S.Pakkirisamy v. State Rep by

ORDER

The criminal revision case has been filed against the impugned order dated 16.02.2023 made in Crl.M.P.No.3953 of 2022 on the file of the Principal District & Sessions Court, Cuddalore and consequently, to discharge the petitioner/A10 from the criminal proceedings.

¶2The petitioner is arrayed as A10 in S.C.No.81 of 2021 on the file of the Principal District & Sessions Court, Cuddalore. The fact of the case is that due to previous enmity, on 19.07.2020 at about 4.30 p.m., all the accused conspired together, abused the deceased Subash in filthy language and assaulted him by using dangerous weapons with an intention to cause death to him and thereby, committed murder. Hence, the respondent police registered a case in Crime No.1194 of 2020 for the offences under Sections 147, 148, 149, 294(b), 302 and 120(b) IPC. In which, the petitioner, who is arrayed as A10 has filed a petition in Crl.M.P.No.3953 of 2022 in S.C.No.81 of 2021 to discharge him from the charges and the learned Principal District and Sessions Judge, Cuddalore, by an order dated

16.02.2023, dismissed the same. Aggrieved over the same, the present Criminal Revision has been filed.

3.The learned counsel for the petitioner submits that the petitioner is arrayed as 10th accused in S.C.No.81 of 2021 pending on the file of Principal District & Sessions Court, Cuddalore. In which, the petitioner filed a petition in CMP No.3953 of 2022 under Section 227 of Cr.P.C. to discharge him from the criminal proceedings. After considering the argument of the learned counsel for the parties, the Trial Court dismissed the discharge petition on the ground that there is a primafacie case to frame charge against the accused persons. Though in the witness list 26 witnesses were shown as list of witnesses, who were examined by prosecution side, except L.W.18, no witnesses had spoken about the overtact of the petitioner. Only L.W.18 had given a statement before the police under Section 161 of Cr.P.C as though he overheard about the conspiracy to commit the offence. Apart from the statement of LW.18, police implicated the petitioner based upon the confession of the first accused. The confession of the first accused cannot be relied on as a conclusive evidence against the petitioner. With regard to the presence of the petitioner in the scene of occurrence, there is no evidence and materials on the prosecution side. Further, the learned counsel contended that at that time, the petitioner was working in the Electricity Department as a line man at Nellikuppam Division and on the relevant date, he was on special duty as directed by the Department. To support his argument, he filed the relevant entries of attendance register and the work allotment order on 19.07.2020. The learned counsel further contended that the Trial Court overlooked the fact and dismissed the petition. Thus, pleaded to set aside the impugned order and to allow the criminal revision and discharge the accused from the criminal proceedings in S.C.No.81 of 2021.

¶4The learned Government Advocate (Crl. Side) supported the order of the Trial Court and submitted that there is a clear statement of LW18 Veeramuthu, who deposed about the conspiracy for murdering the deceased. Apart from this, the first accused Rajendran gave a confession implicating this accused in the crime. Therefore, there is no ground to discharge the accused from the criminal proceedings and pleaded to dismiss the revision petition.

¶5I have considered the matter in the light of the submission made by the learned counsel for the parties and perused the materials on records.

¶6On a perusal of the records and materials, the fact reveals that the petitioner is arrayed as 10th accused in S.C.No.81 of 2021 on the file of the Principal District and Sessions Court, Cuddalore. The respondent police, in pursuance of the complaint given by one Sudhakar S/o. Subburayan, registered a case in crime no.1194 of 2020 on 19.07.2020 for the offences under Section 147, 148, 294(b), 324, 302 of IPC for the murder of one Subash.

¶7I have gone through the final report. In the final report, the prosecution cited 26 witnesses. L.W.1 Sudhakar is the informant for registering the First Information Report. LW2 to LW11,namely, Manikandan, Rahul, Jeyaseelan, Kalithasan, Adikesavan, Sivaperumal, Sureshkumr, Sundaramoorthy, Babu and Balaraman, are eye-witnesses to the occurrence. LW.12 to LW.17, namely, Kannadasan, Udayakumar, Vaanthi, Namadev, Jayanthi, Nagarajan, are witnesses to the Observation Mahazar, arrest of A1 and A2 and Seizure Mahazar witnesses. LW 20 to 23,namely Rajiv, Sharmila, Arun, Kabilan are Doctors. L.W.24 to 26, namely Prabhu, Prasanna and K.Veeramani are investigation officers. All these witnesses had not spoken about the petitioner to connect him with the crime. According to the prosecution, the only witness LW18 Veeramuthu has spoken first time about the petitioner in connection with the crime. I have gone through the statement of the Veerathumuthu. For better appreciation , it is reproduced here under:- ehd; fPH; mU';Fzk; fpuhkj;jpy; nkw;fz;l tpyhrj;jpy; trpj;J tUfpnwd;/ "

ehd; Typ ntiy bra;J tUfpnwd;/ ehd; 18/07/2020k; njjp ,ut[ Rkhh; 8.00 kzpastpy; v';fs; Ch; Kd;g[ v';fs; Ciur; nrh;e;j gf;fphprhkp j-bg. Rg;gpukzpd; kw;Wk; rpyh; Fk;gyhf ,Ue;J bfhz;L mtid nghl;L js;splDk; vJth ,Ue;jhYk; ehd; ghh;j;Jf; bfhs;fpnwd; vd;W jh;kuh$; brhy;ypa[s;sjhf ngrpf; bfhz;L ,Ue;jdh;/ nkYk; gf;fphprhkp vt;tst[ brythdhYk; ehd; ghh;j;Jf; bfhs;fpnwd;/ mtid nghL';flh vd;Wk; Twpf; bfhz;L ,Ue;jhh;fs;/ ehd; mth;fs; ahiunah gw;wp ngRfpwhh;fs; vd;W epidj;J Rk;kh ,Ue;J tpl;nld;/ 19/07/2020k; njjp kjpak; v';fs; Ciur; nrh;ej Rghc;& vd;gth; nkw;go jhnkhjud; kw;Wk; mtiur; nrh;e;jth;fshy; btl;o bfhiy bra;ag;gl;oUf;fpwhh;/ vdnt md;W Rghic& bfhy;yjhd; jpl;lk; jP;l;oa[s;sdh; vd;gJ bjhpfpwJ/ nkYk; jh;kuh$%k; gf;fphprhkpa[k; mjw;F J}z;Ljyhft[k; cle;ijahft[k; ,Ue;J;s;shh;fs;/ ,J bjhlh;ghf ehd; v';fs; Ciur; nrh;e;j b$arPyd; vd;gthplk; Twpndd;/ mth; j';fsplk; Twp jh';fs; ,d;W vd;id tprhhpf;f ehd; ele;jij Twpndd;/ gof;f nfl;lnld; brhd;dgo rhp/ ** He disclosed about the conversation between the petitioner and Damodharan to one Jeyaseelan. The above said Jeyaseelan is cited as an prosecution witness No.4. I have gone through the statement of Jeyaseelan. For better appreciation, it is reproduced as follows:- ehd; Fr;rpg;ghisak; fpuhkj;jpy; giHa fhydpapy; trpj;J tUfpnwd;/ ehd; "

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¶8In the above statement of Jeyaseelan, it is found that he did not state anything about the fact that L.W.18 Veeramuthu informed to him about the conversation of petitioner/A10 Pakkirisamy and Dharmaraj . Under these circumstances, take as it is, the entire statement, the statement of Veeramuthu is not enough to implicate the petitioner/accused with the crime for conspiracy. Further in the statement of Veeramuthu, he did not state anything about the petitioner's involvement in murdering Subash.

¶9Further the prosecution relied upon the confession of the accused Rajadurai. The relevant portion of the confession of Rajathurai, who speaks about this petitioner, which runs as follows ": mg;nghJ jh;kuh$%k;. gf;fphpa[k; ehisf;F ey;y re;jh;g;gk; rha';fhy neuj;Jy "

tay;btsp gf;fk; ahUk; ,Uf;f khl;lh';f/ mjdhy <rpah Rghic& nghl;L js;splyhk;/ mtid nghl;LL';f ghh;j;Jf;fyhk;D brhd;dhh; "

¶10Apart from this confession, there is no material and evidence against the petitioner/A10 to connect him with the crime.

¶11Section 227 of Cr.P.C is intended to eliminate harassment to the accused when there is no primafacie case against him.

¶12The Hon'ble Supreme Court in Union of India(UOI) /vs/ Prafulla Kumar Samal and ors. reported in AIR 1979 SC 366 laid down general principles as to how charge should be framed or an order of discharge can be passed by the Court. HIS Lordship Fezal Ali summarised the legal position and laid down correct law on the point, which runs as follows: " 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :

¶1That 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 primafacie case against the accused has been made out:

¶2Where the material 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;

¶3The test to determine a primafacie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and largo 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.

¶4That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mount-piece of the prosecution, but has to consider the the broad probabilities of the case, the total effect of the evidence and the documents produce before the Court, any basic infirmities appering 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."

¶13The framing of charge is not a mere formality, but a Judicial Act. It is required to be performed after application of mind. The test is whether the materials on record, if unrebutted, makes conviction of the accused reasonably possible.

¶14It is to be noted that in exercising jurisdiction under Section 227 of the Cr.P.C., the Judge cannot act merely as a post office or a mouth piece of the prosecution. But has to consider the probabilities of the case and a total fact of the evidence and the documents produced before the Court.AIR 2002 SC 564 (Dilwar Balu Kurane /vs/ State of Maharashtra).

¶15In the instant case, there is no primafacie evidence and materials to proceed against the accused excepting the statement of LW18, Veeramuthu. Noticing the fact of the evidence of Jeyaseelan, who has not even spoken about the alleged information given by LW18 to him about the conspiracy and further the confession of the accused Rajadurai, as stated above, is inadmissible to implicate the petitioner/A10 with the conspiracy or for committing the crime. Thus, the materials placed before the Court did not disclose primafacie case against the accused. Therefore, he will be fully within his right to get discharged and hence, the impugned order is liable to be set aside.

¶16In view of the above, this Criminal Revision is allowed and the impugned order is hereby setaside and the petitioner/A10 discharged from the case in SC No 81 of 2021 on the file of the Principal District & Sessions Court, Cuddalore. Consequently, connected miscellaneous petitions are closed. Index : Yes/No Internet : Yes/No

28.06.2023 mrp To

¶1The Principal District & Sessions Court, Cuddalore

¶2Inspector of Police, Nellikuppam Police Station, Cuddalore District V.SIVAGNANAM ,J. mrp Crl.R.C.No.497 of 2023

28.06.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 08.06.2023 PRONOUNCED ON: 28.06.2023 CORAM THE HONOURABLE MR. JUSTICE V.SIVAGNANAM Crl.R.C.No.497 of 2023 and Crl.M.P.Nos.3846 & 3847 of 2023 S. Pakkirisamy ... Petitioner /vs/ State represented by Inspector of Police, Nellikuppam Police Station, Crime No.1194 of 2020, Cuddalore District ... Respondent Prayer : Criminal Revision Case has been filed under Sections 397 & 401 of Criminal Procedure Code, 1973, to call for the records in S.c.No.81 of 2021 on the file of the learned Principal Sessions Judge, Cuddalore, set aside the order dated 16.02.2023 passed in Crl.M.P.No.3953 of 2022 and discharge the petitioner/A-10 by allowing this revision. For Petitioner ... Mr. K.R. Samratt For Respondent ... Mr. R.Vinothraja, Government Advocate (Crl.side)