IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8044/2018 BETWEEN:
DADAPAL ABDUL RAHAMAN @ ABDUL RAHAMAN S/O MAMU BEARY AGED ABOUT 39 YEARS R/A SHAHEEDA MANZIL GOTAMAJALU HOUSE BANTAWALA TALUK D.K.DISTRICT – 574 222 ... PETITIONER (BY SRI.LETHIF B, ADVOCATE) AND:
1 STATE OF KARNATAKA BY SURATKAL POLICE STATION REP. BY THE S.P.P.
HIGH COURT BUILDING BANGALORE 560 001 2 SRI POVAPPA MOOLYA S/O LATE GIRIYA MOOLYA AGED ABOUT 63 YEARS R/A SRIVEDI KRUPA M.R.P.L.COLONY CHELLYARU VILLAGE D.K.DISTRICT 575231 ... RESPONDENTS (BY SRI S RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN S.C.NO.86/2009 (CRIME NO.219/2006) OF SURATHKAL POLICE STATION, D.K., DISTRICT ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is arraigned as accused No.5 in SC No.86/2009 (split up case in S.C.No.51/2007) on the file of II Additional District and Sessions Judge, Dakshina Kannada, Mangaluru.
2. Petitioner has claimed that some of the accused persons who came to be tried in S.C.No.51/2007 are acquitted by trial Court as per judgment dated 28.03.2018 and as such, facts and circumstances of this case and allegations made against petitioner as well as allegation made against those accused who were acquitted are one and same and as such, he prays for quashing of the proceedings. Due to petitioner’s absence, split up charge sheet came to be in SC No.86/2009 now pending on the file of the II Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru. Hence, petitioner claims that benefit of judgment of acquittal may be extended to petitioner and consequently, all further proceedings against him now pending in SC No.86/2009 may be quashed.
3. The benefit of judgment of acquittal can also be extended to an absconding accused person against whom a split up charge sheet has been registered and consequently quash the proceedings only under certain circumstances of the case. This aspect has been extensively dealt with by the Hon'ble Apex Court and this court.
4. In this regard, it is worthwhile to note here the decision of Hon'ble Apex Court reported in the case of CENTRAL BUREAU OF INVESTIGATION VS.
AKHILESH SINGH reported in AIR 2005 SC 268 wherein, it was held that:
“Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would be served in further proceeding with case against co- accused held proper.”
5. In the case of MUNEER AHMED QURESHI, MUNEER @ GAUN MUNEER VS. STATE OF KARNATAKA BY KUMARASWAMY LAYOUT POLICE, reported in 2002(1) KCCR 1 , this Court has held :
“Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner. Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted.
Holding that the proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed, is quashed.”
6. In the above said backdrop and the dictum of the Hon'ble Apex Court and this court, the only point that requires for consideration of this court in the instant case is :
“Whether the material placed before the court against the accused persons who were already acquitted and the material available against the petitioner herein, are one and the same and inseparable if juxtaposed, compared with each other”.
If the allegations are indivisible and inseparable in nature, in such an eventuality, the judgment of acquittal can also be extended to the absconding accused persons or against whom, a separate split up charge sheet has been filed. Therefore, it is incumbent upon the court to examine the materials on record to find out whether the petitioner is entitled for such benefit in a given particular case. Therefore, it is just and necessary to ascertain the factual aspects of this case.
7. It is the case of the prosecution that as could be seen from the original charge sheet and as well as the factual matrix that emanate from the judgment recorded by the trial Court are that :
“Accused Nos.1 to 3, 14 and 15 along with the driver of car bearing No.TN-43/S-4617, with deadly weapons, with the common object, committed criminal conspiracy with an intention to commit murder of Sukananda Shetty, who was the worker of BJP and Sangha Parivar Organization in Mangaluru. With that criminal conspiracy, on 1.12.2006 to an alley road by the side of Marble Traders of Vinaya Kumar Goel, Kulai, the accused persons restrained him and assaulted him with talvars and clubs and caused grievous injuries. On the basis of the complaint lodged, the Police Inspector, Surathkal Police Station, had submitted a charge sheet in Crime No.219/2006 against the accused Nos.1 to 13 for the offence punishable under sections 143, 144, 147, 148, 341, 323, 109, 120B, 212 and 302 read with Section 149 of IPC. As the accused No.10 did not appear for the trial, the trial Court ordered to register a split up case against him in SC No.19/2009 for the offences punishable u/ss.143, 144, 147, 148, 341, 323, 109, 120-
B, 212 and 302 read with Section 149 of IPC”.
8. On the basis of the above said allegations, respondent Police have registered a case in Crime No.219/2006 and after investigation had submitted a charge sheet. After committal, accused Nos.1-4 and 6 to 9 were secured in SC No.51/2007 and connected matters. Subsequently, charges came to be framed against the accused persons therein including the accused who were absconding, as the allegations are inseparable.
9. The prosecution in order to prove the guilt of the accused has examined as many as 7 witnesses and got marked 10 documents as Exhibits P-1 to P-
10 in S.C.No.51/2007. After appreciating the oral and documentary evidence, the Sessions Court has arrived at a conclusion that there was no acceptable evidence to prove that accused have committed the offences charged against them. The court has also observed that, the material witnesses have not supported the case of the prosecution particularly PWs.1 to 3. Therefore, the court has acquitted some of the other accused persons for the alleged offences.
10. On careful perusal of the materials on record, the allegations made against the petitioner and other acquitted accused persons, it would disclose that they are one and the same and they are inseparable and indivisible in nature. The evidence that has already been placed by the prosecution and appreciated by the trial Court also reveal that the allegations against the petitioner are not distinct and separate from the other acquitted accused persons.
11. Under the above said facts and circumstances of the case, considering the factual aspects of this case, no purpose would be served if the petitioner is once again tried for the same offences as the prosecution cannot put forth any better evidence than the one already placed and appreciated by the trial Court. Hence, petitioner is entitled for the benefit of acquittal. If the proceedings is permitted to be continued, same amounts to waste of judicial time and also abuse of process of the court.
Hence, I proceed to pass the following:
ORDER (i) Criminal Petition is hereby allowed.
(ii) Further proceedings in Sessions Case No.86/2009 (arising out of Crime No.219/2006 of Surathkal Police Station) pending on the file of the II Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, against the petitioner herein is hereby quashed.
SD/- JUDGE *sp