IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5389/2017 BETWEEN:
SRI.MOHAMMED ASIF @ DATHAMMA, S/O. ISUBU BAVA MAJOR, R/AT H.NO.8-14-1175, KODIYAL BAILU, MANGALURU – 575 003 ...PETITIONER (BY SRI. VISHWAJITH SHETTY, ADVOCATE) AND:
1. STATE OF KARNATAKA MANGALURU NORTH POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS, BENGALURU – 560 001 2. SHIEK HABEEB RAHAMAN @ NOWSHAD S/O. ABDUL RAHIMAN AGED ABOUT 29 YEARS, JULEKHA MANZIL, CPC COMPOUND, KUDROLI MANGALURU DK.
...RESPONDENTS (BY SRI. S. RACHAIAH, HCGP FOR R-1) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS PENDING BEFORE THE CRL. S.J., D.K., MANGALURU IN S.C.NO.60/2017 REGISTERED FOR THE OFFENCE P/U/S 143, 144, 147, 148, 324, 341, 307, 504 AND 506 R/W 149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is seeking for quashing of proceedings pending in S.C.No.60/2017, which is a split-up charge sheet filed for the offences punishable under Sections 143, 144, 147, 148, 324, 341, 307, 504 and 506 r/w Section 149 IPC contending interalia that co-accused, who are tried in S.C.No.38/2008 by the Prl. Sessions Judge, Dakshina Kannada, Mangalore, have been acquitted and petitioner also stands on same footing and as such, on the ground of parity he is entitled for acquittal. Hence, it is contended that continuation of proceedings against petitioner would be an abuse of process of law and prays for quashing of the proceedings.
2. The gist of prosecution case is that, on 14.08.2007 at about 2.00 p.m. there was a dispute relating to flying of pigeon at Mangaluru City between complainant and accused No.1 & 5 having warned the complainant in that regard, matter came to be settled, but on the same night at about 8.40 p.m. near Koya compound, Jodupalli of Kudroli in Mangalore City, accused No.1 to 9 formed themselves an unlawful assembly with the common object of assaulting complainant –Sheik Habib Rehaman @ Naushad and as such, wrongfully restrained him and obstructed him from proceeding on a public road and assaulted him by means of a sickle and caused hurt and as such it was alleged that accused persons with an intention to murder the complainant had committed such acts.
3. On registering said complaint in Cr.No.152/2007 jurisdictional police investigated the matter and filed a charge sheet in S.C.No.38/2008. Since accused No.6 was declared as absconding, trial proceeded against accused Nos.1, 2, 4, 5, 7 and 8. Perusal of judgment of Sessions Judge rendered in S.C.No.38/2008 on 29.12.2010 would disclose that all the prosecution witnesses including complainant had turned hostile. As such, learned Sessions Judge has recorded the following opinion for acquitting the accused Nos.1, 2, 4, 5, 7 and 8 and it reads:
“23. On going through the evidence on record, it is seen that the injured complainant himself has not supported the case of the prosecution. The seizure of bloodstained cloths of injured has also not been established. Though the prosecution has tried to establish that on the basis of voluntary statement of accused 2 the sickle used for commission of the offence came to be seized in the case, the said recovery is not supported by independent hostile and did not support the case of the prosecution. In the absence of corroborative evidence conviction cannot be based on the sole testimony of the investigating officer. Absolutely no material is forthcoming against the accused persons in order to hold that they are guilty of alleged offences and as such they are liable to be acquitted of the said offences. Taking into consideration the absence of material evidence to connect the accused persons with the alleged offences, it has to be held that the prosecution has failed to prove the offences alleged to have been committed by the accused persons. Accordingly, I answer the above point nos.1 to 8 in the negative.”
4. As could be seen from the allegations made in the complaint and charge sheet material against the present petitioner, who has been arraigned as accused No.6 in S.C.No.68/2010 and accused in split up charge sheet in S.C.No.60/2017, it would clearly disclose that allegations are one and same. In that view of the matter and also in view of the fact that all eye witnesses to the alleged incident having turned hostile and proceedings against accused Nos.1, 2, 4, 5, 7 and 8 having ended in acquittal, continuation of present proceedings in S.C.No.60/2017 against petitioner (accused No.6) would not only be an exercise in futility but also waste of judicial time.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is hereby allowed.
(ii) Proceedings pending against petitioner in S.C.No.60/2017 on the file of Prl. District and Sessions Judge, Dakshina Kannada, Mangaluru, is herby quashed.
(iii) Petitioner is acquitted of the offences punishable under Sections 143, 144, 147, 148, 324, 341, 307, 504 and 506 r/w Section 149 IPC.
SD/- JUDGE DR