Karnataka High Court
K C Ramu @ Ramanna vs State Of Karnataka on 10 August, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.206 OF 2018
C/w. CRIMINAL PETITION No.711 OF 2018
AND CRIMINAL PETITION No.7026 OF 2019
In Crl.R.P.No.206/2018 :
BETWEEN:
K.C.Ramu @ Ramanna
S/o.Late Channegowda,
Age:61 years,
Occ:Pensioner,
R/o.Kalenahalli Village,
Tq:Mandya, Karnataka. .. Petitioner
( By Sri Ashok B.Patil, Advocate )
AND:
1. State of Karnataka
By PSI, Mandya Rural Police Station,
Rep. by State Public Prosecutor,
High Court of Karnataka,
Bengaluru-570 001.
2. Mamatha R
W/o Late K.R.Manjunath
Crl.R.P.No.206/2018
C/w. Crl.P.No.711/2018
& Crl.P.No.7026/2019
2
Age:Major, Occ:Nill,
R/o:Kalenahalli Village,
Tq:Mandya,
Karnataka-571 401. .. Respondents
( By Sri K.Nageshwarappa, HCGP for R-1;
Sri.C.N.Raju, Advocate for R-2)
This Criminal Revision Petition is filed under Section 397(1)
read with Section 401 of Cr.P.C. praying to call for records, allow
the Revision Petition and set aside order dated 4.8.2017 passed by
the learned V Addl. District and Sessions Judge, Mandya in
S.C.No.20/2017, in so far discharging the respondent
No.2/accused No.3 for the offence punishable under Section 302,
493, 494, 496, 120-B, 201 R/w Section 34 of IPC in the interest of
justice.
In Crl.P.No.711/2018 :
BETWEEN:
K.C.Ramu
S/o.Late Chennegouda,
Aged about 64 years,
R/o.Kallenahalli Village,
Mandya Taluk,
Mandya District. .. Petitioner
( By Sri. Ashok B.Patil, Advocate )
AND:
1. State of Karnataka by
Mandya Rural P.S
Mandya District-571 401.
Crl.R.P.No.206/2018
C/w. Crl.P.No.711/2018
& Crl.P.No.7026/2019
3
2. Mamatha R
W/o Late K.R.Manjunath
Kalenahalli Village,
Kothathi Hobli,
Mandya Taluk-571401. .. Respondents
( By Sri.K.Nageshwarappa, HCGP for R-1;
Sri.C.N.Raju, Advocate for R-2)
This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to direct any other investigating authority to investigate
the case in Cr.No.400/2015 which is renumbered as
S.C.No.20/2017 pending on the file of the V Addl. District and
Sessions Judge, Mandya for offences punishable under Section
493, 494, 496, 120(B), 302, 201 r/w 34 of IPC in the interest of
justice.
In Crl.P.No.7026/2019
BETWEEN:
Mamatha R
W/o Late K.R.Manjunatha,
Residing at Kalenahalli Village,
Kothahthihobli,
Mandya Taluk,
Mandya,
Pin Code No.571401. .. Petitioner
( By Sri. C.N.Raju, Advocate )
AND:
State by Mandya Rural Police
Mandya
Represented by SPP,
Crl.R.P.No.206/2018
C/w. Crl.P.No.711/2018
& Crl.P.No.7026/2019
4
High Court of Karnataka at Bangalore,
Pin Code No.560001. .. Respondent
( By Sri.K.Nageshwarappa, HCGP )
This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to set aside the order dated:22.08.2019 passed by the
V Additional District and Sessions Judge at Mandya in
S.C.No.20/2017 arising out of crime No.400/2015 of Mandya Rural
Police by allowing this petition in the interest of justice.
The Criminal Revision Petition and Criminal Petitions are
having been heard through Physical Hearing/Video Conferencing
Hearing and reserved for orders on 21.07.2022, coming on for
pronouncement this day the Court made the following:
COMMON ORDER
The respondent No.1- complainant-Police has charge sheeted respondent No.2 i.e., accused No.3 - Smt.Mamatha R., who is respondent No.2 in Criminal Revision Petition No.206/2018 and Criminal Petition No.711/2018. She is also the petitioner in Criminal Petition No.7026/2019. A charge sheet was filed by respondent No.1-Police in Crime No.400/2015, for the offences punishable under Sections 302, 493, 494, 496, 120-B, 201 read with Section 34 of Indian Penal Code, 1860, (hereinafter for brevity referred to as `IPC'). An application under Section 227 of Code of Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 5 Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.'), filed by said Smt.Mamatha R., (accused No.3) in S.C.No.20/2017, pending in the Court of learned V Addl.District & Sessions Judge, Mandya (hereinafter for brevity referred to as `Sessions Judge's Court'), came to be allowed by the order of the Sessions Judge's Court dated 04.08.2017 and accused No.3 came to be discharged for the offences above mentioned.
2. Challenging the said order, CW-2 K.C.Ramu @ Ramanna, the father of the deceased K.R.Manjunatha and father-in-law of accused No.3-Smt.Mamatha R., has filed Criminal Revision Petition No.206/2018, under Section 397(1) read with Section 401 of Cr.P.C.
Very same CW-2 K.C.Ramu @ Ramanna has filed Criminal Petition No.711/2018, under Section 482 of Cr.P.C. seeking a direction to any other investigating authority to investigate the case in Crime No.400/2015, which is Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 6 later numbered as S.C.No.20/2017 pending in the Sessions Judge's Court.
After the discharge of accused No.3 by the Sessions Judge's Court vide its order dated 04.08.2017, the complainant-State has filed an application under Section 319 of Cr.P.C. on 22.08.2019. The Sessions Judge's Court issued summons to the said Smt.Mamatha R., on the application. Aggrieved by the said order of the Sessions Judge's Court, said Smt.Mamatha R., has filed Criminal Petition No.7026/2019 under Section 482 of Cr.P.C.
3. The respondent No.1-State is being represented by learned High Court Government Pleader. The respondent- Smt.Mamatha R., is being represented by her counsel.
4. The records in S.C.No.20/2017 were called for and the same are placed before this Court.
Crl.R.P.No.206/2018C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 7
5. Since all these matters have arisen out of the very same Sessions Case No.20/2017, all these matters are connected with each other and taken up to hear the common arguments and to pass a common order.
6. Heard the arguments from both side. Perused the materials placed before this Court.
For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.
7. After hearing both side, the points that arise for my consideration are,-
(1) Whether the order dated 04.08.2017, passed in S.C.No.20/2017 by the Sessions Judge's Court is perverse warranting interference at the hands of this Court?
(2) Whether Criminal Petition No.7026/2019 deserves to be allowed with a direction for an investigating agency other than the Karnataka State Police to investigate in Crime No.400/2015 in the 1st respondent-Police Station?
(3) Whether the order dated 22.08.2019, passed in S.C.No.20/2017 by the Sessions Judge's Court Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 8 ordering issuance of summons to the proposed accused No.3 therein deserves to be set aside?
8. The case of prosecution is that, on 25.08.2015, in the afternoon, the respondent-Police received an information about the presence of a dead body near V.C. canal, which was closed to Kalenahalli. The police after visiting the spot, taken out the dead body and noticed that it had piercing injuries on the back of the head and stomach and also the legs, hands and neck of the dead body were tied with a rope. Thereafter, on the same day, at about 5.30 p.m., upon an information of one Sri H.Anand Kumar, the Police Officer, Crime No.400/2015 came to be registered in the respondent- Police Station against unknown persons for the offences punishable under Sections 302, 201 of IPC. After investigation, the respondent-Police filed charge sheet against the three accused, including Smt.Mamatha R., the petitioner in Criminal Petition No.7026/2019, for the above said offences.
Crl.R.P.No.206/2018C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 9
9. The summary of the charge sheet is that the deceased was one Sri K.R.Manjunatha. He married accused No.3 Smt.Mamatha R., on 04.03.2009. Out of their marriage, they got a girl child by name Bhandavya. On the date 09.10.2013, deceased K.R.Manjunatha left his house. Thereafter, his whereabouts were not known till 2015. When said K.R.Manjunatha returned back to his house in April 2015, he came to know that his wife Mamatha R., (accused No.3), had married to accused No.1 Manjunath Y.D. @ Sketch Manju @ Manju. The deceased K.R.Manjunatha had requested said accused No.1 to give the custody of his daughter Bhandavya back to him. The accused No.1 and accused No.3 thinking that so long deceased K.R.Manjunatha is alive, they wont have peace in life, hatched a conspiracy to cause his death. Accordingly, accused No.1 engaged accused No.2 to kill K.R.Manjunatha. Accordingly, accused Nos.1 and 2 took the deceased K.R.Manjunatha with them and made him to consume liquor and put him in a car and caused his Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 10 murder by inflicting multiple pierce injuries upon him with a knife and in order to destroy the evidence of the incident, took the dead body in the same car for some more distance and threw it in V.C. canal near Hulikere. Thus, they have committed the alleged offence.
10. Learned counsel for the petitioner in Criminal Revision Petition No.206/2018 and Criminal Petition No.711/2018 in his argument submitted that CW-30 - Smt.Lakshmi, the mother of the deceased, apart from giving the details of the marital life of the deceased with accused No.3, has also stated about the second marriage of accused No.3 with accused No.1 and has specifically expressed her suspicion that accused No.1 and accused No.3 with the help of others, have taken her son some where, killed him and dumped his body in V.C. canal. He further submitted that CW-31 Nataraj, the friend of the deceased also spoken about the marital life of accused No.1 with accused No.3 and the second marriage of accused No.3 with accused No.1. He too Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 11 has expressed his belief that accused No.3 was involved in the death of the deceased.
Learned counsel further submitted that CW-8 Sukanya is the neighbour of accused Nos.1 and 3 and she has also spoken about she seeing accused No.1 and accused No.3 living together as her neighbour as husband and wife.
11. These evidences clearly make out a prima facie case that accused No.3, apart from marrying with accused No.1, has also involved in the commission of the murder of her first husband deceased K.R.Manjunatha. However, the trial Court opining that the offence punishable under Section 494 of IPC cannot be investigated by the police and it could not notice any tangible material to attract Section 120-B of IPC, has allowed the application filed by accused No.3 filed under Section 227 of Cr.P.C., which is erroneous, as such, the Criminal Revision Petition deserves to be allowed. Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 12
He further submitted that during the course of investigation, the Investigating Officer since has not recorded the statement of Bhandavya, the daughter of the deceased and accused No.3, the investigation has not been done properly, as such, further investigation to record the statement of said Bhandavya is required, for which, Criminal Petition No.711/2018 deserves to be allowed.
12. Learned counsel for respondent No.2 in Criminal Revision Petition No.206/2018, Criminal Petition No.711/2018 and for the petitioner in Criminal Petition No.7026/2019 i.e., for accused No.3, in his argument submitted that none of the charge sheet witnesses have stated about the involvement of accused No.3 in the alleged commission of crime. There are no proof for the second marriage between accused Nos.1 and 3. Further stating that if Criminal Revision Petition is allowed, his Criminal Petition No.7026/2019 becomes infructuous, learned counsel prayed for dismissal of Criminal Revision Petition No.206/2018 and Criminal Petition No.711/2018. Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 13
13. Learned High Court Government Pleader who was directed to file his written arguments, has filed his written arguments, wherein he has contended that there are ample materials to prosecute accused No.3 for the offences. There are sufficient materials to show that she had undergone second marriage with accused No.1 and hatched a conspiracy to eliminate her first husband deceased K.R.Manjunatha. It is further stated by the learned High Court Government Pleader that since the State did not challenge the order of the trial Court allowing the IA. filed by accused No.3 under Section 227 of Cr.P.C. and after recording of evidence of few witnesses, it noticed that there are incriminating materials against accused No.3, as such, the prosecution filed an application under Section 319 of Cr.P.C. in the trial Court, upon which, the summons has been ordered against accused No.3. He orally submitted that if the Criminal Revision Petition, which he supports, is allowed, his application under Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 14 Section 319 of Cr.P.C. pending in the trial Court become infructuous.
14. The deceased K.R.Manjunatha married the original accused No.3 Smt.Mamatha R., on 04.03.2009. The couple got a small child born to them out of their wedlock by name Bhandavya and the said child was aged about six years as on the date of the alleged incident. Said K.R.Manjunatha was said to have left his house without intimation to anybody due to the debt incurred for his vices. After lodging the police complaint, said K.R.Manjunatha was said to have traced by the police. His father K.C.Ramu (CW-2) was said to have cleared his debts. CW-2 is also shown to have stated that, at the instance of his second son, K.R.Mahesha (CW-3), the family property was said to be partitioned. The property going to the share of deceased K.R.Manjunatha is shown to have been made in the name of his daughter Bhandavya. According to CW-2, once again on 09.10.2013, his son K.R.Manjunatha was found missing, in which connection, a Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 15 complaint was lodged with the police on 15.11.2013. His wife i.e., Smt.Mamatha R., and their daughter Bhandavya were started living in the house of CW-2. However, later at the instance of maternal uncle of said Mamatha R., the said Mamatha R., (original accused No.3) was shown to have married to accused No.1 Y.D.Manjunatha. Later in April 2015, K.R.Manjunatha, the missing person, was said to have returned to his house and after coming to know that his wife Mamatha R., had married to accused No.1 and was residing with him, he started seeking the custody of his daughter Bhandavya from her. It is in that connection, in order to get rid of K.R.Manjunatha, who was frequently visiting accused Nos.1 and 3 and pestering them to give custody of his daughter Bhandavya, all the three accused, including Mamatha R., hatched a conspiracy and killed K.R.Manjunatha and threw his dead body into V.C. canal.
The father of the deceased i.e., CW-2 K.C.Ramu, brother of the deceased i.e., CW-3 K.R.Mahesha, mother of Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 16 the deceased CW-30 Smt.Lakshmi, are shown to have given their statements before the Investigating Officer on the above lines.
15. Apart from the above witnesses, CW-4 Papanna, CW-5 Thimmegowda and CW-6 Shivanna, are shown to have stated before the Investigating Officer about the second marriage of Mamatha R. (original accused No.3) with accused No.1. CW-8 Sukanya is shown to have stated before the Investigating Officer that accused No.1 and accused No.3 Mamatha R., were residing together as her neighbour.
Apart from these witnesses, CW-22 Nandisha, who is none else than the elder brother of Mamatha R. (accused No.3) is also shown to have stated about they performing the second marriage of Mamatha R. with accused No.1.
16. The charge sheet witnesses in the additional charge sheet CW-42 K.B.Prakash is shown to have given his statement stating that it was him who as a Purohit, Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 17 performed the marriage of accused No.1 and Mamatha R. (accused No.3).
CW-43 S. Siddesh and CW-44 K.B. Kumaraswamy in the additional charge sheet are shown to have given their statement stating that both of them have attended the marriage of Mamatha R., (accused No.3) with accused No.1.
Thus, at this stage, there are ample materials to prosecute original accused No.3 Mamatha R. for the offence punishable under Section 494 of IPC.
The Sessions Judge's Court observing that an offence punishable under Section 494 of IPC cannot be investigated by the police, has proceeded to ignore the ample materials available before it to prosecute accused No.3 Mamatha R., for the alleged offence.
17. Learned counsel for the revision petitioner relying upon the judgment of Hon'ble Apex Court in Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 18 State of Orissa -vs- Sharat Chandra Sahu and another, reported in (1996) 6 SCC 435, submitted that police are not debarred from investigating non-cognizable cases and include them in the charge sheet, more particularly, Section 494 of IPC.
In Sharat Chandra Sahu's case (supra), the police had filed a charge sheet for the offence punishable under Section 498-A of IPC as also under Section 494 of IPC. The respondent No.1 therein filed a petition under Section 482 of Cr.P.C. before the Orissa High Court seeking quashing of the proceedings and charges framed against him. The High Court partly allowed the petition with the finding that since respondent No.2, the wife who had made the complaint in writing to the Women's Commission about respondent No.1 contracting the second marriage, but, not personally herself filed complaint under Section 494 of IPC, on which cognizance could not have been taken by the learned Magistrate in view of provisions contained in Section 198(1) Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 19 of Cr.P.C. Consequently, the charge framed by the learned Magistrate under Section 494 of Cr.P.C. was quashed, but, the charge under Section 498-A of IPC was maintained and the petition under Section 482 of Cr.P.C. to that extent was dismissed. The same was challenged by the State of Orissa before the Hon'ble Apex Court. The Hon'ble Apex Court in Paragraphs-11 and 12 of its judgment observed as below :
" 11. Sub-section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whose case (comprising of cognizable and non-cognizable offences) is to be treated as cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 20
12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub- section (4) provides that even a non-cognizable case shall, in that situation, be treated as cognizable."
With the above observation, the Hon'ble Apex Court allowed the appeal and the impugned judgment and order passed by Orissa High Court in so far as it purports to quash the charge under Section 494 of IPC and the proceedings relating thereto, was set aside.
18. In Ushaben -vs- Kishorbhai Chunilal Talpada and others, reported in (2012) 6 SCC 353, the Hon'ble Apex Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 21 Court was pleased to observe that, where complaint contains allegations of commission of offences both under Section 498-A of IPC, as well as Section 494 of IPC, the Court can take cognizance thereof even on the police report. It further observed that no fetters can be put on powers of police preventing them from investigating the complaint alleging offences both under Section 494 and Section 498-A of IPC.
From the above judgment, it is clear that when a complaint comprises both cognizable and non-cognizable offences, the investigating agency i.e., the police are required to treat all the offences cognizable and proceed to investigate the case and to submit the charge sheet for all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that offences alleged prima facie have been committed.
19. In the instant case also, after recording statements of several of the witnesses, including the one mentioned Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 22 above, the Investigating Officer has rightly come to a conclusion that there are ample materials to file charge sheet against Mamatha R., (original accused No.3) also for the offence punishable under Section 494 of IPC. Hence, the impugned order of the learned Sessions Judge's on the said point appears to be erroneous.
20. With regard to other offences, including the one punishable under Section 302 and Section 120-B of IPC are concerned, no doubt, none of the charge sheet witnesses appears to have alleged any direct overt act against accused No.3 - Mamatha R., however, the very case of the complainant and his family members is that the property that has come to the share of the deceased K.R.Manjunatha in a family partition was made in favour of his daughter Bhandavya as a guardian. The conclusion of the Investigating Officer in Column No.17 of the charge sheet is also that the accused in order to take advantage of the property made in favour of Bhandavya, the daughter of the Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 23 deceased, had not only refused to give custody of said Bhandavya to the deceased, but, also decided to eliminate him so as to retain the property with them. It is attributing with the said mens rea on the part of the accused, the charge sheet has included Section 120-B of IPC also with other offences.
A perusal of the charge sheet papers go to show that CW-30 - Smt.Lakshmi, the mother of the deceased, has in her statement before the Investigating Officer accuses the involvement of her daughter-in-law i.e., Mamatha R., (accused No.3) in the murder of her son K.R.Manjunatha.
21. CW-31 - Nataraja, who is shown to be a friend of deceased K.R.Manjunatha, is shown to have stated before the Investigating Officer that deceased K.R.Manjunatha was telling him about his marital life with Mamatha R., and second marriage of said Mamatha R., with accused No.1 and also he (deceased) demanding the custody of their child Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 24 Bhandavya to him, however, accused No.3 Mamatha R., refusing to hand over the custody of the child to the deceased. He has stated that he believes that accused No.3 Mamatha R., and accused No.1 might have killed the deceased.
As observed above, CW-8 Sukanya is shown to have stated before the Investigating Officer that accused No.1 and accused No.3 were residing as her neighbour as husband and wife. Even the elder brother of Mamatha R., (accused No.3) has also spoken about they performing the second marriage of Mamatha R., with accused No.1.
22. In the supplementary charge sheet filed by the police, several of the charge sheet witnesses, including CW-4 Papanna, CW-5 Thimmegowda and CW-6 Shivanna, are shown to have stated about the marital dispute between the deceased and accused No.3. Among them, CW-4 Papanna Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 25 and CW-5 Thimmegowda are also shown to have conducted a panchayat and advised the parties.
23. The Investigating Officer is said to have collected several of the incriminating materials, including motor vehicles used in the commission of the crime, rope of a larger length, a plastic rope, a knife with iron handle, blood stained car-mat, cell phones, DVRs etc., According to the learned High Court Government Pleader, several of those articles have got relationship with accused No.3-Mamatha R., and it is only during the course of the trial, the conspiracy between the accused can be established by the prosecution.
I do not find any reason to reject the said argument of learned High Court Government Pleader, particularly in the instant case when Mamatha R., (accused No.3) was said to be the wife of deceased K.R.Manjunatha and subsequently married to accused No.1 - Y.D.Manjunatha and accused No.1 and accused No.3 are said to have been refusing to give the Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 26 custody of daughter of the deceased to him only with an intention to retain the property said to be standing in favour of Bhandavya, daughter of deceased and accused No.3. There are all the reasons to believe that there are materials to subject Mamatha R., (accused No.3) also for trial for all the alleged offences in the charge sheet.
24. In Hem Chand -vs- State of Jharkhand, reported in (2008) 5 SCC 113, the Hon'ble Apex Court at Para-9 of its judgment was pleased to observe that, it is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial.
In the instant case also, since it is observed above that there are sufficient materials to proceed with the trial against Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 27 Mamatha R., (original accused No.3), the Sessions Judge's Court was at error in allowing her application filed under Section 227 of Cr.P.C. and discharging her from the alleged offences. As such, the said order deserves to be set aside and her application filed under Section 227 of Cr.P.C. deserved to be dismissed.
25. CW-2 K.C.Ramu, the father of the deceased has filed Criminal Petition No.711/2018, seeking a direction for any other investigating authority to investigate the case in Crime No.400/2015, which is the subject matter in S.C.No.20/2017. As submitted by learned counsel for the petitioner, the only reason for seeking a fresh investigation is for the limited purpose of recording the evidence of Bhandavya, the girl child of the deceased and accused No.3. Even according to the petitioner, the said daughter is aged only about six years. When according to the prosecution, the alleged murder has taken at a place which was away from the home of accused No.3, where the child was residing, the Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 28 said child cannot be expected to speak about the murder of her father.
Regarding the alleged conspiracy, it is not the case of the prosecution that in the presence of said girl Bhandavya, the conspiracy was hatched by the accused. Further more, the said child was only of about 6 years in her age. For all these reasons, the investigation cannot be found fault with and also for the reason of non-recording the statement of Bhandavya, the girl child of the deceased. As such, I do not find any reason for allowing Criminal Petition No.711/2008.
26. The matter was proceeded with in the Sessions Judge's Court in S.C.No.20/2017, where six witnesses from PW-1 to PW-6 were examined on behalf of the prosecution. After recording their evidence, the prosecution has filed an application under Section 319 of Cr.P.C. seeking inclusion of discharged accused No.3 in the case and to take cognizance against her. The Sessions Judge's Court ordered for issuance Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 29 of summons to accused No.3- Mamatha R., on 22.08.2019. It is challenging the said order, said Mamatha R., has filed Criminal Petition No.7026/2019.
27. Learned counsel for the petitioner for Smt.Mamatha R., in the said petition in his argument made a submission that, in case if this Court allows Criminal Revision Petition No.206/2018, then, his Criminal Petition No.7026/2019 becomes infructuous.
Learned High Court Government Pleader for the respondent-State also submitted that if Criminal Revision Petition No.206/2018 is allowed, his application filed under Section 319 of Cr.P.C. in the Sessions Judge's Court becomes infructuous. In view of the fact that the impugned order in Criminal Revision Petition No.206/2018 is now found to be perverse and deserves to be set aside, the said Criminal Revision Petition No.206/2018 deserves to be allowed. Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 30 Consequently, the Criminal Petition No.7026/2019 proves to be devoid of merit and deserves to be dismissed.
28. Accordingly, I proceed to pass the following order:
ORDER [i] Criminal Revision Petition No.206/2018 is allowed. The order dated 04.08.2017, passed by the learned V Addl. District & Sessions Judge, Mandya, in S.C.No.20/2017, in so far as discharging respondent No.2 (accused No.3) Smt.Mamatha R., for the offences punishable under Sections 302, 493, 494, 496, 120-B, 201 read with Section 34 of IPC, stands set aside.
[ii] The application filed by said accused No.3 Smt.Mamatha R., under Section 227 of Cr.P.C.
stands dismissed.
Crl.R.P.No.206/2018 C/w. Crl.P.No.711/2018 & Crl.P.No.7026/2019 31 [iii] The Criminal Petition No.711/2018 and Criminal Petition No.7026/2019 stands dismissed.
In view of disposal of the main petitions, the pending IA.No.3/2018 in Crl.RP 206/2018 does not survive for consideration.
Registry to transmit a copy of this order to both the trial Court as also the Sessions Judge's Court along with their respective records forthwith.
Sd/-
JUDGE bk/