Narayana vs State Of Karnataka
2022 Latest Caselaw 9977 Kant

                          1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 30TH DAY OF JUNE, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.5841/2020

BETWEEN

NARAYANA
@ THAMATE NARAYANA
S/O MUNIVENKATAPPA
AGED ABOUT 50 YEARS,
R/AT ROJIPURA, 4TH WARD
DODDABALLAPURA TOWN-561203
                                              ... PETITIONER

[BY SRI. ADVOCATE]


AND

1.    STATE OF KARNATAKA
      BY DODDABALLAPURA TOWN P S
      REPRESENTED BY
      SPP HIGH COURT OF KARNATAKA
      BENGALURU-560001

2.    R. SATEESH
      S/O. LATE RAMAKRISHNAPPA
      AGED ABOUT 21 YEARS,
      SCHEDULED CASTE
      PLUMBING WORK
      R/AT KCHERIPALYA
      DODDABALLAPURA TOWN - 561203
                                         ... RESPONDENTS
                                  2



[BY SMT. K.P. YASHODHA, HCGP FOR R1;
    V/O DATED 20/01/2022, R2 IS DEAD]

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.   PRAYING    TO   QUASH     THE   PROCEEDINGS   IN
S.C.NO.10034/2019 REGISTERED ON THE BASIS OF THE CHARGE
SHEET     FILED   IN    CR.NO.103/2011    OF   RESPONDENT
DODDABALLAPURA TOWN POLICE FOR OFFENCE P/U/S.302 R/W
SEC.34 OF IPC, WHICH IS PENDING ON THE FILE OF THE HONBLE
IV   ADDITIONAL   DISTRICT    AND    SESSIONS  JUDGE,   AT
DODDABALLPURA BENGALURU RURAL DISTRICT.

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

                                ORDER

The petitioner - accused No.1 is before this Court calling in

question proceedings in S.C.No.10034/2019 arising out of Crime

No.103/2011 for offence punishable under Sections 302 and 34

of the IPC.

2. Brief facts leading to the filing of present petition, as

borne out from the pleadings, are as follows:

On 13.09.2011, a complaint is registered in Crime

No.103/2011 against unknown persons for offence punishable

under Section 302 of the IPC. The police after investigation have

filed a charge sheet implicating the petitioner along with others

as accused Nos.1 to 4. The concerned Court, by its order dated

20.04.2013, acquits accused Nos.2 to 4 for want of evidence,

which the prosecution ought to have proved beyond all

reasonable doubt. The reasons rendered by the learned Sessions

Judge in S.C.No.88/2012 reads as follows:

" REASONS

8 . Point No - 1 : The burden of proving that this point is lies on the prosecution . To prove the said point the prosecution has examined 11 witnesses as Pwl to PW11 and got marked 7 document as per Ex.pl to p7 and one material object i.e. , one Muffler is marked as M.O. No-1. The prosecution has to prove that on 13/09/2011 at about 11.p.m., the accused persons paid a sum of Rs.200- to one Narasamma to mingle with her under Eechalu Tree situated at Sahajananda Nagar in Sy.No.67/1, belonging to Prabhavathi W/o . Dayashankar and the said Narasamma refused for the same to mingle with the accused persons and she return the said money and at that time accused No.2 Moula S/o.

Sanna Ulla , A3 Muniyappa S/o. late Hanumaiah were hold the legs of said Narasamma tightly, accused No.4 Dhananajaya S/o. Narasegowda

caught hold of her tuft and Al Narayana tied the muffler to her neck and killed her and committed the alleged offence and charge sheet has been filed against A1 to A4 and A1 is shown as absconded .

9. To prove the prosecution case the prosecution has examined the complainant by name Sathish as PW1 and who is none other than the one of the son of deceased Narasamma, the another son of Narasamma by name Lingaraju has been examined as Pw5, the two Mete persons who were seen the deceased before her death i.e., one Shivanna and Venkatesh are examined as Pw2 and Pw7, one Srinivas, Krishnaiah, N. Narasimaiah are examined as Pw3, 4 and 6 respectively to support Ex.p2 inquest mahazar on the dead body of Narasamma , The medical officer who conducted Post mortem on the dead body of Narasamma by name Dr. Ravishankar has examined as Pw9 and one Udaya Raj has been examined as Pw8 who apprehended the accused No.2 to 4 and the prosecution has also examined one of the PSI by name T.B. Shivakumar who conducted part investigation has been examined as Pw10.

10. Pw1 and 5, deposed in their evidence that , one Ramakrishnappa is their father and he died about 10years back, thereafter they were living along with their mother and their mother use to go to Cooli work and return in the evening . On the date of the alleged incident their mother went to Cooli work and she did not return to home and on the next day morning police came to their House. Pw1 has further deposed that they enquired about Narasamma and told that she was died near Venkateshwara Bar and asked them to identify the dead body and Pw5 has further deposed that the police told that one dead body laying near Venkateshwara Bar and come and identify the same . Pw1 and Pw5 and others went to the spot and identify the said body and it is of their mother. Pw1 further deposed that a legature mark was found near the neck of his mother and their mother was shifted to Post mortem and he has lodged complaint as per Ex.pl in that regard . Pw5 further deposed that some of the persons killed their mother by dropping stone on her head and blood was scattered and blood stains were also found on the stone and the cloths were not found on the dead body . On perusal of the evidence of Pw1 and

Pw5 their evidence are contradicted to each other as Pw1 has not at all stated in his evidence that some persons were killed her mother by dropping stone on her head, and the blood was scattered and blood stains were also found on the stone and Pw5 has not at all stated in his evidence that a ligature mark was found near the neck of their mother and the prosecution has not produced the said stone before the court and there is a doubt arise whether the deceased was killed by using Muffler as per the prosecution case and so also there is a doubt arise whether she was killed by dropping stone on the head of said Narasamma. Further on perusal of Ex.pl complaint the said complaint is also contradicted to the evidence of Pw1 and Pw5. The prosecution has cross examined Pw1 and Pw5 by treating hostile and inspite of that nothing is elicited that Pw1 has given complaint stating that after the death of their father their mother was doing Cooli work and in recent days she went out of the house for 2 to 3 days and himself and his brother were searching her and bring her to house and on 13/09/2011 her mother went out of the house and she did not return to the house and they taught that as usual she went out

of the house and on 14/09/2011, while he was searching his mother at Doddaballapur town and at that time number of persons were gathered, half Kilometer away from Venkateshwara Bar and Restaurant, in the land of Dayashankar and he went there and he saw his mother's dead body and he found wound on her neck and her mother has been killed by some Culprits and accordingly he has given complaint before the police. Pw1 in his cross examination by the défense side has admitted that one of his elder aunt son by name Lokesh written the said complaint and he did not know what are all written in the said complaint . Pw5 has denied in his cross examination that due to the death of their father her mother was not in a good status and her mother use to go out of the house for 2 to 3 days and they searched and bringing back to the house and one Lokesh was written the said Ex.pl and he did not know what are all written in his statement given at the time of Inquest mahazar. Hence under these circumstances as discussed above the evidence of Pw1 and Pw5 are not at all supported to the prosecution case .

11 . The prosecution has examined two witnesses as Pw2 and Pw7 who alleged to be saw the deceased Narasamma before her death. Pw2 has deposed in his evidence that he did not know the deceased Narasamma of Kacheripalya and so also Pw1 and he has not seen Al to A4 anywhere and he has not seen that the said Narasamma went along with the said accused persons and he did not know anything about the facts of the case and the police did not enquire him about the alleged incident and he has not given any statement before the police. Pw7 has also deposed in his evidence that he know Pw2 and he has not seen accused No. 1 to 4 and so also he did not know one Narasamma and so also he did not know anything about the case and the police did not record his statement and he has not stated anything before the police . The prosecution has cross examined Pw2 and Pw7 by treating hostile and inspite of that nothing is elicited that on the date of the alleged incident at about 10.00p.m. when they were standing near Venkateshwara Bar and Restaurant and at that time accused No.2 to 4 and another accused persons went inside the Bar and after sometime the said Narasamma also went to the said Bar and

after 10minutes all the said persons and Narasamma came out of the Bar and the said Persons took the said Narasamma towards Sahajananda Nagar and on the next day people were talking that one lady was murdered near the land of Dayashankar and they went there and saw the dead body of Narasamma laying under Eechalu tree and they came to know that the accused were killed her and accordingly they were given statement as per Ex.p2 and Ex.p4 respectively . Pw2 and Pw7 were also denied that inspite of knowing the contents of their statement they are deposing false evidence before the court, hence the evidence of Pw2 and Pw7 were not at all helpful for the prosecution to support their case.

12. The prosecution has also examined 3 witnesses to support inquest mahazar on the dead body of the Narasamma as Pw3,4 and 6. Pw3 has deposed that Pw1 asked him to come over to Govt. Hospital as his mother was dead and he went there and at that time the police took his signature to Ex.p3 and he did not know the contents of Ex.p3. Pw4 and Pw6 were deposed in their evidence that they put their signature to Ex.p3 at the police station and

they did not know its contents. The prosecution has cross examined Pw3, 4 and 6 by treating hostile and inspite of that nothing is elicited from their mouth that the police came near the land of Dayashankar where the dead body was found and drew the mahazar in their presence as per Ex.p3 and took their signature at the said place and they also denied that inspite of knowing the contents of Ex.p3 they are deposing false evidence, hence the evidence of Pw3,4 and 6 were also not helpful for the prosecution to support Ex.p3.

13. The prosecution has also examined Medical Officer as Pw9 who has issued PM Report as per Ex.p5 and so also the prosecution has examined one of the Police constable as Pw8 who apprehended A2 to 4 and produced before their PSI and one Sub Inspector of police who conducted part investigation as Pw10 . Pw10 received the written complaint lodged by the complainant as per Ex.pl and registered the case U/s. 302 of IPC and he has handed over the further investigation to CPI and on his direction deputed the constables to trace the culprits and the said constables produced A2 to 4 before him and he recorded voluntary statement of

A2 to A4. On the voluntary statement of A4 they took accused along with witnesses to T.B. Circle towards Gowribidanur road and accused searched neae Roji beli bush and produced one Muffler M.O No.1 and he seized the same and drew mahazar as per Ex.p7 and he has produced the said accused 2 to 4 before concerned Magistrate. The evidence of Pw8 to Pw10 are goes in vain as the evidence of Pw1 to Pw7 are not supported to the case of the prosecution. Further it is relevant to state here that Pw5 in his evidence as deposed that blood stains was scattered at the spot and also blood stains were also found on the stone but the prosecution has not produced the said blood stain stone before the court and there is a doubt arise whether M.O NO.1 is used for the alleged incident. Hence the evidence of Pw 10 is also goes in vain.

14. Hence under these circumstances as discussed above the evidence of Pw1 to Pw10 are not at all supported to the prosecution case and the prosecution has miserably failed to prove the guilt on the part of the accused for the alleged offence U/s. 302 of IPC and accordingly i answer this point is in the Negative.

15. Point No - 2 : In view of my findings on point No-1 and the discussions made there on the prosecution has miserably fail to bring home the guilt on the part of the accused No.2 to Accused No.4 and accordingly i proceed to pass the following ORDER The A2 to A4 are not found guilty for the offence punishable U s . 302 of IPC and are adre consequently the accused are acquitted U/s. 235(1) of Crpc.

The A2 to A4 are ordered to be released forthwith.

M.O No-1 i.e, Muffler is worthless and ordered to be destroyed after appeal period is over ."

3. The reasons rendered by the learned Sessions Judge

is that the prosecution has not been able to prove that the

accused were guilty of the offences. The allegation against

accused Nos.2 to 4 are similar to one that is alleged against

accused No.1. Therefore, no further evidence can lead to

conviction of the petitioner, if further proceedings are permitted

to continue on the split charge sheet. Therefore, in the light of

the acquittal of accused Nos.2 to 4 for the offence of Section 302

of the IPC for the reasons rendered by the learned Sessions

Judge would enure to the benefit of the petitioner, who is

accused No.1, who is alleged of the very same offence as that of

accused Nos.2 to 4.

4. A Co-ordinate Bench of this Court considers a case of

identical circumstances and identical set of facts, has held as

follows:

"12. Having heard the learned Advocates appearing for parties and on perusal of records it 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

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 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 only 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 when 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.

16. 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 should 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.

(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."

(emphasis supplied)

5. In the light of there being no evidence against any of

the accused and the split up charge against the petitioner now

being tried before the learned Sessions Judge would result in an

empty formality cannot be permitted to continue, as it would be

an exercise in futility. In the teeth of there being no evidence or a

specific charge against this petitioner, that which was not

charged against others, I deem it appropriate to obliterate the

proceedings against the petitioner.

6. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. Proceedings pending in S.C.No.10034/2019

before the IV Additional District and Sessions

Judge, Doddaballapura, stand quashed qua the

petitioner.

Sd/-

JUDGE

SJK