Allowed

Sri Shivakumar v. State of Karnataka

Karnataka HC11 Jan 2024CRL.RP/736/2016

Case brief

AI extract

What is this about?

Revision petition by accused No.5 against dismissal of his discharge application under Section 227 Cr.P.C. in a kidnapping and robbery case. Since accused Nos.1 to 4 had been acquitted and the victim failed to identify the abductors, the High Court found no material to frame charge and discharged the petitioner.

What did the court decide?

Petitioner/accused No.5 discharged for offences under Sections 114, 120B, 365 and 395 IPC; Registry directed to send back TCR/SCR.

Sri Shivakumar Vs State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRL.RP. NO.736 OF 2016

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BETWEEN:

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SRI SHIVAKUMAR S/O SRI. SHADAKSHARI AGED ABOUT 29 YEARS R/O NO.40, KALABYRAVESHWARA NILAYA, 1^ST MAIN ROAD, CHIKKABANAVARA, BANGALORE-560090.

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…PETITIONER

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(BY SRI. GANAPATHI S SHASTRI, ADV.)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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STATE OF KARNATAKA BY PEENYA POLICE, BANGALORE-560058.

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(BY SRI. M.R.PATIL, HCGP)

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…RESPONDENT

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CRL.RP FILED U/S.397 CR.P.C BY PRAYING TO SET ASIDE THE ORDER DATED 07.05.2016 PASSED BY THE LXIV ADDL. CITY CIVIL AND S.J., (CCH-65) BANGALORE IN S.C.NO.42/2014 BY ALLOWING THE ABOVE CRL.RP.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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2 - NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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ORDER

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The revision petitioner has preferred this revision against the order dated 07.05.2016 passed on application filed under Section 227 of Cr.P.C. by accused No.5 in S.C.No.42/2014 before the LXIV Additional City Civil and Sessions Judge, Bengaluru (CCH-65).

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For the sake of convenience, the parties in this revision petitions are referred to as per the status and rank before the trial Court.

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The revision petitioner/Accused No.5 has filed an application under Section 227 of the Code of Criminal Procedure for discharge, for the alleged commission of offenses on the ground that he has been falsely implicated

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by Peenya Police. The accused Nos.1 to 3 have not disclosed the name of accused No.5 in their voluntary statement and accused Nos.1 to 4 are unknown to him. It is also contended that filing of charge sheet as against accused No.5 is clear abuse of process of law. On

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3 - NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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09.05.2015, the victim was released from the custody accused Nos.1 to 3 in which there is no role being played by accused No.5. The accused No.5 is innocent and falsely implicated. The Police have colluded with the second complainant by name Niyaz Ahammed. On all these grounds, learned counsel sought for discharge the revision petitioner from the alleged commission of offense.

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This application was opposed by Public Prosecutor by filing detailed objections.

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On hearing the arguments, learned Sessions Judge

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dismissed the application filed under Section 227 of Cr.P.C. Being aggrieved by the impugned order, revision petitioner has preferred this revision petition.

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Learned counsel appearing on behalf of the revision petitioner has submitted his arguments that learned Sessions Judge has not properly considered the materials on record in accordance with law and absolutely there are no materials to frame charge against accused No.5 for the

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4 - NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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alleged commission of offenses. Learned Sessions Judge acquitted the accused Nos.1 to 4 as per the judgment dated 27.05.2021. The State has not preferred any appeal against this judgment of acquittal passed by the learned Sessions Judge. In paragraphs 23 to 25, learned Sessions Judge has observed in the judgment passed in

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S.C.No.42/2014 as under:

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“23. Out of the examined witnesses, Pw.10/ Cw.2/ Kamaleshkumar is the prime witness because he is the victim in this case. In his evidence, even though Pw.10 has deposed by explaining his abduction, extortion of amount by withdrawing money from his bank account by using his ATM card, Pw.10 is unable to identify the persons who abducted him and committed extortion by withdrawing cash from his bank account by using his ATM Card in various ATMs. In the examination-in-chief itself Pw.10 has specifically deposed that he cannot identify the accused persons, who abducted him. Further Pw.10 has specifically deposed in his examination-in-chief itself that accused persons who are present before the court are not the persons, who abducted him. Even in the cross-examination on behalf of the accused side, Pw.10 has reiterated his version that it is not the accused persons who are

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5 - NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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present before the court, who abducted him as alleged in his complaint. Even though police officers particularly Investigation Officer, who deposed in support of the case of the prosecution, admissions given by Pw.10 victim in his cross-examination and his inability to identify accused persons present before the court as the same persons who abducted him create reasonable doubt on the case of the prosecution. Due to aforesaid doubt, prosecution is unable to establish the fact that persons who abducted Pw.10/Cw.2/Kamalesh Kumar Thivari are the same accused person against whom this case is filed because there is no support of the report of Test Identification Parade. No witness who had seen abduction of Pw.10/Cw.2 are examined before the court. No digital evidence like CC TV footages recorded in the CC TV installed on the spot of alleged abduction are available on record.

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24. Pw.1 to Pw.7 and Pw.9 circumstantial witnesses and witnesses for seizure panchanama have turned hostile to the version of the prosecution. It is difficult to hold that only on the basis of supported version of evidence adduced by police witnesses, prosecution can prove the charges framed against accused persons.

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NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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25. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution have failed to prove that, in order to have unlawful gain, accused No.1 to 3, 7 and 8 formed an unlawful assembly under instigation of accused No.2 to 5 and in furtherance of their common object of the unlawful assembly accused persons abducted Cw.2/ Kamalesh Kumar Thivari in a Tata India Car bearing Reg. No. KA-03-C-7600 in front of JMC Metro office at 8^th Mile. Further, prosecution have failed to prove beyond all reasonable doubt that after abduction, accused persons have threatened Cw.2 by showing knife, threatened him to murder, committed robbery of mobile phone, ATM Card, Pan Card and cash of Rs.1,200/- (one thousand two hundred) of Cw.2 and have withdrawn total amount of Rs.1,00,000/- (one lakh) from the bank account of Pw.10/Cw.2 by withdrawn in various ATM Centres by using ATM card of Pw.10/Cw.2 thereby accused No.1 to 4 have committed offences punishable U/s.114, 120B, 365, 395 of I.P.C. Accordingly, points No.1 to 3 are answered in the Negative.”

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Since prime accused Nos.1 to 4 are already acquitted by the learned Sessions Judge, no purpose will be served in conducting trial against this revision petitioner/accused

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NC: 2024:KHC:1444 CRL.RP No. 736 of 2016

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No.5, as the alleged commission of offenses are under

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Sections 114, 120B, 365 and 395 of IPC.

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On perusal of entire prosecution papers, I do not find sufficient material to frame charge against this revision petitioner/accused No.5 for the alleged commission of offenses. Hence, I proceed to pass the following:

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ORDER

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The revision petition is allowed.

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The revision petitioner/accused No.5 is discharged for

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the commission of offenses punishable under Sections 114, 120B, 365 and 395 of IPC.

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Registry is directed to send back the TCR/SCR along

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with a copy of this order.

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Sd/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 17

Sri Shivakumar v. State of Karnataka

Case brief

What is this about?

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Sri Shivakumar v. State of Karnataka

Case brief

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