Suresh Babu @ Sundaran Binu v. State of Kerala and AnasooYa K

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944 ``` ## `CRL.MC NO. 2399 OF 2022` ``` CRIME NO.440/2013 OF Kattakada Police Station, Thiruvananthapuram PETITIONER/S: ``` ``` 1SURESH BABU @ SUNDARAN BINU AGED 43 YEARS MUTHIYAAVILA PUTHUVILAKOM, THOTTAMPARA MURI, VEERANAKKADU VILLAGE, THIRUVANANTHAPURAM. NOW RESIDING AT LEKSHMI BHAVAN, CHEMPAKATHINMOODU, MUTHIYAVILA, KATTAKADA P.O. THIRUVANANTHAPURAM., PIN - 695572 BY ADVS. ARUN KRISHNA DHAN R.ANANTHAPADMANABAN T.K.SANDEEP ARJUN SREEDHAR ALEX ABRAHAM VEENA HARIKUMAR ``` ## `RESPONDENT/S:` ``` 1 ``` ``` 1.STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682031 2. ANASOOYA K AGED 58 YEARS W/O SUNIL KUMAR, RESIDING AT SUNEEVARAM, AMBALATHINKALA.P.O, KATTAKADA, THIRUVANANTHAPURAM , PIN-695029. [ADDITIONAL R2 IMPLEADED AS PER ORDER DATED 25.5.2022 IN CRL.MA NO.3/2022 IN CRL.MC NO.2399/2022] THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.12.2022, THE COURT ON 21.12.2022 PASSED THE FOLLOWING: ``` CRL.MC No.2399 of 2022 2 ## `O R D E R` ``` The petitioner is the 11[th] accused in Crime No.440/2013 of Kattakkada Police Station, Thiruvananthapuram, which is now pending as S.C.No.1296/2016 on the files of the Additional Sessions Court-IV, Thiruvananthapuram. This Crl.M.C is filed challenging the Annexure-1 order passed by the learned Sessions Judge. As per the ``` ``` order impugned, the application numbered as Crl.M.P.No.1703/2021 submitted by the petitioner under Section 227 of the Code of Criminal Procedure (Cr.PC) seeking his discharge was dismissed. ``` ``` 2. The crime referred to above was registered ``` ``` against the petitioner and others, for the offences punishable under Sections 120B, 143, 147, 148, 149, 302, 201, 212 and 419 of the Indian ``` ``` Penal Code (IPC). ``` CRL.MC No.2399 of 2022 3 ``` 3.The prosecution case is as follows: ``` ``` There were some financial transactions between ``` ``` CW12 and the 1[st] accused, and there arose some ``` ``` dispute in connection with the same between the ``` ``` said parties. Consequently, the 1[st] accused took ``` ``` away the keys of the motor cycle of CW12, which ``` ``` was questioned by one Sreekumar on 2.5.2013 and ``` ``` during the said process, he attacked the 1[st] ``` ``` accused. Thereupon, the 1[st] accused underwent ``` ``` treatment in Government Hospital, Kattakkada, on ``` ``` 2.5.2013. As a retaliation for the same, accused Nos.2 to 4, 7 to 10 and 12 to 14 conspired to ``` ``` murder the said Sreekumar. As part of the same, ``` ``` accused Nos.7,8, and 11 arranged the 6[th] accused to ``` ``` procure the weapons. Therefore, in furtherance of ``` ``` their common intention, accused Nos.7,8,10 and 18 ``` ``` made sure that, Sreekumar was present at the scene ``` ``` of occurrence and after that on 5.5.2013 at about ``` ``` 6.45 p.m., they, along with accused Nos.1,2,4 and ``` CRL.MC No.2399 of 2022 4 ``` 5, formed themselves into an unlawful assembly with dangerous weapons, went to Ambalathinkala at Alamcode in vehicles and they brutally attacked Sreekumar with a chopper. Due to the injuries ``` ``` sustained, Sreekumar died. After that, accused ``` ``` Nos.1 to 7 escaped from the scene of occurrence in the vehicle on which they came and accused Nos.10,17 and 18 also escaped from the scene of ``` ``` occurrence. The 1[st] accused went on the motor cycle ``` ``` of the 7[th] accused, and thereafter 5[th] accused was ``` ``` dropped by the 15[th] accused near Karakonam Medical ``` ``` College. 16[th] accused destroyed the evidence by ``` ``` hiding the shirt worn by the 1[st] accused. 19[th] ``` ``` accused came in an Innova car, took accused Nos.1,6 to 9 and 11 to Thakkala and helped them escape. It is also alleged that, it was the ``` ``` petitioner/11th accused who arranged the Innova car of the 19[th] accused to help accused Nos.1,6 to 9 to flee from the scene of occurrence. The final ``` CRL.MC No.2399 of 2022 5 ``` report was submitted based on the same, and upon being committed to the Sessions Court, it was made over to the Additional Sessions Court-IV, Thiruvananthapuram. Thereupon, Crl.M.P. No. ``` ``` 1703/2021 was filed by the petitioner under Section 227 of Cr.PC, seeking his discharge, which the court dismissed. The said order is under challenge in this Crl. M.C. ``` ``` 4.Heard Sri.T.K. Sandeep, the learned counsel for the petitioner, Sri.Sudheer Gopalakrishnan, the learned Public Prosecutor for the State and Sri. A. Ananthapadmanaban, the learned counsel for the 2[nd] respondent. ``` ``` 5.The learned counsel for the petitioner contends that, the petitioner is falsely implicated in the aforesaid case and the allegations raised against the petitioner are highly improbable. The said contention was raised ``` CRL.MC No.2399 of 2022 6 ``` by the petitioner mainly by placing reliance upon certain medical records of the petitioner which are produced as Annexure-2 and Annexure-3. It is pointed out that the incident which is the subject matter of the crime occurred on 5.5.2013, whereas the petitioner was admitted to the hospital on 11.4.2013 as he was suffering from Dural Arterio Venous Fistulas Type II A+B. On 16.04.2013 he underwent surgery on his head, and thereafter he was discharged on 17.04.2013 with the advice to have bed rest for a period of six weeks with frequent reviews. By relying on the said documents, it is contended that his physical condition at the relevant time was very weak and it was not possible for the petitioner to commit the offence as alleged by the prosecution. The learned counsel contends that, despite the aforesaid aspect, the learned Sessions Judge proceeded to reject the contentions raised and ``` CRL.MC No.2399 of 2022 7 ``` therefore the petitioner seeks interference of this Court under Section 482 of Cr.PC. ``` ``` 6.On the other hand, the learned Public Prosecutor would oppose the said contentions by justifying the order passed by the learned Sessions Judge. It is pointed out by the learned Public Prosecutor that the learned Sessions Judge passed a detailed order wherein an elaborate discussion about the materials produced by the prosecution to substantiate the case against the petitioner has been made. Regarding the reliance placed on the petitioner's medical records, it is ``` ``` contended by the learned Public Prosecutor that under no circumstances can the said documents be ``` ``` referred to by the learned Sessions Judge, as the ``` ``` same is beyond the scope of Section 227 of Cr.PC. ``` ``` In other words, it was contended that, while ``` ``` considering the question as to whether charges are to be framed or not, it was not open for the ``` CRL.MC No.2399 of 2022 8 ``` learned Sessions Judge to take into consideration the documents placed by the defence. The decision could be taken by the learned Sessions Judge only based on the materials placed by the prosecution and nothing else. Therefore, the dismissal of the ``` ``` Crl.M.C. was sought for. ``` ``` 7.I have gone through the records and considered the contentions raised from either side. As rightly pointed out by the learned Public Prosecutor, the learned Sessions Judge did not rely upon the documents produced by the petitioner, on the ground that it was not open for the said court to take into consideration of the same. Taking into account the legal position on this issue, which is settled by the Hon’ble ``` ``` Supreme Court through a catena of decisions, I am ``` ``` of the view that the finding entered into by the learned Sessions Judge on the said issue does not ``` ``` suffer from any legal infirmity. InAjay Kumar ``` CRL.MC No.2399 of 2022 9 ``` Parmar v. State of Rajasthan [2012(4)KLT SN ``` ``` 61(C.No.49)SCit was observed that any document that the accused wants to rely upon cannot be read as evidence. If such evidence is to be considered, there would be a mini trial at the stage of framing charge and that would defeat the object of the Code. The provision about hearing the submissions of the accused as postulated by S.227 Cr.PC means hearing the submissions of the ``` ``` accused, considering the materials placed on the record of the case by the prosecution and documents submitted by them and nothing more. Therefore, the non consideration of the documents produced by the petitioner by the learned Sessions Judge, cannot be a reason for interference in the impugned order. ``` ``` 8.However, the petition before me is an application submitted under Section 482 Cr.PC, and while considering the same, this Court has wider ``` CRL.MC No.2399 of 2022 10 ``` powers as held inRukmini Narvekar v. Vijaya Satardekar [2008(4)KLT SN 29(C.No.29)SC.In the ``` ``` said decision, it was observed by the Hon’ble Supreme Court that, even though there was no scope ``` ``` for the accused to produce any evidence in support of the submissions made on his behalf at the stage of proceedings under Section 227, it was ``` ``` permissible for the High Court in a proceeding taken therefrom under Section 482 Cr.PC to ``` ``` consider materials that may be produced on behalf of the accused to arrive at a decision on whether the charge as framed could be maintained. ``` ``` Therefore, even though the learned Sessions Judge ``` ``` did not consider the aforesaid aspect, I am inclined to take note of the same while ``` ``` considering this application as the present ``` ``` proceeding is under Section 482 Cr.PC. ``` ``` 9.It is true that Annexures 2 and 3 documents ``` ``` would reveal that at the relevant time, the ``` CRL.MC No.2399 of 2022 11 ``` petitioner was undergoing treatment after the ``` ``` surgery as claimed by him. He was also advised to take bed rest at the relevant time. However, the crucial aspect to be noticed in this regard is ``` ``` that some of the witnesses, namely CW19, CW22, ``` ``` CW23, CW24 and CW41 expressly referred to the role ``` ``` of the petitioner and also about the physical ``` ``` presence of the petitioner along with the other accused persons in certain places. CW19 stated ``` ``` that on the date of the occurrence at 8 p.m., he found the petitioner along with some of the ``` ``` accused persons and he stated that, he along with ``` ``` the other accused persons, went in a car driven by CW19. In his deposition, he also states that among the said persons, one of the accused, viz. Shambu was wearing a blood stained shirt. ``` ``` 10.CW22 is a person residing in Andipetty in Theni District and his wife is a close relative of the petitioner herein. He stated that on 6.5.2013 ``` CRL.MC No.2399 of 2022 12 ``` the petitioner and some of the accused came to the ``` ``` residence of CW22 and informed him that the persons accompanying him were involved in a criminal case and they wanted shelter for some time. CW23 is the wife of CW22. CW24 is an ``` ``` employee of CW22. The statements of the said ``` ``` witnesses are also in tune with the information ``` ``` given by CW22, and therefore there are materials ``` ``` to suggest that the petitioner came to Theni district on 6.5.2013, which is on the next day of the incident along with some of the accused ``` ``` persons. Besides the same, CW41 also stated that ``` ``` the petitioner used his brother's sim card to make arrangements for the commission of the crime. ``` ``` Thus, when all the aforesaid statements are taken ``` ``` into consideration, it can be seen that the said ``` ``` witnesses specifically referred to the physical presence of the petitioner along with the other accused persons. The duty of the court while ``` CRL.MC No.2399 of 2022 13 ``` considering an application under Section 227 Cr.PC is to determine whether there are sufficient grounds for proceeding against the accused. In Sajjan Kumar v. CBI[(2010)9 SCC 368], the Hon’ble Supreme Court laid down the guidelines which are applicable while considering the question of framing charges at the stage of section 227 Cr.PC ``` ``` which reads as follows: ``` ``` “(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. ``` ``` (ii) 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. ``` ``` (iii) The court cannot act merely as a post office or a mouthpiece 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 ``` CRL.MC No.2399 of 2022 14 ``` infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. ``` ``` (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. ``` ``` (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind ``` ``` (vi)Atthestageof Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. ``` ``` (vii) 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.” ``` ## `11. In the light of the aforesaid principles,` CRL.MC No.2399 of 2022 15 ``` it is evident that, based on the materials, the court has to form an opinion that the accused might have committed the offence, to frame the charge. At the time of framing of the charges, the probative value of the materials relied on cannot be gone into, but the ``` ``` satisfaction which has to be arrived at by the court is that the commission of the offence by the accused was possible. When the materials placed on ``` ``` record are taken into consideration in that perspective, I do not find any reason to interfere ``` ``` with the order passed by the learned Sessions Judge. This is particularly because the petitioner's contention is mainly relying upon his physical condition, as revealed through Annexure A2 and Annexure A3. However, as mentioned above, the statements of some of the witnesses referred to above indicate petitioner’s physical presence in specific locations along with the other accused ``` CRL.MC No.2399 of 2022 16 ``` persons and it also prima facie shows the ``` ``` involvement of the petitioner. Therefore, the physically weak condition claimed by the ``` ``` petitioner based on Annexure 2 and Annexure 3 documents are inconsistent with the statements of the said witnesses. Therefore, it is a matter of ``` ``` evidence and indeed, the aforesaid statements create a grave suspicion that the petitioner is involved in the matter. In such circumstances, the contentions raised by the petitioner by relying on the medical documents cannot be considered at this stage. ``` ``` In the result, I do not find any merit in this Crl.M.C. and accordingly, it is dismissed without prejudice to the contentions of the petitioner, which he has to raise before the trial court during the trial. Sd/- ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ## `pkk` CRL.MC No.2399 of 2022 17 ## `APPENDIX OF CRL.MC 2399/2022` ``` PETITIONER’S ANNEXURES: ``` ``` ANNEXURE - 1TRUE COPY OF THE ORDER DATED 25.03.2022 IN CRL.M.P 1703/2021 IN S.C 1296/2016 OF ADDL SESSIONS JUDGE-IV THIRUVANANTHAPURAM ANNEXURE - 2TRUE COPY OF THE CASE SUMMARY AND DISCHARGE RECORD OF THE PETITIONER DATED 17.04.2013 ISSUED FROM SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCE AND TECHNOLOGY, TRIVANDRUM ANNEXURE - 3TRUE COPY OF THE CASE SUMMARY AND DISCHARGE RECORD OF THE PETITIONER DATED 02.03.2022 ISSUED FROM SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCE AND TECHNOLOGY, TRIVANDRUM ```