IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S.KINAGI CRIMINAL RP NO.341 OF 2017 BETWEEN:
MALLESHAPPA CHIKKERI S/O MAHALIGAPPA CHIKKERI AGED ABOUT 72 YEARS, RESIDING AT PRATHEEK, GANDHINAGAR, DHARWAD-580 004.
……PETITIONER (BY SRI. N V MANJUNATH, ADVOCATE) AND:
1. ADARSHA SHETTY AT PRESENT AGED ABOUT 30 YEARS, S/O SHANKAR SHETTY OCCUPT: STUDENT R/AT BEAR HOUSE, KUNDAPURA, UDUPI DISTRICT PIN CODE NO-576 201.
2. VIJESH SHENOY AT PRESENT AGED ABOUT 26 YEARS, S/O CHANDRAKANTH SHENOY, GANESH KRUPA, BEHIND NEW CHITRA TALKIES, MANGALURU-575 001.
3. ABHIJITH SHETTY AT PRESENT AGED ABOUT 28 YEARS, R/AT SUCHETNA NILAYA, SHIRIYARA, UDUPI DISTRICT PIN CODE NO -576 101.
4. ABHIVRADDHI HEDGE AT PRESENT AGED ABOUT 30 YEARS, S/O ARVINDA HEGDE, R/AT THRISHULA RESIDENCY, 4A, VINAYAKA NAGAR, J.P.NAGAR, IIND STAGE, BENGALURU-560 078.
5. RITHEN SHETTY S/O BHOJA SHETTY, AT PRESENT AGED ABOUT 30 YEARS, R/AT NEAR GANAPATHI TEMPLE, KENCHANOOR VILLAGE, KUNDAPUR TALUK PIN CODE NO -576 201.
6. MAHENDRA N S/O NARASHIMHA SHETTY, R/AT ANUSHA NILAYA, NO.29, 4TH MAIN ROAD, 18TH CROSS, BTM IIND STAGE, BENGALURU-560 076.
7. NISHANTH RAI S/O MAINDAPPAM RAI, AT PRESENT AGED ABOUT 29 YEARS, R/AT AGARTH BAIL HOUSE, MALNADU VILLAGE, BALIYOORKATTE, D.K.DISTRICT-575 001.
8. CHANDRASHEKARA VIJAYA S/O CHANDRASHEKARA, AT PRESENT AGED ABOUT 28 YEARS, R/AT PRASAD BUILDING, GANGANAGARA KUTHI, PONDA-GOA - 403 401.
9. SURENDRA S/O SANJEEVA POOJARI, AT PRESENT AGED ABOUT 36 YEARS, R/AT KADAGI MANE, MOODAKERI, KUNDAPURA-576 201.
10. THE STATE REPRESENTED BY PUBLIC PROSECUTOR, UDUPI DISTRICT, UDUPI-576 101.
…..RESPONDENTS (BY SRI. VINAYAKA V.S, HCGP FPR R-10) THIS CRIMINAL RP IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 5.7.2016 IN CRL.R.P.NO. 9 OF 2013 PASSED BY THE HON’BLE DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA) (ANNEXURE-H) AFTER EXAMINING LEGALITY PROBABILITIES AND CORRECTNESS OF THE PROCEEDINGS AND CONFIRM THE ORDER DATED 20.04.2011 C.C.NO. 799 OF 2011 PASSED BY THE HON’BLE CIVIL JUDGE (JR.DN.) AND J.M.F.C., KUNDAPURA (ANNEXURE-F).
THIS CRIMINAL RP IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This revision is filed by the complainant challenging the order dated 5.7.2016 passed by the Additional District & Sessions Judge, Udupi (sitting at Kundapura), Kundapura, in Criminal Revision Petition No.9 of 2013 2. Heard the learned counsel for the revision petitioner and the learned HCGP.
3. It is the case of the revision petitioner that, he had filed a complaint before the Kundapura Police Station alleging that on 3.5.2005, his son Shreeshaila Chikkeri had gone to Kundapura from Dharwad along with his college friends viz.Surendra, Vijesh, Abhijith, Abhivrudhi, Rithin, Mahendra, Nishantha Rai, Chandrashekar and Vijay to attend the marriage of sister of their friend one Adarsh i.e. respondent No.1 herein. That, on 4.5.2005, at about 10.00 P.M., he received a phone call stating that his son- Shreeshaila Chikkeri, who was staying in Shashidhara Lodge in Kundapura, had jumped from the building and died and that he had been shifted to Kundapura Adarsha Hospital. That, the revision petitioner moved from his native and came to the hospital and identified the dead body and noticed that his son deceased Shreeshaila Chikkeri had sustained injuries on the body. Then, he visited to Shashidhara Lodge, room No.203, where his son deceased Shreeshaila Chikkeri had stayed, and saw that things in the room were scattered, tubelight was broken and saw some blood stains in the room. He then enquired respondents 1 to 9 (accused) and the driver of the vehicle with whom his son and his friends had traveled from Dharwad to Kundapura as he had reasons to suspect that his son Shreeshaila Chikkeri had not died from jumping from the building but had been murdered by the accused for the reasons known to them, as they were all studying with his son Shreeshaila Chikkeri in SDM Engineering College of Dharwad. He therefore, requested Kundapura Police to register a case for the alleged murder of his son Shreeshaila Chikkeri.
Thereafter, the SHO of Kundapura had registered the F.I.R. under its Crime No.136/05 against the respondent for the offences punishable under Sections 143,147,302 & 149 of IPC. Then inquest was prepared in the Government Hospital, Kundapura and investigating officer had visited the spot i.e. Room No.203 of Shashidhara Lodge and collected pieces of broken tubelight, King Fisher bottle pieces, pieces of cigarette and blood stains. Then he also inspected the place where the dead body had fallen and also clothes worn by the accused at the time of shifting the dead body of deceased Shreeshaila Chikkeri. Further recorded the statements of one CW-1 Prabhudeva, CW-2 Nagaraja Byali, driver of the vehicle bearing No.MH-AA- 6149 who had come along from Dharwad along with the deceased and the accused and one CW-3 Avinash, room boy of room No.203, CW-4 Surendra-Receptionist of Shashidhara Lodge, CW-5 Ramachandra, cashier of lodge, CW-6 Manjunath, Beeda shop owner nearby hotel, CW-7 Harish who stated about taking of beer bottle by the accused, CW-8 Dr.Smt.Chaya V. Hebbar who declared the deceased Shreeshaila Chikkeri had died and collected the post mortem report, and submitted ‘B’ report on 16.8.2005.
Further the revision petitioner got opened the case by appealing to the Government and vide order dated 9.12.2005, Karnataka Government Order No.OE:98:COD:05, papers were handed over to COD department and COD investigating officer recorded the statement of the complainant and visited Dharwad, came to Kundapura and collected evidence again in Kundapura, verified the register of Shashidhara Lodge and again recorded the statement of several witnesses and also those witnesses who have been examined by Kundapura CPI, Shekarappa and other relatives of the deceased. The COD department also arrested the accused and subjected them for polygraphy test (lie detection) in the lab. In the end, the test disclosed no signs of deception in their statements and the COD investigating officers arrived at a conclusion that the said deceased Shreeshaila Chikkeri, on 4.5.2005, having consumed excess beer and having lost control over his mind, had fallen from the building through the window of room No.203 situated in second floor and as a result of which, he had died and no other suspicious circumstances or reasons are seen in their investigation. After submission of the ‘B’ report on 8.2.2007, the learned Additional Civil Judge and JMFC, Kundapura, issued notice to the revision petitioner i.e. the complainant who appeared before the Court and engaged an Advocate and filed a detailed protest petition.
In support of the allegations made in the ‘B’ report the revision petitioner Malleshappa and his wife Sharada were examined and the trial Court only on the basis of the evidence of these two witnesses, even though they were not present at the time of incident, registered a criminal case and issued process against the accused on 20.4.2011. The respondents herein, accused, challenging the issuance of process against them, filed Criminal Revision petition No.9 of 2013 before the Additional District and Sessions Judge, Kundapura.
The learned Additional District and Sessions Judge, Kundapura, after considering the entire material on record, has allowed the revision petition filed by the respondents herein and set aside the order passed by the trial Court i.e.
the Additional Civil Judge, Kundapura dated 20.4.2011 passed under Section 204 of Cr.P.C. registering the case in C.C.No.799/2011 and further issuing process to the accused to appear before the court on 5.5.2011.
The revision petitioner aggrieved by the order passed in Criminal Revision Petition No.9 of 2013 dated 5.7.2014, has filed this revision petition.
3. Heard the learned counsel for the parties.
4. The police after registering the case have investigated and recorded the statements of CWs 1 to 8 and found that no allegations have been proved against the respondents/accused by the revision petitioner in regard to their involvement in the alleged incident. The police have filed a ‘B’ report.
5. Thereafter, the revision petitioner got opened the case by appealing to the Government and vide order dated 9.12.2005 of Karnataka Government Order No.OE:98:COD:05, papers were handed over to COD department and COD investigating officer recorded the statement of complainant, visited to Dharwad, came to Kundapura and collected evidence again in Kundapura, verified the register of Shashidhara Lodge and again recorded the statement of several witnesses and those witnesses who have been examined by Kundapura CPI, Shekarappa and also other relatives of the deceased. They also arrested, the accused subjected them to polygraphy (lie detection) test in the lab. In the end, test disclosed that no signs of deception in their statements and the COD investigating officers arrived at a conclusion that the said deceased Shreeshaila Chikkeri on 4.5.2005 having consumed excess beer and having lost control over his mind had fallen from the building through window of room No.203 situated in second floor and as a result of which, he has died and no other suspicious circumstances or reasons are seen in their investigation.
6. After submission of the ‘B’ report, the learned Additional Civil Judge and JMFC, Kundapura, issued notice to the revision petitioner i.e. the complainant who appeared before the Court and engaged an Advocate and filed a detailed protest petition.
7. In support of the allegations made in the ‘B’ report the revision petitioner Malleshappa and his wife Sharada were examined and the trial Court only on the basis of the evidence of these two witnesses, though they were not present at the time of incident, registered a criminal case and issued process against the accused on 20.4.2011.
8. The police and COD have already recorded the statements and came to a conclusion that there were no suspicious circumstances or reasons seen in their investigation. In the instant case, the offences alleged against the respondents/accused are under Sections 143, 147 and 302 of IPC which are serious in nature. In support of the protest petition, revision petitioner has not produced any evidence to show that the respondents are involved in the alleged offences and not examined any independent witnesses to prove that the respondents have committed the alleged offences. The petitioner has not established motive behind the death of the deceased.
9. Statement of the driver of the vehicle has also been recorded in which he has stated that the deceased had been to Kundapura and stated that they reached Maravanthe beach. There the deceased was crying in the vehicle and others were pacifying him and then all of them decided that it was not proper for them to take deceased to the marriage hall in the condition in which he was i.e. in the drunken state of mind and then they came back to Shashidhar Lodge at about 8.20 p.m. and that when the driver was sleeping in the jeep, he heard some noise and got up and the injured deceased was shifted to back seat of the jeep and then he was taken to Adarsha hospital and after some time, his friends came out crying that the said deceased had died.
10. The learned District Judge after perusing the prosecution papers and also the post mortem report, wherein it is disclosed that deceased had died due to Cranio Cerebral injuries as a result of blunt force impact to the head transmitted through the bony spine following a fall from height, opined that the deceased has sustained fatal injuries to head following fall from height and the manner of fall could be ascertained at post mortem examination.
11. Further, the investigated papers clearly indicates that death of the deceased was caused due to fall from height and thereby it is crystallized that these accused have not committed murder of deceased.
12. The revision petitioner has also not pointed out any motive behind the death of the deceased. The said aspect has been overlooked by the trial Court while holding an enquiry under Section 200 of Cr.P.C.
13. The trial Court while holding enquiry under Section 200 Cr.P.C. and while collecting evidence, should hold the enquiry with great amount of caution and carefulness. Further while summoning the accused in a criminal case where serious matter is involved, the Magistrate shall have to assign sufficient reasons in arriving at the conclusion that the offences for which process is to be issued are made out against the respondents.
14. The trial Court has not appreciated the contents of the statements recorded by the CPI and also the statements recorded by the COD and passed an order relying upon the evidence of CWs 1 and 2 – parents of the deceased who were not at all present when the alleged incident took place and that they were residing at Dharwad. Further the conduct of the revision petitioner can be seen from the order sheet pertaining to Crl.RP No.9/2013. He took several adjournments with an intention to harass the respondents. The learned Additional District and Sessions Judge after considering the material on record was justified in setting aside the order passed by the trial Court dated 20.4.2011 in C.C.No.799/2011 and also issuing process to the accused to appear before the Court on 5.5.2011. The respondents are students. They should not be unnecessarily implicated in the criminal case that too, in the absence of any incriminating material or else, their career will be affected.
The revision petitioner has not made out any grounds to interfere with the well reasoned impugned order. I do not find any grounds to interfere with the impugned order. Hence, I proceed to pass the following:
ORDER Criminal Revision petition is dismissed.
SD/-
JUDGE rs