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2022 DIGILAW 76 (KAR)

Suresh S/o Ramappa Kapse v. State of Karnataka

2022-01-18

MOHAMMAD NAWAZ

body2022
ORDER : 1. The Revision Petitioners have questioned the legality and correctness of the order dated 03.10.2019 passed by the Court of I Addl. District and Sessions Judge, Bagalkot in S.C. No. 57/2018 whereby their application filed under Section 227 of Cr.P.C. has been rejected. 2. Heard the learned Senior counsel Sri. Sandesh Chouta appearing for the petitioner and the learned HCGP for respondent/State. 3. Petitioners are arraigned as accused Nos. 7 to 9, 11, 13, 14, 16 and 17 respectively in the charge-sheet filed by the respondent/Police in connection with Crime No. 98/2017 of Banahatti Police Station, for offences punishable under Sections 143, 147, 148, 341, 120(b), 302, 307, 109 R/w. 149 of IPC. 4. The incident has taken place on 30.09.2017 around 8:00 a.m. wherein the accused persons are alleged to have formed an unlawful assembly armed with lethal weapons and assaulted the deceased by name Chikkayya with the weapons they were carrying, allover his body and committed his murder. 5. The petitioners herein filed an application under Section 227 of Cr.P.C. for their discharge from the case which was rejected by the learned session Judge vide impugned order, holding that the prosecution papers and the investigation prima-facie discloses the involvement of the accused persons in the commission of the heinous of fence and there is no reason to discharge them. 6. It is contended by the learned Senior Counsel that the petitioners are not named in the first information report and subsequently they are implicated on the basis of the statements alleged to have been given by CW-18 and 19, but perusal of their statements clearly shows that the petitioners are not identified by them. He contends that there is no test identification parade conducted and the statements of CW-18 and 19 and the statements of CW-20 and 21 are contrary to each other. It is his further contention that, the trial Court has not applied its mind to the relevant aspects of the case while exercising it’s jurisdiction under Section 227 of Cr.P.C. as it could not have acted as mouth piece of prosecution but ought to have passed the order considering the broad probabilities of the case. 7. It is his further contention that, the trial Court has not applied its mind to the relevant aspects of the case while exercising it’s jurisdiction under Section 227 of Cr.P.C. as it could not have acted as mouth piece of prosecution but ought to have passed the order considering the broad probabilities of the case. 7. The learned Senior Counsel would contend that at the stage of framing charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused, as framing of charge affects a person’s liberty substantially, therefore proper consideration of material is necessary. He contends that the Court can not act merely as a post office or 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 basis infirmities etc. if it is satisfied that the evidence produced gives rise to some suspicion and not grave suspicion against the accused, the Court can discharge the accused. The learned Senior Counsel would further contend that at the stage of considering the discharge application, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value discloses the existence of all ingredients constituting the offence and for that purpose, the Court can sift the evidence and if the material gathered fall short of minimum legal requirements, the accused deserves to be discharged. 8. In support of his above submission, the learned Senior Counsel relied on the following decisions of the Hon’ble Apex Court: 1. Onkar Nath Mishra and Others vs. State of Delhi and Another, (2008) 2 SCC 561 2. State through Inspector of Police vs. A. Arun Kumar and Another, (2015) 2 SCC 417 3. State by the Inspector of Police, Chennai vs. S. Selvi, AIR 2018 SC 18 4. State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568 9. The learned HCGP supporting the impugned order has sought to reject the petition contending that there is prima-facie material to show the involvement of the petitioners and at this stage while considering an application seeking discharge, the Court cannot go deep into the matter as if it is conducting a mini trial. The learned HCGP supporting the impugned order has sought to reject the petition contending that there is prima-facie material to show the involvement of the petitioners and at this stage while considering an application seeking discharge, the Court cannot go deep into the matter as if it is conducting a mini trial. He contends that in view of the statement of the eye-witnesses, the trial Court is justified in rejecting the application and there is no illegality committed. Hence, he seeks to reject the petition. 10. It is no doubt true that in the first information report the names of the petitioners are not forthcoming. The FIR is registered on the basis of a complaint lodged by the brother of the deceased, who is not an eye-witness to the incident. According to the first information report, earlier there was an attempt to murder the deceased by the accused shown in the first information report, as such suspecting their involvement, they were named in the first information report. In the course of investigation the statements of eye witnesses namely CW-18 Tukkappa Nagappa Handigond and CW-19 Basavaraj Balkrishna Hollur were recorded on the very same day. Their statements reveal that they have seen the deceased being attacked with lethal weapons. After the arrest of accused persons, both CW-18 and 19 have identified them as the persons who attacked the deceased and committed his murder. The perusal of their statements go to show that they were not knowing the names of accused which they came to know later. In so far as identification of the accused, at this stage their statements cannot be doubted or simply brushed aside. Merely because there is no identification parade conducted, the statements of CW-18 and 19 cannot be ignored since, while considering an application seeking discharge, the Court has to find out whether there is a prima-facie case against the accused so as to proceed against them. If there is any contradictions or discrepancies in the statements of the witnesses recorded in the course of investigation, the same can be tested at the time of trial. It is well settled that at the stage of considering the discharge application, the Court is not expected to go deep into the probative value of the material on record. If there is any contradictions or discrepancies in the statements of the witnesses recorded in the course of investigation, the same can be tested at the time of trial. It is well settled that at the stage of considering the discharge application, the Court is not expected to go deep into the probative value of the material on record. On the other hand the Court has to form a presumptive opinion as to existence of factual ingredients constituting the of fence alleged and for that purpose the Court can not conduct a roving inquiry into the pros and cons of the matter and weigh the evidence as if it is contending a mini trial. Though there is undoubted power to sift and weigh the evidence, but only for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out. 11. In the case on hand the prosecution has collected material showing a prima-facie case against the accused petitioners so as to proceed against them. Hence, the Revision Petition fails and accordingly it is dismissed. 12. The learned Sessions Judge, while rejecting the application has imposed cost, which is unwarranted. Hence, imposition of cost is waived.