Karnataka High Court
Sri Toushib @ Toushif vs The State Of Karnataka on 21 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRL.RP.No.200049/2021
BETWEEN:
SRI TOUSHIB @ TOUSHIF
S/O BASHIR SAHAIK,
AGED ABOUT 23 YEARS,
OCC: DRIVER, R/O ULEWADI
TULJAPUR ROAD, SOLAPUR-413 001
... PETITIONER
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH KOLAR POLICE STATION,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERALS OFFICE,
HIGH COURT BUILDING,
KALABURAGI-585103
... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CRIMINAL PROCEDURE
CODE, PRAYING TO SET ASIDE THE ORDER DATED 12.03.2021
PASSED BY I-ADDL. DIST. AND SESSIONS JUDGE, VIJAYAPUR
IN S.C.NO.172/2019 ON THE APPLICATION FILED BY THE
PETITIONER/ACCUSED NO.3 UNDER SECTION 227 OF CR.P.C.,
AND CONSEQUENTLY DISCHARGE HIM ON THE ALLEGED
OFFENCES.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
2
ORDER
Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
2. This petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying this Court to set aside the order dated 12.03.2021 passed by I-Additional District and Sessions Judge, Vijayapur, in S.C.No.172/2019 rejecting the application filed by accused No.3 under Section 227 of Cr.P.C.
3. Factual matrix of the case is that this petitioner is the driver of the car in which accused Nos.1 and 2 took the deceased-Reshma Kousar and committed her murder by strangulating. After committing murder of the deceased, accused Nos.1 to 3 with an intention to destroy the evidence took the dead body in the car. The said car was driven by the petitioner and they went near 3 the bridge of Kolhar Krishna river and thrown the body in the river. Hence, offences under Sections 120(B), 364, 302, 201 r/w Section 34 of IPC are invoked. The petitioner herein filed an application under Section 227 of Cr.P.C., contending that no prima facie case is made out against him in the FIR, complaint and statement of the witnesses recorded. The evidence collected by the Investigating Officer is not sufficient to frame charges against him and there are no eyewitnesses to the incident and only based on the confessional statement, he has been implicated in the case and hence, it requires invoking of Section 227 of Cr.P.C. The trial Judge without considering the material on record rejected the application and hence, the present revision petition is filed.
4. The main contention of the learned counsel appearing for the petitioner before this Court is that the trial Judge has not considered the material on record 4 and erroneously rejected the application filed under Section 227 of Cr.P.C. When there is absolutely no material against the petitioner, the trial judge ought to have invoked Section 227 of Cr.P.C. The learned Judge has power to sit and weigh the evidence for the limited purpose of finding out whether any prima facie case is made out against the petitioner or not and the said consideration of the material available on record has not been made and hence, it require interference of this Court. The learned counsel also contended that even accepting the entire case of the prosecution, there is no material to frame charge against the petitioner for the alleged offences and hence, it requires interference of this Court.
5. Per contra, learned High Court Government Pleader appearing for the respondent/State would submit that the trial Court while rejecting the application assigned reasons in paragraph-8 in detail that the 5 petitioner along with other accused i.e., accused Nos.1 and 2 carried the deceased and committed murder by strangulating and thereafter, all of them took the dead body in the car and thrown the dead body in Kolhar Krishna river and hence, there is sufficient material to proceed and rejected the application under Section 227 of Cr.P.C.
6. Having heard the learned counsel appearing for the respective parties and on perusal of the order passed by the learned Trial Judge, no doubt it is the contention of the petitioner that there is no prima facie material against the petitioner who has been arraigned as accused No.3. But the charge sheet allegation is that accused No.1 given voluntary statement and confessed about the commission of offence wherein he has stated that accused No.3 has done overt-act at the time of commission of offence. It is important to note that very case of the prosecution is that the deceased was taken 6 in a car and the said car was driven by the petitioner and the fact that the deceased was murdered by strangulation and also body was disposed to screen the evidence. Hence, offence punishable under Sections 364, 120(B), 302, 201 r/w Section 34 of IPC are invoked. Specific allegation is that all the accused joined together and with an intention to destroy the evidence took the dead body in the car towards Kolhar Krishna river bridge and thrown body in the river. Hence, the trial Judge came to the conclusion that the material collected by the Investigating Officer shows involvement of accused No.3 also and hence, the same is required to be tested in the trial. It has to be noted that with regard to conspiracy the Court cannot expect direct evidence and only by placing circumstantial evidence the petitioner can prove the conspiracy in eliminating the deceased. But, in the case on hand, fact that allegation is made against the petitioner that the deceased was taken in the car driven by the petitioner 7 and thereafter, the other accused committed murder of the deceased by strangulating and all of them took the dead body in the car and destroyed the evidence by throwing the dead body in the river. When such being the material available on record, it is a matter of trial and the learned Trial Judge has not committed any error in dismissing the application filed under Section 227 of Cr.P.C.
7. The petitioner has abused the process of the Court by invoking Section 227 of Cr.P.C., before the trial Court when he has been arrayed as accused No.3 that too for the offences punishable under Section 302 and 201 of IPC and even carried the order of rejection of the application before this Court by filing revision petition. It is nothing but an abuse of process. Hence, the petition is required to be dismissed with exemplary costs.
8. In view of the discussions made above, I pass the following:
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ORDER The petition is dismissed with exemplary cost of Rs.25,000/- payable at Registry within four weeks from today. If fails to make payment recover the same in accordance with law.
In view of disposal of the main petition, I.A.No.1/2021 for stay does not survive for consideration and accordingly, it is disposed of.
Sd/-
JUDGE NB*