THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No.2590 OF 2008 DATED: 15-07-2010 Between 1.P.R.Rao and five others …Petitioners –A1 to A6 And 2.State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …Respondents-Complainants THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No.2590 OF 2008 ORDER: This petition under Section 482 Cr.P.C. is filed to quash the proceedings in PRC No.6 of 2008 on the file of the Chief Metropolitan Magistrate, Visakhapatnam, which was taken cognizance of the offences punishable under Sections 302 and 120-B r/w 34 IPC. 2. It is alleged in the complaint that the father of the 2nd respondent (complainant) by name Subba Reddy and A1, A4 and A5 are the Directors of Visakha Imagings and Medical (P) Ltd., A2 and A3 are the husbands of A4 and A5 respectively. There were misunderstandings among the Directors of the company. In the month of April, 2006, the accused went to the offence of the company with hired goondas and tried to grab the records of the company. They also threatened the complainant and his father. In June, 2006, A1, A4 and A5 filed an application before the Company Law Board, Chennai for removal of the complainant’s father and wife as Directors of the company. When father of the complainant approached the accused and questioned about their acts, A1 to A3 threatened him that he will be troubled till he resigns from the Directorship of the company and they also threatened that they would kill the family of the complainant. On 25-07-2006 at about 9 P.M. the complainant received a phone call from some unknown person that his father was found in a pool of blood at East point colony. The complainant rushed to the spot and came to know that his father was shifted to Seven Hills Hospital through an Ambulance. While undergoing treatment, father of the complainant died on 26-07-2006 at 12.50 A.M. On a report given by the complainant, police registered a case under Section 304-A IPC. Subsequently, on 02-08- 2006, the complainant gave a report to the Commissioner of Police stating that the death of his father looks like a preplanned murder and not an accident, wherein he suspected A1 to A5. The said report was endorsed to the concerned police for investigation, but no action was taken. Therefore, on 11-10-2006 a private complaint was filed making allegation that his enquiries revealed that A1 to A3 along with hired goondas assaulted his father with iron rods. 3. Mr. C.Padmanabha Reddy, leaned senior counsel appearing for the petitioners herein contended that only three persons got own from the Santro car and stated something, which do not reveal about the conspiracy to eliminate the father of the complainant, that the incident alleged to have been taken place one month prior to the report, which is nothing to do with the present incident, that the doctor has categorically opined that the injury sustained by the deceased could be possible in a motor vehicle accident, that there is no whisper about the petitioners 4 to 6 with regard to conspiracy to kill the father of the complainant either in the complaint or in the statement recorded by the learned Magistrate under proviso to Section 202 Cr.P.C. and therefore, continuation of proceedings against the petitioners 4 to 6 is nothing but abuse of process of Court. 4. On the other hand, Mr. E.Manohar, learned senior counsel appearing for the 2nd respondent herein contended that there is a dispute with regard to the company, for which, the deceased was the Managing Director, that one month prior to the death of the deceased, all the accused along with hired goondas threatened the Managing Director Subba Reddy and demanded him to leave the company and destroyed the furniture, that they also threatened the complainant and his father that they would see the ends of their lives and hence, he prays to dismiss the petition. 5. It is not in dispute that the deceased Subba Reddy was one of the Directors of Visakha Imagings and Medical (P) Ltd., He died on 26- 07-2006 at 12.50 A.M. When the matter was reported to the police, police originally registered a case under Section 304-A IPC. It seems that police have not submitted any final report in pursuance of the registration of the case under Section 304-A IPC. Later the 2nd respondent herein filed a private complaint on 11-10-2006. 6. On behalf of the complainant, four witnesses were examined. After examining the witnesses, the learned Magistrate was of the opinion that prima facie case under Sections 302 and 120-B r/w 34 IPC were made out against the accused. Therefore, he took cognizance of the offences under Sections 302 and 120-B r/w 34 IPC and issued Non Bailable Warrants to all the accused. Challenging the said taking of cognizance, the present quash petition is filed. 7. Inherent powers under Section 482 Cr.P.C. can be exercised to give effect to the order passed under this Code or to prevent abuse of process of Court or to secure the ends of justice. There cannot be any dispute that if the allegations in the complaint made out prima facie case of the offence alleged, question of quashing the proceedings does not arise. 8. The inquiry under Section 202 Cr.P.C. is not intended to take the place of a trial as the object is not to see whether the accused is guilty more so when he is absent during enquiry, but only to ascertain whether there is sufficient evidence of the charge or a prima facie case which should be proceeded with. At this stage, the allegations made by the witnesses when examined by the Court cannot be tested as true and correct. If the allegations made out prima facie case of the offences punishable under Sections 302 and 120-B r/w 34 IPC, then it is the discretion of the Magistrate to commit the case to the Court of Sessions under Section 209 Cr.P.C. 9. Culpable homicide is murder (i) if the act by which the death is caused is done with the intention of causing death, or- (ii) If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- (iii) If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- (iv) If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely t cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. If a case falls under any one of the clauses as mentioned above is punishable under Section 302 IPC. Under Section 120-A IPC, when two or more persons agree to do or cause to be done- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. The agreement is the gist of the offence of conspiracy. In order to constitute a conspiracy there must be a common design and a common intention of all to work in furtherance of the common design. Section 34 IPC embodies the principle of joint liability in doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. 10. The doctor who conducted autopsy stated that he found as many as twenty two ante mortem injuries on the body of deceased. Out of 22 injuries, injuries 18 to 22 are dangerous in nature. He opined that the deceased would have died of injury to the brain due to injury. He stated that injuries 18 to 22 are possible either by stricking the deceased with sufficient force with a hard blunt structure or the hard structure stricking the deceased with sufficient force is possible. He also stated that the injuries noticed by him are possible in a road accident. The evidence of doctor prima facie suggests the homicidal nature of the death of the deceased. 11. P.W.2 stated that at the time of incident, he was proceeding towards Mental Hospital side to go to his house, whereas the deceased Subba Reddy was coming on two wheeler from Mental Hospital in his opposite direction. When he reached the East point colony, an auto overtook the scooter of the deceased and stopped the auto in front of the vehicle of the deceased. Three or four persons got down from the auto and one among them beat with iron rod on the head of Subba Reddy, as a result of which, Subba Reddy fell down. In the meanwhile one Santro car came in opposite direction and four persons got down and all of them were murmuring with one another and proclaimed that the purpose of work was served with regard to their hatched up plan. Though he has given descriptive particulars of the four persons who got down from the Santro Car in his evidence and also asserted that he could be in a position to identify them, he did not state about any descriptive particulars of the persons who got down from the car. 12. Similarly, P.W.3 stated that at about 8.30 or 9.00 P.M. he noticed that one scooterist was coming from Mental Hospital and also noticed that one auto was coming with high speed and overtook the scooterist and stopped the auto opposite to the scooterist near his house. Meanwhile four persons got down from the auto and all of them beat with iron rods and one among them beat with iron rod on the head of the scooterist, as a result, the scooterist fell down. On seeing them, he tried to rescue the scooterist and in the meanwhile a Santro Car came and three persons got down from the car and they discussed that everything was done as per their plan and immediately, they left the place. He has given the descriptive particulars of those persons who got down from the Santro Car. One week after the incident, the son of the scooterist brought him to Vijetha Medical Centre and shown several persons and among them, he identified three persons namely Sridhar, Ramakrishna and Rama Rao, who came in the Santro Car. 13. Therefore, as seen from the evidence of the witnesses, it is clear that those three persons are said to be the petitioners 1 to 3. There is no whisper about the presence of petitioners 4 to 6 either in the complaint or stated by the witnesses when they were examined during inquiry under Section 202 Cr.P.C. 14. Learned counsel for the 2nd respondent herein contended that the incident is said to have taken place in the month of April, 2006 when all the accused gained entrance into the company forcibly and threatened the complainant and his father that they would see the ends of their lives. If two or more persons agreed to do an illegal act by illegal means, then it can be said to be criminal conspiracy. The allegations in the complaint and as stated by the witnesses examined on behalf of the complainant do not indicate that three persons conspired together to do an illegal act i.e., to eliminate the father of the complainant. Similarly, they were not present at the time of the incident or immediately after the incident. Therefore, continuation of proceedings against the petitioners 4 to 6 is nothing but abuse of process of Court. Insofar as petitioners 1 to 3 is concerned, there is a prima facie material, which would go to show that after the incident, they got down from the car. In view of the fact that the deceased was known to them and if they have not conspired together to eliminate the deceased, they would have taken the deceased to the hospital, but they have not done so. They spoken themselves that everything was done as per their plan. Therefore, prima facie, there is some conspiracy entertained by the petitioners 1 to 3 so as to eliminate the deceased. As seen from the evidence, prima facie case is made out against the petitioners 1 to 3 for the offences punishable under Sections 302 and 120-B r/w 34 IPC. Therefore, there are no grounds to quash the proceedings against petitioners 1 to 3. 15. Accordingly, the Criminal Petition is allowed quashing the proceedings in PRC No.6 of 2008 on the file of the Chief Metropolitan Magistrate, Visakhapatnam, insofar as the petitioners 4 to 6–A4 to A6 are concerned. Criminal Petition is dismissed insofar as the petitioners 1 to 3-A1 to A3 are concerned. ------------------------------- JUSTICE K.C.BHANU DATED:15-07-2010 Hsd