Karnataka High Court
Venkatesh vs State By Siddapura Police on 31 July, 2012
Equivalent citations: 2012 (4) AIR KAR R 232, (2013) 121 ALLINDCAS 938 (KAR), (2012) 6 KANT LJ 244, (2012) 4 KCCR 2954
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31st DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.1280/2011
BETWEEN:
Venkatesh,
S/o. late Venkateshappa,
Aged about 35 years,
R/at No.2/1, 3rd Cross,
4th Main, Sampangi Ramanagar,
Bangalore - 560 027.
... PETITIONER
(By Sri Ravi B. Naik, Sr. Advocate for
M/s. H.V. Subramanya & Associates)
AND:
State by Siddapura Police.
... RESPONDENT
(By Sri S. Shankarappa, Adv.)
This Crl.R.P. is filed under Section 397 r/w 401
Cr.P.C. praying to set aside the order passed by the FTC-
VI, Bangalore in S.C.No.801/2010 dated 10.12.2010 for
the offence punishable under Ss.364, 365, 302 and r/w
120-B and consequently the petitioner may be discharged
from the case.
This Crl.R.P. coming on for hearing this day, the
Court made the following:
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ORDER
This petition is directed against an order dated 10.12.2010 passed in S.C.No.801/2010 by the learned Fast Tract Judge - VI, Bangalore City, holding that there are materials against accused No.9/petitioner herein, to proceed with the matter by framing charges for the offences punishable u/s 364, 365, 302, 201 and 120-B IPC.
2. Material facts of the case are:
On 8.10.2009, one Smt. Shilpa Krishna, lodged a complaint at Siddapura Police Station, alleging that, her mother Smt. Padma Krishna W/o. Sri Krishna Kutti, is missing. The police registered a woman missing case in Crime No.319/2009. On 13.10.2009, police received a further complaint from Smt. Shilpa Krishna/CW-1 and registered a case in Crime No.324/2009 for the offences punishable under Ss. 364, 365 R/w 34 IPC against (1) Sunil, (2) Gopi, (3) Shabari, (4) Manju and others, on the allegation that they have kidnapped Smt. Padma Krishna.
During the course of investigation, on 17.10.2009, police 3 apprehended the said four persons and four others, recorded their voluntary statements and recovered one highly mutilated dead body and also some articles belonging to Padma Krishna. Police recorded further statement of CW-1. Statements of alleged eye witnesses CW-16 K. Narayanappa and CW-17 Munikrishna, was recorded on 17.10.2009. Further statements of CWs 16 and 17 was recorded on 16.11.2009. Statement of another alleged eyewitness CW-30 Venugopal was recorded on 21.12.2009. On the basis of the further statements dated 16.11.2009 of CWs-16 and 17 and the statement of CW-30, which implicated the petitioner in the crime, petitioner was arrested on 2.1.2010 and was shown as accused No.9 in the case.
3. On being charge sheeted for the aforesaid offences, on the point of jurisdiction, the case was committed to the Court of Session, wherein, it was registered as S.C.No.801/2010. The case is now pending in the Fast Track Court-VI, Bangalore City. Petitioner made his appearance and argued through his learned 4 Advocate, for discharge from the case, on the ground that, there are no sufficient material collected by the prosecution and placed on record, to proceed against him for the alleged offences. Learned Trial Judge having considered the record and finding that the eye witnesses have stated about the overt acts of accused No.9, by observing that, prosecution has placed sufficient materials to proceed against accused No.9, decided to frame the charges. Feeling aggrieved, accused No.9 has filed this petition Under Ss.397 and 401 of Cr.P.C.
4. Sri Ravi B. Naik, learned Senior Advocate, after taking me through the charge sheet, statements of CWs- 16, 17 and 30 and the order dated 10.12.2010, contended as follows:
(i) Further statements of CWs-16 and 17 are highly doubtful, since, they did not make a whisper about the presence of accused No.9 in the scene of occurrence when they made the statements on 17.10.2009 and that they have made improvements on 16.11.2009.5
(ii) The statement of CW-30, who gave the statement on 21.12.2009, after a long gap of the alleged occurrence being doubtful; cannot be accepted.
(iii) CWs-16, 17 and 30 are not eye witnesses, since they did not actually see occurrence by being at the very scene of occurrence of the crime and only found accused No.9 outside the farm of Krishna Kutti.
(iv) The phone call details collected by the Investigation Agency to prove that there was conversation between accused No.9 and the other accused in the case cannot be considered as incriminating material to rope in the petitioner with the alleged crime, since the exact conversation is not extracted and produced before the Court. He submitted that, petitioner owns agricultural land and has business and as such, movement of the petitioner on the said road is not incriminating and that, police have falsely implicated the petitioner.
(v) Learned Trial Judge has failed to sift and weigh the materials, to find out, whether prima facie case has been made out. He submitted that the materials produced, at the most having given raise to mere suspicion and not a grave suspicion and there being no prima facie case, learned Judge ought to have discharged accused No.9.
Reliance was placed on the decisions in the cases of (1) Dilawar Balu Kurane Vs. State of Maharashtra, reported in (2002) 2 SCC 135 and (2) Yogesh Alias Sachin Jagdish 6 Joshi Vs. State of Maharashtra, reported in (2008) 10 SCC
394.
5. Sri S.Shankarappa, learned Advocate appearing for the respondent, on the other hand contended that, in view of the categorical statements made by CWs-16, 17 and 30 and the phone call details of the petitioner and other accused persons collected by the Investigating Agency, there are sufficient materials and a prima facie case against the petitioner, to frame the charges. He submitted that, at the stage of framing of charges, what is required to be considered is, whether the materials before the Court disclose a strong suspicion against an accused and that, the Court is required to evaluate the materials and documents on record with a view to finding out, if, the facts emerging there from, taken at their face value, disclose the existence of the ingredients constituting the alleged offence. He further submitted that the court at this stage of the matter should only sift the evidence for the limited purpose and is not required to undertake an elaborate enquiry to arrive at the 7 conclusion, that it will not lead to conviction. He submitted that there is nothing illegal with the impugned order warranting interference in the exercise of revision jurisdiction.
6. Keeping in view the rival contentions and having perused the charge sheet and the materials there under, the question that arises for determination in this petition is, whether the petitioner has made out a case for discharge Under S. 227 Cr.P.C.?
7. The provision concerning the framing of a charge can be found in S.228 Cr.P.C. The said provision is connected with S.227 Cr.P.C. The said sections being material, read as follows:
"227 Discharge .- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge .- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -8
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the First Class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the First Class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report.
(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause
(b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried".
8. The scope and ambit of S.227 Cr.P.C. was considered by the Apex Court, in the case of Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya, reported in 1991 SCC (Cri) 47 and it has been held as follows:
"6. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be 9 limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for his limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar Vs. Ramesh Singh this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal this Court after considering the scope of Section 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under:10
1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.
2) Whether 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.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4) That in exercising his jurisdiction under Section 227 of the Code 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, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial"
Again in Supdt. & remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the 11 offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well settled that at the Sections 227 - 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the 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."
9. In the case of Sajjan Kumar Vs. Central Bureau of Investigation, reported in (2010) 9 SCC 368, Apex Court, with regard to the exercise of jurisdiction and the scope of Ss.227 and 228 of Cr.P.C., the principles which have emerged has been indicated as follows:
i) The Judge while considering the question of framing the charges under Section 227 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 12 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, if can frame the 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 there from taken at their face value disclose 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 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.
10. In the instant case, the materials relied by the respondent against the petitioner are the following: 13
(i) Further statement dated 16.11.2009 of CW-16 K. Narayanappa, wherein he has stated that, on 8.10.2009, at about 3.00 p.m., when himself and Muni Krisnha (CW-
17) while grazing the cows were speaking to Ramesh (A-5) and they saw two cars coming to the farm of Krishna Kutti and at 3.30 p.m., Venkatesh (A-9), known to them and to the children of Krishna Kutti, came in Honda Activa vehicle, stood on the road and was watching people from entering the farm. At about 7.30 p.m., when the other accused left the farm along with the dead body of Smt Padma Krishna in the cars brought by them, Venkatesh (A-9) also left the place, followed the cars in his Active Honda vehicle and that, he has also conspired with the accused.
(ii) Further statement dated 16.11.2009 of CW-17 Muni Krishna, identical in all respects to the further statement of CW.16.
(iii) Statement dated 21.12.2009 of CW-30 Venugopal, which is to the effect that, he knows the family members of Krishna Kutti, Venkatesh (A-9) and that, on 8.10.2009, at about 3.00 p.m., he having seen. Sunil, grand son of Krishna Kutti, driving Santro Car No.KA-01-MA-6141 and Shabari, driving Swift Car No. KA-01-MC-1345 and the children of Krishna Kutti i.e., Manju, Gopi and wife of Krishna Kutti, Smt. Padma Krishna, being seated in the car and the two cars proceeding towards farm of Krishna Kutti.14
He has stated that at about 4.30 p.m., when he was passing through Huskur village to go to Narayan Ghatta, in front of Krishna Kutti's farm, Venkatesh (A-9), standing on the road by parking Honda Activa vehicle. He has stated that, after seeing Venkatesh, he stopped and spoke to Venkatesh, who told him about the dispute between Padma Krishna and children of Krishna Kutti and the fact of Shabari, Gopi, Manju, Sunil and Padma Krishna having gone inside the farm in two cars and until the dispute is settled, he will be waiting therein. He has stated that, at about 7.30 p.m., while returning from Narayana Ghatta, in front of Krishna Kutti farm, at Huskur, he saw Manju and Gopi going in Santro Car No. KA-01-MA-6141 and Shabari, Ramesh, Sunil with a gunny bag, going in Swift Car No. KA-01-MC-1345 and Venkatesh being scary, following the cars, after telling that the property dispute having permanently came to an end. He has stated that, later he came to know Padma Krishna having been kidnapped, killed and dead body having been thrown into a canal near Srirangapatna. He has stated about the presence of Venkatesh (A-9) at the relevant point of time near the farm of Krishna Kutti and Venkatesh watching and preventing persons from entering the farm when the crime in question was allegedly committed.
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(iv) Call details of mobile phone Nos. 9972969999, 9880254447 and 9448205005 of A-1, A-3 and A-9.
(v) Discoveries made on the basis of information furnished by the accused.
11. The statements of CWs-16, 17 and 30 cannot be ignored lightly. The credibility or otherwise of the said statements and documents produced is a matter for evaluation, after trial. The evidence of the telephone calls is admissible under Ss.8 and 27 of the Evidence Act. The phone call details show that the accused were in touch with each other, on 8.10.2009, at the relevant point of time. The presence of the petitioner in the area can be found from the phone call details collected by the Investigating Agency. A close association is very important material even in the case of circumstantial evidence. The details of the calls made by the accused to one another is a relevant aspect. No doubt, learned Trial Judge while passing the impugned order, has not made any reference to the mobile phone call details and the discovery made. 16
12. No doubt, learned Trial Judge has not assigned detailed reasons, while passing the impugned order. Ss.227 and 228 Cr.P.C. are interconnected. S.228 Cr.P.C. deals with framing of the charge. S.227 provides for recording of reasons for discharging an accused. Recording of reasons by the Judge while discharging an accused is essential, in order to inform the prosecution, as to what went wrong with the investigation and if the matter is carried to the higher court, to make it know, as to why the order of discharge was passed. At the stage of framing of the charge, the consideration being limited to sift the evidence, to decide, if the facts emerging from the record constitute the offence which the accused is charged, there need not be a detailed order, as it may cause prejudice to the accused, at the later stage of the proceedings. What the Court has to see, while considering the question of framing charge is, whether the material brought on record would reasonably connect the accused with the crime. At the stage of framing of charge, probative value of the materials on record cannot be gone 17 into; the materials brought on record by the prosecution has to be accepted as true, at that stage.
13. In the case of Dilawar Balu Kurane (Supra), Apex Court, having noticed the facts of the case, viz., that, in the alleged trap no police agency was involved; the FIR was lodged after seven days ; no incriminating articles was found in the possession of the accused and statements of witnesses were recorded by the police after 10 months of the occurrence, opined that the prosecution has not been able to throw any suspicion against the accused and since, no prima facie case was made out, discharged the accused. The facts situation herein being otherwise, noticed supra, the decision being distinguishable, has no application to the instant case.
14. In the case of Yogesh (Supra), accused Nos.1, 2, 4, 11 and 12 had stood discharged from the charges framed against them under Ss.120 and 302 IPC on the ground that there was no material on record to show that they had hatched a conspiracy to commit the murder. The 18 stand of the prosecution against the appellant-Yogesh, that he had entered into conspiracy with other accused was not accepted, in view of the other accused having been discharged on the same set of and accusations. The case has been decided on the facts as appearing therein and has no application to the facts of the instant case.
15. In the instant case, in the light of the materials placed on record by the prosecution, briefly noticed supra, I am of the view that, it can not be concluded that the order passed by the learned Trial judge is without any material support and is bad in law. Since, a strong suspicion about the involvement of the petitioner in the crime in question appears from the record, learned Trial judge is justified in not discharging accused No.9.
16. However, it is clarified that the observations made herein are limited for consideration of prima facie case and availability of sufficient material for framing of the charge. The finding and observations shall not be construed as an expression of opinion on the merits of 19 claim made by both the parties. It is for the prosecution to establish, in accordance with law, its charge against the accused. Learned Trial Judge is at liberty to analyze and arrive at an appropriate conclusion after conclusion of the trial, uninfluenced by the observations made herein above.
In the result, the Criminal Revision Petition is dismissed.
Sd/-
JUDGE Ksj/-