IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9735/2017 BETWEEN:
UMESH @ AMMU S/O LATE VITTALA POOJARY AGED ABOUT 28 YEARS R/AT NEAR RAILWAY TRACK KOLYA NEAR RAILWAY TRACK KOLYA MANGALURU TALUK D.K. DISTRICT – 575 023.
... PETITIONER (BY SRI. NISHITH KUMAR SHETTY., ADVOCATE) AND:
1. STATE OF KARNATAKA BY STATION HOUSE OFFICER MANGALORE NORTH POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001.
2. K. MOHAN DAS S/O LATE SHANTHAPPA POOJARI R/AT DOOMAPPA COMPOUND BAILCONDE ROAD, PANDAVESHWARA MANGALORE.
(VIDE COURT ORDER DATED 29.08.2018 RESPONDENT NO.2 IS DELETED) ... RESPONDENTS (BY SRI. S. CHANDRASHEKARAIAH., ADVOCATE) THIS CRIMINAL PETITON IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.109/2015 (CRIME NO.226/2007), ON THE FILE OF 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE AGAINST THE PETITIONER REGISTERED FOR THE OFFENCE P/U/S 120B, 363, 302, 201 R/W 34 OF IPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is seeking for quashing of proceedings in S.C.No.109/2015 (arising out of Crime No.226/2007) pending on the file of Prl. District and Sessions Judge, Dakshina Kannad, Mangalore, registered for the offence punishable under Sections 120(B), 363, 302, 201 r/w 34 IPC, which proceedings is on account of split up charge sheet filed against the petitioner.
2. The gist of prosecution case is: deceased Vidyaraj is the son of C.W.1 and C.W.11 and he was working at “Sona Bankers”, Mangalore, under C.W.3- Mr.Robert Castelino. It is further stated that on 03.06.2006 at about 9.30 a.m. deceased went to his office to attend to his duties and on being deputed on official work he informed C.W.3 at 11.00 a.m. that one Rajesh was need in of money for release of gold and a sum of `62,000/- was handed over to the deceased for obtaining release of gold ornaments and by receiving the said amount deceased went away by taking the amount from C.W.3. It was further alleged that accused persons conspired to kidnap and rob deceased Vidyaraj and accordingly, accused No.1 was informed to bring one car and they went near Tagore park and accused No.4 brought the deceased Vidyaraj at 11.30 a.m. and after making the deceased Vidyaraj to sit in the rear seat in the middle of car, he (deceased) was taken to B.C.Road and after having lunch at Rajesh Bar accused No.4 had tied the shawl to the neck of deceased and strangulated him and other accused held the deceased and committed his murder and robbed the amount of `62,000/- and gold ornaments and threw the deadbody near the bridge and distributed the amount and gold ornaments amongst themselves and parted their ways.
3. On the basis of said allegations prosecution sought to prove the guilt of the accused. During the course of trial accused No.1 is said to have expired and as such petition stood abated and on account of accused No.4 having absconded, charge sheet was ordered to be split up and trial was conducted insofar as accused Nos.2 and 3 are concerned.
4. Even according to learned trial Judge who tried accused Nos.2 and 3, the evidence of prosecution to drive home the guilty of accused was not based on direct evidence but circumstantial evidence. The reliance placed by the prosecution upon various circumstances to complete the chain of circumstances to connect the accused Nos.2 and 3 to the alleged incident came to be examined by the learned Sessions Judge and found that prosecution had failed in this regard. Though C.W.3 namely owner of the finance “Sona Bankers”, who claimed during the course of investigation that he had handed over a sum of `62,000/- to deceased Vidyaraj for being handed over to one Rajesh, who was in need of money for release of gold, came to be examined as PW1 namely prime witness on behalf of prosecution. He has not supported the case of prosecution and he has turned hostile. It was a case of total denial by P.W.1 (C.W.3). In fact, mother of deceased who was also examined as P.W.8 has stated that deceased was working in the office of finance run by P.W.3. Thus, main link in the chain of circumstances at the initial stage itself had got snapped.
5. Yet another ground on which the prosecution relied upon was the last seen theory i.e., deceased was in the company of accused persons. In order to bring home this point, prosecution had examined P.W.2 to P.W.5. In the judgment rendered by learned Sessions Judge, P.W.2 and P.W.3 who were working as staff at Rajesh Bar have turned hostile and though P.W.4 and P.W.5 supported the case of prosecution, they were not able to withstand the cross examination or in other words, they have admitted in the cross-examination that by standing in the bus stand it would not be possible to observe completely moving in the vehicle that too on a national highway. Yet another factor which swayed in the mind of learned Sessions Judge to acquit accused Nos.2 and 3 was the fact that after 1½ years the complaint in question came to be lodged on the suspect of involvement of accused. As such learned Sessions Judge arrived at a conclusion that prosecution had failed to prove the guilt of the accused i.e., accused Nos.2 and 3. Charge which was framed by the learned Sessions Judge against accused Nos.2 and 3 also relates to accused No.4 and charge so framed reads as under:
“1. Whether the prosecution proves beyond all reasonable doubt that on 3.6.2006 A2 and A3 along with other accused had a criminal conspiracy to kidnap and murder the deceased and thereby committed an offence?
2. Whether the prosecution further proves beyond all reasonable doubt that on 3.6.2006 A2 and A3 along with other accused kidnapped the deceased in the maruthi car bearing Reg.No.KA-20/M.2425 and took him near Pariyashanti of Koukrady village and thereby committed an offence?
3. Whether the prosecution further proves beyond all reasonable doubt that on 3.6.2006 A2 and A3 along with other accused committed the murder of deceased Vidyaraj for gain and robbed the amount and golden ornaments from him and threw the deadbody under the bridge and thereby committed an offence?
4. Whether the prosecution further proves beyond all reasonable doubt that on 3.6.2006 A2 and A3 along with other accused in order to screen the evidence thrown the deadbody of deceased under the bridge where water was flowing and thereby committed an offence?”
(emphasis supplied by me) 6. As could be seen from the charge framed by the learned Sessions Judge against accused Nos.2 and 3 is being similar, identical and overt-act alleged by the prosecution against accused Nos.2 and 3 also being similar to the overt act alleged against accused No.4 and the fact that learned Sessions Judge has already acquitted accused Nos.2 and 3 for lack of proving the circumstantial evidence and there has been inordinate delay in lodging the complaint, continuation of proceedings against accused No.4/petitioner herein would only result in directing the petitioner to undergo ordeal of trial and even if material evidence which has been relied upon by the prosecution against accused Nos.2 and 3 in S.C.No.6/2009 is to be taken up as a gospel truth or remains unrebutted. Even then on the basis of such material petitioner cannot be convicted. Hence, this Court is of the considered view that petitioner is standing on the same footing as that of accused Nos.2 and 3 and continuation of proceedings against accused No.4/petitioner herein would not be in the interest of justice and it would only result in waste of precious judicial time.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Proceedings pending against petitioner in S.C.No.109/2015 pending on the file of I Addl. District and Sessions Judge, Dakshina Kannada, Mangalore, registered by Mangalore North Police Station for the offences punishable under Sections 120(B), 363, 302, 201 r/w 34 IPC, is hereby quashed and petitioner is acquitted of the said offence.
SD/- JUDGE DR