Kunal vs The State Of Karnataka And Anr
2021 Latest Caselaw 7010 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 22ND DAY OF DECEMBER 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE H.P.SANDESH

  CRIMINAL REVISION PETITION No.200092/2021


BETWEEN

KUNAL S/O BHASKAR RITHAPURE,
AGE: 31 YEARS, OCC: SOFTWARE ENGINEER,
PUNE, R/O. MANGAROLA NOW AT MADHURI
NIVAS, BEHIND DATT MANDIR,
OLD AWSA ROAD,
LATUR-413512.
(MAHARASHTRA STATE)

                                            ...PETITIONER

(By Sri SANJAY A. PATIL, ADVOCATE)

AND

1. THE STATE OF KARNATAKA
   THROUGH POLICE,
   BASAVAKALYAN TOWN POLICE
   STATION, TQ. BASAVAKALYAN,
   DIST: BIDAR-585401.
   REP. BY ADDL. STATE PUBLIC PROSECUTOR,
   HIGH COURT OF KARNATAKA,
   KALABURAGI BENCH-585107.

2. ANGADRAO S/O GUNDERAO JAGTAP,
   AGE: 68 YEARS, OCC: AGRICULTURE,
   R/O SHIVAJI NAGAR, BASAVAKALYAN,
                             2




  TQ.BASAVAKALYAN,
  DIST: BIDAR-585401.

                                           ...RESPONDENTS

(By Sri GURURAJ V. HASILKAR, HCGP R1;
SRI. ANIL KUMAR NAVADAGI, ADVOCATE FOR R2)

      THIS CRL.RP IS FILED U/S 397 R/W SEC.401 OF CR.P.C
PRAYING TO a) CALL FOR THE TRIAL COURT RECORDS b)
ALLOW THE CRIMINAL REVISION PETITION, THEREBY SETTING
ASIDE THE IMPUGNED ORDER DATED 09.08.2021 PASSED BY
THE COURT OF II ADDL. DISTRICT AND SESSIONS JUDGE,
BIDAR SITTING AT BASAVAKALYAN IN S.C.NO.18/2020 ON ITS
FILE AND CONSEQUENTLY DISCHARGE THE PETITIONER IN
S.C.NO.18/2020.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                        ORDER

This petition is filed under Section 397 read with

Section 401 of Cr.P.C., praying to set aside the impugned

order dated 09.08.2021 passed by the Court of II

Additional District and Sessions Judge, Bidar sitting at

Basavakalyan in S.C.No.18/2020 on its file and

consequently discharge the petitioner in S.C.No.18/2020.

2. Heard the learned counsel appearing for the

revision petitioner, learned High Court Government Pleader

appearing for respondent No.1-State and the learned

counsel appearing for respondent No.2.

3. The factual matrix of the case is that this

petitioner is the husband of the victim and a complaint was

filed by the father of the victim when his daughter

committed suicide in her house. Based on the complaint,

the police have investigated the matter and filed the

charge sheet against this petitioner as well as other

accused for the offences punishable under Sections 498A,

304B read with Section 34 of IPC and Sections 3 & 4 of the

D.P.Act. This petitioner was absconded. Hence, a split-up

charge sheet has been registered against this petitioner.

Other accused Nos.2 to 4 have faced the trial in

S.C.No.220/2016. The prosecution witnesses have not

supported the case of the prosecution. Hence, accused

Nos.2 to 4 have been acquitted. After securing this

petitioner in S.C.No.18/2020, this petitioner filed an

application under Section 227 of Cr.P.C., seeking for

discharge and the trial Judge vide order dated 09.08.2021

rejected the application in coming to the conclusion that

this petitioner is the main accused and an allegation

against the other accused is that they are supporting

accused No.1 for the alleged offences and further held that

the Hon'ble Supreme Court of India held that if the

evidence which the prosecutor proposes to adduce to

prove the guilt of the accused even if fully accepted before

it is challenged in cross-examination or rebutted by the

defence evidence, if any, can not show that the accused

committed the offence, then there will be no sufficient

ground for proceeding with the trial. Under these

circumstances he cannot claim any discharge. Hence, the

present revision petition is filed before this Court.

4. The learned counsel appearing for the revision

petitioner would submit that the trial Judge has committed

an error in rejecting the discharge application and the

learned counsel also vehemently contend that all the

material witnesses have given a goby evidence in

prosecution case in S.C.No.220/2016 and the same set of

evidence would be applicable to the present petition and

which would result in acquittal and no purpose would be

served in subjecting this petitioner for trial. The allegation

made against this petitioner and also the allegations made

against the other accused, who have faced the trial is one

and the same. Hence, it requires an interference of this

Court and to set aside the order dated 09.08.2021.

5. Per contra, learned counsel appearing for

respondent No.2 would submit that the Apex Court in the

case of Rajan Rai v. State of Bihar reported in (2006) 1

SCC 191, held that the previous judgments when not

relevant - Judgment of acquittal of co-accused rendered in

earlier trial arising out of same transaction, held that, was

wholly irrelevant in the case of the present accused who

was tried separately - The said judgment was not

admissible under Ss. 40 to 44 - Case of acquitted co-

accused was decided on the basis of evidence led there

while the case of the present accused had to be decided

only on the basis of evidence to be adduced during the

course of his trial.

6. The learned counsel also would submit that

this Court in Criminal Petition No.6857/2020,

D.D.24.03.2021, taken note of the principles laid down in

the judgment referred supra and also considered the other

judgments and a detailed order has been passed even

extracting Sections 40-44 of the Evidence Act and so also

the Full Bench judgment of Kerala High Court in the case

of Moosa v. Sub Inspector of Police reported in (2006)

2 CCR 445. Apart from considered the judgment of the

Apex Court in the case of Umesh v. State of Kerala

reported in (2017) 3 SCC 112, so also the judgment of

Yanob Sheikh alias Gagu v. State of West Bengal

reported in (2013) 6 SCC 428, extracted paragraph

Nos.23 and 26 of the said judgment and so also the Apex

Court in the judgment held that the earlier judgment is not

relevant and comes to the conclusion that based on the

earlier evidence cannot quash the petition and given an

opportunity to seek for an order of discharge. The learned

counsel also would submit that the material evidence

which has been lead before the earlier Sessions Case

cannot be considered and those evidence is recorded in the

absence of this petitioner.

7. The learned High Court Government Pleader

appearing for respondent No.1-State would submit that

though the petitioner has sought for discharge and the

material against this petitioner is different from accused

Nos.2 to 4 and this accused is the main accused and the

specific allegations are made against this accused

subjecting her for cruelty.

8. Having heard the learned counsel appearing

for the revision petitioner, learned High Court Government

Pleader appearing for respondent No.1-State and the

learned counsel appearing for respondent No.2 and also

considering the material on record, no doubt, the

prosecution witnesses, who have been examined before

the Trial Court have not supported the case of the

prosecution, when accused Nos.2 to 4 have faced the trial.

It is important to note that the said evidence was recorded

in the absence of this accused and the material also

discloses that this accused was absconded and this

accused is the main accused, who is the husband of the

victim and specific allegations are made against this

petitioner that he subjected her for cruelty and an offence

punishable under Section 498A invoked. Apart from that

Sections 3 and 4 of the D.P.Act, are also invoked. When

the evidence was led in the absence of this accused and

the said evidence cannot be considered as an evidence and

the same is not admissible.

9. The Apex Court in Rajan Rai's case (supra),

categorically held that the previous judgment of acquittal

is irrelevant considering Sections 40 to 44 of the Evidence

Act and also held that the earlier said judgment was also

not admissible. When such being the facts and

circumstances of the case and no doubt, an application

already filed before the Trial Court for discharge and the

Sessions Judge while rejecting the application also given

the reasons that the petitioner cannot seek for discharge

and apart from that while rejecting the application also an

observation is made that this accused is the main accused,

who is the husband of the victim and subjected her for

both mental and physical harassment as well as the dowry

harassment. When such being the factual aspects of the

case and also the Apex Court in detail discussed the

admissibility of earlier evidence and the judgment of

acquittal, the same cannot be a basis for discharge the

accused. Hence, I do not find any merit in the petition to

set aside the order passed by the Sessions Judge and the

matter requires to be tried and the evidence has to be led

as against this petitioner by the prosecution. Hence, I do

not find any merit to exercise the revisional powers to set

aside the order based on the earlier evidence recorded in

the absence of this petitioner.

10. In view of the discussions made above, I pass

the following:

ORDER

The petition is dismissed.

In view of dismissal of the main petition, I.As, if any,

do not survive for consideration and the same stand

disposed of.

Sd/-

JUDGE

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