Karnataka High Court

Mr. Mohammed Ansar @ Antu vs The State Of Karnataka on 13 July, 2023

Bench: M.Nagaprasanna

                                           -1-
                                                 NC: 2023:KHC:24235
                                                 CRL.P No. 2747 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 13TH DAY OF JULY, 2023

                                       BEFORE
                     THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        CRIMINAL PETITION NO. 2747 OF 2022


              BETWEEN:

              MR. MOHAMMED ANSAR @ ANTU,
              S/O. MOHAMMED K. P.,
              AGED ABOUT 33 YEARS,
              R/AT NO. HAMDH MANZIL,
              BANGLE GUDDE,
              KUKKUNDOOR VILLAGE,
              KARKALA TALUK,
              UDUPI DISTRICT - 574 104.

                                                          ...PETITIONER
              (BY SRI. ROHAN S., ADVOCATE)

              AND:

Digitally signed
by PADMAVATHI 1.    THE STATE OF KARNATAKA,
BK                  BY SHIRVA POLICE STATION,
Location: HIGH      KAPU CIRCLE, UDUPI,
COURT OF
KARNATAKA           UDUPI DISTRICT - 574 104,
                    REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
                    HIGH COURT BUILDING,
                    BENGALURU - 560 001.

              2.    SMT. THAHIRA,
                    W/O. MOHAMMED ARIF,
                    AGED ABOUT 50 YEARS,
                    R/AT PAIYAR HOUSE,
                    NEAR DABA NIVASA,
                                     -2-
                                            NC: 2023:KHC:24235
                                             CRL.P No. 2747 of 2022




      GUDDEKERI,
      MALLARU, KAPU,
      UDUPI TALUK AND DISTRICT - 574 106.

                                                    ...RESPONDENTS
(BY SMT. K.P. YASHODA., HCGP FOR R-1;
    SRI. DEEPAK S. SHETTY., ADVOCATE FOR R-2)

        THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE CRIMINAL PROCEEDINGS AGAINST THE
PETITIONER PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS       JUDGE,    UDUPI      IN    S.C.NO.34/2018    FOR    THE
ALLEGED OFFENCES P/U/S 364A, 384 R/W 34 OF IPC.

        THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:

                                ORDER

The petitioner is before this Court calling in question

continuation of proceedings in S.C.No.34/2018 for the offences

punishable under Sections 364(A), 384 read with 34 of the

Indian Penal Code, 1860.

2. Heard Sri. Roshan S., learned counsel appearing for

the petitioner, Smt. K.P. Yashoda, learned High Court

Government Pleader appearing for respondent No.1 and Sri.

Deepak S. Shetty, learned counsel appearing for respondent

No.2.

NC: 2023:KHC:24235 CRL.P No. 2747 of 2022

3. The petitioner is accused No.3. On an incident that

happened on 01.07.2011, a crime comes to be registered

against other several accused in crime No.5/2012 for the afore-

quoted offences. After the order of committal, the petitioner

was not available for trial and therefore, a split chargesheet

was filed against the petitioner in C.C.No.6/2012. Later, the

Court of Sessions in terms of its order dated 24.09.2019

acquits accused Nos.2, 4, 5 and 7 in S.C.No.26/2012. In the

light of the non availability of the petitioner for trial, the trial

against the petitioner is now sought to be continued in

S.C.No.34/2018.

4. The learned counsel appearing for the petitioner

would submit that the allegations made against the other

accused are the same against accused No.3, the petitioner. The

concerned Court after a full blown trial has acquitted the other

accused of the offences alleged. The offence alleged against

the petitioner being to same, the petitioner is also entitled to

an acquittal, as is ordered by the concerned Court.

5. The learned HCGP would however seek to refute the

submissions to contend that the petitioner has escaped trial

NC: 2023:KHC:24235 CRL.P No. 2747 of 2022

and therefore, the trial must be permitted to be continued and

would seek dismissal of the petition.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and have

perused the material available on record.

7. The afore-narrated facts are not in dispute. What

drives the petitioner to this Court is continuance of a trial in

S.C.No.34/2018. S.C.No.34/2018 arose out of crime No.5/2012

for it having been registered on 15.01.2012. Since, the

petitioner was not available for trial at the relevant point in

time, the concerned Court split the charge against the

petitioner in terms of its order dated 06.09.2018 and registered

C.C.No.6/2012 and then, continues a trial in S.C.34/2018 for

those very offences. The Court of Sessions by its judgment

dated 24.09.2019 acquits accused Nos.2, 4, 5 and 7 in

S.C.No.26/2012, which arose out of crime No.5/2012. The

order of acquittal insofar as it is germane for consideration of

the present lis reads as follows:

"16. PW.4 Vasanth Rao and PW.5 Shamshuddin are the panch witnesses for recovery of golden ornaments from accused Nos.2 and 3. The evidence of PW.4 shows that he was asked to come to Indrali

NC: 2023:KHC:24235 CRL.P No. 2747 of 2022

Railway Station along with weighing machine and therefore he went there and weighed golden ornaments produced by accused Nos.2 and 3. He was unable to identify accused No.2 as it is more than 7 years. He says that mahazar was prepared in the Railway Ticket counter at Indrali Railway Station. PW.5 Shamshuddin that he was called by the police to come near Indrali Railway Station and two persons were caught by the police and they had gold necklace, black bead chain and finger ring and another chain. He identified the ornaments at photographs marked at Ex.p6. He says that mahazar was prepared as per Ex.P17. He also says in the cross examination that mahazar was prepared in front of railway counter by sitting in the chair. This evidence of PW.4 and 5 is contradiction to the evidence of I.O., PW.8, who says that the mahazar was prepared about 500 meters from the railway station. He says that he did not go to Railway Station on that day. It is also elicited into the cross examination of PW.8 that accused did not have money or railway ticket. The case of the prosecution is that accused Nos.2 and 3 were preparing to go to Mumbai by train in order to sell ornaments. It is elicited that accused did not try to escape from the spot.

This evidence shows that seizure of ornaments from the accused No.2 and 3 is also doubtful event. There is no clinching evidence which establish that the accused Nos.2 and 3 were in possession of ornaments belonging to the PW.1 and they had kept it for more than 6 months without selling it. By that time, they were involved in another case of murder of Hussain and accused No.1 Sulaiman had died. Therefore, it is very surprising to note that these accused were found in possession of the ornaments belonging to PW.1 and they were preparing to go to Mumbai without any ticket or money in their pocket.

17. The other evidence of PWs.2 and 3 did not implicate accused in any way, but it only says that PW.1 had led the police for preparing mahazar as per Exs.P2, 3 and 7. Under these circumstances, three important aspects of the case have not been properly explained by the prosecution. First one is in respect of identity of accused and identity of the accused has not been satisfactorily proved. The test identification parade conducted by the Tahsildar was after about 7 months of the incident. But the identification was not by PW.13,

NC: 2023:KHC:24235 CRL.P No. 2747 of 2022

but it was by PW.1. The PW.1 had not seen any of the accused except she had seen the photographs. When the photographs are already published in the newspaper, there is no relevancy for test identification parade. Therefore, test identification is nothing but farce and it is futile and irrelevant. PW.13 only comes at the fag end of the trial and that he say photographs of the accused in the newspaper, but such newspaper is not available before this court to ascertain that photographs were published in the newspaper. Therefore, identity of the accused has not been properly explained by the prosecution.

18. Secondly, the seizure of ornaments from the accused Nos.2 and 3 is unbelievable and the circumstances of the seizure are not proved. Though PW.8 has made an effort to convince the court by saying investigation done by him. The fact that accused were not having any ticket or money to travel to Mumbai and that seizure was done very next day of the incident, makes the evidence of PW.1 suspicious. It is significant to note that PW.1 had not disclosed the description of the ornaments soon after the incident, but she had narrated the description in the compliant which was filed after 6 1/2 months of the incident."

8. In the light of the offence being same and the order

of acquittal recording circumstances, which would clearly enure

to the benefit of the petitioner as well, permitting further trial

against the petitioner would be waste of judicial time, as

eventually the petitioner would get acquitted. Though, the

petitioner has escaped trial, indulgence is shown owing to the

fact that the judicial time being precious, therefore I deem it

appropriate to obliterate the proceedings against the petitioner

giving benefit of acquittal that is passed qua the other accused.

NC: 2023:KHC:24235 CRL.P No. 2747 of 2022

9. For the aforesaid reasons, the following

ORDER