Telangana High Court

Naini Rajender Reddy vs The State Of Telangana on 3 September, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G.SRI DEVI

                        CRL.R.C.No.58 of 2021

O R D E R:

This Criminal Revision Case is directed against the order of

the Special Sessions Judge for Trial of Cases under SCs/STs (POA)

Act-cum-II-Additional Sessions Judge, Warangal, passed in

Crl.M.P.No.55 of 2020 in Sessions Case No.229 of 2019, dated

04.12.2020, whereby the learned Special Sessions Judge dismissed

the petition filed by the revision petitioner/A-4, under Section 227 of

Cr.P.C., seeking to discharge him for the alleged offences punishable

under Sections 449, 302, 120-B and 324 read with Section 34 of the

I.P.C. and under Sections 25 (1) (a) and 27 (1) of the Arms Act, 1959.

Revision Petitioner is Accused No.4 in Crime No.206 of 2017,

of Hanamkonda Police Station, which was registered for the offences

punishable under Sections 452, 302, 324 read with Section 34 of I.P.C.

Subsequently the Inspector of Police, Hanamkonda Police Station,

after completion of entire investigation, filed charge sheet against

the revision petitioner and others for the offences punishable under

Sections 449, 302, 120(B), 324 read with Section 34 I.P.C. and Sections

25 (1) (a) and 27 (1) of Arms Act, 1959, which was taken cognizance

as P.R.C.No.101 of 2018, and subsequently the same was committed

to the Court of Sessions, which was numbered as S.C.No.229 of 2019.

It is stated that absolutely there was no material before the trial

Court to frame the charge under Sections 120-B and 302 of I.P.C.

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against the revision petitioner; the prosecution mainly relied on the

alleged confession made by A-1 during the police custody, on

13.07.2017, which is not admissible under law and hit by Section 25

of the Indian Evidence Act and if the said confession is kept aside,

no incriminating material is available to frame the charge against the

revision petitioner under Sections 120-B and 302 of I.P.C. It is also

stated that the confession of co-accused cannot be the sole

circumstance to frame the charge against the revision petitioner; and

that since no prima facie material to frame the charges as alleged by

the prosecution, continuing the case against the revision petitioner is

nothing but futile exercise, therefore, the revision petitioner filed

Crl.M.P.No.55 of 2020 under Section 227 of Cr.P.C. requesting the

trial Court to discharge him for the said alleged offences. However,

the trial Court having considered the entire material available on

record, dismissed the said petition by its order, dated 04.12.2020.

Aggrieved by the said order, the revision petitioner/A-4 filed the

present Criminal Revision Case.

Heard Sri T.Niranjan Reddy, learned Senior Counsel

appearing on behalf of Sri M.P.Kashyap, learned Counsel for the

revision petitioner; learned Assistant Public Prosecutor appearing

for the respondent and perused the record.

It has been submitted by the learned Senior Counsel

appearing for the revision petitioner that on 13.07.2017 one

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Anishetty Saritha, lodged a complaint against Bommathi Vikram

(A-1), Varun (A-3) and Chiranjeevi (A-2) stating that they have

attacked her husband due to previous disputes at the instigation of

some other persons. Basing on the said complaint, a case in Crime

No.206 of 2017 of Hanamkonda Police Station, has been registered

for the offences punishable under Sections 452, 302, 324 read with

Section 34 of I.P.C. Learned Senior Counsel further submits that the

murder of a Corporator by three individuals at Warangal took place

on 13.07.2017 and at 6.30 P.M. on the same day, they surrendered at

the local police station. He further submits that A-1, in his

confessional statement, stated that the revision petitioner had

instigated him to commit the murder, but in addition to the same,

A-1 also confessed that he had personal rivalry with the deceased as

the deceased killed his father. He further submits that while the

matter stood thus, at about 10.00 P.M. on 13.07.2017, the wife of the

deceased had lodged a police report and the same has been

registered against A-1 to A-3, however, in the remand report, the

revision petitioner is figured as A-4 basing on the so-called

confessional statement of A-1, which was made even before

registering the F.I.R. and, therefore, making the revision petitioner

as A-4 is an after thought. Learned Senior Counsel also submits that

except the so-called non-admissible confessional statement of A-1,

which was recorded before registration of F.I.R., there is no whisper

in the entire charge sheet with regard to the role of A-4. The

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Investigating Officer has filed charge sheet only basing on the so-

called confession of A-1 and in this regard it is submitted that the

confession of A-1 was firstly recorded on 13.07.2017 at 8.00 P.M., i.e.,

before receiving the complaint. Learned Senior Counsel also

submits that a charge cannot be framed solely basing on the

confession of co-accused, when no other incriminating material is

available on record. The material on record does not make out a

prima facie case against the revision petitioner and even there is no

suspicion much less strong suspicion to frame charge against the

revision petitioner and that the investigating agency has falsely

implicated the revision petitioner in this case basing on the

confession of A-1 at the instigation of the TRS party as the revision

petitioner being the President of the Congress Party of Warangal

District. He also submits that where there is no material other than

statement of the co-accused, no person can be prosecuted on the

basis of the statement made by the co-accused. In support of his

contention, he relied on the following judgments:-

1. A.K.Subbaiah and others v. State of Karnataka and others1

2. R.S. Mishra v. State of Orissa and others2

3. Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence3

4. Manharibhai Muljibhai Kakadia and another v.

Shaileshbhai Mohanbhai Patel and others4

5. Tofan Singh v. State of Tamilnadu5

(1987) 4 SCC 557

(2011) 2 SCC 689

(2018) 8 SCC 271

Crl.A.No.1557 of 2012

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Learned Assistant Public Prosecutor appearing on behalf of

respondent contended that in the confessional statements, A-1 to

A-3 have clearly stated about their involvement in the said offence

as well as the instigation made by the revision petitioner and,

therefore, in view of Sections 10 and 30 of the Evidence Act, the

alleged confession, which is inculpatory statement made by A-1 to

A-3, is binding on the revision petitioner. He further submits that

there is sufficient material placed by the Investigating Agency and

absolutely there is no necessity to discharge the revision petitioner.

He also submits that while deciding an application under Section

227 of Cr.P.C., the trial Court was not required to sift the entire

evidence nor the revision petitioner was entitled to show any

document or lead any evidence in his defence. He further submitted

that since the charge sheet disclose the offence and there were

documents and materials in support of the charge, the application

under Section 227 of Cr.P.C. has rightly been rejected by the trial

Court.

In Suresh Budharmal Kalani Alias Pappu Kalani v. State of

Maharashtra6 the Apex Court held as under:-

"6. Thus said, we may turn our attention to the confession made by Dr Bansal and Jayawant Suryarao. Under Section 30 of the Evidence Act, 1872, a confession of an accused is relevant and admissible against a co- accused if both are

(2021) 4 SCC 1

(1998) 7 SCC 337

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jointly facing trial for the same offence. Since, admittedly, Dr Bansal has been discharged from the case and would not be facing trial with Kalani, his confession cannot be used against Kalani. The impugned order shows that the Designated Court was fully aware of the above legal position but, surprisingly enough, it still decided to rely upon the confession on the specious ground that the prosecution was not in any way precluded from examining Dr Bansal as a witness in the trial for establishing the facts disclosed in his confession. This again was a perverse approach of the Designated Court while dealing with the question of framing charges. At that stage, the court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. The Designated Court was, therefore, not at all justified in taking into consideration the confessional statement of Dr Bansal for framing charges against Kalani.

7. So far as the confession of Jayawant Suryarao is concerned, the same (if voluntary and true) can undoubtedly be brought on record under Section 30 of the Evidence Act to use it also against Kalani but then the question is: what would be its evidentiary value against the latter? The question was succinctly answered by the Apex Court in Kashmira Singh v. State of M.P.7 with the following words:

"The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if

AIR 1952 SC 159

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it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

In State of Bihar v. Ramesh Singh8 wherein this Court has laid

down the principles relating to framing of charge and discharge as

follows:

"Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused.

It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S.227 or S.228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the

AIR 1977 SC 2018

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accused or whether the trial is sure to end in his conviction.

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. 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. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S.228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S.227."

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In Union of India v. Prafulla Kumar Samal and another9, after

survey of case law, this is what the Supreme Court has laid down:

"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 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 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 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."

AIR 1979 SC 366

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In the instant case, a perusal of the material available on

record would show that on 13.07.2017 one Anishetty Sarita, lodged

a complaint against Bommathi Vikram (A-1), Varun (A-3) and

Chiranjeevi (A-2) stating that they have attacked her husband due

to previous disputes at the instigation of some other persons and

basing on the said complaint, a case in Crime No.206 of 2017 of

Hanamkonda Police Station, has been registered for the offences

punishable under Sections 452, 302, 324 read with Section 34 of

I.P.C.

In Sajjan Kumar v. C.B.I.10 the Apex Court while considering

the provisions i.e., framing of charges and discharge of the accused,

held as under:-

"Exercise of jurisdiction under Sections 227 and 228 CrPC:

21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(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.

(2010) 9 SCC 368

GSD, J Crlrc_58_2021

(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 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 on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of 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." From the above decisions, it is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient

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ground for proceeding against the accused. A judicial magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analyzing the role of the respondent herein (A-6) from the charge sheet and the materials supplied along with it, the above principles have to be kept in mind."

The Supreme Court further in the case of Asim Shariff v.

NIA11, has dealt with the scope of Section 227 of the Cr.P.C. for

discharge of an accused. In the aforesaid judgment, it has been held

that "in exercise of power under Sections 227 and 228 Cr.P.C., in the

Sessions Court (Section 239 Cr.P.C. pertaining to warrant cases), the

trial Court has 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. If the material placed before the Court

(2019) 7 SCC 148

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discloses grave suspicion against the accused which has not been

properly explained, the Court is justified in framing the charge. It

has also been held that if two views are possible and one of them

gives rise to suspicion only, as distinguished from grave suspension,

the trial Judge would be empowered to discharge the accused."

In the instant case, the contention of the learned Counsel for

the revision petitioner is that a confession made in the presence of

Police Officer is clearly inadmissible.

As seen from the record, immediately after committing the

offence, A-1 to A-3 have surrendered at the local police station,

where the confessional statements of A-1 to A-3 have been recorded

by the Investigating Officer i.e., Inspector of Police, Hanamkonda

Police Station, in the presence of mediators. In the said confessions,

A-1 had stated that on the instigation made by the revision

petitioner, he along with A-2 and A-3 committed the murder of the

deceased. Admittedly, the name of the revision petitioner was

arrayed as A-4 basing on the confessional statement of the co-

accused i.e., A-1. Apart from such confessional statement of A-1,

nothing was produced on record to indicate the involvement of the

revision petitioner.

Undoubtedly, in Suresh Budharmal Kalani Alias Pappu

Kalani (6 supra), the Apex Court has taken the view that confession

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by a co-accused containing incriminating matter against a person

would not by itself suffice to frame charge against it.

In Kashmira Singh v. State of Madhya Pradesh12, the Apex

Court relied upon the decision of the Privy Council in Bhuboni

Sahu v. The King13 and laid down as under:

"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King It does not indeed come within the definition of" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."

Recently, in Dipakhbhai Jagdishchandra Patel v. State of

Gujarat and another14 the Apex Court in para Nos.47 to 50 held as

under:

"47. A confession made to a Police Officer is clearly inadmissible. The statement relied on by respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996. This is pursuant to the FIR registered on 10.04.1996. The statement dated 11.04.1996 is made to a

AIR 1952 SC 159

1949 SCC Online PC 12

(2019) 16 SCC 547

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Police Officer. This is clear from the statement as also letter dated 10.08.1996 (Annexure R/6) produced by the respondent. It is clearly during the course of the investigation. Even if it does contain admissions by virtue of Section 162 and as interpreted by this Court in V.C. Shukla and others (supra), such admissions are clearly inadmissible.

48. If the statement made by the appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani Alias Pappu Kalani (supra) becomes applicable.

49. We also notice the following statement in judgment rendered by Bench of Seven Judges in Haricharan Kurmi v. Sate of Bihar15:

"As a result of the provisions contained in S.30 of Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in

AIR 1964 SC 1184

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order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

Thus, the confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.

50. Proceeding on the basis that it is a confession by a co- accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and appellant appears to be proceeded against on his own) and having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of which even a strong suspicion could be aroused, we would find that the mandate of the law requires us to free the appellant from being proceeded against. Accordingly, we allow the appeal and the petition filed under Section 482 of the Cr.PC. The Order impugned passed by the Sessions Judge framing the charge against the appellant will stand set aside and the appellant will stand discharged."

In the instance case also apart from the confessional statement

of co-accused, there is no material suggesting involvement of the

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revision petitioner in the crime in question. Further, in the

confessional statement of A-1, he has stated that he is having

personal rivalry with the deceased in connection with the death of

his father. On the touchstone of law laid down by the Apex Court,

such confessional statement of co-accused cannot by itself be taken

as a substantive piece of evidence against another co-accused.

For the aforesaid reasons and having regard to the principles

of law laid down by the Apex Court in the judgments referred to

above and since the revision petitioner was arrayed as A-4 basing