Kumari Manisha D/O Bhajansingh ... vs The State Of Karnataka
2022 Latest Caselaw 1642 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 3RD DAY OF FEBRUARY 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

                  CRL.P NO 102537 OF 2021

BETWEEN
KUMARI MANISHA D/O BHAJANSINGH RAJAPUT
AGED ABOUT 16 YEARS,OCC. NIL,
R/O. BILORI,DIST JABALPUR,
STATE. MADHYAPRADESH
SINCE MINOR REPRESENTED BY HER GUARDIAN
AND NEXT FRIEND HER BROTHER
SRI. OMAD LAL PARADHI S/O MINTAR SINGH
AGED ABOUT 22 YEARS,R/O MAHUWAKHEDA,
POST ROHANIYA THASIL,SHAHNAGAR,
MAHUWA KHEDA,PANNA AMA, MADHYAPRADESH-488448
                                           ...PETITIONER
(BY SRI.T M NADAF, ADV.,)

AND
THE STATE OF KARNATAKA
BY RFO DHARWAD RANGE,
DHARWAD.REPT BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,DHARWD BENCH
                                            ...RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)

      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS IN SPL.S.C. NO.50/2019
PENDING ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS
AND SPECIAL JUDGE AND CHILDREN COURT, DHARWAD AND TO
QUASH THE ENTIRE PROCEEDINGS IN SPL.S.C. NO.50/2019,
PENDING ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS
AND SPECIAL JUDGE AND CHILDREN COURT, DHARWAD, FOR THE
OFFENCES PUNISHABLE U/S 84, 86, 87, 73(D), 24(C), 24(E) OF
KARNATAKA FOREST ACT 1969 AND SECTION 379, 423 OF IPC AND
RULES 144, 165 OF KARNATAKA FOREST RULES 1969 AGAINST THE
PETITIONER HEREIN.
                                   2




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

                             ORDER

1. Petitioner is before this Court calling in question the

proceedings in Spl.S.C.No.50/2019 for the offences

punishable under Sections 84, 86, 87, 73(D), 24(C), 24(E) of

Karnataka Forest Act, 1969 and Sections 379, 423 of IPC and

Rules 144, 165 of Karnataka Forest Rules, 1969

2. Heard Sri.T.M.Nadaf, learned counsel for the

petitioner and Sri.Ramesh Chigari, learned HCGP for the

respondent-State.

3. This court on hearing both the parties had granted

interim order of stay of further proceedings against the

petitioner on 03-01-2022 in the light of the order passed in

Criminal Appeal 100123/2020 disposed of on 2/2/2021 and

Criminal Appeal No. 100162/2021 disposed of on 4/8/2021.

Those were the appeals filed by other accused in the very

incident of the crime, but against the order of conviction. This

court in the aforesaid criminal appeals has acquitted all the

accused involved in the very offences arising out of the same

incident. The petitioner is a juvenile, who is also picked up

from the place where the other accused were found and

alleged to have committed the offences punishable under the

aforesaid provisions of the Karnataka Forest Act, 1963.

4. Since, all the other accused are already acquitted by

the orders of this court, continuing proceedings against the

petitioner would without doubt lead to miscarriage of justice.

In the aforenarrated facts, it is apposite to refer the

judgment of this court in Criminal Petition No.7261 of 2010,

disposed of on 29/6/2010, wherein this Court has held as

follows:

2. The prosecution case is based on the

report of Mahadevi submitted on 24.12.2008 at

the complainant Police Station, in which she

alleged that her husband Shivappa had dispute

with his four brothers namely, Yallappa, Gopal,

Mallu and Shekhappa. All were residing together

and availed loan for installation of pipeline to the

agricultural land. The dispute arose between

Shivappa and others for division of property and

hence they are living separately. However,

Shivappa (since deceased) demanded share in the

property and contribution for pre-payment of

loan. The brothers did not agree. They were

waiting for opportunity to kill him. On

23.12.2008 during jatra of Dyammawwa in the

village, Shivappa and his family members left

their house and were watching drama. At that

time, as the children were feeling sleepy, the

complainant Mahadevi and her husband

Shivappa went towards the house to leave the

children. While they were on the way, Mahadevi

noticed her husband's brothers (accused herein)

were following them. Thereafter, Shivappa also

suspected they would harm the family and asked

Mahadevi to take the children home and ran away

from the place. As he was running, the accused

followed Shivappa. Meanwhile, the complainant

and her daughter took shelter near a shed

belonging to Mr. Parappa Badiger. From the said

place they saw the accused assaulting Shivappa,

consequent to which he suffered injuries. The

complainant being scared returned home and

waited for the whole night. Next day she went to

the spot and saw her husband was dead. On that

basis complaint was lodged and the brothers were

arraigned as accused Nos. 1 to 4. Petitioner was

the 4th accused. The case was committed to the

Court of Sessions in S.C.No.50/2009 and three

accused were put to trial. Petitioner was

absconding.

3. During the trial, the prosecution

examined 8 witnesses and placed reliance on 19

documents and 19 material objects. However,

during the trial, Mahadevi - PW1 - complainant,

her daughter Bayakka - PW2 turned hostile.

They retracted from their statements that accused

No.1 to 4 together killed Shivappa.

4. The learned trial Judge found no

incriminating aspects in the evidence of all the six

witnesses and acquitted three accused namely,

Yallappa, Gopal and Mallappa. However, as the

petitioner was absconding, charge was spilt and

case in C.C.No.257/2009 is pending committal

proceedings. He now seeks to quash the

proceedings on the ground that there is no

material to proceed against him and if the

witnesses are examined, they may repeat the

same version.

5. Sri. Dilip Kumar, the learned Govt.

Pleader representing the State does not dispute

that accused No.1 to 3, who were facing the

charge on the same allegations as the petitioner,

are granted acquittal in the trial by the Sessions

Judge in S.C.No.50/2009. Copy of the judgment

dated 26.09.2009 is also produced.

6. I have also gone through the evidence of

PW1 - Mahadevi and PW2 - Bayakka. Both are

alleged to be eye witnesses, but have totally

retracted from their earlier version. They have

given a clean chit to the accused No.1 to 3 and

absolved them of all the allegations. This has

resulted in the acquittal. The petitioner is now

facing charge in split up case C.C.No.257/2009.

Undoubtedly, on committal, he will have to be

subjected to trial. Legally speaking, there is no

impediment to conduct the trial against him. But

the question is whether worth purpose will be

served. This is because PW1 and PW2 having

deposed in favour of accused Nos.1 to 3 in

S.C.No.50/2009, may repeat the same version.

Even if they change their version and indict the

petitioner as the assailant of Shivappa, in such

case also, it will be difficult to accept their

version, because there will be two versions, one in

favour of the prosecution and one in favour of the

accused. Besides, if they were to tender such

evidence giving version different from what they

have already given in S.C. No.50/2009, then

undoubtedly they will be exposing themselves to

perjury because which of the statement is true

becomes immaterial. The very fact that there will

be two versions will expose them to action.

7. I am sure that the witnesses may not

attempt such course. In the result, if the trial is

conducted it will be only a formal trial and the

very object of the trial will be lost. Being of this

view, I am satisfied that the proceedings, if

allowed to culminate in trial, the result will be

against the prosecution. Being of this view, to

avoid waste of time and money of the State, the

best course will be to give quietus to this petition.

and Criminal Petition No.3849 of 2010, disposed of on

3/1/2011 wherein this court has held as follows:

"2. The petitioner's grievance is that, he and 14 other accused persons were the accused in Cr.No.224/1999 in respect of the offences punishable under sections 143, 147, 148, 323, 324, 326, 504, 506, 307 r/w 149 of IPC and the case against the accused persons other than the

present petitioner was taken up for trial in S.C.No.44/03 and the accused persons in the said case were all acquitted on the ground that the material witnesses for the prosecution had turned hostile and the judgment of acquittal therefore was the result.

3. Referring to the aforesaid judgment in the Sessions Case No.44/03, submission now made is that, no purpose would be served in putting the present petitioner also on trial as the evidence is the same that led to the acquittal of all the other accused persons. Merely because a split up charge sheet is now filed against the present petitioner, no purpose would be served in permitting the proceedings to go on against the petitioner when the case ended in acquittal in respect of other accused persons.

4. Above submission is also not seriously controverted by the learned Government Pleader and on a perusal of the judgment of the Sessions court in S.C No.44/03 rendered on 09.08.2005, it is apparent that the Sessions Court acquitted all the accused persons of the offences mainly on the ground of material witnesses including the complainant having turned hostile and none of

them have supported the prosecution case except the two doctors.

5. In the light of the order of acquittal being passed by the trial court, following the complainant and other witnesses turning hostile. I see no purpose in the case being proceeded with as against the present petitioner and therefore the proceedings in question are liable to the quashed in the interest of justice.

6. In the result, the petition is allowed and the proceedings which are against this petitioner in Cr.No.224/99 (C.C No.205/07) pending on the file of the learned Civil Jude (Jr.Dn.) & JMFC, Srinivasapaura, are quashed."

5. In the light of the aforequoted facts and the judgment

rendered by the co-ordinate bench of this court, I deem it

appropriate to obliterate the proceedings against the

petitioner in Spl.SC.No.50/2019 pending before the II Addl.

District and Sessions & Special Judge, Dharwad.

6. For the aforesaid reasons the following:

ORDER

The criminal petition is allowed. The proceedings

in Spl.SC.No.50/2019 pending before the II Addl.

District and Sessions & Special Judge, Dharwad

stands quashed qua the petitioner.

SD JUDGE Vb/-

Crl.P No.102537/2021 MNPJ 15.02.2022 'ORDER ON BEING SPOKEN TO'

This Court by an order dated 03.02.2022 disposed the

Criminal Petition by following order:

(i) The criminal petition is allowed.

(ii) The proceedings in Spl.SC.No.50/2019 pending before the II Addl. District and Sessions & Special Judge, Dharwad stands quashed qua the petitioner.

While passing the said order, the petitioner being in

custody was not noticed. Therefore, the Sneha Education

and Development Society (R) Swadhar, Gruh, Shivanand

Nagar, Navanagar, Hubballi-580 025 is directed to release

the petitioner if in custody as on date forthwith.

Registry is directed to communicate this order to the

aforesaid.

SD JUDGE ckk