IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1403/2018 BETWEEN:
SRI.MANJUNATH @ KALI, AGED ABOUT 27 YEARS, S/O.MUNISWAMY, R/O.NO.34/6, BALAPPA LAYOUT, KORAMANGALA ROAD, ADUGODI, BENGALURU. ... PETITIONER (BY SMT.PRIYANKA.S.URS, ADVOCATE) AND:
THE STATE OF KARNATAKA, BY KADUGODI POLICE, BENGALURU.
(REPRESENTED BY THE LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, AMBEDKAR VEEDHI, BENGALURU-560001.) ... RESPONDENT (BY SRI.K.NAGESHWARAPPA, HCGP) THIS CRL.RP IS FILED U/S.397 R/W SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 01.12.2018 PASSED IN SESSION CASE NO.93/2017 ON THE FILE OF THE IXth ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU FOR THE ALLEGED OFFENCES U/S.302,120B,109,212 R/W SEC.149 OF IPC, 1860 AND CONSEQUENTLY DISCHARGE THE PETITIONER FROM THE CASE.
THIS CRIMINAL REVISION PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The present petition has been preferred by the petitioner – accused No.7 challenging the order dated 01.12.2018 passed by the Court of IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in S.C. No.93/2017 rejecting the application filed under Section 227 of Cr.P.C. for discharge.
2. I have heard the learned counsel for the petitioner and learned High Court Government Pleader for respondent – State.
3. The facts leading to the case are that on 01.04.2016 at about 9.45 p.m., a case has been registered alleging that the deceased – Krishnamurthy @ Appi is the younger brother of the husband of the complainant’s father’s sister and was taking care of the business and finances of the complainant’s deceased brother’s wife. He was also looking after the business pertaining to the JCBs. The wife of the complainant and her daughter were fully dependent on him. It is further alleged that the deceased – Krishnamurthy wanted to take over the said JCB business and also inherit other properties belonging to the deceased brother of the complainant and was also intended to marry Kavya. When he approached accused No.1, asking to marry her daughter – Kavya, she refused. Therefore, the deceased – Krishnamurthy began to harass accused No.1 and her daughter by stopping and spoiling all good marriage proposals and alliances that came to her. It is further alleged that being aggrieved by such behavior of deceased – Krishnamurthy, accused No.1 decided to eliminate the said Krishnamurthy. Therefore, he approached accused No.2 and gave him a cash to take away the life of deceased – Krishnamurthy. On 01.04.2016 at about 7.30 p.m., when CWs.2, 3 and 4 were in the construction site and were supervising the construction works, they heard screaming voice from around Manu hotel, which is at a distance of about 80 feet from the said constriction site. Assuming that the screams are from a fight between few drunken persons and they ignored the same. On repeated screams, when they visited the said place, they witnessed four persons involved in a fight with another person and out of which, one man was standing near the car, while another man was holding the victim. They further witnessed the third man assaulting the victim with a long and fourth man was stabbing the victim with a knife and also threatened the said witnesses and they fled away from that place. Thereafter CWs.2 to 4 went back to the spot where the incident took place there, they realized that the man/victim, who was assaulted, is none other than the relative of the complainant i.e, the deceased – Krishnamurthy. Immediately, CW.2 allegedly called for a car and took the injured – Krishnamurthy to the hospital that there they declared him as dead. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner-accused No.7 that when the complaint was registered, the name of the petitioner – accused No.7 is not found. His name has been found only when the charge sheet has been filed on 01.09.2015. It is further submitted that no prima facie material has been produced so as to connect the petitioner – accused No.7 to the alleged crime. No recoveries have been made, no call details and overt-acts has also been specifically stated in the statement of witnesses or in the charge sheet material. It is further submitted that even if the said charge sheet material is unreverted or unrebutted, there is no prima-facie case so as to convict the petitioner - accused No.7 to the alleged crime. Further it is submitted that only on the say of the police, the complainant has given his further statement and therein, he has included the present petitioner – accused No.7 and submitted that it is not a fit case to convict the petitioner – accused No.7 to the alleged crime.
5. It is further submitted that while considering the application for discharge, the Judge has to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case as against the accused has been made out. The test of finding out is to determine a prima facie case depends upon the facts of each case. It is her further submission that the said material gives rise to a suspicion but does not gives a grave suspicion in the case of the prosecution. The trial Court without considering the said fact, has come to a wrong conclusion and has dismissed the application.
6. In order to substantiate her contention, she relied upon the decision of this Court in the case of ASHOK B. DANI v. STATE OF KARNATAKA reported in LAWS (KAR) 2014 1089 and further it is submitted that the Court below has to weigh the evidence and form the opinion only on a limited question of whether a prima facie case has been made out or not? If no prima facie case has been made out, then under such circumstances, the Court can pass the order of discharge. In order to substantiate her contention, she relied upon the decision of Hon’ble Supreme Court in the case of UNION OF INDIA v. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979) 3 SCC 4.
On these grounds, she prayed to allow the petition and to set aside the impugned order of the trial Court.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that the material which has been produced clearly goes to show that the petitioner - accused No.7 along with other accused persons has actively participated in the said crime. He further submitted that he has harbored the accused persons and has given the shelter. Even the further statement of the complainant and the co- accused clearly goes to show that he was also present at the place of the alleged incident and he co-operated and instigated the accused persons for eliminating the deceased – Krishnamurthy. The trial Court after considering the facts and circumstances of the case, has come to the right conclusion and has rightly dismissed the application. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submission made by the learned counsel appearing for both the parties and perused the records.
9. I have given my thoughtful consideration to the decisions quoted by the learned counsel for the petitioner and I am not having any difference of opinion with regard to the principle of law laid down by the Hon’ble Apex Court as well as by the single judge of this Court. Whenever, an application has been filed under Section 227 of Cr.P.C., postulate the exercise of judicial mind on the facts of the case and thereafter determine whether a case called for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose for finding out whether or not a prima facie case as against the accused has been made out. In the case of Ashok B. Dani quoted supra at paragraph No.16, it has been observed as under:
“16. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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 a prima facie depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 gives rise to suspicion only as distinguished form grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible.”
10. In the case of Union of India quoted supra therein, 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 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.”
11. On close reading of the said paragraphs, the guidelines have been stated while considering the application for discharge under Section 227 that what are the criteria which the Court has to take into consideration and thereafter, the Court has to pass an appropriate order. I have kept the above said proposition of law in mind and thereafter I have scrutinized the materials, which has been produced along with the petition.
12. As could be seen from the charge sheet material, which shows that it is accused No.7 who has also conspired with other accused persons and he co-operated to other accused persons in harboring and was also present at the time when the alleged incident has taken place at about 7.45 p.m. Accused No.7 was standing on the bike in front of the place of the alleged incident and he informed that the deceased has left on the motor bike along with another person. Thereafter, the other accused persons who were watching, they have waited for him when the deceased came to the particular place, have assaulted him. Even on 05.04.2016, accused No.7 has taken the accused persons to the room and there, he has given the shelter. Taking into consideration of the above said facts and circumstances, there is a prima facie material as against the petitioner – accused No.7 for having involved in the alleged crime and has co-operated and instigated the accused persons for the purpose of commission of the offence keeping them in room. Though it is contended by the learned counsel for the petitioner that there is no material to connect the petitioner – accused No.7 to the alleged crime, the only submission which has been made could create a suspicion but it is not grave suspicion so as to give the benefit of doubt to the petitioner – accused No.7. Even as discussed in the decisions quoted supra therein, which has been observed that the test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. The decision of Hon’ble Supreme Court in the case of State by the Inspector of Police v.
S. Selvi and another reported in 2018(13) SCC 455, it is held that this Court is not expected to go deep into matter and come to the conclusion but prima facie material has to be seen.
13. Taking into consideration of the above said facts and circumstances on hand and even the sift and weigh of the material for the limited purpose if it is done even then, there appears to be prima facie material as against the petitioner – accused No.7. Hence, I do not want to express or describe anything on the merits of the case as it is going to affect the both the parties during the course of trial.
14. Keeping in view of the above facts and circumstances of the case, the petitioner has not made out any good grounds to allow the petition and it is liable to be dismissed. Accordingly, petition is dismissed.
In view of dismissal of the main petition, I.A. No.1/2019 does not survive for consideration.
Sd/- JUDGE VBS