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2016 DIGILAW 221 (KAR)

Bagappa v. State of Karnataka

2016-03-01

K.N.PHANEENDRA

body2016
ORDER : K.N. Phaneendra, J. The petitioner who is accused No. 6 has sought for quashing of the entire case registered against him in Split Up CC No. 552/2014 on the file of the I Addl. Civil Judge JMFC-I, Vijayapur, for the offence punishable under Sections 147,148, 109, 302 read with 149 of IPC and Sections 25 of the Indian Arms Act. 2. It is an undisputed fact that the petitioner along with other five accused persons by names Sushi, Vijayakumar, Muralingappa, Vasudev and Shashidhar have committed the murder of the deceased Suresh. A charge-sheet has been laid by the police and this petitioner was shown as absconding accused. The case was registered against A1 to A5 in SC No. 55/ 2014 on the file of the Fast Track Court, Vijaypur and vide judgment dated 17.1.2015, all the other accused persons were acquitted by the Sessions Court. It is also not in dispute that the State has not taken up any decision to prefer an appeal against the said judgment. 3. The learned High Court Government Pleader appearing for the respondent (State) submits that decision was taken by the Government not to prefer any appeal against the said judgment. The order of the Government dated 30.3.2015 is perused. 4. The petitioner being the absconding accused claims that the allegations made against other accused and himself are one and the same and they are in-separable in nature and further added to that, even during the course of evidence by the witnesses, no witness has spoken anything about this petitioner in order to implicate him into the crime. Further added to that, it is contended that even if the trial is allowed to be continued against the petitioner, it is only a futile attempt and waste of judicial time. The prosecution has not proposed to lead any evidence against this petitioner, which can differ from the evidence already led before the Court so far as it relates to A1 to A5 are concerned. The witnesses examined in SC No. 55/2014 disclose that they were subjected to cross-examination and even in the course of cross-examination, they never implicated A6 into the crime. 5. The witnesses examined in SC No. 55/2014 disclose that they were subjected to cross-examination and even in the course of cross-examination, they never implicated A6 into the crime. 5. On careful perusal of the judgment passed in SC No. 55/2014 and the charge sheet papers, it reveals that A1 to A6 on 23.08.2013 at Gyangbawadi, Bijapur, with common object and intention to commit the murder of the deceased Suresh, formed into an unlawful assembly and in prosecution of the common object, they have committed rioting and also they were armed with deadly weapons like knife, in order to commit the murder of the deceased. In furtherance of their common object, they intentionally caused the death of Suresh by cutting his neck and assaulted him on different parts of the body who succumbed to the injuries later and thereby all the accused persons have committed the offence punishable u/Ss. 147, 148, 302, 109 and Sections 25 and 27 of the Indian Arms Act read with Section 149 of IPC. 6. In order to prove the above said facts, the prosecution has examined as many as 23 witnesses PWs. 1 to 23 and got marked Exhibits PI to P51 and MOs. 1 to 21. After detailed analysis of the entire evidence on record, the learned Trial Judge has recorded the judgment of acquittal, acquitting A1 to A5. 7. As could be seen from the evidence placed before the Trial Court, the material witnesses examined is none other than the wife of the deceased PW-6 Jyothi, who in fact not fully supported the case of the prosecution. In the examination-in-chief, though she has stated that the accused persons, who were before the Court, have assaulted the deceased with knife and other weapons and her husband died due to the assault. However, during the course of cross-examination, her evidence has been deviated and she has not implicated A2 to A4. She has not only stated anything about those accused persons, but she has given a clear chit so far as A6 is concerned. She has specifically deposed that she does not know about the petitioner Bagappa and she denied that the said petitioner Bagappa and her husband were always going together and committing goondaism recovering hafta etc. She has not stated anything about this petitioner and even his presence has not been spoken to by her at the time of alleged incident. She has specifically deposed that she does not know about the petitioner Bagappa and she denied that the said petitioner Bagappa and her husband were always going together and committing goondaism recovering hafta etc. She has not stated anything about this petitioner and even his presence has not been spoken to by her at the time of alleged incident. She has specifically stated that she does not know anything about this petitioner at all. All other witnesses are also not so important and most of them have turned hostile to the prosecution except this eye-witness to the incident. The Trial Court on appreciation of the cross-examination of this eye-witness and other witnesses has definitely come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 8. The charges framed by the Trial Court also disclose that common allegations are made against A3 and A4 who are alleged to have slit the neck of the deceased and committed the murder. Further, A5 is alleged to have abated the said offence and got exerted the work through A2 to A4. Even in the charges framed against the accused, except forming of an unlawful assembly by A1 to A6, there is no specific role as such attributed so far as this petitioner-A6 is concerned. 9. Looking to the above said facts and circumstances of the case, when the prosecution has invoked Section 149 of IPC, stating that all the accused persons have jointly in collaboration committed such offence and if the main accused persons have been acquitted, there is no purpose in proceeding against this petitioner by once again conducting a trial. 10. In this regard, it is worth to note here a decision of the Hon'ble Apex Court reported in AIR 2005 SC 268 between Central Bureau of Investigation v. Akhilesh Singh, wherein the Hon'ble Apex Court has categorically laid down certain principles that - "When once the main accused, who is alleged to have hatched the conspiracy and who had the motive to kill the accused are discharged, and when that matter had attained finality, the learned single Judge was fully justified in holding that no purpose would be served in further proceeding with the case against the absconding accused." The above said principle is aptly applicable to the present facts and circumstances of the case. If further trial is conducted against the absconding accused, it is just waste of judicial time. 11. In the above said circumstances, I am of the opinion that no purpose would be served if the accused is ordered to undergo the ordeal of trial. Therefore, it is a fit case to quash the proceedings as sought for by the petitioner. Hence, I pass the following: ORDER The petition is allowed. All further proceedings in Split up CC No. 552/2014 pending on the file of the I Addl. Civil Judge (Jr. Dn.) JMFC-I Court at Vijaypur against this petitioner for the offence punishable under Sections 147, 148, 109, 302 read with 149 of IPC and Section 25 of the Indian Arms Act, are hereby quashed. Petition allowed.