Saibanna vs State of Karnataka and Others

K.N. Phaneendra, J.—The petitioner who is arrayed as accused No. 11 in the charge sheet, later registered before the Sessions Court in S.C. 321/2005. It is seen that due to the abscondance of the accused-petitioner a split up charge sheet was filed later in C.C. No. 510/2014. There are as many as 12 accused persons in the original charge sheet and all the accused persons Nos. 1 to 12 were arrayed as accused Nos. 1 to 12 in S.C. No. 321/2005. Out of them accused Nos. 1 and 6 died during the pendency of the proceedings and accused Nos. 3, 7, 8, 10 and 11 were split up from the proceedings. Subsequently a split up charge sheet is filed in the above C.C. No. 510/2014 before the J.M.F.C., Court Afzalpur. The petitioner sought for quashing of the said charge sheet filed against him on the ground that the other accused persons who were tried by the learned Sessions Judge in S.C. No. 321/2005 i.e. to say accused Nos. 2, 4, 5, 9 and 12 were acquitted. It is the contention of the petitioner as argued by the learned counsel no special and separate allegations made against this petitioner. The entire charge sheet papers and as well as the evidence of the witnesses recorded in the said Sessions Case and also the Judgement of the trial Court, if it is read collectively it discloses that there are no separate or independent allegations made against accused No. 11 compared to the acquitted accused. Therefore the evidence recorded so far as acquitted accused is as well applicable so far as accused No. 11 (petitioner) is concerned.

When the allegations made against the acquitted persons and absconding accused are inseparable in nature and no better evidence that can be led by the prosecution even if the petitioner is once again tried by the Sessions Court, therefore that would amounts a futile attempts to try the accused for the same offences, under such circumstances merely because accused was absconding, it cannot be a ground for the trial of the accused once again, because the learned Sessions Judge has acquitted the accused persons by appreciating the evidence on record and found that there are no materials available in favour of the prosecution in order to convict any of the accused persons and that the prosecution failed to establish its case beyond all reasonable doubt. Therefore he contended that the continuation of criminal proceedings amounts to abuse of process of law and the same is liable to be quashed.

Learned High Court Government Pleader has supported the charge sheet papers and he submitted that accused absconded himself since 2005 and he never as a dutiful citizen of the country surrendered himself to the jurisdiction of the Court and assisted the Court in disposing of the matter even against him. Therefore no leniency should be shown and he should be made to appear before the Court and face the trial.

Having regard to the above said arguments, the Court has to see whether the petitioner has made out any substantial grounds to quash the proceedings against him as sought for in the petition.

It is an undisputed fact that totally accused Nos. 1 to 12 were charge sheeted and case has been registered in S.C. No. 321/2005. The police have only sent up accused Nos. 2, 4, 5, 9 and 12 for trial and they were tried and acquitted by the Sessions Court and subsequently a split up charge sheet is filed against this petitioner who is accused No. 11. The acquittal judgment, reached its finality as State has not challenged the same.

The brief factual matrix that emanate from the records as per the charge sheet papers are that one Bheemshya S/o. Huchappa of Balondagi village in Afzalpur Taluka has filed a complaint stating that he has got four brothers and three sisters, father and mother, they were all living together. The deceased Shivaputrappa and Dattu are the brothers of the complainant. It is alleged that the accused persons belonging to one group and they were nurturing hatred and ill-will against the complainant and his brothers because the complainant and his family members belonging to Harijan by community and the Government has granted contract work to the brother of the complainant to construct Dr. Ambedkar building etc. In fact one of the accused i.e., accused No. 1 Khajappa was also doing contract work, he was a rival to the deceased Shivaputrappa and Dattu and in fact Khajappa was always interfering with the contract work of deceased Shivaputrappa and Dattu and on some occasions he got the contract work which was earlier granted to the brothers of the complainant.

In this back ground it was further alleged on one occasion, accused No. 1 and his brothers have lit fire to the house of the complainant and committed the offences of fire mischief and there was a case filed against the accused persons in Afzalpur police station, wherein the deceased Dattu was the complainant. In this back-ground on some occasions the accused persons have also assaulted the complainant and there was complaint between the two groups with regard to their ill-will and hatred developed between them. Having nurturing the hatred against the members of the family of the complainant, particularly against the deceased Shivaputrappa and Dattu, it is alleged that on 06-10-2000 his brother Shivaputrappa left his house at 9.00 a.m., stating that he has to attend a panchayat meeting, the complainant''s mother had been to Balondagi in order to attend a festival. On that day at about 3.30 p.m. some people came to the complainant and informed that somebody has committed murder of his brother, immediately the complainant alongwith Ramesh and others went to the place of incident i.e. a road near Gour (B), a big village by name Gaur, they saw the dead body of Dattu and Shivaputrappa who have sustained severe injuries on their body. On enquiry the complainant came to know that some people were their at the time of incident but they were all afraid of all the accused persons, therefore they ran away from the spot when the complainant was proceeding to reach the spot. His mother and sister came weeping to that place and told the complainant that all the accused persons while passing near the house of the complainant declaring that they have committed the murder of deceased Dattu as well as Shivaputrappa. On receiving such information, a complaint came to be lodged against Khajappa, his brother Pandurang and Mallappa and against 3 to 4 persons unknown at that particular point of time. On the basis of such complaint, the police have investigated the matter and submitted the charge sheet.

During the course of investigation, it appears that police found P.W.6 Satavva, P.W.7 Lakkawwa and P.W.11 Lachappa are the eyewitnesses to the incident. They have disclosed the name of the other accused persons i.e., to say they have disclosed the names of the accused persons and their involvement in the case. Therefore considering the statement of the eyewitnesses, the police proceeded against the accused persons. There after completion of the investigation, the police found that all the accused persons were involved in murdering Dattu and Shivaputra. Therefore charge sheet came to be lodged against all the accused persons. The police in fact at the time of filing of the charge sheet found that accused Nos. 3, 8, 10 and 11 are absconding. Therefore a split up charge sheet have been laid, subsequently against these accused persons.

As I have already narrated accused Nos. 1 and 6 were not available for the trial, because they were dead. The remaining accused persons were tried. The Court has framed charges against the accused persons for the offences punishable U/Sec. 143, 147, 148, 342, 341, 506, 302, 120(B) and 109 R/w Sec. 149 of Indian Penal Code. The accused persons who were tried, pleaded not guilty as such the Court after recording their plea set down the case for evidence. The prosecution in all examined 26 witnesses and got marked documents Ex. P.1 to Ex. P. 30 and material objects M.Os 1 to 17 and during the course of cross-examination Ex. D.1 to Ex. D.15 were marked, Ex. D.16 is also marked which is the copy of Ex. P.2. After completion of the evidence, the Court also examined the accused who were tried U/Sec. 313 of Cr.P.C. later the accused did not choose to lead any evidence. After hearing the arguments, the trial Court has found that the prosecution has not proved the case against the tried accused persons beyond reasonable doubt. Therefore the trial Court has acquitted the accused.

This Court has to see whether the evidence placed before the trial Court and relied upon by the Court for acquitting the accused who were tried and the allegations made in the charge sheet papers and the evidence are all inseparable as against the present accused person. If at all the allegations and evidence already relied on by prosecution are similar and inseparable in nature, then the Court has to extend the same benefit which was extended to the acquitted accused person. Merely because the accused was absconding, it cannot be said at any stretch of imagination, there a prim-facie case still available against the accused in order to try the accused before the Court.

The right of liberty of a person is a fundamental right when the Court finds that the other accused persons who stand on the same footing have not at all committed any offences and the evidence placed before the Court is not sufficient to convict any of the accused persons then it should be presumed that this accused is also innocent and entitled for acquittal. The second view is that if at all this accused was also available to the trial Court whether on the basis of the same material available on record, the trial Court could have convicted this petitioner, if the answer is yes, then only the present petitioner is liable to be tried once again, if the answer is no then there is no question of trying the accused once-again for the same offences on the basis of the same evidence. In this background the Court has to analyze the materials on record.

Before adverting to the evidence recorded, analyzed by the trial Court and the opinion expressed by the trial Court it is just and necessary to bear in mind a decision of Hon''ble Apex Court which was decided on similar set of circumstances.

In this regard, it is worth to note here a decision of the Apex Court reported in Central Bureau of Investigation Vs. Akhilesh Singh, , wherein, it was held that:

"Quashing of charge and discharge of the accused when main 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 co-accused held proper." 14. In another decision reported in Muneer Ahmed Qureshi, Muneer @ Gaun Muneer Vs. State of Karnataka, by Kumarswamy Layout Police, wherein this Court has held that:-

"Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgement 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 the background of the above, now the Court has to see whether the evidence placed before the Court against the acquitted accused if it is compared with the allegations made against the petitioner are indivisible or inseparable in nature so as to come to the conclusion that sending of the petitioner to trial is a futile attempt.

The prosecution in order to prove the case has examined some of the witnesses. It is seen that PW.4 is the mother, PW.5 is the sister, PW.10 is the brother-in-law of the deceased PW.21 is the complainant who is also another brother of the deceased. PWs.6, 7, 9 and 11 are the eyewitnesses to the incident. PWs. 1 to 3, 22 and 23 are the panchas to different panchanamas which are not necessarily to be considered by this Court because there is no recovery at the instance of the present petitioner. PW.17 is the doctor who conducted postmortem examination on the dead bodies. PWs. 12 to 15 and 20 are the official witnesses. PWs. 16, 18 and 24 are the formal witness and PWs. 19, 25 and 26 are the investigating officers. Out of the above said witnesses, the Trial Court has considered the evidence of eyewitnesses and evidence of relative witnesses as prime witnesses to the prosecution case in order to adjudicate the liability of the accused persons. As could be seen from the evidence of these witnesses particularly, eyewitness PWs.6, 7 and 11, they totally turned hostile to the case of the prosecution. There is no semblance of evidence to connect the complicity of the accused persons to the crime. Therefore, the Trial Court also did not venture upon to discuss in detail, the evidence of these witnesses as the Trial Court found even accepting the examination-in-chief and cross-examination of the witnesses, there is no allegations of whatsoever made against accused persons to connect them to the crime. The remaining witnesses are relative witnesses. On careful perusal and re-evaluation of these witnesses, I find they are not eyewitnesses. According to PW4 who is the mother, PW.5 who is the sister of the deceased and even according to the complaint averments as well as their deposition before the Court, it is their case that on the date of the incident immediately after the incident, the accused persons holding deadly weapons in their hands coming to their village declaring that they have actually committed the offences and committed the murder of Dattu and Shivaputra. This statement of the accused persons before the witnesses has to be considered as extra judicial confession. But the Trial Court has disbelieved this aspect because the complainant as well as PWs.4, 5 and 10 are the interested witnesses and only on the basis of such extra judicial confession, no person can be convicted. Further added to that, in my opinion, it may be hardly believed that accused persons who have committed the offence would directly go to the kith and kin of the deceased and say that he has committed the murder or offence. Therefore, as rightly observed by the Trial Court these witnesses so far as that aspect is concerned cannot be believed. Even if the Court accepts the said extra judicial confession statement, on the sole basis, the Court cannot convict the accused person. It may create strong suspicion against the accused but at any stretch of imagination it can be said that it will take the place of proof, what is required is proof beyond reasonable doubt. Only on circumstance, i.e., extra judicial confession without any linking circumstance would not lead to the conclusion that prosecution has proved the case beyond reasonable doubts. Therefore, the Trial Court after analyzing the evidence of these interested witnesses has found that it cannot be believed in view of the specific hostility of the eyewitnesses in the case. Except these two batch of witnesses, as I have said other witnesses are only incidental witnesses and no witness either with regard to the recovery or with regard to any other circumstance implicated the other accused persons much less the present petitioner, therefore, I do not find any strong reason to hold that petitioner has to be tried once again for the same offences on the basis of the same evidence on which the other accused persons who stand on the same footing are already acquitted.

Under the above said circumstances, in view of the law laid down by the Apex Court and this Court, I am of the opinion that materials available on record before the Sessions Court against the acquitted accused and present petitioner are inseparable and indivisible in nature. Therefore, the same benefit has to be extended to the petitioner though he was not available for trial. As I have already said, if at all this accused was also available to the Trial Court, the Court has to see whether on the basis of such evidence, the Court could have convicted the present petitioner. If the answer is no, even in the absence of the present petitioner the benefit of said judgment has to be extended.

Under the above said circumstances, I am of the opinion that petitioner has made out a ground for quashing of the proceedings instituted against him in C.C. No. 510/2014 (Crime No. 136/2000 of Afzalpur Police Station) pending on the file of JMFC, Afzalpur, and there need not be any committal proceedings and there need not be any trial against the accused/petitioner.

The petition filed under Section 482 of Cr.P.C. is hereby allowed. All further proceedings to be taken against the petitioner in C.C. No. 510/2014 (Crime No. 136/2000 of Afzalpur Police Station) are hereby quashed.

Office is hereby directed to communicate this order to the concerned jail authorities to release the petitioner/accused forthwith, if he is not required in any other case.