Karnataka High Court
Kumari Manisha D/O Bhajansingh Rajaput vs The State Of Karnataka on 3 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRL.P NO 102537 OF 2021
BETWEEN
KUMARI MANISHA D/O BHAJANSINGH RAJAPUT
AGED ABOUT 16 YEARS,OCC. NIL,
R/O. BILORI,DIST JABALPUR,
STATE. MADHYAPRADESH
SINCE MINOR REPRESENTED BY HER GUARDIAN
AND NEXT FRIEND HER BROTHER
SRI. OMAD LAL PARADHI S/O MINTAR SINGH
AGED ABOUT 22 YEARS,R/O MAHUWAKHEDA,
POST ROHANIYA THASIL,SHAHNAGAR,
MAHUWA KHEDA,PANNA AMA, MADHYAPRADESH-488448
...PETITIONER
(BY SRI.T M NADAF, ADV.,)
AND
THE STATE OF KARNATAKA
BY RFO DHARWAD RANGE,
DHARWAD.REPT BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,DHARWD BENCH
...RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS IN SPL.S.C. NO.50/2019
PENDING ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS
AND SPECIAL JUDGE AND CHILDREN COURT, DHARWAD AND TO
QUASH THE ENTIRE PROCEEDINGS IN SPL.S.C. NO.50/2019,
PENDING ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS
AND SPECIAL JUDGE AND CHILDREN COURT, DHARWAD, FOR THE
OFFENCES PUNISHABLE U/S 84, 86, 87, 73(D), 24(C), 24(E) OF
KARNATAKA FOREST ACT 1969 AND SECTION 379, 423 OF IPC AND
RULES 144, 165 OF KARNATAKA FOREST RULES 1969 AGAINST THE
PETITIONER HEREIN.
2
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Petitioner is before this Court calling in question the proceedings in Spl.S.C.No.50/2019 for the offences punishable under Sections 84, 86, 87, 73(D), 24(C), 24(E) of Karnataka Forest Act, 1969 and Sections 379, 423 of IPC and Rules 144, 165 of Karnataka Forest Rules, 1969
2. Heard Sri.T.M.Nadaf, learned counsel for the petitioner and Sri.Ramesh Chigari, learned HCGP for the respondent-State.
3. This court on hearing both the parties had granted interim order of stay of further proceedings against the petitioner on 03-01-2022 in the light of the order passed in Criminal Appeal 100123/2020 disposed of on 2/2/2021 and Criminal Appeal No. 100162/2021 disposed of on 4/8/2021. Those were the appeals filed by other accused in the very incident of the crime, but against the order of conviction. This 3 court in the aforesaid criminal appeals has acquitted all the accused involved in the very offences arising out of the same incident. The petitioner is a juvenile, who is also picked up from the place where the other accused were found and alleged to have committed the offences punishable under the aforesaid provisions of the Karnataka Forest Act, 1963.
4. Since, all the other accused are already acquitted by the orders of this court, continuing proceedings against the petitioner would without doubt lead to miscarriage of justice. In the aforenarrated facts, it is apposite to refer the judgment of this court in Criminal Petition No.7261 of 2010, disposed of on 29/6/2010, wherein this Court has held as follows:
2. The prosecution case is based on the report of Mahadevi submitted on 24.12.2008 at the complainant Police Station, in which she alleged that her husband Shivappa had dispute with his four brothers namely, Yallappa, Gopal, Mallu and Shekhappa. All were residing together 4 and availed loan for installation of pipeline to the agricultural land. The dispute arose between Shivappa and others for division of property and hence they are living separately. However, Shivappa (since deceased) demanded share in the property and contribution for pre-payment of loan. The brothers did not agree. They were waiting for opportunity to kill him. On 23.12.2008 during jatra of Dyammawwa in the village, Shivappa and his family members left their house and were watching drama. At that time, as the children were feeling sleepy, the complainant Mahadevi and her husband Shivappa went towards the house to leave the children. While they were on the way, Mahadevi noticed her husband's brothers (accused herein) were following them. Thereafter, Shivappa also suspected they would harm the family and asked Mahadevi to take the children home and ran away from the place. As he was running, the accused followed Shivappa. Meanwhile, the complainant 5 and her daughter took shelter near a shed belonging to Mr. Parappa Badiger. From the said place they saw the accused assaulting Shivappa, consequent to which he suffered injuries. The complainant being scared returned home and waited for the whole night. Next day she went to the spot and saw her husband was dead. On that basis complaint was lodged and the brothers were arraigned as accused Nos. 1 to 4. Petitioner was the 4th accused. The case was committed to the Court of Sessions in S.C.No.50/2009 and three accused were put to trial. Petitioner was absconding.
3. During the trial, the prosecution examined 8 witnesses and placed reliance on 19 documents and 19 material objects. However, during the trial, Mahadevi - PW1 - complainant, her daughter Bayakka - PW2 turned hostile.
They retracted from their statements that accused No.1 to 4 together killed Shivappa.
6
4. The learned trial Judge found no incriminating aspects in the evidence of all the six witnesses and acquitted three accused namely, Yallappa, Gopal and Mallappa. However, as the petitioner was absconding, charge was spilt and case in C.C.No.257/2009 is pending committal proceedings. He now seeks to quash the proceedings on the ground that there is no material to proceed against him and if the witnesses are examined, they may repeat the same version.
5. Sri. Dilip Kumar, the learned Govt. Pleader representing the State does not dispute that accused No.1 to 3, who were facing the charge on the same allegations as the petitioner, are granted acquittal in the trial by the Sessions Judge in S.C.No.50/2009. Copy of the judgment dated 26.09.2009 is also produced.
6. I have also gone through the evidence of PW1 - Mahadevi and PW2 - Bayakka. Both are 7 alleged to be eye witnesses, but have totally retracted from their earlier version. They have given a clean chit to the accused No.1 to 3 and absolved them of all the allegations. This has resulted in the acquittal. The petitioner is now facing charge in split up case C.C.No.257/2009. Undoubtedly, on committal, he will have to be subjected to trial. Legally speaking, there is no impediment to conduct the trial against him. But the question is whether worth purpose will be served. This is because PW1 and PW2 having deposed in favour of accused Nos.1 to 3 in S.C.No.50/2009, may repeat the same version. Even if they change their version and indict the petitioner as the assailant of Shivappa, in such case also, it will be difficult to accept their version, because there will be two versions, one in favour of the prosecution and one in favour of the accused. Besides, if they were to tender such evidence giving version different from what they have already given in S.C. No.50/2009, then 8 undoubtedly they will be exposing themselves to perjury because which of the statement is true becomes immaterial. The very fact that there will be two versions will expose them to action.
7. I am sure that the witnesses may not attempt such course. In the result, if the trial is conducted it will be only a formal trial and the very object of the trial will be lost. Being of this view, I am satisfied that the proceedings, if allowed to culminate in trial, the result will be against the prosecution. Being of this view, to avoid waste of time and money of the State, the best course will be to give quietus to this petition. and Criminal Petition No.3849 of 2010, disposed of on 3/1/2011 wherein this court has held as follows:
"2. The petitioner's grievance is that, he and 14 other accused persons were the accused in Cr.No.224/1999 in respect of the offences punishable under sections 143, 147, 148, 323, 324, 326, 504, 506, 307 r/w 149 of IPC and the case against the accused persons other than the 9 present petitioner was taken up for trial in S.C.No.44/03 and the accused persons in the said case were all acquitted on the ground that the material witnesses for the prosecution had turned hostile and the judgment of acquittal therefore was the result.
3. Referring to the aforesaid judgment in the Sessions Case No.44/03, submission now made is that, no purpose would be served in putting the present petitioner also on trial as the evidence is the same that led to the acquittal of all the other accused persons. Merely because a split up charge sheet is now filed against the present petitioner, no purpose would be served in permitting the proceedings to go on against the petitioner when the case ended in acquittal in respect of other accused persons.
4. Above submission is also not seriously controverted by the learned Government Pleader and on a perusal of the judgment of the Sessions court in S.C No.44/03 rendered on 09.08.2005, it is apparent that the Sessions Court acquitted all the accused persons of the offences mainly on the ground of material witnesses including the complainant having turned hostile and none of 10 them have supported the prosecution case except the two doctors.
5. In the light of the order of acquittal being passed by the trial court, following the complainant and other witnesses turning hostile. I see no purpose in the case being proceeded with as against the present petitioner and therefore the proceedings in question are liable to the quashed in the interest of justice.
6. In the result, the petition is allowed and the proceedings which are against this petitioner in Cr.No.224/99 (C.C No.205/07) pending on the file of the learned Civil Jude (Jr.Dn.) & JMFC, Srinivasapaura, are quashed."
5. In the light of the aforequoted facts and the judgment rendered by the co-ordinate bench of this court, I deem it appropriate to obliterate the proceedings against the petitioner in Spl.SC.No.50/2019 pending before the II Addl. District and Sessions & Special Judge, Dharwad.
6. For the aforesaid reasons the following: 11
ORDER The criminal petition is allowed. The proceedings in Spl.SC.No.50/2019 pending before the II Addl. District and Sessions & Special Judge, Dharwad stands quashed qua the petitioner.
SD JUDGE Vb/-12
Crl.P No.102537/2021 MNPJ 15.02.2022 'ORDER ON BEING SPOKEN TO' This Court by an order dated 03.02.2022 disposed the Criminal Petition by following order:
(i) The criminal petition is allowed.
(ii) The proceedings in Spl.SC.No.50/2019 pending before the II Addl. District and Sessions & Special Judge, Dharwad stands quashed qua the petitioner.
While passing the said order, the petitioner being in custody was not noticed. Therefore, the Sneha Education and Development Society (R) Swadhar, Gruh, Shivanand Nagar, Navanagar, Hubballi-580 025 is directed to release the petitioner if in custody as on date forthwith.
Registry is directed to communicate this order to the aforesaid.
SD JUDGE ckk