Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1268 (KER)

Purushan v. Shinu J. Pillai

2024-10-04

K.BABU

body2024
ORDER : The challenge in this Criminal Revision Petition is to the order dated 07.09.2019 in Crl.MP No.4761/2016 in S.C No.331/2015 passed by the Additional Sessions Court-II, Alappuzha. The revision petitioner is the defacto complainant. 2. The facts leading to the submission of the final report in S.C No.331/2015 are as follows: 3. On 08.03.2011 at midnight, the revision petitioner and two other charge witnesses were travelling on a motorbike. The accused, nine in number, formed themselves into an unlawful assembly, restrained the defacto complainant and the two others and attacked them with a knife, iron rod, etc., The accused attempted to commit murder. 4. In the FIR, Sri.Shinu.J.Pillai, accused No.9 in the final report was cited as accused No.1. The defacto complainant stated in the FIS that the accused persons in the leadership of accused No.9 committed the abovesaid acts. Charge Witness Nos.1 to 3 were the injured. They stated to the Police that accused No.9 was in the scene of occurrence and he directly participated in the commission of the offence. 5. The Investigating Officer, after the investigation, concluded that accused No.9 had no direct involvement in the overt acts alleged. The investigation concluded that he conspired with accused No.1 to commit the overt acts. Therefore, accused No.9 was included in the final report with the aid of the conspiracy theory. In the final report, accused Nos.1 to 10 are alleged to have committed the offences punishable under Sections 143, 147, 148, 149, 323, 324, 307 and 120-B of IPC. 6. Accused No.9 approached this Court seeking to quash the final report as against him filing Crl.M.C No.5513/2013. This Court, as per order dated 27.08.2014, disallowed his request, but permitted him to approach the Trial Court seeking discharge. 7. Accused No.9 filed Crl.M.P No.4761/2016 seeking discharge under Section 227 Cr.PC. The Trial Court allowed the application and discharged accused No.9 under Section 227 Cr.PC. 8. I have heard the learned counsel appearing for the revision petitioner, the learned Senior Counsel appearing for respondent No.1/accused No.9 and respondent No.3 and the learned Public Prosecutor. 9. The learned counsel for the revision petitioner submitted that the prosecution has placed sufficient material to establish the involvement of accused No.9 to sustain the charges levelled. 8. I have heard the learned counsel appearing for the revision petitioner, the learned Senior Counsel appearing for respondent No.1/accused No.9 and respondent No.3 and the learned Public Prosecutor. 9. The learned counsel for the revision petitioner submitted that the prosecution has placed sufficient material to establish the involvement of accused No.9 to sustain the charges levelled. The learned counsel submitted that the statements given by CWs 1 to 3 under Section 161 Cr.PC clearly reveal that accused No.9 actually participated in the commission of the offence at the scene of occurrence. The learned counsel further submitted that the material placed by the prosecution has established the element of conspiracy as alleged by the prosecution. 10. The learned Senior Counsel appearing for respondent No.1/accused No.9 submitted that apart from the statements of CWs 9 to 11 to the effect that accused No.9 had been living in inimical terms with the victims, there is no other material to implicate him as an accused. 11. The learned Senior Counsel submitted that though there is a reference to some conversations between accused No.1 and the holder of the mobile phone with SIM No.9846158885, there is nothing to show that the relevant phone was in possession of accused No.9. The learned Senior Counsel further submitted that the prosecution had not produced any material relating to the call details to establish the conversation allegedly made between accused No.1 and the person in possession of the other mobile phone on 05.03.2011. 12. The learned Public Prosecutor submitted that conspiracy is a matter to be proved during trial. It is further submitted that there cannot be any direct evidence to establish conspiracy, and the prosecution could establish only the circumstances that may point to the involvement of an accused who has been booked under the theory of conspiracy. 13. The Trial Court found that the only allegation against accused No.9 in the final report is that he had conspired with accused No.1 over the phone to commit the offences. The Trial Court observed that no witnesses have been cited in the final report to prove the theory of conspiracy, and the prosecution did not even produce the number of the mobile phone allegedly used by accused No.9 and the prime accused (Accused No.1). The Trial Court observed that no witnesses have been cited in the final report to prove the theory of conspiracy, and the prosecution did not even produce the number of the mobile phone allegedly used by accused No.9 and the prime accused (Accused No.1). The Trial Court recorded that the prosecution could not prima facie establish that the mobile number from which calls were made to accused No.1 on 05.03.2011 belonged to accused No.9. Therefore, the learned Sessions Judge concluded that there are absolutely no materials to frame charges against accused No.9. 14. At the time of framing charges, the Court 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. It is trite that where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained by him, the Court will be fully justified in framing a charge and proceeding with the trial. 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. 15. There can be no doubt that the stage of framing of the charges is an important stage, and the Court, before framing the charge, has to apply its mind judicially to the evidence or the material placed before it in order to make up its mind whether there are sufficient grounds for proceeding against the accused. 16. Criminal conspiracy is an independent offence. It is punishable separately. For the purpose of bringing the charge of criminal conspiracy read with the other IPC offence, the prosecution is required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of the other major offence. The prosecution may rely on the circumstances to establish the ingredients of criminal conspiracy. 17. In State of M.P. v. Sheetla Sahai (2009 (4) KLT Suppl. 155 (SC) = (2009) 8 SCC 617 ), the Apex Court has held as follows:- “Criminal conspiracy is an independent offence. It is punishable separately. The prosecution may rely on the circumstances to establish the ingredients of criminal conspiracy. 17. In State of M.P. v. Sheetla Sahai (2009 (4) KLT Suppl. 155 (SC) = (2009) 8 SCC 617 ), the Apex Court has held as follows:- “Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.” 18. It is trite that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned (Vide : Zakia Ahsan Jafri v. State of Gujarat, AIR 2022 SC 3050 )). 19. I shall turn to analyse the materials placed by the prosecution to implicate accused No.9 with the aid of conspiracy theory on the touchstone of the principles discussed above. It is true that CWs 1 to 3 were injured. They specifically stated in their statements under Section 161 Cr.PC that accused No.9 was at the scene of the occurrence, and he actually participated in the commission of the offences. The Investigating Officer, after analysing the evidence available, concluded that accused No.9 was not at the scene of the occurrence and that he had conspired with accused No.1 for the commission of the overt acts alleged. 20. The Trial Court has relied on the conclusion of the Investigating Officer to find out whether there is a prima facie case against accused No.9 based on the allegation by CWs 1 to 3 that he had actually participated in the crime. At the time of considering the question of framing charges the Trial Court relied on the conclusion of the Investigating Officer. 21. Though the Investigating Officer concluded that there was a conspiracy, the time and the date of the alleged conspiracy are not stated in the final report. Apart from the version of CWs 9 to 11 that accused No.9 had been living in inimical terms with the victims, no other materials are there to establish the element of conspiracy. 21. Though the Investigating Officer concluded that there was a conspiracy, the time and the date of the alleged conspiracy are not stated in the final report. Apart from the version of CWs 9 to 11 that accused No.9 had been living in inimical terms with the victims, no other materials are there to establish the element of conspiracy. It is very pertinent to note that there is absolutely nothing to show that there was meeting of minds of all concerned. 22. The learned counsel for the revision petitioner relied on the alleged mobile conversation between two persons holding mobile numbers 9846158885 and 9744801683 on 05.03.2011. Mobile phone with number 9744801683 was in the possession of accused No.1. Mobile phone with number 9846158885 was in the possession of one Suja, who is the wife of accused No.9. The call details regarding these two mobile numbers show that three calls were made on 05.03.2011 and one call was made on 09.03.2011. The call details further show that three SMS were sent from 9744801683 to 9846158885 on 09.03.2011. The contents of those messages were not made available. 23. The prosecution has not produced any material showing that the relevant numbers were used by accused Nos.1 and 9. Therefore, the necessary conclusion is that the prosecution could not produce anything to show that accused No.9 hatched a criminal conspiracy for the commission of the alleged acts. At the most, the prosecution could show a 'suspicion' as distinguished from grave 'suspicion'. 24. In Sajjan Kumar v. CBI, (2010) 9 SCC 368 ) on the power of the Court to exercise jurisdiction under Sections 227 and 228 Cr.P.C, the Apex Court held thus: “Exercise of jurisdiction under Sections 227 and 228 CrPC 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 25. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 25. In Sajjan Kumar, the Supreme Court held that 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. 26. In Sajjan Kumar, the Supreme Court further held that if two views are possible and one of them gives rise to 'suspicion' only, as distinguished from 'grave suspicion', the Trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 27. I fail to find any misreading of evidence by the Trial Court. I am unable to conclude that the view taken by the Trial Court is perverse or wholly unreasonable. The revisional power of this Court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the Court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction. (Vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015 (1) KLT SN 51 (C.No. 68) SC = (2015) 3 SCC 123 ), Munna Devi v. State of Rajasthan & Anr, (2001) 9 SCC 631 )) and Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation ( 2018 (2) KLT 158 (SC) = (2018) 16 SCC 299 ))). 28. Therefore, the Criminal Revision Petition lacks merits, and it is only liable to be dismissed. 29. Needless to say, in the course of the trial, if materials are made out to add respondent No.1 as an accused, the Trial Court is at liberty to invoke the provisions of Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023). 30. The Criminal Revision Petition is dismissed as above. 29. Needless to say, in the course of the trial, if materials are made out to add respondent No.1 as an accused, the Trial Court is at liberty to invoke the provisions of Section 358 of the Bharatiya Nagarik Suraksha Sanhita, 2023). 30. The Criminal Revision Petition is dismissed as above. All pending Interlocutory Applications, if any, stand closed.