Karnataka High Court
Irappa @ Veerappa vs State Of Karnataka on 15 October, 1987
Equivalent citations: ILR1987KAR3793, 1987(3)KARLJ536
JUDGMENT Kulkarni, J.
Criminal Appeal 421 of 1986 by P.W. 13 - Irappa is directed against the order dated 31-1-1986 passed by the First Additional Sessions Judge, Belgaum, in Sessions Case No. 3 of 1985, ordering the confiscation of the gun M.O. 1.
Criminal Appeal 583 of 986 by the State is directed against the judgment and order of acquittal dated 31-1-1986 passed by the First Additional Sessions Judge, Belgaum, in Sessions Case No. 3 of 1985, acquitting the accused of the offence under Section 304 Part I IPC.
2. The material facts are as under -
On 22-7-1984, the Deputy Superintendent of Excise Sri Ayyappa Tarapati Sadavanhi P W. 1 along with the Excise Inspector of Soundatti Sri Dyamappa-P W. 2, Excise Sub-Inspector of Bailhongal Sri Subhash - P. W. 3, Excise Guard Laxman-P.W. 4, another Excise Sub-Inspector of Dandeli Sri Digambhar-P.W. 5, deceased Excise Guard K.N Patil and Hanumanthappa P W. 7, Maruti-P.W. 8 and Irappa P.W.13 had gone to Hogaratti Hanamanatti forest for detecting distillation of illicit liquor. After stopping the vehicles on the road, they went into the jungle nearly to a distance of 2 kilometres and they saw smoke coming and found that illicit liquor was being manufactured. The raiding party divided itself into separate groups and those groups started going towards the place where from the smoke was coming. At that time a sound of a gun shot was heard. P.Ws. 1 to 6 and others went to the spot from where the gun shot was heard and found the deceased K.N. Patil lying down with a gun shot injury. The accused was also found with the gun M.O.-1 in his hand P.W. 1 snatched the gun from the accused. They put the injured in the vehicle and the accused and they were taken by P.W. 1 and others to the hospital. The injured K.N. Patil breathed his last on account of the gun shot injury caused to him. In the meanwhile, P.W. 1 wrote the complaint Exhibit P.1 and gave it to Head Constable Vaman P.W. 20, who had come there. He registered a case in Crime No. 50 of 1985 under Section 302 I.P.C. read with Section 25(1)(a) of the Indian Arms Act against the accused. He sent the FIR and the complaint Exhibit P.1 to the jurisdictional Magistrate, An inquest, as per Exhibit P. 24, was held over the dead body of K.N. Patil in the presence of P.W. 20 and others. The dead body was subjected to post-mortem examination. Thereafter, the statements of the various witnesses were recorded and various mahazars were drawn. After thus completing, the investigation into the case, the police laid a charge-sheet against the accused for the offences under Section 304 Part I IPC and Section 25(1)(a) of the Indian Arms Act.
3. As required by Section 173 of the Code of Criminal Procedure, the copies of the police papers were supplied to the accused. The Magistrate committed the case to the Court of Sessions, Belgaum.
4. The First Additional Sessions Judge, on hearing the prosecution and the defence, framed a charge for the offences under Section 304 Part I IPC and Section 25(1)(a) of the Indian Arms Act against the accused and read it out and explained it to the accused.
5. The accused pleaded not guilty to the charge and claimed to be tried.
6. The prosecution, in support of its case-examined P.Ws. 1 to 22 and marked Exhibits P.1 to P. 33 and M Os. 1 to 27 and closed the case.
7. The accused claimed to be innocent.
8. The Court below on circumspection of the material, acquitted the accused of the offence under Section 304 Part-I IPC and found the accused guilty of the offence under Section 25(1)(a) of the Arms Act and sentenced him to pay a fine of Rs. 500/- or in default to undergo R.I., for one month. The trial Court has also ordered the confiscation of the gun M.O. 1 of P.W. 13.
9. P.W. 13 being aggrieved by the order of confiscation of his gun has come up with Criminal Appeal 421 of 1986. The State being aggrieved by the acquittal of the accused in regard to the offence under Section 304 Part I IPC has come up with Criminal Appeal 586 of 1986.
10. The learned Counsel Sri Sawkar appearing for the accused contended that even his conviction in respect of the offence under Section 25(1)(a) of the Indian Arms Act was unsustainable and he prayed for the acquittal of the accused even in respect of this offence also. The learned State Public Prosecutor Sri Kuranga submitted that in an appeal filed by the State under Section 378 of the Code of Criminal Procedure against an order of acquittal. it was not open to the accised to canvass for his acquittal. In short he conterded that if the accused, who had been convicted does not choose to file an appeal when the appeal is provided, it is not open to him to urge for his acquittal, while the appeal preferred by the State against the acquittal is filed or is argued. Sri Kuranga drew our attention to The State of Andhra Pradesh -v.- Thadi Narayana . It is laid down in the said case by the Supreme Court, as--
"Section 423(1)(b)(1) is clearly confined to cases of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved."
The Supreme Court further held, as --
"In a case where several offences are charged against an accused person the trial is no doubt one ; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If ah order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal. Therefore, the assumption that the whole case is before the High Court when it entertains an appeal against conviction is not well founded and as such it cannot be pressed into service in construing the expression "alter the finding" in Section 423. The expression "alter the finding" has only one meaning, and that is "alter the finding of conviction and not the finding of acquittal." In exercising the powers conferred on it by Section 423(1)(b) the High Court cannot convert acquittal into conviction ; that can be done only by adopting the procedure prescribed in Section 439. Hence, the High Court acts without jurisdiction in altering the finding and order of acquittal passed in favour of the accused in respect of the offences under Sections 302 and 392, Penal Code, when it is dealing with the appeal preferred by the accused against her conviction under Section 411."
A Division Bench of this Court consisting of the late Chief Justice Hombe Gowda and the late Justice M. Santosh, held in State of Mysore -v.- Hanamant Nagappa Gavada of Hattarwad, 1965(1) Criminal taw Journal 737 as --
"This question as to whether a convicted person who has not preferred an appeal against the conviction is or is not entitled to challenge the conviction while an appeal filed by the State against his acquittal in respect of another charge is heard came up for consideration before their Lordships of the Supreme Court in State of Andhra Pradesh v. Thadi Narayana, ."
After referring to the principles laid down in the Supreme Court case, the Division Bench of this Court has held --
"Even on merits we do not find any case for the respondent to claim an acquittal."
In the said decision rendered by this Court, the effect of Section 439 of the Old Code equal to Section 401 of the New Code, has not been considered. What has been laid down by this Court in the said case is that if the accused does not prefer an appeal against the order of his conviction, it is not open to him, in an appeal filed against the order of acquittal, to challenge the conviction imposed on him. The view expressed by the Division Bench of this Court runs contrary to the Supreme Court decision, to which a reference is made above. The Supreme Court has clearly said that in such cases it is only Section 439 of the old Code equal to Section 401 of the new Cede that can be resorted to by the Court, even though the accused might not have preferred an appeal against the order of conviction made in regard to some offences.
11. The Supreme Court in Lakhan Mahto & Ors. -v.-State of Bihar, has again referred to the principle laid down by it in and held that the High Court had acted without jurisdiction in altering the finding of acquittal on the charge under Section 302 IPC and convicting him on the charge under Section 326 Indian Penal Code. The Supreme Court has held in para 7 at page 1745, as--
"In exercising the powers conferred by Section 423(1)(b) the High Court cannot therefore convert the order of acquittal into one of conviction and that result can be achieved only by adopting procedure prescribed under Section 439 of the Criminal Procedure Code".
Therefore, the principle laid down by the Supreme Court in Lakhan Mahto's case3 clearly recognises the existence of the inherent revisional power or the power of superintendence in the High Court, and it lays down that even though the accused might not have preferred an appeal, still the High Court can exercise its power of superintendence or the revisional power under Section 439 of the Old Code equal to Section 401 of the new Code and set aside the order of conviction, even in an appeal filed against the order of acquittal.
12. The Madhya Pradesh High Court in Katan Singh -v.-State of Madhya Pradesh, 1977 Criminal Law Journal 673 has laid down, as --
"The State is the protector of its subjects and therefore, it has to see that no innocent person, being its subject, shall suffer a sentence which is unjust and illegal. This duty and privilege of the State is entrusted to the High Court and this is the reason for conferring suck wide powers under Section 439 of the Code of Criminal Procedure (old) or Section 401 of the present Code. There is an obligation on this Court of superintendence and supervision on sub-ordinate criminal Courts to see that the order of conviction passed by such Courts are not illegal and nobody is made to suffer a sentence which is illegal and contrary to law."
It is further laid down by the Madhya Pradesh High Court, as,--
"If the undisputed illegality of conviction has been brought to notice of High Court, it cannot refuse to interfere merely because the accused concerned did not challenge the same by preferring an appeal. The prohibition contained in the provisions of Section 401(4) of the Code and Section 439(5) old Cr P.C. against entertaining applications for revision against appealabls orders, does not prevent the Court in taking the matter suo motu for exercising its revisional powers."
It is further laid down as --
"For exercising revisional power suo motu it is not necessary that the same shall be exercised only while deciding the appeal of the other accused persons. Whenever, the matter is brought to the notice of the Court and the Court is satisfied that in facts and circumstances of the case, a case is made out for exercising the revisional powers suo motu, it can always do so in the interest of justice."
It is further laid down as --
"There is nothing to prevent from making appropriate directions for setting aside the undisputed illegal conviction and sentence which unfortunately the accused in the present case had suffered for six years."
This Court also in Criminal Appeal 153 of 1977 connected with Criminal Appeal 213 of 1977, disposed of on 11-8-1977 M.P. Ponnamma -v.- State and P.K. Rajan -v.- State, has held as --
"In the course of the judgment, I have mentioned that A-2 and A-3 have not appealed, But, in the view that I have taken in this judgment, I think, this Court must intervene in exercise of its revisional jurisdiction without any appeal by A-2 and A-3. This Court has power under Section 401 Cr.P.C. in a proper case to deal with the cases of accused persons not appealing against their conviction while deciding the appeals preferred by other accused. Section 401 does not in any way affect the jurisdiction vested in this Court to deal with the cases of non-appealing accused."
This Court has further said in the same Judgment in para 7 as--
"This view finds support in Sunilakhya v. H. M. Jadwet. Therein it was pointed out :
"............ Even if a party does not apply to this Court in revision but the said case be brought before the Court by some other party, nothing would stand in the way of this Court to exercise its revisional or inherent powers to make such orders as may be necessary for the ends of justice. There is no form of injustice that the long arms of the Court cannot reach and the inherent power of the Court is ex debito justitiae to dispense real and substantial justice for the administration of which alone Courts exist............"
This Court has further held in Para 8, as --
"The revisional jurisdiction of the High Court is very extensive. There is no form of judicial injustice which this Court, if need be, cannot reach. It would be unfortunate if it were otherwise. This is a case in which the accused were wrongly convicted. It may be pointed out that injustice may equally be done where persons, in fact guilty, are improperly acquitted as well as where innocent persons are convicted."
This principle is also reiterated in State of Kaniataka -v.-Dastagir Sab Criminal Appeal 74 of 1980 DD. 10-3-1981, and also in Gurubasappa -v.- State of Karnataka. Criminal R.P.No. 176 of 1978 D.D. 31-7-1978. This Court has further enunciated the scope of the revisional powers of this Court in Jilani -v.- State of Karnataka 1978(2) KLJ 121.
"While dealing with a criminal appeal filed by only one of the convicted accused persons. If the Court finds that there is no evidence worth the name to sustain the convictions of not only the accused who has appealed, but also the other accused who have not appealed, the Court can, acting under Sections 401 and 482 Crl PC 1973, also set aside the convictions and sentences passed on the other accused who have not appealed."
13. Section 401 of the Code of Criminal Procedure, 1973 reads as --
"(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and. when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in hit own defence.
(3) Nothing in this Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a Petition of appeal and deal with the same accordingly."
A reading of Section 401 of the new Code makes it manifestly clear that if the matter some how comes to the knowledge of the High Court finds that the order of conviction is unjust, illegal and opposed to principles of law and facts, it is open to the High Court to exercise its revisional jurisdiction or power of superintendence under Section 40 in order to rectify the unjust decision or the injustice that has ensued on account of the improper and illegal conviction. Section 401(4) Lays down that if an appeal lies and if no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed. Therefore, Section 401(4) debars the persons, who had not preferred an appeal, to request this Court to exercise the revisional powers existing in this Court under Section 401. But if the unjust decision or improper conviction has come to the notice of the High Court suo motu or in some other proceeding, that has been initiated in this Court, this Court can Suo-motu exercise the power of superintendence or revisional powers vested in it under Section 401 and remedy) the injustice.
14. The said decisions and Section 401 of the Code of Criminal Procedure 1973, in our opinion, cast an obligation on this Court of superintendence to see that nobody is made to suffer a conviction or sentence, which is illegal and contrary to law. For exercising revisional powers suo-motu, it is not necessary that the same should be exercised only while deciding the appeal of the other accused persons. Whenever the matter is brought to the notice of the Court in any proceeding whatsoever, either by the State coming in appeal against the order of acquittal or by some other accused person questioning his conviction, this Court cannot refuse to exercise its general power of superintendence or revisional powers while hearing such matters. If this Court refuses to exercise its revisional jurisdiction or power of superintendence, enormous injustice would be caused to an accused, who might not have preferred an appeal, if the unjust or improper or illegal sentence imposed on him is not set aside.
15. The Court should bear in mind, while exercising jurisdiction under Section 401 of the Code of Criminal Procedure the conviction or the sentence not appealed against, if allowed to stand, would result in the continuation or perpetuation of the unjust decision or in the continuation of an illegal sentence being suffered by a citizen of the Country.
16. The evidence of P.Ws.l to 6 makes it clear that, the deceased K.N. Patil, who was the excise guard and who was also a member of the raiding party, received a gun shot injury and ultimately died of it. They do not know personally as to how the accused had come into possession of the gun in question. P.W.7 - Hanumanthappa has stated that P.W.13-Irappa, while coming in the vehicle had brought the gun M.O.1 and it was with P.W. 13. According to him, when the vehicle reached Hogaratti Hanamanatti jungle, all of them got down and P.W.13 could not got down from the vehicle with the gun in his hand. According to him, P.W. 13 handed it over to the accused and got down from the vehicle. According to him, the gun M.O.1 belonging to P. W. 13 was thus with the accused. Thereafter P.Ws.l to 6 and others divided into separate groups and started going towards the place from where the smoke was coming. P.W.13, who is the owner of the gun, gives evidence to the same effect. It is the case of the prosecution also that the gun in question belonged to P.W. 13. Thus in view of the fact that P.Ws. 1 to 6 and other members of the excise party did not know how the accused came in possession of the gua M.O. 1 and in view of the clear evidence of P.Ws. 7 and 13 that the gun belonged to P.W. 13 and that it was P.W. 13, who handed it over to the accused, who was standing near the vehicle, while getting down from the vehicle, it only means that the accused came to hold the gun in question for and on behalf of P.W. 13. It may be that when the gun was handed over by P.W. 13 to the accused, the raiding party started going in different group towards the place from where the smoke was coming. Merely because, the accused was also going along with one of such groups with the gun, given to him by P.W. 13, it does not mean that the accused possessed it with the intention to possess it or with the animus to possess it. He was only holding it tor and on behalf of the gun owner P.W. 14.
17. It has been held in Queen-Empress -v.- Tota Ram, ILR 16 Allahabad 276 that a servant Nathu was carrying a gun of his master in Order to have it repaired and it was held that, in those circumstances, the servant was not guilty. In Emperor -v.- Harpal Rai ILR 24 Allahabad 454 a gun had been given by the licensee to a friend for purposes of repairs and the friend's father was taking the gun to a repairer for that purpose when he was caught; It was held that in those circumstances there was no offence under Section 19(f) of the Indian Arms Act. In Charu Chandra -v.- Emperior AIR 1914 Calcutta 175 a servant was taking a gun on behalf of his master to a Magistrate for purposes of renewing the licence. It was held that in those circumstances no offence under Section 19(f) of the Arms Act was committed. In A. Malcolm -v.- Emperor, AIR 1933 Calcutta 218 the gun had been handed over to the accused for the purpose of negotiating a sale, and therefore such possession was not unlawful. The High Court held in AIR 1941 Saurashtra 58, at --
"Whether the accused could legally sell the pistol in face of the provisions of the Arms Act is a different matter altogether. What we have to see is whether, in such circumstances, the possession was that of the accused or still the licensee. We are quite clear that in these circumstances where the weapon is pledged in order to secure some money due from the licensee, the possession passes from the licensee to the pledgee.
If we were to hold that even in such a case possession is still of the licensee, the purpose of the Arms Act would be completely negatived."
In Kedar Nath and anr. -v.- Emperior, AIR 1941 Patna 209 it has been held --
"The license for a gun stood in the name of K. K one morning had gone out shooting with the gun and Y who was his close friend bad accompanied him. They returned in the evening and K left his gun and bedding in Y's house with the intention of returning shortly afterwards for them. It was not alleged that Y had used the gun in any way :
Held that the possession of the gun must be deemed to have remained with K though it was not actually in his physical possession, and if Y had been in possession at all then at most the possession of Y was on behalf of K. Hence Y could not be convicted under Section 19(f) nor K under Section 21."
The learned authors Sri Gaur and Sri Saxena in Law of Arms and Explosives, 4th Edition, has stated at page 66, as-
"In my judgment possession aft a test or an element of a crime must be of such character as can relate to the fundamental principle of mens-rea in criminal jurisprudence. The animus must be there and the inensrea must be there. Unless these notions are specially excluded by any statute under consideration they are basic test which must be satisfied before a person can be said to have committed a crime whose basis is possession. It is this element of intention or consciousness or knowlege, which in my view, must be established and must be present as a fact before possession under the Arms Act can be said to constitute, an offence. It does not matter, in my opinion, whether such possession is actual or constructive or physical or mediate or immediate or direct or indirect or exclusive or joint or concurrent. Corpus without the animus is ineffective. No mere physical relation of a person to the thing can have any significance in criminal jurisprudence unless it is the outward form in which the needful animus or intent has fulfilled and realised itself. The animus may be animus possidendi being the intent necessary to constitute possession by excluding others from interference, or it may even be animus sibis havendi, which is not necessarily a claim of right and may be consciously wrongful as the possession of a thief.
The animus is the very basis of any legal concept of possession."
The learned authors have further stated at page 68, as -
"The two easiest classifications of possession are as temporary or permanent. Mere temporary possession of arms without a licence for purposes other than their use as such is not prohibited by this Section. The mere holding of a weapon by one person on behalf of the licensee is not possession within the meaning of this Section or Section 19(f). Possession for the bona fide purposes of repairs, negotiating for sale, etc., does not amount to an offence under this Section. The act of a person in taking up his brother's gun and firing it into the air to scare raiders or the snatching of a gun from a licensee by another person for shooting a mad dog which has entered his premises does not amount to an offence under the Section. Where a licensee, staying with a friend, left his friend's house without taking his gun with him, intending to return for it shortly afterwards. It was held that the licensee was still in possession of the gun anil that the friend in whose house it had been left was not in possession, especially when he had not made any use of the same. The Allahabad High Court decided in an earlier case that the shooting of birds by a person with his father's gun constituted possession of the gun in contravention of this Section. A servant's possession of arms belonging to his master on his master's behalf within the scope of his authority and to the exclusion of any unlawful or private purpose of the servant does not make the servant liable tor such possession."
18. In this case, the evidence of P.Ws. 7 and 13 makes it absolutely clear that M.O. 1 belonged to P.W. 13. Their evidence further establishes that it was not possible for the old man P.W. 13 to get down from the vehicle with the gun in his hand and that for the purpose of getting down from the vehicle, P.W. 13 handed over the gun to the accused, who was standing near the vehicle. Therefore, the holding of the gun by the accused would only mean that the accused was holding the gun for and on behalf of the owner P.W. 13. Therefore, the said circumstances make it clear that the accused had no animus to possess it to the exclusion of the gun owner P.W. 13. Therefore, the holding of the gun by the accused was only for the temporary purpose of enabling P.W. 13 to get down from the vehicle, which does not amount to possession within the meaning of Section 25(1)(a) of the Arms Act.
19. The Learned State Public Prosecutor Sri Kuranga urged that when the gun was with the accused, it fired and hit the deceased K.N. Patil. Thus according to him, the firing of the gun while it was in possession of the accused clearly indicated that the accused had the animus to possess it. But as would be shown later by us, the bullet going off from the gun was only accidental and not as a result of any act of the accused himself. Therefore, even though the bullet might have gone off from the gun, it does not mean that the accused intended or had the animus of possessing it.
20. The evidence of Pws. 7 and 13 does not go to indicate that while the gun was handed over to the accused, the accused, knew whether it was loaded or not. When there is no material to show that the accused knew that it was loaded and when the circumstances show that the accused held it for the purpose of P.W. 13 getting down from the vehicle, it cannot be said that the accused had any knowledge that the gun was loaded with cartridges or bullets. Therefore, the accidental firing of the gun when it was in possession of the accused does not mean that the accused possessed it with the intention of possessing it to the exclusion of the owner P.W. 13.
21. Therefore, the offence under Section 25(1)(a) of the Indian Arms Act is not made out at all in this case by any satisfactory material. Therefore, the finding of the Trial Court that the accused possessed the gun within the meaning of Section 25(1)(a), is absolutely illegal and manifestly erroneous, perverse and opposed to cannons of law and interpretation of law. Therefore, his conviction under Section 25(1)(a) is set aside by exercising our powers under Section 401 of the Code of Criminal Procedure, 1973.
22. Then the next question is whether the order of confiscation of the gun can be sustained. If the owner of the gun handed over the gun to another person temporarily either for the purpose of carrying out repairs or for the purpose of holding it for and on his behalf, the confiscation of the gun, under these circumstances, is manifestly wrong and erroneous. The learned Sessions Judge appears to have mistaken the offence under Section 25(1)(a) with the offence punishable under Section 25(1)(a) of the Arms Act. Section 25(1)(a) of the Arms Act comes into play only i the holding of the gun is in contravention of any Notification issued under Sections 23 or 24 of the Act. That is not the case of the prosecution at all. Therefore the question of contravention of any Notification does not arise at all in this case.
23. The prosecution has not produced the licence issued to P.W.13 in order to show that any condition laid down by that licence has been violated in the present case. Therefore, viewed from this circumstance, the conviction of the accused under Section 25(1)(a) of the Arms Act is absolutely perverse, unsustainable and illegal. Therefore, the order passed by the Court below confiscating the gun belonging to P.W.13 is also set aside.
24. Now we will take up the appeal preferred by the State against the order of acquittal. P.Ws.l to 6 speak that while they had gone for excise raid in Hogaratti Hanamanatti jungle, they heard the gun shot sound and went there and found excise guard K.N. Patil lying with a gun shot injury and they also found the accused holding M.O.I. None of the so called eye witnesses have seen the accused aiming the gun at K.N. Patil. It cannot be forgotten and it is also the case of P.Ws1 to 6 and others that the gun M-O.1 was belonging to P.W.13 and that it was P.W 13 that brought it. The evidence of P.Ws. 7 and 13 shows that P.W.13 handed it over to the accused, who was standing near the vehicle, while getting down from the vehicle. It cannot also be forgotten that the accused was also one of the persons who had accompanied the raiding party. Therefore, he cannot be said to have any intention to shoot at K N Patil. who was also a person belonging to the raiding party. The evidence of P.W.2 goes to show that the accused was coming from behind the excise guard Parvathagowda and that D.P. Nayak and deceased K.N. Patil were also there in the line. The evidence on record goes to show that the deceased was coming from behind the accused. Therefore, the question of aiming the gun at him does not arise. It is a jungle full of bushes and small trees and stones. They had gone to detect manufacture of illicit liquor. When the raiding party saw the smoke coming, they might have rushed in the eagerness to hold the pet sons who were manufacturing the liquor. At that time the bullet might have accidentally gone off from the gun. Therefore, the circumstances in the case clearly indicate that the bullet going off from the gun was only accidental. Therefore, the trial Court has rightly held that no offence under Section 304 Part I IPC had been committed by the accused.
25. The learned State Public Prosecutor Sri Kuranga then urged that the act of the accused atleast would fall under Section 304A IPC. According to him, the carrying of the gun by the accused and the sudden going off of the bullet from that gun amounted to a rash or negligent act within the meaning of Section 304A IPC. The question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider into he sufficient considering all the circumstances of the case. Moreover, in applying the above criterion it Is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is so dominant a factor in accident cases. The distinction between the negligence which is sufficient ground for a civil action and the higher degree which is necessary in criminal proceedings is sharply insisted on in several cases. In criminal cases, the amount and degree of negligence are the determining factors. There must be mens rea in the criminal negligence also, In order to establish criminal liability the facts must he such that the negligence of the accused Bent the case beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime. Simple lack of care such as will constitute civil liability does not constitute criminal liability and thus bring the act within the ambit of Section 304A IPC. The criminality lies in running the risk of doing such an act With recklessness or indifference as to the consequences. Culpable negligence is acting without the consciousness that the illegal and mischevous effect will follow, but in circumstances which show that the actor has not exercised the caution, incumbent upon him, and that if he had, he would have had the consciousness. The impufability arises from the neglect of the civic duty of circumspection.
26. In this case, as already stated above,, the circumstances do not show that the accused knew that the gun was loaded with cartridges or bullets. Therefore, it cannot be said that the accused held the gun with any rashness or negligence and the circumstances do not show that he did any act without proper care and caution. Therefore, the material on record does not also indicate that the accused was guilty of rashness or negligence in the matter. Therefore, even the offence under Section 304A IPC cannot be said to have been committed.
27. Sri Kurang, drew our attention to the dying declaration said to have been made by the deceased to P.Ws. 1 to 6 P.Ws. 1 to 6 have stated that the deceased K.N. Patil told them when questioned that the accused fired the gun at him. This dying declaration said to have been made by the deceased to P.Ws. 1 to 6 does not inspire any confidence in our mind. The evidence of P.Ws. 1 to 6 clearly shows that they did not know that the accused was holding the gun or the accused knew that the gun was loaded with bullets. The evidence above referred to would go to show that the accused was holding the gun cross-wise, but not aiming at any person. If it is so, the evidence of P.Ws.l to 6 that the accused was said to be aiming the gun at the deceased cannot be accepted at all.
28. In the result, the State appeal Cr.A.583 of 1986 filed against the order acquitting the accused of the offences under Section 304 PartI IPC is dismissed. Criminal Appeal 421 of 1986 filed by the gun owner P.W.13 is allowed. The order passed by the Court below confiscating the gun M.O.I is set aside and the gun M.O.I is ordered to be returned to P.W.13. The cartridge ease M.O.2 is also ordered to be returned to P.W.13. The order passed by the Court below convicting the accused in respect of the offence under Section 25(1)(a) of the Arms Act is also set aside and the accused is acquitted of the offence under Section 25(1)(a) of the Indian Arms Act wrongly described by the learned Sessions Judge as Section 25(1)(a).
29. MOs 3 to 27 are ordered to be destroyed.