Partly allowed

Kinnera Balamma v. The State of Andhra Pradesh

Andhra Pradesh HC18 Mar 2021CRLRC/1859/2018

Case brief

AI extract

What is this about?

In a criminal revision challenging the dismissal of a discharge application, the high court held that the prosecution failed to make out a prima facie case against A-32, who was only named omnibusly. Accordingly, the lower court's acquittal order was restored for her, while the order against co-appellant A-33 was affirmed.

What did the court decide?

Discharge order restored for A-32; Revision dismissed as against A-33.

Kinnera Balamma Vs The State of Andhra… — Criminal Trial and Appeal | Andhra Pradesh HC (2021)

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THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL REVISION CASE No.1859 of 2018

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ORDER:

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Challenging the order dated 12.07.2018 in Crl.M.P.No.95 of 2018 in S.C.No.3 of 2018 on the file of the Court of VII Additional District Judge, Vijayawada, whereby the petition filed by the petitioners herein under Section 227 of Criminal Procedure Code, 1973 (for short “Cr.P.C”) seeking to discharge them for the offences charged against them was dismissed, this criminal revision case under Section 397 & 401 of Cr.P.C. has been filed.

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The brief facts which led to filing this revision are that the petitioners herein were arrayed as A-32 and A-33 in Sessions Case No.3 of 2018 for the offences punishable under Sections 120-B, 148, 302, 440, 212 r/w 149 of Indian Penal Code, 1860 and Sections 25 & 27 of Indian Arms Act,1959. A-32 is the mother of A-33.

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The case of the prosecution is that it is a gruesome murder of the trio happened on the National Highway-16 in the broad day light at Pedavutupalli Village, Unguturu Mandal in Krishna District on 24.09.2014 at about 10:00 AM, wherein the deceased Nos.2 and 3 who are arrayed as accused in the murder case which was registered as Cr.No.83 of 2014, U/s.302 r/w 34 IPC of Pedavegi Police Station have arrived on a flight from Mumbai on 24.09.2014 at Ganavaram Airport to attend the Court proceedings in the said Crime and deceased No.1 who is the father of deceased Nos.2 & 3 picked them up to proceed to Eluru and while they were travelling in a Tavera Car bearing registration No.AP20 Y 0500 around 10:10

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AM which was driven by one Patnala Naresh (LW1), the assassins chased them in a Mahendra XUV and forced them to stop next to the road divider on NH-16, opposite to Vege Tatayya Gardens at Pedaavutupalli Village, Unguturu Mandal. When the driver steered to a halt, the assassins car having a false registration number plate as AP 20 AL 5432 rammed into it from behind forcing it to a complete halt. Within no time, three persons got down from the car and two persons from left side of the car and one person from right side of the car i.e. A-8, A-9, A-10 and A-11 opened fire in point blank range targeting the deceased 1 to 3 who were seated in the rear seat of the Tavera Car. A-7 & A-9 who were riding on the red pulsar bike who were chasing the car also participated in this attack with weapons and gunned down the deceased 1 to 3.

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The petitioners herein filed Crl.M.P.No.95 of 2018 under Section 227 of Cr.P.C. seeking to discharge them for the offences leveled against them. The Court below by order dated 12.07.2018 dismissed the said application. Assailing the same, the present revision is filed.

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Heard Sri T.Nagarjuna Reddy, learned counsel for the petitioners and learned Public Prosecutor appearing on behalf of respondent-State.

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Sri T.Nagarjuna Reddy, learned senior counsel appearing on behalf of the petitioner submits that in the entire charge sheet absolutely there is no allegation against the petitioners who are A-32 and A-33 to connect them with the alleged offences. He submits that the witnesses i.e. L.Ws.42 to 44 who are respective wives of deceased 1 to 3, have not stated anything against the

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petitioners. Learned senior counsel has drawn the attention of this Court to the charge sheet and submits that only omnibus allegations are made against the petitioners. Learned senior counsel referred to the charge sheet where the names of A-32 and A-33 are mentioned. According to him at Page No.7 of the charge sheet it is stated that A-1 to A-6 and A-20 to A-49 developed deep grudge against the deceased family for murdering their relative Bhuttam Durgarao, conducted a meeting near burial ground at the time of his obsequies and conspired together to do away the life of the deceased by any means to execute their deadly plan to murder the deceased and relatives.

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He further submits that in the charge sheet it is stated that A-1 to A-4, A-6 and A-20 to A-49 in pursuance of plan by A-1, A-2 planned to secure hired killers from Delhi. It is also stated that all the accused with a malafide intention, secured SIM numbers from different networks by furnishing fake and false identity proofs and at S.No.32 in the table given in the charge sheet, the name of A-33 was mentioned. Again at Page No.9 of the charge sheet it is stated that on 01.07.2014 all the accused are in touch with each other for execution of their plan, where the name and phone number of A-33 was mentioned.

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Learned Senior Counsel further submits that at page 9 of the charge sheet the particulars of the accused and their sim numbers were mentioned wherein the name of A32 does not find place. At page 10 of the charge sheet at one place it is mentioned that A1 was in constant touch with A3 to A5, A20 to A26, A28, A30, A33, A34, A36, A39, A42 and A46 through their respective mobile

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numbers and at page No.13 of the charge sheet it is stated that on 20.09.2014, A5 and A6 got information through their informants that D2 and D3 would come from Mumbai to Eluru to attend Court on 24.09.2014. A1 to A6 and A20 to A49 made up their mind to execute their plan of murder. Except this there is no mention about A32 and the names of A32 and A33 are not mentioned. It is argued by the learned counsel for the petitioners that A32 is an old woman and she is suffering from old age ailments. Further except stating that all the accused have conspired together, there is no evidence to show the participation of the petitioners. Again at Page No.10 of the charge sheet, it was stated that A-1 through his mobile number was in constant touch with A-3 to A-5, A-20 to A- 26, A-28 to A-30, A-33, A-34, A-36, A-39, A-42 and A-46 through their mobiles, where the name and phone number of A-32 was not mentioned. At Page No.11 of the charge sheet, the name and phone number of A-33 was mentioned.

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Learned Senior Counsel further submits that at Page No.13 of charge sheet, omnibus allegation was made stating that A-1 to A-6 and A-20 to A-49 made up their mind to execute their plan of murder of deceased when they came to Eluru to attend the Court. Finally, at Page No.37 of the charge sheet it is mentioned that there is strong evidence collected against all the accused. A-1 to A- 6, A-20 to A-49 conspired to murder the deceased, played a role in giving shelter prior and after the incident, arranging of money, arms, ammunitions, information, transport and weapons and finally carrying out the murder of the deceased. It is further stated that all the accused are conspirators to the offence of murder and

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every accused has actively participated in the incident by securing hired professionals.

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Learned Senior Counsel has drawn the attention of this Court to the charge sheet filed and submits in the entire charge sheet the name of A32 finds place at page 7 of the charge sheet wherein it is stated that A2 left to abroad during the month of August, 2014 with an intention to create alibi that he is no way connected with the murder of deceased Nos.1 to 3. A5 with active support and instigation of A1 to A4, A6 and A20 to A49 in pursuance of plan by A1, A2 planned to secure hired killers from Delhi. According to their plan all the accused secured sim numbers from different networks by furnishing few of own or more of fake and false ID proofs. In the charge sheet the particulars of the accused and respective numbers are mentioned in a tabular form in which the name of A32 does not find place but reflects the name of A33.

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Learned Senior Counsel submits that all the allegations in the charge sheet are omnibus allegations and there are no specific overt acts against the petitioners.

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He placed reliance on the judgment of the Apex Court in Central Bureau of Investigation, Hyderabad Vs. K.Narayana Rao¹ , wherein the Hon’ble Apex Court held as under:

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“… It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

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1 (2012) 9 SCC 512 = MANU/SC/0774/2012

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Exercise of jurisdiction under Sections 227 and 228 CrPC

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On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

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(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.

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(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.

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(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.

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(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.

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(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

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satisfied that the commission of offence by the accused was possible.

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(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.

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(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.” From the above decisions, it is clear that at the initial stage, 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, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. A judicial magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a

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trial. This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analyzing the role of the respondent herein (A-6) from the charge sheet and the materials supplied along with it, the above principles have to be kept in mind.”

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Learned Senior Counsel submits that while dismissing the discharge petition the Court below failed to take into consideration the important aspects. As far as A-32 and A-33 are concerned, no reasons were accorded for dismissing the discharge petition. As far as A-33 is concerned, it is only stated in the order that he is the best friend of A-1 and he participated in the earlier attempts made by the accused to eliminate the deceased at Sub Jail, Eluru, as such there is material against the A-33. Insofar as A-32 is concerned, nothing has been observed by the Court below. At Para No.17 of the order, just an observation was made by the Court below that there is sufficient material on record to frame charge against A-32 and A-33 for the alleged offence.

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Learned Senior Counsel submits that the Court while dealing with the discharge petition cannot make a roving enquiry. He submits that the Court can discharge the accused, if two views are equally possible and one of them gives suspicion only, but not grave suspicion.

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On the other hand, learned Public Prosecutor submits that there is sufficient material to connect the accused, as in the charge sheet itself it is clearly stated that the petitioner obtained SIM cards and he was in constant touch with the accused before and also on the date of commission of the offence. He submits that

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A-32 who is the mother of A-33 has given information with regard to movements of deceased to A-1. A-33 has made phone calls to A- 32, which itself shows that she is also part to the conspiracy. He submits that the prosecution has made out a prime facie case to connect the petitioners with the offence and all the contentions raised by the petitioners are matter of trial and those cannot be considered at this stage. The conspiracy is well established among all the accused. As such the Court below has rightly dismissed the discharge petition, there are no grounds to interfere with the impugned order.

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Heard the learned counsel on either side and perused the material on record.

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Under s. 226 of the Code the prosecutor while opening the case 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 submission of the accused and the prosecution in that behalf. The Judge has then to pass thereafter an order either under S. 227 or 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”, so 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:

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(b) 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 juxtaposition, 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 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 section 227 or section 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 the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage 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 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

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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. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227.

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( State of Bihar Vs. Ramesh Singh² )

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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.

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(Bhawna Bai Vs. Ghanshyam and others³ )

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2 (1977) 4 SCC 39 = 1977 LawSuit (SC) 249

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3 (2020) 2 SCC 217 = 2019 LawSuit (SC) 1941

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There is also no doubt that discharge application is the remedy that is granted to the person who has been maliciously charged. If the allegations which have been made against him are false, the criminal code provides provisions for filing a discharge application. If the evidence given before the Court is not sufficient to satisfy the offence and in the absence of any prima facie case against him he is entitled to be discharged. However, it is well settled law that the defence of the accused cannot be looked into and probative value of evidence need not be gone into at the stage of considering discharge petition.

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The following factors have to be taken into consideration while dealing with discharge petitions:

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(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.

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(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.

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(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

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suspicion against the accused, he will be fully within his right to discharge the accused.

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(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 mean 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.

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(Union of India vs. Prafulla Kumar Samal⁴ )

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It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution.

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(Niranjan Singh and others vs. Devinder Singh⁵ )

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In this case the Court below has dismissed the petition holding that the material on record divulges prima facie case in

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4 AIR 1979 SC 366

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5 AIR 1990 SC 1869

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support of formal accusation against A32 and A33 and the material is sufficient to frame the charge. Therefore, there is no necessity to make roving enquiry. It is observed by the Court below that as far as A33 is concerned the investigation officer collected evidence which reveal participation of A33 in the commission of offence along with other accused and also there is material to show that he is best friend of A1 and he has participated in the attempts made to eliminate the deceased.

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The Court below while dismissing the discharge eptiton in a mechanical manner has observed that as per the material on record there is priam facie case against A32 and A33. In the entire order except pointing out the allegation against A33 nothing has been observed by the Court below what are the allegations against A32. Having perused the entire charge sheet this Court is of the considered view that the prosecution failed to make out a case prima facie against A32, whereas as far as A33 is concerned there is prima facie material to connect him to the alleged crime.

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In view of the above discussion, the criminal revision case is allowed in part setting aside the order dated 12.07.2018 passed in Crl.M.P.No.95 of 2018 in S.C.No.3 of 2018 by the learned VII Additional District Judge, Vijayawada, as far as A-32 is concerned and A32 is discharged from the offences charged against her and the revision is dismissed as far as A-33 is concerned.

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As a sequel, all the pending miscellaneous applications are closed.

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___________________________ LALITHA KANNEGANTI, J

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18^th March, 2021 PVD/IKN

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THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

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CRIMINAL REVISION CASE No.1859 of 2018

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