Karnataka High Court
State Of Karnataka vs Sri Bommajji Manjappa on 2 January, 2014
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
Crl.A.663/2009
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY JANUARY 2014
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR. JUSTICE K N KESHAVANARAYANA
CRIMINAL APPEAL NO.663/2009
BETWEEN
State of Karnataka,
By Rural Police,
Sagar. Appellant
(By Sri K R Keshava Murthy, Addl. PP)
AND
1. Sri Bommajji Manjappa,
S/o Sri Manjappa,
Age: 51 years,
Agriculturist,
R/o Kudigere Village,
Sagar Taluk.
2. Sri Bommajji Ramappa,
S/o Sri Manjappa,
Crl.A.663/2009
2
Age: 64 years,
Agriculturist,
R/o Channapura,
Nadavalli Village,
Channapura-Majire Village,
Sagar Taluk.
3. Sri Keriyappa,
S/o Sanna Manjappa,
Age: 36 years,
Agriculturist,
R/o Nadavalli Village,
Channapura-Majire,
Sagar Taluk,
Shimoga District.
4. Sri Thimmeshi,
S/o Sri Sanna Manjappa,
Age: 34 years,
Agriculturist,
R/o Nadavalli Village,
Channapura-Majire,
Sagar Taluk,
Shimoga District. Respondents
(By Sri R B Deshpande, Adv., for R-1)
(By Sri S S Koti, Adv., for R-2 to 4)
Crl.A.663/2009
3
This Criminal Appeal is filed under Section 378(1) and (3)
of the Code of Criminal Procedure, praying to set aside the
judgment and order of acquittal dated 28.2.2009 passed in SC
No.46/2003 on the file of Presiding Officer, FTC-III, Shimoga, for
the offences punishable under Section 302 r/w Section 34 of
IPC and Sections 3 and 25 of Arms Act.
This Appeal coming on for hearing this day, Dr.
Bhakthavatsala, J., delivered the following:
JUDGMENT
In this State Appeal filed under Section 378(1) and (3) of the Code of Criminal Procedure, the impugned judgment dated 28.2.2009 made in SC No.46/2003 on the file of Fast Track Court-III at Shimoga, is challenged.
2. For the purpose of convenience and better understanding, the respondents are hereinafter referred to as 'accused Nos.1,2,3 and 4', respectively, as arraigned in the Sessions Case.
Crl.A.663/20094
3. Brief facts of the case leading to the filing of the Appeal may be stated as under:
P.W-1/Ganapathy-nephew of the deceased-Manjappa, lodged a complaint with Rural Police, Sagar, against the respondents/accused for the offence punishable under Section 302 r/w Section 34 of IPC. P.W-15 registered a case in Crime No.256/2002 for the above-said offence. It is the case of prosecution that in pursuance of their common intention, accused No.2 focused torch at the deceased-Manjappa when he was arbitrating a matter between the husband and wife (P.Ws.3 and 4) on 8.10.2002 at about 8.00 p m, in front of the house of P.W-3; accused No.1, who was coming behind accused No.2 fired from his gun at Manajappa, as a result of which he sustained fatal injuries and died. Accused No.1 was arrested on 16.10.2002. On the basis of the voluntary statement of accused No.1, the Investigating Officer seized a gun and battery viz., M.Os.16 and 18, respectively. After the investigation was over, the Investigating Officer laid charge sheet against the accused Crl.A.663/2009 5 for the offence punishable under Section 302 r/w Section 34 of IPC and under Sections 3 and 25 of the Arms Act. Since the offence under Section 302 of IPC is triable by Court of Sessions, the case was committed to Sessions Court. On receipt of committal records, it was registered in SC No.46/2003 on the file of Fast Track Court-III at Shimoga. Accused No.1 denied the charges. He faced trial for the above-said offences. During the course of examination of P.Ws.1 and 2, the prosecutor filed an application to implead accused Nos.2 to 4 also in the case.
Therefore, accused Nos.2 to 4 were included in the case and they too faced trial for the offence punishable under Section 302 r/w Section 34 of IPC. In support of the case of prosecution, it has got examined 20 witnesses, got marked 21 documents and got exhibited 18 Material Objects. During the course of cross- examination of witnesses, the defense has got marked Exs.D1 to D16. After the evidence on the side of prosecution was over, the trial Court recorded statement of the accused under Section 313 of Cr.P C. The accused have denied the incriminating circumstances appearing in the evidence of prosecution witnesses. They have not adduced any defense evidence. The Crl.A.663/2009 6 trial Court after perusing oral and documentary evidence on record, came to a conclusion that the prosecution failed to bring home the guilt to the accused for the offences levelled against them and recorded an order of acquittal in their favour. This is impugned in this Appeal.
4. Learned Addl. Public Prosecutor submits that the trial Court has not properly appreciated the evidence on record to convict the accused No.1 for the offences punishable under Section 302 and under Section 3 r/w Section 25 of Arms Act and accused No.2 for the offence punishable under Section 302 r/w Section 34 of IPC. He submits that nothing worthwhile was elicited in the cross-examination of eye witnesses-P.Ws.2 to 5 and recovery of the gun (M.O-16) used in the commission of offence and battery (M.O-18), but the trial Court erred in rejecting the evidence of P.Ws.1 to 5 and recovery of weapons. He submits that accused Nos.1 and 2, who are respondent Nos.1 and 2 herein, may be convicted for the offence punishable under Section 302 r/w Section 34 of IPC and accused Crl.A.663/2009 7 No.1 may be further convicted for the offence punishable under Section 3 of Arms Act.
5. Learned Counsel for respondent No.1/accused submits that it is the case of prosecution that after the alleged incident, there was a commotion in the village and the house of P.W-3, where the crime took place, was destroyed by fire and the accused No.1 had also sustained injuries was admitted to Hospital and discharged on 10.10.2002 and the Investigating Officer arrested accused No.1 on 16.12.2002 and that prosecution has not placed material on record, who destroyed the house of P.W-3, how accused No.1 sustained injuries and why the medical reports of accused No.1 were not summoned. He also submits that mere seizure of M.Os., 18 and 17 at the instance of accused No.1, it cannot be said that the prosecution has proved the guilt of the accused. He submits that the trial Court, on proper appreciation of oral and documentary evidence on record, has rightly reached the conclusion that the prosecution failed to bring home the guilt to the accused. Crl.A.663/2009 8
6. Learned Counsel, Sri S S Koti, learned Counsel appearing for respondents/accused Nos.2 to 4, submits that the trial Court has stated in many words that there were no incriminating circumstances appearing in the evidence of prosecution witnesses and therefore recorded an order of acquittal in favour the accused. He also contends that the Investigating Officer himself came to a conclusion that accused Nos.2 to 4 are not responsible for the incident and there is no merit in the Appeal.
7. In view of the arguments addressed by the learned Counsel for the parties, the only point that arises for consideration is:
Whether the impugned judgment calls for interference or not ?
8. Our answer to the above point is in the negative for the following reasons:
Crl.A.663/20099
At the very outset, it must be mentioned that accused Nos.1 and 2 are brothers. Likewise, accused Nos.3 and 4 are brothers. Accused No.4 is son-in-law of accused No.2. Thus, accused Nos.1 to 4 are close relatives. It is the case of prosecution that accused No.2/Bommaji Ramappa, who was President of Nyaya Samiti of Nadavalli Gram Panchayat and subsequently, he (accused No.2) was removed and the deceased-Manjappa was made as President of said Nyaya Samiti. It is also stated that after the deceased-Manjappa became member of the said Nyaya Samiti, he took steps to improve the tank for the benefit of villagers and told accused No.2 to give up the encroached portion of land. Thus, it is stated that on the above-said two scores, there was enmity between accused No.2 on one side and the deceased on the other. But, during the course of evidence, it is stated that the deceased had attempted to outrage the modesty of the wife of accused No.1. The prosecution story is that on 8.10.2002 at about 8.00 pm, in front of the house of P.W-3, the deceased was arbitrating between P.W-3 and his wife-P.W 4 as to the rift between them. It is also the case of prosecution that P.W-2/Basappa had Crl.A.663/2009 10 accompanied the deceased for the above-said Panchayat. P.W- 5/Rajesha is none other than the P.W-3's first wife's son. According to the prosecution, after P.W-1/Ganapathi came to know about the incident from P.W-2, he lodged a complaint against the accused. It is also the case of prosecution that on account of bullet injuries, P.W-4, who was sitting by the side of the deceased, also sustained some injuries and at the time of holding panchayat, there was one kerosene lamp and there was no moon light. It is stated that at that point of time, all the four accused came and accused No.2 flashed torch at the deceased and accused No.1, who was possessing a country made gun, fired at the deceased, as a result of which he sustained fatal injuries and there was a commotion in the village. It is on record that house of P.W-3, where the scene of crime took place, was destroyed by fire. There is no material placed on record why the case was not registered with regard to destruction of house of P.W-3 by fire. The trial Court has rejected the evidence of P.Ws.2 and 5 on the ground that they did not go to Police Station and lodge a complaint. It is pertinent to mention that as accused No.1 sustained injuries in that Crl.A.663/2009 11 incident, he was admitted to Hospital on the very some day and treated as inpatient till 10.10.2002. Under such circumstances, the case of the prosecution that M.O.16- the gun was seized from land is not believable. According to the prosecution, M.O- 16 was seized at the instance of accused No.1 after he was discharged from Hospital. It is also the case of prosecution that M.O-18 was also seized from the same place at the instance of accused No.1. There is no material placed on record to show that the bullet injuries sustained by the accused and P.W-4 were on account of firing from the gun-M.O 16. The ballistic report on record is not sufficient to hold that the deceased-
Manjappa sustained bullet injuries on account of firing from M.O-16. The Investigating Officer has not seized the used cartridge and the kerosene lamp. It is the case of prosecution that P.Ws.3 and 4 saw the accused when accused No.2 flashed torch at them. It is common knowledge that if torch is focused at person/persons on account of glare, they cannot see the person, who is focusing torch at them. The prosecution has not placed on record as to the voltage of the battery. Admittedly, there was no moon light. Under such circumstances, the trial Crl.A.663/2009 12 Court is justified in observing that it was not possible for P.Ws.2 and 3 or any other person to identify the accused and therefore held that the accused were not responsible for the charges levelled against the accused. As per the observation made by the trial Court in the impugned judgment, there are no incriminating circumstances appearing in the evidence of prosecution witnesses as against respondent Nos.3 and 4. Therefore, there is no merit in the Appeal filed against respondent Nos.3 and 4. M.O-18/battery was not seized at the instance of accused No.2. Therefore, the Investigating Officer did not file charge sheet against accused Nos.2 to 4. In our view, there is no merit in the Appeal filed against accused Nos.2 to 4. Solely on the ground of seizure of M.Os.16 and 18 alleged to be seized at the instance of accused No.1, is not sufficient to convict the accused No.1 for the offences levelled against him. In short, on account of laches on the part of the Investigating Officer, and discrepancies elicited in the cross- examination of witnesses marked as Exs.D1 to D16, the trial Court is justified in acquitting all the accused for the charges levelled against them.
Crl.A.663/200913
9. In the result, Appeal fails and the same is hereby rejected.
Sd/-
Judge Sd/-
Judge Bjs