IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.701/2019 BETWEEN:
1. ERAMMA W/O SIDDAPPA AGE: 49 YEARS.
2. SMT. DRAKSHYANAMMA W/O SIDDAPPA AGE: 49 YEARS OCC: HOUSE WIFE.
3. NAGARAJA B.S S/O SIDDAPPA AGE: 29 YEARS.
4. PANCHAKSHARI S/O SIDDAPPA AGE: 33 YEARS.
5. PRABHAKARA B.S S/O SIDDAPPA AGE: 35 YEARS.
R/O DEGARADAHALLI BASAVAPURA VILLAGE CHANNAGIRI TALUK DAVANGERE DISTRICT – 577 213.
(BY SRI. PRASAD B.S., ADVOCATE) AND:
STATE OF KARNATAKA BY CHANNAGIRI POLICE STATION DAVANAGERE DISTRICT REP. BY S.P.P., HIGH COURT BUILDING BENGALURU - 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... PETITIONERS ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED:05.10.2018 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC AT CHANNAGIRI, IN C.C.NO.726/2016.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought for quashing of the order dated 05.10.2018 passed in C.C.No.726/2016 by Additional Civil Judge and JMFC, Channagiri, whereunder application filed by the prosecution under Section 319 Cr.P.C,. for arraigning petitioners as accused Nos. 2 to 6 has been allowed.
2. A complaint came to be lodged on 27.09.2016 by Smt. Shashikala alleging that her husband owned 2 Acres and 6 guntas of land in Sy.No.32/1 of Basavapura village, Kasaba Hobli, Channagiri Taluk wherein Areca trees had been planted and on 25.09.2016 at about 2.30 p.m, the cousins of her deceased husband namely, Sri. Siddappa along with his two wives Smt. Eeramma and Smt.
Drakshayanamma and their children trespassed into the said land and abused her and assaulted her and with the help of a JCB they uprooted the existing areca trees, causing loss to the tune of `40 Lakhs. As such, she seeks for suitable action being taken against them.
3. Jurisdictional Police after completion of investigation has filed charge sheet in C.C.No.726/2016 for the offence punishable under Sections 447 and 427 IPC against accused No.1 and accused Nos. 2 to 6 were dropped from the charge sheet. On framing of the charges learned trial Judge has proceeded with the trial and during the course of trial application under Section 319 Cr.P.C. came to be filed by the prosecution contending interalia that complainant has alleged in her complaint about overt-acts of the proposed accused namely, petitioners herein and this aspect had been ignored by the investigating officer and they had been dropped from charge sheet erroneously and on account of complainant - C.W.1 who was examined as P.W.2 in her deposition had reiterated her plea as alleged in the complaint and as such, has held it is necessary to add petitioners who had been dropped from charge sheet as accused Nos. 2 to 6. On filing of such application petitioners have been notified and by impugned order application came to be allowed. Hence, this petition.
4. I have heard the arguments of Sri. B.S. Prasad, learned Advocate appearing for petitioners and Sri. S. Rachaiah, learned HCGP appearing for the respondent. Perused the records.
5. Having heard the learned Advocates appearing for parties and on perusal of records, it would clearly disclose that complainant had specifically alleged in her complaint that at the time of incident taking place viz., when she was abused and assaulted Sri. Hanumanthappa and Smt. Gollara Basamma were present at the spot and they had intervened and pacified the accused persons and prevented them from further assaulting the complainant. She has stated in her complaint to the following effect:
“D ¸ÀAzsÀ¨sÀðzÀ°è £ÀªÀÄä UÁæªÀÄzÀªÀgÁzÀ ºÀ£ÀĪÀÄAvÀ¥Àà ºÁUÀÆ UÉÆ®ègÀ §¸ÀªÀÄä EªÀgÀÄ dUÀ¼ÀªÀ£ÀÄß ©r¹gÀÄvÁÛgÉ.”
6. The jurisdictional police during the course of investigation have recorded the statements of Sri. Hanumanthappa and Smt. Gollara Basamma who have clearly stated that they were not present at the scene of incident on 25.09.2016 when the alleged incident took place.
7. Though, Sri. S. Rachaiah, learned HCGP would contend that other witnesses not cited as eye witness by the prosecution had supported the complainant’s version namely, Sri. K. Manjappa -
C.W.10 though looks attractive at first blush, same cannot be accepted for the simple reason that it is neither the case of the complainant nor version of other witnesses having stated that Sri. K. Manjappa was at the spot when incident in question took place. In fact, plain reading of his statement would disclose that he was not at the spot when the alleged incident took place. He has not even whispered about any altercation which took place between complainant and petitioners. In the absence of such statement, the sole testimony of the complaint cannot be relied upon though in her (P.W.1) cross-examination she has reiterated what was alleged by her in her complaint. However, in her further statement recorded by the Investigating officer under Section 161 Cr.P.C she has retraced her steps with regard to the allegation made against accused Nos. 2 to 6 which fact also cannot go unnoticed.
8. Though, Sri. S. Rachaiah, learned HCGP is correct in contending that complainant has been treated as hostile was cross-examined and she has admitted in her cross-examination that she has not furnished further statement to the Investigating Officer, it does not make any difference. The fact remains that in cross-examination she has reiterated that Sri. Hanumanthappa and Smt. Gollara Basamma were present at the time of incident and as already noticed hereinabove though they were not present at the scene of incident and as such adding petitioners as accused Nos. 2 to 6 would not be just and proper. The alleged eye witnesses have stated in their statement recorded under Section 161 Cr.P.C by Investigating Officer about not being present at the scene of incident and as such police had dropped the names of petitioners from the charge sheet which is a good ground to dismiss the application filed by the prosecution under Section 319 Cr.P.C. In the absence of, material either prima facie establishing petitioners presence at the spot or witnesses supporting the allegation made by the complainant adding petitioners as accused and directing them to undergo ordeal of trial would definitely be un just, illegal and onerous.
9. For the reasons aforestated, this Court is of the considered view that impugned order would not stand test of law.
Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Impugned order dated 5.10.2018 passed in C.C.No.726/2016 by Additional Civil Judge and JMFC, Channagiri is hereby set aside.
(3) Application filed by prosecution under Section 319 Cr.P.C. is hereby dismissed.
In view of petition have been allowed, I.A.No.1/19 for stay does not survive for consideration. Hence, it is rejected.
SD/- JUDGE RU