Dismissed

Suresh Babu @ Sundaran Binu v. State of Kerala

Kerala HC21 Dec 2022Crl.MC/2399/2022

Case brief

AI extract

What is this about?

The High Court dismissed a criminal miscellaneous petition under Section 482 Cr.PC challenging the dismissal of a discharge application. The Court held that the Sessions Judge was correct not to examine defence documents under Section 227, but noted that under Section 482, the High Court could review medical records. Finding witness testimony established the petitioner’s presence at the crime scen

What did the court decide?

Petitioner’s criminal miscellaneous petition dismissed; order of the Sessions Judge dismissing the discharge application upheld.

Suresh Babu @ Sundaran Binu Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944

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CRL.MC NO. 2399 OF 2022

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CRIME NO.440/2013 OF Kattakada Police Station, Thiruvananthapuram

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PETITIONER/S:

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1SURESH BABU @ SUNDARAN BINU
AGED 43 YEARS
MUTHIYAAVILA PUTHUVILAKOM,
THOTTAMPARA MURI, VEERANAKKADU VILLAGE,
THIRUVANANTHAPURAM.
NOW RESIDING AT LEKSHMI BHAVAN,
CHEMPAKATHINMOODU,
MUTHIYAVILA, KATTAKADA P.O.
THIRUVANANTHAPURAM., PIN - 695572
BY ADVS.
ARUN KRISHNA DHAN
R.ANANTHAPADMANABAN
T.K.SANDEEP
ARJUN SREEDHAR
ALEX ABRAHAM
VEENA HARIKUMAR

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RESPONDENT/S:

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1 1.STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682031 2. ANASOOYA K AGED 58 YEARS W/O SUNIL KUMAR, RESIDING AT SUNEEVARAM, AMBALATHINKALA.P.O, KATTAKADA, THIRUVANANTHAPURAM , PIN-695029. [ADDITIONAL R2 IMPLEADED AS PER ORDER DATED 25.5.2022 IN CRL.MA NO.3/2022 IN CRL.MC NO.2399/2022]

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16.12.2022, THE COURT ON 21.12.2022 PASSED THE FOLLOWING:

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CRL.MC No.2399 of 2022 2

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O R D E R

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The petitioner is the 11th accused in Crime
No.440/2013 of Kattakkada Police Station,
Thiruvananthapuram, which is now pending as
S.C.No.1296/2016 on the files of the Additional
Sessions Court-IV, Thiruvananthapuram. This
Crl.M.C is filed challenging the Annexure-1 order
passed by the learned Sessions Judge. As per the

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order impugned, the application numbered as
Crl.M.P.No.1703/2021 submitted by the petitioner
under Section 227 of the Code of Criminal

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Procedure (Cr.PC) seeking his discharge was
dismissed.

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2. The crime referred to above was registered

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against the petitioner and others, for the

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offences punishable under Sections 120B, 143, 147,
148, 149, 302, 201, 212 and 419 of the Indian
Penal Code (IPC).

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CRL.MC No.2399 of 2022 3

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3.The prosecution case is as follows:

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There were some financial transactions between

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CW12 and the 1st accused, and there arose some
dispute in connection with the same between the
said parties. Consequently, the 1st accused took
away the keys of the motor cycle of CW12, which

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was questioned by one Sreekumar on 2.5.2013 and
during the said process, he attacked the 1st
accused. Thereupon, the 1st accused underwent
treatment in Government Hospital, Kattakkada, on
2.5.2013. As a retaliation for the same, accused
Nos.2 to 4, 7 to 10 and 12 to 14 conspired to
murder the said Sreekumar. As part of the same,
accused Nos.7,8, and 11 arranged the 6th accused to
procure the weapons. Therefore, in furtherance of
their common intention, accused Nos.7,8,10 and 18
made sure that, Sreekumar was present at the scene
of occurrence and after that on 5.5.2013 at about

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6.45 p.m., they, along with accused Nos.1,2,4 and

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CRL.MC No.2399 of 2022 4

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5, formed themselves into an unlawful assembly
with dangerous weapons, went to Ambalathinkala at
Alamcode in vehicles and they brutally attacked
Sreekumar with a chopper. Due to the injuries
sustained, Sreekumar died. After that, accused
Nos.1 to 7 escaped from the scene of occurrence in
the vehicle on which they came and accused
Nos.10,17 and 18 also escaped from the scene of
occurrence. The 1st accused went on the motor cycle
of the 7th accused, and thereafter 5th accused was
dropped by the 15th accused near Karakonam Medical
College. 16th accused destroyed the evidence by
hiding the shirt worn by the 1st accused. 19th
accused came in an Innova car, took accused
Nos.1,6 to 9 and 11 to Thakkala and helped them
escape. It is also alleged that, it was the
petitioner/11th accused who arranged the Innova
car of the 19th accused to help accused Nos.1,6 to
9 to flee from the scene of occurrence. The final

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CRL.MC No.2399 of 2022 5

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report was submitted based on the same, and upon
being committed to the Sessions Court, it was made
over to the Additional Sessions Court-IV,
Thiruvananthapuram. Thereupon, Crl.M.P. No.
1703/2021 was filed by the petitioner under
Section 227 of Cr.PC, seeking his discharge, which
the court dismissed. The said order is under
challenge in this Crl. M.C.

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4.Heard Sri.T.K. Sandeep, the learned counsel
for the petitioner, Sri.Sudheer Gopalakrishnan,
the learned Public Prosecutor for the State and
Sri. A. Ananthapadmanaban, the learned counsel for
the 2nd respondent.

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5.The learned counsel for the petitioner
contends that, the petitioner is falsely
implicated in the aforesaid case and the
allegations raised against the petitioner are
highly improbable. The said contention was raised

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CRL.MC No.2399 of 2022 6

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by the petitioner mainly by placing reliance upon
certain medical records of the petitioner which
are produced as Annexure-2 and Annexure-3. It is
pointed out that the incident which is the subject
matter of the crime occurred on 5.5.2013, whereas
the petitioner was admitted to the hospital on
11.4.2013 as he was suffering from Dural Arterio
Venous Fistulas Type II A+B. On 16.04.2013 he
underwent surgery on his head, and thereafter he
was discharged on 17.04.2013 with the advice to

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have bed rest for a period of six weeks with

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frequent reviews. By relying on the said

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documents, it is contended that his physical
condition at the relevant time was very weak and
it was not possible for the petitioner to commit

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the offence as alleged by the prosecution. The
learned counsel contends that, despite the

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aforesaid aspect, the learned Sessions Judge

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proceeded to reject the contentions raised and

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CRL.MC No.2399 of 2022 7 therefore the petitioner seeks interference of this Court under Section 482 of Cr.PC.

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6.On the other hand, the learned Public

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Prosecutor would oppose the said contentions by
justifying the order passed by the learned
Sessions Judge. It is pointed out by the learned

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Public Prosecutor that the learned Sessions Judge
passed a detailed order wherein an elaborate
discussion about the materials produced by the
prosecution to substantiate the case against the
petitioner has been made. Regarding the reliance
placed on the petitioner's medical records, it is
contended by the learned Public Prosecutor that
under no circumstances can the said documents be
referred to by the learned Sessions Judge, as the
same is beyond the scope of Section 227 of Cr.PC.

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In other words, it was contended that, while

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considering the question as to whether charges are

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to be framed or not, it was not open for the

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CRL.MC No.2399 of 2022 8

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learned Sessions Judge to take into consideration

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the documents placed by the defence. The decision
could be taken by the learned Sessions Judge only
based on the materials placed by the prosecution
and nothing else. Therefore, the dismissal of the
Crl.M.C. was sought for.

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considered the contentions raised from either

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side. As rightly pointed out by the learned Public
Prosecutor, the learned Sessions Judge did not

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rely upon the documents produced by the

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petitioner, on the ground that it was not open for
the said court to take into consideration of the

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same. Taking into account the legal position on

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this issue, which is settled by the Hon’ble

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Supreme Court through a catena of decisions, I am
of the view that the finding entered into by the

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learned Sessions Judge on the said issue does not

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suffer from any legal infirmity. In Ajay Kumar

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CRL.MC No.2399 of 2022 9

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Parmar v. State of Rajasthan [2012(4)KLT SN
61(C.No.49)SCit was observed that any document
that the accused wants to rely upon cannot be read
as evidence. If such evidence is to be considered,

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there would be a mini trial at the stage of
framing charge and that would defeat the object of
the Code. The provision about hearing the

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submissions of the accused as postulated by S.227
Cr.PC means hearing the submissions of the

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accused, considering the materials placed on the

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record of the case by the prosecution and
documents submitted by them and nothing more.
Therefore, the non consideration of the documents
produced by the petitioner by the learned Sessions

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Judge, cannot be a reason for interference in the
impugned order.

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8.However, the petition before me is an

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application submitted under Section 482 Cr.PC, and

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while considering the same, this Court has wider

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CRL.MC No.2399 of 2022 10

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powers as held in Rukmini Narvekar v. Vijaya
Satardekar [2008(4)KLT SN 29(C.No.29)SC. In the
said decision, it was observed by the Hon’ble
Supreme Court that, even though there was no scope
for the accused to produce any evidence in support
of the submissions made on his behalf at the stage
of proceedings under Section 227, it was
permissible for the High Court in a proceeding
taken therefrom under Section 482 Cr.PC to
consider materials that may be produced on behalf
of the accused to arrive at a decision on whether
the charge as framed could be maintained.
Therefore, even though the learned Sessions Judge
did not consider the aforesaid aspect, I am
inclined to take note of the same while
considering this application as the present
proceeding is under Section 482 Cr.PC.

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9.It is true that Annexures 2 and 3 documents

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would reveal that at the relevant time, the

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CRL.MC No.2399 of 2022 11 petitioner was undergoing treatment after the surgery as claimed by him. He was also advised to take bed rest at the relevant time. However, the crucial aspect to be noticed in this regard is that some of the witnesses, namely CW19, CW22, CW23, CW24 and CW41 expressly referred to the role of the petitioner and also about the physical presence of the petitioner along with the other accused persons in certain places. CW19 stated

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that on the date of the occurrence at 8 p.m., he
found the petitioner along with some of the
accused persons and he stated that, he along with

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the other accused persons, went in a car driven by
CW19. In his deposition, he also states that among

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the said persons, one of the accused, viz. Shambu
was wearing a blood stained shirt.

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10.CW22 is a person residing in Andipetty in

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Theni District and his wife is a close relative of

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the petitioner herein. He stated that on 6.5.2013

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CRL.MC No.2399 of 2022 12

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the petitioner and some of the accused came to the

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residence of CW22 and informed him that the

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persons accompanying him were involved in a

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criminal case and they wanted shelter for some

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time. CW23 is the wife of CW22. CW24 is an

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employee of CW22. The statements of the said
witnesses are also in tune with the information

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given by CW22, and therefore there are materials
to suggest that the petitioner came to Theni
district on 6.5.2013, which is on the next day of
the incident along with some of the accused
persons. Besides the same, CW41 also stated that

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the petitioner used his brother's sim card to make
arrangements for the commission of the crime.

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Thus, when all the aforesaid statements are taken
into consideration, it can be seen that the said
witnesses specifically referred to the physical
presence of the petitioner along with the other

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accused persons. The duty of the court while

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CRL.MC No.2399 of 2022 13

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considering an application under Section 227

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Cr.PC is to determine whether there are sufficient

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grounds for proceeding against the accused. In
Sajjan Kumar v. CBI[(2010)9 SCC 368], the Hon’ble
Supreme Court laid down the guidelines which are
applicable while considering the question of
framing charges at the stage of section 227 Cr.PC

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which reads as follows:

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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

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CRL.MC No.2399 of 2022 14

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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

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(vi)Atthestageof 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.”

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CRL.MC No.2399 of 2022 15

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it is evident that, based on the materials,
the court has to form an opinion that the
accused might have committed the offence, to

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frame the charge. At the time of framing of the
charges, the probative value of the materials
relied on cannot be gone into, but the

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satisfaction which has to be arrived at by the
court is that the commission of the offence by the
accused was possible. When the materials placed on
record are taken into consideration in that
perspective, I do not find any reason to interfere
with the order passed by the learned Sessions

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Judge. This is particularly because the
petitioner's contention is mainly relying upon his
physical condition, as revealed through Annexure
A2 and Annexure A3. However, as mentioned above,
the statements of some of the witnesses referred
to above indicate petitioner’s physical presence
in specific locations along with the other accused

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CRL.MC No.2399 of 2022 16

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persons and it also prima facie shows the
involvement of the petitioner. Therefore, the
physically weak condition claimed by the

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petitioner based on Annexure 2 and Annexure 3
documents are inconsistent with the statements of
the said witnesses. Therefore, it is a matter of
evidence and indeed, the aforesaid statements
create a grave suspicion that the petitioner is
involved in the matter. In such circumstances, the
contentions raised by the petitioner by relying on
the medical documents cannot be considered at this
stage.

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In the result, I do not find any merit in this
Crl.M.C. and accordingly, it is dismissed without
prejudice to the contentions of the petitioner, which
he has to raise before the trial court during the
trial. Sd/-

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 Sd/-

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 ZIYAD RAHMAN A.A.
 JUDGE

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pkk

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CRL.MC No.2399 of 2022 17

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APPENDIX OF CRL.MC 2399/2022

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PETITIONER’S ANNEXURES:
ANNEXURE - 1TRUE COPY OF THE ORDER DATED 25.03.2022 IN
CRL.M.P 1703/2021 IN S.C 1296/2016 OF ADDL
SESSIONS JUDGE-IV THIRUVANANTHAPURAM
ANNEXURE - 2TRUE COPY OF THE CASE SUMMARY AND DISCHARGE
RECORD OF THE PETITIONER DATED 17.04.2013
ISSUED FROM SREE CHITRA TIRUNAL INSTITUTE OF
MEDICAL SCIENCE AND TECHNOLOGY, TRIVANDRUM
ANNEXURE - 3TRUE COPY OF THE CASE SUMMARY AND DISCHARGE
RECORD OF THE PETITIONER DATED 02.03.2022
ISSUED FROM SREE CHITRA TIRUNAL INSTITUTE OF
MEDICAL SCIENCE AND TECHNOLOGY, TRIVANDRUM

Suresh Babu @ Sundaran Binu v. State of Kerala

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Suresh Babu @ Sundaran Binu v. State of Kerala

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