State by Byatarayanapura Police Station Bengaluru vs Prabhakar

K.N. Phaneendra, J.—The State has preferred this Revision Petition calling in question the order passed in SC No. 593/2013 on the file of the Addl. City Civil & Sessions Judge, Bangalore City, in discharging respondent (A-6) therein for the offence punishable under sections 399 and 402 of IPC vide order dated 8.12.2015.

It is not in dispute that the respondent is arrayed as A-6 originally in SC No. 1059/2011. It is also not in dispute that in the said case, A1, A2 and A6 were shown as absconding accused and only A3 to A5 were tried by the learned Sessions Judge in SC No. 1059/2011 and in fact those accused persons were acquitted vide judgment dated 31.1.2012. A Split up charge-sheet has been filed against A1, A2 and A6. However, in the said case also, the State could not secure the presence of A1 and A2. However, A6 was secured and produced before the court. After his appearance, A-6 has filed a petition u/S.227 of Cr.P.C. seeking his discharge on the ground that the other co-accused have already been acquitted of the charges after thorough trial by the trial Court, considering the oral and documentary evidence on record. The learned Sessions Judge after appreciating the materials on record, has come to the conclusion that the evidence which has already been led by the prosecution against A3 to A5, are acquitted by the trial Court.

On perusal of the records, the learned Sessions Judge has considered the evidence of the prosecution i.e., particularly PWs.1 & 2 in Sessions Case No. 1059/2011 which has ended in acquittal. It is also observed by the learned Sessions Judge that the prosecution has mainly relied upon the evidence of PWs. 1 & 2, who are the independent witnesses to the prosecution. Out of them, PW-2 has turned hostile to the prosecution and therefore, PW-1 was also disbelieved by the trial Court.

On careful perusal of the copy of the charge-sheet before this court, it discloses that on 24.06.2010 on receiving credible information, Byatarayanapura Police headed by PW-1 had been to Mysore road, KIMCO Junction at about 3.30 a.m., and they found eight persons near the road side and they were preparing themselves for committing dacoity and they were taking with each other to commit dacoity. On carefully observing those persons and their mannerism, the police surrounded them. Out of eight persons, six persons were caught by the Police and other two persons were successful in running away from the spot. Those six persons were arrested and on the spot itself, the police have seized some articles like one chopper, two clubs, two iron longs, one knife, one rod and also two clubs thrown by the persons, ran away from the spot. On the basis of such information and investigation, they lodged the charge sheet against all the accused persons.

The prosecution in order to prove the case mainly relied upon the evidence of PWs. 1 & 2. The evidence of PWs.l & 2 has been thoroughly considered by the FTC-XV, Bangalore City in SC No. 1059/2011 and came to the conclusion that the prosecution has not proved the case against A3 and A5. Hence, the court has acquitted them. It appears, the State has not preferred any appeal against SC No. 1059/2011. Therefore, it virtually reached its logical conclusion.

It is also worth to mention here a decision of the Hon''ble Apex Court reported in 2001(3) KLJ 551 in the case of Mohammad Ilias v. State of Karnataka, wherein this court has held that -

"Absconding 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 same evidence - Proceedings are liable to be quashed when there is no possibility of conviction against the accused."

Looking to the above said facts, particularly as mentioned in the charge-sheet, the facts are inseparable in nature considering the involvement of this respondent in the crime. When the facts are in-separable in nature and the prosecution propose to lead the same evidence against A6 also and there is no specific allegations against A-6 which is different to that of A3 and A5, in my opinion also the trial Court has rightly discharged the accused persons and it avoided wasting of the judicial time. The trial Court has also relied upon various decisions of this court and Supreme Court in this regard. I do not find any strong reasons to interfere with such well reasoned order passed by the learned Sessions Judge. Hence, in my opinion, the Revision Petition filed by the State deserves to be dismissed at the admission stage itself.

Accordingly, the Revision Petition is dismissed.