IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.115 OF 2019 BETWEEN:
1. Sri Ravindra S/o Late Kariyappa Aged about 47 years R/o Navile Village Athaguru Hobli, Maddur Tq Mandya District -577 401.
2. Smt Sarojamma W/o Late Kariyappa Aged about 61 years R/o Navile Village Athaguru Hobli, Maddur Taluk Mandya-577 401. ...Petitioners (By Sri S.B. Halli, Adv. for Sri Siddaraju M., Advocate) AND:
The State of Karnataka Keshthur Police Station Maddur Circle, Mandya District Rep. by High Court Public Prosecutor Bengaluru-560 001. ...Respondent (By Sri S.T. Naik, HCGP) This Criminal Revision Petition is filed under Section 397 read with 401 of the Code of the Criminal Procedure Code praying to this Hon’ble court may be pleased to set aside the impugned order dated: 04.01.2019 passed by the learned IV Additional District and Sessions Judge, Mandya in S.C.No.5/2018 and allow the discharge application of the petitioners and etc.
This Criminal Revision Petition coming on for admission, this day, the Court made the following:
O R D E R The present petition has been filed by the accused Nos.1 and 2/petitioners No.1 and 2 challenging the order passed by IV Addl. District and Sessions Judge, Mandya in S.C.No.5/2018 dated 04.01.2019 on the application filed under Section 227 of Cr.PC.
2. I have heard learned counsel for the petitioners and learned HCGP for the respondent-State.
Though this case is posted for admission, with the consent of both counsel, the same is taken up for final disposal.
3. Before going to consider the application, I feel it just and proper to briefly state the contents of the complaint, which are as follows;
4. On 18.04.2017, at about 9.00 a.m., the goat of the complainant entered the house of one Sarojamma-accused No.2 which is situated in front of the house of the complainant. For that reason, the accused persons abused the deceased mother in filthy language and at that time, the accused No.1 came and caught hold the tuft of the deceased and assaulted and abused with filthy language and threatened with dire consequence and also said that they are going to set fire. At that time, nobody came for their rescue. It is further alleged that on the same day at about 11.00 am, the deceased by consuming poison which is kept for sprinkle for silkworm started struggling. Immediately, she was taken for first aid. Thereafter, she was shifted to Government Hospital, Mandya. Subsequently, she died on 26.04.2017 at about 10.00 p.m. and as such a case was registered and after investigation, charge sheet was laid against the accused petitioners.
5. It is the submission of learned counsel for the petitioners that the FSL report submitted by the prosecution does not support the case of the prosecution and no signs of poison was found in the blood sample of the deceased. The trial Court without considering the said fact, has come to wrong conclusion and has not discharged the accused petitioners from the alleged offences. He further submits that the trial Court has utterly failed to consider the scope of Section 227 of Cr.PC. Though there was no sufficient ground to proceed against the accused persons, the application was came to be dismissed. He further by relying upon the decision in the case of State through Central Bureau of Investigation Vs. Dr.Anup Kumar Srivastava reported in AIR 2017 Supreme Court 3698 submits that the court has not examined any material placed on record and even though there is no sufficient grounds for proceeding against the accused, it had rejected the application filed under Section 227 of Cr.PC. He further submitted that the trial Court has observed that civil disputes are also pending and under such circumstance, abatement and other offences which have been laid against the petitioner accused are not going to be established. He further submitted that the said complaint itself is concocted and created only to include the accused petitioner in the said case. On these grounds, he prays to set aside the impugned order and to discharge the accused petitioner.
6. Per contra, learned HCGP vehemently argued and submitted that there is sufficient material to proceed with the charge and after considering the said facts and circumstances, the trial Court has rightly come to the conclusion and has dismissed the petition. He further submitted that the trial Court has considered the charge sheet material and other documents placed on record for the purpose of framing the charge and has rightly dismissed the application. The petitioners have not made out any good ground to allow the petition and to discharge them from the alleged offence.
7. I have carefully and cautiously gone through the submissions of learned counsel appearing for both the parties and also perused the records.
8. As could be seen from the records and the complaint, it is the specific case of the prosecution that the accused petitioners abused the deceased with filthy language and also abused by stating that the deceased was having some illicit relationship with some other person and thereafter, she has also been assaulted and they also hold her tuft, pushed her and kicked her, both physically and mentally she has been harassed.
9. As could be seen from the contents of the complaint, the alleged offence has taken place on 18.04.2017 at about 9.00 a.m. and she has consumed the poison at about 11.30 and immediately she was shifted to Primary Health Centre, thereafter she was shifted to the District Hospital, Mandya and subsequently she died on 26.04.2017 at about 10.00 p.m. All these had happened immediately after the said galata taken place at about 9.00 a.m.
10. Though learned counsel for the petitioner by relying upon the decision in the case stated supra by referring to para 18 and 19 of the decision contended that there is civil dispute between the accused and the – complainant, as such the trial Court ought to have discharge and no offence is made out and even there are no good grounds to proceed against the accused in accordance with law. For the purpose of gravity on the quoted para 18 and 19 which reads as under;
“18. Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions.
19. Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do.”
11. On close reading of said paragraphs, the Hon’ble Apex Court has observed that there can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. Under such circumstances, the Court can discharge the accused. But as could be seen from the records civil disputes are pending but, that particular civil dispute is nothing to do with the criminality of the accused persons in the present case. Even as could be seen from the contents of the complaint, there are ample material to show that it is the case of abatement caused by the accused. Immediately, after the alleged incident, she consumed poison and immediately she was shifted to Primary Health Centre and thereafter, to the District Health hospital. Whether the abatement is there or not is the subject matter which has to be considered at the time of the trial. But, prima-facie there is material to show that the accused persons abused the deceased with filthy language and by referring various characteristics of the deceased and thereafter, the alleged incident has taken place. Under the facts and circumstance, it cannot be held that there is no material to frame charge against the accused petitioners.
12. Be that as it may. Though it is contended by learned counsel for petitioners that the FSL report does not contain the poison substance and blood sample of the deceased is also showing the negative results, but as could be seen from the records, the alleged incident has taken place on 18.04.2017 and she died on 24.04.2017 that there is a long gap in this behalf. After taking other material, absence of poison in the part of body and as such the said aspect is also not going to throw any light on the case of the prosecution to show that the deceased has not consumed poison and died.
13. In the light of the discussions held by me above, and the principles of law laid down by the Hon’ble Apex Court wherein it has been observed that while framing of charge the judge has to consider individually whether on consideration of the materials on record it can be said that the accused has been reasonably connected with the offence and there is reasonable probability or chance of the accused being found guilty. If the answer is in the affirmative, then, the judge is at liberty to frame charge against the accused. In that light, there is material to connect the accused persons to the alleged offence.
14. On close reading of the complaint, it is clearly stated that the accused persons have assaulted the deceased with hands and they have confined her movement by holding her tuft and pulled her. Under such circumstances, there is some material to connect the accused for the alleged offence. In that light, the trial court has also come to right conclusion. Therefore, I am of the considered opinion that the petitioners have not made out any grounds to setaside the impugned order. Hence the petition stands disposed of with above observation.
Whatever the observations which have been made by this Court is not going to influence the trial court when the matter is going to be decided on merits.
In view of disposal of main petition, I.A.No.1/2019 does not survive for consideration. Accordingly, I.A.No.1/2019 is disposed of.
Sd/- JUDGE PN/-