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2020 Supreme(AP) 52
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
T. RAJANI, J.
Gurrala Surendranath @ Suri – Appellant
Versus
The State of A.P. – Respondent
Criminal Revision Case Nos. 149, 151, 168 of 2018
Decided On : 06-05-2020
Advocate Appeared:
For the Appellant : Virupaksha Dattatreya Gouda.
Point of Law: 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 s. 227 or s. 228 then in such a situation ordinarily and generally the order which will have to be made will be one under s. 228 and not under s. 227.
Headnote:
Penal Code, 1860 – Sections 302 – Offence of Murder – Discharge petition – Dismissed – lower court has passed an elaborate order, dismissing the petitions filed by the petitioners seeking for their discharge – 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.
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 LW-3 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.
Finding of the Court:
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.
Result: Criminal Revision Case Nos. 151 and 149 of 2018 are allowed
ORDER :
1. 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 LW-3 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 LW-31 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 e
