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2020 Supreme(AP) 5
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
T. Rajani, J.
Gurrala Surendranath @ Suri - Petitioner
Versus
The State of A.P. - Respondent
Criminal Revision Case Nos.151, 149 And 168 of 2018
Decided On : 06-05-2020
For the Petitioner: Virupaksha Dattatreya Gouda
Point of Law: court should be able to entertain a strong suspicion that the accused might be found guilty and in such case, order under Section 228 CrPC would have to be passed. If it is otherwise, the order under Section 227 CrPC would have to be passed. In this case, there are admittedly no witnesses who spoke about the involvement of A12 and A13 in the alleged offences though there are witnesses, who spoke with regard to the motive of A7 and about the earlier cases that were filed against A7.
Headnote:
Indian Penal Code, 1860 – Sections 302 and 120B r/w 149 – criminal revision cases are filed by A12, A13, and A7 respectively, seeking for their discharge – Held, As regards, A12 and A13, except confessional statements of the co accused, there is absolutely no material brought before this court. In the FIR and the statements of some of the witnesses, some unknown persons were also spoken as being present at the time of the offence. But those unknown persons were not identified by the concerned witnesses. The charge sheet shows that the requisition was made to conduct test identification parade, for some of the culprits. But as regards A12 and A13, no requisition seem to have been filed. The reason, as stated by the Public Prosecutor, for not conducting test identification parade for A12 and A13 is that they were absconding. But even after the arrest of the said accused, no efforts were made to get them identified by the witnesses. By mere call records between A12 and A13, with the other accused, the prosecution would not be able to prove the offences alleged against them unless the content of the conversation is brought forth. The name of A12 is not even referred by the co accused in their confessional statements - Court does not find any benefit that would be coming forth by proceeding with trial against A12 and A13. Leave alone strong suspicion, but no suspicion is also possible to be entertained from the material on which the prosecution places reliance. So far as A7 is concerned there are witnesses, who spoke about the motive and there are witnesses, who saw other accused going to the house of A7 on and around the day of offence. There are earlier cases between A7 and the deceasedCriminal Revision Case Nos.151 and 149 of 2018 are allowed and the Criminal Revision Case No.168 of 2018 is dismissed
Facts of the Case:
The charge sheet and the documents do not disclose any ground to presume that the petitioners/A12 and A13 have committed any offence for which they were charged. The lower court erred in observing that the averments of the FIR and the averments of LWs.1, 2, 3 disclosed about participation of the petitioners/A12 and A13 in the commission of the offence along with the other accused. The lower court based its order on an erroneous assumption that the above said witnesses have spoken about the petitioners/ A12 and A13, whereas LWs.1 and 2 did not state anything about the presence or participation of the petitioners/A12 and A13 in the alleged crime and that LW3 is not an eye witness and even her statement does not refer to the presence or participation of the petitioners/ A12 and A13 in the alleged offences
Finding of the Court:
As regards, A12 and A13, except confessional statements of the co accused, there is absolutely no material brought before this court. In the FIR and the statements of some of the witnesses, some unknown persons were also spoken as being present at the time of the offence. But those unknown persons were not identified by the concerned witnesses. The charge sheet shows that the requisition was made to conduct test identification parade, for some of the culprits. But as regards A12 and A13, no requisition seem to have been filed. The reason, as stated by the Public Prosecutor, for not conducting test identification parade for A12 and A13 is that they were absconding. But even after the arrest of the said accused, no efforts were made to get them identified by the witnesses. By mere call records between A12 and A13, with the other accused, the prosecution would not be able to prove the offences alleged against them unless the content of the conversation is brought forth. The name of A12 is not even referred by the co accused in their confessional statements -court does not find any benefit that would be coming forth by proceeding with trial against A12 and A13. Leave alone strong suspicion, but no suspicion is also possible to be entertained from the material on which the prosecution places reliance. So far as A7 is concerned there are witnesses, who spoke about the motive and there are witnesses, who saw other accused going to the house of A7 on and around the day of offence. There are earlier cases between A7 and the deceased
Result: Criminal Revision Case Nos.151 and 149 of 2018 are allowed and the Criminal Revision Case No.168 of 2018 is dismissed
ORDER :
These criminal revision cases are filed by A12, A13, and A7 respectively, seeking for their discharge in Sessions Case No.135 of 2017 on the file of the Court of Principal Sessions Judge, Kurnool.
2. All the above petitioners filed petitions before the Sessions Court, Kurnool, seeking for discharge and the same were dismissed. The grounds on which A12 and A13 seek for discharge are:
The charge sheet and the documents do not disclose any ground to presume that the petitioners/A12 and A13 have committed any offence for which they were charged. The lower court erred in observing that the averments of the FIR and the averments of LWs.1, 2, 3 disclosed about participation of the petitioners/A12 and A13 in the commission of the offence along with the other accused. The lower court based its order on an erroneous assumption that the above said witnesses have spoken about the petitioners/ A12 and A13, whereas LWs.1 and 2 did not state anything about the presence or participation of the petitioners/A12 and A13 in the alleged crime and that LW3 is not an eye witness and even her statement does not refer to the presence or participation of the petitioners/ A12 and A13 in the alleged offences. The lower court ought to have seen that the allegation in the charge sheet that in the last week of February, 2014, the petitioners/ A12 and A13 were present in the house of A6, when the alleged conspiracy was hatched, is not supported by any material. The lower court ought to have considered that as per the charge sheet LW31 witnessed the presence of the petitioners/ A12 and A13 at the house of A6 in the last week of February, 2014. It does not disclose any reference to the petitioners. The lower court erred in observing that the statements of LWs.31 and 32 disclose that all the accused met in the house of A6 one month prior to the incident. The alleged confessional statements of the petitioners are inadmissible in evidence. The lower court ought to have considered that inference of conspiracy cannot be drawn by mere proof of making phone calls, without proof of the content of conversation.
3. The grounds on which A7 seeks for discharge are as follows:
The lower court ought to have seen that there are no specific allegations made in the FIR/complaint against the petitioner. It ought to have seen that the final report/charge sheet fails to disclose any offence stated to have been committed. Specific allegations, attracting Sections 302 and 120B r/w 149 IPC are absent in the complaint and also in the final report. The lower court ought to have seen that an essential ingredient of Section120B is that where two or more persons agree to do an illegal act, the said allegation and agreement of persons and minds to do an illegal act is absent in the complaint and also in the charge sheet. The lower court ought to have observed that the confessions made by the accused were inadmissible in law as they are hit by Sections 25 and 26 of the Act; even if the confession of LWs.31 and 32 is accepted, it does not attract any ingredients of conspiracy. It ought to have seen that mere meeting of accused would not lead to an inference that there was a conspiracy. The lower court was wrong in observing that the circumstances relied upon by the prosecution cannot be ignored at this stage. Each of the circumstances relied upon by the prosecution must be fully established to show that such established circumstances leads only to the inference of guilt and no other relaxation is possible as held by the Supreme Court in a number of judgments. The lower court ought to have seen that no specific allegation was made against the petitioner, attracting the alleged offence. The lower court ought to have seen that the prosecution failed to establish motive as regards the petitioner. The lower court ought to have seen that even if the entire material relied by the prosecution is looked into it does not specify the alleged offence.
4. Heard.
5. The lower court has passed an elabora
