Karnataka High Court

Sri Viji @ Seven Vij @ Vijaykumar vs The State Of Karnataka on 28 May, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                                NC: 2024:KHC:17942
                                                          CRL.P No. 4930 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 28TH DAY OF MAY, 2024

                                               BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA


                                CRIMINAL PETITION NO. 4930 OF 2022


                      BETWEEN:

                            SRI VIJI @ SEVEN VIJ @ VIJAYKUMAR
                            S/O SRI. PUTTASWAMY GOWDA
                            AGE: 37 YEARS
                            R/AT KANALI VILLAGE,
                            KASABA HOBLI, MANDYA TALUK
                            MANDYA DISTRICT - 571 446
                                                                     ...PETITIONER
                      (BY SRI. RAVINDRA PRASAD B., ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA
                            CHANNAPATNA EAST POLICE
                            RAMANAGARA DISTRICT - 562 160
Digitally signed by         REP. BY PUBLIC PROSECUTOR
NAGAVENI
Location: HIGH              KARNATAKA HIGH COURT
COURT OF
KARNATAKA                   BENGALURU - 560 001

                      2.    SRI. CHETHAN
                            S/O SRI SIDDALINGAIAH
                            AGE: MAJOR
                            R/AT CHENNAPATTNA TOWN
                            YELEKERI
                            CHENNAPATTNA - 562 160

                                                                    ...RESPONDENT
                      (BY SRI. HARISH GANAPATHI, HCGP FOR R1)
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                                               NC: 2024:KHC:17942
                                          CRL.P No. 4930 of 2022




     THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE FILE OF THE ADDL.CIVIL JUDGE, JUNIOR
DIVISION AND J.M.F.C,CHANNAPATNA IN C.C.NO.90/2021 AND
DISMISS THE COMPLAINT (CR.NO.24/2017) AND ITS CHARGE
SHEET REGISTERED BY RESPONDENT NO.1.

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

                               ORDER

The petitioner is before this Court calling in question the

proceedings in C.C.No.90/2022 registered for offences

punishable under Sections 143, 147, 148, 120B and 302 read

with Section 149 of IPC.

2. Heard the learned counsel Sri.B.Ravindra Prasad,

appearing for the petitioner and the learned HCGP

Sri.Harish Ganapathi, appearing for respondent No.1.

3. The petitioner gets embroiled in a crime in Crime

No.24/2017 for the aforesaid offences. The police conduct

investigation and filed a charge sheet before the concerned

Court for the aforesaid offences and the Court of Session tries

the crime in S.C.No.12/2018. It transpires that during the trial,

the petitioner was not available and therefore a split charge

comes to be issued against the petitioner in C.C.No.90/2022.

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The Court of Session which was trying S.C.No.12/2018 by its

judgment dated 02.11.2022 acquits all the accused arrayed in

S.C.12/2018. Who remained to be tried is accused Nos.14 and

15. Accused No.15 is the present petitioner.

4. Learned counsel for the petitioner submits that he

was not served with any summons during the trial for him to

appear and therefore, he has been absent for trial and the split

charge is thus issued. He would submit that the reasons

rendered by the concerned court to acquit all the other accused

S.C.No.12/2018 would become squarely applicable to the facts

that led the petitioner into the crime as well.

5. Learned HCGP though would seek to refute the

submission in contending that the petitioner has escaped the

trial and therefore he should not be shown any indulgence. He

should face the trial and come out clean as is done by the other

accused.

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6. I have given my anxious consideration to the

contentions of respective learned counsel and have perused the

material on record.

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

16 people become accused in a crime in Crime No.24/2017 for

the aforesaid offences. The Court of session which tries

14 accused out of the 16, acquits 14 accused. The reason so

rendered by the concerned court to acquit 14 accused in the

trial, insofar as it is germane is as follows:

" 67. It is crystal clear from the evidence given by recovery panchas of all different recoveries and also from the say of PW.37, the Investigating Officer, that in all the recoveries, PW.37 made either the blood relatives of the deceased or the co-accused of deceased in the criminal cases filed at the instance of accused No.1 Dhruva Kumar as panch witnesses. In this behalf, learned defence counsel has been repeatedly ARGUED that as the panch witnesses either being the blood relative of or being the co-accused of the deceased, the said panch witnesses having ill-will towards accused persons, their versions cannot be relied on. To substantiate his argument, he has relied on the case law rendered by the Hon'ble Apex Court in (2002) 2 Supreme Court Cases 426 in a case between State of Haryana vs. Ram Singh.

68. That the fact of non-adducing of covering letter addressed to Regional Office FSL, Mysuru depicting the marks made by PW.37 over 22 articles which were subjected for FSL examination, the fact of non-examination of owners and persons working in the

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nearby Garage and near Service Centre admittedly situate at the distance of 10-15 feet from the place of evidence, the disclosure of Tower locations of mobile phones of accused Nos.1 and 2 as that of Channapatna police station on 17th and 18th of March, 2017, the non-examination of owners of two motor cars, enable this court to arrive at the conclusion that the accused persons are entitle to take shelter under the cited case law as the recovery proceedings were not corroborated by any other independent, substantive and primary material evidence.

69. For the similar reasons, the opinion formed by PW.40 Radha, FSL Officer cannot be a base to convict the accused persons as decided by the Hon'ble High Court of Karnataka vide para 24 of its judgment dated 05.07.2018 rendered in Crl.Appeal No.225/2013 in the case of Nabeel S/o. Aslam vs. State of D.J.Halli police station.

70. That for the afore-mentioned reasons, this court is of the view that prosecution has utterly failed to prove that the theory of defence appears to be unreasonable. Therefore, this court is also of the view that accused are entitle to take shelter under the case law rendered by the Hon'ble High Court of Bombay reported in 1956 Cri.L.J. 725 as observed in para 6 of the cited judgment by the Bench consisting of Hon'ble Judges P.B.Gajendragadkar and Gokhale.

71. It is crystal clear from the evidence of PW.37 that the alleged arrest of accused Nos.1 to 3 were made on 21.03.2017. The recoveries were conducted as per Ex.P.23, P.24 on 23.03.2017. That the recoveries of Indica Car and one of the material objects was done as per Ex.P.23 and P.24 on 24.03.2017. The recoveries were made as per Ex.P.30 on 26.03.2017. That conspiracy and spot mahazars were conducted on 25.03.2017. That accused Nos.5, 6, 12 and 13 were arrested and their alleged statements were taken subsequent thereto. Thereafter the recoveries as per Ex.P.55 and P.56 were conducted. That accused Nos.4

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and 16 were arrested on 04.04.2017 and recovery of Dragger was done as per Ex.P.33 on 05.04.2017. Recovery of ledgers and CDs were done as per Ex.P.44 on 11.06.2017.

72. Thus, recoveries being various recoveries made in various installments in the course of several dates, in the presence of relatives or the co-accused persons of deceased, the accused of case on hand are entitled to take shelter under the observations made vide paras 27 to 29 of judgment rendered by the Hon'ble Apex Court reported in (1982) 2 Supreme Court Cases 351 in the case of Gambhir vs. State of Maharashtra.

73. Therefore, for the afore-mentioned reasons, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt by producing cogent, substantive and primary evidence. Hence, while answering point Nos.4 and 5 in the Negative, this court proceeds to pass the following"

8. The acquittal of the 14 accused is said to have

become final. In the light of the aforesaid reasons so rendered

by the concerned court to acquit the 14 accused, permitting the

petitioner to undergo trial would be nothing but waste of

judicial time, which has become too precious. Therefore,

eventually the petitioner also gets acquitted on the same

reasons that are rendered for acquitting the other accused.

Therefore, the considered view of this Court a split charge

sheet so issued against the petitioner, if permitted to continue

would become an abuse of process of law and result in

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miscarriage of justice only on the ground that all other

14 accused are acquitted and the reasons for acquittal would

squarely applicable to the petitioner as well.

9. The view of mine, in this regard, is fortified by the

judgment rendered by a Co-ordinate Bench of this Court in

Crl.P.4796/2017 wherein the Co-ordinate Bench considering

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 against other available accused Nos.1 and

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3 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

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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

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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

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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.

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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."

10. For the afore-said reasons, the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The split charge sheet against the petitioner in C.C.No.90/2022 registered at the Channapatna East Police Station, Ramanagara in Crime No.24/2017 pending on the file of the Principal Civil Judge and JMFC,