Umesh Ombeer vs The State Of Ap
2023 Latest Caselaw 794 AP

              HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                     Crl.P.Nos.3612 and 5709 of 2022


COMMON ORDER:


     On 24.09.2014, a father and his two sons, travelling in a taxi from

Gannavaram Airport towards Eluru, were killed. The said case was

registered as Crime No.192 of 2014, in Unguturu Police Station,

Vijayawada. The offences in the case were recorded as Sections 120-B,

148, 302, 201, 202, 212 r/w 149 of Indian Penal Code and Section 25 and

27 of Indian Arms Act, 1959.

     2.   After investigation, a preliminary charge sheet was filed initially

against 48 accused. Subsequently, a comprehensive charge sheet was

filed against 49 accused. Cognizance was taken and the case was taken

up as S.C.No.3 of 2018 by the VII Additional District Judge-Cum-IV

Additional Metropolitan Sessions Judge, Vijayawada. Trial in the matter

has been completed. Two police constables who are said to have

witnessed the murder were examined as PWs.2 and 3. Another Police

Constable was examined as PW.18, the Circle Inspector of Police, I Town

Police Station, Eluru, was examined as PW.87. The matter is posted for

arguments. It is stated that arguments on both sides had been completed,

except for the submissions to be made on behalf of one of the accused.

     3.   Accused Nos. 7 to 11, had filed Crl.M.P.No.15 of 2022, under

Section 319 of Cr.P.C., seeking directions of the Trial Court to include
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Crl.P.Nos.3612 & 5709 of 2022

PWs.2, 3, 18 and 87 as accused in the case, on the ground that the

evidence adduced in the trial makes out a case that these persons are

guilty of the offences laid against the other accused in the case and that

they are also guilty of offences under section 201 and 202 of I.P.C.

Similarly, Accused No.12 moved Crl.M.P.No.195 of 2022, under Section

319 of Cr.P.C. to implead PW.s. 2, 3, 18 and 87 as accused in the case.

Crl.M.P.No.15 of 2022 was dismissed by the Trial Court on 21.02.2022 and

Crl.M.P.No.195 of 2022 was also dismissed on 08.07.2022. Aggrieved by

the said orders of dismissal, Crl.P.No.3612 of 2022 was filed against the

order in Crl.M.P.No.15 of 2022 and Crl.P.No.5709 of 2022 was filed

against the orders in Crl.M.P.No.195 of 2022. As the two petitions arise

out of the same calendar case and raise the same issues on law and facts,

they are being disposed of together.

4. The case of the petitioners in both these petitions can be

summed up as follows:

a) The incident occurred on 24.09.2014. PW.1, who was the driver of

the Tavera taxi cab, in which the deceased were travelling, was

examined, during the course of investigation as LW.1, on

24.09.2014 itself. On that day he had stated that he had, on the

instructions of the owner of the taxi cab, picked up one person

from the taxi cab office on 24.09.2014 and had proceeded to

Gannavaram Airport where the two sons of the passenger from

Eluru had joined them. Thereafter, while the vehicle was 3 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

proceeding from Gannavaram Airport towards Eluru, a Mahindra

XUV-500 had collided with their vehicle due to which their vehicle

had to be stopped. Thereupon, some persons came out of the

Mahindra XUV-500 and shot the father and the two sons in the said

vehicle while he escaped from there.

b) Subsequently, PW.1 gave another statement on 30.09.2014, where

he changed his earlier statement, and stated that he had taken the

taxi vehicle to I Town Police Station, Eluru where the Circle

Inspector (PW.87) had deputed two constables, PWs.2 and 3 to go

along with the person who was waiting at the Police Station and

thereupon all four of them had travelled to Gannavaram Airport

where the sons of the passenger in the vehicle were picked up.

Subsequently, the incident, as described earlier, had happened with

the difference that PWs.2 and 3 were also present in the vehicle

when the 3 deceased were attacked and all the 3 witnesses,

namely PWs.1 to 3 had run away from the scene of offence.

Subsequently, PW.87 was contacted about the incident. At that

stage, PW.87 is said to have told PWs 2 and 3 to immediately come

back without informing anybody and after switching off their mobile

phones. PWs.2 and 3 had also deposed that PW.87 had promised to

pay a sum of Rs.2,00,000/- to save their skin.

c) PW.1 also states that PW.87 had directed him not to inform

anybody about the presence of PWs.2 and 3 in the vehicle at the 4 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

time of the incident and that PW.1 had given a statement recorded

under Section 161 of Cr.P.C. strictly in accordance with the

instructions of PW.87 and also in the press conference held

thereafter on the same day.

d) PW.32, who is the wife of one of the deceased and the mother of

the other two deceased, had stated in the Court that when she

went to the police station, on 24.09.1987 itself, and asked Pw 87,

why no armed escort was provided for her husband and sons, she

was told by PW.87 that "one Govindu did not listen to him and did

it even before crossing the border".

e) The Special Public Prosecutor appointed for prosecuting this case

had filed a petition under Section 319 of Cr.P.C. to include PWs.2, 3

and 87 as accused on the ground that they should be tried for the

offences under Sections 201, 302 and 120B of Indian Penal Code.

However, this application was not numbered and the said Special

Public Prosecutor was removed and another Special Public

Prosecutor was appointed. It is the case of the petitioners that this

was on account of the authorities trying to shield these persons

from being prosecuted.

f) PW.94, a Deputy Superintendent of Police, who was the

Investigating Officer, at page 26 of his deposition, stated that he

had suspected PWs.2 and 3 and arranged vigilance on them after 5 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

informing the same to his superior officers. The petitioners contend

that this is another pointer to the fact that even the Investigating

Officer had suspected the role of PWs.2 and 3 in the said offence.

g) PW.87, in the course of his cross examination, in the trial had

stated that Govindu is a head constable in their Police Station. The

petitioners would contend that the said Govindu is the Govindu

mentioned by PW.32 in her evidence.

h) PW.87 was initially shown, in the preliminary charge sheet, as a

person who was under suspicion, who could be added as an

accused at a subsequent stage. However, he was dropped as an

accused without any reason being given.

i) PW.18 had attempted to make general entries to show that PW.2

and PW.3 were sent officially on bandobust duty and should be

included as an accused on that score.

j) PW.15, the driver of a bus crossing the scene of offence, who

witnessed the offence, had deposed that the incident was an

encounter and the same has not been disputed by the prosecution

and as such the said evidence is sufficient to array the proposed

accused as accused in the case.

5. The petitioners contend that the above facts clearly make out a

case for impleading the proposed accused as accused in the case and to

try them for murder.

6 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

6. The learned Public Prosecutor submits that there were fights

between the family of the deceased against the family of the accused

Nos.1 to 5 on account of a marriage between the families which resulted

in the death of one the members of the family of the accused. He would

submit that the deceased were arrayed as accused in the case relating to

the death of the family member of the accused Nos.1 to 5 herein. On

account of these disputes, the deceased were being given police

protection from time to time to ensure that there was no retaliatory killing

of the deceased. In that process, the deceased father, had approached

PW.87 for police security when he was going to Gannavaram Airport to

pick up his sons. On that account, PW.87 had arranged for PWs.2 and 3 to

accompany the deceased. However, this had been done without following

necessary procedures due to which PW.87 had initially sought to cover up

the mistake, by ensuring that the presence of PWs.2 and 3, at the site of

the event, did not come up. However, realising the futility of such a cover

up, PW.87 and PW.s 2, 3 and 4 had come clean and stated the actual

facts. The initial attempt to cover up the presence of PWs. 2 and 3 is now

sought to be taken advantage of the petitioners herein.

7. The learned Public Prosecutor would also submit that the initial

stand taken by the petitioners, in the course of cross-examination, was

that PWs.2 and 3 were planted witnesses. The Petitioners have now

turned around to contend that P.Ws. 2, 3, 18 and 87 are the actual

culprits who should be tried for the murder. The learned Public Prosecutor 7 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

would also submit that the present applications have been made only for

the purposes of delaying the trial.

8. The learned Public Prosecutor has taken this Court through the

charge sheet which showed the investigation carried out by the

Investigating Officer regarding the manner in which the entire crime was

planned, the various meetings held by the accused amongst themselves at

various places in India, the attempts made to procure fire arms for the

commission of the crime and the various details of payments made to

various accused who had been hired for this purpose. The learned Public

Prosecutor would submit that this investigation clearly points to the

complicity of the persons arrayed as accused in the charge sheet and the

present applications have been moved only for the purposes of delaying

the trial. He would also point out to the directions of this Court dated

15.03.2022 for completion of the trial in three months.

9. Sri P. Veera Reddy, learned Senior Counsel appearing for the

proposed accused who are party to the petitions, before the trial Court as

well as this Court, contends that the provisions of Section 319 of Cr.P.C.

would not be available by any stretch of imagination. He would submit

that the provisions of Section 319 of Cr.P.C. would be applicable only

where evidence has been adduced, before the Trial Court, pointing to the

complicity of persons, who had not yet been arrayed as accused. He

would submit that the necessary facts or evidence for such a situation

have not been made out by the petitioners.

8 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

10. Sri P. Veera Reddy, would further submit that Section 201 of

Indian Penal Code is also not attracted as the ingredients of hiding

evidence for the purpose of protecting an offender are not available in the

present case. He relies upon the judgment of the Hon'ble Supreme Court

in Ram Saran Mohato and Anr., vs. State of Bihar1 (para 18);

Sukhram vs. State of Maharashtra2 (paras 18 and 22); Lok Ram

vs. Nihal Singh and Anr.,3 (paras 4 to 10); Michael Machado and

Anr., vs. Central Bureau of Investigation and Anr.,4 (paras 10 to

18).

11. The learned counsel appearing for the Petitioners had relied

upon Hardeep Singh vs. State of Punjab and Ors.,5; Rajesh and

Ors., vs. State of Haryana6 Ram Saran Mohato and Anr., vs. State

of Bihar (1 supra); Michael Machado and Anr., vs. Central Bureau

of Investigation and Anr., (4 supra); Lok Ram vs. Nihal Singh and

Anr.,(3 supra) (paras 4 to 10); Sukhram vs. State of Maharashtra

(2 supra); Kalyan Kumar Gogoi vs. Ashutosh Agnihori and Anr.,7

and Sugreev Kumar vs. State of Panjab and Ors.,8.

(1999) 9 SCC 486 = AIR 1999 SC 3435

2007 (7) SCC 502

2006 (10) SCC 192

(2000) 3 SCC 262

(2014) 3 SCC 92 (Constitution Bench)

AIR 2019 SC 2168 = (2019) 6 SCC 638

(2011) 2 SCC 532

(2019) SCC Online SC 390 9 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

12. Heard Sri Posani Venkateswarlu, learned Senior Counsel for Sri

K. Nitin Krishna, learned counsel for the petitioners in Crl.P.No.3612 of

2022, Sri Gudapati Venkateswar Rao, learned counsel appearing for Ms.

M. Iswarya, learned counsel for the petitioner in Crl.P.No.5709 of 2022, Sri

P. Veera Reddy, learned Senior Counsel appearing for the proposed

accused in these criminal petitions and Sri Y. Nagi Reddy, learned Public

Prosecutor appearing on behalf of the State.

Consideration of the Court:

13. At the outset, this Court must record the fact that this Court is

aware that any finding given by this Court in the present proceedings may

have a bearing on the conduct of the trial itself. As such, while this Court

is being extremely circumspect in observations, in the course of the

judgment, it would also be appropriate to direct that the observations in

this order shall not be taken into account by the trial Court for any reason

whatsoever.

14. The learned counsel appearing for the petitioners in

Crl.P.No.3612 of 2022 had also filed written arguments to supplement the

submissions made by the learned Senior Counsel. The learned counsel, in

the course of the said written arguments has cited about 18 judgments

said to be relating to the parameters of the discretion to be exercised by

the Courts under Section 319 Cr.P.C. The learned counsel has not drawn

the attention of this Court to the specific passages in those judgments that 10 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

need to be considered by this Court. However, the fact remains that there

are two judgments which are delivered by the Constitution Benches of the

Hon'ble Supreme Court and the same would be the guiding factors for this

Court.

15. A perusal of the other judgments would show that the said

judgments have been passed in line with the aforesaid judgments of the

Constitution Benches of the Hon'ble Supreme Court. In fact, all the 18

judgments cited by the learned counsel are judgments which have been

delivered after the judgments of the Constitution Benches of the Hon'ble

Supreme Court.

16. Learned counsel has also sought to draw the attention of this

Court to the minutiae of the depositions of the various witnesses to

contend that the case of the petitioners is made out. Apart from this, the

learned counsel has also made various submissions and seeks to draw

various conclusions on the basis of the evidence of the witnesses.

17. This Court has gone through the orders passed by the trial

Court in both the applications filed by the accused before the trial Court.

18. Before considering the submissions made by the petitioners and

the prosecution, it would be necessary to set out the contours of Section

319 Cr.P.C.

19. Section 319 Cr.P.C., reads as follows:

11 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

S.319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

20. This provision of law has been considered in various judgments

of the Hon'ble Supreme Court. However, in view of the judgments

rendered by the two Constitution Benches of the Hon'ble Supreme Court,

it would be apt to rely upon the guidelines and principles set out by the

Constitutions Benches of the Hon'ble Supreme Court. While the judgement 12 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

of the Hon'ble Supreme Court, in Dharm Pal and Ors., vs. State of

Haryana and Anr.,9 was on the question of whether a magistrate can

invoke the provisions of Section 319, at the stage of committal, the

judgement of the Hon'ble Supreme Court in Hardeep Singh vs. State of

Punjab and Ors., throws considerable light on the issue.

21. The relevant passages in Hardeep Singh vs. State of

Punjab and Ors., (5 supra), read as follows:

95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321 : (2013) 11 Scale 23] , held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person

(2014) 3 SCC 306 13 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.

Question (iv)--What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Answer

117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be 14 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

22. Another judgement of the Hon'ble Supreme Court, which

would have bearing on this case is Michael Machado v. Central

Bureau of Investigation (4 supra). The following passages are

relevant:

11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the court is only a discretion as could be discerned from the words "the court may proceed against such person". The discretionary power 15 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.

.......

14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub- section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re- examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.

23. Applying the above principles, it would have to be seen whether

there is sufficient material, in the evidence adduced till now, for the trial 16 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

court to include Pw 2, 3, 18 and 87 as accused in the case. It would also

have to be seen whether such an exercise should be carried out in the

present case. It would have to be noted that about 95 witnesses have

been examined in the trial and that this case which had begun in the year

2014 is on the verge of disposal, either way as arguments, on behalf of all

sides, except one accused, have been completed.

24. The case of the petitioners is that the presence of PWs.2 and 3

at the scene of offence, was initially suppressed on the instructions of

PW.87 and thereafter, the statements were changed by LWs.1 showing

that PWs.2 and 3 were personally present at the scene of offence. After

drawing the attention of this Court to these facts, the petitioners sought to

rely upon the evidence of PW.32 and PW.94, apart from relying upon an

application said to have been filed by the Special Public Prosecutor, under

Section 319 Cr.P.C., to array PW.87 as an accused to contend that the

said material is sufficient to make out a ground for arraying PWs.2, 3, 18

and 87 as accused.

25. The petitioners had taken this Court through parts of the

depositions of PWs.1 to 3. The passages pointed out by the learned Senior

Counsel appearing for the petitioners would only go to show that the

presence of PWs.2 and 3 was not mentioned initially and their presence

was subsequently stated by PWs.2 and 3. Apart from the above

statements, the learned counsel for the petitioners, have not drawn the

attention of this Court to any other piece of evidence, recorded in the trial, 17 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

to demonstrate that the cloud over the presence of PWs.2 and 3 at the

scene of offence could lead to a prima facie view that PWs. 2 and 3 had

also participated in the killing of the three deceased persons. Further the

material on record also does not disclose any facts which can be used to

arrive at a prima facie view that PWs.2 and 3 were present at the scene of

offence, as part of a conspiracy to assist the actual assailants. The said

evidence, in any event, is not sufficient to allow the applications filed

under section 319 of Cr.P.C.

26. The application under Section 319, filed by the Special Public

Prosecutor was not numbered. It has not been marked as evidence in the

trial and consequently, the same cannot be looked into, under section

319 of Cr.P.C. The said application, even if it was to be considered, would

not assist the petitioners. The said application merely states that, in view

of the evidence of PWs.1 to 3, there is a necessity to array PW.87 alone as

an accused. To that extent, this application does not assist the petitioners

against PWs.2, 3 and 18. As far as PW.87 is concerned, the application

states that it is being filed on the basis of the evidence adduced from

PWs.1, 2 and 3. As discussed above, the evidence of PWs 1 to 3 does not

make out any prima facie case requiring the inclusion of the proposed

accused as accused in this case.

27. The petitioners rely upon the evidence of PW.15, who is said to

be the driver of a bus which was crossing the scene of offence when the

offence had occurred. This witness is said to have stated that the incident 18 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

was that of an encounter. The deposition of PW.15 shows that PW.15 was

not an eye witness to the incident. He specifically states that he came to

know that an incident of encounter had occurred at that place when they

were asked to take their vehicle in one way, to avoid disturbing the scene

of offence. This would obviously mean that the bus was diverted from the

scene of offence, after the offence had taken place. In such a case, the

description of the incident as an encounter by PW.15 does not in any

manner assist the petitioners' case.

28. The learned counsel for the petitioners in Crl.P.No.3612 of

2022, had sought to point out that the manner in which PWs.2 and 3 are

said to have sat in the rear section of the vehicle initially and had then

shifted to the front section of the vehicle etc.,. makes out a case against

the proposed accused. These facts would not, in any manner, make a

difference to the main issue.

29. The petitioners, except making an allegation that PW.18 had

sought to make entries in the registers to show that PWs.2 and 3 were on

Bandobust duty, have not explained as to how this allegation would be

sufficient to make out a probable case against PW.18 or to form a prima

facie opinion that the said person needs to be tried as an accused in the

present case.

30. The statement of PW 32 relied upon by the petitioners does not

make out any case against PW 87. The said Govindu does not figure 19 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

anywhere in the case. The deposition of PW32 is to the effect that the

persons arrayed as accused had committed the murder of her husband

and sons. A stray statement in a deposition cannot lead to a prima facie

view of commission of offences by the proposed accused.

31. The petitioners have also contended that the burden of proof or

the scale of proof for arraying a person as accused, under Section 319

Cr.P.C would be much lower than the level of proof that needs to be made

out for a conviction. Even if the said principle is to be applied, the

petitioners have not discharged even the reduced burden of proof. The

entire evidence relied upon by the petitioners would only point to an

attempt to cover up a procedural lapse in the manner in which PWs 2 and

3 had been sent as escorts to the deceased persons rather than making

out a case for including the proposed accused as accused in the case.

32. The question whether the petitioners should be arrayed as

accused under Sections 201 and 202 IPC remains.

33. Sections 201 and 202 IPC read as follows:

201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, 20 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

202. Intentional omission to give information of offence by person bound to inform.--Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

34. Sri P. Veera Reddy, submits that the allegation against the

proposed accused is that they had sought to suppress the fact of the

presence of PWs 2 and 3, at the scene of the offence. He contends that

the provisions of section 201 of I.P.C. would not be available against the 21 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

proposed accused as the necessary ingredient of causing disappearance of

evidence to shield an accused is not available in the present case. He

relies upon the following passage in Sukhram v. State of Maharashtra,

(2 supra) to contend that Section 201 of I.P.C. would not be applicable:

18. The first paragraph of the section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.

35. Sri P. Veera Reddy would also contend that even the provisions

of section 202 would not be available as the scope of this provision , as

explained by the Hon'ble Supreme Court, in the following manner , in 22 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

Harishchandrasing Sajjansing Rathod v. State of Gujarat,10 clearly

precludes any application of the said provision

4. To sustain a conviction under the above quoted Section 202 of the Penal Code, it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed, (2) that the accused had intentionally omitted to give information respecting that offence, and (3) that the accused was legally bound to give that information. We have gone through the entire evidence bearing on the aforesaid offence under Section 202 of the Penal Code but have not been able to discern anything therein which may go to establish the aforesaid ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give information respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person liable under this section. The offence under Section 304 (Part II) and the one under Section 331 of the Penal Code not having been established on account of several infirmities, it is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word "whoever" occurring at the opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is alleged to have committed the principal offence. This is so

(1979) 4 SCC 502 : 1980 SCC (Cri) 110 at page 504 23 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

because there is no law which casts a duty on a criminal to give information which would incriminate himself. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not appear to have been made out against the prosecution. There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.

36. The aforesaid judgements may not be necessary to decide this

issue. PW1 had voluntarily changed his statement to reveal the presence

of PWs 2 and 3 at the scene of the offence. PWs 2, 3 and 87 had also

admitted the presence of PWs 2 and 3 at the scene of the offence. These

statements were given during the course of the investigation and no new

material has been discovered in the evidence recorded during the trial to

invoke the provisions of section 319 of Cr.P.C.

37. Another factor which needs to be taken into account is the

stage of the trial. The offence occurred in the year 2014. 49 persons have

been arrayed as accused. About 95 witnesses have been examined and

arguments on all sides, barring the submissions to be made on behalf of

one accused have been heard. In such circumstances, directing the

inclusion of the proposed accused as accused in this case would negate

the entire effort put in to complete the trial. Further, no material has been

placed before this court requiring such an intervention from this court.

24 RRR,J.

Crl.P.Nos.3612 & 5709 of 2022

38. For all these reasons, I do not find any reason to interfere with

the orders of the trial Court and these two criminal petitions are

accordingly dismissed.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

__________________________ R. RAGHUNANDAN RAO, J.

10th February, 2023 Js.

                              25                            RRR,J.
                                    Crl.P.Nos.3612 & 5709 of 2022


      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




            Crl.P.Nos.3612 & 5709 of 2022




                  10th February, 2023

Js.