Khajamiya and Others vs The State of Karnataka

K.N. Phaneendra, J.—1. The petitioners have approached this Court calling in question the order dated 11.08.2015 passed by the learned Sessions Judge, Bidar in Sessions Case No. 48/2014 in rejecting the application filed under section 227 of Cr.P.C. and refuse to discharge them in the said case for the offences punishable under sections 143, 118, 109, 120(B), 201, 302, 511, 465, 467, 468, 471, 420 R/w Section 149 of Indian Penal Code and under sections 25 and 27 of Arms Act.

I have heard the learned counsel for the petitioners and as well as the learned High Court Government Pleader.

The petitioners are arrayed as accused Nos. 1 to 10 in the said case. It is evident from the records, that against accused No. 11, the proceeding has already been quashed.

The brief factual matrix of the case that emanate from the records are that a person by name Rudrappa S/o. Basavantarao Patil has given a complaint, registered in Crime No. 232/2012 by the Bidar Traffic Police on 11.10.2012. According to the said report, that a road traffic accident taken place and due to which a person by name Rohan Patil died. Subsequently the police suspected the said road traffic accident as that of a murder. Suo motto the police have registered another case in Crime No. 246/2013 for the offences punishable under section 143, 120-B, 302, 201 R/w Section 149 of Indian Penal Code. It appears thorough investigation has been made and a charge-sheet has been filed against 11 accused persons. Out of them, the proceedings against accused No. 11 has been quashed.

During the course of arguments, the learned counsel for the petitioners Sri Sheelvanth strenuously contended that the registration of the second case with reference to the same incident is not permissible and it vitiates the entire proceedings and the same is illegal and it cannot be cured. Secondly he contends that if the entire charge-sheet papers are read, there is no semblance of materials available against these petitioners in order to proceed to frame charges. There is allegation of land dispute between the deceased and accused No. 11, against whom the proceedings are quashed. Therefore, there cannot be any motive attributable so far as the petitioners are concerned. He further contends that no witnesses have implicated the accused and no specific circumstances even in order to create any suspicion. Therefore, for all these reasons, he contends that the accused persons ought to have been discharged by the learned Sessions Judge.

Per contra, the learned High Court Government Pleader seriously argued before the Court that there are ample materials available on record to connect the accused persons into the crime. The circumstances projected by the prosecution are all supported by the material witnesses. Some of the witnesses have categorically implicated the accused persons against the deceased that they had sufficient motive to kill the deceased. The accused persons were last seen together when the incident has happened. Further with regard to the conspiracy also the police have successful in examining the witnesses and those witnesses have categorically implicated the accused persons with regard to conspiracy hatched by them prior to the incident. It is also argued that by virtue of the conspiracy some amount was also disbursed to the accused persons by the main accused by name Mohammed Riyajoddin. Therefore, the learned High Court Government Pleader contends that there is lot of materials to proceed against the accused. Even he submits that at the stage of framing of charge, there need not be any material for to draw an inference of guilt of the accused, but if the materials are sufficient to create suspicion in the mind of the Court, that itself is sufficient to provide an opportunity to the prosecution to establish its case during the course of trial.

Having heard the arguments, I have carefully gone through the entire charge-sheet papers. Learned High Court Government Pleader took me to the statements of the witnesses recorded by the police.

Of course there is serious lapse on the part of the police in registering a second crime in proceeding with the same incident. Further the first case which was registered under sections 279 and 304(A) of Indian Penal Code against the unknown person. Subsequently the discovery by the police shows that the said incident was not an accident, but it was a murder. Therefore, they have registered a case in separate Crime No. 246/2012. The police came to a definite conclusion that it is not an accident, but it is a murder. Therefore, whatever the case registered by them earlier virtually merges with the subsequent registration of the case for the higher offence. Though there is some irregularity committed by the police, that itself is not sufficient at this stage to come to a definite conclusion that any prejudice has been caused to the accused persons. Whether any prejudice caused or not can only be thrashed out during the course of full dressed trial. The accused can take advantage of the registration of the case earlier under sections 279 and 304(A) of Indian Penal Code and the police deviating from the same, caused prejudiced to them during the trial. Therefore, though I find some lapse on the part of the investigating agency, but it cannot be said that due to that reason, the entire charge-sheet should thrown out at this stage.

Coming to the factual matrix of the case, as I have already stated the learned High Court Government Pleader has brought to my notice various facets of this case. The statement of witnesses by name Chandrasekhar Patil, Shashidhar Hosalli, Jagadish Biradar and Pramod Biradar, have categorically stated that they on the date of incident were present at the spot and they saw a lorry which is driven by Khajamiya and another accused who was in the lorry by name Imrankhan both made the lorry dashed against the motorcycle of deceased on which the deceased was travelling. The statements made by them shows that even after dashing, the driver did not stop the vehicle and he in fact overridden the lorry on the motorcycle. Another witness Mirza Ahadulla Baig, has stated that on that day at about 06.30 a.m. he has seen the accused persons i.e., Washim Khan, Imran Khan, Habeeb, Shaikh Khayum and Sarvarkhan, they were all in their vehicles, followed the said lorry and thereafter, the accident they have talked with each other. In the same manner one Govind also stated that he saw the accused immediately after the accident talking together stating that the work has been over. Another witness Revappa who is a bar waiter has stated before the police that prior to the incident, Khajamiya, Sarvarkhan and Shakila Ahmed they have visited the bar and some other persons also came and they talked with each other with reference to killing a person by name Rohan. This is with regard to conspiracy. Apart from the above the deceased Rohan has also given a complaint or statement before the police on 16.04.2012 stating that on the previous day of such statement one of the accused Mohamad Riyajoddin has caused harassment by following his vehicle and staring his eyes at him etc. Another witness Abdul Hameed who is the manager of the one of the accused Mohamad Riyajoddin, he has also stated that always accused No. 11 and Mohamad Riyajoddin were talking together in order to eliminate Rohan Patil as said Rohan Patil has been causing hindrance to their business. He also stated that accused No. 9 Chandrakanth also sometimes joining them in conspiracy and on the date of incident on 11.10.2012 said Mohamad Riyajoddin asked said Abdul Hameed to bring Rs. 4.00 lakh from his house and to hand over to him in a hotel called ''Ghar Hotel''. This witness took the money from the house of Mohamad Riyajoddin and handed over the same and at that time accused were present together.

Apart from the above the post mortem report also creates suspicion that the deceased not only sustained multiple injuries all over the body, but also ligature mark surrounding the neck. Though the cause of death was shown that the death was due to multiple injuries, but nevertheless ligature mark on the neck yet to be explained during the course of the trial.

Looking to the facts and circumstances of the case, the prosecution has placed some materials showing the existence of some motive and as well as some incident being seen and the accused were also seen on the same day following the said lorry which caused the incident, thereafter they talked with each other that they have done their work. Prior to the accident also some conspiracy has taken place. To that extent also some materials are placed before the Court. At the stage of framing of charge or hearing before the charge, the Court need not in detail deal with the facts of the case, the Court cannot appreciate the materials on record to any extent. Whatever available should be taken on record as it is for the purpose of considering whether on overall looking of the materials, whether it creates any serious doubt about the complicity of the accused in the crime. I am of the opinion that the learned Sessions Judge has not committed any mistake in proceeding to frame the charge against the accused. In my opinion also it is not a fit case where the Court can discharge the accused persons. Hence I do not find any reason to interfere with the orders passed by the learned Sessions Judge. Therefore, the petition deserves to be dismissed and accordingly it is dismissed. However, it is made clear that whatever the observations made in the body of the order should not in any manner persuade the learned Sessions Judge while dealing with the matter on merits.