Karnataka High Court
Raja @ Rajendra Kumar @ vs The State on 24 August, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
CRL.P No. 6475 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.6475 OF 2017
BETWEEN:
RAJA @ RAJENDRA KUMAR @
BANNANJE RAJA @ KUMARA RAJA
@ HEMANTHA HEGDE
AGED 50 YEARS
S/O M.SUNDARA SHETTYGAR
RESIDING NEAR VAKILARA THOTA
MUDANIDAMBUR
UDUPI DISTRICT-576108
...PETITIONER
(BY SRI. P.P. HEGDE, SENIOR COUNSEL A/W
KUM. RACHITHA RAJSHEKAR, ADVOCATE)
AND:
1. THE STATE- THROUGH THE
SUB-INSPECTOR OF POLICE
MANGALURU EAST POLICE STATION
MANGALURU - REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA AT
Digitally signed by
POORNIMA BENGALURU-560001
SHIVANNA
Location: HIGH
COURT OF 2. SURESH BHANDARY
KARNATAKA S/O LATE JAYARAMA BHANDARY
R/AT "AISHWARYA", SHIVABAGH
2ND CROSS ROAD, KADRI, MANGALURU-575004
...RESPONDENTS
(BY SRI. KIRAN S. JAVALI, SPP A/W
SRI. MAHESH SHETTY, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER STION 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS AGAINST THE
PETITIONER HEREIN IN S.C.NO.105/2016 PENDING ON THE FILE OF
III ADDITIONAL SESSIONS JUDGE, D.K., MANGALURU.
-2-
CRL.P No. 6475 of 2017
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Quash the proceedings against the petitioner herein in S.C.No.105/2016 pending on the file of III Additional Sessions Judge, D.K., Mangaluru and b. Grant such other and further reliefs as this Hon'ble deems fit to grant under the circumstance of the case, in the interest of justice and equity.
2. The petitioner was accused No.1 in S.C.No.151/2012 and S.C.No.167/2013. On account of the petitioner being absconding, the charges were split up and separate proceedings in S.C.No.105/2016 were initiated against the petitioner. The proceedings in S.C.No.151/2012 and S.C.No.167/2013 were initiated against other accused except the petitioner for offences under Sections 143, 147, 148, 120B, 115, 307, 384, 506, 507, 427 read with Section 149 of IPC and Sections 3, 25, 27 of the Indian Arms Act. -3- CRL.P No. 6475 of 2017
3. The allegation made in the complaint is that the petitioner had on 26.05.2011 at about 9.15 p.m. called C.W.1 demanding illegal amount as hafta and caused a threat to life of CW-1 thereby committing an offence of criminal intimidation by anonymous communication punishable under Section 506, 507 and 149 of IPC.
4. It is alleged that the petitioner used to make frequent calls using his mobile seeking for illegal money to CW-1. On 26.05.2011 when CW-1 and his wife CW-4 and daughter CW-4 were travelling in Captiva Car and were parking near Kadri Park at about 7.30 p.m., accused Nos.2, 5, 9 were waiting on the said spot. Accused No.3 came in a Yamaha motor bike and thereafter accused Nos.2 to 9 along with accused Nos.10 and 11 with common intention followed the Captiva car in order to commit murder of CW-1 and had fired a revolver which was in their possession.
-4-CRL.P No. 6475 of 2017
5. It is on that basis that the complaint came to be filed initially against unknown persons and subsequently upon investigation, the accused being identified, charge sheet was laid against accused for the aforesaid offences. When the matter was taken up before the Sessions Court, the Sessions Court framed following points for determination for consideration:
1. Whether the prosecution is able to prove that on 26.5.2011, accused No.2 Devdas Shetty @ Devu, accused No.3 Manish Kumar @ Neeraj Shrivasthav, accused No.4 Vinod Kulal, accused No.5 Mohammad Javed Khan @ Javed @ Ajay Singh @Ajay, accused No.6 Puttaswamy M.B, accused No.7 Ali Hussain @ Hussain Ali @ Ravi, accused No.8 Mahesh @Achchangi Mahesh and accused No.9 Nithesh @ Sanjay @ Ansu Singh on the instigation of absconding accused No.1 Bananje Raja, in connection with haftha mount demanded, to commit the murder of CW1 Suresh Bhandary, criminally conspired and hatched up plan, thereafter accused Nos. 6 and 7 abated the commission of offence by accused No.3 and 4 to cause bullet firing by means of fire arms supplied by accused No.10 Shelich Sohabuddin @ Sohabu and absconding accused No.11 Godha Shet and thereby committed the offence punishable under Section 115 and 120B read with Section 149 of Indian Penal Code?
2. Whether the prosecution is able to prove that on 26.5.2011, when CW1 with CW3 and CW4 went to Kadri Park and after returning when they were about to sit in the Car, accused No.3 Manish Kumar and accused No.4 Vinod Kulal possessed with revolvers supplied by accused No.10 Sheikh Sohabudden @ Bohabu and accused No.11 Godha -5- CRL.P No. 6475 of 2017 Shet, shot gun fire on CW1 to commit his murder which came into contact with the window glass of the Car from which, caused damages of Rs.10,000/-
and thereby, they have committed the offence punishable under Section 307 and 427 read with Section 149 of Indian Penal Code?
3. Whether the prosecution in able to prove that the accused Nos.2 to 9 and 10 with common intention on the Instigation of absconding accused No.1, rioting, armed with deadly weapons revolver dishonestly Induced CW1 to deliver certain property and thereby committed the offence punishable, under Section 384 read with Section 149 of Indian Penal Code?
4. Whether the prosecution is able to prove that on 26.5.2011 at about 9.15 pm., the absconding accused No.1 Bannanje Raja criminally intimidated by way of calling over the mobile phone of CW1, demanding illegal amount haftha and also phone call to CW7 B.S..Hameed and caused threat to the life of CW1 and thereby, committed criminal intimidation by anonymous communication punishable under Section 506 and 507 read with Section 149 of Indian Penal Code?
5. Whether the prosecution is able to prove that the accused No.2 Devudas Shetty @ Devu found in unauthorized possession, of live bullets and pistol with arms supplied by accused No.10 Sheikh Sohabuddeen @ Sohabu without any license, given the same to the accused No.3 and accused No.4 to commit the murder of CW1 by way of gun shot and thereby, the accused Nos.2 to 4 and 10 have committed the offence punishable under Section 3, 25 and 27 of Indian Arms Act?
6. Whether the prosecution has proved the offences committed by the accused Nos.2 to 9 and 10 punishable under Section 143, 147, 148, 120B, 115, 307, 384, 506, 507, 427 read with 149 of IPC and Sections 3, 25 and 27 of Indian Arms Act?
7. What Order?
-6-CRL.P No. 6475 of 2017
6. In the said proceedings since accused Nos.1, 10 and 11 were absconding, the proceedings were split up and continued only insofar as accused Nos.2 to 9. The Sessions Court after trial considering the evidence on record and hearing the parties, acquitted the accused Nos.2 to 9 for the offences alleged against them by holding that the prosecution has utterly failed to prove the attempt of murder made by them on CW-1 and that there was no evidence on record to prove the unlawful assembly formed by accused Nos.2 to 9 and as such, the Sessions Court came to a conclusion that the prosecution has failed to prove the alleged offences committed by accused Nos.2 to 9 and 10 for the aforesaid offences. It is relying upon the said judgment of acquittal that Sri.P.P.Hegde, learned Senior Counsel who appears for accused No.1 in the said proceedings is before this Court seeking for aforesaid reliefs on the following submissions.
-7-CRL.P No. 6475 of 2017
7. Sri.P.P.Hegde, learned Senior Counsel submits that:
7.1. The Sessions Court having acquitted accused Nos.2 to 9 and 10 in S.C.No.151/2012 and 167/2013, the benefit of acquittal is required to be extended to the petitioner since the common judgment in the said matters passed on 24.03.2016 has not been challenged and has attained finality.
7.2. That the offences being alleged against all the accused being one and the same, accused Nos.2 to 9 having been acquitted, the benefit of acquittal is required to be extended to the petitioner also. There is no further or separate evidence that could be led insofar as the petitioner is concerned. There being common evidence having been already considered in S.C.No.151/2012 and S.C.No.167/2013, there would be no purpose served by unnecessarily subjecting the petitioner to unnecessary trial.-8- CRL.P No. 6475 of 2017
7.3. In this regard, he relies upon the decision of the Hon'ble Apex Court in the case of CBI v.
Akhilesh Singh, reported in (2005) 1 SCC 478 more particularly Para 5 thereof, which is reproduced hereunder for easy reference:
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 supplied the -9- CRL.P No. 6475 of 2017 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.
7.4. The decision of the Division Bench of this Court in the case of State of Karnataka v. K.C. Narasegowda, reported in ILR 2005 KAR 1822, more particularly, Paras 2 and 5 thereof, which are reproduced hereunder for easy reference:
2. It is necessary to note that, in all nine accused were tried in S.C. No. 57/91 on the file of the Principal Sessions Judge, Tumkur for the offences punishable under Sections 148, 324, 326, 307 r/w. 149 of the IPC. After considering the entire evidence on record, the Trial Court convicted all the accused on all counts and sentenced them accordingly. It is to be noted that after conviction the accused No. 1-
Narsegowda S/o. Channegowda, who was on bail escaped the arrest and suffering of the sentence awarded by the Trial Court. As per the note of the learned Sessions Judge, steps were taken in this regard but accused No. 1 remained
- 10 -
CRL.P No. 6475 of 2017 untraced till date. In the meanwhile, the other convicted accused Nos. 2 to 9 approached this Court in Crl. A. No. 225/98 and the learned Single Judge of this Court on reappreciation of the entire evidence, by the judgement dated 4- 3-2003 held that the prosecution has failed to bring home the guilt of the appellants (accused- 2 to 9) beyond reasonable doubt and as such, the eight accused stood acquitted. Now, as accused No. 1 alone remained untraced and since the file so far as he is concerned for sentence is kept pending, the learned Sessions Judge under Section 395(2) of Cr. P.C. referred the matter to this Court.
5. As is well settled from the catena of decisions of the Apex Court including Suresh Chaudhary v. State of Bihar [ ((2003 SCC (Cri) 801).] Bijoy Singh v. State of Bihar [ ((2002) 9 SCC 147).] , Raja Ram v. State of M.P. [ ((1994) 2 SCC
568).] , Anil Raj v. State of Bihar [ ((2001) 7 SCC 318).] and Pawan Kumar v. State of Hariyana [ (2004 SCC (Cri) 109).] , where on evaluation of a case, no conviction of any accused is possible, the benefit of doubt extended to the co-accused similarly situated is also available for the non-appealing accused. In the present case also, this Court has dealt in detail so far as the evidence against the accused Nos. 2 to 9 were concerned in the Cri. A. 225/98 and found that the prosecution has miserably failed to bring home the guilt against any of the accused. On going through the facts and circumstances as well as the reasoning of this Court, we also hold that as the entire material evidence of the prosecution 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 is extended to his co-accused in the light of the law laid down by the Hon'ble Supreme Court in the case of Suresh Chaudhary cases.
- 11 -
CRL.P No. 6475 of 2017 7.5. The decision of a Co-ordinate Bench of this Court in Crl.P.No.3165/2016 (Mr. Shivaprasad Nagvekar B vs. The State by Karnataka & Another) dated 8.9.2017 more particularly Paras 10 and 11 thereof, which are reproduced hereunder for easy reference:
10. As could be seen from the charge sheet material, though the allegation made against accused No.2 is different from the allegation made against accused Nos. 3 & 4 (petitioner herein), the prosecution is solely relying on the evidence of PWs. 1 to 3 (the complainant and eyewitnesses to the incident) to prove the charges levelled act made against the petitioner - accused No.4, herein as well.
Unfortunately, these material witnesses including the complainant did not support the case of the prosecution and he has also turned hostile. Totality of the circumstances would clearly indicate that prosecution has failed to prove the alleged incident that took place on 01.10.2004.
11. Under these circumstances, this Court is of the considered view that continuation of proceedings against accused No.4 (petitioner) before Court below, in the split up charge sheet in C.C. No.3733/2007 would only be a futile exercise and it would not serve any fruitful purpose.
- 12 -
CRL.P No. 6475 of 2017
8. Per contra, Sri.Kiran Javali, learned Senior Counsel and learned SPP would submit:
8.1. Relying upon a decision of a Co-ordinate Bench of this Court in Crl.P.No.6857/2020 dated 24.03.2021 [Ummer Farooq vs. The State of Karnataka & Another] the decision of acquittal of a Co-ordinate Bench is not admissible in terms of Sections 42 and 43 of the Indian Evidence Act and as such, the same cannot be considered by this Court at the stage of considering a petition under Section 482 of Cr.P.C.
8.2. That merely because other accused have been acquitted would not automatically result in acquittal of the petitioner herein. The charges having split up and separate proceedings having been initiated, the petitioner would have to stand a separate trial and it is on that basis,
- 13 -CRL.P No. 6475 of 2017
that necessary orders could be passed by the trial Court.
8.3. The petitioner would always have the benefit of Section 239 of Cr.P.C. or otherwise which he can avail before the said Court instead of coming before this Court under Section 482 of Cr.P.C.
8.4. Apart from the above, he submits that there is a separate allegation made against the petitioner herein in terms of the petitioner who is absconding and accused No.1 having caused a telephone call on 26.05.2011 at 9.15 p.m. criminally intimidating CW-1 which has not been considered by the trial Court. The only aspect that the Sessions Court has considered was as regards the unlawful assembly being formed and attempt to murder resorted to by them. The finding in respect of the said offences would have no bearing insofar as the specific allegation and/or specific overt act
- 14 -
CRL.P No. 6475 of 2017 alleged against the petitioner in respect of telephone call made by the petitioner on 26.05.2011. Therefore, he submits that this Court ought not to exercise powers under Section 482 of Cr.P.C. and ought to dismiss the above petition.
9. Heard Sri.P.P.Hegde, learned Senior Counsel for the petitioner and Sri.Kiran S.Javali, learned Senior Counsel and learned State Public Prosecutor and perused papers.
10. The contention of the learned counsel for the petitioner is that since there is no challenge of the order passed in S.C.No.151/2012 and S.C.No.167/2013, the said acquittal order should be extended to the petitioner who is accused No.1 in the said matter before the proceedings were split up. The facts relating to the above matter having already been detailed hereinabove, it is clear that the allegation made against accused Nos.2 to 9 are
- 15 -
CRL.P No. 6475 of 2017 different from that made against accused No.1. The only similarity being that the actions taken by accused Nos.2 to 9 are also stated to be on account of instructions given by accused No.1. Be that as it may. Apart from the aspect of forming unlawful assembly and/or indulging in an offence of attempt to murder which is alleged against accused Nos.2 to 9, there are separate allegations which have made against the petitioner which stands on its own. Thus, I am of the considered opinion that the finding of the Sessions Court in S.C.No.151/2012 and S.C.No.167/2013 which has not considered the specific overt actw against the petitioner in respect of the offences alleged would not enure to the benefit of the petitioner. There is substance in the submission made by Sri.Kiran S. Javali, learned Senior Counsel and learned SPP that the petitioner would have to stand trial for offences which are specifically alleged against the petitioner. As such, I am of the considered opinion that there are no grounds made
- 16 -
CRL.P No. 6475 of 2017 out to allow the petitioner. Hence, I pass the following:
ORDER i. The Criminal Petition is dismissed.
ii. All contentions and defences are left open for the petitioner to take up before the Sessions Court.
Sd/-
JUDGE Prs*