Karnataka High Court
Hakim vs The State Of Karnataka on 3 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 4410 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4410 OF 2021
BETWEEN:
1. HAKIM
S/O MOHAMMED,
AGE ABOUT 32 YEARS,
KADLEMAKKI,
B. KANABUR VILLAGE,
N.R. PURA TALUK,
CHIKAMAGALUR - 577 114.
...PETITIONER
(BY SRI. GANESHA K.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY BALEHONNUR POLICE STATION,
CHIKMAGALUR - 577 112.
Digitally signed
by PADMAVATHI REPRESENTED BY
BK
Location: HIGH THE KARNATAKA
COURT OF
KARNATAKA
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. NAZIYA,
W/O SYED SIDDIQUE,
RENUKA NAGARA,
BALEHONNUR,
N R PURA TALUK,
-2-
CRL.P No. 4410 of 2021
CHIKMAGALUR,
KARNATAKA - 577 112.
...RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1)
THIS CRL.P. IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.281/2019
PENDING BEFORE THE HONBLE CIVIL JUDGE AND JMFC, N.R
PURA FOR THE OFFENCES P/U/S 448, 504, 323, 324, 351, 506
OF IPC.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in C.C.No.281/2019 for offences punishable under Sections 448, 504, 323, 324, 354 and 506 of the IPC.
2. Heard Sri. Ganesha K., learned counsel appearing for the petitioner, Smt. K.P. Yashodha, the learned HCGP, appearing for respondent No.1.
-3- CRL.P No. 4410 of 20213. Brief facts that leads the petitioner to this Court in the subject petition, are as follows:
A complaint comes to be registered in Crime No.50/2017 against one Tippu, who is accused No.1 and petitioner - accused No.2 for offences punishable as afore-
quoted. The crime is registered on an incident that happened on 06.05.2017 when the complainant, her mother and brother confronted by accused No.1 and had verbally abused her and also alleged to have beaten the brother of the complainant. It is on this incident, the aforesaid crime comes to be registered. A charge sheet comes to be registered against both accused Nos.1 and 2 in C.C.No.685/2018. The petitioner was not available for trial to be conducted at the hands of the learned Magistrate in the aforesaid criminal case and therefore, the trial was conducted and concluded against accused No.1 and after such full blown trial, accused No.1 - Tippu was acquitted by an order of the learned Magistrate dated -4- CRL.P No. 4410 of 2021 20.09.2019. Since the petitioner was not available for trial, a split charge sheet was issued and the charges were framed against the petitioner in C.C.No.281/2019 for the very same offences that were alleged against accused No.1. It is the continuation of trial in C.C.No.281/2019 notwithstanding the acquittal of accused No.1 in C.C.No.685/2018, the petitioner has knocked the doors of this Court in the subject petition.
4. Learned counsel, Sri. Ganesha K., appearing for the petitioner would contend that the crime resulted in two of them becoming accused one Tippu and the other the petitioner. The concerned Court, by his order dated 20.09.2019, acquitted accused No.1 on the ground that there was no evidence brought put forth by the prosecution to prove the guilt of accused Nos.1 and 2 beyond all reasonable doubt but does not pass an order of acquittal against accused No.2, the petitioner herein only on the ground that he was not available for the trial.
-5- CRL.P No. 4410 of 20215. Learned HCGP, Smt. K.P. Yashodha, appearing for respondent No.1 would however refute the submission to the extent that the petitioner has to undergo trial and then come out clean as is done by accused No.1 and would submit that the petition is to be dismissed.
6. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
7. It is not in dispute that the alleged incident resulted in two of them becoming accused; one the petitioner and the other Tippu. Accused No.1 - Tippu was tried in C.C.No.685/2018 and acquitted by an order dated 20.09.2019. The reason rendered to pass an order of acquittal qua accused No.1 reads as follows:
"10. Point No. 1 to 6:-
Point No.1 to 6 are inter connected with each other and hence they are taken up together for consideration. It is paramount fact -6- CRL.P No. 4410 of 2021 to note that it is well settled in catena of authorities that the principle of proof beyond reasonable doubt is applicable in the matter of testing the guilt of accused. It has no operation in the area of proof of primary facts, particularly in cases where the guilt of accused is sought to be established by circumstantial evidence.
11. Proof of primary facts is one thing and interference of facts that is to be drawn from primary facts is another thing. In regard to proof of basic or primary facts court has to judge evidence in the ordinary way and on the basis of proof rendered. There is no scope for the application of the principle of benefit of doubt.
The court considers evidence and decides whether the evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to an interference of the guilt of the accused or not, and in dealing with this aspect of the problem, doctrine of benefit of doubt would apply and interference of guilt of accused persons can be drawn only if the proved fact is incompatible with -7- CRL.P No. 4410 of 2021 their innocence and is compatible with the guilt of accused.
12. Therefore, in light of the principles as stated supra, if we peruse the case of the prosecution it reveals that the complainant who is examined as PW-2 has absolutely failed to reiterate the facts as alleged in the complaint made to the Police. There is a contradiction between the averments made in the statement and evidence deposed by PW-2 before the court. It is significant fact to note that in the complaint, PW-2 has stated the fact that accused No. 1 trespassed her house hit her, CW-1 and 2 with their hands and a club and abused them in filthy language and threatened to kill them. But it is significant fact to note that when PW-2 was examined before the court, she has clearly deposed in her evidence very much against her own complaint made before the jurisdictional police and thus she has become hostile.
13. The learned APP was allowed with permission to cross examine the complainant -8- CRL.P No. 4410 of 2021 PW-2, but even then the complainant has denied the suggestions made by the learned APP and she has completely denied the facts stated in her own complaint which is marked at Ex.P2 and her signature which is marked at Ex.P2(a). Ex.P-3 is the mahazar. PW-2 has denied the entire contents of the mahazar itself and has deposed that she signed the same at the Police Station and nothing was seized in her presence. Ex.P-7 is her additional statement given to the Police, she has also denied the same.
14. It is significant fact to note that the learned APP has also examined PW-1 and 3 who are the eyewitnesses as well as the victims in the said incident but they have denied the knowledge of the entire incident itself and have deposed that the accused persons never said or did anything to them and that they do not know why PW-2 has lodged the complaint. Ex. P-9 is the statement of PW-3.15.PW-3 has in her evidence admitted that she was taken before the judicial Magistrate where her statement was recorded. But she denies that the accused had assaulted her.
-9- CRL.P No. 4410 of 202116. In view of the contradictions in the evidence of PW-2, the complaint given by PW-2 and the evidence of PW-1 and 3, the documents produced by prosecution no way helps the prosecution to prove the guilt of accused No.1 and 2 beyond all reasonable doubt.
17. Therefore in the instant case on hand, the version of the witness is totally inconsistent and contradictory with the prosecution case, and the evidence of complainant totally destroys the fabric and foundation of the prosecution case. Therefore after assessing the evidence of witnesses on its intrinsic worth it has discarded as untrustworthy or not credit worthy.18.Point No.7: -In view of my findings on points No.1 to 6, I proceed to the following:
ORDER Acting under section 248(1) of Cr.P.C, the accused No.1 is acquitted for the offences punishable under sections 323, 324, 354, 448, 504, 506 read with 34 of Indian Penal Code.
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His bail bonds and surety bonds are cancelled.The bonds executed by the accused No. 1
and his surety as required under section 437-A of Cr.P.C. shall be in force for a period of 6 months."
8. The learned Magistrate clearly holds that in view of the contradictions of the evidence of PW.2, the complaint given by PW.2 and the evidence of PWs.1 and 3 produced by the prosecution, no way would help the prosecution to prove the guilt of accused Nos.1 and 2 beyond all reasonable doubt. Therefore, the learned Magistrate has already rendered a finding that there is no evidence to prove the guilt even against accused No.2 holding thus only because the petitioner was not available for trial, a split charge sheet is issued and the trial is now sought to be conducted against the petitioner.
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CRL.P No. 4410 of 20219. In the light of the reasons so rendered by the learned Magistrate, if further proceedings are permitted to continue, it would be an exercise in futility, of no utility and would be a waste of judicial time, as the finding rendered while passing an order of acquittal against accused No.1 also considered that there is no evidence against accused No.2. Therefore, permitting further proceedings would become an abuse of the process of the law.
10. The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in Crl.P.4796/2017, wherein the Co-ordinate Bench considering identical set of facts has held as follows:
"12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that petitioner/accused was never traced and non-bailable warrant issued against him was never executed. Hon'ble Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION vs AKHILESH SINGH reported in AIR 2005 SCC 268 has held quashing of charge and order discharging co-
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accused can be passed, if the proceedings initiated against co-accused is on similar allegations and if said judgment had reached finality. It is also held that discharge of a co- accused by the High Court by holding that no purpose would be served in further proceeding with the case, is just and proper. In another ruling in MOHAMMED ILIAS vs. STATE OF KARNATAKA reported in (2001) 3 Kant LJ 551 this Court has held as under:
"The petitioner is the accused in the case and he is shown to be the absconding. Therefore, the case against the petitioner was split up and charge-sheet was laid against other available accused Nos.1 and 3 for committing an offence punishable under Sections 498A and 307 IPC r/w 34 Indian Penal Code, 1860. After the trial, the Sessions Judge acquitted the accused Nos.1 to 3. The petitioner was arrested and proceedings were revived against him in the split charge sheet.... In the instant case also, the full pledged trial was held against accused Nos.1 to 3, in respect of the same offence. In the second round of trial against the petitioner, the evidence to be produced cannot be different from the one that was produced by the prosecution in the earlier case. Therefore, in that view of the matter, the proceeding is quashed."
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CRL.P No. 4410 of 202113. Yet, in another ruling THE STATE OF KARNATAKA vs. K.C.NARASEGOWDA reported in ILR 2005 Kar. 1822 this Court has held to the following effect:
"As the case before the Sessions Judge is not a pending case, he cannot keep the file any longer pending nor he can close the case as he has to await appearance of the accused or the production by the State, for passing orders regarding undergoing sentence. As such, considering these peculiar facts and circumstances, it is deemed proper to exercise the inherent jurisdiction under Section 482 of Cr.P.C. instead of jurisdiction under Section 385 of Cr.P.C. in the interest of justice. As the entire material evidence of the prosecutions is one and the same, as against all the accused including the non-appealing accused No.1, who is said to be absconding, there is no second opinion that he is also entitled for the same benefit of doubt as he is extended for his co-accused. Accused acquitted by giving benefit of doubt."
14. In this background, when the facts on hand are examined, it would clearly indicate that not only complainant but also other witnesses including the inmates of ambulance in which they were travelling on the date of incident, had turned hostile in the proceedings which was continued against co-accused. Though, P.W.1 -
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CRL.P No. 4410 of 2021complainant had admitted that he has lodged a compliant as per Ex.P-1 and had also admitted that he has given a statement identifying the accused before the Investigation Officer, he did not identify the accused persons present before Court. In fact, statements given by him as per Exs.P-2 to P-4 when confronted, he denied the same and had also denied the suggestion put by the public prosecutor that he had furnished the statements as per Exs.P-2 to P-4 as false. P.W.2 to P.W.8 had not identified the accused persons present before the jurisdictional Sessions Court. In fact, they have not even identified the statements made by them before the Investigating Officer and nothing worthwhile has been elicited in their cross-examination to disbelieve their evidence. Thus, taking into consideration said evidence available on record Sessions Court had arrived at a conclusion that evidence of the witnesses examined by prosecution would not come to their assistance. In fact, witnesses to the seizure panchnama - Ex.P-40, who were examined as P.W.16 and P.W.17, have also turned hostile and they have stated that police had called them a year back to the police station and when they went to the police station, they had not seen any accused persons in police station. However, they admit police having taken their signatures on the papers and contents of it were not known to them.
15. It is in this background, trial Court on appreciation of entire evidence had acquitted all the accused persons by holding that prosecution
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CRL.P No. 4410 of 2021had failed to prove the offence alleging accused persons beyond reasonable doubt attracting the ingredients of provisions of the offence alleged against them. In fact, Sessions Court has observed that there was certain communal disturbance in Dakshina Kannada district and other places at Bantwal Taluk and to please on community of people, the Investigating Officer might have falsely implicated the accused persons in a false case or to avoid the blame to be received from the public or other community people and such possibilities cannot be ruled out. In this background, when prayer of petitioner sought for in the present petition is examined, it can be noticed that contents of supplementary charge sheet filed against the petitioner is similar, identical and in fact, it is replica of charge made against accused Nos.1 to 23 and 25 to 33, who15 were tried in S.C.No.12/2007, 94/2007 and 26/2008 and had been acquitted.
16. In that view of the matter, this Court is of the firm view that judgment rendered by trial Court insofar as it relates to accused Nos.1 to 23 and 25 to 33 is similar and identical to the charge made against the present petitioner. This Court does not find any independent or separate material having been placed by the prosecution against present petitioner to put him on trial once again and directing the petitioner-accused to undergo the order of trial, which ultimately would fetch same result as that of accused Nos.1 to 23 and 25 to 33. When allegation made against accused Nos.1 to 23 and 25 to 33 is
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CRL.P No. 4410 of 2021compared with the allegation made against present petitioner, it has to be necessarily held that they are identical, similar and inseparable in nature and no independent decision can be taken against the present petitioner. Therefore, no purpose would be served even if the present petitioner is ordered to be tried by the trial Court.
17. In view of the afore stated facts and the law laid down, as discussed hereinabove, it would emerge that there would be no harm or injustice that would be caused to prosecution if benefit of acquittal order is passed in favour of accused - petitioner, since accused Nos.1 to 23 and 25 to 33 against whom similar allegation had been made is already acquitted. Though, it is contended by Sri. Rachaiah, learned HCGP appearing for the State that petitioner should not be extended said benefit, since he is an absconder, by relying upon judgment of Coordinate Bench this Court is not inclined to accept said contention for single reason that said judgment had been rendered based on the judgment of Apex Court in the case of DEEPAK RAJAK vs. STATE OF WEST BENGAL reported in (2007) 15 SCC 305 where under Apex Court after noticing the facts obtained in the said case, had held that benefit of acquittal, should be extended to the appellant, since co-accused had been acquitted and held that a departure can be made in cases where accused has not surrendered "after conviction" in addition to not filing an appeal against the conviction. As such, noticing earlier position of law laid down it
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CRL.P No. 4410 of 2021was held by the Apex Court that in case of acquittal of a accused for same offence on same set of facts and on similar accusations, if considered, it would entile for acquittal of co- accused also.
18. In that view of the matter, present proceedings initiated against petitioner is liable to be quashed.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii)Proceedings in C.C.No.1170/2007 pending on the file of Addl. Civil Judge & JMFC, Bantwal, in Cr.No.130/2006 registered by Bantwal Rural Police Station, is hereby quashed insofar petitioner is concerned.
In view of criminal petition having been disposed of on merits, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected."
The Co-ordinate Bench was considering a case where the co-accused who had escaped trial had not surrendered or was not arrested by the police.
11. In the light of there being no evidence against any of the accused and the split up charge against the
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CRL.P No. 4410 of 2021petitioner being tried now before the learned Sessions Judge would become an exercise in futility. In the teeth of there being no evidence or a specific charge against this petitioner, that was not charged against others, I deem it appropriate to obliterate the proceedings against the petitioner.
12. For the aforesaid reasons, I pass the following:
ORDER i. Criminal Petition is allowed. ii. Proceedings in C.C.No.281/2019 pending before the Civil Judge and JMFC, N.R. Pura, stand quashed qua the petitioner.
Sd/-
JUDGE SJK List No.: 1 Sl No.: 1