Karnataka High Court
Iqlaq Khureshi vs State Of Karnataka on 16 September, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.2404 OF 2022
BETWEEN:
IQLAQ KHURESHI
S/O SRI ILLIYAS QURESHI,
AGED ABOUT 44 YEARS,
RESIDING AT
NEAR ETTIGE FACTORY,
KHADAR HOUSE,
KOGILE BADAWANE,
YELAHANKA,
BENGALURU CITY
KARNATAKA - 560 064.
... PETITIONER
(BY SRI BHARGAVA D.BHAT, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
TILAK NAGAR POLICE STATION,
BENGALURU
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. AKRAM PASHA
S/O LATE PYAREJAN,.
AGED ABOUT 65 YEARS,
2
NO.61, 7TH MAIN, KEB LAYOUT,
BTM I STAGE,
BENGALURU - 560 029.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH ALL FURTHER PROCEEDINGS IN
S.C.NO.305/2021 PENDING ON THE FILE OF THE LXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY FOR THE
OFFENCE P/U/S 302, 120B, 34 OF IPC AND SEC.3, 25 OF THE ARMS
ACT (AS PER ANNEXURE - A).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 03.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner - accused No.17, is before this Court calling in question proceedings in S.C.No.305/2021, pending before the LXI Additional City Civil Sessions Judge, Bengaluru, registered for the offences punishable under Sections 302, 120B r/w. 34 of the IPC and Sections 3 and 25 of the Arms Act, 1959.
32. Heard Sri Bhargava D. Bhat, learned counsel for the petitioner and Smt. K.P.Yashodha, learned High Court Government Pleader for respondent No.1.
3. Brief facts of the case leading to the filing of the petition as borne out from the pleadings are as follows:
A crime comes to be registered on 15.02.2007, against an unknown persons for offences punishable under Sections 120B, 302 and 506B of the IPC r/w. Sections 3 and 25 of the Arms Act. The police after investigation file a charge sheet against all the accused including the petitioner. The charge against the petitioner herein, who is accused No.17 is identical to the charges against accused No.14 and the charge against both these accused Nos.14 and 17 are of, possessing of arms without license, which would become offences under Sections 3 and 25 of the Arms Act. The concerned Court in S.C.No.18/2009, after a full blown trial, by its order dated 23.01.2016, acquits few of the accused, who are accused Nos.6, 7, 9 to 15 and the case against accused Nos.1, 2, 3, 5, 4 8, 16, 17 and 18 is split up on the score that those accused were not available for trial at the relevant point in time. The trial is now sought to be continued against the petitioner in S.C.No.305/2021 and pursuant to the registration of the same, the petitioner is taken into custody on 08.08.2020 and remains in custody even as on date. The petitioner has now knocked the doors of this Court claming parity insofar as it relates to accused No.14, who has been acquitted pursuant to the aforesaid order in S.C.No.18/2009, on the ground that the allegation against the petitioner and accused No.14 are not identical, but same as they are charged of the afore-quoted offences as both of them did possess unlicensed arms. The other acquittal in the order that is passed is qua accused No.9 who is alleged to have committed the Act of murder holding that the prosecution has miserably failed in proving the guilt against accused No.9, beyond all reasonable doubt. It is on these circumstances, claiming parity, the petitioner is before this Court.5
4. Learned counsel for the petitioner submits that the petitioner is sought to be tried on the ground that he was absconding and the very plea of being absconding is also contrary to the facts of the case at hand. The petitioner is picked up and arrested from the very address, in which he was staying throughout and there cannot be an act of no service upon for him for the charge to be split and trial to be continued at this juncture, notwithstanding the fact that accused No.14 against whom same allegations were made, is acquitted. He seeks quashment on the ground of parity.
5. Learned High Court Government Pleader would refute the submission to contend that the petitioner has to face trial and come out clean in the same as the allegations are interlinked with the allegations against other accused and the petitioner was absconding during the trial. The petitioner now cannot be shown any indulgence at the hands of this Court and seeks dismissal of the petition, on the ground that the 6 allegations against the petitioner is akin to the allegations made against accused No.14.
6. Learned counsel for the petitioner in reply, places reliance upon the following judgments rendered by the Apex Court and that of the coordinate Benches of this Court. The Apex Court in the case of CBI V. AKHILESH SINGH reported in (2005) 1 SCC 478, has held as follows:
"5. The police recovered some bullets from the place of occurrence and also from the dead body of deceased Syed Modi. The police also recovered a .38 bore revolver pursuant to the confession made by Amar Bahadur Singh. A .9 mm pistol was recovered at the instance of accused Bhagwati Singh @ Pappu. On the basis of the material available with the investigating agency, they filed a charge-sheet against the respondent. It is interesting to note that the original accused Dr. Sanjay Singh and Mrs Amita Kulkarni were implicated as accused, but both of them were discharged by an order passed by the Sessions Judge and that order of discharge was challenged by the State before the High Court unsuccessfully. A special leave petition also was filed before this Court and that too ended in dismissal on 27-1-1994. Therefore, the very basis of the alleged conspiracy by the respondent with Dr. Sanjay Singh lost its substratum. Admittedly, the respondent was not present at Lucknow when the incident happened. The respondent was implicated in the case on the basis of the alleged conspiracy between himself and the original accused Dr. Sanjay Singh. There is no other material placed before the Court to prove the complicity of the respondent. Mr Ram Jethmalani, learned Senior Advocate appearing on behalf of the respondent drew our attention to the various reasons given by the learned Single Judge for passing the impugned order. There was no direct evidence to show that the respondent had 7 supplied the weapons and rendered assistance to the assailants in carrying out the common object of killing Syed Modi. Had the conspiracy charge been established, at least some of the acts and conduct of the respondent could have been made admissible under the provisions of Section 10 of the Evidence Act. Once the main accused, who is alleged to have hatched the conspiracy and who had the motive to kill the deceased was discharged, and when that matter had attained finality, the learned Single Judge was fully justified in holding that no purpose would be served in further proceeding with the case against the respondent."
(Emphasis supplied) The coordinate Bench of this Court in the case of HASSAN @ MOHAMMED HASSAN AND THE STATE OF KARNATAKA in WRIT PETITION NO.55102/2017, DISPOSED ON 14.12.2017, following the judgment in the case of AKILESH (supra), has held as follows:
"10. On perusal of the above said points for consideration by the Trial Court, the Trial Court has considered the allegations against accused Nos.1, 3 and 5 and also against the present petitioner and other accused persons. Therefore, it also indicates there are common allegations against all the accused persons.
11. The prosecution examined as many as 16 witnesses and marked Exs.P1 to P20 and material objects M.Os.1 to 6. The Trial Court after considering the oral and documentary evidence on record has suspected the happening of the incident itself and ultimately the Court came to the conclusion that the prosecution has not proved the case against the accused 8 persons and giving benefit of doubt to such accused 1, 3 and 5 they were acquitted.
12. On careful perusal of the entire evidence recorded before the Trial Court and the points for consideration and the appreciation of the evidence by the Trial Court, it clearly indicates that the allegations made against this petitioner and other accused persons are one and the same and they are inseparable in nature and therefore, in my opinion, the benefit of the acquittal so far as the other accused are concerned has to be extended to this petitioner also. As he submitted that no appeal has been preferred against the said judgment of acquittal, no purpose would be served and even if the accused is ordered to be tried before the Trial Court it would be a very futile exercise by the Trial Court and waste of judicial time."
(Emphasis supplied) The very same learned Judge in the case of IBRAHIM ARAFATH AND ANOTHER Vs. STATE OF KARNATAKA reported in 2018 SCC Online Kar 3083, has held as follows:
"2. The petitioners herein have claimed that some of the accused persons who were tried in the above noted Sessions Case by the learned IV AddI. District and Sessions Judge, Dakshina Kannada, Mangaluru, have been acquitted vide judgment dated 19.5.2017. Therefore, the petitioners claim that, the facts and circumstances of this case and the allegations made against the petitioners and the acquitted accused persons are one and the same and they are inseparable and indivisible in nature. However due to non availability of the petitioners, a split up charge sheet was filed against them in CC No. 35/2016, pending on the file of the Addl. Civil Judge & JMFC, Bantwal, Dakshina Kannada, Mangaluru. Therefore, the petitioners claim that, benefit of judgment of acquittal may also be extended to them and consequently, all further proceedings against them in CC No. 9 35/2016 pending on the file of the Addl. Civil Judge & JMFC, Bantwal, Dakshina Kannada Mangaluru-may be quashed.
3. The benefit of judgment of acquittal can also be extended to the absconding accused persons, against whom a split up case has been registered and consequential quashing of the proceedings can be done only under peculiar circumstances of the case. This point has been extensively dealt with by the Hon'ble Apex Court and this court.
4. In this regard, it is worth to note here a decision of the Hon'ble Apex Court reported in (2005) 1 SCC 478 : AIR 2005 SC 268 in the case of Central Bureau of Investigation v. Akhilesh Singh, wherein, it was held that:
"Quashing of charge and discharge of the accused when an 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."
5. In another decision reported in 2002 (1) KCCR 1 in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer v. State of Karnataka by Kumaraswamy Layout Police, wherein this Court has held that:
"Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted.10
Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed, is quashed."
6. In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court is-Whether the materials placed before the court against the accused persons who were already acquitted and the material available against the petitioners if they are juxtapose compared with each other, the allegations are indivisible and inseparable in nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioners are entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case.
7. It is the case of the prosecution that on a complaint filed by one Jaleel on 19.11.2014 alleging that when he was travelling in a Ashok Leyland pickup vehicle KA-19/D-8921 along with the salesman by name Siddique and helper Mohammed Munavar towards B.C. Road and when they reached the place at Navoor at 7.15 p.m., at that time, from the back side of their vehicle, two bikes came with five accused and tried to commit dacoity by obstructing them from proceeding further and assaulted Siddique and Munavar by showing knife and stabbed to their chest and neck and left hand. The complainant driven the vehicle very speedily and escaped from the spot.
8. On the basis of the above said allegations, the respondent Police have registered a case in Crime No. 247/2017 and after investigation submitted a charge sheet. During trial, as accused Nos. 1 & 3 were got absconded, a split up case in CC No. 35/2016 came to be registered.
9. The prosecution in order to prove the guilt of the accused examined in original case in S.C. No. 5/2016 as many as 10 witnesses as PWs.1 to 10 and got marked 22 documents 11 as Exhibits P-1 to P-22 and material objects as MOs.1 to 3. After appreciating the oral and documentary evidence, the Sessions Court has come to the conclusion that there was no acceptable evidence to prove that the accused have committed the offences charged against them. The court also observed that the material witnesses have not supported the case of the prosecution. Therefore, the court has acquitted the accused Nos. 2 and 4 for the alleged offences.
10. On careful perusal of the materials on record, the allegations made against the petitioners and other acquitted accused persons are one and the same and they are inseperable and indivisible in nature. The evidence that has already been placed by the prosecution and appreciated by the trial Court also reveal that the allegations against the petitioners are not distinct and separate from the other acquitted accused persons.
11. Under the above said facts and circumstances of the case, considering the factual aspects of this case, no purpose would be served if the petitioners are once again tried for the same offences as the prosecution cannot put forth any better evidence than the one already placed before the court and appreciated by the trial Court. Hence, the petitioners are also entitled for the benefit of acquittal. If the prosecution is ordered to be continued, same amounts to waste of judicial time and also abuse of process of the court."
(Emphasis supplied) Another coordinate Bench of this Court in the case of SRI. RAJENDRA KUMAR @ BANNANJE RAJA VS. STATE OF KARNATAKA AND OTHERS reported in 2016 SCC ONLINE KAR 7220, has held as follows:
12"3. The brief facts is as follows:
On 03.07.1997, on the basis of the complaint of one Amanulla Bachchan, the police had registered FIR in Cr. No. 297/1997 for the offence punishable under Sections 120(B), 302, 307 Penal Code, 1860 read with Sections 25(a) and 27 of the Arms Act, 1959 and on completion of investigation, the police had filed a chargesheet against accused Nos. 1 to 3, 7 to 9, 12 to 15, 17 and 18. This petitioner was arrayed as accused No. 4 and was shown as absconding. Originally, the case was committed and registered in SC No. 58/1998 in the Sessions Court as the main case, against accused Nos. 1 to 3, 7 to 9, 12 to 15, 17 and 18. Thereafter, separate split up cases were registered and committed to trial in SC No. 411/2002 as against accused No. 5 and SC NO. 53/2004 as against accused No. 10, respectively, and they were thereafter clubbed with the main case in SC No. 58/1998. The trial was held and all the accused who had faced trial, namely, accused Nos. 1 to 3, 7 to 9, 12 to 15, 17 and 18 were acquitted by the judgment and order dated 31.05.2003 in respect of the offence punishable under Sections 120(B), 302, 307 Penal Code, 1860 read with Sections 25(a) and 27 of the Arms Act, 1959.
4. Subsequently, the judgment was challenged by the State before this Court in Crl.A. No. 83/2006 and by the judgment dated 17.01.2007, the judgment of acquittal was affirmed by this Court.
5. The petitioner thereafter was apprehended in Morocco and by invoking the extradition proceeding and on 14.08.2015 he was produced and remanded to custody. On 09.11.2015, the Assistant Commissioner of Police, CCB, Special Enquiry Squad, N.T. Pet, Bengaluru is said to have made an application before the III Addl. CMM seeking permission to continue the investigation in the case, in view of the notification by the Government for investigation to be continued by CCB and by further application dated 23.11.2015, body warrant was sought against the petitioner which was issued and he was given to the police custody from 28.01.2016 to 10.02.2016, thereafter, was 13 remanded to judicial custody. The investigation having continued, respondent No. 3 had filed split up chargesheet on 13.06.2016 praying the Court to try the petitioner on the earlier chargesheet. The case has been committed to the Sessions Court in SC No. 1049/2015 and is pending on the file of LXIX Addl. City Civil and Sessions Judge, Bengaluru. It is in this background, that the present petition is filed.
6. It is contended by the learned Counsel for the petitioner that in view of the acquittal of most of the accused on the trial held against them, little purpose would be served on going through the motions of a trial, in so far as the petitioner is concerned on the same evidence as was tendered against those accused and which would lead to a predictable result and hence seeks that the proceedings be quashed. It is also stated that this would be in the light of the law laid down by the Supreme Court in the case of Central Bureau of Investigation v. Akhilesh Singh reported in AIR 2005 SC 268 and by this Court in the case of Mohammed Ilias v.
State of Karnataka reported in (2001) 3 Kar.L.J. 551 following the decision of the Delhi High Court in Sunil Kumar v. State reported in 2000 (1) Crimes 73 (Del.).
7. On examination of the material on record as well as the evidence that was tendered in the earlier case, which is provided to the learned Government Pleader, he would confirm that there was lack of evidence on the basis of which the accused were acquitted and that the prosecution is not in a position to improve its case and the present proceedings against the petitioner being under similar circumstance, it would be a waste of judicial time in going through the trial only in order to take it to its logical conclusion."
(Emphasis supplied) Yet again, another coordinate Bench of this Court in the case of ABHINANDAN A.R. Vs. STATE OF KARNATAKA 14 reported in 2020 SCC OnLine Kar 3624, which was concerning the offences for the Sections 399 and 402 of the IPC, has held as follows:
"2. Crime No. 61/2015 had been registered against the petitioner and four other persons for offences punishable under Ss. 399 and 402 of IPC. Since Accused 1 was a juvenile and Accused 3 and 5 were absconding, Sessions Court directed for splitting up of the charge sheet and proceedings were conducted only against Accused 2 and 4. After holding full-fledged trial, the Sessions Court was pleased to acquit Accused 2 and 4 of the said offences in SC No. 1115/2016 on the ground that the prosecution has been unable to prove the case as against Accused 2 and 4.
3. Petitioner-Accused 3 is before this Court contending that once the proceedings as against Accused 2 and 4 had been completed and said Accused 2 and 4 had been acquitted on merits of the matter and the Sessions Court has categorically held that there is no offence made out against them and there being no allegation insofar as petitioner-Accused 3 is concerned, benefit of said acquittal is to be passed on to the Accused 3- petitioner herein. Hence, the proceedings initiated against petitioner-Accused 3 in SC No. 2037/2018 are required to be quashed.
4. Sri V.S. Vinayaka, learned HCGP appearing for the respondent submits that insofar as petitioner-Accused 3 concerned, a wooden stick which was proposed to be used for committal of the offence was seized from the possession of the petitioner and to that effect, there is a deposition of PW-4. He submits that the proceedings ought to continue insofar as petitioner-Accused 3 is concerned.
5. On enquiry, learned HCGP submits that the State has not filed any appeal insofar as judgment passed in SC No. 1115/2016.15
6. Having heard the learned counsel for the petitioner and learned HCGP for the respondent, I am of the considered opinion that the Accused 5 was absconding and the proceedings against Accused 1 had been dropped on account of he being a juvenile, insofar as Accused 2 and 4 are concerned, on merits of the matter, the Sessions Court came to a categorical conclusion that there is no offence made out against them and there being no separate allegations made against the petitioner-Accused 3 In SC No. 1115/2016 and merely because a wooden stick was seized from Accused 3, the same would not require a trial to be held insofar as the said Accused 3-petitioner is concerned when it would be the very same witness who would lead evidence and prosecution would again fail to make out a case against the petitioner-Accused 3.
7. In view of the same, once the order has been passed on merit, the same order would enure to the benefit of the petitioner also. More so, in view of the Judgment of this Court in the case of Hassan @ Mohammed Hassan v. The State of Karnataka passed in WP 55102/2017 DD 14-12-2017, more particularly paragraph 12 thereof. The decision of the Apex Court in the case of Central Bureau of Investigation v. Akhilesh Singh reported in (2005) 1 SCC 478 : AIR 2005 SC 268 (para
13) and in the case of Muneer Ahmed Qureshi, Muneer @ Gaun Muneer v. State of Karnataka by Kumarswamy Layout Police reported in (2002) 1 KCCR 1 (para 14).
8. Applying the said dicta to the present case, the proceedings as against petitioner-Accused 3 cannot also be continued for the very same reason.
9. In view thereof, petition is allowed. The proceedings in SC No. 2037/2018 pending on the file of LXVII Additional City Civil and Sessions Judge, Bengaluru for the offences punishable under Ss. 399 and 402 of IPC are quashed."
(Emphasis supplied) 16 In the light of the afore-narrated facts and the judgments rendered by the Apex Court and this Court in the afore-quoted judgments, what is germane to be noticed is, whether the allegations against the petitioner and accused No.14 were the same.
7. This bears consideration at the hands of the learned Sessions Judge while dealing with the issue in its order of acquittal qua accused No.14 along with others. The points that arose for the consideration before the Sessions Court, insofar it is germane, read as follows:
"3. Whether the prosecution proves beyond all reasonable doubts that the accused Nos.5, 7, 8, 14, 15 and 17 transported and possessed unlicensed arms, the split up accused No.5 gave training to accused No.5, 7, 8, 14, 15 and 17 to use of pistol near "Vanaprastha"
International School situated at Barikai Road, Bagalur of Hosur Taluk belonging to split up accused No.8 and then gave a pistol loaded with 8 bullets, Accused No.18 as per the direction of accused Nos.1 and 2 promised to supply the arms, received Rs.4 lakhs from accused Nos.5. The accused Nos.17 and 18 brought 4 guns without license from Shikaripura of Muzafernagar and gave one gun to accused No.15 and one gun to accused No.17 and two guns to accused No.5 and thereby accused committed the offences punishable U/s.3 r/w.25 of Arms Act?
174. Whether the prosecution proves beyond all reasonable doubts that on 5.2.2007 the split up accused Nos.1 to 5 alongwith accused Nos.7, 10 to 15 and split up accused Nos.16, 17 and 18 in prosecution of their common object, at about 2.45 p.m.. accused No.9 being rider of Pulsor bike bearing No.KA-53-5961 and A-8 being pillion rider went to Shubnum developers, where the A-8 fired bullets, on account of that, the worker by name Ravi died on the spot and another by name Shylaja sustained grievous injuries and later on she succumbed to injuries in Sagar Apollo Hospital at 4.40 p.m. and thereby the accused committed the offence of Murder punishable U/s.302 r/w.149 of IPC?"
While dealing with the said points which arose for its consideration, the learned Sessions Judge has held as follows:
"84. On perusal of the materials placed on record, i.e. the evidence of P.Ws.1 to 50, it appears that all most all the independent witnesses have turned hostile to prosecution, except the I.Os. Ballistic Expert, hand- writing exert, Medical Officers. There is no evidence to connect the accused with alleged offences. So far as accused Nos.6, 7 and 9 to 15 is concerned, as per the prosecution case, all of them as per the direction of Accused No.1 hatched a conspiracy to commit the murder of C.w.10 Samiulla and his people. The case of the prosecution as against accused Nos.6, 7 and 10 to 15 is based on the circumstantial evidence. But the prosecution has miserably failed to establish that these accused persons were the followers of Accused No.1-Ravi Poojari and they made conspiracy with each other and in pursuance of that they provided arms i.e. pistols, cash and vehicle i.e. Bike of accused Nos.8 and 9 to commit murder of Samiulla. So far as the accused No.6 is concerned, accused Nos.6, 7 and 13 were arrested on 18 13.3.2007 by Police Inspector M.Babu i.e. P.W.44. On 13.3.2007 the accused No.6 Mohan s/o. Raju said to have produced two mobiles i.e. M.Os.64 and 65 which said to be used for talking with other accused persons and for making conspiracy to commit murder of Samiulla and his companions, which P.W.49 seized conducting mahazar as per Ex.P.22. But in this case, P.W.19 Pradeep the attestor of seizure panchanama Ex.P.22, has turned hostile to the prosecution and another pancha by name Anand s/o. Ramakrishna has not been examined by the prosecution. Apart from that, M.O.69, 28 visiting cards in the name of accused No.1, M.O.71 Samsung CPU and M.O.76 Papers containing the names and address of some persons said to have been seized from accused No.6 on 14.3.2007. But this aspect is also not established by the prosecution since the independent witnesses like panchas not supported the case of the prosecution. As regards accused Nos.9 and 15 is concerned, the charges leveled against them i.e. accused Nos.6 to 15 and 18 is that they alongwith other accused Nos.1 to 5, 16 and 17 conspired the murder of K.Samiulla and his people and that they hold the conspiracy at three difference places such as, firstly at 'Active Estate, secondly, at 'Netravathi Enterprises' of Suddagunta Palya and lastly at 'Green Park Family Bar and Restaurant' at Bellary Road, Bangalore. It is further alleged that in pursuance of this conspiracy, the accused Nos.1 to 7 and 10 to 18 offer cash and Motor-cycle bearing No.KA-53-5969 to accused Nos.8 and 9. In support of this contention, the prosecution examined P.w.29 Shafeer an employee of "Active Estate" Office, but this witness turned hostile to the prosecution. He denied the suggestion of learned Public Prosecutor that he gave statement before the Police as per Ex P.46, 47 and 48 respectively. As regards the second place of conspiracy is concerned, it is stated as to in "Netravathi Enterprises" of Suddagunta Palya the office belonging to accused No.6, the accused hatched a conspiracy, to substantiate this aspect, the prosecution examined P.w.31 Shankar Reddy, but he turned hostile 19 to the prosecution and denied the suggestion of learned Public Prosecutor that he saw the accused and heard the accused talking with regard to conspiracy with each other. So far as third place of conspiracy at "Green Park Family Bar and Restaurant" is concerned, the prosecution examined P.W.28 Subash who is the owner of Green Park Family Bar and Restaurant and said to have seen the accused persons by name Mahesh Sharma and Deepu used to gather in the said Hotel in the mid night unto 1.00 p.m. and they were hatching conspiracy, but this witness also turned hostile to the prosecution and denied the suggestion of learned Public Prosecutor categorically and he further denied that he gave statement before the Police as per Ex.P.43, 44 and 45 respectively. So, the prosecution has utterly failed to put forth the evidence to show that these accused lastly were making conspiracy with each other. It is alleged against accused No.15 that in pursuance to the said conspiracy, this accused alongwith accused Nos.1 to 7, 10 to 14 and 16 to 18 induced accused Nos.8 and 9 by offering money and gave Motor-cycle bearing No.KA-53-5961 and conspired to commit murder. But the prosecution has not been able to establish that the accused No.15 was having connection with other accused persons and induced accused Nos.8 and 9 to commit the murder. According to the case of the prosecution, one mobile phone and one helmet was recovered from accused No.9. To prove this aspect, the prosecution examined P.w.30, but he turned hostile to the prosecution and another panch witness is not examined by the prosecution. The allegations against accused No.15 that one pistol was recovered from accused No.15, but the panch witness i.e. P.Ws.24 and 26 have not at all supported the case of the prosecution and denied that the Police conducted the seizure panchanama and seized pistol which was produced by accused No.15.
Xxxxx 20
86. The charges leveled against the accused No.14 S.Nataraj Sharma that he alongwith other accused made conspiracy to commit murder of K.Samiulla and his people. They held conspiracy in three different places such as:
(1) Active Estate;
(2) Netravathi Enterprises; and (3) Green Park Family Restaurant.
To substantiate this aspect as already stated above, P.W.29 Shafeer has been examined by the prosecution who is said to be the owner of Active Estate, has not supported the case of the prosecution and denied the suggestion of learned Public Prosecutor that he gave statements before the Police as per Ex.P.46 to 48 respectively.
87. P.W.31 another witness who said to have seen the conspiracy of the accused in Netravathi Enterprises has also not supported the case of prosecution and denied that he gave statement accordingly to the Police as per Ex.P.50. P.w.28 Subash one of the witnesses who said to have seen the accused making conspiracy in Green Park Family Restaurant has deviated from the prosecution version and denied that he gave statements before the Police as per Ex.P.43 to 45 respectively. It is also alleged against accused No.14 that he alongwith other accused persons induced accused Nos.8 and 9 by offering money and gave Motor-cycle bearing No.KA-53- 5961 and conspired to commit the murder. But there are no witnesses to say about handing over the Motor-cycle and cash to accused Nos.8 and 9 inducing them to commit murder. It is also alleged against this accused, that alongwith other accused he threatened the persons dealing with real estate with dire consequences of life. But there is no evidence is placed by the 21 prosecution to substantiate this aspect. It is further stated that accused had possessed unlicensed pistols and in particular they had been transported by accused Nos.5, 7. 8, 14, 15 and 17. To establish this aspect, there is no materials placed on record to show that how the accused transported, by what means and when and from whom they got transported the pistols and other ammunitions. It is stated that at the instance of accused No.14-Nataraj Sharma, the Police conducted seizure mahazar as per Ex.P.33 and seized Wagnor Maruthi Car bearing No.KA- 01 MS-6809, a Bag, one pistol, three bullets etc. In support of this contention, P.W.23 was examined, but he turned hostile to the prosecution and another pancha C.W.45 has not been examined by the prosecution. It is also stated that Ex.P.100 photograph of accused No.5 alongwith accused No.14 was recovered, but no negative is produced and it is not stated as to under which circumstances it was taken and it is not clarified as to whether it is trick photograph or not. Under such circumstances Ex.P.100 cannot be relied upon.
88. So from the materials placed on record and evidence adduced by the prosecution, I come to the conclusion that the materials placed on record are not in a position to connect the accused persons with commission of alleged offences. None of the prosecution witnesses except the Police witnesses and other formal witnesses like Doctors, FSL Officers supported the case of prosecution. In the absence of corroborative independent testimony of eye witnesses, recovery panchas etc. the evidence of the Police officials who are interested in securing the conviction of the accused is not safe to be relied upon. Moreover, their evidence is not in a position to link the accused with alleged offences. Under such circumstances I am constrained to hold that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubts. As such, I answer point Nos.1 to 4 in the negative.
2289. Point No.5: Having regard to my above observations and findings on the above point Nos.1 to 4 in Negative, extending the benefit of doubt to the accused Nos.6, 7,9 to 15, I proceed to pass the following:
ORDER The accused Nos.6, 7, 9 to 15 are hereby acquitted under section 235(1) Cr.P.C for the offences punishable under section 120-B, 302, 506-B of IPC and Sec.3 r/w.25 of Arms Act.
The bail bonds and surety bonds of accused nos.6, 7, 9 to 15 stand cancelled.
The accused Nos. 6, 7, 9 to 15 are set at liberty.
MOs.1 to 80 are ordered to be preserved for trial of split up accused Nos.1 to 3, 5, 8, 16, 17 and 18."
(Emphasis added) In terms of the afore-quoted paragraphs what would become clear is that, accused No.14 and accused No.17 - the petitioner herein were charged with same offences.
Allegations against the petitioner and other i.e., accused No.14 go hand in hand and accused No.14 is acquitted of the offences on the merit of the matter. Infact, in paragraph No.87, the concerned Court holds that there is no evidence to substantiate the crime. It is further stated that the accused 23 has possessed unlicensed pistols and in particular they had been transported by accused Nos.5, 7, 8, 14, 15 and 17. It is the finding of the Sessions Court that there is no material on record to show that how the accused transported, by what means and when and from whom they got transported the pistols along other ammunitions. It is the finding of the Sessions Court to acquit others and the findings will not enure to the benefit in the light of the fact that accused No.14 is acquitted for that reason. If allegations against accused Nos.14 and 17 could not be then proved by the prosecution, it can hardly be said that it could be proved now on the basis of same evidence. The allegations against the petitioner and accused No.14 being the same, for the reasons so rendered by the concerned Court, in the considered view of this Court, the petitioner will also be entitled to the same benefit as well, and permitting further proceedings against the petitioner would be an exercise of futility, of no utility and be a waste of judicial time.24
8. In the result, I pass the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings in S.C.No.305/2021, pending before the LXI Additional City Civil Sessions Judge, Bengaluru, stand quashed qua the petitioner.
(iii) It is made clear that the observations made in the course of this order does not enure to the benefit of any other accused and the facts narrated are concerning accused No.17 only.
Sd/-
JUDGE nvj CT:MJ