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Judgment
This revision petition is directed against the order passed by the Trial Court dated 26.12.2015 thereby allowing the application filed by the prosecution consequently committing the case to the Sessions Court.
To put the facts in a nut shell, the revision petitioners were the respondents before the court below. Police registered the case dated 1.4.2001 in respect of the offence punishable under sections 143, 147, 148, 324, 323, 302 r/w section 149 of IPC. After investigation, charge sheet was filed on 6.12.2001 in respect of the offence under sections 143, 147, 148, 323, 324, 326 r/w Section 149 of IPC. Seven of the accused named in the FIR were given up in the charge sheet.
The Trial Court after hearing both sides, framed charge in respect of the above offences. The trial commenced and five witnesses were examined as P.Ws-1 to 5 and M.Os 1 to 5 were marked. The prosecution filed an application on 19.2.2007 under Section 319 of Cr.P.C. to implead accused Nos.1, 2, 18, 23 to 26 and the same was allowed and when those accused persons challenged the same before this Court in Crl.P.No.1147/2007, their revision petition was allowed reserving liberty to the prosecution to file necessary application after cross examination of the witnesses. On 13.1.2009 the prosecution filed an application under Section 323 of Cr.P.C. on the ground that the matter is triable by the court of Sessions. Vide considered order dated 27.2.2009 the application was dismissed. P.Ws 1 to 5 were cross examined therein. On 23.1.2012 prosecution filed another application under Section 319 Cr.P.C. to implead accused Nos.1, 2, 18, 23 to 26 and the same was allowed. The revision petition challenging the said order came to be rejected. The prosecution filed second application under Section 323 of Cr.P.C. on 27.5.2009. This time the application was allowed and the matter is committed to the Sessions Court. Aggrieved accused persons 1 to 25 are in revision before this court.
Sri. S. Shankarappa, learned counsel for the petitioners submits that there was no visible injuries on the body of the victim and the same is recorded by the doctor who conducted the post mortem. As per the opinion of the doctor, the death is due to cardiac arrest due to shock as a result of pericardial effusion and COPD (Chronic Obstructive Pulmonary Disease). When prima facie there is no material attracting the ingredients of Section 299 of IPC made punishable under Section 302 of IPC, the order of the court below in committing the case to the Sessions Court is highly illegal and causes serious miscarriage of justice to the accused petitioners.
Learned Special Public Prosecutor seeks to sustain the order of the court below for the simple reason that during the course of the alleged incident, death has occurred and the cause of death is a matter to be established during the evidence of the doctor.
In the light of the above submissions, I have perused the lower court records.
The contention of the prosecution was, during the sworn testimony of P.Ws 1 to 5, the witnesses had deposed that at the time of incident the accused assaulted their uncle (Kempaiah) with clubs and he died.
The learned Trial Judge observed that the statements of the witnesses recorded under Section 161 of Cr.P.C. corroborates with the oral testimony of P.Ws.1 to 5 before the Court. That apart, the Investigating Officer in a connected case had admitted that during the incident one Kempaiah died. That prompted the court to form an opinion that a prima facie case for the offence punishable under Section 302 of IPC was made out. While holding so, the Trial Court gave much weightage to the omnibus statement of the witnesses rather than the documentary evidence which was lying before it. Neither in the inquest mahazar nor in the post mortem report there was anything indicating visible injuries on the body of the deceased Kempaiah. On the top of it, the medical opinion was to the effect that it was a natural death due to the pulmonary ailment, cardiac arrest due to shock as a result of pericardial effusion and COPD (Chronic Obstructive Pulmonary Disease). The impugned order passed with disregard to overweighing documentary evidence is perverse and illegal.
The nexus between death and incidence of overt act is the time factor, but that by itself does not make out a case that with an intention to cause the murder of the deceased, the accused persons assaulted him knowing fully well the consequence of the overt act. Even re- reading of the prosecution papers and the evidence of P.Ws 1 to 5 will not give scope for inference in respect of the offence punishable under Section 302 of IPC. In that view of the mater, the impugned order cannot be sustained.
The petition is allowed. The order dated 26.12.2015 passed by the Addl. Civil Judge & JMFC, Devanahalli, is set aside. The Trial Court is directed to proceed with the trial and conclude in accordance with law within a outer limit of four months from the date of receipt of certified copy of this order.