Karnataka High Court
Althaf Hussain Sareef vs State Of Karnataka on 10 November, 2020
Author: K.Somashekar
Bench: K.Somashekar
:1: R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.770 OF 2017
BETWEEN
Althaf Hussain Sareef
S/o B.A. Hussain Sareef
Aged about 47 years
R/at "Mariyamma Manzil"
HKA Garden, Manchoor
Srinivasnagar, Suratkal
Mangaluru Taluk
D.K. District-574241. ... Petitioner
(By Sri. Lethif .B - Advocate)
AND
1. State of Karnataka
Rep. by Mulki Police Station
D.K. District
Rep. by Special Public Prosecutor
High Court Building
Bangalore - 560001.
2. Jaya @ Kutti
S/o Becharanya
Aged about 48 years
R/at Jalligudde House
Mennabettu Village
Mangaluru Taluk
D.K. District-574241. ... Respondents
(By Smt. Rashmi Jadhav, HCGP for R-1;
R-2 served but unrepresented)
:2:
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to, quash the
entire proceedings in S.C.No.6/2017 (C.C.No.65/2014) of
Mulki Police Station, Dakshina Kannada, Mangaluru
against the petitioner pending before the Prl. District and
Sessions Judge, Dakshina Kannada, Mangaluru.
This Criminal Petition coming on for Hearing,
through video conferencing this day, the court made the
following:
ORDER
This petition is filed by the petitioner seeking to quash the entire proceedings in S.C.No.6/2017 arising out of C.C.No.65/2014 of Mulki Police Station, D.K. District, Mangaluru which is pending on the file of II Addl. District and Sessions Judge, D.K. Mangaluru.
2. Heard learned counsel for the petitioner who is appearing through video conference and learned HCGP for the respondent - State who is physically present before the Court. Respondent No.2 is served but remained unrepresented.
3. Based upon the complaint filed by second respondent/complainant namely Jaya @ Kutti as per Ex.P1 on 11.01.2009, the respondent police registered a :3: case in Crime No.6/2009 against unknown miscreants as per FIR Ex.P.24. It is averred in the complaint that PW.1
- Jaya @ Kutti was resident of Jalligudde house, Moorukaveri village of Mangaluru Taluk and by avocation he was a lorry driver. He was at his residence on 11.1.2009 as it was Sunday. In the night at around 9.15 P.M., PW.6 - Rohit who was a neighbouring resident came to the front-yard of his house and informed that somebody had fallen near Jalligudde of Moorukaveri having met with an accident. It is alleged that said person was one Mohan Ranya who was working as Mason. In the complaint he has stated that he has suspected that while the deceased was walking towards his house from Moorukaveri in the night at around 9.15 p.m. some unknown miscreants had committed the murder with deadly weapons on the vital parts of his body. On the same night on 11.1.2009, on receipt of information, PW.25/PSI visited the spot and received the complaint as per Ex.P1 and registered FIR as per Ex.P24 for the offence punishable under Section 302 r/w 34 of IPC. During the course of investigation accused No.1 was arrested after a lapse of four years based on the :4: statement made one Maduru Yusuf @ Yusuf on 09.12.2010 who was accused in some other crime and voluntary statements came to be recorded. Subsequent to thorough investigation made by the IO, charge sheet came to be laid against the accused persons in C.C.No.37/2014 and petitioner who was arraigned as Accused No.2 was shown as absconding. Accordingly, split up charge sheet was laid against accused No.2 in C.C.No.65/2014.
4. Subsequently, the case in respect of accused No.1 was committed to the Sessions Court in S.C.No.19/2014 whereby the trial Court on hearing the case of the prosecution and on evaluation of the entire material and documentary evidence facilitated by the prosecution, acquitted Accused No.1 for the offence under Section 302 r/w 34 of IPC vide judgment dated 21.04.2018.
5. Subsequent to splitting up the case against this petitioner/accused No.2 in C.C.No.65/2014, accused No.2 was apprehended by the investigating agency after lapse of seven years and put on trial before the Sessions Court in S.C.No.6/2017. Therefore, the petitioner/accused No.2 has filed the present petition seeking to quash the entire :5: proceedings pending in S.C.No.6/2017 arising out of C.C.No.65/2017 relating to Crime No.6/2009 of Mulki Police Station whereby this petitioner is required to facing of trial for the aforesaid offences.
6. Learned counsel for the petitioner contends that the respondent police have investigated the case on the basis of the confession statement given by accused No.1 and this petitioner was implicated as accused No.2 for the alleged offence. He came to be apprehended by the investigating agency after lapse of seven years. It is further contended that petitioner is a Sales Representative at Saudi Arabia and possess all documentary evidence to prove that the petitioner was not at all present in India during the time of the alleged incident and he had arrived to India only on 08.05.2009 whereas the alleged incident took place on 11.01.2009 as per the prosecution theory. Without there being any prima-facie materials against this petitioner except the voluntary statement of the co- accused, the petitioner has been lugged into the alleged crime and split up charge sheet came to be laid for the :6: aforesaid offences which is not at all admissible in evidence as per Section 27 of the Indian Evidence Act.
7. Even on the basis of the confession statement given by the co-accused in Crime No.06/2009, but it is a weak piece of evidence unless it is corroborated with any other independent evidence relating to the role played by this accused and also direct nexus between the incident and the accused. But this petitioner was apprehended by the investigating agency in the month of November, 2016 after long lapse of 7 years. The documents were secured by the investigating agency in order to laying of split up charge sheet against this accused, but it is duty cast upon the prosecution to prove the guilt of the accused beyond reasonable doubt. When the case against co-accused No.1 in the same crime has ended in acquittal wherein several witnesses were examined and several documents were got marked and certain material objects said to have been seized by the IO, but none of the witnesses have withstood their version in S.C.No.19/2014. But this accused is required to be facing of trial in S.C.No.6/2017 which is nothing but only empty formalities. The :7: prosecution do not have strong material evidence in the charge sheet laid by the investigating agency against this accused who has been apprehended after lapse of seven years.
8. The second limb of the arguments advanced by the petitioner's counsel is that this accused was not at all present in India during the alleged incident as narrated in Crime No.06/2009. As he was a sales representative at Saudi Arabia, he used to visit India occasionally. The petitioner had departed from India through CSI Airport, Mumbai on 19.11.2008 and arrived to India only on 08.05.2009. It is the important material evidence before the investigating agency despite of which the petitioner has been apprehended and split up charge sheet has been laid against him. There is no specific material evidence as against this petitioner to prove the charges alleged against him. But the co-accused No.1 has been acquitted by a judgment rendered by the trial Court in S.C.No.19/2014, therefore, this accused No.2 also stands in similar footing as that of accused No.1 and hence, the proceedings initiated against him needs to be quashed. :8:
9. It is further contended that there is no direct overt act attributed against this accused and the entire case is revolving around the circumstantial evidence even though the prosecution did not establish the guilt of accused no.1. Therefore, the attempt to be made by the prosecution for trial of the case in respect of this petitioner will only be empty formalities and it would amount to futile exercise only to facing up of trial of this accused for the similar offence. There are no strong materials against the petitioner so as to secure the conviction in future by the prosecution. On all these grounds, petitioner's counsel seeks for intervention of this Court to exercise the inherent powers under Section 482 of Cr.P.C and quash the entire criminal proceedings initiated against the petitioner/accused No.2 in S.C.No.6/2017 arising out of C.C.No.65/2014.
10. On the other hand, learned HCGP for respondent
- State supports the charge sheet laid by the IO against this accused in C.C.No.65/2014. Though this accused has been apprehended by the investigating agency after lapse of 7 years, but materials collected by the IO requires :9: to be tested by examining witnesses cited in the split up charge sheet and subjected to appreciation of materials on record. Mere because the co-accused in S.C.No.19/2014 has been acquitted, it cannot be a justifiable ground for quashing the entire criminal proceedings initiated against the petitioner. On this premise, learned HCGP submits that no leniency should be shown to this accused and he should be made to facing up of trial. Consequently, seeks for dismissal of the petition filed by the appellant.
11. Having regard to these strenuous contentions as taken by learned counsel for the petitioner and so also, counter made by learned HCGP, based upon the split up charge sheet laid by the IO in C.C.No.65/2014 akin to S.C.No.6/2017, the court has to see whether the petitioner who is arraigned as Accused No.2 has made out any justifiable grounds for quashing the entire criminal proceedings initiated against him.
12. There is no dispute about the fact that the split up charge sheet has been laid against this petitioner in C.C.No.65/2014. This petitioner is arraigned as accused No.2, but the case against co-accused No.1 in : 10 : S.C.No.19/2014 has ended acquittal as wherein the prosecution had subjected to examine in all PWs. 1 to 30 and got marked Exs.P1 to P.30 and M.O.1 to 8. But it is relevant to refer to Ex.P1 which is the complaint. To prove the facts in complaint, PW.1 has been subjected to examine and photos of deceased are marked as Ex.P4. The inquest held over dead body has been marked as Ex.P9. Ex.P15 is the spot mahazar conducted in the presence of panch witnesses. The FSL report is marked at Ex.P17 and 19. This accused is arraigned as accused No.2 in a split up charge sheet and only on the basis of the statement made by co-accused No.1, he has been implicated in the crime. But it is a weak piece of evidence and also inadmissible under Section 27 of the Indian Evidence Act as contended by learned counsel for the petitioner. In support of his contention, petitioner's counsel has placed certain reliance on the judgments of this Court reported in ILR 2005 KAR 1822 (The State of Karnataka v/s K.C.Narasegowda); Crl.P.No.1422/2019 disposed on 14.10.2020 (Mohammed Sharief @ Khasim : 11 : v/s The State of Karnataka and another);
Crl.P.No.4796/2017 disposed on 05.07.2017 (Mr. Ravi Alias Ravichandra .P v/s The State of Karnataka);
W.P.No.709/2018 disposed on 02.02.2018 (Shakeel
Ahammada vs. The State of Karnataka);
Crl.P.No.3849/2010 disposed on 03.01.2011(Devaraju v/s The State of Karnataka); Crl.P.No.7261/2010 disposed on 29.06.2010 (Shekappa @ Chandrashekar v/s The State of Karnataka); Crl.P.No.569/2016 disposed on 20.01.2017 Mukkateera Sampath @ M.G. Kushalappa v/s The State of Karnataka and another); Crl.P.No.200008/2015 disposed on 23.01.2015 (Saibanna v/s The State of Karnataka and another).
13. Relying on the above decisions, learned counsel for the petitioner would contend that once there is an acquittal of co-accused no.1 on merits after consideration of the material evidence on record, the said evidence is equally applicable to the petitioner who is arraigned as accused No.2. Therefore, no purpose would be served even if the present petitioner is ordered to be tried by the : 12 : trial Court. Hence, it is contended that the above reliance are squarely applicable to the case on hand. Wherein, they dealt under Section 482 of Cr.P.C., for quashing the criminal proceedings.
14. The factual matrix that are emanating from the charge sheet in C.C.No.65/2014 arising out of Crime No.06/2009 that this petitioner/accused are similar to that of co-accused No.1 in C.C.No.37/2014 against whom the case ended in acquittal by the order of the trial Court in S.C.No.19/2014. The allegations made against this petitioner are similar to that of co-accused No.1, though there is no direct acknowledgment of guilt against accused that too be serious offence under Section 302 of IPC. As already narrated the epitome of the prosecution theory in a nutshell though the split up charge sheet has been laid against this accused after lapse of 7 years. But the charge sheet materials of accused No.1 and accused No.2 are similar in nature and also one and the same. However, in S.C.No.19/2014, the court below while acquitting accused No.1 has examined oral and documentary evidence on record. But the witnesses on behalf of the prosecution did : 13 : not withstood version of the prosecution theory. The trial Court has observed that the most of the material witnesses have turned hostile and did not supported the prosecution case and there are lot of discrepancies and contradictions in the evidence of prosecution witnesses. The entire case is based on circumstantial evidence.
15. While considering the present case, this court has to see whether the evidence placed before the trial Court and relied upon by the Court for acquitting the accused who was tried and the allegations made in the charge sheet and the evidence are all inseparable as against the present accused. If at all the allegations and evidence already relied on by the prosecution are similar and inseparable in nature, then the Court has to extend the same benefit which was extended to the accused No.1. Merely because this petitioner was absconding and after long gap of 7 years he was apprehended and split up charge sheet came to be filed in C.C.No.65/2014, it cannot be said at any stretch of imagination, there is a prima-facie case still available against this accused in : 14 : order to secure conviction before the trial court who is required to facing up of trial.
16. It is relevant to state that the right of liberty of a person as enshrined under Article 21 of the Constitution of India which is a fundamental right, when the Court finds that the co-accused person who stands on the same footing has not at all committed an offence and the evidence placed before the Court is not suffice to convict the accused person, then it should be presumed that this accused is also innocent and entitled for acquittal. Further, the second view is that if at all this accused was also facing of trial before the Court of law in S.C.No.6/2017 whether on the basis of the same material available on record, the trial court could have convicted this petitioner and if the answer is yes, then only the present petitioner is liable to be tried once again. But if the answer is in negative, then there is no question of trying this petitioner/accused No.2 once again for the similar offence on the basis of the same evidence. In this background, the Court has to analyze the materials on record. But before adverting to the evidence recorded and : 15 : analyzed by the trial Court and the opinion expressed by the trial Court, it is just and necessary to bear in mind and decision of Hon'ble Apex Court which was decided on similar set of circumstances. In the case of Central bureau of Investigation vs. Akhilesh Singh reported in AIR 2005 SC 268, it is held that "quashing of charge and discharge of the accused when main accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co-accused held proper."
17. In another decision reported in 2002(1) KCCR 1 in the case of Muneer ahmed Qureshi, Muneer @ Gaun Muneer vs. State of Karnataka by Kumaraswamy Layout Police, it is held that "the proceedings against the accused person who was absconding and subsequently against whom a split up charge sheet was filed was quashed."
18. As could be seen from the material evidence secured by the IO during the course of investigation : 16 : relating to the co-accused No.1 in S.C.No.19/2014, though the prosecution had made an endeavor to prove the guilt of the accused, but the witnesses who were subjected to examination did not support the case of prosecution theory. There is semblance of evidence to connect the complexity of the accused person to the case in Crime No.06/2009. Therefore, the trial Court did not venture upon to discuss in detail. However, the evidence of witnesses in S.C.No.19/2014 as where accused No.1 was facing up of trial, the trial Court found that the prosecution has miserably failed to prove the guilt of the accused by facilitating worthwhile evidence for securing conviction. Hence, the trial court has rightly acquitted the co-accused No.1.
19. Be that as it may, the judgment rendered by the trial Court in S.C.No.19/2014 where accused No.1 - Mohammed Asif was acquitted of the charges leveled against him, the trial Court had appreciated the evidence adduced on the part of the prosecution to prove the guilt of the accused. It needs to state here that PW.1 - Jaya @ Kutti had given an information about the incident as per : 17 : Ex.P1 and based upon his statement the case in Crime No.06/2009 came to be registered against the unknown culprits. The incident took place on 11.01.2009 in the night around 10.15 p.m. to 10.45 p.m. Based upon his complaint, the FIR came to be recorded as per Ex.P24. On the aforesaid date and time, PW.1 was present at home. He got information from PW.6 - Rohit who is a neighbouring resident that somebody had fallen near Jalligudde of Moorukaveri having met with an accident. Subsequent to that information, PW.1 came to know that it was Mohan Ranya who his cousin. The blood was found on the ground. The occupation of the deceased was Mason. This evidence has been appreciated by the trial Court relating to the contents of FIR which came to be registered based upon the complaint.
20. PW.14 is the Scientific Officer who subjected the properties M.O.1 to M.O.5 to chemical examination and issued serology report as per Ex.P20 and also FSL report as per Ex.P21 with regard to chemical examination of M.O.8 - Chopper. Similarly, PW.12, the scientific officer has examined certain properties and issued FSL report as : 18 : per Ex.P17. PW.29 is the Police Inspector of Mulki Police Station who visited the house of the relatives of Accused No.1 and apprehended him and recorded his voluntary statement as per Ex.P26 and also drew the spot mahazar as per Ex.P15 in the presence of panch witnesses. The IO completed the entire investigation in crime No.06/2009 and laid charge sheet against the accused No.1 before the committal court in C.C.No.37/2014. Since this petitioner/accused No.2 was absconding a split up charge sheet came to be laid in C.C.No.65/2014 wherein this accused was apprehended after lapse of 7 years and put on trial in S.C.No.6/2017 for the offences as reflected in the FIR.
21. PW.11 is the doctor who conducted the autopsy over the dead body of the deceased and issued P.M. report as per Ex.P16. However, the prosecution wants to prove the crime said to have committed by the miscreants by facilitating the circumstantial evidence. But the incident was committed in the night time in a secluded place. There are eye witnesses to the alleged incident which took place on 11.01.2009. Accused No.1 was apprehended on : 19 : 17.10.2013 after lapse of more than four years. But the recovery mahazar said to have been conducted by the IO and even on the basis of the voluntary statement of the accused has not been satisfactorily proved by the prosecution. But in a case based on circumstantial evidence, the prosecution has to prove all the links and chain of circumstances unerringly to prove the guilt of the accused as narrated in the theory of charge sheet laid by the investigating agency. But in the case of accused No.1 in S.C.No.19/2014 most of the material witnesses have turned hostile and they did not withstood the version of the prosecution that the miscreants arraigned as accused have committed the murder of the deceased. There are lot of discrepancies and contradictions in the evidence of prosecution witnesses. The recovery mahazar Ex.P11 under which it is stated that M.O.8 - weapon was recovered has not been proved by the prosecution. Therefore, the trial court held that the prosecution has miserably failed to establish the guilt of accused No.1 in S.C.No.19/2014 beyond all reasonable doubt for the aforesaid offence. Under such circumstances, no useful : 20 : purpose would be served in bringing the present accused against who the case was split up to trial where the co- accused No.1 has been acquitted in a full-fledged trial. Therefore, the case against the present petitioner would be futile exercise to be taken forward, as it would result in waste of judicial time and effort and ultimately the result is predictable.
22. Whereas this petitioner is arraigned as accused No.2 in C.C.No.65/2014 arising out of Crime No.06/2009 of Mulki police station. The incident as narrated in the split up charge sheet laid against this accused and so also, the charge sheet laid against accused No.1 appears to be on similar footing. When the prosecution has failed to establish the guilt of the co-accused No.1 and he is acquitted of the charges leveled against him, the same benefit of acquittal has to be extended to the present petitioner/accused No.2 who is required to be facing of trial in S.C.No.06/2017. Though the trial has to be proceeded against this petitioner, but it is only an empty formalities for the disposal of the case because there is no strong reason to hold that this petitioner has to be tried : 21 : once again for the same offences on the basis of the same evidence on which the co-accused No.1 who stands on the same footing is already acquitted by the trial Court in S.C.No.19/2014. Therefore, inference could be drawn even on the observation made in S.C.No.19/2014 and similarly in S.C.No.06/2017. If at all this petitioner/accused No.2 was also available to the trial Court, the Court has to see whether on the basis of such evidence, the Court could have convicted him and if the answer is in negative, the benefit of acquittal judgment rendered by the trial Court has to be extended to this petitioner who is required to be facing of trial in a split up charge sheet in C.C.No.65/2014.
23. The entire case is revolving around the circumstantial evidence. Therefore, it is said that the reliance placed by the petitioner's counsel seeking discharging the accused from the case in S.C.No.06/2017 and also the grounds urged in this petition are found to be justifiable. Under the above said circumstances, in view of the law laid down by the Apex Court and so also, this Court, I am of the considered opinion that the materials : 22 : available on record before the trial Court against co- accused No.1 and the present petitioner who is arraigned as accused No.2 are inseparable and indivisible in nature. Therefore, the same benefit has to be extended to the petitioner if not, there shall be miscarriage of justice and abuse of process of law.
24. The inherent powers of this Court under Section 482 of Cr.P.C. should be exercised judicially, judiciously, sparingly and cautiously. In the instant case, it has to be exercised keeping in view the role of this accused and theory put forth by the prosecution in a split up charge sheet after lapse of several years. Therefore, the petitioner/accused No.2 is deserving for seeking quashing of criminal proceedings initiated against him in S.C.No.06/2017 for the offences punishable under Section 302 r/w 34 of IPC.
25. For the aforesaid reasons and findings, I am of the considered opinion that petitioner has made out a ground for quashing of the proceedings instituted against him in S.C.No.6/2017 arising out of C.C.No.65/2014. Accordingly, I have to proceed to pass the following: : 23 :
ORDER The Criminal Petition filed by the petitioner/Accused No.2 under Section 482 of Cr.P.C. is hereby allowed. Consequently, the criminal proceedings initiated against the petitioner in S.C.No.06/2017 arising out of C.C.No.65/2014 relating to Crime No.06/2009 of Mulki Police Station are hereby quashed.
Sd/-
JUDGE DKB