IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER 2017 BEFORE THE HON' BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.5276 OF 2017 BETWEEN:
Noufal, S/o Basheer, Aged about 25 years, R/at:Shantinagar, Bajal Nanthuru, Mangalore D.K.District-575102.
(By Sri. Lathif.B., Advocate) AND:
1. State of Karnataka, By Barke Police Station, D.K.District. Rep. by SPP, High Court Building Bangalore-560 001.
2. Police Sub-Inspector Mangalore Rural Police Station, Mangaluru City Dakshina Kannada District-575 211 (By Sri.Sandesh Chouta, SPP-II) …Petitioner …Respondents This criminal petition is filed under Section 482 of Code of Criminal Procedure praying to quash the entire proceedings against the petitioners in S.C.No.175/2016 (Cr.No.32/2011) of Barke P.S., D.K., District on the file of Principal Sessions Judge, D.K.Mangalore.
This criminal petition coming on for Admission this day, the Court made the following:
ORDER Petitioner who has been arraigned as accused No.13 in the charge-sheet filed by respondent- police, in S.C.No.175/2016 (Crime No.32/2011) for the offence punishable under Section 399 of IPC is seeking for quashing of said proceedings.
2. Gist of the prosecution case is that on 20.05.2011, ACP Sri. Putta Madhayya had deputed Sri.Prakash .K-CW1 stating that a group of persons had hatched a plan to commit murder of Sri.Padmaraj @ Paddu and rob him in front of Empire Mall, M.G.Road, Mangaluru City and as such, CW1 on instruction of ACP proceeded to said place along with his staff CW6 to 12 at 10.30 am and noticed a Motor Cycle bearing Reg.No.KA-19-A- 2544, Swift Car bearing Reg.No.KA-19-MA-8155 and Auto Rickshaw bearing Reg.No.19-C-7318. He apprehended accused Nos.2, 4, 5, 8, 9, 10, 11, 12 and 13. Some of the accused had escaped from the spot. It is also the case of prosecution that they searched the body of some of the accused whom they apprehended and from them knives, MDH Chilly Powder packets and talwar came to be seized under mahazar.
3. Apprehended persons namely, accused Nos. 2, 4, 8, 9, 10 and 12 came to be tried in SC.No.61/2015 and accused Nos.6, 7, 11 were tried in SC.NO.62/2015. Petitioner herein (A-13) was declared as absconding. Prosecution examined witnesses on its behalf namely, PW1 to PW6 and got marked Ex.P1 to P29 and M.O.1 to M.O.6. PW4 who was witness to the spot mahazar had turned hostile and learned Sessions Judge noticed that even in cross-examination nothing worthwhile is elicited to discredit his testimony. Seizure of M.Os.1 to 6 was held to be not proved by the prosecution. Learned Sessions Judge also noticed that adverse inference can be drawn against prosecution for non production of material document namely, Station House Dairy. It is also further held that no identification parade has been conducted subsequent to the alleged incident and as such, the search of accused persons at the spot was held to have not been proved by the prosecution. Learned Sessions Judge also noticed that none of the prosecution witnesses had supported the case of prosecution.
4. In the light of above said discussion learned Sessions Judge in SC.NO.61/2015 and 62/2015 acquitted accused Nos. 2, 4, 8, 10 ,12 and accused nos. 6, 7 and 11 for the offence punishable under Section 399 read with Section 149 of IPC.
5. As rightly contended by Sri.Lathif B., learned counsel appearing for petitioner (Accused No.13), present petitioner stands on the same footing as that of accused Nos. 8, 10, 11, 12 and allegations made by the prosecution against present petitioner (accused No.13) is similar and identical to the allegation made against other accused Nos.8, 10, 11, 12. As could be seen from the charge sheet material, it has been alleged by the prosecution that a team had hatched plan to commit murder of Pandmaraj @ paddu and rob him also and as such Assistant Commissioner of Police had deputed CW-
1 Prakash K. to rob the members of such gang.
Accordingly CW-1 along with CW-6 to CW-12 had been to said place at 10:30 a.m. on 20th May 2011 and noticed that some persons along with their vehicles at the spot and apprehended. A5, A8, A9, A10, A11, A12, A13 apart from A2 and A4, material witnesses whom prosecution relied upon to prove the guilt of said accused persons are also same and it is this testimony of witnesses who had been examined by prosecution came to be analyzed by learned Sessions Judge in SC.No.61/2015 and SC.No.62/2015 resulting in their acquittal. In that view of the matter, continuation of proceedings against petitioner who is accused No.13 against whom split up charge sheet has been filed in SC.No.175/2016 is not called for. Even if proceeded on the basis of uncontroverted material placed by the prosecution, it would not lead to conviction of the accused and conviction of proceedings against there being proceedings against present petitioner who has been arraigned as accused No.13 herein would only be waste of judicial time.
In that view of the matter, this Court of the considered view that proceedings against petitioner deserves to be quashed.
Hence, the following order.
ORDER i) Criminal petition is hereby allowed;
ii) Proceedings pending against petitioner in SC.No.175/*2016 on the file of Principal Sessions Judge, Dakshina Kannada, Mangalulru is hereby quashed.
iii) Petitioner is acquitted of the offence punishable under Section 399 of IPC.
Sd/- JUDGE SB *Corrected V.C.O. dtd. 29-11-2017