IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.490/2019 BETWEEN:
DHIRAN @ DHIRAN KUMAR RAO, S/O DURYODHAN RAO, AGED ABOUT 30 YEARS, R/AT NO.8, NGEF, BEHIND KRISHNAIAHNA PALYA, BENGALURU – 560 038.
PERMANENT ADDRESS; PATTAMUNDAI VILLAGE AND POST, KENDRAPADA DISTRICT, ORISSA STATE.
...PETITIONER (BY SRI.D.MOHAN KUMAR, ADVOCATE FOR SMT.RATTIHALLI GEETA VEERANNA, ADVOCATE) AND:
THE STATE OF KARNATAKA, HAL POLICE STATION, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001.
(BY SRI.M.DIWAKAR MADDUR, HCGP) …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER IN S.C.NO.571/2015 REGISTERED BY THE RESPONDENT POLICE AGAINST THE PETITIONER FOR THE OFFENCE P/U/S 302, 201 AND 149 OF IPC PENDING ON THE FILE OF LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner - accused No.6 challenging the legality and correctness of the order passed by the 66th Addl. City Civil & Sessions Judge, Bengaluru in S.C.No.571/2015 dated 16.02.2019.
2. I have heard the learned counsel for the petitioner - accused No.6 and learned Government Pleader for respondent - State.
3. Though this case is listed for orders, with the consent of the learned counsel for both parties, the same is taken up for final disposal.
4. The factual matrix of the case as per the prosecution is that, deceased Bhagavath Mallik was residing in the house of accused No.1 and had stolen money from accused Nos.1 to 4. On 16.05.2014, accused Nos.1 to 4 brought the said deceased Bhagavath Malik to home who was on the way to railway station after stealing money. They assaulted him with PVC pipe. Due to the said assault and injuries he died. Thereafter, accused Nos.2 to 4 absconded. Accused No.1 in collusion with accused No.5 cut the dead body into pieces and bagged the same in a plastic bag and placed into a ragxin bag in order to screen the offence and thrown the dead body in the forest near Pathnur. It is further alleged that in order to transport the pieces of the dead body accused No.1 requested accused No.6 to give his motor bike bearing registration No.KA-51/R-6935. Accused No.6 knowing that this vehicle is used for transportation of the dead body he handed over the said vehicle and helped accused No.1. On the basis of the said material, charge sheet has been layed against the accused persons. It is further submitted that after further investigation conducted in respect of accused No.6 and it was found that he was also involved in the alleged offence and as such, additional charge sheet came to be filed. The Court below secured the presence of the accused and at that time, the accused filed the application under Section 227 of Cr.P.C. seeking for discharge. The trial Court after hearing both the sides, dismissed the application. Challenging the same, the petitioner - accused No.6 is before this Court.
5. It is the submission of the learned counsel for the petitioner – accused No.6 is that, he is innocent and he is not involved in the alleged offence. Accused No.6 has been apprehended on the ground that he is involved in the said case only on the basis of the voluntary statement sought to have been made by accused No.1. The said submission of accused No.1 is hit by Sections 25 and 26 of the Evidence Act. It is the further submission that the voluntary statement of accused Nos.1 and 6 cannot be used as substantive evidence and there is no connecting link to show that accused No.6 had involved in the offence and hence, he has given his motorbike with an intention to screen the offence. It is his further submission that only because without his knowledge, the motorbike has been used by accused No.1. Under such circumstances, the accused No.6 - petitioner cannot be charge sheeted for the said offence. It is his further submission that there is abuse of the process of the law by making accused No.6 as an accused in this case. When the first charge sheet came to be filed, at that time accused No.6 was not shown as accused and subsequently, only after filing the additional charge sheet, the name of accused No.6 has been shown. On these grounds, he prayed to discharge the petitioner – accused No.6 by allowing the petition.
6. Learned Government Pleader vehemently argued and submitted that the voluntary statement of accused No.4 has been recorded on 08.06.2014. In his voluntary statement he has clearly stated that after committing the alleged offence, they have used Hero Honda Splendor motorbike belonging to accused No.6 for disposal of the dead body. Even the voluntary statements of other accused persons also goes to show that the accused No.6 knowing fully well that the accused persons were intending to transport the dead body have used the motorbike in the crime for screening the offence. It is his further submission that accused No.6 is involved in a serious offence which is punishable with death or imprisonment for life. Looking the same in that angle, there is ample material to convict the accused. The trial Court after taking into consideration the above said facts and circumstances has rightly dismissed the application. Hence, he prays to dismiss the petition.
7. I have carefully and cautiously considered the submissions of the learned counsel for the parties and gone through the materials available during the course of arguments.
8. It is well settled proposition of law that the Court is having power to find out as to whether prima facie case has been made out as against the accused or not. The test to determine the prima facie case would naturally depend upon the facts of each case and no straight jacket formula or universal law can be made in this behalf. In the case of UNION OF INDIA Vs. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979) 3 SCC 4 at paragraph No.10 it has been observed as under:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(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) 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.
(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 produced 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 which under the present Code is a senior and experienced 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 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 weigh the evidence as if he was conducting a trial.”
On reading of the above citation, it makes it clear that the material placed before the Court discloses a suspicion against the accused other than the grave suspicion, under such circumstances, the Court will be fully justified in discharging the accused. If the material placed before the Court discloses grave suspicion then, the Court will be fully justified in framing the charge sheet.
9. Keeping in view the above said proposition of law and if entire material if it is looked into, it indicates that only on the voluntary statement of accused No.1 and other accused persons, accused No.6 has been inculcated in this case. It is well settled proposition of law that the voluntary statement of the accused persons can be used only for the purpose of the recovery of any incriminating article as contemplated under Section 27 of the Evidence Act and if at all, any voluntary statement is there, then that is hit by Sections 25 and 26 of the Evidence Act and such contention or voluntary statement is not admissible. Even the said principle is not applicable to the voluntary statement of accused No.6 and no where, the material produced discloses the fact that accused No.6 – petitioner herein was having the knowledge about the commission of the offence. They have disclosed that they were intending to carry the dead body to screen the offence. When the material placed on record does not create any concrete and clear evidence about the involvement of the petitioner – accused No.6, as held in the decision quoted supra if a mere suspicion is there, then under such circumstances, accused No.6 - the petitioner is also entitled to be discharged. There are no good circumstances to come to the conclusion that the petitioner herein has been involved in a serious offence which is punishable with death or imprisonment for life. Even after the charge sheet material is perused, name of accused No.6 is not found but subsequently, in the additional charge sheet his name is shown.
10. Taking into consideration all the above said facts and circumstances, I am of the considered opinion that the trial Court without looking to the fatual matrix of the case in its right perspective has come to a right conclusion and wrongly dismissed the application seeking discharge of accused No.6. The trial Court has relied upon the statement of other accused persons though the said statement is not admissible in law. It is well settled proposition of law that if the charge sheet is taken in its face value without rebutting the same and even if there is no evidence to bring home the guilt of the accused, then the accused is entitled to be discharged. Looking from any angle, there is no material to show that the accused in collusion with other accused persons in order to screen the offence that he has given his motorbike. Even the voluntary statement of the accused are not admissible in order to prove the case of the prosecution against the petitioner – accused No.6. Looking from any angle there is no material to proceed with the trial. In that light, petition is allowed and the order passed by the 65th Additional City Civil and Sessions Judge, Bengaluru in S.C.No.571/2015 dated 16.02.2019 is set aside and the petitioner - accused No.6 is discharged from the charges leveled against him.
Sd/- JUDGE nvj