Sunil Dasari vs The State Of Karnataka
2022 Latest Caselaw 4869 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 16TH DAY OF MARCH, 2022

                          BEFORE

            THE HON'BLE MR. JUSTICE P.N.DESAI

                 CRL.RP.NO.100042 OF 2022

BETWEEN

1. SUNIL DASARI
   S/O. DASARI SYAMSAN
   AGE. 46 YEARS, OCC. PRIVATE JOB
   R/O. H.NO. 133,
   NEW KANYA NAGAR
   GADAG ROAD, HUBBALLI
   TQ. HUBBALLI,
   DIST. DHARWAD-580 020

2. PETER DASARI
   S/O. DASARI SYAMSAN
   AGE. 43 YEARS, OCC. PRIVATE JOB
   R/O. H.NO. 133,
   NEW KANYA NAGAR
   GADAG ROAD, HUBBALLI
   TQ. HUBBALLI,
   DIST. DHARWAD-580 020

3. SUNNY DASARI
   S/O. DASARI SYAMSAN
   AGE. 38 YEARS, OCC. PRIVATE JOB
   R/O. H.NO. 133,
   NEW KANYA NAGAR
   GADAG ROAD, HUBBALLI
   TQ. HUBBALLI,
   DIST. DHARWAD-580 020

4. CHARLIE DASARI
   S/O. DASARI SYAMSAN
   AGE. 41 YEARS, OCC. PRIVATE JOB
   R/O. H.NO. 133,
   NEW KANYA NAGAR
   GADAG ROAD, HUBBALLI
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  TQ. HUBBALLI,
  DIST. DHARWAD-580 020

                                              ...PETITIONERS

(BY SRI.B.G.INDI, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH PSI, KESHWAPUR POLICE
STATION, HUBBALLI
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
AT. DHARWAD BENCH
AT. DHARWAD-011
                                              ...RESPONDENT

(BY SMT.GIRIJA HIREMATH, HCGP)


      THIS CRIMINAL REVISION PETITION IS FILED U/S 397 AND

401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND SET-ASIDE

THE ORDER DATED 18.12.2021 PASSED BY THE COURT OF THE V

ADDITIONAL   DISTRICT   AND   SESSIONS   JUDGE,   DHARWAD,

SITTING AT HUBBALLI ON APPLICATION U/S 227 OF CR.P.C., FOR

DISCHARGE THE PETITIONERS/ACCUSED NO.2 TO 5 HEREIN IN SC

NO.187/2019 FOR OFFENCES PUNISHABLE U/S 143, 147, 148,

201, 324, 307, 326, 341, 504, 506 R/W SECTION 149 OF IPC AND

FURTHER ALLOW DISCHARGE APPLICATION BY DISCHARGING THE

PETITIONERS HEREIN FOR LEVELED CHARGES.


      THIS PETITION COMING ON FOR ADMISSION THIS DAY,

THE COURT MADE THE FOLLOWING:
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                          ORDER

This revision petition is filed under Section 397 of and

401 of Criminal Procedure Code (hereinafter for short

'Cr.P.C.') by accused Nos.2, 3, 4 and 5 with a prayer to set

aside the order dated 18.12.2021 passed by the V Addl.

District and Sessions Judge, Dharwad, Sitting at Hubballi,

wherein application filed by these petitioners under Section

227 of Cr.P.C. for discharge is came to be rejected.

2. It is contended by the petitioners that on the basis of

the complaint lodged by first informant, a case in Crime

No.41/2016 for the offence punishable under Sections 143,

147, 148, 341, 504, 324, 307 r/w Section 149 of IPC came

to be registered against these petitioners and others. It is

stated in the complainant that on 12.03.2016 at about

1.10 p.m., when he was going on his Hero Honda Splinder

vehicle bearing No.KA-25/U-5766, then he came near

Chetana colony Malabar Store, at that time, all the eight

accused who were standing there stopped his bike and

abused him in a filthy language. Out of them Accused No.1

is Dasari prasag, accused no.2 is Dasari Sunil, accused

No.3 is Dasari Peter, accused No.4 Dasari Sunny, accused

no.5 Dasari Charli, accused No.6 is Ambadapudi James ,

accused no.7 is Ambadapudi Marshal and accused No.8

Ambadapudi Mojas assaulted him with a stone on his head,

legs and hands. The accused by name Dasari Peter,

Ambadapudi Marshal and Dasari Sunny stabbed him on his

back with a knife and when he tried to escape, the accused

Ambadapudi Mojas they all assaulted on his left fore arm

with knife. Accused Dasari Charly assaulted the victim with

a wooden stick all over his body. All of them assaulted him.

Victim sustained injury on his head, back, hands and legs.

The accused threatened to take away his life. Thereafter,

injured was admitted to hospital and a case came to be

registered on the same day at about 6.30 p.m. It is stated

that now investigation is completed and charge sheet is

filed.

3. Heard Shri B.G.Indi, the learned counsel appearing

for the petitioner. The learned HCGP Smt.Girija Hiremath,

is directed to take notice for the respondent State and is

heard in the matter.

4. The learned counsel for the petitioner argued that

these petitioners who are accused nos.2, 3, 4 and 5 have

filed application before learned Sessions Judge for their

discharge. The said application came to be rejected without

properly analysing the statements of the witnesses. Only,

due to prior enmity, a false complaint has been lodged by

arraying these petitioners as accused. Complainant

himself is accused in other cases. The eye witnesses

cannot be believed. The statement of panch witnesses are

all created. Therefore, though this is a fit case for

discharge, trial Court has rejected the application filed for

discharge. Hence, prays to allow the application.

5. On the other hand, learned HCGP argued that there

are statements of the witnesses available in the charge

sheet, wherein the complainant himself stated about

assault on him by accused. There are, panch witnesses,

eye witnesses to the incident. The weapons have been

used for commission of offences are also seized. The

medical report shows injuries are grievous in nature.

Therefore, when there are eye witnesses to the incident

and panch witnesses for recovery and the complainant has

also stated overt act of each accused as evident from the

charge sheet, then there is sufficient material placed by

prosecution to frame charge and convict accused. The

learned Sessions judge after considering all these points

has rightly dismissed the application. Whether the

evidence of eye witnesses is believable or not is to be

considered only at the time of trial and not at this stage.

Hence, prays to dismiss the petition.

6. From the above, material points that arise for my

consideration is:-

"whether the order passed by the learned Sessions

Judge under Section 227 of Cr.P.C. is legally correct or

needs any interference by this Court?"

7. Section 227 Cr.P.C. reads as Under:

"227. Discharge- 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."

8. In view of the above provision, the material before

the Court will have to be considered. The learned Sessions

Judge in his order has stated that the material placed by

the prosecution is sufficient, the Court can proceed to

frame the charge. The materials are complainant who is

injured then CWs 8 to 10 are eye witnesses, Panch

witnesses are CWs.6 and 7. The weapons alleged to have

been used for commission of offences by all the accused

are seized. Learned Sessions Judge found that, whether

the witnesses are believable or not is too early to come to

conclusion, but that has to be gone into only at the time of

trial and final judgment. At this stage, there are no

materials to show that witnesses cited in charge sheet

cannot be believed at all. Learned Sessions Judge has

stated that validity and genuineness of evidence is to be

considered only after conducting detail trial and only at the

time of writing final judgment. Therefore, he has rejected

the said petition. So, from the reasons stated by the

learned Sessions Judge, it is evident that learned Sessions

Judge has given valid reasons for dismissing the

application.

9. It is settled principle of law that the judge shall

discharge the accused, 1) After considering the record of

the case and documents submitted and 2) Hearing the

submission of the accused and the prosecution, if

considered that there are no sufficient grounds to proceed

against the accused, i.e. either there is no legal evidence

or that the facts do not make out any offence at all. There

is no scope for examination of any witnesses at this stage.

The trial Court shall record the detail reassons if accused

going to discharge accused. But for framing of charge, no

such detailed discussion or reasons are necessary. If the

material available discloses that ingredients of the offences

are attracted, then the judge shall proceed to frame the

charges. The judge has to consider only whether there is

prima facie case against accused has been made out. The

judge should not make a rowing enquiry into a pros and

cons of matter and waving the evidence as if he was

conducting the trial. A test to determine prima facie case

would naturally depends upon the facts of each case.

10. At the stage of framing of charge, the truth, veracity

and effect of evidence which the prosecutor proposes to

produce are not to be meticulously judge. The standard of

test, proof of judgment which is to be applied finally,

before finding the accused guilty or otherwise is not

exactly to be applied at the stage of section 227 of Cr.P.C.

or section 228 of Cr.P.C. The Court at the stage of framing

of charge is required to evaluate the material and

documents on record with a view to finding, if the facts

emerging therefrom taken at their face value disclose the

existence of all the ingredients constituting the alleged

offence, charge can be framed. The Court is not expected

to go deep into the probative value of the material on

record. What needs to be considered is whether there is

ground for presuming that the offence is committed and a

ground for convicting the accused has been made out.

11. On perusing the material placed before the learned

Sessions Judge, the learned Sessions Judge found that

there is a statement of complainant and injured assigning

role of each accused in assault and the weapon used by

them and the part of the body on which the assault was

made. The panchanama also indicates the property used

for commission of the offence is also seized and there are

pancha witnesses. The charge sheet indicates that there

are eye witnesses to the incident who are cited as CWs.8,

9 and 10 and their name also finds place in the first

information given by the complainant. There are also other

witnesses who have witnessed the incident from their

shops. There is also medical report of doctor. Therefore, in

view of the material placed before the Court, the learned

Sessions Judge has rightly framed the charge.

12. This incident said to have been occurred on

12.3.2016 and the charge sheet is filed. The Sessions Case

No.187/2019 came to be registered. The accused nos.1 to

8 filed the application on 25.8.2021. Therefore, viewed

from any angle, if the revision petition filed by these

petitioners is considered, then it is evident that the order

passed by the learned Sessions Judge cannot be said as

either illegal or not correct. On the other hand, it is based

on sound principles regarding framing of charge based on

materials as referred above. The learned Sessions Judge

has given proper reasons and considered the material

before the Court and proceeded to frame charge. I find no

infirmity in the said order. Hence the revision petition

being devoid of merit is liable to be dismissed. Accordingly

I pass the following:

ORDER

The revision petition filed under section 397 and 401

of Cr.P.C. is hereby dismissed.

Sd/-

JUDGE

Hmb-Upto para 9 Mrk-para 10 to end.