Karnataka High Court
Arun Kumar @ Vandre vs State Of Karnataka on 27 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 7321 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7321 OF 2021
BETWEEN:
1. ARUN KUMAR @ VANDRE
S/O LATE SIDDAIAH
AGED ABOUT 30 YEARS,
R/AT NO.97, 3RD CROSS
PRAGATHIPURA, BANASHANKARI
TEMPLE, KANAKAPURA MAIN ROAD
BENGALURU - 560 078
...PETITIONER
(BY SRI. CHANDRAPPA K N.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
STATION HOUSE OFFICER
Digitally signed
by PADMAVATHI
JAYANAGAR POLICE STATION
BK BANGALORE
Location: HIGH
COURT OF REP BY: SPECIAL PUBLIC PROSECUTOR
KARNATAKA
HIGH COURT OF KARNATAKA
BANGALORE-560001
2. VINODA @ GUBBI
S/O MAHADEV
AGED ABOUT 21 YEARS,
R/AT NO.NILL, 6TH CROSS,
SHAKAMBARI NAGARA
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CRL.P No. 7321 of 2021
J P NAGAR IST STAGE
BANGALORE-560078
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1
R-2 SERVED, UNREPRESENTED)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HONBLE COURT MAY BE PLEASED TO QUASH THE
ENTIRE PROCEEDINGS IN MATTER BEARING
S.C.NO.1178/2019, PENDING IN THE FILE OF THE
HONBLE LVI ADDL.CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU AS AGAINST THE PETITIONER HEREIN,
WHEREIN THE PETITIONER HEREIN IS ARRAIGNED AS
ACCUSED NO.4 FOR THE ALLEGED OFFENCE P/U/S 341,
302, 120B, 427 R/W 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:
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CRL.P No. 7321 of 2021
ORDER
The petitioner is before this Court calling in question proceedings in S.C.No.1178/2019 pending before LVI Additional City Civil and Sessions Judge, Bengaluru for offences punishable under Sections 341, 302, 120B, 427 read with Section 34 of the IPC.
2. Heard the learned counsel, Sri. Chandrappa K.N., appearing for the petitioner, the learned HCGP, Smt. K.P. Yashodha, appearing for respondent No.1 and have perused the material on record.
3. Brief facts that leads the petitioner before this Court in the subject petition, as borne out from the pleadings, are as follows:
A complaint is registered on 18.04.2014, which becomes a crime in Crime No.116/2014 for offences punishable under Sections 302, 120B read with Section 34 of the IPC. The police after investigation file a charge sheet in the matter and the matter was set to trial in -4- CRL.P No. 7321 of 2021 S.C.No.988/2014. The petitioner was arrayed as accused No.4 in the said Sessions case. While the trial was continued against all others, since the petitioner on few dates, when the charge was sought to be framed by the learned Sessions Judge, had remained absent, owing to his absence, a split charge sheet was framed against the petitioner.
4. It transpires that the other accused Nos.1 and 2 in S.C.No.988/2014 were acquitted of the offences on the ground that all the witnesses had turned hostile and the prosecution had failed to drive home the allegations against those accused beyond all reasonable doubt. The order of acquittal was passed on 01.02.2017. Owing to the absence of the petitioner, the charge had been split up against him and the trial in the split up charge sheet was yet to commence, commencement of the proceedings, now is what drives the petitioner to this Court at this juncture.
-5- CRL.P No. 7321 of 20215. It is not in dispute that the acquittal order passed in favour of accused Nos.1 and 2 has become final.
The petitioner is accused No.4 in S.C.No.1178/2019 and is said to be in custody for the last 21 months on account of the charge against him being split owing to his absence.
6. The ground on which the petitioner knocks the doors of this Court is that accused Nos.1 and 2 who have been alleged of the commission of the offence have been acquitted of all the allegations on the ground that all the witnesses of the prosecution had turned hostile. The allegations against accused Nos.1 and 2 was stabbing the deceased and the allegation against the petitioner is that he had held the hand of the deceased in order to let accused Nos.1 and 2 stab him. On account of the witnesses turning hostile, accused Nos.1 and 2 who were alleged of offence punishable under Section 302 of the IPC have been acquitted. If all witnesses have turned hostile, which enured to the benefit of accuse Nos.1 and 2, merely -6- CRL.P No. 7321 of 2021 because the petitioner was not available for trial, the trial now cannot be permitted to continue as the acquittal of the accused Nos.1 and 2 has become final. In the considered view of this Court, if further proceedings are permitted to continue, it would become an exercise in futility with no utility except waste of judicial time, at the time when the Courts flooded with cases pending over years together. If the facts of the case considering acquittal of accused Nos.1 and 2 are noticed, there are no chances of where the petitioner would be held guilty of any offence in the split up charge.
7. The view of mine, in this regard, is fortified by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.3017/2022 disposed on 22.04.2022, has held as follows:
"9. The afore-narrated facts are not in dispute. What lead to registration of the crime against the accused was that while patrolling in the forest the Circle Inspector receives credible information that sandalwood was being smuggled in a car at -7- CRL.P No. 7321 of 2021 Holehonnur Road. The car was intercepted at about 12.15 a.m. and due to darkness a person fled and another person who was in the car was arrested. Sandalwood pieces were recovered. The petitioner was arraigned as accused No.1 and one Munavar Pasha as accused No.2. The petitioner along with accused No.2 was arrested and later on enlarged on bail. Since the petitioner was absconding, a split charge sheet was filed against accused No.2 and the trial was conducted. Throughout the trial, the petitioner was missing and an NBW was issued in LPR 6/2021 and the Station House Officer arrested the petitioner on 24.02.2022. It is after that a split charge sheet is filed against the petitioner in C.C.No.770/2022.
10. What requires to be noticed now is the judgment rendered by the trial Court in the case of accused No.2 in C.C.No.1123/2010. The trial Court, by its order dated 29.10.2011, splitting up charges against others holds trial against accused No.2 and renders its judgment on 29.10.2011 in S.C.No.73/2011. The trial Court considers the entire evidence and renders its findings that there was no material to show that when the sample pieces were drawn out of the bulk of the material seized. It is germane to notice the reason rendered by the learned Sessions Judge while acquitting the accused No.2 and it reads as follows:-8- CRL.P No. 7321 of 2021
"10. Point No.1 to 3:-
The evidence is likely to overlap and interconnected to each other and therefore, all the points are taken together for discussion.
11. In order to substantiate the charge, the prosecution has examined in all 8 witnesses and PW.1 to 8 and got marked 8 documents at Ex.P.1 t P.8 and also got marked M.O.1.
12. The prosecution has examined PSI., Vijayaprasad as PW.8 and M. Janardhan-Police Official as PW.6. Both the witnesses have stated in their evidence that on 15.02.2003 as per the credible information received, the PSI., of Rural Police Station, Bhadravathi secured the presence of panchas-Jagadish and Manjappa and proceeded towards Girish Saw-Mill situated on Bhadravathi- Holehonur Road, they were searching the vehicles in order to detect the sandal wood theft case. At about 12.50 a.m., a white vehicle came towards the saw- Mill from Bhadravathi side and the vehicle was stopped. They have stated that one of the persons ran away and the other person by name Zakeerkhan was arrested. Upon enquiry, he has disclosed that one Munna resident of Koppa had run away. They have deposed that about 9 bags containing sandalwood roots, chips and billets were seized. The -9- CRL.P No. 7321 of 2021 persons did not have any valid pass or permit to transport the same and they were seized. A mahazar was drawn and a complaint was lodged in the Police Station.
13. The pancha witnesses to the seizure mahazar are examined as PW.1 & 2. They have stated in their evidence that they have signed the mahazar in the police station and they have further deposed that the sandal wood was not seized in their presence. The witnesses are treated as hostile and the case of prosecution has been suggested to the witnesses and the witnesses have denied the suggestions.
14. PW.4-V. Thimmappa-ASI., has stated in his evidence that in the intervening night between 15th & 16th February 2003, he has registered a complaint and drawn FIR., and thereafter, the investigation was taken over by the PSI.
15. The Range Forest Officer of Bhadravathi is examined as PW.5. He has stated in his evidence that on 16.02.2003 he has examined the seized properties in this case and certified that they were sandal wood chips, billets etc., and he has issued certificate as per Ex.P.8.
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16. PW.8-Vijayaprasad has stated about the investigation carried out by him. Thereafter, Krishnamurthy-PW.7 has also deposed that he has investigated the matter and filed charge sheet against the accused.
17. The learned counsel appearing for the accused vehemently argued that none of the witnesses examined on behalf of the prosecution have identified the accused-Munna and there is no material to show how he is connected to the case. Further, the submission was made that the seized property itself is not available in this case.
18. I have perused the entire evidence adduced on behalf of the prosecution. As per the case of prosecution, one Zakeerkhan was arrested on the spot and Munna S/o. Nazeer Ahammed is said to have run away from the place. In this regard, PW.6- Janardhan-Head Constable and PW.8-Vijayaprasad- PSI., both have stated that one of the person had run away from the spot. But however, both the witnesses have not stated that the accused before the court had run away from the spot. The complaint mentions that Zakeerkhan had informed about the other person as Munna resident of Koppa. On perusal of the charge sheet, absolutely there is no material to show
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how accused No.2-Munna was identified as the person who had run away from the spot. PW.8 has stated in his evidence that he is not in a position to identify the accused, who had run away from the spot. The other witnesses have also not identified the accused. Therefore, in the absence of any such identification evidence, the prosecution is unable to connect the alleged offence to the accused, who is facing the trial.
19. Apart from that, it may be noted that the prosecution has produced sandal wood chips contained in a bag as sample. But however, there is no material to show when the sample pieces were drawn out from the bulk of the material seized and those factors have not been placed before the court. So-called sample produced do not reflect that it was the sample removed at the spot and or that its marking is made at the spot. Therefore, on that count also, the prosecution is unable to connect the incident to the accused facing trial. The other evidence available in this case will not help the prosecution in establishing the guilt of the accused. As mentioned above, the accused No.2 is said to have run away from the spot. The details of his identification marks has not been established by investigation to know how
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this man was identified. Under the circumstances, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt."
(Emphasis added) The learned Sessions Judge, as afore-quoted, clearly holds that the prosecution has failed in establishing the guilt of the accused.
11. If the prosecution has failed in establishing the guilt of the accused, the petitioner being accused No.1 and the other being accused No.2 and the crime arising out of the very same set of facts and the very same evidence, the finding would enure to the benefit of the petitioner as well, as paragraph 19 (supra) makes it abundantly clear that the prosecution was unable to connect the incident itself to the accused facing trial. If the prosecution has failed to connect the incident to the accused, it would be equally applicable to accused No.1, the petitioner, as it was applicable to accused No.2.
12. Though, the petitioner was absconding throughout the trial and did not face the rigmarole of the procedure of a criminal trial, one fact cannot be lost sight of is, the right of liberty of a person which is a fundamental right. When this Court finds that
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CRL.P No. 7321 of 2021the other accused who stood on the same footing not being convicted for the reason that there was no evidence to link the incident to the accused, directing trial to be conducted against the petitioner on the ground that he was absconding, will result in miscarriage of justice.
13. If all the accused were available for trial except the petitioner and those accused had been convicted of the offences, then it would be, "a yes"
for conducting a trial against the petitioner. But, what has happened is the opposite, the accused No.2 has been acquitted. Therefore, in my considered view, the trial against accused No.2, in the teeth of the finding of the learned Sessions Judge in favour of accused No.2 and the order of the learned Sessions Judge having become final qua accused No.2, further trial against the petitioner cannot be permitted to be continued.
14. 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
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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 accused Nos.1 to 3, in respect of the same offence. In the second round of trial against the petitioner, the evidence to be
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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 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
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CRL.P No. 7321 of 2021only 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
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CRL.P No. 7321 of 2021when 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 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.
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CRL.P No. 7321 of 202116. 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.
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
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CRL.P No. 7321 of 2021should 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 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.
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CRL.P No. 7321 of 2021(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."
The Co-ordinate Bench was considering a case where the co-accused who had escaped trial had not surrendered or was not arrested by the police.
15. In the case at hand, the petitioner was taken into custody on 24.02.2022 and is in custody for the last two months. The facts obtaining in the case at hand; the order of the learned Sessions Judge acquitting accused No.2 on the same set of facts and on the ground that there was no evidence to link the incident with the accused; the said order of acquittal having become final; the order passed by the Co-ordinate Bench (supra), a trajectory of all the aforesaid would lead to an unmistakable conclusion that the petitioner cannot be permitted to undergo trial and I deem it appropriate to obliterate the proceedings against the petitioner accepting the subject petition filed under Section 482 of the Cr.P.C."
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CRL.P No. 7321 of 20218. In the light of the fact obtaining in the case as observed hereinabove and the judgment rendered by the Co-ordinate Bench of this Court (supra), it is germane to notice the judgment of acquittal passed in favour of accused Nos.1 and 2.
9. The judgment of acquittal passed against accused Nos.1 and 2 in S.C.No.988/2014, read as follows:
"30.¥Áæ.¸À.13 (ZÁ.¸Á.13) ¯ÉÆÃPÉñï gÀªÀgÀÄ ¥ÉÆð¸ï E£ïì¥ÉPÀÖgïgÀªÀgÀÄ F PÉù£À zÀÆgÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ ¸ÀA¥ÀÆtð vÀ¤SÉ ªÀiÁr ¸ÁQëUÀ¼À£ÀÄß «ZÁgÀuÉ ªÀiÁr ¸ÀܼÀ ªÀĺÀdgï ªÀÄvÀÄÛ CªÀiÁ£ÀvÀÄÛ ªÀĺÀdgï ªÀiÁr UÁAiÀÄzÀ ¥ÀæªÀiÁt¥ÀvÀæ, ªÀÄgÀuÉÆÃvÀÛgÀ ¥ÀjÃPÁë ªÀgÀ¢, DgÉÆævÀgÀ ¸Àé EZÁÒ ºÉýPÉUÀ¼À£ÀÄ ¥ÀqÉzÀÄPÉÆAqÀÄ vÀ¤SÉ ¥ÀÆtðUÉƽ¹ zÉÆõÁgÉÆÃ¥ÀuÉ ¥ÀnÖAiÀÄ£ÀÄß ¸À°è¹zÀAvÀºÀ ¸ÁQëAiÀiÁVgÀÄvÁÛgÉ.
31. F ¸ÁQë vÀ£Àß ¥ÁnøÀªÁ°£À°è "¤.¦.5 zÀÆgÀ£ÀÄß AiÀiÁgÀÄ §gÉ¢gÀÄvÁÛgÉ J£ÀÄߪÀÅzÀÄ UÉÆwÛ®è, zÀÆgÀÄ PÉÆqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è ¦ügÁAiÀÄ¢AiÀÄ eÉÆvÉ AiÀiÁgÁågÀÄ §A¢zÀÝgÀÄ CAvÀ UÉÆwÛ®è. zÀÆgÀÄ ¥ÀqÉzÀÄPÉÆAqÀ vÀPÀët WÀl£Á ¸ÀܼÀPÉÌ ¨sÉÃn PÉÆnÖ®è. ¤.¦.1 ªÀĺÀdgï ¸ÁQëAiÀiÁVzÀÄÝ, ¥ÀæwPÀÆ® ¸ÁQë ¤ÃrzÀÝjAzÀ D ¸ÁQëUÀ¼À ¸ÀªÀÄPÀëªÀÄ ¤.¦.1 ªÀĺÀdgï ªÀiÁr JA.N.1 jAzÀ 5 EªÀÅUÀ¼À£ÀÄß CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉÆArgÀÄvÁÛgÉ CAvÀ F ¸ÁQë¬ÄAzÀ gÀÄdĪÀvÁVgÀĪÀÅ¢®è.
- 22 -CRL.P No. 7321 of 2021
32. ¤.¦.2 CªÀiÁ£ÀvÀÄÛ ªÀĺÀdgï ¥ÀæwPÀÆ® ¸ÁQë £ÀÄr¢zÀÝjAzÀ D ¸ÁQëUÀ¼À ¸ÀªÀÄPÀëªÀÄ ¤.¦.2 ªÀĺÀdgï ªÀiÁr JA.N.6 jAzÀ 9 EªÀÅUÀ¼À£ÀÄß CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉÆArgÀÄvÁÛgÉ CAvÀ gÀÄdĪÁvÁVgÀĪÀÅ¢®è.
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- 23 -CRL.P No. 7321 of 2021
: DzÉñÀ :
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10. For all the aforesaid reasons and the judgment rendered by the Co-ordinate Bench of this Court (supra), I deem it appropriate to quash the proceedings against the petitioner and set him at liberty.
11. For the aforesaid reasons, the following:
ORDER i. Criminal petition is allowed.
- 24 -CRL.P No. 7321 of 2021
ii. Proceedings pending in S.C.No.1178/2019 before the LVI Additional City Civil and Sessions Judge, Bengaluru, stands quashed qua the petitioner.
Sd/-
JUDGE SJK