Siyad v. State

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** **Crl.Rev.Pet.No.2167 OF 2014** **AGAINST THE ORDER IN CRL.M.P.NO.3131/2014 IN SC 253/2011 DATED 05-11-2014 OF V ADDITIONAL SESSIONS JUDGE, ERNAKULAM** ## **REVISION PETITIONER/2ND ACCUSED:** **SIYAD AGED 29 YEARS,S/O.SAITHU MUHAMMED, PEREPPARAMBIL HOUSE, THANDIKKAL, THOTTAKKATTUKARA, ALUVA.** **BY ADV. SRI.GEORGE MATHEWS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **CIRCLE INSPECTOR OF POLICE, ALUVA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.3.2019, THE COURT ON 09.10.2020 PASSED THE FOLLOWING:** **Crl.R.P.No.2167/2014** 2 ## **ORDER** The revision petitioner is the second accused in S.C No.253 of 2011 on the files of the Court of V[th] Additional Sessions Judge, Ernakulam. He stands charge sheeted for the offences punishable under Sections 302 and 307 read with 114 of the Indian Penal Code ('IPC' only). The petitioner seeks to set aside the order dated 5.11.2014 passed in Crl.M.P No.3131 of 2014 in S.C.No.253 of 2011 dismissing his application for discharge under Section 227 of the Code of Criminal Procedure (for brevity 'Cr.P.C') and to allow the revision petition. 2. The case of the prosecution is as follows:- On 5.1.2007, at about 11.15 p.m., the revision petitioner and the other two accused in the case, in furtherance of their common intention to do away with the lives of Jijo and CW1, who were riding on the motor cycle bearing Reg.No.KL-7B/2932 respectively as rider and pillion rider, chased them in Maruthi Car bearing Reg.No.KL- **Crl.R.P.No.2167/2014** 3 9M/8174 from Aluva, Parur Kavala till Pulinchode in Aluva West Village and hit intentionally behind the motor cycle and thereby injuring Jijo and CW1 seriously to which Jijo succumbed. The Maruthi car was driven by the first accused. It is the further case that the revision petitioner and the third accused abetted the commission of the offence by the first accused. On 18.9.2012, the case was posted for hearing. After perusing the records and holding that a prima facie case under Sections 302 and 307 r/w 114, IPC was made out, it was posted for framing charge on 26.9.2012. On that day, charge for the aforesaid offences were framed, read over and explained to them and the revision petitioner and others pleaded not guilty. 3. Earlier, the revision petitioner approached this Court by filing Crl.R.P.No.1932/2013 challenging the framing of charge under the aforesaid offences contending that though a separate petition was not filed claiming discharge under Section 227, Cr.P.C, at the time of framing the charge, he did take arguments for discharge, but they were not considered. It was contended then that even if the entire **Crl.R.P.No.2167/2014** 4 allegations against the revision petitioner/second accused therein were admitted, no offences under Sections 302 and 307 r/w Section 114, IPC could be made out against him and further that he could not have been implicated in the case with aid of Section 114, IPC. Taking note of the nature of the contentions raised in the revision petition and the argument advanced at the bar, a report was called from the court below as to whether the revision petitioner herein had filed discharge petition under Section 227, Cr.P.C or whether he had actually addressed the court for discharge, without filing a petition. On perusing the report received from the court below, this Court was constrained to observe in the order dated 4.10.2013 in Crl.R.P.No.1932/2013 that it would be impossible to arrive at any definite conclusion as to whether a petition in that regard was filed or whether the arguments made claiming discharge were heard or whether the learned Sessions Judge had applied mind on the points raised at the time of framing charge. In that view of the matter and also holding that 'discharge' is a valuable right reserved under Section **Crl.R.P.No.2167/2014** 5 227, Cr.P.C, the charge framed against the revision petitioner was set aside. Consequently, he was granted liberty to file petition for discharge and the court below was directed to hear and dispose of the discharge petition afresh, in accordance with law, before framing fresh charge. Thereupon, the revision petitioner herein filed Crl.M.P.No.3131/2014 in S.C.No.253/2011 seeking discharge under Section 227, Cr.P.C. The impugned order was passed thereon whereby and whereunder the said Crl.M.P was dismissed. It is in the said circumstances that the above mentioned Crl.R.P was filed. 4. Heard the learned senior counsel appearing for the petitioner and also the learned Public Prosecutor. 5. Before adverting to the contentions raised in the revision petition, it is comely to come home to the scope of Section 227, Cr.P.C. Obviously, this section r/w Section 228 forms a precious safeguard in the nature of a pre-battle protection conferred upon the accused by the Legislature. In the light of the decision of the Hon'ble Apex Court in **State of Karnataka v. L.Muniswamy (AIR 1977 SC** **Crl.R.P.No.2167/2014** 6 **1489)** , it can be said that the purpose of this section is to enable the court to determine whether there is sufficient ground for proceeding against the accused upon consideration of the materials on record. The consideration is as to whether a conviction could be said to be reasonably possible based on the materials on record, if they remain unrebutted. Therefore, according to me, at the stage of Section 227, what is to be looked into is whether a prima facie case is made out and in otherwords, the question whether a case is made out beyond reasonable doubt could not be looked into. In assessing this fact and arriving at a conclusion, it is unnecessary to enter into the act of weighing and balancing of evidence and working into the admissibility of such evidence as they are functions to be discharged at the later stage of the trial. 6. In the decision in **Union of India v. Prafulla Kumar Samal (AIR 1979 SC 366),** the Hon'ble Supreme Court considered the substantial and far-reaching changes in the Code of 1898 as amended in 1955 and then, the position obtained under 'the Code of Criminal **Crl.R.P.No.2167/2014** 7 Procedure, 1973 (Act 2 of 1974) brought in after repealing the Code of Criminal Procedure, 1898. Paragraphs 5 to 7 and 10 and also the relevant recital from paragraph 8 of the decision in **Prafulla Kumar Samal** 's case are noteworthy in context of the contentions and they read thus:- "5.Before interpreting and analysing the provisions of Section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispensed with the procedure for commitment enquiries referred to in Sections 206 to 213 of the Code of 1898 and has made commitment more or less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses after giving opportunity to the accused to cross-examine the witnesses and was then required to hear the parties and to commit the accused to the Court of Session unless he chose to act under Section 209 and found that there was no sufficient ground for committing the accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the police and commit the case straightaway to the Sessions Court if the case is one which is exclusively triable by the Sessions Court. Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been **Crl.R.P.No.2167/2014** 8 made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction. In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been applied fully to the trial of such cases. Thus, it is manifest that the accused has got only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. This was obviously done to expedite the disposal of the criminal cases. 6. Secondly, it would appear that under Section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior court, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents. The discretion, therefore, is to be exercised by a senior and more experienced court so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court. 7. Section 227 of the Code runs thus:- "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." The words 'not sufficient ground for proceeding **Crl.R.P.No.2167/2014** 9 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 his function after the trial starts. At the stage of Section 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. The sufficiency of 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. 8............But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence 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, 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 Sessions Judge in order to frame a charge against the accused. 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie **Crl.R.P.No.2167/2014** 10 case against the accused has been made out; (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." In fact, both sides relied on this decision. In the decision in ## **R.S.Nayak v. A.R.Antulay** reported in **AIR 1986 SC 2045** , the Apex ## Court held thus:- The Code contemplates discharge of the accused by the Court of Session under S. 227 in case triable by it; cases instituted upon a police report are covered by S. 239 and cases instituted otherwise than on police report are dealt with in S. 245. The three sections contain some what different provisions in regard to discharge of the accused. Under S. 227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground **Crl.R.P.No.2167/2014** 11 for proceeding against the accused.' Obligation to discharge the accused under S. 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under S. 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction..." It is a fact that Ss. 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under S. 245, on the other hand, is reached only after the evidence referred to in S. 244 has been taken. Not-withstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S. 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. 7. The learned senior counsel relied on the decision in **Shri.Ram v. The State of U.P** reported in **AIR 1975 SC 175** . The decision dealt with the question as to when 'abetment' is said to be constituted. Obviously, the said decision was rendered in two Criminal Appeals filed against a judgment of conviction. Hence, I am **Crl.R.P.No.2167/2014** 12 of the firm view that, at this stage, for the purpose of disposal of the captioned Revision Petition, this decision got no relevance in view of the nature of the evidence available as also in view of the position that the credibility or otherwise of the evidence available in this regard can be ascertained only during the trial. 8. In the decision in **State of Tamil Nadu v. N.Suresh Rajan** reported in ( **2014) 11 SCC 709** , it was held by the Apex Court that at the stage of consideration of an application for discharge, the court had to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the materials to find out whether the facts taken at their face value disclose the existence of the ingredients constituting the offence. At that stage, only the probative value of the materials need be gone into and the court is not expected to go deep into the matter to hold a mini-trial. In the said circumstances, according to me, it can be said that at the stage of consideration of an application for discharge, the court has only to see whether there is sufficient ground for presuming that the materials on **Crl.R.P.No.2167/2014** 13 record, if remain unrebutted, would lead to a situation where conviction could reasonably be possible. If the answer is in the affirmative, the accused must face the trial. To put it succinctly, the question to be considered is whether the materials and evidence on record sufficiently support the trial or whether they would constitute a triable case. Now, I will consider the question whether the petitioner has raised any valid ground to uphold his challenge against the order in Crl.M.P.No.3131 of 2014 in S.C.No.253 of 2011 whereby the learned Sessions Judge dismissed the application for discharge under Section 227, Cr.P.C. 9. It is the contention of the revision petitioner that the materials on record did not reveal any intention on the part of the accused, including the petitioner herein to kill the deceased or CW1. He would also contend that no motive was also suggested for committing murder; that the deceased and the accused persons were total strangers; that it is a case of traffic accident and consequential accidental death and therefore, the revision petitioner was falsely **Crl.R.P.No.2167/2014** 14 implicated in the case. In ground E, it is contended that it is apparent that the first accused had acted on his own volition and there is no material to show that the revision petitioner had intentionally aided him in the commission of offences. It is also contended that even if the entire allegations in the charge sheet are accepted, the offences alleged against the revision petitioner are not made out and alternatively, it is contended that if the prosecution version is accepted in toto, it would not constitute a case that the first accused intended to kill the deceased or CW1 and further his act, at the most, could constitute an offence of culpable homicide not amounting to murder. Per contra, the learned Public Prosecutor vehemently opposed the said contentions and submitted that the learned Sessions Judge had properly applied his mind and arrived at the conclusion that the materials on record and the submissions made before the court based on such materials made out sufficient grounds for proceeding against the accused idest a prima facie triable case was established for proceeding against the accused. **Crl.R.P.No.2167/2014** 15 10. For appreciating the consideration undertaken by the learned Sessions judge, it is also relevant to refer to the decisions of the Apex Court in **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia & another (1989 SCC Crl.285); Kailash Sah v. State of Bihar (2006 Crl.J 3886)** of the High Court of Patna and the decision of the High Court of Jharkhand in **Shyam Kumar Das v. State of Jharkhand (2005 Crl.L.J 3)** . In **Dilip Nathumal Chordia** 's case, the Apex Court held that the word 'ground' used in Section 227, Cr.P.C did not mean a 'ground' for conviction; but a 'ground' for putting the accused on trial. In **Kailash Sah** 's case (supra), it was held that one test that could be adopted for considering an application for discharge filed under Section 227 is to ascertain whether the statements as recorded by the police under section 161, Cr.P.C in respect of the accused, are taken to be correct in their entirity, would be sufficient to uphold the charge. In **Shyam Kumar Das** 's case, it was held that where the statements of the witnesses recorded under Section 161, Cr.P.C support the prosecution story, the Court would **Crl.R.P.No.2167/2014** 16 frame the charge against the accused. 11. A scanning of the impugned order would reveal that the learned Sessions Judge had taken into consideration the statements of CWs 1 to 9 and the documentary evidence such as medical certificates of the deceased as also the CW1, the injured, postmortem certificate, chemical examination report, the scene plan, vehicle inspectors report of the offending vehicle viz., the Maruthi Car and the motor cycle in which the deceased and the injured-CW1 were riding as also the accident-cum-wound certificates of the deceased and the injured. In the case on hand, CW1 is none other than the injured pillion rider of the motor cycle. Besides making the statement which was recorded under sub-section (1) of Section 154, Cr.P.C, on 13.1.2007 an additional statement from him was also recorded by the Investigating Officer. His statement is to the effect that the petitioner and the third accused instigated the first accused to chase the motor cycle ridden by the deceased with him as its pillion rider. During such chase, when they reached Thottakkatukara, according to him, the first accused **Crl.R.P.No.2167/2014** 17 attempted to hit the motor cycle with the Maruthi car intentionally. He and the deceased escaped from the attempt and even then, A1 to A3 did not abandon their chase there and continued to chase them. When the Maruthi car reached near Aluva market, it hit on an autorickshaw bearing Reg.No.KL-A4/4992 and the passengers of the autorickshaw had also sustained injuries. Even then the accused persons had not stopped their vehicle and they continued to chase him and the deceased who were fleeing from the accused. At about 11.15 p.m, the motor cycle reached Aluva-Ernakulam NH Road. In front of Lions Club, Aluva, the first accused intentionally caused the Maruthi car hit on the back of the motor cycle. Consequently, he and the deceased were thrown away. On sustaining severe injuries, they were removed to the hospital by the persons who assembled there. Later, the rider of the vehicle succumbed to the injuries. The learned Sessions Judge considered the statement of CW1 for the limited purpose of consideration of the application under Section 227, Cr.P.C. We have referred to the statement of CW1 to see whether his **Crl.R.P.No.2167/2014** 18 statement, if unrebutted would support the case of the prosecution. There are 9 eye witnesses for the prosecution including CW1, to establish its case. Among them, CW5 is the driver of the autorickshaw on which the car driven by A1 allegedly hit. CWs 6 to 8 are the three passengers who were then travelling in the said autorickshaw. CW9 is an independent witness who claims to have witnessed the alleged incident. Evidently, the statement of CW1, statements and additional statements of CWs 2 to 9 were looked into by the learned Sessions Judge within the permissible limit. I have gone through the case diary consisting of such statements and additional statements referred to, in the impugned order. They would go to show that CW1 to CW9 have given statements to the police in the manner mentioned in the impugned order. In fact, the revision petition would reveal that the petitioner also did not dispute the said fact. But, the case of the revision petitioner is that no motive was alleged for committing the murder or for attempting to commit murder. So also, according to him, materials on record did not reveal **Crl.R.P.No.2167/2014** 19 any intention on the part of the accused persons. Firstly, they are not matters which should be gone into at the stage of considering an application for discharge under Section 227, Cr.P.C. There can be no doubt that it is not always the intention of the perpetrator of the offence of homicide which is a determining factor to decide whether the act amounts to murder or homicide not amounting to murder. In criminal law, the expression 'motive' could be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power that impels to action for a definite result. In the decision in **Mulakh Raj v. Satish Kumar [(1992) 3 SCC 43]** , the Apex Court held:- “Motive always locks up in the mind of the accused and some time it is difficult to unlock.” That apart, 'motive' is not an integral part of the crime or an ingredient of it just like mens rea or actus reus. Even without any motive at all crimes could be committed. Absence of motive will not make an act which is otherwise an offence not an offence. It is only an aid in the **Crl.R.P.No.2167/2014** 20 assessment of criminality. (See the decision in Dasan and others v. State of Kerala reported in 1987 Crl.L.J 180-Ker.). That apart, in the decision in **Yunis alias Kariya v. State of Madhya Pradesh** (AIR 2003 SC 539), the Hon'ble Apex Court held that where the occular evidence is very clear and convincing and the role of the accused persons in the crime stands clearly established, establishment of motive is not a sine qua non for proving the prosecution case. I referred to the aforesaid decisions solely to state that consideration of such question is not required at this stage. In short, in the case on hand, materials on record reveal 'sufficient ground' for proceeding against the revision petitioner as held by the learned Sessions Judge. The petitioner cannot be heard to contend that in all cases where a vehicle is involved in the death of a person it should invariably, be treated only as a motor accident case. In such circumstances, it can only be said that the learned Sessions Judge has rightfully considered the question whether there is sufficient ground for proceeding against the accused and answered that prima facie case exists for proceeding **Crl.R.P.No.2167/2014** 21 against the revision petitioner and in other words, the materials on record would reveal existence of a triable case. In the said circumstances, there is absolutely no ground to hold that the learned Sessions Judge had failed to consider the application under Section 227, Cr.P.C in accordance with law. The revision petition is therefore, liable to fail. Accordingly, the revision petition is dismissed. **C.T. RAVIKUMAR** **Crl.R.P.No.2167/2014** 22 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE P1** **TRUE COPY OF THE F.I STATEMENT IN THE CASE.** **spc/**