Karnataka High Court
Sri.Chetana @ Dinga vs The State Of Karnataka on 12 June, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:19933
CRL.P No. 2410 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2410 OF 2023
BETWEEN:
SRI. CHETANA @ DINGA,
S/O KASHINATH,
AGED 29 YEARS,
PRAKASH BUS AGENT,
RESIDING AT 2ND CROSS,
NEAR SHESHADRIPURAM
GOVERNMENT SCHOOL,
SHIVAMOGGA - 577 201.
...PETITIONER
(BY SMT. RACHITHA RAJSHEKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed BY INVESTIGATING OFFICER,
by PADMAVATHI AJJAMPURA POLICE STATION,
BK CHIKMAGALUR DISTRICT - 577 501.
Location: HIGH REP BY STATE PUBLIC PROSECUTOR,
COURT OF
KARNATAKA HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI. S.NAGAPPA,
AGED ABOUT 86 YEARS,
S/O SIDRAMAPPA
R/AT ARABALA VILLAGE,
TARIKERE TALUK,
CHIKKAMAGLURU - 577 550.
...RESPONDENTS
(BY SMT.K.P.YASHODA, HCGP FOR R-1)
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NC: 2023:KHC:19933
CRL.P No. 2410 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE CRIMINAL CASE IN
S.C.NO. 138/2019 (ARISING OUT OF CRIME NO. 36/2015 OF
AJJAMPURA POLICE STATION) PENDING ON THE FILE OF
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU AGAINST THE PETITIONER FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 398 AND 399 OF
INDIAN PENAL CODE, 1860.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
" PRAYER WHEREFORE, it is prayed that this Hon'ble Court be pleased to quash the criminal case in S.C.No.138/2019 (arising out of crime No.36/2015 of Ajjampura Police Station) pending on the file of Principal District and Sessions Judge, Chikkamagalur against the Petitioner for the offences punishable under Sections 398 and 399 of Indian Penal Code, 1860 vide in the interest of justice and equity"
2. Heard Smt.Rachitha Rajshekar, learned counsel appearing for the petitioner and Smt.K.P.Yashoda, the learned High Court Government Pleader appearing for respondent No.1.-3-
NC: 2023:KHC:19933 CRL.P No. 2410 of 2023
3. Facts as projected by the prosecution are as follows:
It is the case of the prosecution that on intervening night between 25.02.2015 and 26.02.2015 certain incidents happen which are alleged to be the ingredients of dacoit as is found in Section 393 and 394 of IPC. The petitioner along with others were charged in S.C.No.53/2017.
The learned Sessions Judge in terms of the order dated 23.01.2020 acquitted the co-accused. The petitioner was not available for trial at that point in time and therefore, no order was passed in favour of the petitioner but a split charge sheet was drawn and the trial is not continued against the petitioner on the split charge sheet in S.C.No.138/2019. The continuance of the trial against the petitioner is what drives the petitioner to this Court in the subject petition.
4. Learned counsel appearing for the petitioner would contend that the concerned court has acquitted accused Nos.2 to 5 and the reasons rendered for such acquittal would enure to the benefit of the petitioner as well as all the five are said to -4- NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 have indulged in the offence punishable under Section 395 of the IPC. He would therefore contend that he is entitled to the benefit of the order of acquittal against the co-accused.
5. On the other hand, the learned High Court Government Pleader would however refute the submissions and contend that as the co-accused has come out clean in the trial, the petitioner also has to come out clean and this Court would not exercise its jurisdiction under Section 482 of Cr.P.C., and obliterate those proceedings against the petitioner.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
7. The afore-narrated facts are not in dispute. The concerned court acquitting accused Nos.2 to 5 is not in dispute.
The reasons rendered by the concerned Court for acquitting other accused read as follows:
"19. It is pertinent to note that the Investigating Officer has not conducted "test identification parade," which was very much required, looking to the facts of the present case. Unfortunately it was -5- NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 not done. Therefore, identification of two accused by PW1 creates doubt. Because in the police station, he says that he saw accused 1 nad 2 and identified him. In the court he says that he was accused no.4, who was standing at the side of him. He was treated as hostile witness and cross examined by learned P.P., wherein he admits that it was accused no.2, who was standing at his side, along with accused no.1 (who is absconding). Therefore, his identification of the accused is not clear. Admittedly, none have seen accused 3 to 5 and their involvement in the crime. The Investigating Officer has not secured any circumstantial evidence to show that some time prior to incidence, any persons saw accused no.3 to 5 coming in a motor cycle towards the place of incidence. The incidence was taken place during night and hence, such possibility also less.
20. According to the case of prosecution, it was attempt of commission of robbery/dacoity. No articles were seized from the possession of the accused to connect them with the alleged crime. Incidence was taken place in the month of February and accused were identified by the Investigating Officer about six to seven months later to the incidence. Therefore, it is difficult to believe that they have identified accused and their -6- NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 involvements in the present crime. It appears, the case is built up on the basis of confession of accused before Doddapete Police Station, Shimogga, wherein they confessed that they have committed the crime nearby Ajjampura. On that basis, PW6 probably charge sheeted the accused under Sec.25 of Indian Evidence Act, confession of guilt is not admissible in evidence. Only on that basis accused cannot be found guilty.
21. The other witnesses examined by the prosecution and documents produced such as mahazars, photos, seizure of the articles etc., are not of importance. The Investigating Officer has idea about the place of incidence prior to arrest of accused. Therefore, accused showing the place of incidence during their confession and drawing of the mahazar in this regard or taking of the photographs along with witnesses in the house of PW1 are not of any consequence. Under Sec.27 of the Indian Evidence Act, discovery or recovery pertaining to the offence are relevant. In this case, there is no question of discovery of the place of incidence because about 6 to 7 months prior to showing of place by the accused, it was known to the Investigating Officer Therefore, it is hit by Sec.25 of the Indian Evidence Act and no need of much discussion.-7-
NC: 2023:KHC:19933 CRL.P No. 2410 of 2023
22. Pws 6 and 7 are Investigating Officers, who have investigated the crime. Only on the basis of their evidence, which is not legally sustainable, the accused cannot be convicted for such a grave offence, which is punishable with imprisonment, which may extend to 10 years and fine. For the aforesaid discussion, I answer Points no.1 and 2 in the negative.
23. Point No.3: For the reasons discussed above, I proceed to pass the following order:
ORDER Accused nos.2 to 4 in S.C.No.53/2017 and accused (A5) in S.C.No.106/2018 found not guilty for the offences punishable under Section 398 and 399 of IPC.
Acting under Sec.235(1) Cr.P.C., accused nos.2 to 4 in S.C.No:53/2017 and accused (Accused no.5) in S.C.No:106/2018 are acquitted for the offences punishable under Section 398 and 399 of IPC.
Accused no.2 to 4 are in custody and their presence was secured under body warrant. They shall be released forthwith, in this case, if not required in any other case. Accused in -8- NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 S.C.No:106/2018 is on bail and the bail bond executed by him shall continue for the period as provided under Sec. 437-A of Cr.P.C.
Entire records and M.Os. 1 to 8 shall be kept intact, pending disposal of split up case registered against accused no.1.
The original judgment shall be kept in S.C.No:53/2017 and copy thereof in the connected file."
8. In the light of the offences being the ones punishable under Sections 398 and 399 of IPC and all the accused having common allegations against them and in the light of the acquittal order by the concerned Court (supra), continuing the trial against the petitioner who would eventually being acquitted would become a waste of a valuable judicial time. Therefore, in the considered view of this Court, the petitioner would also be entitled to an order of acquittal of the kind that is passed in favour of accused Nos.2 to 5.
9. The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in -9- NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 Crl.P.4796/2017 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. 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
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NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 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 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
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NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 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
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NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 their signatures on the 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.
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NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 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 served 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
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NC: 2023:KHC:19933 CRL.P No. 2410 of 2023 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.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings in C.C.No.1170/2007 pending on the file of Addl. Civil Judge & JMFC, Bantwal, in Cr.No.130/2006 registered by Bantwal Rural Police Station, is hereby quashed insofar petitioner is concerned.
In view of criminal petition having been disposed of on merits, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected."
10. Therefore, in the light of the aforesaid facts and the acquittal of co-accused and in the light of the judgment rendered by the Co-ordinate Bench of this Court (Supra), I deem it appropriate to terminate the proceedings against the petitioner - accused No.1 as well accepting the subject petition filed under Section 482 of the Cr.P.C.
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NC: 2023:KHC:19933 CRL.P No. 2410 of 2023
11. For the afore-said reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings against the petitioner in S.C.No.138/2019 (Crime No.36/2015) pending on the file of the Principal District and Sessions Judge, Chikkamagaluru stand quashed.
(iii) The observations made in the course of this order would not influence or bind any trial against any other accused.
Sd/-
JUDGE KG List No.: 1 Sl No.: 40 CT:SS