Ramanna vs State

K.N. Phaneendra, J.—The petitioner herein, who is the accused in SC No. 95/2014, has sought for setting aside the order dated 5.1.2015 passed by the learned Principal and Sessions Judge, Bidar and consequently discharge the accused/petitioner in the said case for the offence punishable under Section 302 and 201 of IPC and quash all further proceedings therein.

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

It is the contention of the learned counsel for the petitioner that originally, the present petitioner was arrayed as A1 in SC No. 12/1992 and he was shown as absconding accused and charge sheet was submitted against the remaining accused Nos. 2 to 7. In SC No. 12/1992, charges were framed against the accused persons which discloses, including the allegations against the present petitioner, charges were framed and evidence was led by the prosecution. The Trial Court after appreciating the entire materials on record has come to the conclusion that the prosecution has failed to prove the alleged offences u/s. 302 and 201 read with Section 149 of IPC and acquitted the accused persons who were before the Court and consequently, they were released from the judicial custody. Subsequently, after tracing the present petitioner, a separate criminal case was registered in SC No. 95/2014, wherein, the petitioner made an application u/s. 227 of Cr.P.C. seeking discharge on the ground that the other accused persons were already acquitted on the same set of facts and allegations and that no purpose would be served even if this petitioner is tried before the Court as the innocence of the accused persons have already been established before the Sessions Court. The learned Sessions Judge has dismissed the said application and ordered for framing of charges against this petitioner.

The learned counsel for the petitioner also submitted before this Court that the judgment of acquittal passed by the learned Sessions Judge, Bidar in SC No. 12/1992 was subjected to Criminal Appeal in No. 496/1994 and the said appeal was also dismissed on 20.7.1994 by this Court at the admission stage itself. Therefore, the judgment of the Trial Court has reached its finality so far as other accused persons are concerned.

The learned High Court Government Pleader however supports the order passed by the learned Sessions Judge.

Now, this Court has to see -

"i) Whether the allegations made against this petitioner and the other co-accused persons are inseparable in nature and all the circumstances and the evidence placed before the Court by the prosecution including the present petitioner, was already dealt with by the Sessions Court while acquitting the other accused."

ii) Even if the trial is held, it will be a futile attempt and no purpose would be served and it amounts to waste of judicial time and abuse of process of the Court."

In this background, in a case between Velu @ Kaduvelu v. State of Karnataka and Others, reported in 2014 CRR 717 this Court has already held and had an occasion to deal with such circumstances and it is laid down that that -

"When allegations, evidence on record are inseparable in nature and other co-accused have already been acquitted, merely because present petitioner has absconded himself for trial, at a particular stage of recording his statement, cannot be a ground to reject prayer sought - There is no chance of conviction of petitioner even if he is secured and his statement is recorded. Under such circumstances, the criminal proceedings are liable to be quashed.". 8. This Court has also relied upon a decision in the case of Central Bureau of Investigation Vs. Akhilesh Singh, , wherein the Hon''ble Apex Court has observed that -

"While exercising power u/s. 482 of Cr.P.C. for quashing of the charge or for discharge the co-accused. It was held that:--

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 Sessions Judge was fully justified in holding that no purpose would be served in further proceeding with the case against the respondent and consequently, the proceedings against the co-accused has been quashed u/s. 482 of Cr.P.C." 9. On perusal of the records and on going through the aforesaid citations, it emerges that the prosecution has filed charge sheet against all the accused persons making common allegations against all of them invoking provisions of Section 149 of IPC and also led common evidence against all the accused persons.

When the allegations and the evidence led by the prosecution are so indivisible and inseparable in nature, under such circumstances, after appreciating such indivisible and inseparable evidence, the Court acquits the co-accused persons, then the registration of a fresh case, split up case against the absconding co-accused amounts to abuse of process of law and the benefit extended to the acquitted accused shall also to be extended even to the absconding accused.

The fundamental basic principles of criminal jurisprudence is that the accused shall be treated as an innocent person unless he is found guilty by the Court. Here, the innocence of the co-accused persons have been fortified by the judgment of the Trial Court. Therefore, the same benefit of innocence has to be extended so far as this petitioner is concerned, if the Court finds on the basis of the materials on record that the evidence sought to be led against the petitioner is inseparable and indivisible in nature when compared to other accused persons. The Court also should see that if at all the absconding accused person was also present before the Court and faced trial along with other co-accused, what would have been the consequences, if the absconding accused person would have been acquitted by the Trial Court. Under such circumstances, the Court should not allow the proceedings to continue against such person by way of split-up charge sheet.

Bearing in mind the above said principles, now let me consider the materials on record. It is the case of the prosecution in SC No. 12/1992 that on 30.10.1991, at about 8.00 p.m., near the house of the absconding accused Ramanna S/o. Papanna Baqi (petitioner herein) situated at Nirna village, the petitioner and other accused person 1 to 6 (who were acquitted) were formed into an unlawful assembly with a common object to cause the death of one Erappa S/o. Manikappa Yenkati R/o. Nirna village, in furtherance of such common object and unlawful assembly all the accused persons were armed with Koitha, Axes, Lathis and iron rods, assaulted the said Erappa and after lifting him bodily put him in the Nala situated nearby the land and then thrashed him on the ground and thereafter assaulted him with Koitha, Axes, Lathis and iron rods and inflicted fatal injuries on him and thereafter, they lifted the body and burnt the dead body and then threw the half burnt portion of the dead body in a well situated in the land of Channappa Bulla of Nirma village in order to screen themselves from legal punishment and to destroy the evidence that may be available against them and thereby the accused have committed the offence u/s. 148, 302, 201 read with Section 149 of IPC.

The learned Sessions Judge after securing the presence of the accused persons framed charges against the accused persons for the above said offences. It is quite curious to note here that the charges framed and points for consideration recorded by the learned Sessions Judge are inclusive of the allegation made against this petitioner also, i.e., to say the charges were framed and points for consideration were formulated to the effect that,-

"Whether the prosecution proved the case beyond reasonable doubt against the acquitted accused persons along with the absconding accused who have committed the alleged offences. " Ultimately the Court has given opinion while acquitting the other accused persons. It is also seen from the records that the prosecution in order to prove the guilt of the accused, examined as many as 24 witnesses and got marked exhibits P1 to P47 and MOs. 1 to 10 as Material Objects. The accused persons were also examined u/s. 313 of Cr.P.C. as the accused did not choose to lead any evidence, the Trial Court after appreciating the evidence on record, ultimately came to the conclusion that the prosecution has not proved the homicidal death of the deceased Erappa and also not proved any incriminating materials against the accused and ultimately acquitted all the other accused persons.

It is just and necessary to note here that though the prosecution has relied upon the evidence of some of the eye-witnesses, but those eye-witnesses P.Ws. 14 to 16 have turned totally hostile to the prosecution. Though those witnesses have given their statement before the JMFC u/s. 164 of Cr.P.C., they turned hostile to the prosecution giving no reasons and in fact the Trial Court has believed their versions made during trial. P.W. 22 JMFC who recorded their statement was also examined, but the Court ultimately disbelieved the evidence of P.Ws. 14 to 16 and discredited their evidence as not acceptable and ultimately held that the prosecution has not placed any material to show that they are the eye-witnesses to the incident. Therefore, no evidence was available from the eye-witnesses so far as this case is concerned. Some of the circumstances have been pleaded by the prosecution and the Trial Court has also reasoned out considering these circumstances and held that none of the circumstances have been proved to the satisfaction of the Court.

One of the important aspect which was already discussed by the Trial Court is that the evidence of PW4 Rajshekar, said to be the witness who has spoken to about the alleged extra judicial confession made by the petitioner herein. But he also turned hostile to the prosecution. PW5 and PW6 Laxuman and Babu have also to some extent received the information from the eye-witnesses regarding the factum of assault by the accused persons on the deceased. But they also not supported the case of the prosecution. The last seen theory was also put forth by the prosecution and the Trial Court has also discussed, the last seen theory relying upon the evidence of P.W. 1 and also P.W. 10 Shankar, but they were disbelieved and the court came to the conclusion that the prosecution has also not proved the last seen theory.

It is categorically stated by the learned counsel for the petitioner that the prosecution has not led any evidence in respect of the vehicle of the deceased and whether actually he went on that particular day, in which direction and who accompanied him and how the incident happened.

So far as the other circumstance is with regard to the recovery of some articles i.e., MOs. 1 to 5 at the instance of accused persons who have faced the trial. The Trial Court has observed that all the panch witnesses for the various recovery panchanama have turned hostile to the prosecution. Therefore, the recovery theory was also disbelieved by the Trial Court and the evidence of P.W. 24 CPI so far as this aspect is concerned was also not accepted by the Trial Court.

Therefore, from the above said evidence, the Trial Court has come to a definite conclusion that the accused persons who have faced the trial along with the absconding accused have never committed any offence as alleged by the prosecution and the prosecution has failed to prove the guilt of the accused persons. When such being the case, even in the absence of the absconding accused, his innocence has been examined by way of the evidence led by the prosecution as found by the learned Sessions Judge, in my opinion, there should not be any further trial so far as this petitioner is concerned. Otherwise, it would amounts to abuse of process of the Court.

The learned Sessions Judge would have looked into all these materials while ordering to frame charges against this petitioner. The ultimate object is that whether even if the charges are framed against this petitioner, the trial is held, whether, it can end up in conviction. With all certainty, if the answer is in the negative, the Court should not proceed to frame charges and try him.

Therefore, looking from any angle and also in view of the above said decisions, I do not find any strong reason to refuse the relief as sought for in this petition. The learned Sessions Judge has not applied his judicious mind so far as all these aspects are concerned, but he swayed away by the factual aspects that the charge sheet papers are only to be looked into for the purpose of framing of charges and not other materials on record. It may not be proper on the part of the learned Sessions Judge in saying so when the charge sheet is already translated into evidence and culminated in well-reasoned order. Therefore, those materials are relevant to be considered. By way of judicious precedents and under Section 227 of Cr.P.C., the Sessions Judges are empowered to discharge the accused persons considering the acquittal of other co-accused persons. The Court has only to see whether any purpose would be served, if the proceedings are initiated and proceeded so far as the absconding accused is concerned. If the answer is in the negative, the learned Sessions Judge himself is empowered to discharge such co-accused persons. Therefore, looking from any angle, the order of the learned Sessions Judge is not sustainable and the same is liable to be set aside. Consequently, the petitioner''s application filed before the learned Sessions Judge u/s. 227 of Cr.P.C. deserves to be allowed.

Accordingly, the Revision petition is allowed. Consequently, the order passed by the Principal District and Sessions Judge, Bidar dated 5.1.2015 in SC No. 95/2014 is hereby set aside and the application filed by the petitioner before the Trial Court u/s. 227 of Cr.P.C. is hereby allowed and the accused is hereby discharged and all further proceedings if any are hereby quashed.