A.L.ALTHAF @ PAPUL @ FARHAN vs STATE OF KARNATAKA

The petitioner who was arrayed as A1 in SC No.20/2013 on the file of the III Addl. District and Sessions Judge, Kodagu, Madikeri, has

approached this court for quashing of the proceedings registered against him on the basis of split up charge sheet, in SC No.87/2016 on the file of

the III Addl. District and Sessions Judge for the offence punishable under Sections 366(A), 376, 506 read with 34 of IPC.

The records disclose that the petitioner who was arrayed as Accused No.1 in SC NO.20/2013, was absconding. Therefore, he was split up

from the said case and other accused Nos. 2, 3, 5 and 6 were tried by the learned Sessions Judge and rendered a judgment of acquittal, so far as

those accused persons are concerned, vide Judgment dtd:10.01.2017. Against which no appeal proffered by the State.

Now, the petitioner herein claims that, the allegations made against A1 to A6 in the said case are one and the same and there is no distinction

with regard to the factual aspects compared to all the other accused persons who are already acquitted. Therefore, on the ground of parity, this

petitioner seeks for extension of the acquittal Judgment rendered by the Sessions Court, consequently, quashing the proceedings in SC

No.87/2016.

The brief factual matrix which emanate from the record are that on 25.9.2010, the accused No.1 has persuaded the victim girl, who was

examined as PW1 before the Trial Court. It is further alleged that, he took her to various places and have had sexual intercourse with her and not

only he had forcible intercourse with her but also allowed other friends of A1 who are arrayed as A2 to A6 to enjoy sex with her. Therefore, the

complaint came to be lodged in that context. Therefore, it is clear from the allegations that all the accused persons have, against her will and

consent committed rape on PW-1. On these allegations, the police have investigated the matter and submitted charge sheet. During the course of

trial of all other acquitted accused persons, the prosecution examined as many as 18 witnesses and got marked 27 documents as Exhibits P1 to

P27 and one Material object MO1. The learned Sessions Judge, after evaluating the oral and documentary evidence on record has come to the

conclusion that the prosecution has miserably failed to establish the alleged offences against the accused, for the offence punishable under Sections

366(A), 376, 343, 506 read with Section 34 of IPC.

The learned Sessions Judge mainly relied upon the evidence of the Prosecutrix, who turned volte face to the prosecution and she never stated

any incident being happened as stated in Ex.P1 which is the first information report lodged by the victim. It is stated by her, that she had been to

her friends house i.e., CW8- Mamatha and she stayed in her house and thereafter, she came back to her house after four days, without informing

her parents, as she has failed in SSLC examination. When she came back, she came to know that, her father has already lodged a missing

complaint before police and in fact her father took her to the Police Station and taken signatures of her on various documents but she did not know

the contents of those documents and she specifically said that, she never made any allegation against any person much less against the accused

person herein. On the main basis of such evidence before the court, the Trial Court has arrived at a conclusion that the prosecution has not

established the guilt of the accused. Consequently, acquitted A2, A3, A5 and A6.

Considering the above said factual aspects of evidence, the prosecution has not led any specific evidence against A1. Therefore, the allegation

and evidence already led by the prosecution are indivisible and inseparable so far as A1 is concerned compared to the other accused persons who

are already acquitted. Therefore, I am of the opinion, the continuation of the proceedings in SC No.87/2016 against this petitioner for the same

offences will be a futile exercise and it would be a waste of judicial time. Therefore, in my opinion, the proceeding deserves to be quashed.

In this regard, it is worth to mention here an unreported decision of this court in SAIBANNA VS. STATE OF KARNATAKA IN

CRIMINAL PETITION NO.200008/2015 DATED 23.01.2015 by referring the decision of Hon''ble Apex Court in ILR 2015 KAR Page 970

[HYDER Vs. STATE OF KARNATAKA], AIR 2005 SCC 268 [CBI VS. AKHILESH SINGH] and 2002(1) KCCR 1 [ MUNEER AHMED

QURESHI, MUNEER @ GAUN MUNEER VS. STATE OF KARNATAKA BY KUMARSWAMY LAYOUT POLICE, in order to

ascertain whether this court can quash the proceedings against the co-accused, when the other accused have already been acquitted. In this

regard, in a decision reported in Criminal Petition No.4796/2017 dated 05.07.2017, this Court has extensively relied upon various decisions of the

Hon''ble Supreme Court and this Court, particularly in the decisions reported in (2001) 3 Kant.L.J. 551 [MOHAMMED ILIAS Vs. STATE OF

KARNATAKA] and ILR 2005 KAR. 1822 [THE STATE OF KARNATAKA Vs. K.C. NARASEGOWDA]. Therefore, before adverting to

the factual aspects of this case, it is worth to refer the decision in the case of Akhilesh Singh (supra), wherein, it was held that:

Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the

deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would

be served in further proceeding with case against coaccused held proper.

In Muneer Ahmed Qureshi''s case (supra), this Court has held that: -

Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is

passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner.

Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such

circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted. Holding that the

proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed was quashed.

In view of the above said decisions also, the Apex Court and this Court have already taken a view that once the allegations made in the charge

sheet and also the evidence considered by the Trial Court are one and the same against all the accused persons and if some of the accused persons

have already been acquitted, the same benefit has to be extended to the other accused persons who are split up from the case. In view of the

above said facts and circumstances I proceed to pass the following:

ORDER

The petition is allowed. Consequently, The Sessions Case No.87/2016 on the file of the III Addl. District and Sessions Judge, Kodagu,

Madikeri for the offences punishable under Sections 366(A), 376, 506 read with Section 34 of IPC and all further proceedings therein are hereby

quashed so far as this petitioner is concerned.