[Cites 34, Cited by 0]
Karnataka High Court
Mahamamed Rafiq @ Napatha Rafiq vs The State Through on 28 November, 2025
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CRL.P No. 201884 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
CRIMINAL PETITION NO.201884 OF 2025
(482(Cr.PC)/528(BNSS))
BETWEEN:
1. MAHAMAMED RAFIQ
@ NAPATHA RAFIQ S/O UMAR,
AGE: 32 YEARS, (AS PER LCO)
OCC: BUSINESS,
R/O ATTIGOLE MANE, KAIYYAR,
KASARGOD, KERALA-671322.
2. VINAYAK BHANDARI S/O KRISHNAPPA BHANDARI,
AGE: 23 YEARS (AS PER LCO) OCC: PVT. WORK,
5TH CROSS, CHINNAGATTI SARMAE,
DHARWAD-580002.
Digitally signed
by RENUKA
Location: 3. MAHAMMED ERSHAD S/O ADBUL RAZKA,
HIGH COURT
OF AGE: 28 YEARS (AS PER LCO) OCC: PVT. WORK,
KARNATAKA
R/O KANTADKA, BANTWALA-574211.
DAKSHINA KANNADA
...PETITIONERS
(BY SRI. VISHAL PRATAP SINGH, ADVOCATE)
AND:
1. THE STATE THROUGH NELOGI PSI
JEWARGI, KALABURAGI
REPRESENTED BY ADDL. S.P.P.
HIGH COURT, KALABURAGI BENCH,
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CRL.P No. 201884 of 2025
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KALABURAGI-585107.
2. ABDUL KHADAR S/O P.A. MAITHU,
AGE ABOUT 39 YEARS,
R/O CHEMBARIKA,
CHEMBARIKA, CHANDRAGIRI
KALANDU TALUKA,
KASARGUD DIST. KERALA-671371.
...RESPONDENTS
(BY SRI. GOPALKRISHNA B. YADAV, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528
OF BNSS (NEW), UNDER SECTION 482 OF CR.P.C.(OLD),
PRAYING TO THE PETITIONERS-MAHAMMAD RAFIQ, VINAYAK
BANDARI, AND MAHAMMED ERSHAD-WHO ARE ARRAIGNED AS
ACCUSED NO.1, 8 AND 18 IN CC NO.180/2024 REGISTERED BY
THE NELOGI POLICE STATION TQ, JEWARGI DIST KALABURAGI
AND CHARGED WITH OFFENCES PUNISHABLE 120(B),109, 395,
364, 302, 201, 303, 465, 473 OF THE IPC PENDING BEFORE
THE COMMITTAL COURT-CIVIL JUDGE AND JMFC, JEVARGI
MOST RESPECTFULLY AND HUMBLY PRAYS THIS HON'BLE
COURT. A) QUASH THE CHARGE-SHEET IN CRIME NO.18/2020
DATED 04-05-2025 B) TO TERMINATE ALL FURTHER
PROCEEDINGS IN CC NO.180/2024 EMANATING FROM THE
CHARGE SHEET/FINAL REPORT IN CRIME NO.18/2020.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 201884 of 2025
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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
In this petition, the accused are seeking quashing of
the proceedings in CC No.180/2024 arising out of Crime
No.18/2020 of Nelogi Police Station, Dist. Kalaburagi for
the offences punishable under Sections 120(B), 109, 395,
364, 302, 201, 303, 465 and Section 473 of Indian Penal
Code, 1860, pending before Civil Judge and JMFC,
Jevaragi, by placing reliance on the judgment rendered by
the Sessions Court in S.C.No.159/2021 thereby acquitting
accused Nos.6, 7, 10 to 15, 20 and 21.
2. The facts leading to the case are as follows:
The present petitioners in the petition, along with
other co-accused, were subjected to criminal prosecution
alleging that, owing to prior animosity between accused
No.2 and deceased Taslim, on 31.01.2020 at about 4:30
p.m. on SH-155 at Belur Village, accused Nos.6 to 12, in
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furtherance of their common object and armed with deadly
weapons, arrived in two Brezza cars, formed an unlawful
assembly, threatened and kidnapped the deceased, and
committed dacoity of the vehicle. It is further alleged that,
at the instance of accused Nos.1 to 4, accused Nos.13 and
14 received supari, hatched a conspiracy to commit the
offence, and thereby committed offences punishable under
Sections 120B and 109 read with Section 149 of IPC.
Consequently, all accused were charged with offences
under Sections 302 and 201 read with Section 149 of IPC.
As the present petitioners were absconding, a split charge
sheet was filed. The remaining accused, namely accused
Nos.6, 7, 10 to 15, 20 and 21, were tried, and upon
conclusion of full-fledged trial, the Sessions Judge,
exercising power under Section 235(1) Cr.P.C., acquitted
them of offences under Sections 143, 120B, 109, 395,
363, 302, 201, 465 and 473 read with Section 149 IPC.
3. In the backdrop of the acquittal recorded by the
Sessions Court in S.C.No.159/2021, the present petition is
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filed on the premise that the principal accused have
already been acquitted of the very offences, and that the
prosecution case against the petitioners are inseparable
from that of the acquitted co-accused. It is contended
that the only allegation against the petitioners pertains to
the alleged criminal conspiracy under Section 120B IPC
and that, in view of the categorical findings recorded by
the Sessions Judge, the petitioners, who stand on the
same footing as the acquitted accused are entitled to
similar relief by exercise of the inherent jurisdiction of this
Court under Section 482 Cr.P.C.
4. Both learned counsel for the petitioners,
adopting identical arguments, have drawn the attention of
this Court to the relevant findings of the Sessions Judge
while acquitting the co-accused. Particular emphasis is
placed on paragraphs 43 to 46 of the judgment to
demonstrate that the prosecution failed to establish the
chain of circumstantial evidence necessary to bring home
the guilt of the accused. It is submitted that the
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allegations and overt acts attributed to the petitioners
limited to the allegation of conspiracy are indistinguishable
from those levelled against the acquitted accused, and the
evidence adduced in the case is inseparable and
indivisible. Therefore, on the principle of parity, the
petitioners are also entitled to the benefit of acquittal. It
is further argued that, even if the prosecution is permitted
to proceed, the likelihood of conviction is extremely
remote, and subjecting the petitioners to a prolonged
criminal trial would amount to abuse of the process of law.
It is also brought to the notice of this Court that the
judgment of acquittal in S.C.No.159/2021 has not been
challenged by the State and has attained finality, and
consequently continuation of proceedings against the
petitioners is unwarranted.
5. Per contra, the learned HCGP, while not
disputing the judgment of acquittal in S.C.No.159/2021,
contends that the petitioners were absconding, resulting in
the filing of a split charge sheet, and that they must face
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trial independently. It is argued that, in view of the grave
nature of allegations, including the offence under Section
302 read with Section 120B IPC, the proceedings cannot
be quashed under Section 482 Cr.P.C. merely because the
co-accused have been acquitted.
6. Having heard learned counsel for the petitioners
and the learned HCGP for the State, this Court considers it
necessary, before proceeding further, to examine the
crucial findings recorded by the Sessions Judge while
acquitting the co-accused. Paragraphs 28 to 46 of the
judgment are therefore relevant and are required to be
extracted for proper consideration.
"28. Similarly in his further cross-examination by
the learned PP at para-13 and 14 when a suggestion was
put to the witness in respect of phone call dated
01.02.2020 made by accused No.1 as well as alleged
incident dated 02.02.2020 that as per information given
by accused No.6. 7 and 14, accused No.5 to 7, 9, 10, 12
and 21 have kidnapped the deceased Taslim for ransom
and handed over to accused No.17 and then came to
know that his brother has been murdered for that he has
given police supplementary before the CCB statement
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Mangaluru, but PW.14 has specifically denied the same as
false. So this material evidence of PW.14 -complainant
itself demolishes entire case of the prosecution.
29. So also, during the course of cross-examination
by the learned defence counsel also PW.14 admits that
about 3 to 4 criminal cases came to be registered against
his brother for illegal liquor business and pleads ignorance
about his presence during TIP by the Tahasildar
Kalaburagi. In his further cross-examination though states
that the alleged incident has taken place within 3-4
minutes and can identify accused No.6 -Irfan and one
Yasmin, but he pleads ignorance as to accused No. 17 has
committed murder of deceased Taslim. The process of TIP
also not proved by the prosecution by examining CW.55
then Tahasildar Jewargi, as such his report has no
evidentiary value. This is also one of the circumstances to
disbelieve the case of the prosecution. In his further
cross-examination the suggestions made and denied by
the witness.
30. Coming to the evidence of PW.29-Yasmin who
is none else wife of deceased Mutaslim states that CW.1
and 32 are her in-laws, her deceased husband was doing
liquor business in Dubai, he returned back but was not
doing anything. Further though states that accused No.1
was threatening, but she has turned against her
statement as well as supplementary statement made
before the police.
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31. In her cross-examination by the learned PP
except the fact that CW.1. 27 and 30 were accompanied
with her husband while returning to native place from
Kalaburagi prison, she has specifically denied the
suggestion that at that time about 6-7members
kidnapped her husband as stated by CW. 1. Further when
a suggestion was put to the witness by the learned PP
based on Ex.P.80 statement and Ex.P.81 supplementary
statement, she has specifically denied the same, which is
also materially affects the case of the prosecution.
32. So also, PW.30 who is none other than mother
of deceased states that earlier her son was working at
Mumbai and then went to Dubai. but she does not know
what was doing there and police have not enquired her
about the incident, she states that accused No.1
murdered her son through others.
33. In her cross-examination by the learned PP
except the fact that CW.1, 27 and 30 were accompanied
with her son while returning to native place from
Kalaburagi prison. nothing has been supported to believe
the case of the prosecution as stated in Ex.P.82 and 83
statement and supplementary statement of the said
witness, which is fatal to the case of the prosecution.
34. PW.31- Wasim one of the relatives of the
deceased who said to have received the dead body of
Taslim after examination of PME also turned against the
statement and supplementary statement made before the
police as per Ex.P.84 and 85, except the fact that though
he heard that accused No.1 murdered Taslim through
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accused No.4, but say he did not know reason behind the
crime and nothing has been supported in his cross-
examination by the learned PP. which is contrary to the
case of the prosecution.
35. Coming to the evidence of PW.38 the then
Junior Engineer of PWD Sub Division Jewargi he deposed
that as per requisition received from the police, he visited
the spot on 21.03.2020 shown by CW.57 CPC-859 of
Jewargi Police Station and he prepared spot sketch as per
Ex.P.95. In his cross-examination it has been elicited that
though he prepared rough sketch on the spot, but he has
prepared Ex.P.95 in the office itself. So evidence of Pw.38
also not worthy of credence.
36. PW.28 Ranganath then PC-2367 of Bantwal city
PS Mangaluru has deposed that on 02.02.2020 in the
evening dead body of Taslim was being shifted from the
open place of Shanti Nagar to Venlock hospital and one
Kashinath police of Nelogi police accompanied him to the
hospital. In his cross-examination only suggestions made
and denied by the witness.
37. With regard to last seen theory is concern,
generally the last seen theory comes into play when there
will be time gap between accused and deceased were
seen last alive and when deceased found dead. It is
settled that when role of the accused persons is not firmly
established then it is not appropriate to convict the
accused persons.
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38. So the conduct of accused persons and the fact
of last seen together plus other circumstances have to be
looked into. Coming to the version of PW.22 to 25 who
said to have last seen the deceased along with accused
No.6 to 12 at Bellur have also turned against their
statements made before the police and not supported the
case of the prosecution. So in this context it is not
obligatory on the part of the accused to explain the
circumstances in which the deceased and accused persons
parted company.
39. It may be noted that Section 8 of the Indian
evidence Act deals with relevance of motive in criminal
trial. With regard to relevancy of motive is concern it is
well settled that motive is not an ingredient of the offence
and it is only a reason which prompts intention. It may be
noted that so far as in respect of the fact that deceased
and accused No.2 who said to have done illegal business
in abroad and while doing so accused No.2 had animosity
with the deceased who said to have caused loss of 4.00
crores and informed about his illegal activities with the
concerned police. But in this regard except version of
hearsay witnesses absolutely there is no evidence on
record.
40. As discussed supra in this connection in the
cross-examination of PW.14 by the learned PP though
admits that there was enmity between deceased brother
in respect of their illegal business at Dubai and UAE and
also admits that accused No.1 to 3 were threatening his
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brother in connection with Khaliya Rafiq murder case and
conspiracy to eliminate his brother with the help of people
of accused No.1. but when a specific suggestion was put
to the witness that as per say of accused No. 15, accused
No. 19 at the instance of accused No.1 to 4 planned to
kidnap his brother through accused No.5 to 7 and hand
over him to the people of accused No. 1. he denied as
false. As such the motive is also not established by the
prosecution.
41. With regard to alleged conspiracy is concern
PW.27 and 32 who are the material witnesses heard
about conspiracy of alleged murder while sharing
thoughts amongst accused No.2 and 4 also turned hostile.
42. Then, voluntary statements of the accused
No.6. 10, 11, 12, 14, 15, 20 and 21 is concerned, the
essential ingredient of Section 27 of Evidence Act is that,
the information given by the accused must lead to be
discovery of the fact which is the direct outcome of such
information and only such portion of information given as
is distinctly connected with the said discovery is
admissible against the accused. So, now it is clear that
the discovery of fact must relate to the commission of
some offence. In this regard, the last few lines of
voluntary statements of and recovery of material objects,
but the aforesaid confessional statements of accused have
not been proved by the prosecution in accordance with
law and as rightly argued by the defence counsel
voluntary statements of accused are hit by the provisions
of Section 25 of Evidence Act.
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43. It is worth to note that admittedly none of the
witnesses have supported the case of the prosecution.
though during the examination of the accused under
Section 313 of Cr.P.C. through VC nothing worth has been
explained, but when the prosecution has failed to
discharge the initial burden of establishing the prima facie
guilt of the accused beyond all reasonable doubt then
Section 106 of Indian Evidence Act being an exception to
Section 101 of the Evidence Act does not attract.
44. Admittedly the prosecution has failed to secure
and examine remaining material witnesses like Scientific,
Medical, Official witnesses and IOs who also did not come
forward to give evidence before the court. So non
examination of these material witnesses is also fatal to
the case of the prosecution. Moreover, the material on
record do not suggests that all the accused have hatched
a plan and committed the murder of deceased Taslim.
Further there is no specific evidence on record as to which
of the accused has committed specific offence.
45. In the case on hand there are material
contradictions in the evidence of witness and there are
omissions and irregularities in the investigation. For these
reasons it can be held that the circumstantial evidence
thereupon reliance has been placed by prosecution cannot
be said to have formed a complete link in the chain to
arrive at the guilt of the accused, as such in the absence
of other corroborative evidence it is not safe to rely upon
evidence of hearsay witnesses only for the purpose of
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coming to the conclusion that accused have pre-planned
then intentionally kidnapped and committed murder of
deceased Taslim.
46. In these circumstances, it can be held that
prosecution has failed to prove its case beyond shadow of
doubt. Therefore, I am of the opinion that there is no
positive evidence on record to bring home the guilt of the
accused for the alleged offence. For the aforesaid reasons
arguments advanced by the learned PP is liable to be
rejected. On the other hand arguments canvassed by the
learned counsel for the accused holds good.
Consequently. accused No.6. 7. 10 to 15, 20 and 21 are
entitled for acquittal of the aforesaid offence. Hence, I
answer Point Nos-1 to 4 are in the Negative."
7. On a careful reading of the detailed
observations made by the learned Sessions Judge which
formed the basis for acquittal of the co-accused, it
becomes abundantly clear that the allegations against the
present petitioners stand on the same footing as those
levelled against the acquitted accused. Insofar as accused
Nos.16 and 19 in Criminal Petition No.201568/2025 are
concerned, the only allegation pertains to their alleged role
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in hatching a criminal conspiracy. Likewise, in Criminal
Petition No.200265/2025 arising out of S.C.No.206/2024,
the allegations against accused Nos.2 and 3 relate to an
alleged animosity harboured by accused No.2 who was
residing in the United Arab Emirates towards CW.27, as
well as the alleged act of engaging accused Nos.13 and 14
to kidnap and murder the deceased. These allegations are
wholly interwoven with the broader prosecution theory
which has already been disbelieved in its entirety by the
Sessions Court.
8. The extracted findings from paragraphs 28 to
46 of the Sessions Court judgment disclose several crucial
deficiencies which directly impact the sustainability of the
prosecution against the present petitioners. The Sessions
Judge has categorically noted that the principal witnesses,
namely PW.22 to PW.25, who allegedly last saw the
deceased in the company of accused Nos.6 to 12 at Belur,
have turned completely hostile. Further, the Sessions
Judge, while analysing the cross-examination of PW.14,
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the complainant, has highlighted that this witness
specifically denied the core allegation that the deceased
was kidnapped at the instance of accused Nos.1 to 4. The
Sessions Judge has also adverted to the voluntary
statements of accused Nos.6, 10, 11, 12, 14, 15, 20 and
21 and has concluded that the prosecution has failed to
establish the essential ingredients of Section 27 of the
Indian Evidence Act, and that the alleged recoveries are
not proved in accordance with law. In addition, the
Sessions Court has identified material contradictions,
omissions, and serious lapses in the investigation,
ultimately holding that the chain of circumstantial evidence
relied upon by the prosecution does not form a complete
and unbroken link pointing to the guilt of the accused. On
this overall assessment, the co-accused, namely accused
Nos.6, 7, 10 to 15, 20 and 21, were acquitted of all
charges under Sections 143, 120B, 109, 395, 363, 302,
201, 465 and 473 read with Section 149 of IPC.
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9. The learned counsel for the petitioners has
placed reliance on the judgment of the Hon'ble Supreme
Court in CBI v. Akhilesh Singh (AIR 2005 SC 268) as
well as the judgment of the Co-ordinate Bench in Muneer
Ahmed Qureshi @ Gaun Muneer v. State of
Karnataka [2002 (1) KCCR 1]. The principles laid down
therein, particularly that where the evidence against co-
accused is inseparable and indivisible and the main
accused have been acquitted on merits, continuation of
proceedings against the absconding accused would be an
abuse of process squarely apply to the present case.
Here, the prosecution case rests solely on circumstantial
evidence. The most crucial circumstance, namely the "last
seen" theory, has collapsed in view of key witnesses
turning hostile. Once the substratum of the prosecution
case has been completely dislodged by the findings in S.C.
No.159/2021, this Court is of the considered view that the
present petitioners, who face allegations of identical and
inseparable nature, cannot be compelled to undergo a
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full-fledged trial. Accordingly, the petition deserve to be
allowed and the proceedings pending against accused
Nos.16 and 19, accused Nos.2 and 3, and accused No.5
are liable to be quashed.
10. As already discussed, even if the sessions cases
were to be independently prosecuted, the likelihood of
conviction of the petitioners is extremely remote. In fact,
in light of the categorical findings recorded by the Sessions
Court in S.C.No.159/2021, the possibility of conviction is
virtually non-existent. Subjecting the petitioners to a
prolonged criminal trial in such circumstances would
amount to permitting an abuse of the judicial process,
which this Court cannot countenance. Therefore,
continuation of the proceedings is wholly unwarranted and
liable to be quashed.
11. In view of the foregoing discussion, this Court
proceeds to pass the following:
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ORDER
(i) The petition is hereby allowed.
(ii) The proceedings pending in CC
No.180/2024 arising out of Crime No.18/2020 of
Nelogi Police Station, Dist. Kalaburagi for the
offences punishable under Sections 120(B), 109,
395, 364, 302, 201, 303, 465 and Section 473 of
Indian Penal Code, 1860, pending before Civil
Judge and JMFC, Jevaragi, insofar as the
petitioners are concerned, are hereby quashed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NJ
List No.: 2 Sl No.: 18
CT:SI
