IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.6311/2012 BETWEEN:
Sri. Kempegowda, S/o. Late Muddegowda, Aged about 60 years, R/at Lakana Koppalu, Gowdagere Hobli, Hunsur Taluk, Mysuru District – 571 011. …Petitioner (By Sri. D.C. Srinivasa, Advocate) AND:
1. The State by Bilikere Police Station, Bilikere, Represented by Public Prosecutor, High Court Building, High Court, Bengaluru – 560 001.
2. Krishnegowda, S/o. Late Kalegowda Major 3. Krishnegowda, S/o. Late Basavegowda Major 4. Madegowda, S/o. Late Basavegowda, Major Respondent Nos.2 to 4 are R/at Lakana Koppalu, Gowdagere Hobli, Hunsur Taluk – 571 011 Mysore District. ...Respondents (By Sri. I.S. Pramod Chandra, SPP-II for R1; Sri. Prithviraj B.N., Adv. for R4;
Notice to R2 and R3 dispensed with v/o dated 29.11.2012) This Criminal petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 03.09.2012 made in S.C. No.143/2012 on the file of Presiding Officer, Fast Track Court, Hunsur, Mysure District.
This Criminal petition coming on for Admission this day, the Court made the following:
O R D E R This petition is directed against the order dated 03.09.2012 passed by the Presiding Officer, Fast Track Court, Hunsur in S.C. No.143/2012, whereby the application filed by the Public Prosecutor under Section 319 of Cr.P.C. has been dismissed. By the said order, the State sought to implicate respondent No.4 herein namely Madegowda S/o.Late Basavegowda as co-accused in the proceedings initiated in Crime No.314/2009.
2. The said Crime No.314/2009 was registered based on the complaint lodged by the petitioner Sri.Kempegowda, alleging commission of offences punishable under Sections 447, 435, 436, 427 read with Section 34 of IPC. In the said complaint, he specifically alleged that the incident was reported to him by PW.2 – Kumara that accused No.1 – Krishnegowda S/o.Late Kalegowda, Accused No.2 – Madegowda S/o. Late Basavegowda and Accused No.3 – Krishnegowda S/o. Late Basavegowda have set fire to the motorcycle of the complainant and the same was witnessed by PW.2. However, in the course of investigation, the Investigating Officer recorded the further statement of the complainant and based on the said further statement, dropped accused No.2 – Madegowda S/o. Late Basavegowda from the array of accused and submitted charge-sheet only against original accused No.1 – Krishnegowda S/o. Late Kalegowda and accused No.3 – Krishnegowda S/o. Late Basavegowda.
3. During trial, PW.1 on oath, deposed that the occurrence was reported to him by PW.2 and in his evidence PW.1/the complainant specifically deposed that respondent No.4 namely Madegowda S/o. Late Basavegowda was also one of the culprit who set fire to his motorcycle. PW.2 in his evidence further stated that he personally witnessed the incident and during the occurrence he saw accused No.1 – Krishnegowda S/o. Late Kalegowda, accused No.2 – Madegowda S/o. Late Basavegowda and accused No.3 Krishnegowda S/o. Late Basavegowda setting fire to his motorcycle while he was proceeding to attend nature call at about 12.00’ clock in the night.
4. Learned Fast Track Judge, however has dismissed the application by relying on the answer elicited in the course of cross-examination of PW.2 to the effect that during the incident all his attention was concentrated on the fire. This statement, even if it is accepted, would only establish the presence of PW.2 and would not lead to an inference that he was not an eye-witness to the incident. On the contrary, the statement made by PW.2 indicates that accused No.2/respondent No.4 was also one of the perpetrators of the crime. The statement made by PW.2 in this regard has not been challenged in the course of the cross-examination. It is also pertinent to note that in his chief examination, the complainant has stated that the involvement of respondent No.4 in the alleged occurrence was reported to him by PW.2. This fact has also not been challenged in the course of the cross-examination of PW.2 or PW.1 leading intrinsic corroboration to statement of PW.2 that he had personally witnessed respondent No.4 setting fire to the motorcycle of the complainant along with other two accused.
5. It is the specific case of the prosecution that there were three perpetrators. The said complainant as well as PW.2 have maintained all throughout that three accused persons set fire to the motorcycle. Respondent No.4 was specifically named in the earliest information lodged before the police. All these circumstances, therefore, clinchingly point out the involvement of accused No.2/respondent No.4 in the alleged incident. In the said circumstances, it was wrong on the part of the learned Fast Track Judge to dismiss the application. For the above reasons, the impugned order being contrary to the material on record cannot be sustained.
6. It is also pertinent to note that even though the State had moved the said application, surprisingly, the State has not challenged the order passed by the Fast Track Judge, which again indicates that right from the inception attempt has been made to bail out accused No.2 / respondent No.4. Therefore, taking into consideration the above facts, I proceed to pass the following order:
Petition is allowed.
Impugned order is set-aside. Application filed under Section 319 of Cr.P.C. is allowed. Accused No.2/Respondent No.4 shall be added as a co-accused. Whereafter, the trial Court shall proceed in the matter in accordance with law.
It is made clear that the observations made in this order are confined to the contentions raised in this case and the trial Court shall not be influenced either by the reasoning or by the observations made in this order.
Sd/- JUDGE Sv/-