IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.1312/2019 BETWEEN:
K.M.Thahir Suhail S/o M.A.Khada Aged about 27 years Auto Rickshaw Driver Sunnadabeedi, Near Private Bus Stand Virajpet, Madikeri-571 218.
(By Sri C.N.Raju, Advocate) AND:
State by Virajpet Police Kodagu District Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 14.08.2019 passed by the II Additional District and Sessions Judge, Kodagu-Madikeri in S.C.No.47/2014 arising out of Crime No.03/2014 of Virajpet Town Police Kodgau for the offences punishable under Sections 143, 147, 148, 324, 307, 120(B), 471, 212 r/w. 149 of IPC and Sections 3 and 25 of Indian Arms Act by allowing this Criminal Revision Petition.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R Heard the learned counsel appearing for the petitioner-accused No.15 and the learned High Court Government Pleader for respondent-State.
2. This petition has been filed by petitioner-accused No.15 challenging the order passed by II Additional District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet, in S.C.No.47/2014 dated 14.8.2019, whereunder the application filed under Section 227 of Cr.P.C. came to be dismissed.
3. The brief facts of the case are that on 9.1.2014 complainant went along with Shashankbimaiah and Sujakushalappa to the Sub-Registrar Office at Virajpet in Innova Car for registration of property. It is alleged that after registration they were returning from the office and went near the car at that time one person fired two gunshot on the head of Sujakushalappa and another person was holding a knife and stabbed on his shoulder caused bleeding injuries. They also fired towards Bhimaiah, but the gun shot was not hit him. Another person stabbed Bhimaiah on his shoulder and caused bleeding injuries to him and other three accused persons who came along with two accused persons escaped from the place in an alto car. Thereafter, complainant and others were shifted the injured to the hospital for treatment and a complaint was registered in Crime No.3/2014. Thereafter, investigation has been completed and charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner-accused No.15 that the Court below without considering the material placed on record has arbitrarily and erroneously passed the impugned order. It is his further submission that earlier a case has been registered against five unknown persons and subsequently only on the basis of the voluntary statement of accused No.1, accused No.15 has been included and charge sheet has been filed though the said incident has not been identified by anybody and accused No.15 was not present at the place of alleged incident. It is his further submission that none of the witnesses of the charge sheet have stated any incriminating material as against the petitioner-accused No.15. On these grounds he prayed that there is no material and as such the petitioner-accused may be discharged from the charges leveled against him by allowing the petition by setting aside the impugned order.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the voluntary statement of accused No.1 clearly goes to show that petitioner-accused No.15 was watching and informing the movement of the injured and other persons to accused No.1. He further submitted that he has conspired with other accused persons and as such the petitioner-accused has also been charge sheeted under Section 120B of IPC. On these grounds he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the charge sheet material.
7. On close reading of the charge sheet material it indicates that except voluntary statement of accused No.1, none of the witnesses have specifically stated as to what are the overt acts which the petitioner-accused has committed. It is well settled proposition of law that while considering the question of framing of the charge the Court below has undoubted power to sift and weigh the evidence for a limited purpose of finding out as to whether there is prima facie case made out as against the accused or not. It is also well settled proposition of law that whether the material placed before the Court creates a suspicion but not a grave suspicion, then under such circumstances the accused is entitled to be discharged. If there is a grave suspicion as against the accused which has not been properly explained, the Court will be fully justified in framing the charge and proceed with the trial. This proposition of law has been laid down by the Hon’ble Apex Court 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:
“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.”
8. Keeping in view the ratio laid down in the above decision, on close perusal of the records it indicate that none of the witnesses have stated that the petitioner- accused used to watch and inform the movements of the victim to accused No.1. Though accused No.1 has given his voluntary statement to the effect that petitioner-accused No.15 was watching the movements of the victim and he used to inform the same to accused No.1, but the said statement of accused No.1 is hit by Section 25 of the Evidence Act. Except for the purpose of Section 27 of the Evidence Act the statement of the accused cannot be used for any other purpose. In the light of the said factual matrix, I am of the considered opinion that the petitioner- accused No.15 has made out a case for allowing the petition and to set aside the impugned order.
9. Accordingly, the petition is allowed and the order passed by II Additional District and Sessions Judge, Kodagu-Madikere, sitting at Virajpet in S.C.No.47/2014 dated 14.8.2019 is set aside and petitioner-accused No.15 alone is discharged from the offences leveled against him.
In view of disposal of the main petition, IA No.1/2019 does not survive for consideration and the same is accordingly disposed of.
*AP/-
Sd/- JUDGE