Karnataka High Court
Sri Shafi Ahmed @ Shahid vs State Of Karnataka on 6 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:44650
WP No. 26130 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 26130 OF 2024 (GM-RES)
BETWEEN:
SRI. SHAFI AHMED @ SHAHID
S/O JAMEER AHMED,
AGED ABOUT 41 YEARS,
R/AT.NO.26, 1ST CROSS, 1ST MAIN,
NEW GURAPPANA PALYA, BENGALURU - 560 029,
ALSO AT: NO.54, KAVEERAMMA TEMPLE STREET,
1ST MAIN, 1ST BLOCK,
JAYANAGAR, 3RD BLOCK,
BENGALURU SOUTH - 560 011.
...PETITIONER
(BY SRI. R.V. SHIVANANDA REDDY, ADVOCATE)
AND:
Digitally signed 1.
by NAGAVENI STATE OF KARNATAKA
Location: HIGH
BY SIDDAPURA POLICE STATION,
COURT OF BENGALURU,
KARNATAKA REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. SRI. JAMEER AHMED,
S/O IRSHAD AHMED,
AGED ABOUT 22 YEARS,
R/AT NO.17/2, 7TH CROSS,
SOMESHWARANAGAR, BEHIND S.K. SCHOOL,
BENGALURU.
...RESPONDENTS
(BY SRI. HARISH GANAPATHY, HCGP FOR R1;
V/O. DTD. 06.11.2024, NOTICE TO R2 IS D/W.)
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WP No. 26130 of 2024
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA R/W 482 OF CR.P.C PRAYING TO QUASH
THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER VIDE
ANNEXURE-A IN SC NO. 2086/2018 (IN CRIME NO.231/2008
SIDDAPURA POLICE BENGALURU) FOR THE OFFENCE PUNISHABLE
UNDER SECTION 307 R/W 34 OF IPC PENDING ON THE FILE OF THE
LIX ADDL CITY CIVIL AND SESSION JUDGE AT BENGALURU CITY
(CCH-60) AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Heard the learned counsel Sri.R.V.Shivananda Reddy,
appearing for the petitioner and the learned High Court
Government Pleader Sri.Harish Ganapathy, appearing for
respondent No.1.
2. The petitioner is before this Court calling in question
the proceedings in S.C.No.2086/2018 (in Crime No.231/2008,
Siddapura Police, Bengaluru) for offence punishable under
Section 307 read with Section 34 of the IPC, pending on the file
of the LIX Additional City Civil and Sessions Judge at Bengaluru
City.
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3. Facts in brief, germane for a consideration of the lis
are as follows:
The petitioner is accused No.3. He along with other
accused gets embroiled in a crime in Crime No.231/2008 for
the aforesaid offences. The Police after investigation filed a
charge sheet against all accused Nos.1 to 8. The petitioner at
the relevant point in time was not available for trial. The
concerned Court tries two accused. Accused Nos.7 and 8 and
by orders dated 11.01.2018 and 18.12.2018. The aforesaid two
accused get acquitted of the offence. Since the petitioner was
not available for trial, a split charge sheet was drawn against
him in S.C.No.2086/2018. The continuance of trial in
S.C.No.2086/2018, qua the petitioner has driven him to this
Court in the subject petition.
4. Learned counsel for the petitioner submits that the
orders of acquittal of both accused Nos.7 and 8 would enure to
the benefit of the petitioner, as the reason is that the injured
witnesses PW.1 and PW.2 have deposed that the present
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accused was not present in the alleged scene of crime. The
reason for acquittal of accused Nos.7 and 8 is the same.
5. The learned HCGP would refute the submission to
contend that the petitioner also must face the trial like others
and come out clean therein. He would seek dismissal of the
petition.
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.
Accused Nos.1 to 8 was charged for offence punishable under
Section 307 of the IPC. The two accused, accused Nos.7 and 8
come to be acquitted. In S.C.No.61/2014 in terms of its
judgment dated 11.01.2018, accused No.8 gets acquitted,
which reads as follows:
" 14. The P.W.1 and 2 in their chief examination
itself have denied the presence of accused No.8 and
even presence of accused No.3 on the spot when the
injuries were caused to P.W.2. When both witnesses
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were cross examined by the prosecution, then also the
P.W.1 and 2 have denied the présence of accused No.3
and 8 and alleged act in causing injuries to P.W.2.
Therefore, the evidence of P.W.1 and 2 clearly show
that the accused No.8 was not present when the quarrel
took place and the accused No.2 not participated in the
alleged crime. Therefore, the evidence of P.W.1, 2 and 5
that accused No.1 caused injuries to P.W.2 is not
sufficient to connect such injuries to the accused No.8
as his presence or any act has not been proved.
15. The P.W.3 and 4 have stated about the
investigation. These witnesses were not present when
the incident took place. Even these witnesses have not
spoken that the accused No.8 was present on the spot
along with remaining accused when the injuries were
caused to P.W.2. Having regard to these evidence on
record, I hold that the evidence on record is not
sufficient to prove that the accused No.8 was present on
the spot along with accused Nos. 1 to 7 and in
furtherance of common intention of all the accused who
were present with accused No.1 and 2 attempted to
commit murder of P.W.2. Therefore, the accused No.8
cannot be held guilty for the offence under Section 307
read with Section 34 of IPC. Accordingly, I answer this
point in the Negative.
16. POINT NO.2:- In view of the above
discussions, I proceed to pass the following:-
ORDER
Acting under Section 235 of Cr.P.C., the
accused No.8 is acquitted for the offence punishable
under Section 307 of IPC.
The Bail Bond and surety bond of accused
No.8 stand cancelled.
Seized property (M.O.1-Iron knife) is ordered
to be retained as split up cases against the other
accused are pending.
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(Dictated to the Judgment-writer, transcribed by her,
corrected, signed and then pronounced by me in the
open court on this the 11th day of January 2018)."
8. The same is reiterated while acquitting accused
No.7 on a different date. In the light of the evidence of PWs.1
and 2, which clearly depict that the petitioner was not present
at the scene of crime, permitting further proceedings for an
eventual acquittal of the petitioner in the split charge would
only be a waste of precious judicial time.
9. The view of mine, in this regard, is fortified by the
judgment of this Court dated 02.09.2022 passed in
Crl.P.No.7720/2022, which reads as follows:
"4. The learned Sessions Judge, by his order dated
01.12.2021, acquits accused Nos.1 to 11, 14, 16 to 18 and 21
in S.C.No.103/2018. At the relevant point in time, when the
trial was on, the petitioner was not available for trial, as he
was allegedly absconding and a split charge sheet was issued
against the petitioner in S.C.No.87/2019 in terms of an order
of the learned Sessions Judge dated 10.06.2019. The
continuation of proceedings in S.C.No.87/2019 is what drives
the petitioner to this Court in the subject petition.
5. Learned counsel, Sri. Lethif B., appearing for the
petitioner would contend that the allegations are the ones
punishable under Sections 143, 147, 148, 448, 323, 324, 427,
395, 149 of the IPC. The said allegation is necessarily to be
common against all the accused and it is infact common
against all the accused. The acquittal order passed by the
concerned Court is on the basis of the complainant himself
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turning hostile. In the teeth of the fact that the complainant
himself turned hostile, the Court holds that the prosecution has
failed to prove the guilt beyond all reasonable doubt and
therefore, the petitioner is entitled to be the same order as is
passed by the concerned Court acquitting the aforesaid
accused.
6. Learned HCGP would however refute the
submission to contend that the petitioner would escape trial,
should necessarily face trial and considered for acquittal by the
concerned Court and this Court should not interfere at this
juncture, as a person, who has escaped trial should not be
shown any indulgence under section 482 of Cr.P.C .
7. I have given my anxious consideration to the
respective submissions made by the learned counsel and have
perused the material on record.
8. The afore-narrated facts are not in dispute. The
allegation against the petitioner are the ones punishable under
Sections 143, 147, 148, 448, 323, 324, 427, 395, 149 of the
IPC. The allegation was against 22 accused and the offences
alleged were common, the allegations are also common. The
concerned Court, by its order dated 01.12.2021, acquits
accused Nos.1, to 11, 14, 16 to 18 and 21 by rendering the
following reason:
REASONS
9. Poin"t No.1 to 5: The P.W.1 has
stated that on 15.09.2013 at about 8.30 p.m. when
P.W.4 was insider the Bar, somebody picked up
quarrel with him and those persons damaged the
Bar and hence, he sustained injuries. He has also
stated that, the P.W.2 also sustained injuries in the
incident and both of them taken treatment in the
Wenlock hospital. The P.W.2, P.W.4 and Babanna
sustained injuries and therefore, he filed the first
information before the Police. He has deposed that
the police came to the Bar and drawn the
panchanama in Ex.P.2. The P.W.2 has deposed that
when he was in the Bar of P.W.1 many people
assembled and one of them thrown stone towards
him and therefore, himself and P.W.4 sustained
injuries and took treatment in the hospital.
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10. P.W.3 has deposed that on 15.09.2013
at about 8.30 p.m. the P.W.4 was inside the Bar,
about 25 persons came to the Bar and there was
quarrel between P.W.4 and those 25 persons. He
has deposed that such 25 persons damaged the Bar
and he took treatment in Wenlock hospital for the
injuries sustained in the incident. The P.W.1 to 3
have not stated the name of any of the accused of
this case and even not identified the accused. The
prosecution treated these witnesses hostile and
cross examined. The P.W.1 to 3 have totally denied
the allegation that the accused of this case have
quarrelled with P.W.4, assaulted P.W.7 to 7,
damaged the Bar and committed dacoity of
Rs.2,000/- from the Bar.
11. The P.W.4 to 7 have totally denied the
incident itself. The P.W.8 and P.W.9 have deposed
that they have not witnesses the incident. The
P.W.4 to 9 have been cross examined by the
prosecution and even in the cross-examination the
P.W.4 to 9 denied the allegation made by the
prosecution. Therefore, there is no evidence against
the accused that they have formed unlawful
assembly, committed criminal trespass in the Bar of
P.W.1, voluntarily caused hurt to P.W.1 to 7 and
committed dacoity of Rs.2,000/- from the Bar of
P.W.1. Hence, the accused cannot be convicted for
the offences alleged against them because of
insufficient evidence. Accordingly, I answer these
points in the Negative and proceed to pass the
following:
ORDER
Acting under Section 232 of Code of Criminal
Procedure the accused No.1 to 11, 14, 16 to 18 and
21 are acquitted for the offences punishable under
Section 143, 147, 148, 448, 323, 324, 395, 427
r/w 149 of Indian Penal Code.
Their bal bond stands cancelled.
Office is directed to retain the material
objects as they are required in split up cases."
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9. The reason for acquitting the other accused as
afore-quoted is the fact that the complainant himself had
turned hostile and other witnesses had not supported the
charge sheet. If the complainant had turned hostile and it
resulting in acquittal of the aforesaid accused, it cannot but be
said that the same would be applicable to the petitioner as
well, notwithstanding the fact that he was not available for
trial. It is not the case of sending the petitioner for trial for the
very same offences and result being the same as is ordered on
01.12.2021 in S.C.No.103/2018. It would be an exercise in
futility to permit further trial, which would be of no utility and
be a waste of judicial time.
10. 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
3 for committing an offence
punishable under Sections 498A
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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 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-
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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 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
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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 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.
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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.
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
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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."
The Co-ordinate Bench was considering a case where
the co-accused who had escaped trial had not surrendered or
was not arrested by the police.
In the light of there being no evidence against any
of the accused and the split up charge against the petitioner
being tried now before the learned Sessions Judge would
become an exercise in futility. In the teeth of there being no
evidence or a specific charge against this petitioner, that was
not charged against others, I deem it appropriate to obliterate
the proceedings against the petitioner."
In the light of the allegations against the petitioner and
other accused being similar; accused Nos.7 and 8 having been
acquitted, and the afore-extracted judgment of this Court, the
petitioner is entitled to succeed in the subject petition for the
very same reasons rendered by this Court (supra).
10. For the aforesaid reasons, the following:
ORDER
(i) The Petition is allowed; and
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(ii) The proceedings against the
petitioner/accused No.3 S.C.No.2086/2018 (in
Crime No.231/2008, Siddapura Police,
Bengaluru) for offence punishable under
Section 307 read with Section 34 of the IPC,
pending on the file of the LIX Additional City
Civil and Sessions Judge at Bengaluru City,
stand quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
KG
CT: BHK
