed a compliant before the Bhadravathi Old Town Police on 28.12.1998 alleging that his daughter Mangala was given in marriage with accused No.1-Krishna about 9 years back and they have two children. Accused No.1 along with other accused used to ill treat his daughter by demanding dowry. They used to hurt her physically 4 and mentally by demanding dowry inspite sufficient dowry given to her while performing marriage. Prior to the incident, there was quarrel between his daughter and accused No.1 and his daughter had come back to maternal home and thereafter, complainant himself took his daughter and left her in her matrimonial home. Later, he came to know that his daughter was not found and missing from the house of the accused from 30.10.1998 onwards, which fact came to his knowledge through one of his relative. Thereafter the complainant filed a missing complaint before the police. Later a case was registered as Crime No.241/1998 for the offences under Section 498-A of IPC. The police arrested the accused persons. After investigation filed charge sheet under Section 498-A IPC. After framing of the charge against the accused, they pleaded not guilty and claimed to be tried. Later the prosecution examined the complainant as PW-1, his wife Smt. Venkatamma as PW-2, complainant's another daughter, Ms.Saroja as 5 PW-4. Another son of the accused Sri.Shreekanth was examined as PW-3, who turned hostile. Chaitunneesa, examined as PW-5 also turned hostile. During recording of evidence of PWs 1, 2 and 4, they have stated before the Magistrate that prior to missing of Mangala (Victim), the accused had threatened the complainant that he would kill his daughter, if he does not take his daughter back. However, his daughter was staying in the house of accused and later, from 30.10.1998 his daughter was found missing and he lodged a detailed complaint with the police that due to ill treatment by the accused, his daughter was missing and subsequently, when they came to know that a dead body was found in Shanthisagar lake, himself and his wife went to the spot. By the time they could reach the spot, police had buried the body and stated to have shown photographs of the dead body of a woman. Body was decomposed, but the complainant identified the blouse worn by the lady shown in the photograph 6 saying that it was given to her by one of his relative. PW-2, wife the complainant and PW-4, another daughter of the complainant were given evidence that the accused might have killed Mangala, the victim, and thrown the dead body in the lake.
4. During the trial, learned Addl. Public Prosecutor moved an application before the Magistrate under Section 173(8) of Cr.P.C. for directing the police to make further investigation in this aspect. Thereafter, the police further investigated into the matter. As they did not find any dead body, the victim was not traced and after the investigation, again they filed a report stating that there is no additional material collected by them and they stated that the accused have committed the offence punishable under Section 498-A of IPC. Subsequent to the recording of the evidence of these witnesses, the learned Magistrate by his order dated 22.6.2009 committed the case to the Court of Sessions 7 under Section 323 Cr.P.C. stating that the offence falls under Section 304-B or 306 of IPC.
5. After receiving the records of the case, the Sessions Judge allotted this case to the FTC, Bhadravati on the point of jurisdiction and Sessions case has been registered in S.C.No.145/2009. The accused persons appeared before the Court and were released on bail. Later, after hearing the counsel for the accused and the learned SPP, the Fast Track Judge held the offences under Section 304-B is not attracted since the marriage, as on the date of complaint itself, is more than 9 years and therefore, it does not fall under Section 304-B of IPC category and there is material to frame charge against the accused under Section 498(A) and 302 of IPC and also framed charges against the accused. Being aggrieved by the same, the petitioner preferred this revision petition.
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6. Learned counsel for the petitioners-accused contended that the order is erroneous, there is no material placed on record to show that the accused committed murder of Mangala; there is no recovery of dead body; even the photographs are not produced; UDR report for having conducted the inquest by the Tahsildar is not available. Without these materials, framing of charges under Section 302 of IPC is illegal. Therefore, learned counsel prays for setting aside the impugned order.
7. Learned counsel for the petitioners further submitted that they are challenging the order of framing of charge under Section 302 Cr.P.C, but not the order passed by the Magistrate for committal of the case under Section 323 Cr.P.C. or directing the police to reinvestigate the matter under Section 173(8) of Cr.P.C. and also contended that without any material on record, the trial Court committed an error in holding that 9 offence under Section 302 IPC is made out while framing charge against the accused. Hence, seeks interference by this court.
8. Per contra, learned HCGP Sri.Yoganna, supported the case of the prosecution contending that for framing of charge, the court need not go into the merits of the case for conviction or acquittal. Prima facie material is enough to frame charges and the evidence of parents of the missing Mangala, the victim and sister itself clearly go to show that there was dead body found in Shantisagar lake. Therefore, these materials are enough for framing of charge and hence, prays for dismissal of the revision petition.
9. Heard learned counsel for the parties and perused the records.
10. The records of the court below shows that the complaint came to be lodged by Kariyappa on 28.12.1998 alleging that his daughter was missing from 10 the house of the accused from 30.10.1998. After receiving the complaint, police tried to find out said Mangala, but could not trace her. Therefore, they filed charge sheet under Section 498-A of IPC. During the trial, the complainant has categorically stated in his evidence that after 15 days of lodging the complaint, he and his wife came know that a dead body was lying in Shantisagar lake, they went to that place, by the time, they reached, the police had buried the body as it was decomposed, which could not be identified, however, they have seen photographs of the dead body and the complainant identified the blouse found on the dead body as that of his daughter. After recording their evidence, cross-examination was also done by the counsel for the accused. The defence of the accused is of total denial. Learned Magistrate though ordered under Section 173(8) of Cr.P.C. on the application filed by the prosecution directing the Investigating Officer to further enquire into the matter, but the Investigating 11 Officer filed a report on 16.10.2006 that his team tried to trace said Mangala, the daughter of the complainant, to various places, but they could not trace her.
11. The depositions of the witnesses go to show that the learned Magistrate continued to examine the complainant from 25.1.2007 onwards and after recording his evidence, simply he commits the case under Section 323 Cr.PC. to the Court of session stating that the offence may attract Section 306 or 304-B of IPC. The order of the Magistrate committing the case under Section 323 Cr.P.C., is without looking to the serious allegations made by the parents of the victim, but purely based upon the oral evidence, is erroneous, for the reason even though the learned Magistrate directed the police to further investigate into the matter under Section 173(8) of Cr.P.C., but the police report says that they tried to trace the victim, but her whereabouts were not known. The report of the police 12 does not reveals they enquired the complainant and his wife and the photographs said to have seen by them were not summoned from the concerned police and if at all any UDR is conducted by the police through Tahsildar, the body might have sent to post-mortem examination to the Govt. hospital and there must be post mortem report in respect of some unidentified decomposed body, but the Investigating Officer went on stating that he has sent his teams to trace the victim, they went to so many places and they enquired only the accused, but have not enquired the complainant, his wife or daughter, who were the witnesses before the Court. Even otherwise, once the police stated that there is no material with them, the Magistrate ought to have tried to find out the truth by summoning the post mortem report or inquest report from the police and the hospital and the learned Magistrate ought to have examined the Doctor who conducted the post mortem. But the Magistrate only on the basis of the oral evidence 13 given by the parents of the victim said to have heard a dead body of their daughter in Shanthisagar lake, they have seen the photographs, but in support of that no further investigation done, but blindly accepted the report of the police and accepted the evidence of PW-1 and PW-2 and committed the case to the Sessions Court without ascertaining the other documents that were available or not. The very order of committal itself is without collecting any material, is erroneous. That part, the Sessions Judge has discussed in his order dated 14.1.2011 that there is material for framing of charge under Section 302 IPC, without narrating the facts which attract the ingredients of provisions of the penal section as to what are the material/documents available on record apart from the depositions of the PWs.1, 2 and 4 to frame the charges under Section 302 IPC is also not legal and is erroneous.
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12. It is well settled, while framing of charge, the court cannot go into the merits of the case whether the case of acquittal or conviction, but to see is there any prima facie material available to frame charge under Section 228 of Cr.P.C. In this regard, Judgment of the Hon'ble Apex Court in the case of Union of India -v- Prafulla Kumar Samal and Another (1979)3 SCC 4 and Dilawar Balu Kurane -v- State of Maharashtra (2002) 2 SCC 135. The Hon'ble Apex Court has held thus:
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him 15 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)]."
13. The Hon'ble Apex Court in Sajjan Kumar -v- Central Bureau of Investigation (Crl.Appeal No.6374 of 2010 DD 20.09.2010) while referring the judgment of Prafullas Kumar Samal's case and Dilawar Balu Kurane's case framed the guidelines about the scope of Section 227 and 228 Cr.P.C. as follows:
" On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the charges under Section 227 of the 16 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the 17 charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
vii) If two views are possible and one of them gives rise to suspicion only, as distinguished 18 from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
14. In view of the principles enunciated by the Hon'ble Apex Court, coming to the case on hand that the statement of the parents of the victim discloses that the accused had threatened to do away with the life of their daughter if she is not taken back to their home, inspite of that victim had been left with the accused in his house. Later the complainant came to know that his daughter was missing. During the evidence, he has categorically stated that his daughter was found dead and the photographs were shown by the police. But there is no investigation made by the police in this regard. Learned Magistrate also not tried to find out the truth and failed to collect material like UDR, PM report or the photographs, etc., but simply committed the case under Section 323 Cr.P.C., which is not correct. 19
15. Apart from that the learned Sessions Judge without any material on record viz., UDR, PM report or any photographs of the dead body, proceeded to frame against the accused. Even otherwise there is no finding given by the Sessions Judge that what is that circumstances to suspect disappearance of the dead body in order to destroy the evidence by throwing the body into the lake which would attract Section 201 IPC. If any material is found regarding suspicion of murdering the deceased that the said body is not found or recovered which was thrown into the lake found, definitely Section 201 of IPC attracts. Even otherwise, the Court during the trial can presume the victim was dead since she was not traced for 7 years which falls under presumption under Section 108 of the Indian Evidence Act. In order to frame charges, there must be dead body. Even there is no dead body, there must be some material or statement to show that the accused persons have destroyed the dead body after committing 20 murder of the victim. When the dead body was not traced by the police, it is not right on the part of the Sessions Judge to frame charges under Section 302 of IPC without assigning any reason for not framing of charge under Section 201 of IPC. Therefore, as held the Hon'ble Apex Court in Prafulla Kumar Samal's case if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, trial Judge will be empowered to discharge the accused and that the Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court Therefore, the order passed by the Sessions Judge under Section 227 of Cr.P.C. is erroneous, illegal, without material on record to frame charges and without giving any finding to show what are the materials to attract Section 302 IPC. Therefore, 21 the order of the Sessions Judge also requires to be set- aside and the matter is deserved to be remanded to the Committal Court by setting aside the order of the Sessions Judge for framing of charge under Section 227/228 of Cr.P.C. and the order of committal passed by the learned Magistrate under Section 323 of Cr.P.C. with a direction to verify the veracity of the evidence given by PWs 1, 2 and 4, in addition to securing the post mortem report, if any available in the Govt. hospital and then based upon the material on record could form an opinion whether the accused have committed any such offence as alleged and then learned Magistrate is at liberty to commit the case under Section 323 of Cr.P.C. Thereafter, learned Sessions Judge could take up the matter for trial by following the guidelines laid down by the Hon'ble Supreme Court in Sajjan Kumar's case (referred to supra). If the learned Magistrate do not find any additional material for framing the charge against the accused for the offence 22 either under Section 302 or 201 of IPC, shall proceed with the case and dispose of the matter based upon the material available before it.
16. In the result, the Criminal Revision Petition is allowed. The order dated 14.1.2011 passed by the FTC, Bhadravathi in S.C.No.145/2009 and the order dated 22.06.2009 passed by the learned II Addl. Civil Judge and JMFC, Bhadravathi, under Section 323 Cr.P.C. are set-aside and the matter is remanded to the learned Magistrate, Bhadravathi, with the above directions.
Learned Magistrate is directed to dispose off the matter as expeditiously as possible.
Registry is directed to send the records with a copy of this order to the concerned Court, forthwith, for further course of action.
SD/-
JUDGE ln.