*HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO +CRIMINAL REVISION CASE NO.772 of 2014 % Dated 02.12.2014 Between:
# Sadanapati Malleswari and another ...Petitioners-A.4 and A.5 and $ The State of Andhra Pradesh Rep.by Public Prosecutor and another …. Respondent ! Counsel for the petitioners : Sri P.Rajani Reddy ^ Counsel for respondent : Public Prosecutor < GIST : ---
>HEAD NOTE : ---
? Cases referred: :
1. AIR 1988 SC 1883
2. 2005(1) SCC 568
3. AIR 2013 SC 2078
THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.772 of 2014 ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C by the petitioners-A.4 to A.5, having been aggrieved by the order of framing of charges dated 19.03.2014 in S.C.No.380 of 2011 on the file of the learned VI Additional District and Sessions Judge, Tirupati, Chittoor district with the contentions that the learned judge erred in passing the order of framing of charges without considering the relevant material before him, that the learned judge ought to have seen that the chargesheet submitted and the documents sent with it did not disclose any ground to presume that the petitioners have committed any offence for which they are charged, that the learned judge ought to have seen that the prosecution has erroneously filed the charge sheet against the petitioners-A.4 and A.5 punishable under Section 302 read with 109 of I.P.C., though the facts of the case does not attract the ingredients for the offence under Section 302 read with 109 of I.P.C, that the learned judge erred in framing charges against the petitioners for the offences punishable under Sections 302, 120-B and 109 of I.P.C. though the facts of the case and material filed along with the chargesheet do not disclose any ingredients for the offences so charged, that the learned Judge ought to have seen that no case is made out against the petitioners from the evidence collected by the prosecution or linking them to the crime, that the learned judge without properly considering the material before it, in mechanical way framed the charges against the petitioners resulting in the abuse of process of law and the same is unreasonable and unsustainable and not supported by any material on record, that the order of the learned Judge and entire proceedings against the petitioners pending before the trial Court are liable to be quashed.
2. Heard both sides and perused the material on record.
3. Now the points that arise for consideration are:
1. Whether the framing of charges against the accused persons-
A.4 and A.5 along with A.1 to A.3 for the offences punishable under Sections 302, 120-B and 201 I.P.C. is unsustainable and requires interference by this Court while sitting in revision, if so, with what observations?
2. To what result? Point No.1:
4. The deceased by name S.Ellaiah was no other than the husband of the A.4. As per the chargesheet filed by the police after investigation against the accused persons-A.1 to A.5, A.1 developed illicit relationship with A.4 and A.5 was abandoned by her husband and was staying with the A.4 in the same abode and shelter. The deceased came to know of the illicit contracts between the A.1 and A.4 and had chastised the A.4 and there were altercations between them and A.5 also to some extent supporting the A.4 in the disputes between the deceased and A.4 with regard to A.4’s extra marital life with A.1. It is as per the prosecution from the investigation done, there was extra judicial confession made by the A.1 to A.3 stating that the deceased to prevent the illicit relation between the A.4 and A.1 even shifted the family having noticed them and caught hold redhanded from the place of stay at his native place and it is because the deceased was beating the A.4 and also altercating with A.1 to prevent extra marital relationship, they decided to eliminate the deceased S.Ellaiah and A.1 taken the assistance of A.2 and A.3 to kill the deceased and pursuant to the privy and abetment by A.4 and A.5 of A.1 and in their plan to eliminate from engaging theA.2 and A.3, they killed the deceased and buried the dead body to screen the evidence by digging a pit and kept cement bags load to conceal identity of the dead body there in the site where the building was under construction. It is the extra judicial confession of A.1 to A.3 including to privy and abatement of A.4 and A.5 for eliminating the deceased for which he was murdered as a confession of co-accused, extra-judicial admissibility of chargesheet is maintained under Section 302 read with 109 against the A.4 and A.5 apart from section 302, 120-B and 201 of I.P.C. against the A.1 to A.3. It is after hearing both sides as contemplated by Section 227 of Cr.P.C. the learned Sessions Judge in S.C.No.380 of 2011 after the charge taken cognizance by the committal Magistrate and committed the case to the Court of Sessions after supply of copies in compliance to Section 208 and 209 of Cr.P.C. the cognizance taken by the Court of Sessions under Section 193 of Cr.P.C. and in the Sessions Division the case made over for trial to the learned VI Additional District and Sessions Judge, to frame charges under Section 228 of Cr.P.C. by the impugned order dated 19.03.2014. The charges reads as follows:-
“Firstly: That all of you on 06.06.2010 at 4.30 a.m., at the room in Indiramma colony, Ankamanaidumitta Madigavada, Renigunta Mandal on the abetment of you A.5 and A.4, you A.1 and A.2 and A.3 committed murder intentionally (or knowingly) causing the death of S.Ellaiah aged 27years, S/o late Ramachandraiah of Renigunta by beating with hands, fisting and kicking on his stomach and chest and by throttling and thereby all of you thereby committed an offence punishable under Section 302 of Indian Penal Code, and within my cognizance.
Secondly: That all you prior to 06.06.2010 in pursuance of the agreement of you A.1 and A.2, A.3, you A.5 and A.4 agreed to an illegal act i.e. to murder the deceased S.Ellaiah that the said act was done in pursuance of the said agreement which is punishable under Section 302 of I.P.C. and all of you thereby committed an offence punishable under Section 120-B of Indian Penal code, and within my cognizance.
Lastly: That you A.1, A.2 and A.3 on the above said date, time and place mentioned in charge No.1, at the abetment of you A.4 and A.5 after committing the murder of S.Ellaiah knowing that certain offence, punishable with Section 302 IPC has been committed, did cause certain evidence of the said offence to disappear i.e. all of you tried to bury the dead body by making it nude and by keeping cement bags and sand on it to give falsely information with an intention of screening the said offence from legal punishment and all you thereby committed an offence punishable under Section 201 of the Indian Penal Code, and within my cognizance.”
5. In this Connection, let us see what the Sections 120-A and B, 107 and 109 interpret.
120A. Definition of criminal conspiracy When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
32[120B. Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 51[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] 109. Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
107. Abetment of a thing.--A person abets the doing of a thing, who First- Instigates any person to do that thing; or
Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
5. Now coming to the legality and correctness of the charges framed supra against the accused persons A.1 to A.5 commonly by the impugned order of the learned Sessions Judge dated 19.03.2014 from the above facts with reference to law, it is important to note that, as per Section 107 of I.P.C. referred supra out of the three clauses regarding abatement one is instigation and the other is engages with one or more other persons in any conspiracy and an act or illegal omission take place pursuant to the conspiracy and intentionally it is by any act or illegal omission in doing of that thing. It is to say Section 120-B of I.P.C. which provides punishment for criminal conspiracy defined under Section 120-A of I.P.C. is part of the abatement defined under Section 107 of Cr.P.C. So far as Section 109 is concerned as referred supra, it also includes conspiracy as part of abatement. It is important to note that the Apex Court in the well considered expression of Kehar Singh Vs. State (Delhi
[1]
Administration) in interpreting the scope of Section 107 read with 109 and 120-B I.P.C. held that the punishment for abatement under Section 109 of IPC, the offence of criminal conspiracy though independent offence punishable if a charge under Section 120-B is framed, there is no need to frame the charge under Section 109 of I.P.C. also and vice versa. It is for the above reason that the Section 107(2) of Cr.P.C. includes conspiracy also as part of abatement to constitute the offences under Sections 109 and 120-B. Section 24 of the Indian Evidence Act admits the voluntary and extra judicial confession being relevant by the accused to use from the waiver of the privilege conferred under Article 20 of the Constitution of India. Section 30 of the Indian Evidence Act speaks that the confession made by one or some of the accused persons which effects the other accused of joint trial for some offences is admissible and relevant. So far as the revision against framing of charges in relation to the A.4 and A.5- revision petitioners concerned, Section 30 of the Indian Evidence Act read with 24 of the Act, speaks admissibility and relevancy of the extra- judicial confession of the co-accused to use against these A.4 and A.5. It is immaterial for framing of the charge as to that admissibility and relevancy of evidence is suffice to maintain a conviction of accused or not after full-dressed trial, but for there is prima facie accusation or not. From consideration of the material reliance placed by the prosecution and the
[2]
Apex Court in State of Orissa Vs. Devendranath Pathi in interpreting Scope of Section 226 to 228, 239 and 240 Cr.P.C. held that at the stage of framing charges, the Court has to consider the only material produced by the prosecution Section 227 of Cr.P.C. is in relation to the case and the documents referred by the prosecution including in Section 209 of Cr.P.C. and hearing the submissions of the accused as used therein means only from the prosecution material. Further the Apex Court in Moti Lal
[3]
Songara versus Prem Praksh @ Pappu observed that even filing of final/referred report and subsequent taking of cognizance by the Court and framing of charges from the material produced by the prosecution, the accused cannot be allowed to take advantage of earlier order setting aside cognizance to attack framing charges. It was held that it is only from the prima facie material available and the factum of the offence as also as much arrayed to get justice as accused and thereby the Court to do complete justice restore the order framing the charges against the accused by setting aside the order of the High Court in directing trial to go on. It is the sum and substance of the expressions to show for framing of charges, it is not showing of the ultimate material for ending of case in conviction, but prima facie accusation from the very material produced by the prosecution and not to allow any new material by the accused other than to make submissions from the prosecution case material. From that in view of the admissibility and relevancy of the evidence in extra judicial confession made by the A.1 to A.3 even against the A.4 and A.5, leave about that can be sole basis or not and, there is any other material to corroborate not germane here for considering the framing of charges the material discloses for framing of charges against these revision- petitioners-A.4 and A.5 is under Section 302 read with 109 IPC or any alternative 120-B of I.P.C. and not directly under Section 302 IPC and not at all under Section 201 IPC for nothing to show any screening of the evidence. There is no part of A.4 and A.5 to frame charge against the A.4 and A.5 under Section 201 of I.P.C. In fact, the charges referred supra framed by the trial Court, read over and explained to the accused that they pleaded not guilty of the case. Under Section 216 of Cr.P.C. the Court may alter the charges at any stage including before pronouncement of judgment by following the procedure further envisaged in the subsequent Sections. Even here as the charges so far as against the revision petitioners-A.4 and A.5 not properly framed by the trial Court as framed under Section 302, 120-B and 201 IPC instead of framing under Section 302 read with 109 IPC and in the alternative 302 IPC read with 120-B of I.P.C., So, the revision to that extent can be answered by directing the trial Court to reframe the charges as per Section 216 of Cr.P.C. by virtue of this order. Accordingly, Point No.1 is answered.
Point No.2:
6. In the result, revision is partly allowed. As the charges so far as against the revision petitioners-A.4 and A.5 not properly framed by the trial Court as framed under Section 302, 120-B and 201 IPC instead of framing under Section 302 read with 109 IPC and in the alternative 302 IPC read with 120-B of I.P.C., the revision to that extent is answered by directing the trial Court to reframe the charges by invoking Section 216 of Cr.P.C. and also by virtue of this order. Consequently, miscellaneous petitions, if any, pending in this revision shall stand closed.
Dt.02.12.2014.
Note: L.R.Copy to be marked.
B/o vvr
[1]
AIR 1988 SC 1883
[2]
Dr. B.SIVA SANKARA RAO J,
[3]
2005(1) SCC 568
AIR 2013 SC 2078