Karnataka High Court
Mr. Ravi Alias Ravichandra.P vs The State-Through The on 5 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.4796/2017
BETWEEN:
MR. RAVI ALIAS RAVICHANDRA P
AGED ABOUT 30 YEARS
S/O KORAGAPPA SAPALIGA
R/AT KARIYANGALA VILLAGE
POLALI POST
BANTWAL TALUK
DAKSHINA KANNADA DISTRICT.
... PETITIONER
(BY SRI. P.P.HEGDE, ADVOCATE)
AND:
THE STATE
THROUGH THE INVESTIGATIN
DEPUTY SUPERINTENDENT OF
POLICE, (H& B), C.O.D.,
BENGALURU
REP. BY THE STATE PUBLIC
PROSECUTOR, HIGH COURT OF
KARNATAKA, BENGALURU-01.
... RESPONDENT
(BY SRI RACHAIAH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO QUASH THE PROCEEDINGS AGAINST THE PETITIONER
HEREIN IN C.C.NO.1170/2017 ON THE FILE OF ADDL.
CIVIL JUDGE AND JMFC., BANTWAL ARISING OUT OF
CR.NO.130/2016 OF BANTWAL RURAL P.S., FOR THE
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OFFENCE P/U/S 143, 147, 148, 341, 302, 324, 307, 435,
153A R/W 149 OF IPC.,
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard arguments of Sri.P.P.Hegde, learned Counsel for petitioner and Sri Rachaiah, learned High Court Government Pleader appearing for the respondent/State.
2. By consent of learned Advocates appearing for parties, this petition is taken up for final disposal though matter is listed for admission.
3. Petitioner is accused No.3 in C.C.No.1170/2007 pending on the file of Additional Civil Judge and JMFC, Bantwal, who is shown as absconding and is seeking for quashing of said proceedings arising out of Crime No.130/2006 registered by Bantwal Rural Police Station, for the offence punishable under Sections 143, 147, 148, 341, 302, 324, 307, 435 and 153-A read with 147 of the 3 Indian Penal Code, 1860. It is contended that petitioner has been arraigned as accused No.3 in the supplementary charge sheet filed by the prosecution in Crime No.130/2006 depicting as though accused had been absconding.
4. Facts in brief, which have lead to filing of this petition are as under:
A complaint came to be lodged by one Sri H.Hameed that on 07.10.2006, he intended to drop his brother-in-law's son at the airport and as such, he along with his son Iqbal and his relatives, Rehaman, Abdulla, Mohammed Rafiq, M.Ibrahim, Ashraf and his neighbour Hanif proceeded in an ambulance from Boliyar Rantadka via Kariangala to Bajpe airport. When they reached near Punchame of Kariangala village, about 15 persons armed with deadly weapons like talwar, clubs and stones came in five motor vehicles carrying three persons in each and intercepted the ambulance in which they were travelling and started assaulting the inmates with clubs and talwars suddenly 4 and without any provocation and it resulted in commotion and said persons forcibly removed the inmates of the ambulance and assaulted them with talwars. It is also stated that some of the inmates escaped and complainant was also assaulted with talwar resulting in grievous injuries being sustained. It is also stated that they set fire to the ambulance and injured persons, Ibrahim and others were shifted to A J Hospital in a jeep by persons who were near Addur bridge and said Ibrahim, who had sustained vital injuries later succumbed to the same.
5. It is further stated that on account of communal violence that had erupted in some pockets of Dakshina Kannada and Bantwal, complainant and others were attacked out of vengeance and Ibrahim came to be murdered. He has stated that incident took place at 5.00 p.m. and he would be able to identify the assailants if shown and as such, requested Police to take action against those persons who had assaulted him and killed Ibrahim. On the basis of said complaint, 5 Crime No.130/2006 came to be registered against 15 unknown persons. After investigation, charge sheet came to be filed against 40 persons. Thereafter, supplementary charge sheets have also been filed. Matter came to be committed to Sessions Court in S.C.Nos.12/2007, 94/2007 and 26/2008.
6. Jurisdictional Sessions Court is said to have issued summons and warrant against accused persons including the petitioner herein but failed to secure the presence of petitioner. Thereafter, proceedings under Section 84 of Cr.P.C. is said to have been initiated against petitioner by the jurisdictional Sessions Court. Supplementary charge sheet came to be filed against petitioner in C.C.No.1170/2007, now pending on the file of Additional Civil Judge and JMFC, Bantwal, since he was declared as absconding. Accused Nos.15 to 33 surrendered before the committal Court after obtaining anticipatory bail. Thus, accused Nos.1 to 23 and 25 to 33 were tried in S.C.Nos.12/2007, 94/2007 and 26/2008 for the offence punishable under Sections 143, 6 147, 148, 341, 302, 324, 307, 435, 153-A read with Section 149 IPC.
7. On behalf of prosecution, 25 witnesses were examined as P.W.1 to P.W.25. Exs.P-1 to P-61 came to be marked and M.O.1 to M.O.18 was also marked. On behalf of defence, portion of statement of P.W.3 came to be marked as Ex.D-1.
8. Sessions Court after analyzing the evidence tendered by the prosecution and the defence set up by the accused persons, has held that P.W.1 has not stated the names of persons who attacked them and persons who assaulted him and other persons including deceased, who were inmates of ambulance in which they were travelling. P.W.4 and P.W.6 had turned hostile by not identifying the accused persons, who were present before Court. Sessions Court after noticing the cross-examination has opined that said witnesses namely, P.W.4, P.W.6 and P.W.7 had not voluntarily identified 10 persons, who were shown by the Investigating Officer after being arrested and they were 7 identified in the police station. Sessions Court also took note of the fact that all the witnesses had turned hostile and in conclusion opined as under:
"55. The evidence of one contradicts with the other. When there is no consistent, cogent and corroborative evidence by the prosecution witnesses it creates doubt about the commission of the offence by the second persons. The recovery of the weapon of offence and other articles also not proved as required under law. In the absence of consistent, cogent and corroborative evidence by the prosecution witnesses, I have no other alternative but to hold that the prosecution has failed to prove the offence against the accused persons beyond reasonable doubt attracting the ingredients of the provisions of the offence alleged against them. When the prosecution has failed to prove the offence against the accused beyond reasonable doubt, the accused are entitled to the benefit of doubt.
56. As could be seen from the evidence of the prosecution witnesses the investigation of the case is not properly conducted. Admittedly there was communal disturbances in Dakshina Kannada District and other places of Bantwal Taluk. That being so, to please the other community people the 8 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. Such possibilities cannot also be ruled out. Merely because the charge-sheet has been filed the accused cannot be held to be guilty of the offence unless there is consistent, cogent and corroborative evidence by the prosecution witnesses. Therefore, for the foregoing reasons, I hold that the accused are not guilty of the offence. The accused not being guilty of the offence, are entitled to acquittal. Accordingly, I answer the Points No.2 to 9 in the negative."
9. Prosecution after placing its case on record, sought for their conviction. Learned Sessions Judge after appreciating the evidence tendered by parties has acquitted all the 32 accused persons on the ground that there is no consistent, cogent and corroborative evidence tendered by the prosecution witnesses and it creates a doubt about the commission of offence by the accused persons.
10. It is the contention of Sri. P.P.Hegde, learned counsel appearing for petitioner namely, accused No.3, 9 who has now been arraigned as accused in the same crime number registered in C.C.No.1170/2007, that charge framed against accused in sessions case is general and common against all the accused persons including petitioner herein that they have committed the murder of Ibrahim on 07.10.2006 and when all the accused persons have been acquitted by a common judgment dated 31.10.2008, which has reached finality, continuation of further proceedings against the present petitioner would be abusing process of law. It is also submitted that even after conduct of fresh trial against the petitioner, same would be waste of judicial time and it would not serve any judicial purpose. Hence, he seeks for quashing of proceedings.
11. Per contra, Sri. Rachaiah, learned HCGP appearing for the State submits that petitioner, who is a person who was absconding and until and unless he surrenders before jurisdictional Court, if proceedings are quashed, it would be a giving premium to a person who has been absconding. As such, relying upon the 10 judgment of this Court in the case of HYDER vs. STATE OF KARNATAKA reported in ILR 2015 Kar. 970 he prays for rejection of this petition.
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 11 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."
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 12 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 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 13 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.
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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, who 15 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 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.
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17. In view of the aforestated 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 whereunder 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 17 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 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 as petitioner is concerned.18
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.
SD/-
JUDGE DR