Karnataka High Court State Of Karnataka vs Shobha W/O. Kallayya Hireamath on 4 March, 2014Author: K.N.Phaneendra

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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 4TH DAY OF MARCH, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL REVISION PETITION NO.2331/2013 BETWEEN:

STATE OF KARNATAKA

THROUGH BAILHONGAL PS

DIST: BELGAUM.

… PETITIONER

(BY SRI.V.M.BANAKAR, ADDL.SPP)

AND

SHOBHA W/O. KALLAYYA HIREAMATH,

AGE: 36 YEARS,

OCC: BUSINESS,

R/O. 2312, SHRI GURU KRUPA,

VANASHIR NAGAR,

SATTOOR, DHARWAD.

… RESPONDENT

THIS CRL.RP IS FIELD U/S 397 & R/W 401 OF CR.P.C.SEEKING TO SET ASIDE THE ORDER DATED 26.03.2013 DISCHARGING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 363, 368, 366A, 372, 373, 114,376, 376, 120-B OF IPC AND SECTIONS 3, 4,5, 6 PIT ACT AND SECTIONS 3(II) (V) OF SC-ST PA ACT, 2

PASSED IN S.C. NO. 289/2009 BY THE III ADDITIONAL SESSIONS JUDGE, BELGAUM.

THIS CRIMINAL REVISION PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard learned Addl. State Public Prosecutor. Delay of 82 days is condoned as there is no reason to disbelieve the grounds mentioned in the affidavit filed in support of IA No.1/2014.

2. Heard the learned Addl. State Public Prosecutor regarding the admission of the case. Perused the orders of the trial Court. This revision petition is filed for setting aside the orders on discharge application filed by the respondent Shobha under Section 227 of Cr.P.C. for the offences punishable under Sections 363, 366A, 368, 372, 373, 114, 120-B of Indian Penal Code, 1860, and under Sections 3,4, 5 and 6 of PIT Act and also under Sections 3(ii)(v) of SC ST (POA-1989). The learned III Addl. Sessions Judge Belgaum, has passed a very detailed order considering all the factual 3

aspects of the case. It is seen that the main accused persons 1, 2 and 4 to 18 have faced the trial in SC No.57/2009 and on considering and evaluating the entire evidence of prosecution the said accused persons were acquitted by the Appellate Court. The learned Sessions Judge finding that there is absolutely no evidence forthcoming to substantiate any charge leveled against the petitioner in the charge sheet and the prosecution failed to prove the guilty of accused in the said case. It is worth to note here, the learned Session Judge has observed that even the victim girl has not whispered anything regarding the involvement of this respondent (present accused) in the alleged crime. After going through the entire materials placed on record, as well as the evidence, the learned Session Judge has come to a conclusion that there are no materials against accused No.19. Therefore, it becomes a futile exercise if the accused No.19 is put on trial and hence the learned Session Judge has discharged accused No.19. 4

3. The order discloses that during the course of pendency of SC No.57/2009, these accused- petitioners were not put on trial on the ground that the police could not able to secure the presence of these accused. Therefore, a split up charge sheet was filed in SC No.289/2009, registered against accused No.3-Manjunath Amarannavar and accused No.19 Smt. Shoba W/o Kallayya Hiremath. At the time of hearing regarding framing of the charges, a discharge application was filed by these two petitioners under Section 227 Cr.P.C., relying upon a decision of this Court reported in 2001 (3) KLJ Page 551, the trial Court has discharged the respondent herein for the above said offences.

4. As could be seen from the allegations made in the charge sheet, the victim girl was a student of 8th standard studying at MSSR High School, Bailhongal, aged about 14 years. It is alleged that on 31/10/2008, she had been to stream for washing the clothes. She met accused No.1 by name Anuja @ Tanuja @ Sunita Sidu Bachannavar. He induced her to go over to her house and the victim girl went 5

to the house of accused No.1 Anuja. There the victim girl was confined by accused No.1 for two days. Again accused No.1 confined the victim girl in the upstairs of the said house for two days. Thereafter, along with accused No.5 Tukaram Kallappa Malagi taken her to Belgaum, in a Car and confined the victim girl in the house of accused No.6 Gayatri Mahabaleshwar Halijol and on the next day, taken the victim girl to the house of Accused No.12-Bhaskar Havali Pujari, where at the instance of accused Nos.4 and 6, made her to indulge in sexual intercourse with two unknown persons. On the next day, again the victim girl brought back to the house of the accused No.6. Thereafter, the accused No.1 taken the victim girl to Hubli to the house of accused No.2-Sanjana Manjunath Amarannanavar situated at Shettara Galli Unkal, and thereafter, for 15 days, the victim girl had taken to the house of accused No.11-Sheela Gurunath Tikare and therein she was subjected to sexual inter course by some unknown persons at the instance of accused Nos.2 and 11. Then the accused No.2-Sanjana 6

M.Amarannavar, took the victim girl to Bangalore, and confined her in the house of her sister for about 8 days and then brought her back to Hubli, and sent to the house of one Pallavi and at the house of said Pallavari several unknown persons indulged in sexual activities with her on the guise of prostitution. Thereafter, the accused No.2- Sanjana M.Amarannavar taken the victim girl to Mallige Lodge at Hospet, and kept the victim girl at that lodge for 4 days and during the said period, made her to indulge in sexual intercourse with several unknown persons. Accused No.2, Sanjana M.Amarannavar sent the victim girl along with unknown persons who took the victim girl toKittur and subjected her to sexual intercourse. On 10/12/2008, while she was taken to the house of accused No.11 Sheela Guraunath Tikare at Hubli, she escaped and came back to Belgaum and met a Police who is a friend of her uncle who has taken the victim girl to Bailhongal police station.

5. On these allegations, a complaint came to be lodged. The allegations made against the accused No.19 is that she 7

made a telephone to accused No.2-Sanjana and sent accused Nos.7 to 9, who came in a Car, took the victim girl from the house of accused No.2 to Pratiksha lodge, Kittur, wherein, the victim girl was subjected to sexual intercourse. This was divulged in the further statement of the victim girl recorded by Dy.S.P. on 14/12/2008. Whereas, the statement of the complainant and the statement of witnesses, even further statement of the victim girl subsequent to 14/12/2008, does not indicate any aspect regarding a person by name Shobha- secured the presence of the victim girl and accused Nos.7 to 9 have committed forcible sexual intercourse on the victim girl. Considering these aspects, when other accused persons who were alleged to have indulged specifically in committing the sexual assault on the victim girl were already acquitted and there is no specific allegations made against this accused No.19, the learned Session Judge was of the opinion that if accused No.19 undergoes the order of trial, then no purpose would be served. Therefore, the learned Session Judge has 8

discharged this petitioner -accused No.19. The rulings relied upon by the learned Session Judge reported in AIR 1977 Supreme Court 2018 and AIR 1977 SC 1489, between Ramaeshsing and another and L.Muniswami Vs. State of Karnataka. These two decisions are relied upon to hold that the materials available on record even translated into evidence even unrebutted it would not be sufficient to proceed against the accused then accused shall be discharged. But, in this case, the evidence has already been led by the prosecution and on the basis of the evidence, the trial Court has come to the conclusion that no case was made out against all the other accused, some of them stand on the same footing as that of accused No.19.

6. Therefore, looking from any angle, I cannot have any other view except the view taken by the learned Session Judge. Before parting with this order, it is also worth to note a decision of this Court as cited by the learned Session Judge reported in 2001 (3) KLJ page 551 between 9

Mohammed Ilias Vs. State of Karnataka, which reads as follows:-

“CRIMINAL PROCEDURE CODE, 1973, Section 482-Indian Penal Code, 1860, Sections 498A and 307 – Absconding among accused – Arrest of and launching of proceedings separately against – His arrest after acquittal of co-accused on ground of insufficienency 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 – Pro-creedings are liable to be quashed when there is no possibility of conviction against accused”.

In the said judgement, it has been clarified that while exercising the powers under Section 482 Cr.P.C., the proceedings holding that the evidence against all the accused persons is common, indivisible and inseparable and 10

thereby, on acquittal of other co-accused, the accused being secured afterwards cannot be convicted on the basis of the same evidence. Therefore, when conviction is very bleak, it is worth to discharge the accused persons at the threshold itself, to save the valuable judicial time of the Court.

7. Under the above facts and circumstances, the discharge order passed by the learned Sessions is in accordance with the recognized principles of law. Hence, the revision petition is liable to be dismissed.

8. Accordingly, the revision petition is dismissed. Sd/-

JUDGE

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