Sri. Deepak Raj vs State of Karnataka

C.R. Kumaraswamy, J.—This Criminal Petition is filed u/s 482 of Code of Criminal Procedure praying to quash the entire proceedings in S.C. No. 163/10 (CR No. 422/05 of Mangalore South Police Station, D.K.) on the file of the Principal Sessions Judge, D.K., Mangalore against the Petitioner registered for the offence punishable under Sections 149, 341, 506, 307, 427, 120B read with Section 34 of Indian Penal Code and Section 27 of Indian Arms Act.

With the consent of learned Counsel for the Petitioner as well as learned Additional State Public Prosecutor appearing for the State, this case is heard on merits. The materials placed before this Court are sufficient to dispose of this matter at this stage.

The primary facts of the case is as under:

That on 26.12.2005, the charge sheet witness Nos. 4 and 5 along with other relatives were proceeding in a car bearing No. MEO-1744 near Sri. Jnanodaya Higher Primary School, Hoige Bazar, Mangalore, at that time accused Nos. 1 and 5 came in a Karishma Motorbike and accused Nos. 2, 3 and 4 came in a car bearing No. KA 19 MB 834 and waylaid them. Accused Nos. 1 and 5 entered into the car and accused No. 1 pointed the pistol to the head of CW 1 and when accused No. 1 was talking over his mobile phone, CW 1 tried to escape from there. Then accused No. 1 fired with his pistol towards the window of the car and the glass of the window was broken. Accused Nos. 1 to 5 had stopped the car with an intention to kill CW 1, therefore, they have alleged to have committed offences under Sections 149, 341, 506, 307, 120B read with Section 34 of Indian Penal Code and Section 27 of Indian Arms Act.

The case was committed to the Court of Sessions in S.C. No. 77/2007, thereafter the charge was framed. In the Court of Sessions the prosecution has examined witnesses from P Ws.1 to 10 and documents from Exs. P1 to P14 and MO1 to MO3 were marked. The defense had not examined any witnesses nor marked any documents. PW 1 -the eye witness, PW 2 - the panch witness, PW 3 -the complainant and inmate in the car, P Ws.4 and 5 - the other inmates in the car, P Ws.6 and 7 - the eye witnesses, PW8 - the witness for circumstantial evidence, P Ws.9 and 10 - the mahazar witnesses, had all turned hostile to the side of prosecution.

After considering the evidence of P Ws. 1 to 10 who had turned hostile to the side of prosecution and in the absence of sufficient evidence with regard to the identification of the accused, the Trial Court acquitted accused Nos. 2 and 4 to 8. Accused No. 1 was dead. Accused No. 3 i.e. the Petitioner herein was absconding and later he surrendered before the Committal Court and now he is in judicial custody.

It is the contention of learned Counsel for the Petitioner that if trail is conducted against accused No. 3, since all the material witnesses have turned hostile in S.C. No. 77/2007 and accused No. 1 who was in possession of the pistol is dead, no useful purpose will be served, In support of his contentions, he relied on the following decisions:

(i) In the case of Deepak Rajax v. State of West Bengal reported In 2007 (3) Crimes 95 (SC), the Hon''ble Supreme Court has held as follows:

Criminal Jurisprudence - In case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations: the benefit can be extended to another co-accused after surrender.

(ii) In the case of Sunil Kumar v. State reported in 2000 (1) Crimes 73, the Hon''ble Delhi High Court has held as follows:

Code of Criminal Procedure, 1973 Section 482 - Petition to quash order framing charge under Sections 302/341, IPC - Petitioner was proclaimed offender and was proceeded u/s 299, Code of Criminal Procedure. when other accused were tried and were acquitted by Trial Court -Petitioner surrendered before Court and prayed for discharge-- Other accused were acquitted on ground of insufficiency of evidence - Evidence adduced in the case was inseparable and indivisible -Petitioner could not be treated differently on basis of said evidence - Charge framed was liable to be quashed.

(iii) In the case of Mohammed Ilias v. State of Karnataka reported in 2001(3) KAR. L.J. 551, this Court has held as follows:

Code of Criminal Procedure, 1973, Section 482 - Indian Penal Code. 1860. Sections 498A and 307 - Absconding among accused - Arrest of and launching of proceedings separately against - His arrest after acquittal of co-accused on ground of insufficiency of evidence, as prosecution witnesses turned hostile -Since evidence against all accused persons is common, indivisible and inseparable, absconder who has been brought, to trial after acquittal of co-accused, cannot also be convicted on basis of some evidence - Proceedings are liable to be quashed when there is no possibility of conviction against accused.

Learned Additional State Public Prosecutor appearing for the State submits that since accused No. 3 who is Petitioner herein was absconding, he does not deserve any lenient treatment and the trial against him should be proceeded in accordance with law.

In this case, the Petitioner i.e. accused No. 3 who was absconding, later on surrendered before the Committal Court and he was remanded to judicial custody. The role played by this accused is that he was present at the spot along with other accused persons. The main accused i.e. accused No. 1 who had pointed out the pistol towards the head of CW1 is dead. The role played by this accused and other accused are similar. In this case, the evidence of P Ws.1 to 10 does not reveal about the identity of the culprits and also these witnesses have turned hostile to the side of the prosecution. The accusation made against this Petitioner and accused Nos. 2 and 4 to 8 are more or less the same. Therefore, even if this case is tried, the evidence that will be adduced will be more or less the same and it is inseparable from the evidence that was recorded in S.C. No. 77/2007. It is the contention of learned Additional State Public Prosecutor that accused No. 3 was absconding and trial should be proceeded against him. But the main accused i.e. accused No. 1 is dead and after trial other accused i.e. accused Nos. 2 and 4 to 8 were acquitted, therefore, even if the prosecution adduces evidence in respect of accused No. 3, the evidence that will be adduced will be same and it is inseparable, therefore it is difficult to accept the contentions of Additional State Public Prosecutor that the trial should be proceeded against accused No. 3. In that view of the matter, this Criminal Petition deserves to be allowed.

In the result, I pass the following:

(i) This Criminal Petition is allowed in so far as Petitioner i.e. accused No. 3.

(ii) S.C. No. 163/2010 pending on the file of the Principal Sessions Judge, D.K., Mangalore is hereby quashed.

(iii) Accused No. 3 who is the Petitioner herein is set at liberty, if he is not required in any other case.

(iv) The Registry is directed to intimate" the jail authority forthwith.