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2019 DIGILAW 544 (KAR)

Sainaj Abbasali Nalaband v. State Of Karnataka

2019-02-28

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. - This criminal revision petitioner is filed under section 397 read with sector 401 of Cr.P.C. questioning the legality, propriety and correctness of the order dated 20.02.2016 passed by the I Addl. Sessions Judge Vijayapura in Sessions Case No. 118/2014. 2. The brief facts of the case leading to filing of this revision petition are as follows: On 02.05.2011 at about 11.00 a.m., the complainant one Manjunath s/o Maldiwallappa Jalapur of B. Hatti, Tq. Basavana Bagewadi now residing at Mumbai, filed a missing complaint in respect of his deceased mother Maldiwallappa Jalapur, at Muddebihal Police Station. The said complaint has been transferred to Basavana Bagewadi Police Station and registered under Basavana Bagewadi Police Station Crime No. 95/2011. Subsequently, the complainant again filed another complaint on 10.05.2011 before the Basavana Bagewadi Police Station. On the basis of said complaint the respondent police recorded the statement of CW-10, Nagappa Pujari, in which it is alleged that accused No. 1 Basavaraj Gundalli of Basavana Hatti took the deceased Madiwalawwa in a Nano car at Basavana Bagewadi, along with other accused persons and made criminal conspiracy with an intention to kill her and went towards UKP Kolhar and murdered her. In order to destroy the evidence of the offence of murder they took the dead body towards Mudhol bridge. It is further alleged in the complaint that accused No. 1 was in love with CW-8 Nisha, the daughter of the deceased but she had no intention to marry accused No. 1. The deceased was opposing her marriage with accused No. 1 for the reason that accused No. 1 is already married with another lady. Therefore, accused felt that the deceased is coming in the way of accused No. 1 marrying Nisha and conspired to commit her murder, with that intention the accused took the deceased and committed her murder and destroyed the evidence of murder. 3. The record reveal that accused Nos. 1 to 3 were tried for the offences under Sections 302 and 201 of IPC in Sessions Case No. 63/2012 on the file of I Additional Sessions Judge, Vijayapura and they were convicted for the said offences. However, accused No. 4 the present petitioner remained absent and the case against her was split up and S .C.No. 118/2014 was registered against her. However, accused No. 4 the present petitioner remained absent and the case against her was split up and S .C.No. 118/2014 was registered against her. Subsequently, the petitioner surrendered before the trial Court on 13.01.2016 and she was enlarged on bail. Thereafter, the petitioner filed application under section 227 of Cr.P.C., 1973 seeking to discharge her for the alleged offence. The prosecution opposed the said application. The trial Court after hearing both the parties dismissed the petition filed under section 227 of Cr.P.C., 1973 and directed the petitioner to face trial for the offences punishable under sections 120B, 302, 201 read with Section 34 of IPC. The petitioner has challenged the legality, propriety and correctness of this order in this revision petition. 4. Heard learned counsel for the petitioner and the learned High Court Government Pleader. 5. After hearing learned counsel for the petitioner and the learned High Court Government Pleader, the following point arise for consideration before this Court. 'Whether the impugned order dated 20.02.2016 dismissing the application under section 227 of Cr.P.C., 1973 suffer from legality, propriety and correctness and as such the same is liable to be set aside?' 6. The petitioner has been contending that she has been falsely implicated by inserting the name as Sainaz w/o Abdulrazak Kudachi of Janawad village in Jamakhandi Taluka and that the summons were served on the petitioner with the said name. On this ground the petitioner filed the application before the trial Court under section 227 of Cr.P.C., 1973 to discharge her for the alleged offence. It is admitted that accused No. 1 to 3 were tried for the alleged offences in S.C.No.63/2012 and after full fledged trial, they were convicted for the said offences. It is also admitted that during the trial of S.C.No.63/2012, the present petitioner arrayed as accused No. 4 could not be secured and as such the case against her was split up and present case was registered. The Investigating Officer has collected the necessary material in the course of additional investigation to show that present petitioner shown as accused No. 4 with name as Sainaz w/o Abdulrazak Kudachi is the same person now secured before the Court and accordingly filed the split up charge sheet and while convicting accused Nos. 2 and 3, the trial Court has observed that CW-10, Nagappa has stated before the Investigating Officer that he has seen accused Nos. 2 and 3, the trial Court has observed that CW-10, Nagappa has stated before the Investigating Officer that he has seen accused Nos. 1 to 3 along with deceased on the date of the alleged offence while they were proceeding in the Nano car. Admittedly, the complainant had filed two missing complaints in respect of his mother who was found murdered. The trial Court has observed while rejecting the application under section 227 of Cr.P.C., 1973 that the Investigating Officer in order to prove the identity of the petitioner as accused No. 4 has collected sufficient material. He visited the house of the petitioner herein and has drawn panchanama in the presence of Firoz s/o Sahebkhan Pathan of Jamakhandi taluka and Chandrashekhar Bajantri. He has also recorded the statement of witnesses in order to identify the petitioner as accused No. 4, as arrayed in S.C.No.63/2012. It is also observed that there is a prima facie record to show that the petitioner accused No. 4 also traveled with accused Nos. 1 to 3 in the car along with deceased Maldiwallappa who was later found murdered and therefore there is sufficient evidence on record to make out a case against the petitioner that she is accused No. 4 as mentioned in the charge sheet and therefore she has to face the trial in S.C.No. 118/2014 which is the split up case. 7. Under these circumstances, no fault could be found with the learned trial Court Judge in rejecting the application filed by the petitioner for her discharge under section 227 of Cr.P.C., 1973 The record in the supplementary charge sheet also goes to show that the Investigating Officer has got identified the petitioner as accused No. 4 involved in the case. 8. Under these circumstances, I hold that the impugned order neither suffers from legality nor from propriety nor correctness and as such the present criminal revision petition being devoid of merits is liable to be dismissed. Accordingly, I proceed to pass the following: ORDER 1. This criminal revision petition filed under section 397 read with section 401 of Cr.P.C., 1973 is hereby dismissed. Consequently, the order dated 20.02.2016 passed in S.C.No. 118/2014 in the file of I Addl. Sessions Judge, Vijayapura is confirmed.