Karnataka High Court
State Of Police Inspector vs Moosa @ Mahammed Moosa on 11 January, 2013
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JANUARY 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUANTH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.312/2007 (A)
BETWEEN
State of Police Inspector
D.C.I.B., Udupi.
...Appellant
(By Sri.Sampangi Ramaiah, HCGP)
AND:
Moosa @ Mahammed Moosa
Aged about 46 years
S/o. Fakruddin
R/o. Karnadu, Mulki.
Present residing at Mubarak House
Kattanamane (Via) Kudregundi
N.R.Pura Taluk
Chikkmagalur Dist.
... Respondent
(By Sri.P.P.Hegde, Adv.,)
This Crl.A. is filed under Section 378 (1) & (3)
Cr.P.C. praying to grant leave to file an appeal against
the judgment dated 8.9.06 passed by the S.J., Udupi in
S.C.No.34/2003 acquitting the respondent/accused for
the offences punishable under Sections 302, 392 and
2
394 r/w. 34 of IPC and under Section 3 r/w. Section 25
of the Indian Arms Act.
This Crl.A. coming on for hearing this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The State has preferred this appeal being aggrieved by the judgment and order of acquittal passed by the Sessions Judge, Udupi, on 8th September, 2006 in S.C.No.34/2003.
2. We have heard the learned counsel for the parties.
3. The Police Inspector, D.C.I.B., Udupi, filed charge sheet against M.Abbas, K.S.Shyama Sundar Halambi, M.Mohammed @ Mohammed Bavu @ Bav and also against the present respondent Moosa @ Mohammed Moosa in Crime No.109/1991 of Byndoor Police Station showing the present respondent as absconding in the case. Thereafter, the case of the other three accused was committed to the Court of Sessions, upon which, S.C.No.57/1992 came to be registered. Three accused persons whose case came to be committed were tried for 3 the offences punishable under Sections 302, 392 and 394 r/w. Section 34 of IPC in S.C.No.57/1992 on the file of District and Sessions Judge, Mangalore.
4. It is the case of the prosecution, all the accused persons on 23.12.1991 at about 10.30 p.m. were travelling as passengers in lorry bearing registration NO.KA-25/1264 on National Highway - 17 and when the lorry reached near Maraswamy temple at Maravanthe, Kundapura District, in furtherance of their common intention, accused M.Abbas stabbed the driver, deceased Guru @ Gururaja on his neck and other parts of the body and that the respondent Moosa @ Mohammed Moosa shot at the said deceased on his head with a country made pistol and the driver succumbed to the injuries on 12.1.1992 at about 6.45 p.m. at KMC Hospital, Manipal. The accused persons also committed the theft of articles like pepper, copra, arecanut and coconut oil loaded in the said lorry, which was being carried to Belgaum and other places from Mangalore in all worth of Rs.6,12,900/-. At that time, 4 they also caused hurt to the cleaner of the said lorry by name, Promodh Hangarki and committed robbery of the articles.
5. The Sessions Court at Mangalore in S.C.No.57/1992 vide its order dated 29.1.1994 convicted the aforesaid three accused persons and sentenced them to undergo R.I. for seven years for each of the offences punishable under Sections 392 and 394 of IPC and to pay fine of Rs.10,000/- each for each of the aforesaid offences and further they were also sentenced to undergo imprisonment for life for the offence punishable under Section 302 r/w. Section 34 of IPC.
6. Aggrieved by the judgment of conviction and order of sentence, the aforesaid three accused persons filed Criminal Appeal No.112/1994 before this Court. This Hon'ble Court by its judgment and order dated 5.9.1995 set aside the judgment and order of conviction and sentence passed by the Sessions Judge, Mangalore in 5 S.C.No.57/1992 and acquitted of the charges levelled against them. Thereafter, this respondent came to be arrested on 24.11.2001 and his case was committed to the Court of Sessions, which in turn, on securing his presence framed charges for the very same offences, for which, other three accused were tired, to which, he pleaded not guilty, but claimed to be tried.
7. In order to bring home the guilt of the accused, the prosecution has relied upon the evidence of PWs.1 to 9, Exs.P.1 to P.104 and MOs.1 and 2.
8. A memo was also filed by the respondent counsel stating that he has no objection to rely upon the evidence let in by the prosecution in S.C.No.57/1992. The accused while answering the statement recorded under Section 313 of Cr.P.C., denied all the incriminating evidence let in by the prosecution against him. He has also submitted that he has no defence evidence to lead in support of his case. Total denial of the prosecution case is defence of the accused. 6
9. The learned Sessions Judge after considering the arguments advanced by the Public Prosecutor and the defence counsel, formulated the following points for his consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 23.12.1991 this accused along with other accused persons by name M.Abbas, K.S.Shyama Sundara Halambi and M.Mohammed alias Mohammed Bavu alias Bavu joined together and with a common intention to loot a vehicle Lorry bearing registration No.KA.25/1264 , they intercepted the said lorry in National Highway No.17 near Maraswamy Temple, Maravanthe Kundapura Taluk, disguising themselves as passengers, and when the Lorry reached near Maravanthe, they stopped the said Lorry and this accused with the help of a country revolver, fired towards the head of the driver of the said Lorry Guru @ Gururaja and other accused persons have also assaulted the deceased Guru @ Gururaja with knieves, and this accused Moosa @ Mohammed Moosa along with other accused persons took the said Lorry containing the 7 bags of pepper, copra, arecanut, supari and tins of oil wroth Rs.6,12,900/- and they also assaulted the cleaner of the said vehicle with deadly weapons, and in fact, the asid Gurur @ Gururaja died on 12.1.1992 in K.M.C. hospital, Manipal at about 6.45 p.m. and thereby the accused persons have committed the offences punishable under Sections 302, 392 and 394 r/w. Section 34 of IPC?
2. Whether the prosecution further proves that the accused herein along with other accused persons as detailed above, on the above said date, time and place, was in possession of country revolver without any licence or permission and used the same for the purpose of commission of the offence and thereby committed an offence punishable under Section 3 read with Section 25 of the India Arms Act.
3. What order?
10. The learned Sessions Judge after considering the entire evidence came to the conclusion that the prosecution has failed to establish the charges levelled 8 against him. Accordingly, he acquitted the accused/respondent by his judgment dated 8th September, 2006. Being aggrieved by the same, the present appeal is filed.
11. Sri.Sampangi Ramaiah, learned HCGP contends that the Sessions Court has committed an error in acquitting the accused solely relying upon the judgment passed by this Court in Crl.A.No.112/1994, because the charges levelled against remaining three accused and charges levelled against the present respondent is altogether different, because the respondent herein by using MO.1 at the first instance shot on the head of the driver Guru @ Gururaja, who succumbed to the injuries in KMC Hospital, Manipal. He further contends that the appreciation of the evidence by the Trial Court is erroneous and therefore, he requests the Court to re- appreciate the entire evidence. Therefore, he requests the Court to re-appreciate the entire evidence and to punish the respondent in accordance with law. 9
12. Per-contra, learned counsel appearing for the respondent submits that the charges framed against the respondent and other three accused, who are acquitted in Criminal Appeal No.112/1994, are one and the same except in regard to using of MO.1 and fired at Guru @ Gururaja - driver of the lorry, which is said to be witnessed by Pramodh Hangarki, cleaner of the lorry, who has been cited as CW.2 in the charge sheet. According to him, the prosecution has failed to examine CW.2 - sole eye-witness for the reasons best known to them and further they have also failed to prove the recovery of MO.1 at the instance of this respondent. In the circumstances, he contends that when remaining three accused have been acquitted by this Court in Criminal Appeal No.112/1994 and when the prosecution has failed to prove the charges levelled against the respondent, since the prosecution for the reasons best known to it did not examine CW.2 and further failed to prove the recovery of MO.1 from the 10 respondent, he requests the Court to dismiss the appeal.
13. Having heard the learned counsel for the parties, we have to consider the following points for consideration in this appeal:-
1) Whether the prosecution has proved that the respondent has fired at the deceased Guru @ Gururaja with MO.1 on his head on 23.12.1991 at about 10.30 p.m. near Maraswamy Temple while he was travelling in lorry bearing registration No.KA-25/1264 at Maravanthe, Kundapura Taluk?
2) Whether the appreciation of the evidence by the Sessions Court as perverse and requires to be reversed by this Court?
14. According to the prosecution, the overt-act of the respondent has been witnessed by CW.2- Pramodh Hangarki, who was also travelling in the same lorry as cleaner. He is only the eye-witness to the entire case. His evidence was also relied upon by the prosecution when the case was tried against remaining three 11 accused. It is noticed by us that; for the reasons best known to the prosecution, CW.2 - Pramodh Hangarki was not examined on the earlier occasion when the case was tried against remaining three accused and the similar mistake has been committed by the prosecution while trying the respondent only in the present case. When he was only the eye-witness, who said to have witnessed the respondent firing with MO.1 on the head of the deceased Guru @ Gururaja, driver of the lorry, it is difficult to hold that the appreciation of the evidence by the Sessions Court is perverse. In addition to that, what is stated to above, the trial Court has observed that the prosecution has failed to examine CW.2 and even the recovery of MO.1 has not been proved by the prosecution by placing cogent and reliable evidence.
15. In the circumstances, if the trial Court has acquitted the accused after proper appreciation of the evidence let in by the prosecution, it is difficult for us to hold that the appreciation of the evidence by the trial Court is perverse. On perusal of the entire evidence, we 12 are of the view that the appreciation of the evidence by the trial Court is just and proper and does not call for any interference. Accordingly, we do not find any merit in this appeal and hence it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SA