Thomas v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 17TH DAY OF OCTOBER 2014/25TH ASWINA, 1936** **CRL.REV.PET.NO. 1783 OF 2014 () -------------------------------AGAINST THE ORDER IN C.M.P. NO.21 OF 2014 IN S.C. NO.315 OF 2013 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT, PALA ------------------------------** **PETITIONER/ACCUSED:** **THOMAS, AGED 74 YEARS, SON OF DEVASSIA, ARAYATHINAL HOUSE, PATHAMPUZHA P.O. PIN:686582, PUNJAR THEKKEKARA VILLAGE KOTTAYAM DISTRICT.** **BY ADV. SRI.C.P.SAJI** **RESPONDENT(S)/DEFACTO COMPLAINANT:** **---------------------------------** **THE STATE OF KERALA** **THROUGH SUB INSPECTOR OF POLICE ERATTUPETTA POLICE STATION, KOTTAYAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **K. RAMAKRISHNAN, J.** **-------------------------------Crl. R.P. No.1783 of 2014** **-------------------------------------------Dated this, the 17[th] day of October 2014** ## **O R D E R** Accused in S.C. No.315 of 2013 has filed this revision challenging the order in Crl. M.P. No.21 of 2014 of Additional Sessions Court, Pala. The accused was charge sheeted by the Sub Inspector of Police, Erattupetta in Crime No.404 of 2012 of the Erattupetta Police station alleging offence under Sec.308 of the Indian Penal Code. 2. The case of the prosecution in nutshell was that on 18.06.2012 at 1.30 p.m., the accused on account of enmity towards CW1 in an attempt to commit culpable homicide not amounting to murder fired at him with an air gun which if it hit could have caused his death and thereby, he had committed the offence under 308 of Indian Penal Code. After investigation, final report was filed and it was committed to Sessions Court and after committal, it was taken on file as S.C. No.315 of 2013 by the Sessions Court, Kottayam and thereafter, it was made over to the Additional Sessions Court, Pala for disposal. Crl. R.P. No.1783 of 2014 2 The revision petitioner appeared before the Additional Sessions Court and filed Crl.M.P. No.21 of 2014 for discharge under Sec.227 of the Code of Criminal Procedure (For short, the Code) and the learned Additional Sessions Judge after hearing the counsel for the revision petitioner and the Additional Public Prosecutor of that Court, dismissed the application, legality of which is being challenged by the revision petitioner before this Court by filing this revision. 3. Considering the nature of dispute in this matter, this Court felt that this can be disposed after admitting the same, and hearing the learned counsel for the revision petitioner and the Public Prosecutor appearing for the State today itself. So it is admitted and heard both sides and disposed of today itself. 4. The counsel for the revision petitioner submitted that the petitioner is aged 74 years and the accused is the brother of the defacto complainant and there were number of litigations between them. The alleged gun said to have been used for committing the Crl. R.P. No.1783 of 2014 3 crime has not been seized. Further, no expert examination of the place was conducted to prove the alleged shot from the air gun also and there was a delay of seven days in reporting this incident as well. So according to the counsel for the petitioner, no offence under Sec.308 of Indian Penal Code is attracted and further, in fact no case itself has been made out against the accused. So the Court below was not justified in dismissing the application. 5. Learned Public Prosecutor submitted that there is nothing to interfere with the order passed. The evidence collected will go to show that there is materials to proceed with and other things are to be considered by the Court on the basis of evidence. It is an admitted fact that on the basis of the statement given by the defacto complainant, Crime No.404 of 2012 of the Erattupetta Police station was registered against the present petitioner alleging offence under Sec.308 Indian Penal Code. It is also an admitted fact that after investigation, final report was filed and that is now pending before the Crl. R.P. No.1783 of 2014 4 Additional Sessions Court Pala as S.C. No.315 of 2013 . It is seen from the allegations that there was enmity between the defacto complainant and the accused in respect of their property disputes and litigations are pending before the Civil Courts. Further, the material object alleged to have been used for commission of offences have not been recovered. So under the circumstances according to the petitioner, no offence has been made out. It is settled law that at the time of framing charges or considering the question of discharge, the Court need only go into the allegations made by the witnesses in the case and the other materials produced by the prosecution so as to form an opinion as to whether a primafacie case has been made out for proceeding against the accused. Unless the Court is satisfied that the accusations made are groundless, the Court cannot discharge the accused. Further, in the decision reported in **Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another [AIR 2013 SC (52)]** three judges decision of the Supreme Court held that the Crl. R.P. No.1783 of 2014 5 magistrate has on the basis of material on record only to see whether there is ground to presume that the accused has committed the offence. Even strong suspicion about existing of the fact constituting the offence sufficient to refuse discharge. 6. In this case, CW1 is the defacto complainant and CWs.2 and 3 are the alleged eye witnesses of the incident. They have, in their 161 statement has stated about the act of the accused. Merely because the weapon alleged to have been used for committing the offence has not been recovered, that itself is not a ground for disbelieving the case of the prosecution at this stage as it may at the most amount to irregularity if any committed by the investigating officer in investigating the case. That should not affect the interest of the victim in this case. The allegation was that the accused attempted to commit culpable homicide not amounting to murder fired at the defacto complainant with air gun. If the allegation is accepted, then naturally the offence under Sec.308 is attracted. So under the circumstances, the Court below ## Crl. R.P. No.1783 of 2014 6 was perfectly justified in coming to the conclusion that on the basis of material available, it cannot be said that the accusations are groundless to discharge the accused and rightly come to the conclusion that it is not a fit case to discharge the accused at this stage. The delay in filing the First Information Report and non recovery of any weapon if any etc. are matters to be considered by the Court on the basis of evidence later so as to come to a conclusion as to whether evidence is sufficient to convict the accused or he is entitled to get acquittal on the basis of the same and that was not the criteria to be taken at the time when it was considering the materials for framing charges. 7. So under the circumstances, there was no illegality committed by the Court below in dismissing the application and I do not find any reason to interfere with the same. So the revision lacks bonafidies and the revision petition is liable to be dismissed. 8. The counsel for the petitioner submitted that the petitioner is aged 74 years and he may be permitted ## Crl. R.P. No.1783 of 2014 7 to appear through counsel. Since the parties are relatives, the question of identity does not arise as well . 9. So considering the circumstances, if the petitioner applies for permanent exemption then, the Additional Sessions Judge is directed to consider and pass orders in view of the things mentioned above in that application in accordance with law. Further, considering the fact that the accused is aged 74 years and he is a senior citizen, the Court below is directed to take all earnest attempt to expedite trial of the case as well as expeditiously as possible, at any rate, within four months from the date of receipt of this order. In the result, the revision petition is dismissed. Office is directed to communicate this order to the concerned Court immediately. **-** Sd/ **K. RAMAKRISHNAN JUDGE** / True Copy / NS P.A. To Judge