Indian Kanoon - Search engine for Indian Law

3. Based upon the complaint filed by second respondent/complainant namely Jaya @ Kutti as per Ex.P1 on 11.01.2009, the respondent police registered a case in Crime No.6/2009 against unknown miscreants as per FIR Ex.P.24. It is averred in the complaint that PW.1

- Jaya @ Kutti was resident of Jalligudde house, Moorukaveri village of Mangaluru Taluk and by avocation he was a lorry driver. He was at his residence on 11.1.2009 as it was Sunday. In the night at around 9.15 P.M., PW.6 - Rohit who was a neighbouring resident came to the front-yard of his house and informed that somebody had fallen near Jalligudde of Moorukaveri having met with an accident. It is alleged that said person was one Mohan Ranya who was working as Mason. In the complaint he has stated that he has suspected that while the deceased was walking towards his house from Moorukaveri in the night at around 9.15 p.m. some unknown miscreants had committed the murder with deadly weapons on the vital parts of his body. On the same night on 11.1.2009, on receipt of information, PW.25/PSI visited the spot and received the complaint as per Ex.P1 and registered FIR as per Ex.P24 for the offence punishable under Section 302 r/w 34 of IPC. During the course of investigation accused No.1 was arrested after a lapse of four years based on the statement made one Maduru Yusuf @ Yusuf on 09.12.2010 who was accused in some other crime and voluntary statements came to be recorded. Subsequent to thorough investigation made by the IO, charge sheet came to be laid against the accused persons in C.C.No.37/2014 and petitioner who was arraigned as Accused No.2 was shown as absconding. Accordingly, split up charge sheet was laid against accused No.2 in C.C.No.65/2014.

11. Having regard to these strenuous contentions as taken by learned counsel for the petitioner and so also, counter made by learned HCGP, based upon the split up charge sheet laid by the IO in C.C.No.65/2014 akin to S.C.No.6/2017, the court has to see whether the petitioner who is arraigned as Accused No.2 has made out any justifiable grounds for quashing the entire criminal proceedings initiated against him.

12. There is no dispute about the fact that the split up charge sheet has been laid against this petitioner in C.C.No.65/2014. This petitioner is arraigned as accused No.2, but the case against co-accused No.1 in S.C.No.19/2014 has ended acquittal as wherein the prosecution had subjected to examine in all PWs. 1 to 30 and got marked Exs.P1 to P.30 and M.O.1 to 8. But it is relevant to refer to Ex.P1 which is the complaint. To prove the facts in complaint, PW.1 has been subjected to examine and photos of deceased are marked as Ex.P4. The inquest held over dead body has been marked as Ex.P9. Ex.P15 is the spot mahazar conducted in the presence of panch witnesses. The FSL report is marked at Ex.P17 and 19. This accused is arraigned as accused No.2 in a split up charge sheet and only on the basis of the statement made by co-accused No.1, he has been implicated in the crime. But it is a weak piece of evidence and also inadmissible under Section 27 of the Indian Evidence Act as contended by learned counsel for the petitioner. In support of his contention, petitioner's counsel has placed certain reliance on the judgments of this Court reported in ILR 2005 KAR 1822 (The State of Karnataka v/s K.C.Narasegowda); Crl.P.No.1422/2019 disposed on 14.10.2020 (Mohammed Sharief @ Khasim v/s The State of Karnataka and another);

20. PW.14 is the Scientific Officer who subjected the properties M.O.1 to M.O.5 to chemical examination and issued serology report as per Ex.P20 and also FSL report as per Ex.P21 with regard to chemical examination of M.O.8 - Chopper. Similarly, PW.12, the scientific officer has examined certain properties and issued FSL report as per Ex.P17. PW.29 is the Police Inspector of Mulki Police Station who visited the house of the relatives of Accused No.1 and apprehended him and recorded his voluntary statement as per Ex.P26 and also drew the spot mahazar as per Ex.P15 in the presence of panch witnesses. The IO completed the entire investigation in crime No.06/2009 and laid charge sheet against the accused No.1 before the committal court in C.C.No.37/2014. Since this petitioner/accused No.2 was absconding a split up charge sheet came to be laid in C.C.No.65/2014 wherein this accused was apprehended after lapse of 7 years and put on trial in S.C.No.6/2017 for the offences as reflected in the FIR.

22. Whereas this petitioner is arraigned as accused No.2 in C.C.No.65/2014 arising out of Crime No.06/2009 of Mulki police station. The incident as narrated in the split up charge sheet laid against this accused and so also, the charge sheet laid against accused No.1 appears to be on similar footing. When the prosecution has failed to establish the guilt of the co-accused No.1 and he is acquitted of the charges leveled against him, the same benefit of acquittal has to be extended to the present petitioner/accused No.2 who is required to be facing of trial in S.C.No.06/2017. Though the trial has to be proceeded against this petitioner, but it is only an empty formalities for the disposal of the case because there is no strong reason to hold that this petitioner has to be tried once again for the same offences on the basis of the same evidence on which the co-accused No.1 who stands on the same footing is already acquitted by the trial Court in S.C.No.19/2014. Therefore, inference could be drawn even on the observation made in S.C.No.19/2014 and similarly in S.C.No.06/2017. If at all this petitioner/accused No.2 was also available to the trial Court, the Court has to see whether on the basis of such evidence, the Court could have convicted him and if the answer is in negative, the benefit of acquittal judgment rendered by the trial Court has to be extended to this petitioner who is required to be facing of trial in a split up charge sheet in C.C.No.65/2014.