Saneer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 CRL.REV.PET NO. 1161 OF 2023** **AGAINST THE ORDER DATED 31.10.2023 IN CR.MP 804/2021 IN SC 1012/2019 OF THE ADDITIONAL SESSIONS COURT-V, KOLLAM (CRIME NO.182/2015 OF KILIKOLLOOR POLICE STATION, KOLLAM)** ## **REVISION PETITIONER/2ND ACCUSED:** **SANEER AGED 28 YEARS, S/O SAIFUDEEN, RESIDING AT AMBALAMVILA VEEDU, SETTLEMENT COLONY, PERUMPUZHA, PUNUKANOOR CHERI, ELAMPALLOOR VILLAGE, PIN – 691504.** **BY ADVS. SAYUJYA K.R.RAJEEV KRISHNAN** ## **RESPONDENT/COMPLAINT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** **BY SMT. SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 15.11.2023, THE COURT ON 17.11.2023 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.1161 of 2023 ## **P.G. AJITHKUMAR, J.** **--------------------------------------------------Crl.R.P.No.1161 of 2023 ---------------------------------------------------Dated this the 17[th] day of November, 2023** ## **O R D E R** The 2nd accused in S.C.No.1012 of 2019 pending before the Additional Sessions Judge-V, Kollam is the petitioner. He filed Crl.M.P.No.804 of 2021 seeking discharge. That petition was dismissed as per the order dated 31.10.2023. The said order is under challenge in this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. 3. In S.C.No.1012 of 2019 there are two accused. The offences alleged are punishable under Sections 212, 302, 307, 308, 323 and 324 read with Section 34 of the Indian Penal Code, 1860 (IPC). The allegations are that at about 3.00 p.m. on 29.01.2015, the 1st accused attacked witness Nos.1 and 2 near TKM Centenary Public School, Karikode, inflicting them stab injuries. When one Mr.Dhaneesh intervened, the 1st 3 Crl.R.P.No.1161 of 2023 accused, using a knife stabbed him and inflicted him serious injuries to which he succumbed. The 2nd accused harboured the 1st accused with intent to screen him from legal punishment. 4. The learned counsel for the petitioner would submit that the court below did not consider the feeble nature of the evidence proposed against the petitioner in its proper perspective and that resulted in a wrong finding that a charge for an offence punishable under Section 212 of the IPC is liable to be framed against him. It is pointed out that witness Nos.9 and 21 alone gave statements before the investigating officer regarding the allegation that the petitioner allowed the 1st accused to be in his house and also helped to go to Changanassery where he hid himself. The learned counsel by placing reliance on the decisions of the Apex in **Union of India v. Prafulla Kumar Samal and another [(1979) 3 SCC 4], Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398]** and of this Court in **Pradeesh Chacko v. State of Kerala [2018 KHC 894]** contending that the materials produced by the prosecution is totally insufficient to frame a charge against the petitioner. 4 Crl.R.P.No.1161 of 2023 5. The learned Public Prosecutor, on the other hand, would submit that in order to frame a charge what is required is a grave suspicion and the statements of witness Nos.9 and 21, certainly would reveal more than a grave suspicion. It is submitted that witness No.9 was taken by the petitioner in his motorcycle to his house, where the 1st accused was available and the petitioner had taken steps for his escape to Changanassery. Similarly, witness No.21, who is the brother of the petitioner, also gave statement to police that it was the petitioner, who took the 1st accused to the house of Sri.Manoj at Changanassery in order for his staying safe after the alleged incident of murder. Accordingly, the learned Public Prosecutor would submit that the prosecution has placed sufficient material before the court below to prove the charge against the petitioner. 6. In **State of Bihar v. Ramesh Singh [AIR 1977** **SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity 5 Crl.R.P.No.1161 of 2023 and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi** **Parishad v. Dilip Nathumal Chordia and another** **[(1989) 1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing the material at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Prafulla Kumar Samal** (supra) the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma Chakravarty v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 6 Crl.R.P.No.1161 of 2023 7. In **Vijayan P.** (supra) the Apex Court held that the judge who considers a question where a charge is liable to be framed is not a mere Post office to frame the charge at the behest of the prosecution. The judge is expected 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 **State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/1113/ 2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged. 8. In the light of the law laid down in the aforesaid decisions, it has to be considered the correctness or not of the impugned order. The specific allegation against the petitioner is that he having known that the 1st accused committed the offences in question, took him in a motorcycle to the house of Sri.Manoj at Changanassery, where he stayed. The version of 7 Crl.R.P.No.1161 of 2023 witness No.9 in his statement before the police is that, as required by the 1st accused, he went to Perumpuzha from where the petitioner took him to his house. The 1st accused was there in that house. The 1st accused told him about the incident took place near TKM School and he also wanted an amount of Rs.5,000/-. The further version of witness No.9 was that he gave some money. From the said statement, it is evident that it was the petitioner, who facilitated 1st accused to stay in his house and obtain money. This witness stated also that later when the 1st accused contacted over phone, he told that he together with the petitioner went to the house of Sri.Manoj at Changanassery. 9. Witness No.21 stated that in order to avail a safe place for the 1st accused to stay after the alleged incident of murder, the petitioner took him to the house of Sri.Manoj at Changanassery. The said information was obtained by witness No.21 from the petitioner himself. Such a statement cannot be brushed aside as a hearsay information, since on its face value, it may amount to a confession. Along with the fact that recovery of the motorcycle, which was used by the petitioner and the 1 st 8 Crl.R.P.No.1161 of 2023 accused to go to Changanassery from Perumpuzha, certainly makes out sufficient ground for framing a charge against the petitioner. If the said evidence proposed by the prosecution is believed, that will constitute the offence alleged against the petitioner. 10. The learned counsel for the petitioner would submit that the facts of **Pradeesh Chacko** (supra) are similar to the present case and therefore the proposition of law laid down in the said case would indicate the case of the petitioner. In **Pradeesh Chacko** the petition filed by accused Nos.11 and 12 for discharge was under consideration. Of course, the offence alleged against them are also habouring of the accused punishable under Section 212 of the IPC. The allegation there was that accused Nos.11 and 12, who are Advocates, accepted the brief of the principal offenders and appeared for them in court. It was for that purpose, the principal offenders reached the office of accused Nos.11 and 12 and stayed there for a few hours. Considering the said facts, this Court took the view that the offence of habouring the accused would not lie against accused Nos.11 and 12. Here, the facts are totally different. The 9 Crl.R.P.No.1161 of 2023 petitioner allowed the 1st accused to stay in his house even after knowing about the commission of the offence and he accompanied the 1st accused in a motorcycle to Changanassery, where the 1st accused stayed in hiding. The materials produced by the prosecution is sufficient to make out such a case and therefore the findings of the court below that a charge is liable to be framed against the petitioner does not suffer from any error, illegality or impropriety. Hence, this revision petition is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 10 Crl.R.P.No.1161 of 2023 ## **APPENDIX OF CRL.REV.PET 1161/2023** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**A TRUE COPY OF THE FINAL REPORT IN S.C**| ||**NO. 1012 OF 2019 ON THE FILES OF THE**| ||**ADDITIONAL SESSIONS JUDGE -V, KOLLAM**| |**Annexure A2**|**THE TRUE COPY OF THE VEHICLE MAHAZAR OF**| ||**THE INSPECTOR OF POLICE DATED.3.2.2015**| |**Annexure A3**|**A TRUE PHOTOCOPY OF THE APPLICATION**| ||**NUMBERED AS C.M.P NO.804 OF 2021 IN**| ||**S.C. NO.1012 OF 2019 PREFERRED BY THE**| ||**PETITIONER**<br>**BEFORE**<br>**THE**<br>**LEARNED**| ||**ADDITIONAL SESSIONS COURT - V, KOLLAM**| |**Annexure A4**|**ORIGINAL ORDER DT.31.10.2023 ISSUED BY**| ||**THE COURT BELOW IN CRL M.P NO.804 OF**| ||**2021 IN S.C. NO.1012 OF 2019**|