Haridas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935** ## **Crl.MC.No. 3163 of 2013** **--------------------------SC.NO.550/2013 OF ADDL.DISTRICT & SESSIONS COURT FAST TRACK (ADHOC III), THIRUVANANTHAPURAM .....** **(CRIME NO.1399 OF 2012 OF VATTIYOORKAVU POLICE STATION)** **......** **PETITIONER(S)/ACCUSED NO 6: ----------------------------------------------------** **HARIDAS, AGED 68 YEARS, S/O. LATE KRISHNAN NAIR, SIVAM VEEDU, P.T.P WARD, KANJIRAMPARA EAST, VATTIYOORKAVU, THIRUVANANTHAPURAM.** ## **BY ADVS.SRI.B.RAMAN PILLAI** **SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** ## **RESPONDENT/ COMPLAINANT:** **----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **BY ADDITIONAL DIRECTOR GENERAL OF PROSECUTION SRI.TOM JOSE PADINJAREKKARA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/08/2013, THE COURT ON 07/08/2013 PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 3163 of 2013** ## **-----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: --------------------------------------------ANNEXURE A THE TRUE COPY OF THE FIRST INFORMATION REPORT DATED 24-12-2012 IN CRIME NO.1399 OF 2012 OF VATTIYOORKAVU POLICE STATION. ANNEXURE B THE TRUE COPY OF THE REMAND APPLICATION DATED 06-01-2013 OF ACCUSED NOS 1 TO 5 IN CRIME NO 1399 OF 2012 OF VATTIYOORKAVU POLICE STATION. ANNEXURE C TRUE COPY OF THE FINAL REPORT IN CRIME NO 1399 OF 2012 OF VATTIYOORKAVU POLICE STATION. ANNEXURE D THE CERTIFIED COPY OF THE ORDER OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (FAST TRACK) COURT III DATED 19-07-2013 IN CRL M.P NO 2392 OF 2013 IN S.C NO 550 OF 2013. ANNEXURE E THE CERTIFIED COPY OF THE CHARGE FRAMED IN S.C. NO 550 OF 2013 OF THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (FAST TRACK)- COURT III DATED 19-07-2013. RESPONDENT(S)' ANNEXURES: ----------------------------------------------N I L** **/TRUE COPY/ P.S.TO JUDGE** **Kss** ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **CRL.M.C.No. 3163 of 2013** **----------------------------------------** Dated this the 7[th] day of August, 2013 ## **O R D E R** The above petition is filed under Section 482 of the Cr.P.C. at the instance of the sixth accused in S.C.No.550 of 2013 on the file of the Additional District and Sessions Judge, Fast Track Court-III, Thiruvananthapuram with a prayer to quash Annexure C final report in the above referred Sessions Case and to set aside the order dated 19.7.2013 in Crl.M.P.No.2392 of 2013 in the above sessions case, which is produced along with this M.C. as Annexure D, by which the learned Sessions Judge dismissed the above petition filed by the petitioner under Section 227 of the Cr.P.C. seeking his discharge from the above case. 2. Heard Sri.B.Raman Pillai, the learned counsel for the petitioner and Sri.Tom Jose Padinjarekkara the Additional Director General of Prosecutions. Crl.M.C.No. 3163 Of 2013 :-2-: 3. The above sessions case is instituted for the offences punishable under sections 120B, 328,396,302,201 and 34 of I.P.C. in the Sessions Court, Thiruvananthapuram on the basis of the committal proceedings of the Judicial First Class Magistrate Court-II, Nedumangad, upon a police report in Crime No.1399 of 2012 of Vattiyoorkavu Police Station and thereafter the case is made over to the present trial court. 4. The prosecution allegation is that one Harihara Varma was murdered on 24.12.2012 between 1 p.m. and 1.20 p.m. connected with robbery of valuable precious stones in the possession of the deceased Harihara Varma. 5. The prosecution allegation against the petitioner, who is the sixth accused, is that he had accompanied the deceased on previous occasions at different places where there were negotiations with the other persons regarding the sale of precious stones, which were in the possession of the deceased. According to the prosecution, the Crl.M.C.No. 3163 Of 2013 **==> picture [21 x 9] intentionally omitted <==** petitioner was a friend of the deceased and the petitioner/accused was present at the scene of occurrence, which is the house of the petitioner's daughter when the deceased was murdered. Thus, according to the prosecution, all the accused, including the petitioner, have committed the offences punishable under Sections 328,396,302,201 read with Section 34 of I.P.C. Section 120B of I.P.C. is alleged against all the other accused, but the petitioner is exempted from the allegation of conspiracy. At the time of framing the charge, the petitioner herein preferred Crl.M.P.No.2392 of 2013 under Section 227 of the Cr.P.C. for his discharge from the above case, which was declined by the learned Sessions Judge as per Anenxure D order and the learned Judge framed Annexure E charge against the accused including the petitioner. 6. Sri.B.Raman Pillai, the learned counsel for the petitioner strenuously submitted that except the presence of the petitioner, at the place of occurrence, which the petitioner himself admitted, the Crl.M.C.No. 3163 Of 2013 :-4-: prosecution has not produced any evidence or material to implicate the petitioner in the above crime and as such, the materials produced by the prosecution do not disclose any facts which are sufficient to constitute essential ingredients of section of offences sought to be proved against the petitioner. To substantiate the above contention, the learned counsel took me through the materials and documents produced along with the above M.C. According to the learned counsel, the petitioner became the friend of the deceased within a short time and at the request of the deceased, he accompanied the deceased to the building of his own daughter where the alleged offence has taken place. According to the counsel, while the deceased was attacked, the petitioner was simultaneously attacked by the accused and plastic adhesive pasted on his mouth and his both hands were tied on his back and he too was administered with chloroform and after regaining consciousness, the petitioner untied his hands and came out of the house and as his two mobile phones were robbed by Crl.M.C.No. 3163 Of 2013 :-5-: the other accused, he had gone to a nearby house and from where he contacted his son, who in turn contacted the Police pursuant to which the Police attached to the Vattiyoorkavu Police Station came at the scene of occurrence. So according to the learned counsel for the petitioner, except the confession statement of the other accused, there is no material or any legal evidence to implicate the sixth accused, the petitioner herein. So, according to him, even if the prosecution materials and evidence are uncontroverted, no offence would disclose against the petitioner and therefore, the proceedings pending against the petitioner is an abuse of process of court and Annexure D order of the learned Magistrate rejecting the petitioner's request for discharge is also factually and legally unsustainable and liable to be quashed. 7. On the other hand, Sri.Tom Jose Padinjarekkara, the learned Additional Director General of Prosecutions submitted that the deceased had sustained about 18 antemortem injuries whereas the petitioner has sustained no injury at all and the said facts itself are Crl.M.C.No. 3163 Of 2013 :-6-: sufficient to justify the allegations against the petitioner, in the murder of the deceased Harihara Varma. The learned Addl.D.G.P. has pointed out that the sixth accused told the Sub Inspector of Police, who came to the scene of occurrence, that the crime was committed by three identifiable persons, but the statement of Cws.51 and 52 shows that the petitioner was found in the company of accused Nos.1 to 4 on previous occasions and thus, he has got previous acquaintance with the accused. So, the petitioner attempted to give a false information to the Sub Inspector of Police and attempted to screen the culprits. According to the learned Additional D.G.P, though there were neighbours adjacent to the building in question, none of the neighbouring persons heard any hue and cry. It is also pointed out by the learned Additional D.G.P. that what the petitioner conveyed to the Sub Inspector of Police, who reached at the spot is about the theft of cash and not mentioned about the precious stones. Thus, according to the learned Additional D.G.P., the available incriminating materials Crl.M.C.No. 3163 Of 2013 :-7-: and evidence show the presence of the petitioner and the petitioner has no convincing explanation to rule out his complicity in the crime. 8. I have carefully considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Director General of Prosecution. I have perused the materials produced along with this Crl.M.C. and I have gone through Anenxure D order of the learned Sessions Judge. 9. Having regard to the facts and circumstances involved in the case and in view of the admitted case of the petitioner as well as the prosecution, it can be seen that the entire prosecution case depends upon the circumstantial evidence. It is beyond dispute that the petitioner was present, when the deceased Harihara Varma was murdered since he himself admitted such fact. So the further question to be considered, not by this Court, but the trial court is whether the presence of the petitioner was innocuous as he claimed in the given facts and circumstances of the case. Admittedly, scene of occurrence Crl.M.C.No. 3163 Of 2013 :-8-: is inside the house of the daughter of the petitioner. Available material shows that both the petitioner and deceased along with the other accused came to the above vacant building though the deceased and the petitioner have got their own separate residential building. At this stage, this Court is not in a position to either reject or admit the case of the petitioner, or come into a definite conclusion as to why the petitioner received no injury while the deceased received 18 antemortem injuries. Had the petitioner made any attempt to intervene when the other accused attacked on the deceased or at least when he himself defended from the attack of the accused on him, the possibility of receiving injury by himself cannot be ruled out. But leaving doubt, he received no injury. If the case of the petitioner is correct that his mouth was pasted with adhesive and his hands were tied on his back, how he had untied the hands within one hour after administering chloroform on him and gave intimation to the Police through his son. According to me, the mysterious fact and Crl.M.C.No. 3163 Of 2013 :-9-: circumstances are capable to create strong doubt in any prudent mind about the complicity of the petitioner in the commission of the above offences along with other accused. So it is for the petitioner to face the trial and clear such circumstances available in the prosecution case against him and to establish his innocence. 10. In this juncture, it is relevant to note that a learned Judge of this Court while considering the bail application of the petitioner that B.A.No.1811 of 2103 vide order dated 25.3.2013 thereon has specifically found as follows: “.................. _After going through the materials gathered by investigating agency with the surrounding circumstances involved in the crime, I find there is reasonable ground to suspect complicity of the petitioner also with the other accused in the grave offence._ ......” It is also found as follows:- “....... _Absence of injuries on his person, even if medical examination over his persons was belated, in the given facts and circumstances of the case, cannot be brushed aside as of no consequence.._ ....” Crl.M.C.No. 3163 Of 2013 :-10-: v. The decision of the Honourable Apex Court reported in **Vijayan.P. State of Kerala and another** [2010 KHC 4058] is relevant. Thus, in paragraph 11 of the above decision, it is held as follows:- “11. The scope of S.227 of the Code was considered by this Court in the case of State of Bihar v. Ramesh Singh, 1977 KHC 676:1977(4) SCC 39: 1977 SCC (Cri) 533: AIR 1977 SC 2018:1977 CriLJ 1606, wherein this Court observed as follows:- '...... _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 trail or not. If the eivdence 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,_ Crl.M.C.No. 3163 Of 2013 :-11-: _if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial....'_ **This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused.** ” (emphasis supplied) Similarly in the very same decision in paragraph 10, it is held as follows:- “10. 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. Further, the words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. _**At the stage of S.227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of**_ Crl.M.C.No. 3163 Of 2013 :-12-: _**ground would take within its fold the nature of the evidence recorded by the Police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” (underline supplied)**_ So according to me, the suspicious circumstances at the time of framing charge will go in favour of the prosecution whereas if the suspicious circumstances continue and still exist even after the trial, that factor will go in favour of the accused, since those facts presuppose that the prosecution has miserably failed to discharge its historical and hereditary burden of proving the case against the accused beyond reasonable doubt. Thus, at the time of considering the materials to find out whether there are grounds to proceed against the accused, the attitude and approach of the court is entirely different and the grave suspicion on the basis of the available materials is a strong ground for the court to proceed to frame a charge against the accused. In the case at hand, the presence of the accused is admitted and due to the other relevant input which I referred to above, Crl.M.C.No. 3163 Of 2013 :-13-: distinguish an ordinary case depends upon the circumstantial evidence, wherein usually the burden is on the prosecution to prove the presence of the accused. In the present case, the learned Sessions Judge as per Annexure D order considered the entire prosecution materials and found that there are sufficient grounds and categorically found that all the circumstances, which are referred to in Annexure D order, create grave suspicion regarding the involvement of sixth accused and correctly found that the materials before the court undoubtfully revealed the suspicion regarding his involvement in the crime. According to me, the above finding and the order thereon viz, Annexure D fully justified in the light of the Apex Court decision referred to above. In the light of the above facts, circumstances and the foregone discussion and in view of the settled position, I find no reason to quash Annexure C final report and to interfere with Annexure D order of the court below or to hold that Annexure E Crl.M.C.No. 3163 Of 2013 :-14-: charge is illegal. In the result, the above Criminal M.C. is devoid of any merit and accordingly, the same is dismissed. **V.K.MOHANAN, Judge** MBS/