Karnataka High Court
Sri. H. K. Gopala vs State Of Karnataka on 21 September, 2023
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC:34387
CRL.P No. 7886 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 7886 OF 2023
BETWEEN:
SRI. H. K. GOPALA,
S/O KRISHNAPPA,
AGED ABOUT 47 YEARS,
RESIDENCE AT VALLABAI ROAD,
NEAR SHANKARNAGAR AUTO STAND
VALLABAI ROAD, HASSAN DISTRICT-573201.
PRESENTLY RESIDING AT
NO. 20/1, 3RD MAIN ROAD,
NEW BOMBU BAZAR, MEDAR BLOCK,
MYSURU CITY-570001.
...PETITIONER
(BY SRI. CHETHAN B.,ADVOCATE)
Digitally signed by B
K
MAHENDRAKUMAR
Location: HIGH AND:
COURT OF
KARNATAKA
1. STATE OF KARNATAKA
BIDADI POLICE
RAMANAGARA -571511.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
-2-
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CRL.P No. 7886 of 2023
2. H T GOVINDARAJU
S/O DODATHIMMAIAH,
AGED ABOUT 43 YEARS,
R/O HUSKURU VILLAGE AND POST,
DASANAPURA HOBLI, BANGALORE NORTH TALUK,
BANGALORE-560099.
...RESPONDENTS
(BY SMT.M.M.WAHEEDA, HCGP FOR R1;
NOTICE TO R2 IS D/W)
THIS CRL.P FILED U/S 482 CR.PC TO QUASH THE
FURTHER PROCEEDINGS AS AGAINST THE PETITIONER THAT
IS ACCUSED NO.17 IN S.C.NO.57/2023 (FIR NO.12/2010
REGISTERED BY THE RESPONDENT BIDADI POLICE ) PENDING
ON THE FILE OF THE HONBLE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT RAMANAGARA DISTRICT FOR THE
OFFENCE P/U/S.363, 395 OF IPC R/W SEC.14, 32, 34, 38-A OF
KARNATAKA EXCISE ACT 1965 AS PER ANNEXURE A.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/accused No.17 is sought to be prosecuted
for the offence under Sections 363, 395 of IPC read with
Section 14, 32, 34 and 38(A) of Karnataka Excise Act, 1965.
2. Heard the learned counsel for the Petitioner and
learned HCGP for the state.
3. The case of the prosecution is that, on 08.01.2010
at about 8:45 p.m., when the C.W.2, the driver of the lorry had
parked his lorry to attend the nature call, at that time, accused
Nos.1 to 12 surrounded him, swayed long and assaulted on his
left leg and threatened him and C.W.3, the cleaner of the said
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CRL.P No. 7886 of 2023
lorry, tied their hands and legs and committed the dacoity of
20,000/-litres of spirit loaded in the lorry. Thereafter, they left
that lorry in the land of Madhu at H.Malligere Village, Mandya
Taluk. They kidnapped C.W.2 and C.W.3 and on 09.01.2010 in
the afternoon, dumped them near Shiradighat. Thereafter, the
accused Nos.1 to 12 illegally transported the fully loaded spirit
lorry without any permit or license and delivered the same to
the accused Nos.13 to 17.
4. The charge sheet was split up and the trial Court
after conducting the full fledged trial against accused Nos.1 to
3, 5 to 12 and 15 and 16 acquitted the said accused by
observing as follows:
"42. To show that Rajegowda and Ramesh were
deputed as driver and cleaner of lorry bearing
Reg.No.KA.-2-C-7474, the Investigating Officer has
not collected any evidence.
43. It is also relevant to note that the
Investigating Officer has not collected trip sheet, work
order, invoice of supply order. Therefore, there are no
evidence on record to the effect that 20,000 litres of
spirit being transported in lorry bearing No.KA-02-C-
7474. The Investigating Officer has not conducted test
identification parade. PW.3 Rajegowda and PW.4
Ramesh being the victims of the incident have failed to
identify any one of the accused at the time of their
trial. Therefore, the failure on the part of the PW.3 and
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CRL.P No. 7886 of 2023
PW.4 to unidentify the accused who are facing trial is
fatal to the case of the prosecution."
5. Accused Nos.13 to 16 against whom similar charge
has been framed that the stolen property has been delivered
have been acquitted by the Trial Court. When there are no
separate and distinct allegations made against the petitioner
herein and accused Nos.13 and 16 and the other accused are
acquitted, it would amount to abuse of process of law, if the
prosecution is ordered to be continued against the petitioner.
6. In Crl.P.No.6857/2020, a 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., P.Ws.1 and 2 were examined, and 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.
7. There is no strict rule that absconding accused must
be extended with the benefit of acquittal in case his co-accused
is acquitted, but there are exceptions to the said rule, when the
charge against the accused and the co-accused is similar and
not separate and distinct and the witnesses to be examined are
one and the same.
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8. In the instant case, the prosecution has examined
all the charge sheet witnesses and also marked the documents
which are produced along with the charge sheet but failed to
prove the case beyond all reasonable doubt against accused
Nos.15 and 16, against whom similar charge has been framed.
9. Therefore, if the petitioner is subjected to trial, it
would be a futile exercise, since the probability of the conviction
of the petitioner is remote and bleak. To prevent the abuse of
process of law and to maintain parity, it would be appropriate to
quash the impugned proceedings against the petitioner.
10. Accordingly, I pass the following:
ORDER
i. Criminal petition is allowed.
ii. The impugned proceedings in S.C.No.57/2023
arising out of Cr.No.12/2010 registered by the Bidadi Police
Station pending on the file of III Addl. District and Sessions
Judge, Ramanagara District insofar it relates to accused No.17
stands quashed.
iii. Petitioner/accused No.17 who was taken into
judicial custody on 17.05.2023 to be released forthwith, if he is
not required in any other case.
Sd/-
JUDGE
RKA
