Pradeep vs State of Karnataka

K.N. Phaneendra, J.—The petitioner has sought for quashing of the proceedings in Special Case No. 12/2013 pending on the file of the II Additional Sessions Judge/Special Judge Vijaypur, for the offences punishable under Sections 143, 147, 148, 120(B), 302, 506 r/w 149 of IPC along with Section 25 and 27 of Indian Arms Act and also under Section 3(ii)(v) of SC/ST Prevention of Atrocities Act.

I have heard the arguments of the learned counsel for the petitioner and also the learned High Court Government Pleader for the respondent-State.

I have carefully perused the records. I feel it just and necessary to cull out certain matrix of this case before proceeding to answer the prayer sought for by the petitioner in this petition. It is an undisputed fact that Almel police have submitted a charge sheet initially against 14 accused persons for the above said offences on the allegations that one Bhagappa S/o Hucchappa Harijan of Byadagihal was involved in several cases and he was in judicial custody. It is alleged that all the accused persons were nursing hatred and ill-will against the said Bhagappa and they were waiting for the release of the said Bhagappa in order to do away with his life. In this background, all of them joined together and hatched a conspiracy. In this context it is said that the deceased Parashuram Kamble and Raju Melinakeri, who were making all their efforts to get this Bhagappa out of jail, on bail. The accused got enraged due to the acts of Parashuram Kamble and Raju Melinakeri, formed into an unlawful assembly particularly on 11.06.2008 and in furtherance of their common object they fully came prepared to commit the murder of Parashuram Kamble and Raju Melinakeri at a place called Sindagi in Cruiser Jeep bearing registration No.AP-36/W-401. They have fully armed and they were waiting for the said Parashuram Kamble and Raju Melinakeri. In fact accused No. 11-Pradeep (petitioner herein) was the person who informed the accused No. 12 and other accused persons over telephone with regard to the movements of the deceased Parashuram Kamble and Raju Melinakeri, that they were returning on their motorcycle after finishing their work in Sindagi Court towards Almel.

Looking to the above said facts and circumstances, it is alleged that, on 11.06.2008 at about 1.00 p.m. the said Parashuram Kamble and Raju Melinakeri were proceeding near Sindagi-Almel PWD Road, at a distance of one kilometer towards the South from Kallahalli, near UKP lateral pool, the petitioner herein and accused No. 12 came following them near the said place and accused No. 6-Raviraj Reddy and accused No. 10-Peersab have prevented the said Parashuram Kamble and Raju Melinakeri from proceeding and wrongfully restrained them across the road. Accused No. 13-Parasaram was ready to hit them with the stick and other accused persons were ready with arms and in fact the accused No. 8 fired a bullet from his pistol to Raju Melinakeri and he fell down. When the pillion rider Parashuram Kamble was got up started running, but accused Nos. 7, 8, 9 and 12 instigated accused Nos. 1 to 3 to secure the Parashuram Kamble and commit his murder. Accordingly, accused Nos. 1 to 3 by name Sanjay, Basappa and Bhimanna have chased the Parashuram Kamble and accused No. 7 snatched a pistol from the hands of accused No. 8 and fired a bullet from the pistol to Raju Melinakeri and accused No. 9 also fired a bullet from his pistol on the body of Raju Melinakeri. Accused Nos. 1 to 3, in fact have caused so many injuries to Parashuram Kamble and caused the death of both Parashuram Kamble and Raju Melinakeri. On these allegations the police after due investigation submitted the charge sheet.

The Addl. Sessions Judge/Special Judge has tried the above said accused persons particularly accused Nos. 1 to 4, 7, 9, 10, 12 and 13 and acquitted them for the above said offences. However, as the accused Nos. 6 and 11 were later secured and a split up case was registered against them. The above said judgment of acquittal so far as acquittal of accused persons are concerned has reached its logical end. The State has not preferred any appeal.

The petitioner herein who was arrayed as accused No. 2 in Special Case No. 12/2013. He has filed an application before the Special Judge (i.e. Spl/II Addl. Sessions Judge, Vijaypur) for his discharge under Section 227 of Cr.P.C. and his petition came to be dismissed. Hence, he is before this Court seeking discharge in the above said case.

This Court on several occasions has held that, if the evidence proposed to be led by the prosecution against the absconding accused is not different from that of the evidence already led against the co-accused who were acquitted then the co-accused is also entitled to be discharged and said proceedings cannot be continued. It is worth to note here the decision reported in 2014 Cr. R 777 (Kant) between Mahalakshmi Kumari (Smt.) v. State of Karnataka and Another, wherein I have held that:

"Overt acts of accused persons are inseparable in nature and they are overlapping with each other - No independent charges have been levelled against each individual accused - Evidence proposed to be led against present accused person is not different from that of evidence already led against all accused persons -Merely because accused were absconding and split up charge sheet has been laid against them, accused persons cannot be tried - When there is no chance of conviction, there is no purpose in continuing prosecution - Criminal proceeding quashed." The above said ruling is based on "ruling of the Apex Court which is reported in Central Bureau of Investigation Vs. Akhilesh Singh, , wherein the Apex Court has held that;

"while exercising the power under Section 482 of Cr.P.C. for quashing of the charge and discharge of co-accused-validity of offence of criminal conspiracy and murder-once the main accused, who is alleged to have hatched the conspiracy and who had the motive to kill the deceased was discharged and when that matter had attained finality, the learned Single Judge was fully justified in holding that no purpose would be served." Basing on the said decision it is just and necessary for this Court to appreciate the materials on record to ascertain whether the allegations made against this person are inseparable in nature compared to other acquitted persons. Whether the charges framed against the other accused persons are similar to the allegations made against the present petitioner, whether the evidence relied upon by the Trial Court is proposed to led by the prosecution against the petitioner and also in the event of trial goes on against the petitioner. If these questions are answered in the affirmative then the continuation of the prosecution against the petitioner becomes a futile attempt. In this background, now let me consider the materials on record.

It is seen from the judgment of the Trial Court in Special Case No. 14/2009, the charges framed against the accused persons not only against the accused Nos. 1 to 4 and other acquitted persons, but also the Trial Court has incorporated the overt acts of the present petitioner in the charge sheet. It is worth to refer the charges framed by the Trial Court, which are as follows:

"1. Whether prosecution prove beyond all reasonable doubts that, accused Nos. 1 to 4 and accused Nos. 6 to 13 formed an unlawful assembly with common object of commuting murder of Parashuram Kambale and Raju Melinakeri came in Cruiser Jeep and motorbike on PWD road in between Sindagi and Almel near UKP lateral bridge holding deadly weapons in their hands and thereby committed an offence punishable under Sections 143, 147, 148 r/w 149 of IPC?

Whether prosecution further prove beyond all reasonable doubts that, accused Nos. 1 to 4 and accused Nos. 6 to 13 have entered into a criminal conspiracy and agreed to commit the murder of deceased Raju Melinakeri and Parashuram Kambale on previous dayu of 11.06.2008 and thereby committed an offence punishable under Sections 120(B) of IPC?

Whether prosecution further prove beyond all reasonable doubts that, on 11.06.2008 at about 1.00 p.m. near UKP lateral bridge on Sindagi to Almel road, the accused came in their jeep and Motorbike in furtherance of their common object and accused Nos. 6 and 10 prevented them from going further and accused stood holding a stick in his hand and accused No. 8 fired a bullet with pistol on Raju Melinakeri and made him to fall on the ground and accused Nos. 7 to 9 and accused No. 12 instigated the accused Nos. 1 to 13 to kill Parashuram Kambale and accused Nos. 1 to 3 chased and fired bullets from pistol at Parashuram Kambale and accused Nos. 7 and 9 fired bullets with pistol to Raju Melinakeri and committed their murder and thereby committed an offence punishable under Section 302 r/w 149 of IPC?

Whether prosecution further prove beyond all reasonable doubts that, on the same date, time and place, accused threatened the jeep driver Gangadhar Hiremath, who is an eyewitness to the said incident from disclosing the said fact with an intention to raise alarm in his mind and thereby committed an offence of criminal intimidation punishable under Section 506 r/w 149 of IPC?

Whether prosecution further prove beyond all reasonable doubts that, the accused Nos. 1 to 3 and 7 to 9 possessed fire arms and live bullets in their possession without permit or licence from the competent authority and used arms and ammunitions in contravention of Section 5 and committed offences punishable under Sections 25 and 27 of Arms Act, 1959?

Whether prosecution further prove beyond all reasonable doubts that, the accused have committed an offence of murder of Raju Melinakeri and Parashuram Kambale belonging to Scheduled Castes/Scheduled Tribes and thereby committed an offence punishable under Section 3(ii)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?"

The above said points framed by the Trial Court clearly goes to show that the Court is of the opinion that the prosecution would like to prove the case against the accused Nos. 1 to 4 and also against accused Nos. 6 to 13 for the above said offences alleged against the accused persons. As I have already narrated with reference to the charges leveled against the other accused persons and also against the petitioner and as well as accused No. 12. The allegations against this petitioner and accused No. 12 are similar in nature that is to say they were the persons watching the movements of the deceased Parashuram Kamble and Raju Melinakeri and they have informed the other accused persons. On that basis the other accused Nos. 1 to 4 and 7 to 9 have intercepted and in fact they assaulted the deceased Parashuram Kamble and Raju Melinakeri. Accused Nos. 1 to 3 are the main culprits when they shot the deceased persons with their pistols and committed the murder.

The prosecution in order to prove the said allegations have in fact examined 30 witnesses PWs. 1 to 30 and got marked Ex.P.1 to P.64 and material objections 1 to 39. The Trial Court has considered the evidence of all the witnesses examined before the Trial Court and ultimately it is said that the prosecution has made attempts to prove the allegations against the accused persons. But the witnesses examined by the prosecution have not supported the case of the prosecution ultimately it is held that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. It is specifically observed by the Trial Court that the recovery at the instance of the accused persons some pistols and other incriminating articles were not proved, as the witnesses have not supported, particularly eye-witnesses to the incident PW.29-Gangadhar Hiremath has turned hostile to the prosecution and other eye-witnesses including the complainant have not supported the case of the prosecution. The Trial Court has categorical in its observation that there was no materials on record to prove that accused persons have committed the murder of Parashuram Kamble and Raju Melinakeri by firing with pistols marked at M.O. Nos. 16 and 17 and also further failed to prove that accused were possessing illegally manufactured fire arms in their possession. Therefore, when the main accused persons, particularly accused Nos. 1, 3, 4, 7, and 9 are acquitted and co-accused who stand on the same footing as that of the petitioner i.e. accused Nos. 10, 12 and 13 are also acquitted. In my opinion, no purpose would be served even if the petitioner is tried by the Trial Court.

As I have already narrated that the prosecution proposes to lead evidence of some witnesses against the present petitioner have all turned hostile to the prosecution. It cannot be accepted that the prosecution would get better evidence than the one already led against other accused persons. Therefore, the allegations made against the accused persons particularly accused Nos. 10, 12 and 13 are inseparable compared to the allegations made against the present petitioner. Further, the charges framed by the Trial Court is also inclusive of the allegations made against the petitioner. The Trial Court, if at all tried this petitioner along with the other accused persons definitely it would be ended in acquittal along with other accused persons. When such being the situation, in my opinion, the Trial Court has committed a serious error in not discharging the accused persons. It should be borne-in-mind that once the prosecution after framing all the charges against the accused produces evidence, in that event the statement of the witnesses and the charge sheet papers would culminate in the substantial evidence before the Court. If substantial evidence placed before the Court, is not sufficient to proceed against the accused persons, question of framing similar charges does not arise at all. Therefore, it can be safely said that there are no sufficient ground to proceed against the accused. In such an eventuality, it definitely attracts the provision under Section 227 of Cr.P.C. Under the above said circumstances, I am of the opinion, petitioner has made out a ground for his discharge. Hence, the petition deserves to be allowed. Hence, I pass the following:

ORDER

"The petition is allowed. Consequently, the petitioner is discharged in Special Case No. 12/2013 pending on the file of the Special Judge/II Additional Sessions Judge, Bijapur, for the offences punishable under Sections 143, 147, 148, 120(B), 302, 506 r/w 149 of IPC along with Section 25 and 27 of Indian Arms Act and also under Section 3(ii)(v) of SC/ST Prevention of Atrocities Act. Consequently, all further proceedings in the said case against this petitioner is deemed to have been quashed."