Karnataka High Court
Sri Dhananjaya Belchada vs State Of Karnataka on 5 October, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:36100
CRL.A No. 246 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 246 OF 2016
BETWEEN:
SRI DHANANJAYA BELCHADA
AGED ABOUT 27 YEARS
S/O LATE T GOPALA
R/O NEAR AMBEDKAR MAIDAN
THOKKOTTU
MANGALURU - 575 021
DAKSHINA KANNADA DISTRICT.
...APPELLANT
(BY SMT. HALEEMA AMEEN, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA STATE OF KARNATAKA
MURTHY RAJASHRI
Location: HIGH BY THE POLICE INSPECTOR
COURT OF MANGALORE SOUTH
KARNATAKA
POLICE STATION
MANGALORE - 575 001.
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SRI RANGASWAMY 3R, HCGP)
THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 30.01.2016 AND 02.02.2016 PASSED BY THE
PRINCIPAL S.J., D.K., MANGALORE IN S.C.No.131/2013 -
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NC: 2023:KHC:36100
CRL.A No. 246 of 2016
CONVICTING THE APPELLANT/ACCUSED No.1 FOR THE
OFFENCE P/U/S 25(1-A) OF THE ARMS ACT.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed against the judgment of conviction and order on sentence dated 30.01.2016 passed in S.C.No.131/2013 by the Principal Sessions Judge, Mangaluru, convicting the appellant - accused No.1 for the offence under Section 25(1-A) of the Arms Act, 1959 (for short hereinafter referred to as 'the Act'), sentencing to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.25,000/- and in default, to undergo further imprisonment for one year.
2. The factual matrix of the case is that; the appellant - accused No.1 is a close associate of Sri.Krishna Shetty @ Kitty of Karkala and on 21.02.2007 at about 9.30 pm., when he was taken into custody by PW1 - Police Inspector, he was found in illegal possession of two live bullets and he has given his voluntary statement and led -3- NC: 2023:KHC:36100 CRL.A No. 246 of 2016 the police and produced four live bullets, one revolver and an empty magazine which was concealed in the house of accused No.2 (deceased) which was said to have been obtained from accused No.3. Charge sheet came to be filed for the offences under Sections 25(1-A) and 26 of the Act.
3. The prosecution examined nine witnesses as PWs.1 to 9 and got marked sixteen documents as Exs.P1 to P16 and MOs.1 to 5 and statement of the accused came to be recorded under Section 313 of Cr.P.C.
4. The Trial Court, after hearing the arguments on both sides formulated the points for consideration and convicted the appellant - accused No.1 for the offence under Section 25(1-A) of the Act and acquitted him for the offence under Section 26 of the Act. Accused No.3 came to be acquitted for the offences under Sections 25(1-A) and 26 of the Act. Since accused No.2 died during the pendency of the trial, case against him abated. The said judgment of conviction -4- NC: 2023:KHC:36100 CRL.A No. 246 of 2016 of the appellant - accused No.1 has been challenged in this appeal.
5. Heard the arguments of learned counsel for the appellant - accused No.1 and learned High Court Government Pleader for the respondent - State.
6. Learned counsel for the appellant - accused No.1 would contend that the seizure under Exs.P1 and P3 are not proved since Panchas - PWs.2, 3 and 7 turned hostile and not supported the case of the prosecution. The statements of PWs.2, 3 and 7 as per Exs.P11 to P13 have not been confronted to PW1, who recorded the statements and therefore, they remained not proved. The seizure mahazar - Ex.P1, statement of the appellant - accused No.1 - Ex.P2 and seizure mahazar - Ex.P3 have been prepared prior to registering the case and therefore, recovery under Ex.P3 is bad in law as there was no case registered against the appellant - accused No.1 and he was not the accused at the time of recording the statement - Ex.P2.
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6. a) There was a crime registered in Karkala Police Station in Crime No.42/2007 against this appellant - accused No.1 and accused No.3 and another for the offences under Sections 3 and 25 of the Arms Act and PW1 who arrested the appellant - accused No.1 and seized one pistol, four live bullets and one empty cartridge from the possession of the appellant - accused No.1 ought to have handed over the appellant - accused No.1 and seized materials to the Investigating Officer who was investigating Crime No.42/2007. The appellant - accused No.1 has been arrested without any basis and without any allegations against him. PW1 has not prepared any arrest mahazar at the time of arrest of the appellant - accused No.1. PW1 has not stated regarding preparing of sample seal while seizing the articles under mahazars Exs.P1 and P3. There is a delay in sending the seized articles for FSL examination. PW1 conducted entire investigation including the seizure, filing of complaint, arrest, recording of statement of the witnesses and it is bad in law. -6-
NC: 2023:KHC:36100 CRL.A No. 246 of 2016
6. b) PW9 who took up further investigation has received FIR and complaint in Crime No.42/2007 of Karkala Town Police Station registered against this appellant - accused No.1, accused No.2 and another for the offences under Sections 3 and 25 of the Act and Section 34 of IPC, ought to have handed over all the investigation papers and materials in the said crime instead of filing the charge sheet against the appellant - accused No.1 and two others for the said offences. The seizure mahazar - Exs.P1, P3 and P7 have not been proved. There are several infirmities in the investigation including conducting of entire investigation by PW1 and therefore, the evidence of PWs.1 and 4 - Police Officers cannot be relied on to establish the seizure under Exs.P1 and P3. With this, she prayed to allow the appeal and acquit the appellant - accused No.1.
7. Per contra, learned High Court Government Pleader for the respondent - State would contend that two live bullets were found in possession of the appellant - -7-
NC: 2023:KHC:36100 CRL.A No. 246 of 2016 accused No.1 and they were seized under Ex.P1. At the instance of the appellant - accused No.1, one revolver, four live bullets, one empty magazine have been seized from the house of accused No.2 under mahazar - Ex.P3. Even though the Panchas - PWs.2 and 3 have turned hostile, the evidence of PWs.1 and 4 - Police Officers establish the seizure mahazar - Exs.P1 and P3. The evidence of PW6 - Forensic Expert and his report - Ex.P8 would establish that MOs.1 to 5 that are seized are prohibited fire arms. The investigating Officer has obtained sanction to prosecute the accused which has been issued by PW1, who is competent to issue sanction. There is no enmity made out against PWs.1 and 3 - the police officers, who are supporting the appellant - accused No.1 to disbelieve their evidence. The conviction can be based only on the testimony of the sole evidence. No animosity between the Police Officers and the appellant - accused No.1 has been made out. On this ground, he relied on the decision of the Hon'ble Apex Court in the case of Rameshbhai Mohanbhai Koli and Others -8- NC: 2023:KHC:36100 CRL.A No. 246 of 2016 reported in (2011) 11 SCC 111 and in the case of Sumit Tomar Vs. State of Punjab reported in (2013) 1 SCC
395. He supported the reasoning assigned by the Trial Court. On these grounds, he sought dismissal of the appeal.
8. On the grounds made out, considering the arguments advanced, the following point would arise for my consideration;
"Whether the Trial Court has erred in convicting the appellant - accused No.1 for the offence under Section 25(1-A) of the Arms Act?"
9. My answer to the above point is in the affirmative, for the following reasons;
PW1 is the Police Inspector working at the relevant period in Mangaluru South Police Station. He received a credible information that this appellant - accused No.1 is an associate of a rowdy sheeter Sri.Krishna Shetty @ Kitty (accused No.3). He along with his staff including PW4 -9- NC: 2023:KHC:36100 CRL.A No. 246 of 2016 went there. His staff Sri.Dinesh Poojary has shown this appellant - accused No.1 stating that he is Sri.Dhananjaya, an associate of a rowdy sheeter - accused No.3. PW1 took him to his custody and brought him to police station. PW1 has not stated as to what is the ground for arrest of the appellant - accused No.1. There were no cases registered against the appellant - accused No.1 in the police station in which PW1 was working. Therefore, there was no basis for arrest of the appellant - accused No.1.
10. PW1 found two live bullets on personal search of the appellant - accused No.1 which came to be seized under mahazar - Ex.P1 in the presence of PWs.2 and 3. PWs.2 and 3 did not support the case of the prosecution with regard to seizure of two live bullets from the possession of the appellant - accused No.1 under mahazar - Ex.P1. There is only evidence of PWs.1 and 4 with regard to seizure of two live bullets from the possession of the appellant - accused No.1 under mahazar - Ex.P1.
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11. PW1, after preparing the seizure mahazar in the police station, without registering any case against the appellant - accused No.1 proceeded to record his confessional statement as per Ex.P2. Only the admissible portion in the said statement is marked as Ex.P2, wherein this appellant - accused No.1 has stated that he has kept the remaining four live bullets, one revolver and one empty magazine in the cupboard in the bed room of the house of Sr.Rajendra and he will show the same. PW1 after recording the voluntary statement of the appellant - accused No.1 as per Ex.P2 proceeded along with Panchas and the appellant - accused No.1 and the appellant - accused No.1 has taken the police and Panchas to the house of Sri.Rajendra (Accused No.2) and produced one Country made revolver and four live bullets, one empty magazine which were kept in the cupboard in the bed room of the house of accused No.2. When PW1, the appellant - accused No.1 and the Panchas and other police staff went to the house of accused No.2, it was locked and the police took the keys from the landlord Sri.Lawrence
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NC: 2023:KHC:36100 CRL.A No. 246 of 2016 D'Souza (PW8) and opened the lock. PW8 denied the entire aspect of the police visiting the house and he handing over the keys and tracing of the material objects in the house of accused No.2 - Sri.Rajendra. PWs.2 and 3 are also Panchas to Ex.P3, but has also not supported the case of the prosecution with regard to seizure of MOs.2 to 4 at the instance of accused No.1 under mahazar - Ex.P3. PW1 thereafter went to police station, prepared the statement as per Ex.P4 and he himself registered the case and prepared FIR - Ex.P5 and sent it to the jurisdictional Court. Who was the Station House Officer when PW1 went to police station, whether he took the charge as Station House Officer has not been stated by PW1 in his evidence.
12. The appellant - accused No.1 was not an accused when his statement as per Ex.P2 came to be recorded by PW1, as no case was registered against him at that time. Even though PW1 came to be arrested in service bus stand at Mangaluru and no arrest mahazar has been prepared. What are the grounds for his arrest have not been
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NC: 2023:KHC:36100 CRL.A No. 246 of 2016 disclosed to the appellant - accused No.1 by PW1. The intimation of arrest has not been given to the relatives or friends of the appellant - accused No.1. The appellant - accused No.1 came to be arrested only on the ground that he is an associate of a rowdy sheeter - accused No.3.
13. In Ex.P2, there is a mention that accused No.3 sustained injuries to his leg due to mis-fire of the pistol, when he fell down, he was admitted to Atheno Hospital, Mangaluru and accused No.3 said to have given a revolver, six live bullets and one empty magazine to this appellant - accused No.1 who stated to have kept them in the house of accused No.2 - Sir.Rajendra. PW1 did not make any enquiry as to whether any case is registered against accused Nos.1 and 2 in that regard in any of the police station in Karkala. PW1 has not conducted any investigation in that regard.
14. The evidence of PW9 who took further investigation reveal that he collected FIR and complaint in Crime No.42/2007 of Karkala Town police Station registered for
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NC: 2023:KHC:36100 CRL.A No. 246 of 2016 the offences under Section 3 and 25 of the Act and Section 34 of IPC against accused Nos.1, 3 and another. The said FIR is at Ex.P15 and the complaint is at Ex.P16. PW9 came to know on receiving the FIR and complaint that a case is already registered against accused Nos.1 and 3 for the same offence under Section 25 of the Act. The said case has been registered on 25.02.2007 and this appellant
- accused No.1 has been arrested on 27.02.2007 ie., after two days. PW9 after coming to know about registration of the case against accused Nos.1 and 3 for the offence under Section 25 of the Act, ought to have handed over the investigation papers to the Investigating Officer in Crime No.42/2007 of Karkala Police Station. Instead of that, PW9 has filed separate charge sheet against the appellant - accused No.1.
15. The prosecution has not placed any material as to what happened to the said case registered in Crime No.42/2007 of Karkala Police Station.
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16. Learned High Court Government Pleader would contend that even though the Panchas - PWs.2 and 3 have not supported regarding seizure of MOs.1 to 4 under Exs.P1 and P3, but the evidence of PWs.1 and 4 being the police officers would establish the seizure mahazars - Exs.P1 and P3. The very act that PW1 arresting this appellant - accused No.1 without any grounds, continued investigation, seized two live bullets from his possession under mahazar, recorded his confessional statement, seized MOs.2 to 4 under Ex.P3 and thereafter, himself prepared a complaint and himself registered it and thereafter continued further investigation and arrested accused No.2 and seized MO.5, two live cartridges from his house at his instance as per Ex.P7. This itself shows that PW1 is an interested person in registering the case against this appellant - accused No.1. PW4 being the police constable is sub-ordinate to PW1. Even the arrest mahazar has not been prepared at the time of arrest of the appellant - accused No.1 and the grounds of arrest have not been stated by him and there were no grounds at
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NC: 2023:KHC:36100 CRL.A No. 246 of 2016 all to arrest him at that point of time and there is no evidence regarding intimation of arrest of the appellant - accused No.1 to his family members. Therefore, the evidence of PWs.1 and 4 with regard to seizure of MO.1 under Ex.P1 - mahazar and seizure of MOs.2 to 4 under mahazar - Ex.P3 at the instance of this appellant - accused No.1 is not reliable in the absence of independent witnesses. PWs.2 and 3 have not supported the case of the prosecution. Even PW8 - landlord of the house of accused No.2 has not supported the case of the prosecution with regard to he opening the key of the house of accused No.2 and the appellant - accused No.1 showing the arms kept in the house and seizure under Ex.P3. Even the statement of PW2 as per Ex.P11, PW3 as per Ex.P12 and PW7 as per Ex.P13 and PW8 as per Ex.P14 are not confronted to Investigating Officer (PW1) who recorded the statements. The said statements of PWs.2, 3, 7 and 8 remained not proved.
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17. Considering all these aspects, the prosecution has failed to establish the guilt of the appellant - accused No.1 beyond reasonable doubt. The Trial Court ought to have given the benefit of doubt to the appellant - accused No.1. The Trial Court erred in holding that the appellant - accused No.1 has committed the offence under Section 25(1-A) of the Act. In the result, the following;
ORDER The appeal is allowed.
The judgment of conviction and order of sentence passed in Sessions Case No.131/2012 dated 30.01.2016 passed by the Principal Sessions Judge, Mangaluru is set-aside. The appellant - accused No.1 is acquitted of the offence under section 25(1-A) of the Arms Act.
Fine, if any, paid by the appellant - accused No.1 is ordered to be re-funded to him.
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JUDGE GH List No.: 1 Sl No.: 5