IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6579 OF 2012 BETWEEN:
SRI. SUDHAKAR AGED ABOUT 30 YEARS, S/O KRISHNAPPA, RESIDENT OF K.K.PET., SIDDALAGHATTA TOWN, CHIKKABALLAPURA DISTRICT.
(BY SRI. RAGHAVENDRA, ADVOCATE) AND:
1. SRI. CHIKKANANJAPPA AGED ABOUT 51 YEARS, S/O LATE ANJINAPPA, RESIDING AT K.K. PET., SIDDLAGHATTA TOWN, CHIKKABALLAPURA DISTRICT.
2. STATE OF KARNATAKA BY SIDDALAGHATTA RURAL POLICE REPRESENTED BY S.P.P.
HIGH COURT OF KARNATAKA ... PETITIONER BENGALURU. ... RESPONDENTS (BY SRI. H. V. SUBRAMANYA, ADVOCATE FOR R-1 SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.9.2012 PASSED IN PCR NO.17/2009 AND PRESENTLY NUMBERED AS C.C.NO.516/2012 PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC., SIDLAGHATTA, CHIKKABALLAPURA DISTRICT, ORDERING PROCESS AGAINST THE PETITIONER FOR AN OFFENCE WHICH IS MADE PENAL UNDER SECs..302, 201 R/W 34 OF IPC AND FURTHER BE PLEASED TO DISMISS THE COMPLAINT OF THE RESPONDENT, IN THE ENDS OF JUSTICE.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is filed under section 482 Cr.P.C. to quash the proceedings in PCR No.17/2009 numbered as CC.No.516/2012 and to set-aside the order dated 17.09.2012 passed by learned Prl. Civil Judge and JMFC, Sidlaghatta.
Heard learned counsel for petitioner and learned Addl. SPP appearing for respondent No.2. Counsel for respondent No.1 has not addressed any arguments. Perused the records.
2. Learned counsel for the petitioner has assailed the impugned orders on three grounds. First, the petitioner herein was earlier prosecuted on the same set of facts for the offences punishable under sections 337, 279, 304A of Indian Penal Code and section 181 of M.V. Act and after trial, he has been acquitted by the trial court in C.C.No.155/2005 dated 28.04.2010. Acquittal of the accused for the above offences has attained finality and therefore, the instant prosecution amounts to double jeopardy and is opposed to section 300 Cr.P.C. and Article 22(2) of Constitution of India. In support of this submission, learned counsel has placed reliance on the decision in K.V. ASHRAF HUSSAIN AND ANOTHER vs. STATE OF KARNATAKA reported in 2010 SCC Online KAR 389. Second, the instant case has been instituted other than on police report. Hence, by virtue of Section 245 of the Code, the evidence produced by the prosecution if unrebutted, would not end in conviction, the trial court was bound to discharge the petitioner. In the instant case, the statements of the complainant, even if accepted in toto would only go to show that except suspicion, no other material is available in proof of complicity of the petitioner/accused No.1 in the death of deceased Prabhakar and therefore, the trial court has committed an error in dismissing the application filed by the petitioner under section 245 Cr.P.C.
Third, common allegations were made against accused Nos.1, 2 and 3; but the trial court after considering the sworn statement of the complainant and other witnesses did not take cognizance of the alleged offences against accused Nos.2 and 3. Under the said circumstances, on the ground of parity, petitioner is also liable to be discharged of the above offences.
3. Learned Addl. SPP appearing for respondent No.1 however disputed the above submissions. The contention of learned Addl. SPP is that the complaint is filed against petitioner/accused No.1 totally on a different set of facts. These facts clearly constitute the ingredients of the offence under section 302 Indian Penal Code. At the first instance itself, the complainant had alleged that his son viz., the deceased was escorted by accused Nos.2 and 3 from his house and his dead body was found immediately thereafter, but the Investigating Officer without conducting proper investigation laid the charge sheet under section 304A Indian Penal Code. The same was questioned by the complainant by filing a criminal petition before this Court and only thereafter the instant complaint is filed.
Sworn statement of the complainant clearly disclose the ingredients of the offences and the facts spoken to by the complainant clearly make out the offences and under the said circumstances, there is no reason to interfere in the impugned orders.
Considered the submissions and perused the records.
4. Insofar as the first contention urged by learned counsel for the petitioner is concerned, suffice it to note that at the first instance, petitioner was prosecuted on the specific accusation that on the date of the incident, the petitioner was driving the motorcycle bearing No.KA-04-EJ.8059 and the deceased was a pillion rider and on account of rash and negligent driving of the vehicle, said motor cycle hit against a stone boulder near a culvert as a result, deceased succumbed to grievous injuries, whereas, in the instant case, the allegation against the petitioner is that on the date of the incident, petitioner herein alongwith accused Nos.2 and 3 had taken the deceased with them at about 7.30 p.m. on 08.03.2005, thereafter, he did not return home and his deadbody was found on the early morning of following day.
5. In the complaint lodged by the second respondent at the earliest instance, it was alleged that the condition in which the deadbody was found was indicative of murder and not accidental death as projected by the prosecution. In his sworn statement, the complainant has reiterated these assertions and two witnesses examined by the complainant viz., CWs-2 and 3 have also spoken about the circumstances of the deceased last seen in the company of the petitioner immediately preceding the incident. According to CWs-2 and 3, they noticed petitioner and deceased quarreling with each other under a tree near Hanumanthapura and CW-2 adviced them to leave the place. The complainant has also examined the Medical Officer who has stated about the nature of the injuries sustained by the deceased and has opined that the death was homicidal rather than accidental. These circumstances clearly make out the ingredients of the offence of murder. Therefore, the contention of learned counsel for the petitioner that the petitioner herein is sought to be prosecuted for the same offences in respect of which he was tried and acquitted in earlier proceedings in C.C.No.155/2005 cannot be sustained.
6. On considering the entire material on record , I find that the facts constituting the above offences are distinct and independent and therefore, the provisions of section 300 Cr.P.C. as well as Article 20(2) of Constitution of India do not get attracted to the facts of this case. As a result, the first contention urged by learned counsel for the petitioner is rejected.
7. Insofar as the application filed by the petitioner under section 245 of Cr.P.C. is concerned, the above discussion clearly point out that acceptable material is produced by the complainant in support of the accusations made against the petitioner which prima-facie constitute the ingredients of offence of murder. These allegations, if remained unrebutted would certainly end in conviction of the accused. Under the said circumstances, the learned Magistrate was justified in rejecting the application filed under section 245 Cr.P.C. Therefore, no fault could be found in the impugned order warranting interference by this Court.
8. The last submission canvassed by learned counsel for the petitioner also does not merit acceptance. A perusal of statement of the complainant and his witnesses indicate that only the present petitioner was last seen together with the deceased and in the said circumstances, the trial court was justified in proceeding only against the petitioner herein. Insofar as accused Nos.2 and 3 are concerned, except a bald statement by the complainant that all three of them had come together to the house of the complainant and had taken the deceased with them on the previous day, no other material is available to render accused Nos.2 and 3 culpable for the above offences. In that view of the matter, I do not find any justifiable reason to interfere in the impugned orders. Consequently, the petition fails and the same is dismissed.
*mn/-
Sd/- JUDGE