Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 326 (AP)

Gurrala Surendranath @ Suri v. State of A. P.

2020-05-06

T.RAJANI

body2020
ORDER : These criminal revision cases are filed by A12, A13, and A7 respectively, seeking for their discharge in Sessions Case No.135 of 2017 on the file of the Court of Principal Sessions Judge, Kurnool. 2. All the above petitioners filed petitions before the Sessions Court, Kurnool, seeking for discharge and the same were dismissed. The grounds on which A12 and A13 seek for discharge are: The charge sheet and the documents do not disclose any ground to presume that the petitioners/A12 and A13 have committed any offence for which they were charged. The lower court erred in observing that the averments of the FIR and the averments of LWs.1, 2, 3 disclosed about participation of the petitioners/A12 and A13 in the commission of the offence along with the other accused. The lower court based its order on an erroneous assumption that the above said witnesses have spoken about the petitioners/ A12 and A13, whereas LWs.1 and 2 did not state anything about the presence or participation of the petitioners/A12 and A13 in the alleged crime and that LW3 is not an eye witness and even her statement does not refer to the presence or participation of the petitioners/ A12 and A13 in the alleged offences. The lower court ought to have seen that the allegation in the charge sheet that in the last week of February, 2014, the petitioners/ A12 and A13 were present in the house of A6, when the alleged conspiracy was hatched, is not supported by any material. The lower court ought to have considered that as per the charge sheet LW31 witnessed the presence of the petitioners/ A12 and A13 at the house of A6 in the last week of February, 2014. It does not disclose any reference to the petitioners. The lower court erred in observing that the statements of LWs.31 and 32 disclose that all the accused met in the house of A6 one month prior to the incident. The alleged confessional statements of the petitioners are inadmissible in evidence. The lower court ought to have considered that inference of conspiracy cannot be drawn by mere proof of making phone calls, without proof of the content of conversation. 3. The grounds on which A7 seeks for discharge are as follows: The lower court ought to have seen that there are no specific allegations made in the FIR/complaint against the petitioner. The lower court ought to have considered that inference of conspiracy cannot be drawn by mere proof of making phone calls, without proof of the content of conversation. 3. The grounds on which A7 seeks for discharge are as follows: The lower court ought to have seen that there are no specific allegations made in the FIR/complaint against the petitioner. It ought to have seen that the final report/charge sheet fails to disclose any offence stated to have been committed. Specific allegations, attracting Sections 302 and 120B r/w 149 IPC are absent in the complaint and also in the final report. The lower court ought to have seen that an essential ingredient of Section120B is that where two or more persons agree to do an illegal act, the said allegation and agreement of persons and minds to do an illegal act is absent in the complaint and also in the charge sheet. The lower court ought to have observed that the confessions made by the accused were inadmissible in law as they are hit by Sections 25 and 26 of the Act; even if the confession of LWs.31 and 32 is accepted, it does not attract any ingredients of conspiracy. It ought to have seen that mere meeting of accused would not lead to an inference that there was a conspiracy. The lower court was wrong in observing that the circumstances relied upon by the prosecution cannot be ignored at this stage. Each of the circumstances relied upon by the prosecution must be fully established to show that such established circumstances leads only to the inference of guilt and no other relaxation is possible as held by the Supreme Court in a number of judgments. The lower court ought to have seen that no specific allegation was made against the petitioner, attracting the alleged offence. The lower court ought to have seen that the prosecution failed to establish motive as regards the petitioner. The lower court ought to have seen that even if the entire material relied by the prosecution is looked into it does not specify the alleged offence. 4. Heard. 5. The lower court has passed an elaborate order, dismissing the petitions filed by the petitioners seeking for their discharge. The court considered several judgments, which were relied upon by either side. 4. Heard. 5. The lower court has passed an elaborate order, dismissing the petitions filed by the petitioners seeking for their discharge. The court considered several judgments, which were relied upon by either side. It, however, found that prima facie material is available against the petitioners based on the fact that there were call details pertaining to the telephonic conversation between A5 and A6 as well as between A7 and A6. It also observed that if the call data of other accused with accused Nos.5 and 6 is looked into, prima facie material is available against A7, A12 and A13. It is that part of the judgment, which is assailed by the accused, stating that the same is perverse and that merely because the call details show that there were some telephonic conversations between the accused, the said fact would not suffice to prove the guilt of the accused, unless the content of the conversation is brought before the court and unless it proves conspiracy at least prima facie. The contention that the charge sheet does not disclose and neither do the documents filed along with the charge sheet, that the content of the conversation between the accused is brought before this court. There is no denial of the said fact by the Public Prosecutor. 6. Before going into the merits of the arguments, extended on either side, the judgments relied upon by the counsel on either side can be looked into. 7. The counsel for A12 and A13 contends that except the confession of the accused, there is absolutely no material against A12 and A13 and none of the witnesses have spoken about seeing A12 and A13 either in the company of the other accused or going to the house of A7 and no incriminating material was recovered at the instance of A12 and A13. The argument of the counsel for A7 is that the confessions of the co-accused cannot be used against the accused and that hence, there would remain no material with the help of which the court can find any of the petitioners as guilty. The argument of the counsel for A7 is that the confessions of the co-accused cannot be used against the accused and that hence, there would remain no material with the help of which the court can find any of the petitioners as guilty. He relies on the judgment reported in STATE (NCT OF DELHI) V. NAVJOT SANDHU 2005(11) SCC 600 , wherein the Supreme Court observed that on a plain reading of Section 32(1) the language of the section cannot be stretched so as to bring the confession of the co-accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences. The contention that the confession of the co-accused to a police officer can be taken into account by the Court under Section 30 of the Indian Evidence Act, 1872, for the limited purpose of corroborating or lending assurance to the other evidence on record cannot be accepted. It was observed that there was no difficulty in accepting the contention that Section 30 of the Act can also play its part in a case of trial under POTA, especially when the other offences under IPC are also the subject matter of trial. But a confession to the police officer by a person in police custody is not within the realm of Section 30 of the Act and therefore such a confession cannot be used against the co-accused even under Section 30 of the Act. Therefore, it was held that such a confession cannot be used against the co accused even under Section 30 of the Act. Discussing about the relevancy of the confessions of the co-accused under Section 10, the court held that the same are not admissible, because by that time conspiracy would have ended. Hence, the confessions made by conspirators in policy custody under Section 32 POTA were held as not admissible against co accused under Section 10. It was observed that Section 10 of the Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section. It was observed that Section 10 of the Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section. It was further observed that the evidence, which is in the nature of hearsay, is made admissible on the principle that there is mutual agency amongst the conspirators. Relying on the relevant observations made in the case of SARDUL SINGH CAVEESHAR V. STATE OF BOMBAY { 1958 SCR 161 } and also the case of STATE v. NALINI { (1999) 5 SCC 253 }, the court observed that it was not held in those cases that the same principle of agency should be stretched further to make all the conspirators liable for the offensive acts done pursuant to the conspiracy, irrespective of their role and participation in the ultimate offensive acts. Whether or not the conspirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. Reliance was placed on the summary of legal position as to proof of conspiracy by Coleridge, J.in R vs. Murphy (1837) 173 ER 502, which is as under: “… I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued, by their acts, the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is: ‘Had they this common design, and did they pursue it by these common means – the design being unlawful?’… If you are satisfied that there was concert between them, I am bound to say, that being convinced of the conspiracy, it is not necessary that you should find both Mr.Murphy and Mr.Douiglas doing each particular act, as, after the fact of a conspiracy is once established in your minds, whatever is either said or done by either of the dependants in pursuance of the common design, is, both in law and in common sense, to be considered as the act of both.” 8. From the above passage, it can be understood that in many cases, there would be no means of proving conspiracy and the court would be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect the object, if two persons are found to be pursuing, by their acts, the same object, one performing one part of an act and the other performing another part of the same act so as to complete it. 9. The judgment in CENTURY SPINNING AND MANUFACTURING CO LTD. AND OTHERS (1972) 3 SCC 282 is relied upon in support of the contention that at the stage of framing the charges, the court can apply its judicial mind whether or not there is ground for presuming commission of the offence by the accused and that the order framing the charges substantially affects the person’s liberty and that the responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. 10. 10. Another judgment relied upon by the petitioners’ counsel is in STATE OF KARNATAKA V. L.MUNISWAMY (1977) 2 SCC 699 , wherein, going by the facts of the said case, the Supreme Court observed that the worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of A1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents. Saying so, the proceedings against the accused were quashed. Another judgment is in Suresh Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 337 , wherein the proper way to appreciate confessional statements was laid. “So far as the confession of Jayawant Suryarao is concerned, the same (if voluntary and true) can undoubtedly be brought on record under Section 3 of the Evidence Act to use it also against Kalani but then the question is: what would be its evidentiary value against the latter? The question was succinctly answered by this Court in Kashmira Singh v. State of M.P. { AIR 1952 SC 159 } with the following words: “The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confessional statement he would not be prepared to accept.” The view so expressed has been consistently followed by this court. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confessional statement he would not be prepared to accept.” The view so expressed has been consistently followed by this court. Judged in the light of the above principle, the confession of Suryarao cannot be called in aid to frame charges against Kalani in the absence of any other evidence to do so.” 11. The judgment in STATE OF GUJARAT V. MOHAMMED ATIK (1998) 4 SCC 351 , explained about when the statement made by one conspirator can bind another. It was held that there must exist a bond in the nature of agency between the two. Common intention must subsist between the conspirators at the time of making of the statement. Post arrest statement made by a person to police, whether by way of confession or other wise, relating to his involvement in the conspiracy, would not fall within the ambit of S.10. The ruling reported in BABUBHAI BHIMABHAI BOKHIRIA VS. STATE OF GUJARAT (2014) 5 SCC 568 is a judgment rendered in respect of appeal against conviction. It observed that nothing has come during the course of trial regarding the content of the conversation and from the call records alone, the appellant’s complicity in the crime does not surface at all. 12. The Public Prosecutor relies on the ruling of the Full Bench of the Supreme Court in BHAWNA BAI V. GHANSHYAM 2020(1) ALT (Crl.) 59 (SC), wherein it was held that at the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. The court relied on the well settled law laid down by the Supreme Court in the STATE OF BIHAR V. RAMESH SINGH (1977) 4 SCC 39 , wherein it was held as under: “Under S.226 of the Code the prosecutor while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and State by what evidence he proposes to prove the guilt of the accused. Thereafter, comes at the initial stage, the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has then to pass an order either u/s. 227 or u/s. 228 of Code. If the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing as enjoined by S. 227. If, on the other hand, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court, he shall frame in writing a charge against the accused as provided in s. 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial, the truth, veracity and the effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts if proved would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused, is not exactly to be applied at the stage of deciding the matter under s. 227 and 228 of the Code. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused, is not exactly to be applied at the stage of deciding the matter under s. 227 and 228 of the Code. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if it remains in the region of suspicion, cannot' take the place of proof of his guilt at the conclusion of trial. But at the initial stage, if there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the, guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. We may just illustrate the difference of the law by one more example. If the scales of pan as to the, guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if on the other hand, it is so at the initial stage of making an order under s. 227 or s. 228 then in such a situation ordinarily and generally the order which will have to be made will be one under s. 228 and not under s. 227. 13. Going by the parameters laid down in the above cited judgment, which is latest and a binding precedent, this court understands that the evaluation that can be done by the court while framing charge is not to understand whether there is sufficient ground for conviction of the accused but only to see if there is a strong suspicion, which leads the court to think that there is ground for presuming that the accused has committed an offence. Hence, if from the material on record the court can directly presume that the accused has committed an offence, the court can proceed to frame charges and in such circumstances, it would not be open to the court to say that there is no sufficient ground for proceeding against the accused. Even if the evidence, which the prosecutor proposes to adduce to prove the guilt of the accused, is fully accepted before it is challenged in the cross-examination or rebutted by the defence evidence, if any, it cannot show that the accused committed the offence, then there would be no sufficient ground for proceeding with the trial. The phone calls between the accused were held as assuming some importance if that is pointing finger against a person by name Jilani in that case. 14. From the reading of all the above judgments, the substance, as can be understood by this court, is that from the material produced by the prosecution, the court should be able to entertain a strong suspicion that the accused might be found guilty and in such case, order under Section 228 CrPC would have to be passed. If it is otherwise, the order under Section 227 CrPC would have to be passed. If it is otherwise, the order under Section 227 CrPC would have to be passed. In this case, there are admittedly no witnesses who spoke about the involvement of A12 and A13 in the alleged offences though there are witnesses, who spoke with regard to the motive of A7 and about the earlier cases that were filed against A7. There were also witnesses, who spoke against A7 that the other accused, who were seen at the time of committing the offence, went to the house of A7 at and around the time when the offence was committed. As regards, A12 and A13, except confessional statements of the co accused, there is absolutely no material brought before this court. In the FIR and the statements of some of the witnesses, some unknown persons were also spoken as being present at the time of the offence. But those unknown persons were not identified by the concerned witnesses. The charge sheet shows that the requisition was made to conduct test identification parade, for some of the culprits. But as regards A12 and A13, no requisition seem to have been filed. The reason, as stated by the Public Prosecutor, for not conducting test identification parade for A12 and A13 is that they were absconding. But even after the arrest of the said accused, no efforts were made to get them identified by the witnesses. By mere call records between A12 and A13, with the other accused, the prosecution would not be able to prove the offences alleged against them unless the content of the conversation is brought forth. The name of A12 is not even referred by the co accused in their confessional statements. 15. Hence, in view of the above, this court does not find any benefit that would be coming forth by proceeding with trial against A12 and A13. Leave alone strong suspicion, but no suspicion is also possible to be entertained from the material on which the prosecution places reliance. So far as A7 is concerned there are witnesses, who spoke about the motive and there are witnesses, who saw other accused going to the house of A7 on and around the day of offence. There are earlier cases between A7 and the deceased. Hence, unless the matter is taken up for trial, the complicity of A7 cannot not be adjudicated. 16. There are earlier cases between A7 and the deceased. Hence, unless the matter is taken up for trial, the complicity of A7 cannot not be adjudicated. 16. In the result, the Criminal Revision Case Nos.151 and 149 of 2018 are allowed and the Criminal Revision Case No.168 of 2018 is dismissed. As a sequel, the miscellaneous applications pending, if any, shall stand closed.