Allowed

Naini Rajender Reddy v. the State of Telangana

Telangana HC3 Sept 2021CRLRC/58/2021

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision, holding that the trial court could not frame charges based solely on an inadmissible confession by a co-accused. The petitioner was discharged for lack of substantive material by setting aside the lower court order to charge him in a murder case.

What did the court decide?

Petitioner allowed and discharged from the case by setting aside the order passed in Crl.M.P. No.55 of 2020.

Naini Rajender Reddy Vs the State of Telangana — Criminal Trial and Appeal | Telangana HC (2021)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE THIRD DAY OF SEPTEMBER TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE JUSTICE G. SRI DEVI

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CRIMINAL REVISION CASE NO: 58 OF 2021

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Crl.Revision Case Under Section 397 and 401 of Cr.p.C. against the order dated 4-12-2020 in Crl.M.P. No. 55 of 2020 in S.C. No. 229 ot 2O1g ( Charge 206 I 2017l, in Crime No. 206 I ZO17 , on the file of the Court of the Special Sessions Judge for Trial of Cases Under SCs /STs ( pOA) Act - cum- llAdditional Sessions Judge, Warangal.

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Between:

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Naini Rajender Reddy, S/o. Narender Reddy, aged S0 years, Occ. Business, R/o. H.No.5-11-35/1, Naimnagar, Hanamkonda,- WaEngal Citi And Warangal Urban District

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...PETITIONERY Accused No. 7

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AND

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The State of Telqngana, Bep. by Public Prosecutor, High Court Hyderabad. Through Station House Officer, PS Hananikonda, Warangal City and Warangdl Urban District^-

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...RESPONDENT/ Complainant

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lA NO: 1 OF 2021

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Petition under Section 397 and 401 of Cr.P.C. praying that in the circumstances stated in the affidavit filed in support of the petition, the Hiqh Court may be pleased to direct grant of stay of all further proceedings including presence of the Petitioner in S.C.No.229 of 2019 (Charge 20612017) on the fite of Speciat Sessions Judge for Trial Cases under SC/ST (POA) Act-Cum-Vll Additional Sessrons Judge, Warangal, pending disposal of the above Criminal Revision Case.

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lA NO: 3 OF 2021

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Between:

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The State of Telangana rep. by the Public Prosecutor, High Court at Hyderabad

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...Petitioner / Respondent

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And

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Naini Rajender Reddy, S/o. Narender Reddy, aged 50 years, Occ. Business, Fl/o. H.No.5-1^'1-35/1 , Naimnagar, Hanamkonda, Warangal City, Warangal District

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Respondent / Accused

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Petition under Section 482 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the stay in l. A. No.1/2020 in Crl.P. No.58/2021 on the file of Hon'ble High Court dt 91212021 .

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Counsel for the Petitioner: SRI T. NIRANJAN REDDY, SENIOR COUNSEL FOR

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SRI M. P. KASHYAP

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Counsel for the Respondent: THE ASST. PUBLIC PROSECUTOR (TG) The Court made the following: ORDER

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FIONOUI{ABLE JUSTICE C.SIII DEVI

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CRL.I(.C.No.58 of 2021

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() l{ l) t: It:

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lhis Crinrinal llcvisior-r Casc is tiirectc.tl ag(tinst the ortler of tirt Special Sessiorrs^juclge for Trial of Cases unrler SCs/STs (l,OA) 1n Act-cum-li-Adciitional Sessions Judge, Warangal, passed Crl.M.P.No.55 of 2020 in Sessions Case No.229 of 2019, c{ated 04.12.2020, whereby the learned Special Sessions Judge dismissed the petition filed by the revision petitioner/ A-4, uncler Section 227 of Cr.P.C., seeking to discharge him for the alleged offer.ces punishable urrrier Sections 449, 302, 120-8 and 324 read n,ith section 34 of the LI'.C. aurl unrlcr Sectiorrs 25 (1) (a) ancl 27 (l) of the Arms Act, 1959

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Iievisior-r l)t,titiorrcr is Accr-rser'l No.4 in Crime No.206 of 2017, oI I Ianar-rrkontla l)olicc Statiorr, n,hich was rcgistc.rr.t'l for the offcrrcc.s prrrrishrrble untier Sectiorrs 452,302,32"1 read rvith Sectior-r 3,1 oi l.P.C. Sr.rbsecluently the Inspector oi Police, I-ianar-nkoncla Police Statior-r, after cor-npletion of entire investigation, filecl charge sheet agairrst the revision petitioner and others for the offences punishable trncler Sections 449,302, 120(8),324 read with Section 34 I.P.C. and Sections 25 (1) (a) and 27 (7) of Arms Act, 1959, which was taken cognizance as P.R.C.No.101 of 2018, and subsequently the same was committed to tlre Court of Se'ssions, which w,as numbered as S.C No.229 o( 2019 It is statL,(l that absolutelv there {as no rnaterial befort' the trial Court to irar-ne the charge undgl Sections 120-8 ancl 302 of l.lr.C

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GSD, J Crlrc 58 2021

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against the revision petitioner; the prosecution mainlv relied on the on allegetl confession rnade bv A-1 during the p'rolice custodv, 13.07.2017, rvl.riclr is not arlmissible under larv and hit t.rv Section 25 oI the Indiar-r Eviclence Act anr] if the saicl confession is kept 3sifl1,, r-to incrirrinating material is available to frarre tho chargr. against thc revision petitionel uncler Sections 120-ts ancl 302 oi LP.C. lt is alscr sLated i.hat the confc'ssior.r rrf co-accuscrl c.rnr.rot l.c tht' solo circurrrstance to frarne tl-re charge against the revisiorr petitioncr; arrcl tlrat since no prima facie material to frame the charges as alleged by the pr osecution, continuing the case against the revision petitioner is nothing but futile exercise, therefore, the revision petitioner filed Crl.M.P.No.55 of 2020 under Section 227 of Cr.P.C. requesting the tlial Court to ciischarge him for the said alleged offences. How,ever, the trial Court having considered the entire material available orr record, disrnissed the said pg1i1i6n trl' its order, tlate'd^04.12.2(12() \ggricvt'cl bv thr: saicl^()rdr'r, tlle rt'r'isiot't petitiont'r/,-1 [ilet] thc prL.sent Crir-uinaI Rcv isiorr Caso

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Ileard Sri T.Niranjar-r Reddv, learrretl Setrior Coutrst:l appearing orr [-,ehalf of Sri Nl.P.Kashyap, lear-necl Cotrr-rsel for^tht' rcvision petitioneu learned Assistant PuLrlic Prosecu tor a1'r1-rp6^{1 j11q} for the respondent and perusecl the record.

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It has been submitted by the learned Senior^Counsel appearing for the revision petitionel that on^{73.07.2017 one}

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/ i.

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(rSD. .l ('rlrc 5li l0l I

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Anishetty Saritha, lodged a complaint against Bommathi Vikram (A-.1), Varun (A-3) and Chiranjeevi (A-2) stating that they have attackecl her husband clue to previous r{isputes at the instigation of some other persons. Basing on the said complaint, a case in Crime No.206 of 2017 of Hanamkonda Police Statiory has been registered for the offences punishable under Sections 452, 302,324 read with Section 34 of I.P.C. Leamed Senior Counsel further submits that the murder of a Corporator by three individuals at Warangal took place on73.07.2017 and at 6.30 P.M. on the same day, they surrendered at the local police station. He further submits that A-1, in his confessiorral stateme'nt, stated that the revision petitioner haci instigateti hirn to commit the murtltr, but in adclitic,n to tho same, .- l also c()ltttrsscd that he har{ pL't'sonal rivalrt, n,itlr thc, tlect,;rser.l as the rleceaserl killecl his father. He further submits that while the rnatter stood thus, at about 10.00 P.M. on l3.0Z.2OlT, the wife of the deceased had lodged a police report and the same has been registered against A-1 to A-3, however, in the remand report, the revision petitioner is figured as A-4 basing on the so-called confessional statement of A-1, which was made even before registering the F.l.R. and, therefore, making the revision petitioner as A-4 is an after thought. Learned Senior Counsel also subrnits that except thc so-callt'tl r-ron-aclmissible confessional statement of A-1, rr,hit h u'trs recorrleLl bciore rtgistrrrtion of F.l.R., there is rro whisper in thc entirc charge sheet/with regarcl to the rolt of A-4, Ihc

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GSD..I Crlrc 58 2021

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Investigating Officer has filed charge sheet only basing on the socalled confession of A-1 and in this regard it is submitted that the confession of A-1 was firstly recorded on 13.07.2017 at 8.00 P.M., i.e., before receivirrg the complaint. Learned Scnior Counscl also submits tl-rat a cltarge caltnot lre frartrcd solt ly l.,asin1i on tht, t-ottit'ssiotr of co-.tcr rrscti, n hr'n no otht,r incritrrinatirrg rl,rtlrial i' availaLrlt orr rccorcl. Ihe- nraterial on rccorrl tloes r.rot ntirkt out a yrittm fncit: case against the revision petitiorrer aucl c.r,e'n therc is rro sus;-ricion much less strong suspicion to frame charge aga inst Lhc t-cV ls lo I1 petitiorler- .rntl that tl-rc investigating agencv has falscll ir.nplicatecl the revision petitioner in tl.ris case trasinEl on the confession of A-1 at the instigation of the TRS party as the r-evisiorr petitioner being the President of the Congress Party of Warangal District. He also submits that where there is no material other than statement of the co-accusecl, no person can be prosecuted on the basis oi the staternent macle by the co-accused. In support of his contention, he relier-l orr tlre follou,ing,udgmellts:-

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A.K,Subbainh and others tt. Stnte o.f Karnataka nnd othcrst

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R.S. Mishra r, Stntc o.f Orissa ntrd otlu'rs]

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Surindcr Krtntar Khatum tt. Intelligerrcc O.[f iccr, [)iractornle of Rez' er ut e I n te I I igen ce3

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Marrlrnribhai Muljibhai Kakndia a.utl artollrcr Shaileshbhai Mohonbhni Patel atul otltersr

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Tofan Singh o, State of Tanilnadus

( r987) 4 SCC 5s7

(2011) 2 scc 689

(20r8)8SCC27t

Crl.A.No.1557 of 2012

¶51

(;sl)..1 Crlrc 5u l0l l

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Leamed Assistant Public Prosecutor appearing on behalf of respondent contended that in the confessional statements, A-1 to A-3 have clearly stated about their involvement in the said offence as well as the instigation made by the revision petitioner and, therefore. in view of Sections 10 and 30 of the Evidence Act, the allegec{ confession, which is inculpatory statement mac-le by A-1 to i-3, is binding on the revision petitioner. He further subrnits that lhere is sufiicient m.rterial placecl bv the lt-rvestigating Agency arrcl ,tLrsolLrtelt'thcre is r-ro necessity to rlischarge the rtvisiorr l-retitiorrl.r l le also subrlits that w hile decicling trn applicatiorr untler Sectiotr 227 oi Cr.P.C., the trial Court was not requirecl to sift the entire evirlcnce. nor the revisior-r petitioner was entitle'cl to show any tlocurnent or lead any eviclence in his defence. He further submittec] that since the charge sheet disclose the offence and there were clocuments and materials in support of the charge, the application under Section 227 of Cr.P.C. has rightly been rejected by the trial Court.

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lrr Srrrcs/r llrrtlhtrrttrrI Kolrttti Alitrs Ptrytpu Kalntri t,. Statc ol Maluruslrtrat the Apel Court helcl as uncler:-

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"(.r. Thtrs sairl, ,,r'e ntav turn ()ur attctltion to thc confes:iorr rrr.rde l,r I)r Il.rnsal .rrtrl .l.l'.1\'a r't t SLrrr.rr.rLr. L-n.lcr Scclion

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lr ) ()i llrr, lr itlt'rrr't, .,\rl, lSll, .r conlessiorr Lrl .trr .tccrrst,tl is r'ir,.Url .Ir,,i .t(1[tis\i[)l(,.r1',,llt1st J (] J!(LlsL,rl it bLttlt .trt

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(102 l)lscc r "(199 8) 7 SCC i37

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(isl)..1 Crllc 58 l0l I

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jointly facing trial for tl-re same offencc. Sirrcc, admittecllr', Dr Bansal has been discharged from the case and would not be facing trial with Kalani, his confession cannot be used against Kalani. The impugned order shows that^the Designated Court was fully aware of the above^legal position but, surprisingly enough, it still decided to^rely upon the conJession otr the specious ground that^the prosccution was not in ant'way preclucled from^examinirrg Dr Bansal as a witncss ir.r the trial for estaLrlishing^{the facts} riisclosctl in his confession. This again^u'as a LrL'rvcrsc approach of the Dcsigrratotl Court^{w'hilctlcalirrg u'itlr llrc} riuestiorr of irarttirrg ch.rrgcs. At that^{stagt', tlrt' ctrurt is} rcr]rrir'!'rl tO confirtr' its .rttcntitltr to^{tttll' thosc tlr.rtt'ri.rls} collcctt'rl riuling irrvcstigatiorr n'hich^{catl [.,c legallr'} translatt'cl itrto cvi,.letlcc aucl :rot^{rtPrltr lurthcr (''i(lcl'lr('} (clehors thosc'matcrials) that thc prosecution mav^{acitlucc itt} the trial which would conllnence^{onlr- after the charges are} framed ancl the accused cienies the charges.^{The Designated} Court was, therefore, not at all iustified^{in taking into} consideration the confessional statement^{of Dr Bansalfor} framing charges against Kalani.

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So far as the confession of Jayawant^{Suryarao is} concerned, the same (if voluntary^{and true) can} undoubtedly be brought on record^{under Section 30 of the} Evidcnce Act to use it also against^{Kalani but thenthe} question is: what woultl be its evidenliarv^{vtrltrc a11.rinst lht'} lattt'r? I-hc^(luosti()r1 tr'as^{succitlctll .tltsrre:t'rl br tlle ,\Pt'r} Cor:rt in Kdsluttiro -sirrglr z'. Stntt^{o.l ,\I.I'.: rr'itlr tlrt'} follort'itrg u'orcls:

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"The proper way to apProach a case of this kind is,^{first, ttr} marshai thc evidcnce against tl-re^{accusetl excltlclingtho} conicssion altogctlrer frour consideration^{atrd sec whcther, iI}

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n lR lq5: sc r59

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GSI)..1 Crlrc 58 2021

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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 conJession in aid. But cases may arise where the judge is not preparecl to act on the other evidence as it stands even though, if believed, it woulel bc sufticient to sustain a conviction. In such an event the juelge r.nav c:rll in aid thc. confessir>n and usc it to lencl .lssurancc to the other et,iclence antl tlrus fortifv himseif in br:lieving n,hat without the aid oi the confession he woultl not be. ptcpared to acccpt."

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lrr Slrrlc tt.l Bilrort. llatnL'sh Silg/rn" ruhcrcirr tlris ('orrr.t ltas lairl tlon n tht principles rt,lating to iramit-rg oi charge atrcl r.lischarge as itrIiotvs

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"Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the begirrring and 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.

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It is not obiigatory for the ludge at that stage of the trial to consicier in any cletail and weigh in a sc'nsitive' L,aiance rvhether tl-re facts, if proved, rvoulcl be incompatilrlt w,itl-r tl-re, innocenct of the accusecl or not. 'l'l-rc stantlar,.l ()l test at1Ll jur.lgr-nc.r-rt n,l-rich is kr be finally applierl before recording a fincling regarcling thc guilt or otherwise of the accusecl is not exactlv b be applied at the stage of rlecicling the' matter under 5.227 or 5.228 of the Code. At that stage the Court is not to seL' whether there Is +ufficient grounci for conviction of the

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'^{ntRt977 sc 2ol8}

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(isl).,l Crlrc 58 lf)l I

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accuseri or rvhcther the trial is sun: to enrl in Iris conr.iction.

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Sfrong suspicion against the accused, if the matter remains in the reglon 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 glound for proceeding against the accused. Tl-re presumptior-r of the guilt of the accused r'r,hich is to Lrt, clr.rx'n at the initial stage is not in tht'st'trso irf thc ld\' !r,(rvenrinii the tlial ol .-rirlinal^(,rsr,s ilr Irran('a ,,r,hert thc accusccl is 1',rcslr,-na.1 to bc iiuiltv r,rn]css tlrc contrarv is proverl. But it is onlv fot' the purPose of decic'ling prima facie whether the court shou lcl procer'd with the trial or not.

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If the cvidence which the prosecu tor proPoses tc) adduce to prove the guilt of the accused even if^fully accepted before it is challenged in cross-examirration 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.

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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 theorv 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 rnaking an order unc1el 5.227^or S,228, then in such a situatiot't ordinarily ancl^gcnerallv tlrc orcler w,hich n'ill have to Lre t.tratle^r'r'ill [rt'otre utrr.lt'r S.228 ancl r-rot uncicr S.227."

GSD. J Crlrc 58²⁰²¹

In llnion of lndia^{a. Prafulla KummSamaland onothef} '^aftet sLrrvey of case^{law,thisis what the SupremeCourt has laid down:}

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"10. Thus, on a consicleration^{of the authorities mcntioned} a bov e, tltc^{tol ioin'i rrq principlesolrLrrllc-:}

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(1 ) 1 h.rt the Ju,.lge^{rvhile consitluring the qut, stit)r1 ()l'} iranring the^{chargcsuneler Section227 of tlie Cotlchas the} unr,loubtcll Po^'cr^{to sift and lveighthe evitlencefor the} lin-ritecl purpose^{of fincling out whether or not a primafacie} case against the^{accused hasbeen made out'}

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(2) Where the^{materials placed before the Court disclose} grave suspicion^{against the accused whichhas not been} properly explained^{the Court will be fully justified in} - framing a charge^{and proceedingwiththe 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 iay down^{a rule of universal application'By and} large however if^{two views are equally possible and the} Judge^{is satisfieclthatthe evidence producec'l before him} w,hile giving rise to^{somesuspicionbut not grave suspiciou} against the accused,^{hc'willbe fully withinhis riSht k)} el isc l.rarge the^accused.

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(4) That in exercising^his iurisdiction^{uncler Section 227 of} the Colle the Judge^{u'hich unclerthe present Cocle is} 'r setrior atttl expcric'ncetl^{court cannot act tlerclv as a Post} ()lliau (,r .t llr()uthPi(rce 0i the Prcrsecutiotr,^{:)ut I1'ls t()} cortsitler Ihu^{Lrroar.l probabilitiesoi thc casc, thc total r'ficet} of thc eviclerrcc^{.rnel the tlocumentsproducetl bcfore the} Court, any basic^{infirmities appearing in the case andscr} on. This however^{does not mean that the Judge should} make a roving enquiry^{into the} Pros^{and cons of the mattel} and weigh the evidence^{as if he was conducting a trial'"}

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n ArR 1979 sc a66

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( r\1) .l ( flf( 5S :r)-l l \

¶88

In the instant case, a pcrllsal oi tht matorial .tvailablc on record woulr'l show that on 13.07.2017 one Anishetty Sarita, loclgcd a complaint against Bonrrr-ratlri Vikrarn (A-1), Varun (A-3) anri Chirar.rjeevi (A-2) stating that they have attackecl her husbancl clue to previous disputes at the instigation of some other persons and basing on the said complaint, a case in Crime No.206 of 2017 of Hanamkonda Police Station, has been registered for the offences punishable uncler Sections 452, 302, 324 read with Section 34 of IP.C

¶89

In Saj.ian Kurunr o, C.B.L10 the Apex Court u,hile consiclerinq tl-re provisions i.e., frarning of cl-rarges and clischarge of the accust'cl, hclcl as u r-r rl e r:-

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"Exr,rcise of iurisdiction under Scctions 227.rnd 228 Crl'C: 21. C)u corrsidcration ot thc.ruthoritios a[,out thc sc()P('(]i Sectiorrs 227 and 228 of tl1e. Code, thc followitrg prir.tcipli's emerSe:

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(i) The Judge while considering the question of frarning the charges under Section 227 CIPC has the undoubted powcr 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 properlv explained, the court will bc fullv^justified in frar.ning a chargc ancl pvo6sglling with thc trial.

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' (1010 )^q S(^('.i6li

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GSD, J Crlrc 58 2021

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(iii) The court cannot act merely as a post office or a mouthpiecc of thc prosecution but htrs to considc,r tl-re broacl probabilities oi the case, the total eifect of the tvieience anr.l the r.'locuments proelucecl before the court, any basic iniinnities, ctc. Ho^,evL.r, at this stage, there cannttt be a rovir-rg cncluin, into the pros antl cons of thc tnatter artr.l rr'r,ig1h thr'(,'id('ltre as il hc rvas corrtiucting a trial.

¶97

(i') lt ()n thc basrs of thc ntatcrial ()t1 recor(I, the court coulrt form an opirrion that the accused might l.rave co;rmittetl offc.nce, 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.

¶98

(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 ot Sections 227 and 228, the court is roquireLl trl evaluate the material and documents on record x,ith a vierv to [itrr{ out if the facts emerging therefrom takcn at thcil f.rec vlluc ilisclosc the t,xistencc oI a]l tho irtgretlicnts constituting thir allegr:ti offcnce. Ftrr this lirtlterl purposc, si[t the cvir.lt,nce trs it cannot be erpectcrl cvell irt that initial stagc to accept all that thL, prosecutiou stat(]s as gospel truth evcn if it is oppose.tl to common sense or the broacl probabilities of the case.

¶99

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Juclge 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 Ieads the Court to think that there is ground for presuming that the accused has cornmittecl an offence, in that event, it is \ not open to the eourt to sav that there is no sufficicnt

GSD..I Crlrc 58 20ll

grouncl for proceeciing against the accused. A iudicial nragistrate encluiring into a casc uncler Section 209 of tlic Corle is rlot to act as.1 rrcre post office ancl has to arrivc at a conclusion r,.'lrcthr'r tlrr.' cast' befolc hitl is tit fr'r commitr.t.tr-.nt of tlrr' accusorl to tho Crrltt t of^Sossirrlr. i lt'^is cntitlcrl to sift arrtl rt'cigh tlrc tttatorials otr rccortl,^Lrttt otrlt for seoing u,hethcr thcrc is sufficicnt r:r'it{etrcc ftrr commitment, and not whether thcrc is sutficient^eviLlcncc for conviction. On the other hancl, if the Magistrate^firrcls that there is no prima facie evidence or the evidence Placecl is totally unworthy of credit, it is his duty to^dischargethe 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 matt$ and weigh the evidence^{as i{ he was conducting a} trial. This provision was introduced in the^{Codeto avoid} wastage of public time and to save the accused^from unavoitlablc harassntcut and cxPcntlitttl^{c. Whilo analr zirtg} Ilro rolc of tlrt' rcspotrclt'ttt ltcleitr^(A-6) iront^{tht'charlitlslrt't't} nr'rei tlrc nratt-'rials suirplit'rl^{alorrg llitlt it,th(' dh(r\ t'} Princi|'rlos^{haveto [',clkc1-rtin minei."}

¶104

'fhe Supreme Court further in the case of Asinr Shari.ff t. NIAI,, lras c.lealt w,ith the scope of^{Section 227 of the Cr.l'.C.f<rr'} clischarge of an accused.^Ir-r the aforesaid iuclgment,^{it has l-reerr hcltl} tlrat^"in exercise of power under Sections^{227 and 228Cr'.P.C., in the} Sessions Court (Section 239 Cr.P.C. Pertaining^{to warrantcases), the} trial Court has power to sift and^{weigh the evidence for the limited} purpose of finding out whether or^{not a prima} facie^{case againstthe} accused has been made out. If the^{material placed before the Court}

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' '^{(20 t9)7 scc t48}

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GSD. J Crlrc 58 2021

¶108

el isclost's grave suspicion against the accused w,hich has not been frropcrlv^{e.xplairrer'I,the Court} is.justified in frarning t.he charge. lt has also been held that if two views are possible ancl one of them gives rise to suspicion only, as distinguished from grave suspension, the trial Judge would be empowered to discharge the accused.,,

¶109

In the instant case, the contention of the learnercl Counsel for the revision petitioner is that a confession made in the presence of Police Officer is clearly inadmissible.

¶110

As seen from the record, immediately after committing the offerrce, A-1 to A-3 have surrenc-lered at the local police station, where the co.fessi.nal statements of A-1 to A-3 have been recorcleti b' thc lnvestigating Officer i.e., Inspector of police, Hanamkoncla I)olice station, in the presence of mediators. rn the saicl confessions, ,,- I hati sta ter.'l that .. tl-rt instigation marie bv the revisi.rr pctitio.t'r', he aloug *'ith A-2 anel A-3 cor-rmittetl the murcler of the r{eceasecl. Adrnitteclly, the name of the revision petitioner was arrayed as A-4 basing on the confessional statement of the co_ accused i.e., A-1. Apart from such confessional statement of A_1, nothing was produced on record to indicate the involvement of the revision petitioner.

¶111

Undotrbtedly, in Suresh Budharmal Kalani Alias papptr Knlati (6 supra), tl.re Apex Court has takerr the view that confe.ssion

¶112

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¶114

by a co-accused containing incriminating^{matter against a} Person would not by itself suffice to frarne charge^{against it.}

¶115

ln Ksshmirs -Sing/r z'. Shte of Madhrya^{Pnrdeslr ], th.' ,\1'111} (-ourt rclit'tl up()n thc ticcisiotr oi thc I'rrvv Ctlttncil it'r llhrrbtttri Solru tt. Tlrc Kittgtt arrd^{l.ricl tlon'llas unclt'r}

¶116

"Curub.rchan's confessiotr has playecl .lIl imP()rtant Partⁱⁿ ir.nplicatirrg thc apPcllalrt, ancl tlrc'^{qtrestiott at ottcc ettiscs'} hou. far .1nd in^{u'hatw'.rt' the confession of an accusot]} person can bc usecl against^{a co-accusecl?It is evilient that it} is not cvidence in the ordinary^{sense of the term because,as} the Privy Council say in Bhuboni^{Sahuv. The KingIt does} not indeed come within the^{definition of" 'evidence'} contained in section³ of the^{Evidence Act., It is not required} to be given on oath,^{nor in the} Presence^{of the accused, and} it cannot be tested by cross-^{examination." Their Lordships} also pr6in1 out that^{it is} "obviouslv^{eviclencecrf 21ts1v weak} type....,.... It is a much^{r.t'eakertyPe of eviclence than thc} cvidence of an approver,^{u'hich is trot subject to anv o[ thosc} irrlirmities.'

¶117

licccnilr', I lt Diynklfulrni ltgdisltchandt'a^{Patal t'-Slrrtr'rrl'} Grtjarnt anrl tnotherta^{llle r\pt'r Coltrtit.t paraNos 47 to 5() hclti as} rr n cl t'r

¶118

"47. A confession made to a Police^{Officcr is clearll'} inadmissible. The statement^{relied on by respondent is} dated 11.04.1996 and the^{appellant was arrestedon} L1.04.'1996. This is^pursuant to^{the FIR registeredon} L0.04.1996. The statement^{dated11.04.1996is made to a}

¶119

't^{etx l95z sc t5g} r: 1949 scc online PC l2 ''^{(20t9)l6 scc 547}

¶120

¶121

¶122

CSD..I C'rlrc ,s tl 202^I

¶123

Policr-,()[lict'r^'l his^{is cletlr frtllll thc statcl-Ilc11tirs aisolettet'} ,.l.rtc.l 10.0U.1996 (Anrlexurc^{R/t,) proelucellDv the} responrlent. lt is clearll'^{cluring the coursc ofthe} irrvestigation. Even^{if it doescontain admissions by virtue of} Section 162 and as interpreted^{by this Court in V.C. Shukla} and others (supra), such^{admissionsare clearly} inadmissible.

¶124

If the statement^{madeby the appellant on 11.04.1995is} inadmissible, then, there will^{only be the statemerlt of the} co-accuseci available^{to be considered in deciding whether} the charge has to be framed^{against the appellant or not lt is} here' that the law^{laici clown by this Court in Suresh} Brrtlharrnal Kalar-ri^{Alias Pappu Kalani (supra) becornes} a;rplicablc.

¶125

{9 \'c .rlso ittrtir'r' tht'^{iollorlirlpi st.l['l]lr.'llt itl :utltitlletlt} lcn,.1t.rr,.1 Lrr Be^Itt h oi^{5e lctr} Jr.rtlgcs^{ilr I l.trich.rr,lrt Krtrrllit} Sittc ol lJiha rr::

¶126

"As a result of the provisions containecl in S 30 of Evidence Act, the confession of a co-accused^{has to be regarcleclas} amounting to evidence^{in a generalway/ becausewhatever} is considered by the^{Court is evidence;circumstances} which are considered by the Court^{as wellas probabilities} clo amount to evidence in that^{generic sense.Thus, though} confession may be regarded^{as evidence in that generic} sense because of the^{provisions of S.30, the fact remains} that it is not evidence^{as defined by S.3 of the Act. The} result, the'refore, is that^{in dealingwith a case againstan} accusecl person, th!'Court cannot^{start with the confessi.rn} ,.rI a co-accusecl person; it l]rust begin^{with othcr cvitlencc} a,.ltluceel bl' thc prosccution^{an,'1 after it has tornletl its} opirrion ivith regarcl to thc'^{quality ancl effect of thc said} cvitlencc, then it is pcrrnissible^{to turnto the coniessiorr in}

\lli lL){,t ( lsl

l-;-€-...1

GSD..I Crlrc 58 2021

order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

¶132

Thus, the confession of a co- accused person cannot be treatecl as substantive eviclence and can be pressed into service only when the Court is incliued to accept otl"rer eviclcnce and feels tl.re ncccssity of seeking for an assurarrcc in su;.rport of its conclusions r.leriuciblc frLrnr lhe s.ticl evidr.nce. In crimirral c.rsos r.r,hcrc tht. otlrer cvitlcncc ar.ltiuceci agair.rst ;rn accuscrl Pcrs()n is rthollr' unsatisfactorv arrrl thc prosccution sccks to rclt on thc confcssion oi a co-.tccustltl 1',g1-5,11;1, tlrc ;-rrcsur.nl.rtior.t ul inuocence which is the trasis of criminal jurisprruclcnce assists the accused person and compels thc Court to rendcr the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.

¶133

Proceeding on the basis that it is a confession by a coaccused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and appellant appears to be proceeded against on his owrl) and having found that there is no recoverv frolrr the residence of the appellant of thr: countcrieit notes and that tlrcrc is no otlrcr matcrial on the basis rrf n hich 1.1'1'11 .r str.ot'r1l srtslricion coultl Lrt' .troLrs|ri,^,,r't rr oulci titrLl that tlrc rrr.rnrl.rtc oi tht' lar.r' rt:tiuilts Lls t() trc(' tllr' appcilant ilom being proceeclecl against. Accorciinglv, lle allou, the appeal ancl the petition iilecl unrler Scction -lti2 oi thc Cr.PC. The C)rcler ilnpugnccl passecl bv thc Scssi()ns Jurlgc^{franring thc clrarge againstthe appellantrvillstanr,l} set aside arrd thc- appellarrt will stand clischargecl."

¶134

In the instance case also apart from the confessional stateu'ter1t

¶135

of co-accused, there is no material suggesting involvement oi the

¶136

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GSD..I Crlrc 58 2021

¶138

revtslon petitioner in the crime in question. Further, in the confessionar statement of A-1, he has stated that he is having personal rivalry with the deceased in connection with the cleath of his father. On the touchstone of law laid down by the Apex Court, such confessional statement of co_accused cannot by itself be taken as a substantive piece of eviclence against another co_accused.

¶139

For the aforesaid reasons ancl having regarcl to the principles of Iarv laid clown bv the Apex Court in the juclgnrents referred to abo1,p n,.l.1 since the re,vision petitioner was arravecl as A_4 basing soJel-v o. trre c.nfessir, of co-accusecr,, which cannot be, treatc.cl as s'bstirrrti'e c'i''rrrrcc anri in the abst,nce ol aay substaative materiar, it rvoulll be iuappropriate to proceed against the revision petitioner purely on the confessional statement of co_accused.

¶140

Accordingly, this Criminal Revision Case is allowed and the petitioner/A4 is discharged from the case by setting aside the order passed in Cr1.M.p.No.55 of 2020 in S.C.No.229 of 2019 on the file of the Special Sessions Judge for Trial of Cases uncler SCs/STs (pOA) Ac t-c um-VII-Adcl itiona I Sessions Judge, Warangal.

¶141

SD/. CI{. VENKATESWARLU DEPUTY REGISTRA

//TRUE COPY'

SECT|ON OFFTCER

1, The Special Sessions Judge for Trial of Cases under SCs /Sts ( POA) Act - cumll- Additional Sessions Judge, Warangal (with records if any) 2. The Station House Officer, Hanamkonda Police Slation, !'arangal. 3 Two CCS to Public Prosecutor, High Court for the State of Telangana at Hyderabad. (OUT)

¶147