IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.973/2016 BETWEEN The State of Karnataka By Madiwala Police Station Bengaluru - 560068 Rep.by SPP, High Court Bengaluru. ... Petitioner (By Sri. Thejesh.P. HCGP) AND Sathisha S/o Srinivas Aged 26 years No.26, Near St. Mary School Gavebhavipalya Bangaluru – 560068. ... Respondent (By Sri. Gireesha J. J, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Code of Criminal Procedure, praying to, set aside the order dated 30.11.2015 passed by the LXIX Additional City Civil and Sessions Judge, Bengaluru City in S.C.No.101/2014 on the application filed under Section 227 of Cr.P.C. in so far as it relates to discharge the respondents / accused for the offence punishable under Sections 323 and 307 r/w 34 of IPC.
This Criminal Revision Petition coming on for Admission, this day, the court made the following:
ORDER This matter is listed for admission. Heard learned HCGP for the petitioner/State but there is no representation for the respondent.
2. This revision petition is filed against the order dated 30.11.2015 passed by the Court below in S.C.No.101/2014 allowing the application filed under Section 227 of Cr.P.C. seeking discharge of accused No.5/respondent herein.
3. The factual matrix of the petition is that on 11.08.2009 at around 10.30 a.m. the complainant/CW.1 was driving the Tempo loaded with cement near Amulya Bar at Bhavipalya, at that time, accused No.1 had parked his vehicle and loading the water cans by blocking the road. The complainant requested accused No.1 to remove his vehicle but accused No.1 picked up quarrel with him. In that background, accused No.1 with the assistance of accused Nos.2 to 5 came near the house of CW.1 at around 7.30 p.m. situated at Hongasandra and picked up quarrel with a common intention to commit murder of CW.1- Nagaraja and with such intention accused No.2 stabbed on face and left abdomen of CW.1 and accused No.3 hit CW.1 with wooden club and rest of the accused including accused No.5 assaulted CW.1 with hands. In pursuance of the complaint, crime came to be registered and thereafter, the IO has taken up the case for investigation and laid the charge sheet against the accused in S.C.No.1097/2011 for the offences punishable under Section 323, 307 read with Section 34 of IPC.
4. The trial Court vide order dated 22.05.2012 in S.C.No.1097/2011 split up the case and a separate case was registered against the accused No.5/respondent herein. Further, the trial court vide order dated 13.06.2012 acquitted Accused Nos.1 to 4 in S.C.1097/2011. In pursuance of this order, accused No.5 filed an application under Section 227 of Cr.P.C. in S.C.No.101/2014 to discharge from the offences leveled against him seeking benefit of acquittal which is extended to accused Nos.1 to 4. The Trial court vide order dated 30.11.2015 allowed the said application and discharged accused No.5 of the offences alleged against him. Hence, this petition by the State.
5. Learned HCGP for the State contends that the trial Court ought to have dismissed the discharge application filed by Accused No.5/respondent herein. The order of the trial Court is illegal and there are material irregularities in the impugned order. The trial Court ought to have seen that in the present case accused was absconding, hence, case against him was split up and there was also material evidence against this accused. He contends that the order of the trial Court in allowing the discharge application is improper and contrary to the material evidence available on record.
6. The individual act of the accused in criminal law is required to be tested by entering into witness box and subjected to thorough examination and cross-
examination of witnesses cited in the charge-sheet and thereafter to decide the involvement of the accused and consider the application for discharge. Hence, seeks to allow the petition by setting aside the impugned order passed by the trial Court.
7. In this backdrop of the contention taken by the learned HCGP for the State and so also, the involvement of this respondent/accused No.5 is concerned, the only point that arises is whether the trial Court is right in allowing the application filed under Section 227 of Cr.P.C. and discharging accused No.5 from the charges leveled against him.
8. It is relevant to state that accused No.5 was facing trial for the offences punishable under Section 323 and 307 of IPC where the case is split up and separate case was registered in pursuance of the order passed in S.C.No.1097/2011. The IO has laid the split up charge sheet in S.C.No.101/2014. In SC.No.1097/2011 the prosecution has let in evidence of PWs.1 to 3 in order to prove the guilt of the accused.
Accused Nos.1 and 3 are alleged to have assaulted CW.1 with deadly weapons as noted above. CW.1–Nagaraja who was examined in S.C.No.1097/2011 has deposed that there was some altercation that took place in the year 2009 on the road situated at Hongasandra at around 7.30 p.m in the night and he had sustained injuries due to attack of 6 to 7 persons. He has specifically stated that the accused who are facing trial in S.C.No.1097/2011 were not present at that time and denied all the alleged acts of the accused. Further, PW.2 Lakshmi who is none other than the wife of CW.1 Nagaraja has also turned hostile to the case of prosecution. PW.3 – Savithramma who is said to be the neighbour of the house of PW.1 has also denied any of the alleged acts of the accused. Even in the cross- examination of these witnesses, nothing was brought out to believe the version of prosecution. Therefore, the Court below acquitted Accused Nos.1 to 4 of the charges leveled against them vide judgment dated 13.06.2012 rendered in S.C.No.1097/2011. The above accused are similarly placed on par with the present accused No.5.
9. The case is of the year 2011 and moreover the respondent herein is arraigned as accused No.5. At a cursory glance of evidence of PWs.1 to 3 particularly, PW.2 who is none other than the wife of Complainant and PW.3 who is the neighbour of the house, both of them have turned hostile to the case of prosecution. The ratio of reliance in Deepak Razak vs. State of Bengal reported in 2007 (15) SCC 305 relied on by the trial Court wherein it is observed that benefit of acquittal in the case of accused on similar accusation can be extended after surrender. The entire material evidence of the prosecution is one and the same as against all the accused including this respondent/accused No.5 who is said to be the abscondee and there is no second opinion as insisted that he is entitled for the same benefit of doubt as is extended to his co-accused. Therefore, the trial court has rightly observed that benefit of acquittal, which extended to accused Nos.1 to 4 in S.C.No.1097/2011 is also be extended to accused in S.C.101/2014 where a split up charge sheet is laid by the IO for similar offences. The order of trial Court in holding that there are no sufficient materials to presume commission of alleged offence by this respondent/accused No.5 and consequently, allowing the application and discharging him, is just and proper and I find no justifiable ground to interfere with the same. For the reasons and findings stated above, I proceed to pass the following:
ORDER The criminal revision petition is hereby dismissed. Consequently, the order passed by the trial Court in S.C.101/2014 dated 30.11.2015 allowing the application filed under Section 227 of Cr.P.C and discharging Accused No.5 of the charges leveled against him is hereby confirmed. Respondent/Accused No.5 is hereby absolved from the offences leveled against him.
Sd/- JUDGE DKB