Karnataka High Court
Sri Shivakumar vs State Of Karnataka on 11 January, 2024
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CRL.RP No. 736 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRL.RP. NO.736 OF 2016
BETWEEN:
SRI SHIVAKUMAR
S/O SRI. SHADAKSHARI
AGED ABOUT 29 YEARS
R/O NO.40, KALABYRAVESHWARA NILAYA,
1ST MAIN ROAD, CHIKKABANAVARA,
BANGALORE-560090.
...PETITIONER
(BY SRI. GANAPATHI S SHASTRI, ADV.)
AND:
STATE OF KARNATAKA
BY PEENYA POLICE,
Digitally signed BANGALORE-560058.
by SANDHYA S
Location: High
...RESPONDENT
Court of (BY SRI. M.R.PATIL, HCGP)
Karnataka
CRL.RP FILED U/S.397 CR.P.C BY PRAYING TO SET ASIDE
THE ORDER DATED 07.05.2016 PASSED BY THE LXIV ADDL.
CITY CIVIL AND S.J., (CCH-65) BANGALORE IN
S.C.NO.42/2014 BY ALLOWING THE ABOVE CRL.RP.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 736 of 2016
ORDER
The revision petitioner has preferred this revision
against the order dated 07.05.2016 passed on application
filed under Section 227 of Cr.P.C. by accused No.5 in
S.C.No.42/2014 before the LXIV Additional City Civil and
Sessions Judge, Bengaluru (CCH-65).
2. For the sake of convenience, the parties in this
revision petitions are referred to as per the status and
rank before the trial Court.
3. The revision petitioner/Accused No.5 has filed an
application under Section 227 of the Code of Criminal
Procedure for discharge, for the alleged commission of
offenses on the ground that he has been falsely implicated
by Peenya Police. The accused Nos.1 to 3 have not
disclosed the name of accused No.5 in their voluntary
statement and accused Nos.1 to 4 are unknown to him. It
is also contended that filing of charge sheet as against
accused No.5 is clear abuse of process of law. On
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09.05.2015, the victim was released from the custody
accused Nos.1 to 3 in which there is no role being played
by accused No.5. The accused No.5 is innocent and falsely
implicated. The Police have colluded with the second
complainant by name Niyaz Ahammed. On all these
grounds, learned counsel sought for discharge the revision
petitioner from the alleged commission of offense.
4. This application was opposed by Public Prosecutor by
filing detailed objections.
5. On hearing the arguments, learned Sessions Judge
dismissed the application filed under Section 227 of
Cr.P.C. Being aggrieved by the impugned order, revision
petitioner has preferred this revision petition.
6. Learned counsel appearing on behalf of the revision
petitioner has submitted his arguments that learned
Sessions Judge has not properly considered the materials
on record in accordance with law and absolutely there are
no materials to frame charge against accused No.5 for the
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alleged commission of offenses. Learned Sessions Judge
acquitted the accused Nos.1 to 4 as per the judgment
dated 27.05.2021. The State has not preferred any
appeal against this judgment of acquittal passed by the
learned Sessions Judge. In paragraphs 23 to 25, learned
Sessions Judge has observed in the judgment passed in
S.C.No.42/2014 as under:
"23. Out of the examined witnesses, Pw.10/
Cw.2/ Kamaleshkumar is the prime witness because
he is the victim in this case. In his evidence, even
though Pw.10 has deposed by explaining his
abduction, extortion of amount by withdrawing
money from his bank account by using his ATM card,
Pw.10 is unable to identify the persons who abducted
him and committed extortion by withdrawing cash
from his bank account by using his ATM Card in
various ATMs. In the examination-in-chief itself
Pw.10 has specifically deposed that he cannot
identify the accused persons, who abducted him.
Further Pw.10 has specifically deposed in his
examination-in-chief itself that accused persons who
are present before the court are not the persons,
who abducted him. Even in the cross-examination on
behalf of the accused side, Pw.10 has reiterated his
version that it is not the accused persons who are
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present before the court, who abducted him as
alleged in his complaint. Even though police officers
particularly Investigation Officer, who deposed in
support of the case of the prosecution, admissions
given by Pw.10 victim in his cross-examination and
his inability to identify accused persons present
before the court as the same persons who abducted
him create reasonable doubt on the case of the
prosecution. Due to aforesaid doubt, prosecution is
unable to establish the fact that persons who
abducted Pw.10/Cw.2/Kamalesh Kumar Thivari are
the same accused person against whom this case is
filed because there is no support of the report of Test
Identification Parade. No witness who had seen
abduction of Pw.10/Cw.2 are examined before the
court. No digital evidence like CC TV footages
recorded in the CC TV installed on the spot of alleged
abduction are available on record.
24. Pw.1 to Pw.7 and Pw.9 circumstantial
witnesses and witnesses for seizure panchanama
have turned hostile to the version of the prosecution.
It is difficult to hold that only on the basis of
supported version of evidence adduced by police
witnesses, prosecution can prove the charges framed
against accused persons.
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25. As discussed above and for the reasons
stated above, this court is of the opinion that,
prosecution have failed to prove that, in order to
formed an unlawful assembly under instigation of
accused No.2 to 5 and in furtherance of their
common object of the unlawful assembly accused
persons abducted Cw.2/ Kamalesh Kumar Thivari in
a Tata India Car bearing Reg. No. KA-03-C-7600 in
front of JMC Metro office at 8th Mile. Further,
prosecution have failed to prove beyond all
reasonable doubt that after abduction, accused
persons have threatened Cw.2 by showing knife,
threatened him to murder, committed robbery of
mobile phone, ATM Card, Pan Card and cash of
Rs.1,200/- (one thousand two hundred) of Cw.2 and
have withdrawn total amount of Rs.1,00,000/- (one
lakh) from the bank account of Pw.10/Cw.2 by
withdrawn in various ATM Centres by using ATM card
of Pw.10/Cw.2 thereby accused No.1 to 4 have
committed offences punishable U/s.114, 120B, 365,
395 of I.P.C. Accordingly, points No.1 to 3 are
answered in the Negative."
Since prime accused Nos.1 to 4 are already acquitted by
the learned Sessions Judge, no purpose will be served in
conducting trial against this revision petitioner/accused
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No.5, as the alleged commission of offenses are under
Sections 114, 120B, 365 and 395 of IPC.
7. On perusal of entire prosecution papers, I do not find
sufficient material to frame charge against this revision
petitioner/accused No.5 for the alleged commission of
offenses. Hence, I proceed to pass the following:
ORDER
The revision petition is allowed.
The revision petitioner/accused No.5 is discharged for
the commission of offenses punishable under Sections
114, 120B, 365 and 395 of IPC.
Registry is directed to send back the TCR/SCR along
with a copy of this order.
Sd/-
JUDGE
MPK
CT:bms
