Karnataka High Court
Mr. Mohammed Ansar @ Antu vs The State Of Karnataka on 14 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 1056 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 1056 OF 2022
BETWEEN:
MR. MOHAMMED ANSAR @ ANTU
S/O MOHAMMED K.P.,
AGED ABOUT 33 YEARS,
R/AT NO.HAMDH MANZIL
BANGLE GUDDE, KUKKUNDOOR VILLAGE,
KARKALA TALUK
UDUPI DISTRICT - 574 104.
...PETITIONER
(BY SRI. BALAKRISHNA M.R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY KARKALA POLICE STATION,
UDUPI, UDUPI DIST - 574 104
Digitally signed REPRESENTED BY ITS
by PADMAVATHI
BK STATE PUBLIC PROSECUTOR,
Location: HIGH HIGH COURT BUILDING,
COURT OF
KARNATAKA BENGALURU - 560 001.
2. SMT.NEBISA
W/O HUSSAIN
AGED ABOUT 53 YEARS,
SEMIA MANZIL
A.C.ROAD, KABETTU,
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CRL.P No. 1056 of 2022
KASABA VILLAGE, KARKALA TALUK
UDUPI DIST., - 574 104.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
R2 SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THE PETITIONER IN S.C.NO.14/2019 PENDING ON
THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE,
UDUPI FOR THE ALLEGED OFFENCES P/U/S 143, 147, 148,
323, 120B, 364A, 302, 201 R/W 149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in S.C.No.14/2019 for the offences punishable under Sections 143, 147, 148, 323, 120(B), 364(A), 302, 201 r/w Section 149 of the IPC pending before the Principal District and Sessions Judge, Udupi.
-3- CRL.P No. 1056 of 20222. Heard Sri.Balakrishna.M.R., learned counsel appearing for petitioner and Sri.K.S.Abhujith, learned High Court Government Pleader for respondent No.1.
3. Brief facts that leads the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:
On 03.08.2011 when the deceased was initially found missing a crime comes to be registered against unknown persons for an offence punishable under Section 365 of the IPC.
Pursuant to the registration of the crime the accused No.6 was taken into custody on 11.08.2011. Thereafter, the police filed a charge sheet against several accused who were all tried by the Sessions Court in S.C.No.48/2013. The offence so alleged against all the accused were as aforesaid. At the relevant point in time the petitioner was not available for trial, as he was allegedly absconding. Therefore, a split charge sheet was issued against him on 7.1.2019. The learned Sessions Judge, considering S.C.No.48/2013, by his order dated 04.09.2020 acquits the accused who were available for trial as on that date holding that there was no evidence to drive home the -4- CRL.P No. 1056 of 2022 allegations made by the prosecution against the said accused and they have miserably failed to prove the guilt beyond all reasonable doubt.
4. After the acquittal of those accused in S.C.No.48/2013, the trial against the petitioner is sought to be continued, as a split charge was laid against the petitioner in S.C.No.14/2019 in the wake of the fact that he was not available for trial at the relevant point in time. It is the continuation of trial in S.C.No.14/2019 that drives the petitioner to this Court in the subject petition.
5. Learned counsel for the petitioner would contend that the allegations against all the accused are the ones that would become punishable under Sections 120B, 323, 364A, 302 and 201 of the IPC. The finding of the concerned Court is that there was no evidence to link the event even to any of the accused. Merely because the petitioner was not available for trial, it cannot be that the trial should be permitted to continue, -5- CRL.P No. 1056 of 2022 as eventually the petitioner will also get acquitted on the very same evidence that is laid against the other accused.
6. On the other hand, the learned High Court Government Pleader would refute the submissions to contend that the petitioner who has escaped the trial should not be shown any indulgence, notwithstanding the offence and the evidence against the petitioner and the other accused being the same and would submit that it is for the petitioner to come out clean in the trial like others who have undergone trial.
7. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record.
8. The afore-narrated facts are not in dispute. The learned Sessions Judge in S.C.No.48/2013 while trying all the accused has acquitted few of them who were available for trial.
The reasons so rendered by the learned Sessions Judge are as follows:
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74. In this case, admittedly, there are neither direct evidence nor eye witness about either kidnap or murder of Hussain or destruction or disappearance of the evidence by throwing body of the victim to Thunga river at Jayachamarajendra bridge, Thirthahalli- Koppa Road.
75. In this case, the prosecution made effort to prove the guilt of the accused persons on the basis of the oral evidence of PW.1 to 33 and documentary evidence referred above.
76. In this case, oral evidence of PW.1 to 20, 37(complainant/wife, son, brother of the victim, independent mahazar witnesses) PW.31/PSI, PW.33/P.I. Investigating Officer does not corroborate with each other and also does not corroborate with the contents of the seizure mahazars, spot mahazars/sketch alleged to have been drawn in the place of kidnap, murder, place where accused persons have hatched plan or made conspiracy to kidnap and murder.
77. In this case, except officials i.e, doctors and experts (officers of RFSL) the remaining witnesses have not supported the case of prosecution.
78. In this case seizure mahazar witnesses have not identified either accused No.3 to 5, 8 and 9 or any articles alleged to have been seized as per the information provided by them.
79. Hence, it is clear that uncorroborated oral evidence of PW.1 to 20, 27, (mahazar witnesses and the Investigating Officers) and the mahazars/sketch are not sufficient to connect the accused No.3 to 5, 8 and 9 with the material objects marked at M.Os.1 to 22 and 24 and vehicles.
80. According to law, law and rules for the time -7- CRL.P No. 1056 of 2022 being in force, uncorroborated/unsupported oral evidence of the I.O., experts and report of the experts alone are insufficient to connect accused Nos.3 to 5, 8 and 9 with either alleged kidnap or murder of Hussain or alleged destruction/disappearance of the evidence of the crime.
81. Hence, I have inferred that uncorroborated evidence placed by the prosecution are insufficient to connect the accused Nos.3 to 5, 8 and 9 with either disappearance or murder of Hussain, husband of PW.1 and father of PW.2.
82. Hence, I came to the conclusion that the prosecution has failed to prove beyond reasonable doubt that during last week of July, 2011 at Kabettu Cholpady, on a katte situated in front of shop of PW.27/CW.6 Ashok, A3 to 5, 8, 9, deceased A1, split up A2, 6 & 7 met, hatched criminal conspiracy to kidnap Hussain on the pretext of hiring his Tata Sumo Vehicle and extract ransom, in prosecution of criminal conspiracy on 31-07-2011 formed unlawful assembly in prosecution of common object, by holding clubs and machu continued being members of assembly, from the place near Sanman masjid on the pretext of hiring vehicle Tata Sumo of Hussain, kidnapped Hussain to a remote place situated near Moodukoppa village, Hosanagara Taluk wherein demanded Rs.30,00,000/- as ransom when Hussain refused to give money by making assault with the hands, clubs, chopper or macchu killed him, then, with intention to destroy the evidence of the crime threw his body to Thunga river from the bridge situated at Thirthahalli-Koppa road, thereby committed offence punishable U/Sec. 120(B), 143, 147, 148, 326, 364(A), 342, 302, 201 r/w. Section 149 of I.P.C. Hence, I answer point Nos.1 to 5 in the negative.
83. Point No.6:- In this case, there are no materials about either claim made by kith and kins of the deceased Hussain for compensation or payment of -8- CRL.P No. 1056 of 2022 compensation to either kith and kins of the deceased Hussain under victim compensation scheme. In this case, as noted above, PW.1 and 2 wife and son of the deceased have not supported the case of the prosecution. Hence, there is no question of granting any type of compensation to kith and kins of the deceased Hussain. Hence, I answer point No.6 accordingly and pass the following order:
ORDER Acting U/Section. 235(1) of Cr.P.C., I acquit accused Nos.3 to 5, 8 & 9 from the charges of the offence punishable U/Section. U/Sec. 120(B), 143, 147, 148, 326, 364(A), 342, 302, 201 r/w. Section 149 of I.P.C.
Office to preserve material objects marked at M.Os.1 to 22 and 24 till final disposal of split up case No.S.C.14/2019 and report of final disposal of C.C.No.108/2013 pending on the file of committal court."
(Emphasis added) The learned Sessions Judge holds that there is neither direct evidence nor eyewitness about either kidnap or murder of one Hussain or destruction or disappearance of the evidence by throwing the body of the victim to the river. Therefore, acquits all the accused who were available for trial. If there was no direct evidence or the link to the kidnap and murder of the victim against those accused who faced trial, the evidence cannot now spring against the accused who are now sought to be tried on account of their absence at the relevant point in -9- CRL.P No. 1056 of 2022 time. In the light of the reason so rendered, which would on the face of it become applicable to the petitioner as well, if further proceedings are permitted to continue, it would become an exercise in futility, with no utility and become a waste of judicial time. Therefore, in the teeth of the aforesaid facts and the reasons rendered by the concerned Court, I deem it appropriate to obliterate the proceedings against the petitioner.
9. 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 disposed on 05.07.2017 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-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.
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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."
13. 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
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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 - complainant 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
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CRL.P No. 1056 of 2022the 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 had 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 compared 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
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CRL.P No. 1056 of 2022served 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 was 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."
10. For the aforesaid reasons, I pass the following:
ORDER i. Criminal Petition is allowed.
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ii. Impugned proceedings in S.C.No.14/2019 pending before the Principal District and Sessions Judge, Udupi stands quashed qua the petitioner.
iii. It is made clear that the observations made in the course of the order would not enure to be benefit of any other accused in the crime.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 64