Karnataka High Court
Mohammad Ashif vs State Of Karnataka on 7 December, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC:44510
CRL.P No. 12052 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 12052 OF 2023
BETWEEN:
MOHAMMAD ASHIF,
S/O. HAMEED,
AGED ABOUT 33 YEARS,
R/At ZHASAR MANZIL, MADHUR,
KASARAGOD, KERALA STATE - 671 124.
...PETITIONER
(BY SRI. LETHIF B, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY MANGALURU NORTH POLICE STATION,
REPRESENTED BY SPP, HIGH COURT BUILDING,
BANGALORE - 560 001.
Digitally signed by B
K
MAHENDRAKUMAR
Location: HIGH
COURT OF
2. MOHAMMED HANEEF,
KARNATAKA
S/O LATE SHEKABBA,
AGED ABOUT 38 YEARS,
BAJAL, KALLAKATTE HOUSE, BAJAL VILLAGE,
MANGALURU TLAUK,
D.K DISTRICT - 575 001.
...RESPONDENTS
(BY SRI. K.NAGESHWARAPPA, HCGP FOR R1).
THIS CRL.P IS FILED UNDER SECTION 482 OF CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
-2-
NC: 2023:KHC:44510
CRL.P No. 12052 of 2023
PETITIONER IN CC..NO.3782/2013 (CR.NO.15/2011) ON THE
FILE OF THE J.M.F.C II COURT MANGALURU FOR THE OFFENCE
P/U/S 143,147,148,109,326,307 R/W 149 OF IPC AND OF
MANGALURU NORHT P.S., D.K., WHICH IS PRODUCED AT
ANNEXURE-A AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is sought to be prosecuted for the
offences punishable under Sections 143, 147, 148, 109,
326,307 read with 149 of IPC. The case of the prosecution is
that the accused Nos.1, 3 and 4 along with accused No.2 and
other four accused, on 01.02.2011, at 5:45 a.m. formed an
unlawful assembly with a common object of committing the riot
and to assault CW-1. In furtherance of the common object, the
said assembly indulged in rioting and accused Nos.1 and 3
along with the other absconding accused No.2, who were
armed with deadly weapons assaulted CW-1, caused bleeding
injuries, one on the hand and one on the head. Therefore,
accused persons assaulted CW-1 with an intention to cause his
death.
NC: 2023:KHC:44510
2. The petitioner/accused No.2 having absconded,
the chargesheet was split up and learned Sessions Judge after
conducted the trial of accused No.1,3 and 4 and appreciating
the evidence in record acquitted the accused herein, since the
eye witnesses turned hostile, including injured witness.
3. The petitioner/accused No.2 is before this Court
to quash the proceedings against the petitioner and maintain
parity.
4. The prosecution to prove its case examined PW-1
to 7 and marked documents at exhibit P1- P11. The eye
witnesses in the incident including the injured witness having
turned hostile, the Trial Court passed the judgment of acquittal.
5. This petition is filed to quash the impugned
proceedings stating that the allegation against the petitioner-
accused No.2 and accused Nos.1 and 3 are similar and the
witnesses to be examined are same.
6. Heard the learned counsel for the petitioner and
learned HCGP for the respondent -State.
7. Perusal of the charge sheet material indicates that
the charges against the accused Nos.1, 2 and 3 are similar and
they are distinct and separate.
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8. It is settled law that when there are no separate
and distinct allegations made against the petitioner herein and
other accused persons, and when other accused persons are
acquitted, it would amount to abuse of the process of law, if the
prosecution is ordered to be continued against the petitioner.
9. In Crl.P.No.6857/2020, the co-ordinate Bench of
this Court has held that the judgment of acquittal of co-accused
would not be admissible within the meaning of Sections 40 to
44 of the Evidence Act and as such, the benefit of acquittal
cannot be extended to the co-accused. However, in the said
case, the decision was rendered in the context that only two
witnesses viz., PWs.1 and 2 who were examined, have not
supported the case of the prosecution, but the eye witnesses to
the incident and other witnesses have not been examined
before the Trial Court.
10. In the instant case, the prosecution has examined
all the charge sheet witnesses, and also marked the documents
which were produced along with the charge sheet, but failed to
prove its case beyond reasonable doubt.
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11. Having regard to the fact that all the prosecution
witnesses were examined and the prosecution having failed to
prove its case beyond reasonable doubt resulting in acquittal of
co-accused, it would be a futile exercise, if the petitioner is
subjected to trial since the probability of his conviction is
remote and bleak. So as to prevent the abuse of process of law
and to maintain parity, it would be appropriated to quash the
impugned proceedings. Accordingly, I pass the following:
ORDER
i. Accordingly criminal petition is allowed.
ii. Impugned proceedings in CC
No.3782/2013 on the file of JMFC II Court Mangaluru,
stands quashed and the petitioner is acquitted of the
offences alleged against him.
Sd/-
JUDGE
NJ
