Raghavendra vs State of Karnataka

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the first respondent-State. Perused the records.

The petition is filed seeking for quashing of the entire proceedings against the petitioner in SC No. 839/2012 on the file of the Presiding Officer, Fast Track Sessions Court I, Bangalore City, for the offences punishable under sections 302, 392 and 201 of Indian Panel Code.

The petitioner is arrayed as accused No. 1 in SC No. 166/2010 along with others which is the original case registered against the accused persons. During the pendency of the said case, accused No. 1 remained absent. Hence, the case was split up against him and a separate charge sheet was submitted. Later, vide order dated 24.10.2011, SC No. 839/2012 came to be registered against the accused No. 1/petitioner herein.

It is submitted by the learned counsel for the petitioner that accused No. 3 was tried for the above said offences in SC No. 166/2010 and the learned Sessions Judge, vide judgment dated 20.11.2012, after due trial, acquitted accused No. 3 for the alleged offences. It is contended that accused Nos. 1 and 3 are charged with the same offences by the Police u/s 34 of IPC and since the case against accused No. 3 has already been concluded, the present petitioner is also entitled for the same benefit. Further, it is submitted that evidence has been led by the prosecution against A1 also. But, none of the witnesses have supported the case of the prosecution. Consequently, A3 was acquitted, the same benefit has to be extended so far as the petitioner/accused No. 1 is concerned.

Learned High Court Government Pleader submitted that accused Nos. 2 and 3 have assisted accused No. 1 and they have not directly participated in the commission of the alleged offences Therefore, accused No. 1 is required to be tried independently.

I have carefully perused the judgment of the Trial Court. Though the witnesses examined before the Sessions Court reveals that no case has been made out even against accused No. 1, Accused No. 1 remained absent and therefore, he could not able to secure the order of acquittal from the Trial Court.

The prosecution in all examined 19 witnesses, PWs. 1 to 19 and got marked Exhibits P1 to P22 and seized Material Objects MOs. 1 and 2. MO-1 is the photos of gold items seized and MO-2 is the Photo of the Car. It is the case of the prosecution that a person by name one Sri. Vishwanath S/o Narayanappa R/o. Kottigepalya, Bangalore, has lodged a complaint before the Kamakshipalya Police Station stating that his younger sister by name Hemalatha, aged about 19 years came from her husband''s house to his house, left the house at 8.00 p.m., on 11.01.2009 and did not return. In this regard, the complainant enquired with his relatives and friends. In spite of search, since her whereabouts could not be traced, he lodged a missing complaint. The said complaint is marked as Ex. P1 and a case was registered in Crime No. 25/2009. Further, it is seen that on 13.1.2009, a person by name Shiva S/o. late Nageshappa lodged the complaint stating that he was working in Balaji Industries as a welder and his sister-in-law Manjula was missing from 5-6 days and they were searching for her. On that day, at about 5.30 p.m., when they were searching their sister-in-law in front of Savan Dharbar Ashrama, Uttarahalli road, Bangalore, they found a female dead body near the bench and on suspicion, that the said lady might have been murdered, he lodged a complaint and on the basis of that, the police have registered a case in UDR No. 4/2009 for the offence punishable u/s 174(c) of Cr. PC. During the course of investigation, the investigating officer found that on 11.1.2009, A1 Raghavendra along with the deceased left the house of the deceased and went to a Jungle Park Resort, Mayaganahalli and stayed there in Room No. 101 and when the deceased compelled A1 to marry her, he has committed the murder of the deceased to avoid her. During the course of investigation, as rightly pointed out by the learned counsel for the petitioner that there is no recovery as such, at the instance of A1 The recovery of articles such as Mangala sutra and gold chain is at the instance of A2 alleged to be belonging to the deceased. But the evidence of the prosecution witnesses shows that the said recovery at the instance of A2 is also not proved. Ex. P4 is the Mahazar with reference to recovery of Mangalasutra and gold chain at the instance of A2 in the presence of CWs. 20 and 21 in the shop of CW25. The prosecution has not examined CWs. 20 and 21. PW-5 Sri. Raghuram has deposed that he has received MO1 from A1 and A1 pledged the same. Therefore, the accused came to his shop and sold the same to him. It is observed by the learned Sessions Judge, even if the evidence of PW5 is accepted, the prosecution has not proved the case of recovery at the instance of A2 and it belongs to the deceased. The document Ex. P4 recovery mahazar reveals the recovery of gold chain and thereafter, he pledged the gold chain in the shop of CW5, and CW5 has not been cross examined. The whole story of recovery of this MO1 has been disbelieved by the Trial Court. Whether it was pledged by A1 or A2, it makes no difference, because, the witnesses have not been examined and one of the witness examined has not fully supported the case of the prosecution.

The star witness to the prosecution are PWs. 8, 9 and 15. According to the prosecution, these three witnesses are the material witnesses, who have actually seen A1 and also the deceased in the Jungle Park Resort, Mayaganahalli on 11.1.2009 in Room No. 101 and these witnesses have seen A1 on that particular day after committing the murder going away with frightened mood. This is the sole and strong circumstance relied upon by the prosecution. But these three witnesses have totally turned hostile to the case of prosecution. After the witnesses being turned hostile, the Public Prosecutor subjected these witnesses for cross examination. It is very particularly suggested to these witnesses that on the date of the incident, they saw A1 and deceased together and after some time, A1 was running away from the said place of incident in a frightened mood. But these witnesses have not admitted the said fact and the prosecution could not able to elicit anything from the mouth of these witnesses against A1. Therefore, looking to the above evidence, the trial against A3 is concluded and the Trial Court by relying upon the evidence of PWs. 8, 9, 15 as well as PW. 5. As no evidence is also available so far as this accused is concerned, it will become a futile exercise by the Court just for the sake of trial. The Court has to conduct the trial without there being any success. Therefore, in my opinion, the case registered against A1 requires to be quashed.

In this context, it is worth to note the latest pronouncement of the Hon''ble Supreme Court between Anil Sute and Another Vs. State of Maharashtra, , wherein it is held at Headnote that-

"Acquittal of some accused-Benefit of doubt, held, extendable to remaining accused in present case-Version of incident given in FIR, materially afferent from one given in court by first informant PW3 (wife of deceased) -Clear unimpeachable evidence-Absence of-Other accused acquitted-Benefit of doubt should also be extended to the absentee accused when the other accused persons are acquitted."

Though in this particular case, A1 does not stand on the same footing as that of A2 and A3, nevertheless, the evidence recorded before the Court show that the evidence has also been recorded against A1 and the witnesses have turned hostile to the prosecution, the sole consideration relied upon by the prosecution was the last seen circumstance of seeing A1 and the deceased together. It is a well propounded principle of law that the last seen together circumstance if it is the sole circumstance, even if it is proved, it only raises a strong suspicion but cannot take the place of proof.

In the above said circumstances, in my opinion, no purpose would be served if A1 is tried before the Court. Hence, the proceedings against A1 deserves to be quashed.

Accordingly, the Petition is allowed. Consequently, the proceedings in SC No. 839/2012 pending on the file of the Presiding Officer, Fast Track Sessions Court-I, Bangalore City is hereby quashed.