Karnataka High Court
Udaya Shetty vs State Of Karnataka on 19 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE Mr. JUSTICE ARAVIND KUMAR
CRIMINAL PETITION No.6406/2017
Between:
Udaya Shetty,
S/o Raju Shetty,
Aged about 51 years,
R/at #7-84, Thenka Yernal,
Udupi Taluk
& District - 574 119. ...Petitioner
(By Sri. Nishit Kumar Shetty, Advocate)
And:
State of Karnataka,
By Station House Officer,
Mangalore North Police Station,
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bangalore - 560 001. ...Respondent
(By Sri. S. Rachaiah, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings in (LPC
No.5/2004) S.C.No.60/2002 registered by the respondent
police against the petitioner under Section 120B, 324,
326, 302, 307 r/w 34 of IPC and Section 3, r/w 25, 27 of
Arms Act and Section 3(1) r/w 3(2)(1), 5 of the Terrorist
and Disruptive Activities (Prevention) Act pending on the
file of Prl. S.J., Mangalore, D.K.,
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This Petition coming on for admission, this day, the
Court made the following:-
ORDER
Heard Sri.Nishith Kumar Shetty, learned counsel appearing for petitioner and Sri.S.Rachaiah, learned High Court Govt. Pleader appearing for State. Perused the records.
2. By consent of both the advocates appearing for parties, this petition is taken up for final disposal.
3. Petitioner has been arraigned as Accused No.6 in S.C.No.60/2002 which is now being tried for the offence punishable under Sections 120-B, 324, 326, 307 and 302 read with Section 34 of IPC and Section 3 read with Sections 25 and 27 of Arms Act and Sections 3(1) read with Section 3(2)(i) and 3(3) and Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987, is seeking for quashing of the proceedings against him contending inter alia that allegation made against the petitioner-Accused No.6 3 and Accused No.7 (Rohith Shetty) are one and the same and Accused No.7 has already been acquitted by Judgment passed in S.C.No.20/1994 on 30.08.2003 on the ground that none of the prosecution witnesses examined by the prosecution has stated with regard to Accused No.7 parting with his car in favour of Accused Nos.1 to 4 who was the assailant and as such, it came to be held that prosecution had miserably failed to establish the participation of Accused No.7 with other accused in order to abet the commission of the offence and thereby, committed the offence. Hence, it is contended that petitioner who stands on the same footing as that of Accused No.7 against whom now split up charge-sheet has been filed, is praying for quashing of the proceedings contending continuation of said proceedings would be an abuse of the process of law and would not serve any fruitful purpose. On this ground, the petitioner is seeking for quashing of the proceedings.
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4. Per contra, learned High Court Govt. Pleader appearing for the State would submit that quashing of the proceedings in so far as the petitioner is concerned, if done, would be granting a premium to the petitioner-accused since he had been absconding and as such, it will send wrong signals in the society. Hence, he prays for rejection of the petition.
5. Having heard the learned counsel appearing for the petitioner and the State and on perusal of the records, it would disclose that prosecution had alleged in the charge sheet filed before the trial Court that Accused Nos.1 to 3 were forced to hide themselves in places like Goa and Bombay in connection with recovery of Rs.6,00,000/- alleged to have been looted by them on 13.12.1991 at Udupi and they were being shadowed in their hiding by one Amar Alva and as such, being frustrated on account of such hiding and having felt that as long as Amar Alva is alive, they would not be able to return to their home, Accused No.1 is said to have contacted 5 Accused No.5 who was at Dubai and through one Ballal Raghu at Bombay Accused Nos.1 to 5 hatched a criminal conspiracy to liquidate Amar Alva and in that connection, held series of conversations and Accused No.4 supplied fire-arms and ammunitions and an Ambassador car through Accused No.7 in order to execute their plan and thereafter, Accused Nos.1 to 3 along with Accused No.4 occupied a house at Mangalore and were watching the movements of Amar Alva and thereafter, they were also occupying a lodge near Super Bazar, Mangalore, where said Amar Alva was said to be visiting quite often. It is the further case of the prosecution that in furtherance of their common intention, on 14.07.1992 at about 7.45 p.m., in front of Super Bazar near Milagres Church, Mangalore, Accused Nos.1 to 4 who were possessing fire-arms, fired their gun at Amar Alva and caused his death. It is the further case of the prosecution that in the course of the same incident, Accused Nos.1 to 4 indiscriminately fired bullets on others, viz., Manjunath Shetty, Vijaya Nayak, Kedarnath 6 Shetty, Ramesh Bhat, Sachith Kumar alias Sachu, Sudarshan, Jagannath shetty and Balakrishna Rai who were accompanying the said Amar Alva with an intention to commit their murder also and caused injuries to them.
6. It was also alleged by the prosecution that Accused No.5 had arranged to procure a house in Mangalore for accommodation of Accused No.1 to 5 and Accused No.5 has also supplied them fire-arms with immunitions. It was the specific case of the prosecution that an Ambassador car used by Accused Nos.1 to 4 while executing their plan was supplied through Accused Nos.6 and 7. On completion of investigation, charge-sheet came to be filed. On account of Accused Nos.5 and 6, Ashok Shetty and Udaya Shetty (petitioner herein) having been absconding, split up charge-sheet was filed against them and the proceedings was transferred to long pending cases in LPC No.5/2004. In so far as Accused Nos.1 to 3, proceedings continued against 7 them in S.C.No.122/1992. After full fledged trial, the Principal Sessions Judge and designated Court for Terrorist and Disruptive Activities (Prevention) Act, by Judgment dated 05.11.1996, acquitted Accused Nos.1 to 3 of the offences alleged against them. State being aggrieved by the Judgment dated 05.11.1996, passed in S.C.No.122/1992, preferred an appeal in Criminal Appeal No.90/1997 and it came to be dismissed by Judgment dated 02.06.2004 on account of State having withdrawn the same to file appropriate appeal before the Hon'ble Apex Court. Pursuant to liberty so granted by the Court, State preferred an appeal before the Hon'ble Apex Court in Criminal Appeal No.419/2006, which came to be dismissed by order dated 01.03.2011, on the ground that there was no infirmity in the Judgment passed by the Trial Court acquitting accused Nos.1 to 3. The copies of the order passed by this Court as well as the Apex Court is produced along with a memo filed today and it has been taken on record.
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7. Since Accused Nos.4 and 7 were also absconding and split up charge-sheet having been filed against them, they came to be apprehended and tried in S.C.No.20/1994. Trial Court, after trial, by Judgment dated 30.09.2003, acquitted Accused Nos.4 and 7 also. Learned counsel appearing for the petitioner submits that no appeal is filed against said Judgment and there is no contra material produced or placed before this Court by the prosecution to establish that appeal has been filed against the said Judgment. Thus Judgment passed by the Principal Sessions Judge, Mangalore on 30.09.2003 in S.C.No.29/1994 has reached finality.
8. In this background, when the Judgment rendered in S.C.No.122/1992 and S.C.No.20/1994 is perused along with other charge-sheet material on record, it would disclose that prosecution had alleged that Accused No.5 had supplied fire-arms with immunitions and an Ambassador car to Accused Nos.1 to 4 through Accused No.6-petitioner and 9 Accused No.7 and in order to enable Accused Nos.1 to 4 to execute their evil desire to kill or eliminate Amar Alva. Trial Court has found that prosecution had failed to substantiate this charge and has noticed that except voluntary statement of the co- accused, there were no other witnesses examined by the prosecution in this regard though prosecution had examined 106 witnesses. One of the witnesses who spoke about the present petitioner (Accused No.6) is C.W.68 and he was examined as P.W.5 in S.C.No.20/1994 and he has stated that he was the driver of the Ambassador car bearing Registration No.MMG-6296 which belonged to Accused No.7 and in fact said witness (CW.68) had also turned hostile during the course of trial. Thus, P.W.5 (CW.68) had not supported the case of the prosecution. Judgment rendered in S.C.No.20/1994 would also disclose that the allegation against Accused No.6 and 7 are one and the same and Sessions Court having taken note of these contradictions in the case of the prosecution, arrived at a conclusion that prosecution had failed to 10 prove the guilt of Accused No.7 beyond all reasonable doubt and as such, by Judgment dated 30.09.2003, acquitted Accused No.7 by arriving at a conclusion that none of the prosecution witnesses who had been examined had stated with regard to Accused No.7 parting with his car and thereby, it was held that prosecution had failed to establish the participation of Accused No.7 viz., parting with his car to other accused nor abetted the commission of the offence as alleged by the prosecution.
9. As rightly contended by Mr.Nishith Kumar Shetty, learned counsel appearing for the petitioner- Accused No.6, allegation made against the petitioner- Accused No.6 and Accused No.7 are one and the same, namely, both of them had assisted the accused Nos.1 to 3 in commission of the offence by abetting in the commission of offence by providing an Ambassador car to them. In the light of finding recorded by the Sessions Court in S.C.No.122/1992, by Judgment dated 05.11.1996, acquitting Accused 11 Nos.1 to 3 and Judgment rendered in S.C.No.20/1994 on 30.09.2003, acquitting Accused No.7 wherein the alleged participation of Accused No.7 in abetting the commission of offence came to be considered and held that prosecution had failed to establish the same. In the finding recorded by the Sessions Court in S.C.No.20/1994, it came to be recorded as follows:
"19. As the identity of accused No.4 itself is not established, the question of he possessing any fire arms and using of the same by him and entering into criminal conspiracy with; other accused etc. also does not arise at all. The other witnesses examined by the prosecution as PWs1 to 5 and PW7 have turned hostile to the case of the prosecution. PW7 who is examined only with regard to establish the efforts made by the police to search the accused and he has deposed that in spite of his best efforts he was unable to trace the accused. PW8 has specifically deposed that accused No.4 was not with the assailants who fired at them on that day. With regard to the 12 hatching out conspiracy and further conduct of the accused he has also turned hostile to the case of the prosecution. The prosecution has also tried to rely upon the evidence of PW4 to prove the further conduct of the accused, but his evidence is not helpful to the prosecution.
21. Even with regard to the accused No.7 parting with his car none of the witnesses examined by the prosecution has stated anything with regard to the same. In the foregoing circumstances the prosecution has miserably failed to establish the identity of accused No.4 and also the participation of accused No.7 by parting with his car to the other accused in order to abet the commission of offence and thereby he abetted the commission of offence is also not established by the prosecution. For all these reasons point Nos.2 to 8 are answered in the negative."
10. In the light of above said finding recorded by Sessions Court acquitting Accused No.7 by 13 arriving at a conclusion that witnesses examined by the prosecution having not stated anything with regard to accused No.7 parting with his car to Accused Nos.1 to 3 and prosecution having miserably failed to establish the participation of Accused No.7 in parting with his car to the other accused in order to hold he had abetted in the commission of offence and the earlier Judgment of the Sessions Court rendered in S.C.No.122/1992 dated 05.11.1996 having been confirmed by the Apex Court in Criminal Appeal No.419/2016 by order dated 01.03.2011, this Court is of the considered view that continuation of present proceeding against the petitioner-Accused No.6 who stands on similar footing of accused No.7, since allegation made against Accused No.7 also being same, this Court is of the considered view, that continuation of proceedings is against petitioner- accused No.6 would be an abuse of the process of law and it would not sub-serve the ends of justice. 14
11. Hence, the Court proceeds to pass the following:
ORDER
(i) Criminal Petition is hereby allowed.
(ii) Proceedings pending against petitioner-
Accused No.6 in S.C.No.60/2002 (LPC No.5/2004) registered for the offence punishable under Sections 120-B, 324, 326, 307 and 302 read with Section 34 of IPC and Section 3 read with Sections 25 and 27 of Arms Act and Sections 3(1) read with Section 3(2)(i) and 3(3) and Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987, on the file of Principal Sessions Judge, Mangalore, D.K, is hereby quashed.
(iii) Petitioner is acquitted of the offences punishable under Sections 120-B, 324, 326, 307 and 302 read with Section 34 15 of IPC and Section 3 read with Sections 25 and 27 of Arms Act and Sections 3(1) read with Section 3(2)(i) and 3(3) and Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987.
SD/-
JUDGE bnv*