IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.6826/2017 BETWEEN 1. FAIZAL S/O ABDUL RAZAK AGED ABOUT 28 YEARS OCCUPATION DRIVER R/O KONCHAR, VISHALNAGAR MODUBIDARE MANGALORE TALUK DAKSHINA KANNADA DISTRICT – 574 227 2. MOHAMAD ARIS S/O ABU SALI AGED ABOUT 24 YEARS OCCUPATION DRIVER R/O PATHIMA MANJIL THODAR MIJARA MANGALORE DAKSHINA KANNADA DISTRICT – 575 001 3. IMTIYAZ S/O YAKUBU AGED ABOUT 30 YEARS OCCUPATION DRIVER R/O KAI KAMBA ADDURU, MANGALORE TALUK DAKSHINA KANNADA DISTRICT – 575 001 4. BADRUDDIN S/O K. MAHAMAD AGED ABOUT 26 YEARS OCCUPATION LABOURER R/O DERALAKKI HOUSE NADA VILLAGE, MONJOTTI POST BELTHANGADDI TALUK DAKSHINA KANNADA DISTRICT – 574 214 5. MOMAMAD SHARIF S/O ABU SALI AGED ABOUT 26 YEARS OCCUPATION DRIVER R/O PATHIMA MANJIL THODAR MIJARA MANGALORE DAKSHINA KANNADA DISTRICT – 575 001 ... PETITIONERS (BY SRI. HARISH KUMAR M.S., ADV.) AND STATE OF KARNATAKA REPRESENTED BY PSI NAGARA POLICE STATION HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 401 ... RESPONDENT (BY SRI. SANDESH J.CHOUTA, SPP-II) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.03.2017 IN S.C.NO.10036/2016 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR AND ALLOW THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioners and the learned SPP for the State. Perused the records.
2. The respondent-police have charge sheeted the accused-petitioners for the offences punishable under Sections 4,5,9 and 11 of Karnataka Prevention of Cow Slaughter & Cattle Prevention Act 1964 and Section 11(1)(D) of Prevention of Cruelty to Animals Act, 1960 and under Section 192 of Indian Motor vehicles Act, 1988 and under Section 379 ,353 and 307 of IPC. Subsequently, the petitioners have filed an application under Section 239 of Cr.P.C. for their discharge for the offence under Section 307 of IPC. As ingredients of Section 307 of IPC have been made out, the learned Sessions Judge after hearing both parties rejected the said application. Being aggrieved by the same, the present petition is filed.
3. The contention of the petitioners-accused is that the contents of the FIR, if it is read there is no semblance of material to attract the offence under Section 307 of IPC. The complainant is a sole witness. So far as this aspect is concerned, one could specifically say how the offence under section 307 of IPC is attracted. Learned Sessions Judge has rejected the said application on the ground that there are statements of the witnesses, who have stated about the incident recorded by the police.
4. In order to attract Section 307 of IPC, the ingredients should be established by the prosecution, which reads as under:
307. Attempt to murder-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment t for life) or to such punishment as is hereinbefore mentioned.
5. Therefore, in order to attract this provision, there must be intention or knowledge, under such circumstances, if that act of the accused caused death, if he would have been guilty of murder, but the persons survives, then the offence under section 307 IPC is made out. Therefore, it goes without saying irrespective of the injuries sustained by the party. There may be constitution of the offence under Section 307 of IPC.
6. In this back ground, if it is seen that it is Y Anathamurthy, RFO, who is CW1 as per the charge sheet papers has specifically stated that on 8.8.2015 he observed one Scorpio, blue coloured vehicle was proceeding towards Hosangadi from Mastikatte, in Shivamogga District. When he stopped the said vehicle, the driver has taken the said vehicle backwards and stopped the same vehicle and thereafter got down and ran away from the spot. However, two other persons who were there have tried to assault the complainant and thereafter they also ran away from the spot. The said CW.1 telephoned to the higher ups and thereafter the PSI and other staff came to the spot and there afterwards conducted the mahazar etc., There is no allegation in the FIR itself to show that this complainant was behind the said car Scorpio vehicle, when the driver wanted to take reverse of the said vehicle. It is also stated in the FIR that, the driver of the said car made any attempts to run over on the complainant. The said allegations are conspicuously absent in the FIR. However, same has been incorporated in the charge sheet papers. Learned Judge has also observed that specifically none of the witnesses have stated that the accused persons have made any attempts to do away with the life of CW1. There are no circumstances established on perusal of the charge sheet papers, particularly the FIR allegations with regard to attraction of Section 307 of IPC. Under the above said circumstances, the trial court has not properly looked into the allegations made in the FIR and the statement of the witnesses, but very casually stated that allegations are there in the charge sheet papers, therefore, charges have to be framed under Section 307 of IPC.
7. Under the above said circumstances, though there was no weapons used by the accused persons or no assault is there on the complainant-CW1 and further no specific allegations are made that this witness was just behind the said vehicle when the driver wanted to take away the vehicle on the reverse side. Therefore, the learned Sessions Judge has committed serious error in framing charge under Section 307 of IPC. Under the above said circumstances, the order passed by the learned Sessions Judge under Section 239 of Cr.P.C. deserves to be set aside. Hence, the following:
ORDER The petition is allowed. The order passed by the learned V Addl. District & Sessions Judge, in S.C.No.10036/2016 under Section 239 of Cr.P.C. is hereby set aside. Consequently, the application filed under Section 239 of Cr.P.C. is hereby allowed. The petitioner–accused is discharged for the offence punishable under Section 307 of IPC However, the learned Sessions Judge is hereby directed to invoke Section 228(1)(a) of Cr.P.C. and pass appropriate orders in accordance with law.
Sd/- JUDGE PSG