Karnataka High Court
Babu Shankar Naik vs The State Of Karnataka on 1 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.8515/2016
BETWEEN:
BABU SHANKAR NAIK
S/O. SHANKAR NAIK,
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE/COOLIE,
R/AT MALLAVALLI THANDA,
MALLENAHALLI POST,
SHIKARIPURA TALUK,
SHIVAMOGGA DISTRICT - 577 427
... PETITIONER
(BY SRI. DINESH KUMAR K. RAO FOR
SRI. R.B.DESHPANDE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
SOUTH POLICE STATION,
MANGALORE - 575 001
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001
2. P. GANAPATHI
S/O. PURUSA NAIKA,
AGED ABOUT 65 YEARS,
R/AT GEETHASHRI HOUSE,
NEAR VISHNUMURTHY TEMPLE,
KOTEKAR, MANGALORE-575 001
... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R-1)
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THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C.
PRAYING TO SET ASIDE ALL PROCEEDINGS AS AGAINST
THE PETITIONER / ACCUSED NO.6 IN C.C.NO.3324/2009
(REGISTERED FOR THE OFFENCE P/U/S 341, 342, 343,
447, 457, 506, 395, 398 OF IPC AND SEC. 86 AND 87 OF
KARNATAKA FOREST ACT PENDING ON THE FILE OF
J.M.F.C. (II COURT), MANGALORE, D.K.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who had been arraigned as accused No.11 in S.C.No.82/2009 is seeking for quashing of the proceedings in C.C.No.3324/2009 contending interalia that in respect of sessions case all the accused have been acquitted and on account of split up charge sheet having been filed against petitioner, who is now arraigned as accused No.11 in C.C.No.3324/2009, wound stand on the same footing as that of other accused persons in S.C.No.82/2009 passed by III Addl. District and Sessions Judge and as such, continuation of proceedings would not serve any purpose and prays for allowing the petition.
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2. I have heard the arguments of Sri.Dinesh Kumar K. Rao, learned counsel appearing on behalf of Sri.R.B.Deshpande for petitioner and Sri. S.Rachaiah, learned HCGP appearing for respondent-State. Perused the judgment passed in S.C.No.82/2009 dated 03.03.2012.
3. Perusal of the judgment dated 03.03.2012 passed in S.C.No.82/2009 would disclose that prosecution had alleged that accused Nos.1 to 13 with an object to commit robbery on 16/17.04.2017 at about 2.00 a.m. came in vehicles bearing registration Nos.MYW-18, KA-27-8466 and KA-28-MB-2007 to the Range Forest Office situated at Hoige Bazaar, Mangalore by covering their faces and broke open the lock put to the gate and entered the said office and P.W.1 to P.W.3, who were sleeping, were tied with a jute rope and a tape was also put up on their mouth. It was further alleged that accused persons having entered the adjacent room, had found P.W.2 and he was also meted out with same treatment and one of the accused person was branding 4 talwar to P.W.1 to P.W.3 and after having broke open the lock of the godown, they committed robbery of sandalwood measuring 300kgs which is valued at ` 5,35,150/- apart from snatching the mobile phone of P.W.1 and P.W.2, gold chain and cash, the total value of the goods being ` 5,83,150/- and as such, it was alleged that they have committed offence punishable under Section 395 of IPC and Section 84 of the Karnataka Forest Act, 1963.
4. After a full fledged trial Sessions Court by judgment dated 03.03.2012, as already noticed hereinabove, has acquitted accused Nos.1 to 5 in S.C.No.82/2009. As could be seen from the said judgment itself accused Nos.7 to 13 were absconding and as such, split up charge sheet came to be filed. Insofar as present petitioner is concerned split up charge sheet in C.C.No.3324/2009 came to be filed, which has been registered for the offences punishable under Sections 341, 342, 343, 447, 457, 506, 395, 398 5 of IPC and Sections 86 and 87 of the Karnataka Forest Act.
5. It is the contention of Sri.Dinesh Kumar, learned counsel appearing for petitioner that petitioner also stand on the same footing as that of accused Nos.1 to 5, who were tried in S.C.No.82/2009 and on account of said accused persons having been acquitted, continuation of proceedings against petitioner in C.C.No.3324/2009 would only be an exercise in futility and would not sub-serve the ends of justice. Hence, he prays for quashing of the proceedings in C.C.No.3324/2009.
6. Per contra, Sri.S.Rachaiah, learned HCGP appearing for respondent - State would submit that on account of petitioner having been absconding, split up charge sheet came to be filed and in the event of proceedings being quashed against petitioner, it would be a giving premium to such person who has been absconding. Hence, he prays for rejection of the petition. 6
7. Having heard the learned Advocates appearing for parties and on perusal of judgment in S.C.No.82/2009, it would disclose that prosecution had failed to establish the guilty of accused Nos.1 to 5, who were tried in S.C.No.82/2009 beyond reasonable doubt. In fact, jurisdictional Sessions Court has held that even for a moment if Exs.P-2, P-4 and P-6 namely, spot mahazar, seizure mahazar and mahazar relating to seizure of gold chain, mobile and cash are held to be established by taking into consideration the evidence of P.W.1, P.W.6, P.W.11 and P.W.12, there are no circumstances linking accused Nos.1 to 5 to the commission of the alleged offence. It is also held by the Sessions Court that gold chain said to be belonging to P.W.2 was never recovered including sandalwood, which was said to have been stolen/robbed by the accused Nos.1 to 5. The factory to which sandalwood was said to have been handed over by accused persons had been closed and as such, on account of non recovery of sandalwood, trial Court has arrived at a conclusion that there is no clinching and acceptable material placed by 7 prosecution to establish that accused Nos.1 to 5 are responsible for the commission of offence.
8. The allegation in the complaint as well as charge sheet materials relied upon by prosecution would also disclose that entire allegations are ominous or to put it differently, allegations against all the accused persons is same namely, that they have collectively committed the robbery. In view of the fact that prosecution had failed to prove the seizure and there was no separate identification by Taluka Executive Magistrate and the fact that identity of accused persons was not established also on account of P.W.1 admitting in cross examination that their faces were covered, trial Court has already acquitted accused Nos.1 to 5 and present petitioner, who had been arraigned as accused No.11 in S.C.No.82/2009, is standing on the same footing as that of accused Nos.1 to 5. The allegations are similar and the evidence which prosecution intends to rely upon to prove the guilt of the present accused/petitioner is also similar and identical to the 8 evidence already tendered in S.C.No.82/2009. In that view of the matter, this Court is of the considered view that continuation of present proceedings against petitioner would only be an exercise in futility and the chances of prosecution being able to establish the guilt of the accused beyond reasonable doubt is very remote and as such, prayer sought for in the petition deserves to be granted.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings in C.C.No.3324/2009 registered for the offences under Sections 395 IPC and 84 of Karnataka Forest Act, pending on the file of JMFC (II Court), Mangalore, Dakshina Kannada, insofar as petitioners are 9 concerned is hereby quashed/set aside and petitioner is acquitted of the offences alleged against him.
SD/-
JUDGE DR