Karnataka High Court
Kum.Shubha @ Shubha Shankar vs State Of Karnataka on 27 October, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27*" DAY OF OCTOBER, 2009 BEFORE THE HON'BLE MR. JUSTICE IAWAD RA-HIMV ° ' CRL.R.P. NO. 272 GF"'2--£-109 H . BETWEEN: - KUMSHUBHA @ SHUBHA .SHA:\n<_AR D/O SHANKARANARAYAN-.T_¥L " % PRESENTLY R/AT NO 86, N'<:_ E F LAYOUT " SANJAYNAGAR _ BANGALORE-94 ' ' PETITIONER (BY SRI C.\/_._NAGES.H_ASSOC1AT'ES','~~;5g[T)--'i/.) AND: I A * STATE- OF ~KAVR'!5éATAVK_A"~._V _ » BY TH E._STi.A:rVIOr§a H.OUjSE"OI'FFI;CER v3:vEKNA'«f3AR*POLICE. STATION B;ANGALOREe,VO'4_ I ' I I _ RESPONDENT (BYSRIITRAIVA SUB»_R?-\.MA'NYA BHAT, ADv.,) >i<>i<>i< THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE '=.A<DVOCATEff?OR. THE A?ETITIONER PRAYING THAT THIS PHOAIETLEYTCVOURT" MAY BE PLEASED TO CALL FOR THE RECORDS 'I!\3_.S.C.£\10.314/2008 PRESENTLY PENDING ON THE"'<--.FIl...__E' THE ADDLSESSIONS JUDGE FAST TRACK ',COURT-X'g_AND SET ASIDE THE ORDER DATEO:2.3.2OO9 _PASSED*iN THE CASE ON THE APPLICATION FILED BY THE "«_PET1"FIONER U/S216 OF THE CR.P.C.AND FURTHER BE PLEASED TO GRANT THE SAID APPLICATION ON SUCH TERMS AND CONTITIONS AS THIS HONBLE COURT DEEMS -FIT TO IMPOSE, UNDER THE CIRCUMSTANCES OF THE CASE. $4': I.) THIS APPLICATION IS COMING ON FOR ADMISSION ON THIS DAY, THE COURT MADE THE FOE_LOWING:~ ORDER
Against the order dated 22»O3»~2009 on th"e..Vf'iie?.,of learned Judge, Fast Track Court--X, Bangaiore__.in""S'iCVj;~--:_l§io,__"_ 314/2004, the 4"' Accused is in revision. I I
2. The iearned Government "F«'Ee_a'der;i .ii:aIs_ notice for the respondent -- State. :4By1'co.nsent_yAof"vbotIh:.:.thé"'~_ iearned counsel the matter is if-iinially heard mreritis and disposed off' by this order".~.__
3. """ "Th_ef;-girie§g<;anc'e.Vgo--f'the""pet'itioner is that she came to be arrivaigiiwged' accused in a case relating to homicidaVi'«~..jAAgath' -ofI'..o:neu7B.V.Girish allegedly caused on as a'AV'res.u..i.ti'of' injuries suffered by him due to I"c:rim'i"r'.~ai_ v.i4ole_ric:e on the night of o3»~:2-2003. Upon lodging of t'i1e"complIaijnt' lay the Complainant the case was registered and was ivhvestigated. During the course of investigation the I riinvestigatin Officer came across rnateriai indicating that ._ _ R _ 9 V'-____"'afte:r commission of crime as aileged each one of the flaccused played prominent role. It aiso showed each of the accused had connived and conspired with each other to secret the evidence relating to the crime. Conspiracy was the basis for indicting each one of them for the offence punishabie under Section 302 IPC and Section 201 o"f=--.»IPC with aid of an offence punishabie under SeCtiOno.._i'?;VO'*asBVs.:oAfx IPC.
4. There is no need at tliilsl'j'r:nct.ure.toC_refe--r:
detaii to the piathora of' rnatieriafzcoliecte*d.
investigation, which the prosect-.i.ti"on wantsto:'usegto'"indict V the accused. At this*ju.nctu~is*'e';'in Vt'hi.;_3 peAtiti'on"V4what is required to be considered isAivhetl7ier_:fraini"ri'g of charge by the learn'ecl'"t-rialJudge is-.co--rrect"'in--'ali respects and whether any ame"ndin_ent_to:'V"tshieqchiaggrg.e is required as is sought by the revision'F3«etitioner.Ag if As from the perusal of the record V.'-..ga'c.cu'sed moved an application before the learned trial tjudgve Section 216 Cr.P.C. contending that there [is no materia! collected during investigation which even ifrerfnotrely shows her part in the aileged conspiracy for the _"..clc'--pri'ncipai offence of murder aileged to have been committed for other offences. She has also questioned the 7'.
M' "K sufficiency of material so far as charge for the offence punishable under Section 201 IPC is concerned.
6. The State has opposed the apjp~iic_"a_t'i'On contending that the trial Court has framed.-A4":the:Tc'h'airge.é' against the accused, which is supipo-rted-'_4'oi'n record.
7. Upon contest of trial Judge considering the accused No.4 and the objections raised._Vl7'Yii\\mA, heid that the charge as and needs no amendment ogrtmateiriali on record brings out prima faiciey t.ijVQ.:4_'Qfferi'ce'punishable under Section 302 readlwith Section 261 IPC. Being of that';\/'iV'e':/_\f thnei-.l_ea'r'nedV' trial Judge has, by the impugned igomgér, quite' elaborate, dismissed the application A"m_o*;ied No.4. Reference has been made in the"'impi3'gn.edA order to several decisions of the Apex Court found-'itin Para--13 of the impugned order.
2, "7 f Q 3 J '
8. The learned trial Judge has referred to the materiai brought on record through the charge sheet against the accused No.4, which reads thus:
"It is to be noted that, the specific charge sheet is filed by the State under Sectiobf-.._f.._ 120(8) r/w.302 of IPC and 302 of IPC aga.i,n__st, " * accused No.1 to 4 and u/s.201 of IPC ag-a__inst'w.'ff"~. 'V' accused No.4. The order sheet 'dated-V. L" 'A 15/12/2004 discloses and readsias unu'e'r':'*- ' "Heard both the sides rega'rdirigtcharge."'V:"*~..
The learned counsel for accus_ed--_ No.2_i;to*4* , have submitted that, tliey-._,have'v.no argum{en.t.,,, regarding framing of charges, but 'the'iearn"ed counsel for accused i\lo.1_____h-as 'submitted that there are no materiaisi to-.j,sh'o-w that" the accused persons have,c.rinjmal'iy[V"iconspired to commit the offences -i-alleged a~ga'ivn;st [accused No.1 and that no test»id'entifi'r:atiorn,,pa"rade was conducted ":<i_,ril?e the ,ar:€:used' [persofns are not l<r'i_,own. p'erso_n"s, t'o_'the. witnesses and more over, the conte,nts,_off,gthe rriessage passed on through.mobilefn_o't.._known and more over, there ia«re=no -ma,te'ri.aVis to show that accused ,i\lo.1. hadglove affairs with accused No.4. ._f'The_,refore, the-. .... learned counsel for accused :\.io}'1',h_as._,_prayed for discharging the accused.
_ .l the other hand, the learned "spi.Publjic5'Prosecutor has brought to the notice "«of the-.C'ourt each and every circumstance that has'; been relied upon by the prosecution . including the materials placed before the court _ "by the prosecution and has shown to the court
-that sufficient rnateriais have been placed before the Court to establish the prosecution case against the accused persons.
%V~----x £2 WK (3
3. IN this connection, I have gone through the entire materials placed before the Court by the prosecution carefulty not oniy the statement of the prosecution witnesses recorded during the course of the , investigation, but aiso the materials piace'd""'._"X'.,, before the Court regarding the summary of;'t'he[j~..__' 5 ;_. call between accused No.4, accused accused No.3 and accused No.2 .thro'u_gh--.,:' . mobile phones right from -JU3/1,2/;2.0Q3"i--..t,oK, o4/12/2003 just there days priofi' xto' aiieged incident and after t'he<.ehgag'e_me,nt, "
ceremony between accused No.21 an.d**the deceased Sri.B.V.Girish_,"*~.., inciudingg summary calls made i:3y"'a_c'ciised 'No.i1'ar'i3d accused No.4 right.from,.G2,!i2,/2003 onwards. On meticulous scrutijny of the ~e_n.ti"re, materials placed before the court byfthe_'pro.se'cution, it will be prima fac,i.e_'evident 'that'~~..':vhere are sufficient _gr:Qu..nds;_'to V pr.oceedf"--agaii'ist accused No.1 for ithefioffencesi_aEleg_ed 'gigai-n'St him. At the same"~._ti'r'ne', "~pei'tlf'i€flt_'tO note, the criminal,c'o.n;spiracy.,'uv/_s._1'2'€)(Bj IPC has to be estab'ivish'e.d by-i:.3ithe.,p-rosecuwti-on from the facts and surrou.nd.,in'g% Circ"L3.ij_1Sta'nCeS of the case and not by ' direct. 'r»eyi..den_ce as the criminai conspiracy w_iii'-«b'e_wi.thin the knowledge of the conspiratovrs. -_ '.1-towlever, in view of the inatyeriais~on"record placed by the prosecution ._'"'b.efo're,,ythe C'ou.rt.and since there are sufficient _ "gro'u:'ndVt_o proceed not only against accused »NO._._1*, but' aiso against other accused persons, Igifinfd-«.,nojustifiabfe grounds in the argument of "the learned counsel for the accused NO.1 to '~..dis_ch'a,rg'e accused No.1 for the offences a:.!eg_ed against him and as such, the prayer of theiearned counsel for the accused No.1 to Vidischarge accused No.1 is hereby rejected and
-posted the matter for recording charge of accused NO.1 to 4".
This wiil goes to show that, before framing the charge by the court, the court has <?ri'%i3 given sufficient opportunity to ali the accused to address the arguments and thereafter, by passing its order on 15/12/2004 it was ordered and posted the matter to frame the charge. It is clear that, thereafter the charge was framed , by the court on 12/1/2005 and order sheetV"=_"g'»,, dated 12/1/2005 clearly speaks that cha'rge.fg..._l' was framed against the accused on 12/1/'f2_'0,5_' and the charge reads as under:
"That, you accused l\:i_o.1,...4,to 24/11/2003 to 03/12/2003 at".Ban_gaiore ._Ci~ty,, " "
agreed to do an iil,e'g.a_l act. 'to murder Sri.B.V.Girish by iiiegai"~~..meahs__ and pursuance of the said», "agreerne_nt" did intentionaiiy caused. the dreathf-oft"-Sri.B.V;Giris'h and thereby committed -an,offe.nc,e"i.punishable u/s.120(b) r/w Sec.30_2'ofa..I.§¥'R;C._'anti., within the cognizance of the C,od,r_t'-of'Sessi'o'nsV."5I_---- That acct|se_d"No_.'1._t0iron or about 3"' day'of'_{)ece'mbe.r-~__20.03'_at about 9:50 pm near~Air,,\z*.ie%:%3{ Poi'n«t,'f'*i<o,.ra'mangaia Ring Road, Bar.'g'avloréj; Cityg.ain'.pu.rsua'nce""of their criminal coinspiracy"i.di_d con1rriit.,._'Tlu;'der of Sri.B.V.Girish by "'.intentio_nal'l"y_ caLis.in"g__ his death with steel rod Wand thei'aeby"»--._committed an offence punishablei u/s.3'02'«..r/w Sec. 120(b) of I.P.C and within the cognizance of the Court of ,_':'E3.essVions. .....
-you accused No.4 on or about 3"
Tof December 2003 at Bangaiore City, "knowing dr having reason to believe that the ""«offe__'nce«-'of murder of Sri.B.\/.Girish committed punishable with imprisonment for iife or death . did"i-cause certain evidence of the said offence , "to disappear by not informing that fact either to the family members of deceased Sri.B.V.Girish or to the Medical Officer, Manipal Hospital, Bangaiore, with an intention to screening the offence of murder committed by accused i\los.1 to 3 including yourseif in order TE 5&1 i' M to escape from the legal punishment and thereby committed an offence punishable u/s. 201 of IPC and within the cognizance of the Court of Sessions."
On that basis the iearned triai Judge concludes t_h'at«'fra_ijri'il'n__g of charge by the trial Court against the accu.se_d=.VVNo..:4 based on sufficient material and the['ord:e.4rlAcjia"t--e<:i4_14.-4i--2'--.2dQ;<li' is just and proper.
9. I have peru.-sed assig.ne.d§ by the learned trial }udge in the 'keeping in mind the grounds Ireyiision petitioner (accused ..,,consid_:erati'on of the materials placed bvefovre:'i'ri'e:»;'ilI§:.;that the charge framed against ' offence punishable under Section 126;«5§aIPCVV;' -Ste'-;t'io.n'302 r/w 120-5 IPC and Section ._2_O1 ,_1__'I'5*«C fuil""sup.povrt from the material collected during Viigtheil'inye'stigat.ion._ forming part of the charge sheet. The learned tria'li'j_Vjsudge has assigned sufficient reasons for 'framing. each of the charges referred to above and has A rejected the application filed under Section 216 as the charges so framed need no alteration or uiiuamendment. Therefore, the order impugned passed by the "4.
/.
9 learned trial Judge dismissing the application under Section 216 Cr.P.C. is confirmed.
10. However, the grievance of the revision pre'tiiti'o.n"er that so far as the charge under Section concerned, it is not clear, cannot»b'e-ignored,'"i*§Therefo,re',., if there is no need to dwell upon the frarriing of charge, but we have-.,to ehxaminge~.w'h.e'ther":the" V charge framed for the offence p-u--n:i.s_ha'b-|_e_ underv..Se--cEtion 201 IPC is in conformity and Sterrrisofthe=provi.sions of Section 211 Cr.P.C. For::cia_rity{:"Vi't':'woui.ci"'~Vl3e._proper to extract the relevant prosri'si'orn,s::,r-V-which_g:rea~d,s'~-thus:__ t "(§onterii3v,0f _ ' (1) 'Every ch_ar*ge this Code shall state th_e offence wi'l;h whwich the accused is charged. A th:e.l_aw which creates the offence gives sfpeicific name, the offence may be A ...,4_fdescri:b:edfV.in the charge by that name only. S S' If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
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11. Keeping in mind the provisions of Section 211 Cr.P.C. I have examined the charge framed. Charge.._E_¥o.1 is for the offence punishable under Section 120-8 learned trial Judge has used the words "agreed illegal act to murder Sri B. V. Gr'-rish. byi ihea.ns, if and in pursuance of the said iagiteeinehtyi' ..,, framing the charge for the offeri,c'e~._puni'shab!eAVu.nd"eVr""S'ection " V 120(8) read with Sectioh 30?:;iP_C.'"'-a_Sectioni.150-8 IPC eng rafts in itseif the word' fiattgr conspiracy' which is a Therefore, the word "shio:u|,d'H'have been used in terms of IPC. Accordingly, the firstichargge rewording.
'j1'.?,._.Sirri'i»EaV_tiy'; forvthe offence punishable under {PC framing the charge against the freyis'i_on"'o:eti2tio.iVi~e:r (accused No.4), the learned trial Eudge ' _ has "o.5ed__"tiie~"'"words .. cause certain evidence of the offehce to disappear by not informing that fact to the family members of the deceased Sri if Girish or to the Medical Officer, Manipal Hospital, l' .. .."To frame the charge for the offence punishable under 5977/ Section 261 IPC it would be necessary to inform the accused that 'knowing or having reason to believe that an offence has been committed, caused any evidence of the commission of that offence to disappear, with.._the intention of screening the offender punishment, or with that intention information respecting the offence' which believes to be false'. It is ggevident from they.Aal.!e'gatio--n:s'~_ against her she is alleged to supp'ress~e_d_: £iieiiia¢t of if Telephonic and other ~oomrr:'£inicatio'i2.s between them. Hence, such particulars wou-id r1rece_g.s._s'o.ryV." 13; """ "r*"i7a{<"i;ngfl':'fin-to'-.gconsid'eration all the attending circumstances,'factsannd._con'ten'tions urged by both sides, I am satisfiewdvthatg'thoAu.g'h«.i."-the revision petitioner (accused "V..P~l'o.4..)_:'3"hasAV'been yii'ellv--..i.nformed of the charge against her for llatghelio'ffen.,cei ivpiuinirshable under Section 201 IPC apart from othe?r"'charg'eS_, iivhich is based on record, yet to prevent any 'contra co"n«,_teritions, it would be appropriate to direct the trial recast the charge/ re--word the charge, keeping the ingredients of Section 120-8 and 201 IPC in fterms of Section 211 Cr.P.C. To this limited extent the , charge could be treated as set aside, making it clear that no alteration or amendment of charge is necessary.
15. The triai Court is therefore, directed to reframe the charge keeping in mind the mandatory requiremeiit of Section 211 Cr.P.C. as expeditiotisiy as possibice...'a_nd__' also clarified that it wiii not amount tow__aiterai_ti.onntort' amendment.
14. The revision petition is