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2011 DIGILAW 789 (KAR)

Vijaykumar v. State of Karnataka

2011-08-05

B.V.PINTO

body2011
Judgment :- 1. This petition is filed seeking to set aside the order dated 04.06.2011 passed by the Fast Track Court II. Koppoal in S.C.No.51/2010, wherein the learned Session judge has allowed the application filed by the prosecution under Section 319 Cr.P.C and has ordered for issuance of summons to the petitioners with a direction to add them as accused Nos. 2 to 4 in the said case. 2. Originally on the basis of the complaint of one Shivalingappa, a case in Crime no. 32/2010 was registered in the Alvadi Police Station for the offences punishable under Section 302 read with Section 34 of IPC. In the said complaint, the complainant has stated that the son of the complainant by name Ravi was doing agricultural work and on 22.05.2010, he was asked by the complainant to go to the house of Vijaykumar for asking about the agricultural operations at about 5.00 pm. Since the said Ravi did not come to the house, the complainant started asking about his whereabouts. The complainant got an information through phone that his son Ravi has gone to the house of Vijaykumar and was found inside the house of Vijaykumar and was having illicit relationship with the wife of Vijaykumar. It is further informed to him that the people of the village have locked both of them inside the house and that the accused No. 1 was holding weapon and was declaring that he would commit murder of both of them. On hearing the said information, he went to the scene of occurrence and requested the accused to release his son. Immediately thereafter the Police came to the scene of occurrence and the Police have promised him that they would get his son safely and that he can go back to his house. Accordingly, he came back to his house. Thereafter, the accused informed the people who are gathered there that they will not cause any harm to the son of the complaint. The police opened the door of the house. It is stated that the accused No.1 along with the petitioners herein entered the house with the weapons like sickle and axe and caused the murder of his son Ravi. 3. On the basis of the said information, the case was registered against the accused Vijaykumar, Gavisiddappa, Basavaraj and Kotrappa who are the sons of Shantamma Gaddad. It is stated that the accused No.1 along with the petitioners herein entered the house with the weapons like sickle and axe and caused the murder of his son Ravi. 3. On the basis of the said information, the case was registered against the accused Vijaykumar, Gavisiddappa, Basavaraj and Kotrappa who are the sons of Shantamma Gaddad. On completion of the investigation, the police have filed the charge sheet against the accused Kotrappa and have omitted to file charge sheet against the petitioners on the ground that the evidence against them is not sufficient. The prosecution was commenced against accused Kotrappa and on the committal of the case to the Court of Sessions the prosecution examined in all 24 witnesses and on conclusion of the evidence of 24 witnesses, the learned Public Prosecutor before the trial Court filed an application under Section 319 of Cr.P.C. praying that in view of the evidence of PW 18-Shivalingappa Sidnakoppa. PW 19-Neelappa Nadiger and PW21Hanumappa Kukanur, the presence and participation of these petitioners in the commission of the offence is made out from the evidence of the said witnesses and therefore, they may be summoned to answer the charge under Provisions of Section 319 of Cr.P.C. 4. The learned Sessions Judge by the order dated 04.06.2011 has directed that the petitioners be summoned along with the accused already present to face the trial. It is the said order of the learned Sessions Judge, which has been challenged by the petitioners. 5. Heard the learned counsel for the petitioners and the learned State Public Prosecutor on behalf of the State. Since the matter concerned involves important question of the accused facing a sessions trial, I have permitted Sri.A.R.Patil to submit his arguments also in this case on behalf of complainant and to assist the Court in the disposal of this petition. 6. The learned counsel for the petitioners submits that the order passed by the learned Sessions Judge in summoning the petitioners is sheer abuse of process of law and that the learned sessions Judge could not have summoned the petitioners to face trial at the fag end of the trial by the trial Court. 6. The learned counsel for the petitioners submits that the order passed by the learned Sessions Judge in summoning the petitioners is sheer abuse of process of law and that the learned sessions Judge could not have summoned the petitioners to face trial at the fag end of the trial by the trial Court. He submitted that all the witnesses who are arrayed as eyewitnesses by the prosecution, have turned hostile to the case of the prosecution and that the evidence of PW18, PW19 and PW21 has been mischievously adduced by the prosecution showing them as eye witnesses in the incident. He submits that on a bare reading of the complaint it is obvious that the complaint had gone back to his house and that thereafter the incident of murder has happened. Therefore, obviously PW 18 is not an eyewitness to the incident. Similarly PW19 and PW21 have not stated before the Police during the investigation that they have in fact witnessed the incident of murder of deceased Ravi and that their version before the Court amounts to improvement, which does not inspire the confidence in the mind of the Court to hold that the said witnesses are true eyewitnesses. He further submits that the trial Court has based its finding on the evidence of the Doctors PW6 and PW17 who have stated that the injuries sustained by the deceased would have been caused by more than one weapon and therefore, consequently he has come to the conclusion that there are more than one accused who have caused the murder of Ravi and Annapurna 7. He has cited ruling reported in (2009)16 Supreme Court Cases 46 (Sarabjit Singh and another Vs. State of Punjab and another), ruling reported in (2008)14 Supreme Court Cases 51 (Kailash Vs. State of Rajasthan and another) and also ruling reported in (2002)10 Supreme Court Cases 661 (Rukhsana Khatoon (Smt) Vs. Sakhawat Hussain and others). 8. Sri Vinayak S.Kulkarni, learned High Court Government Pleader for respondent submits that the name of the accused is found in the FIR and that FIR has been registered against all the four persons. State of Rajasthan and another) and also ruling reported in (2002)10 Supreme Court Cases 661 (Rukhsana Khatoon (Smt) Vs. Sakhawat Hussain and others). 8. Sri Vinayak S.Kulkarni, learned High Court Government Pleader for respondent submits that the name of the accused is found in the FIR and that FIR has been registered against all the four persons. He further submits that though the police have omitted to send the petitioners to face the trial and though the alleged eyewitnesses mentioned in the charge sheet have been treated hostile to the prosecution, the evidence of the complainant PW18, PW19 and PW21 prima-facie establishes the presence, participation and overt acts of the petitioners herein in the commission of murder of Ravi and Annapurna and therefore they are involved in the murder of the deceased persons. 9. It is further submitted that the evidence of medical officers that the injuries sustained by the deceased Ravi is caused by multiple weapons further substantiates the claim that the deceased have been done to death by more than one people. He also submits that it is premature to come to a conclusion that the petitioners are not at all involved in the case and therefore, the order passed by the learned Sessions Judge deserves to be confirmed and prays that the petition may be dismissed. 10. Sri. A.R. Patil, learned counsel assisting the prosecution also supports the arguments of the learned High Court Government Pleader and cites ruling reported in (2010)3 Supreme Court Cases (Criminal) 628, (2007)15 Supreme Court Cases 665 (Golla Devavaram and another Vs. Karanam Balarama Krishna Murthy and another) and 1998 Supreme Court Cases (Criminal) 1554. 11. He also submits that the complainant has approached the High Court seeking to refer the matter for investigation by CID, by filing writ petition No.67764/2010 and therefore he submits that the complainant may not be found fault with for the act of Police Officials in shielding the petitioners at the time of filing the charge sheet. Hence, he submits that the petition may be dismissed. 12. Hence, he submits that the petition may be dismissed. 12. It is seen from the complaint given by the complainant Shivalingappa (PW 18) that on the date of offence, he has stated that when the Police have pacified him that they will take care of his son and that his son will be safe, when they are present, the complainant Shivalingappa (PW 18) had gone back to his house and thereafter the incident has happened. The averments made by him in the complaint regarding the murder of his son are that the accused Vijaykumar, Gavisidappa, Basavaraj and Kotrappa have murdered his son by means of sickle and axe. On perusal of the said statement in the FIR it indicates that the complaint was not present at the scene and that the word used “Kannadam” which is in the past tense. If at all PW18 was present, his statement in the FIR would have been “Kannadam” which clearly indicates that he is not an eyewitness to the incident. So far as PW19 and PW20 are concerned, it is submitted by the learned counsel that their statement before the Court is an Improvement and therefore, on appreciation of the entire materials produced before the Court, it seen that PW18, Pw19, and PW21 were not eyewitnesses and therefore, their version could not be the basis for summoning the petitioners before the Court. The other material available to the learned Sessions Judge is the evidence of the Doctor which is only an opinion and his version that the deceased had sustained injuries by multiple weapons cannot replace the evidence of eyewitnesses who have turned hostile. 13. It is to be observed that the accused Kotrappa is in custody since the date of the offence and that the prosecution has almost come to an end. It is a common practice that the complainant is examined first before the Court, whereas in this case he was examined as PW18. Nevertheless, if his evidence can inspire the confidence in the mind of the Court, it does not matter as to with what chronology the complainant was examined. Further in view of the improved version of PW18, PW19 and PW21 it cannot be said that their version would have any bearing to the case in so far as the other eyewitness account is concerned. 14. Further in view of the improved version of PW18, PW19 and PW21 it cannot be said that their version would have any bearing to the case in so far as the other eyewitness account is concerned. 14. The consideration for summoning the accused at the stage of Section 319 of Cr.P.C. is different from summoning the accused at the stage of Section 204 of Cr.P.C. While in the first instance, the consideration is whether the evidence tendered would lead to the conviction of the accused, the consideration for issuing summons at the first stage under Section 204 of Cr.P.C is to find out whether there is a prima facie case triable by the Court in respect of the allegations made in the complaint. 15. On the scrutiny of the materials placed before the Court, I am of the opinion that the materials brought out before the Court would not lead to the conviction of the petitioners and therefore, it would be a exercise in futility to summon the petitioners and thus waste the valuable time of the Court. A prudent man would not come to a conclusion that PW18 is a true witness insofar as his eyewitnesses account of the incident is concerned, and therefore, the accused even if summoned are entitled for acquittal by giving them the benefit of doubt holding that PW18, PW19 and PW21 have improved their version. 16. Under the circumstances, I am of the opinion that exercise of power by the learned Sessions Judge under Section 319 of Cr.P.C. is abuse of process of law. Accordingly, the said application deserves to be set aside. 17. Hence, petition is allowed. The order summoning the petitioners and directing them to face the trial in S.C.No.51/2010 is hereby by set aside.