Karnataka High Court
Parikshith@ Pareekshith @ Pachu @ ... vs State Of Karnataka on 29 October, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 8994 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.8994 OF 2022
BETWEEN:
1. PARIKSHITH @ PAREEKSHITH @ PACHU
@ PARIKSHITH BHANDARY
S/O BHASKAR BHANDARY
AGED ABOUT 30 YEARS,
RESIDING AT HOSAMANE
BADAGA YEKKARU
POST AND VILLAGE
MANGALURU TALUK, D.K. - 574 509.
... PETITIONER
(BY SRI. T PRAKASH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MANGALURU RURAL POLICE STATION
Digitally signed by KULASHEKARA - KAIKAMBA
PADMAVATHI B K
MANGALURU, D K DISTRICT
Location: HIGH
COURT OF REPRESENTED BY PUBLIC PROSECUTOR
KARNATAKA
HIGH COURT BUILDING
BENGALURU - 560 001.
2. GIRISH BANDARY
S/O LATE NARAYANA BANDARY
AGED ABOUT 42 YEARS,
RESIDING AT SHIVADURGA NILAYA
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CRL.P No. 8994 of 2022
CHAMUNDIMATT ROAD
GURUPURA,
MANGALORE-574145
... RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP)
THIS CRL.P IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE CRIMINAL PROCEEDINGS SO FAR AS THIS
PETITIONER THAT IS PARIKSHITH @ PAREEKSHITH @ PACHU
@ PARIKSHITH BHANDARY (ACCUSED NO.2) IN
C.C.NO.1021/2019 FOR THE ALLEGED OFFENCE P/U/S.143,
147, 148, 341, 307, 109 R/W SEC.149 OF IPC PENDING ON
THE FILE OF JMFC III COURT MANGALURU.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in C.C.No. 1021/2019 for the offences punishable under Sections 143, 147, 148, 341, 307, 109 read with Section 149 of IPC.
2. Heard Sri. T. Prakash, learned counsel appearing for the petitioner and Smt. K.P.Yashodha, learned High Court Government Pleader appearing for the respondents.
-3- CRL.P No. 8994 of 20223. The brief facts that leads the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:
A complaint comes to be registered on 03.01.2015 in Crime No. 0004/2015 for the offences punishable under Sections 109, 34, 307 and 324 of IPC against several accused. The petitioner is accused No.2. The police after investigation file a charge sheet in C.C.No.500/2017 for the offences punishable under Sections 143, 147, 148, 341, 307, 109 read with Section 149 of IPC. The petitioner was again shown as accused No.2.
4. The learned Sessions Judge conducts trial against the accused, whoever, were available for trial at that point of time and acquits accused Nos. 1 and 3 to 5 of the charges so laid against them on the ground that there was no witness produced by the prosecution that had supported the charges. Insofar as it concerns the accused No.2 - petitioner herein, on the ground that he was -4- CRL.P No. 8994 of 2022 absconding, a split charge sheet comes to be issued against him in C.C.No.1021/2019. Since the learned Sessions Judge had acquitted all the other accused in terms of its judgment dated 26.04.2022 in Sessions Case No.73/2019, the proceedings against the petitioner in the present C.C.No. 1021/2019 is continued on the said split charge. The continuation of the proceedings against the petitioner in C.C.No.1021/2019 is what drives the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner would contend that the charges against the petitioner -
accused No.2 and every other accused who are now acquitted are all similar and in the light of acquittal of the other accused, the petitioner is also entitled to the same relief and would seek quashment of the entire proceedings against him.
6. On the other hand, learned High Court Government Pleader would refute the submissions to -5- CRL.P No. 8994 of 2022 contend that the petitioner is one who had escaped trial and this Court would not show any indulgence to an accused who had escaped trial and would submit that it is for the petitioner to come out clean as is done by the other accused.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and I have perused the material on record.
8. The registration of the crime in Crime No.4/2015 for the afore-quoted offences is not in dispute.
The charge sheet was filed by the police in CC No.500/2017 again for the afore-quoted offences is not in dispute.
9. The learned Sessions Judge, after a full blown trail in Sessions Case No.73/2019, acquits accused Nos.1 and 3 to 5 by his order dated 26.04.2022. The petitioner -
accused No.2 at that point in time was not available for -6- CRL.P No. 8994 of 2022 trial, the Court therefore lays a split charge against the petitioner and accused No.7 in CC No.1021/2019. The reasons rendered for acquitting accused Nos.1 and 3 to 5, assumes significance for consideration of the case of the petitioner. The reasons so rendered read as follows:
"14. Point No.1: The case of the prosecution is that the conspiracy and instigation of Accused Nos.5 and 7, Accused Nos.1 to 4 and 6 formed an unlawful assembly on 02.01.2015 near Ashwathakatte in Nisargadama Nagara in Pilikula Moodushedde of Mangaluru Taluk and possessed deadly weapons with an object of committing murder of CW-1 namely Sri Girish Bhandary and at 6.45 p.m. when CW-1 was going in his motor cycle from Moodushedde towards Vamanjoor. Accused Nos.1 and 2 stopped CW-1 near Ashwathakatte and made an attempt to kill him by making attempt to assault on his head with wooden reepers and in the process caused simple injuries to CW-1. It is alleged that Accused Nos.3, 4 and 6 have indirectly assisted Accused Nos.1 and 2 in commission of such alleged crime.
15. In the charge sheet the Investigating Officer has cited altogether 20 witnesses. The prosecution papers reveal that amongst them only CW-1 to CW-4 are material witnesses in the case. It is because CW-1 Girish Bhandary is said to be the victim of the alleged crime and CW-2 - Sri Harish Bhandary, CW-3 - Sri Sachin Poojary and -7- CRL.P No. 8994 of 2022 CW-4 - Sri Ashok are said to be the eye-witnesses to the alleged crime. All other witnesses cited in the case are either mahazar witnesses or formal witnesses who have assisted the Investigating Officer during the investigation of the case.
16. Out of these 4 material witnesses the prosecution could examine only CW-2 in the case. CW-2 - Sri Harish Bhandary in his deposition as PW-1 has stated that about 6 years ago at about 7.00-8.00 p.m. when he was in Mangaluru he received a phone call from CW-1 that he is in City Hospital of Mangaluru City because of assault made by some persons and had asked him to come to the said hospital. PW-1 has stated that accordingly he had gone to City Hospital and found that CW-1 had suffered some injury on his head. PW-1 has categorically stated that at that time CW-1 had not informed him about the incident or about the assailants including the place, time and cause for the assault. PW-1 has specifically stated that he has no acquaintance with the accused persons and he has no information about money transaction in between CW-1 and Accused No.7. PW-1 has also unequivocally stated that no one had come near their house and quarreled prior to the assault on CW-1.
17. The prosecution has treated PW-1 as hostile witness and subjected him for cross- examination. During such cross-examination PW-1 has admitted that PW-1 had informed him about the assault made on him near Ashwathakatte in Nisargadama and having -8- CRL.P No. 8994 of 2022 seen the assailants with the help of head light of his vehicle and the electrical light at the spot. However, PW-2 has denied his knowledge about money transaction between CW-1 and Accused No.7 or any quarrel that took place in connection with such transaction.
18. At this stage it would be relevant to refer to the document marked at Ex.P3. In fact Ex.P3 is a portion of the statement allegedly given PW-1 before the Investigating Officer. The said portion relates to the money transaction between CW-1 and Accused No.7 and the quarrel that took place in connection with demand for repayment of the money. If we peruse the other portion of the said document it would indicate that CW-1 had not stated anything with PW-1 regarding the identification of the assailants. It is because the relevant portion of such statement reads as follows: "... ನಂತರ ಾನು ನನ ತಮ ನ ಏ ಾ ತು ಎಂದು ಾ ಾಗ ... ಅಶ ಥಕ ೆ ಎಂಬ ೆ ತಲು" ಾಗ ಇಬ$ರು ವ&'(ಗಳ* ಅಶ ಥಕ ೆ ಬ+ ಂದ ಮರದ ೕವನು -ೈಯ 01ದು-ೊಂಡು ಬಂದು ಅ ಂದ 4ೇಗ4ಾ5 ಮುಂದ-ೆ6 7ೋ5ದು8, ಆಗ ಆ ಇಬ$ರು ವ&'(ಗಳ* ಅವರ -ೈಯ ದ8 ೕಪ;ಗಳನು 5 ೕಶನತ( <=ಾ1ದರೂ ಮರದ ೕ">ಂದ ಹ@ೆ Aಾ1ದ ವ&'(ಗಳನು Bೈ'ನ 7ೆC @ೈಟ Bೆಳ'ನ ಮತು( ಅ ದ8 ದು&E Bೆಳ'ನ ೋ1ದು8, ಮುಂದ-ೆ6 ಅವರನು ೋ1ದFೆ ಗುರುGಸುವ; ಾ5ಯೂ G+ ದನು..."
Thereby it becomes clear that even during the alleged statement of PW-1 before the Investigating Officer he had not stated -9- CRL.P No. 8994 of 2022 anything about CW-1 having informed him about the identification or details of the assailants. Thus the materials on record clearly go to show that PW-1 has narrated true facts before the Court and he has not made any effort to support the accused in the case.
19. As already pointed out, PW-1 is the elder brother of CW-1. PW-1 himself has informed the Court that they are not aware about whereabouts of CW-1 for last 4-5 years. As such this Court could not secure CW-1 before the Court and record his testimony in connection with the alleged crime. In the above circumstances, this Court holds that the prosecution has failed to adduce sufficient evidence on record to support the accusation made against the accused persons and in particulars Accused Nos.1 and 3 to 5. Hence, Point No.1 is answered in the Negative.
20. Point No.2: In the result, this Court proceeds to pass the following:
ORDER Acting under Section 235(1) of Criminal Procedure Code Accused Nos. 1 and 3 to 5 are acquitted from the charge framed under Sections 148, 341, 307 and 109 read with Section 149 of Indian Penal Code.
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The bail bonds executed by Accused Nos.1 and 3 to 5 and their surety stand canceled.
Material object marked at M.0.1 and other properties if any produced in the case shall be preserved for split-up case registered against Accused No.1021/2019."
10. The reasons rendered by the learned Sessions Judge is that the prosecution has failed to prove the allegations against the accused beyond reasonable doubt, as there were no witnesses who spoke against the petitioners and the Investigating Officer who was the lone witness examined in favour of the prosecution also was not in a position to drive home the allegations so alleged.
11. In the light of the failure on the part of the prosecution to prove the allegations against the accused beyond reasonable doubt, the accused Nos.1 and 3 to 5 are acquitted.
12. A perusal at the charge would indicate that the allegations against the petitioner - accused No.2 is
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verbatim similar to what is alleged against accused No.1.
If accused No.1 has been acquitted on the ground that there was no evidence, it cannot be said that the petitioner would be convicted for the same offence and on the same evidence. Therefore, permitting further trial against the petitioner-accused No.2 in CC No.1021/2019 would become an exercise in futility, of no utility and waste of judicial time.
13. The view of mine, in this regard, is fortified by the judgment rendered by a Co-ordinate Bench of this Court in 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
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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 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."
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CRL.P No. 8994 of 202213. 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 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
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CRL.P No. 8994 of 2022continued 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 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
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CRL.P No. 8994 of 2022the 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. When allegation made
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CRL.P No. 8994 of 2022against 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
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CRL.P No. 8994 of 2022such, 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 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."
14. In the light of the facts obtaining in the case at hand, acquittal of other accused and the judgment rendered by the co-ordinate Bench of this Court, which
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CRL.P No. 8994 of 2022covers the issue in the lis on all its fours, I deem it appropriate to obliterate the proceedings against the petitioner in CC No.1021/2019.
15. For the reasons aforestated, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings against the petitioner in CC No.1021/2019, pending on the file of J.M.F.C. (III Court), Mangaluru stands quashed.
(iii) It is made clear that the observations made would not become applicable to any other accused, who is facing trial in the same CC No.1021/2019.
Sd/-
JUDGE VP/GH