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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 25TH DAY OF MARCH, 2015

BEFORE

THE HON’BLE MR. JUSTICE K.N.PHANEENDRA

CRIMINAL REVISION PETITION NO.200021/2015

BETWEEN:

RAMANNA,
S/O PAPANNA BAQI
AGE: 65 YEARS, OCC : AGRICULTURE,
R/O : VILLAGE NIRNA,
TQ : HUMNABAD,
DIST: BIDAR. ... PETITIONER

(BY SRI ANIL KUMAR NAVADAGI, ADV.)

AND:

THE STATE THROUGH

MANNA-EKHELLI P.S.
TQ : HUMNABAD,
DIST : BIDAR. … RESPONDENT

(BY SRI MAQBOOL AHMED, HCGP)

THIS CRL.RP IS FILED U/S 397 R/W 401 OF

CR.P.C. PRAYING TO ALLOW THE PETITION AND SET
ASIDE/QUASH THE ORDER DATED 05.01.2015
PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
BIDAR IN S.C. NO. 95/2014, DISMISSING THE
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APPLICATION MOVED BY THE PETITIONER U/S 227

CR.P.C. FOR DISCHARGE AND CONSEQUENTLY BE
PLEASED TO DISCHARGE THE ACCUSED/
PETITIONER OF THE CHARGES FOR WHICH HE HAS
BEEN CHARGE SHHETED, IN THE INTEREST OF
JUSTICE AND EQUITY.

THIS PETITION COMING ON FOR ADMISSION

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner herein, who is the accused in SC

No.95/2014, has sought for setting aside the order

dated 5.1.2015 passed by the learned Principal and

Sessions Judge, Bidar and consequently discharge the

accused/petitioner in the said case for the offence

punishable under Section 302 and 201 of IPC and

quash all further proceedings therein.

2. I have heard the arguments of the learned

counsel for the petitioner and the learned High Court

Government Pleader for the respondent – State.

Perused the records.

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3. It is the contention of the learned counsel for

the petitioner that originally, the present petitioner was

arrayed as A1 in SC No.12/1992 and he was shown as

absconding accused and charge sheet was submitted

against the remaining accused Nos.2 to 7. In SC

No.12/1992, charges were framed against the accused

persons which discloses, including the allegations

against the present petitioner, charges were framed and

evidence was led by the prosecution. The Trial Court

after appreciating the entire materials on record has

come to the conclusion that the prosecution has failed

to prove the alleged offences u/s.302 and 201 read with

Section 149 of IPC and acquitted the accused persons

who were before the Court and consequently, they were

released from the judicial custody. Subsequently, after

tracing the present petitioner, a separate criminal case

was registered in SC No.95/2014, wherein, the

petitioner made an application u/s.227 of Cr.P.C.

seeking discharge on the ground that the other accused

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persons were already acquitted on the same set of facts

and allegations and that no purpose would be served

even if this petitioner is tried before the Court as the

innocence of the accused persons have already been

established before the Sessions Court. The learned

Sessions Judge has dismissed the said application and

ordered for framing of charges against this petitioner.

4. The learned counsel for the petitioner also

submitted before this Court that the judgment of

acquittal passed by the learned Sessions Judge, Bidar

in SC No.12/1992 was subjected to Criminal Appeal in

No.496/1994 and the said appeal was also dismissed

on 20.7.1994 by this Court at the admission stage itself.

Therefore, the judgment of the Trial Court has reached

its finality so far as other accused persons are

concerned.
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5. The learned High Court Government Pleader

however supports the order passed by the learned

Sessions Judge.

6. Now, this Court has to see –

i) Whether the allegations made against

this petitioner and the other co-accused
persons are inseparable in nature and all the
circumstances and the evidence placed
before the Court by the prosecution
including the present petitioner, was already
dealt with by the Sessions Court while
acquitting the other accused.”

ii) Even if the trial is held, it will be a

futile attempt and no purpose would be
served and it amounts to waste of judicial
time and abuse of process of the Court.

7. In this background, in a case between Velu @

Kaduvelu Vs State of Karnataka and Others,

reported in 2014 CRR 717 this Court has already held

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and had an occasion to deal with such circumstances

and it is laid down that that -

“When allegations, evidence on record

are inseparable in nature and other co-
accused have already been acquitted, merely
because present petitioner has absconded
himself for trial, at a particular stage of
recording his statement, cannot be a ground
to reject prayer sought – There is no chance
of conviction of petitioner even if he is
secured and his statement is recorded.
Under such circumstances, the criminal
proceedings are liable to be quashed.”.

8. This Court has also relied upon a decision in

the case of CBI Vs. Akhilesh Singh, reported in AIR

2005 SC 268, wherein the Hon'ble Apex Court has

observed that –

“While exercising power u/s.482 of

Cr.P.C. for quashing of the charge or for
discharge the co-accused. It was held that:-
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Once the main accused who is

alleged to have hatched the
conspiracy and who had the motive
to kill the deceased was discharged
and when that matter had attained
finality, the learned Sessions Judge
was fully justified in holding that no
purpose would be served in further
proceeding with the case against the
respondent and consequently, the
proceedings against the co-accused
has been quashed u/s.482 of
Cr.P.C.”

9. On perusal of the records and on going through

the aforesaid citations, it emerges that the prosecution

has filed charge sheet against all the accused persons

making common allegations against all of them invoking

provisions of Section 149 of IPC and also led common

evidence against all the accused persons.

10. When the allegations and the evidence led by

the prosecution are so indivisible and inseparable in

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nature, under such circumstances, after appreciating

such indivisible and inseparable evidence, the Court

acquits the co-accused persons, then the registration of

a fresh case, split up case against the absconding co-

accused amounts to abuse of process of law and the

benefit extended to the acquitted accused shall also to

be extended even to the absconding accused.

11. The fundamental basic principles of criminal

jurisprudence is that the accused shall be treated as an

innocent person unless he is found guilty by the Court.

Here, the innocence of the co-accused persons have

been fortified by the judgment of the Trial Court.

Therefore, the same benefit of innocence has to be

extended so far as this petitioner is concerned, if the

Court finds on the basis of the materials on record that

the evidence sought to be led against the petitioner is

inseparable and indivisible in nature when compared to

other accused persons. The Court also should see that if

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at all the absconding accused person was also present

before the Court and faced trial along with other co-

accused, what would have been the consequences, if

the absconding accused person would have been

acquitted by the Trial Court. Under such

circumstances, the Court should not allow the

proceedings to continue against such person by way of

split-up charge sheet.

12. Bearing in mind the above said principles,

now let me consider the materials on record. It is the

case of the prosecution in SC No.12/1992 that on

30.10.1991, at about 8.00 p.m., near the house of the

absconding accused Ramanna S/o.Papanna Baqi

(petitioner herein) situated at Nirna village, the

petitioner and other accused person 1 to 6 (who were

acquitted) were formed into an unlawful assembly with

a common object to cause the death of one Erappa S/o.

Manikappa Yenkati R/o. Nirna village, in furtherance of

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such common object and unlawful assembly all the

accused persons were armed with Koitha, Axes, Lathis

and iron rods, assaulted the said Erappa and after

lifting him bodily put him in the Nala situated nearby

the land and then thrashed him on the ground and

thereafter assaulted him with Koitha, Axes, Lathis and

iron rods and inflicted fatal injuries on him and

thereafter, they lifted the body and burnt the dead body

and then threw the half burnt portion of the dead body

in a well situated in the land of Channappa Bulla of

Nirma village in order to screen themselves from legal

punishment and to destroy the evidence that may be

available against them and thereby the accused have

committed the offence u/s.148, 302, 201 read with

Section 149 of IPC.

13. The learned Sessions Judge after securing

the presence of the accused persons framed charges

against the accused persons for the above said offences.

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It is quite curious to note here that the charges framed

and points for consideration recorded by the learned

Sessions Judge are inclusive of the allegation made

against this petitioner also, i.e., to say the charges were

framed and points for consideration were formulated to

the effect that,-

“Whether the prosecution proved the

case beyond reasonable doubt. against the
acquitted accused persons along with the
absconding accused who have committed the
alleged offences. ”

Ultimately the Court has given opinion while

acquitting the other accused persons. It is also

seen from the records that the prosecution in order

to prove the guilt of the accused, examined as many

as 24 witnesses and got marked exhibits P1 to P47

and MOs.1 to 10 as Material Objects. The accused

persons were also examined u/s.313 of Cr.P.C. as

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the accused did not choose to lead any evidence,

the Trial Court after appreciating the evidence on

record, ultimately came to the conclusion that the

prosecution has not proved the homicidal death of

the deceased Erappa and also not proved any

incriminating materials against the accused and

ultimately acquitted all the other accused persons.

14. It is just and necessary to note here that

though the prosecution has relied upon the evidence of

some of the eye-witnesses, but those eye-witnesses

PWs.14 to 16 have turned totally hostile to the

prosecution. Though those witnesses have given their

statement before the JMFC u/s.164 of Cr.P.C., they

turned hostile to the prosecution giving no reasons and

in fact the Trial Court has believed their versions made

during trial. PW22 JMFC who recorded their statement

was also examined, but the Court ultimately disbelieved

the evidence of PWs.14 to 16 and discredited their

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evidence as not acceptable and ultimately held that the

prosecution has not placed any material to show that

they are the eye-witnesses to the incident. Therefore,

no evidence was available from the eye-witnesses so far

as this case is concerned. Some of the circumstances

have been pleaded by the prosecution and the Trial

Court has also reasoned out considering these

circumstances and held that none of the circumstances

have been proved to the satisfaction of the Court.

15. One of the important aspect which was

already discussed by the Trial Court is that the evidence

of PW4 Rajshekar, said to be the witness who has

spoken to about the alleged extra judicial confession

made by the petitioner herein. But he also turned

hostile to the prosecution. PW5 and PW6 Laxuman and

Babu have also to some extent received the information

from the eye-witnesses regarding the factum of assault

by the accused persons on the deceased. But they also

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not supported the case of the prosecution. The last

seen theory was also put forth by the prosecution and

the Trial Court has also discussed, the last seen theory

relying upon the evidence of PW1 and also PW10

Shankar, but they were disbelieved and the court came

to the conclusion that the prosecution has also not

proved the last seen theory.

16. It is categorically stated by the learned

counsel for the petitioner that the prosecution has not

led any evidence in respect of the vehicle of the

deceased and whether actually he went on that

particular day, in which direction and who accompanied

him and how the incident happened.

17. So far as the other circumstance is with

regard to the recovery of some articles i.e., MOs.1 to 5 at

the instance of accused persons who have faced the

trial. The Trial Court has observed that all the panch

witnesses for the various recovery panchanama have

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turned hostile to the prosecution. Therefore, the

recovery theory was also disbelieved by the Trial Court

and the evidence of PW.24 CPI so far as this aspect is

concerned was also not accepted by the Trial Court.

18. Therefore, from the above said evidence, the

Trial Court has come to a definite conclusion that the

accused persons who have faced the trial along with the

absconding accused have never committed any offence

as alleged by the prosecution and the prosecution has

failed to prove the guilt of the accused persons. When

such being the case, even in the absence of the

absconding accused, his innocence has been examined

by way of the evidence led by the prosecution as found

by the learned Sessions Judge, in my opinion, there

should not be any further trial so far as this petitioner

is concerned. Otherwise, it would amounts to abuse of

process of the Court.

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19. The learned Sessions Judge would have

looked into all these materials while ordering to frame

charges against this petitioner. The ultimate object is

that whether even if the charges are framed against this

petitioner, the trial is held, whether, it can end up in

conviction. With all certainty, if the answer is in the

negative, the Court should not proceed to frame charges

and try him.

20. Therefore, looking from any angle and also in

view of the above said decisions, I do not find any strong

reason to refuse the relief as sought for in this petition.

The learned Sessions Judge has not applied his

judicious mind so far as all these aspects are

concerned, but he swayed away by the factual aspects

that the charge sheet papers are only to be looked into

for the purpose of framing of charges and not other

materials on record. It may not be proper on the part

of the learned Sessions Judge in saying so when the

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charge sheet is already translated into evidence and

culminated in well-reasoned order. Therefore, those

materials are relevant to be considered. By way of

judicious precedents and under Section 227 of Cr.P.C.,

the Sessions Judges are empowered to discharge the

accused persons considering the acquittal of other co-

accused persons. The Court has only to see whether any

purpose would be served, if the proceedings are initiated

and proceeded so far as the absconding accused is

concerned. If the answer is in the negative, the learned

Sessions Judge himself is empowered to discharge such

co-accused persons. Therefore, looking from any angle,

the order of the learned Sessions Judge is not

sustainable and the same is liable to be set aside.

Consequently, the petitioner’s application filed before

the learned Sessions Judge u/s.227 of Cr.P.C. deserves

to be allowed.
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Accordingly, the Revision petition is allowed.

Consequently, the order passed by the Principal District

and Sessions Judge, Bidar dated 5.1.2015 in SC

No.95/2014 is hereby set aside and the application filed

by the petitioner before the Trial Court u/s.227 of

Cr.P.C. is hereby allowed and the accused is hereby

discharged and all further proceedings if any are hereby

quashed.

Sd/-
JUDGE

PL*