Karnataka High Court
K R Manjunatha vs State By on 20 August, 2014
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 20TH DAY OF AUGUST, 2014
:PRESENT:
THE HON'BLE MR.JUSTICE MOHAN.M.SHANTANAGOUDAR
:AND:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 841/2009
BETWEEN:
K.R.MANJUNATHA,
S/O LATE RAMACHANDREGOWDA,
AGED ABOUT 32 YEARS,
R/AT MAKKIGADDE,
DEVANDANA VILLAGE,
CHIKMAGALUR TALUK. ... APPELLANT
(BY SRI.K.VISHWANATHA POOJARY, ADV., )
AND:
STATE BY BALEHONNUR POLICE
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE. ... RESPONDENT
(BY SRI.B. VISWESWARAIAH, HCGP)
THIS CRL.A IS FILED U/S 374 CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGEMENT OF CONVICTION
AND SENTENCE PASSED BY THE SESSIONS JUDGE AND
PRESIDING OFFICER, FTC-II, CHIKMAGALUR IN
S.C.NO.10/2008 DATED 19.3.2009- CONVICTING THE
APPELLANT / ACCUSED FOR THE OFFENCE P/U/S 302
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AND 309 OF IPC AND SECTION 3 R/W SEC.25 OF THE
INDIAN ARMS ACT. AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, MOHAN M. SHANTANAGOUDAR, J. DELIVERED
THE FOLLOWING:
JUDGMENT
The judgment and order of conviction dated 18.3.2009 passed by Fast Track Court in SC No.10/2008 is called in question in this appeal by the accused.
1.1 The accused/appellant was tried and convicted for the offence punishable under Section 302 and 309 of IPC and Section 3 r/w. Section 25 of the Indian Arms Act.
2. The case of the prosecution in brief is that the accused is the son of the deceased Sharadamma; PW-1 the complainant is another son of the deceased; after attaining the age of majority, the accused used to quarrel with his mother to get the family property divided; after the demise of their father, the deceased Sharadamma, divided the properties among PW1 and the accused. However, the entries were not changed in favour of either PW1 or the accused in respect of their respective shares; in that regard, 3 the accused used to quarrel with his mother and used to threaten her with dire consequences; the accused was not doing any agricultural work, he was a coolie under another agriculturist; he was residing with his wife and two children in a small quarters provided by his landlord; the said place is 2 - 3 kilometers away from the spot in question; however, the accused claiming that he has got ½ share in the residential house of the deceased, where the deceased was residing; the deceased was residing in another half portion of the house; there was a wall in between the two portions, but there was no door to the said wall; PW1 another son of the deceased was living about 4-5 kilometers away from the spot in question; he was a Forest Watcher and getting State Government salary.
2.1 As per the story of the prosecution, at about 1.30 a.m., on 2.8.2007, the appellant/accused killed his mother by assaulting her with chopper since the deceased did not agree to change the katha of the lands in his name. After committing the crime, the accused attempted to commit suicide by shooting himself with a SBML Gun in his 4 house. Though he shot himself with the said gun, though the bullet entered the left side of the chest of the accused, he did not die and he sustained severe injuries which means that the bullet passed through his body, by damaging the ribs.
2.2 The FIR came to be lodged by PW-1 at about 1.00 pm on 2.8.2007 before the Balehonnur Police Station; PW-13 who received the FIR, in-turn registered a case in Crime No.95/2007 and sent the FIR as per Ex.P8 to the Jurisdictional Magistrate.
2.3 During the course of investigation, apart from fulfilling all the formalities such as preparing of spot panchnama, inquest panchnama and etc., the investigating officer has got the report from the Ballistic Expert also. Ultimately, PW-21 CPI laid the charge sheet after completion of the investigation.
3. In order to prove its case, the prosecution in all examined 22 witnesses and got marked 32 Exhibits and 9 MOs. On behalf of the defence, no witness is examined. As aforementioned, the Trial Court convicted the accused for 5 the offence punishable under Section 302 and 309 of IPC and Section 3 read with Section 25 of the Indian Arms Act.
4. Sri Vishwanath Poojary K, learned Advocate appearing on behalf of the appellant/accused, taking us through the entire materials on record and the judgment and order of the Trial Court submits that the Trial Court has convicted the accused merely on assumptions and presumptions; there is no connecting link between the crime and the accused; the accused himself has not shot the gun, but the gun shot was by the third parties; the injury sustained by the accused was not a self inflicted injury, but was caused by third parties; the gun which is allegedly used by the accused to shoot himself was having the length of 56 inches i.e. 4.8'. The height of the accused was 5.3' and therefore, it is impossible for the accused to use such a long gun to shoot himself. Added to that no material is forthcoming to connect the accused with the crime.
5. Per contra, Sri B. Vishweshwaraiah, learned High Court Government Pleader, in support of the judgment of the Trial Court, contends that the prosecution has proved 6 the circumstances relating to motive; the presence of the accused in the house with gun shot and etc., 5.1 PW1 is the first informant has lodged the FIR as per Ex.P1 on 2.8.2007. He is the younger son of the deceased and younger brother of the accused. He has deposed about the motive for commission of offence.
5.2 PW-2 is the witness for scene of offence as per mahazar Ex.P2, under which MO Nos.1 to 5 were seized. He is also the witness for Ex.P3 seizure mahazar, under which the chopper was recovered at the behest of the accused. PW- 3 is the witness for inquest panchnama Ex.P4.
5.3 PW-4 is the witness for mahazar Ex.P5 for seizure of clothes of the deceased, under which MO Nos.7 to 9 were seized. PW-5 is the daughter of the deceased. She has deposed about the motive of the accused for commission of the offence. PW-6 is another daughter of the deceased. She has also supposed to depose, but she has turned hostile. PW-7 is the tenant, who cultivate the lands of the deceased and PW-1 along with his brother CW-15. He is the first person to come to the house of the deceased, soon after 7 the incident had taken place. He has deposed that since the deceased did not open the house despite repeated tapping, he informed about the same to PW1 over phone.
5.4 PW-8 is the elderly person of the village has deposed about the partition between PW1 and deceased. PW-9 is the relative of the accused. He has turned hostile. PWs.10, 11 and 12 are the Police Constable and Head Constables respectively. All of them have taken the accused to the hospital for getting him treated. PW-13 is the Head Constable attached to Balehonnur Police Station, who registered a case in Crime No.95/2007, based on the complaint as per Ex.P1. He has sent FIR to the Jurisdictional Magistrate as per Ex.P8. PW-14 is the Village Accountant, who issued the katha extract as per Ex.P9.
5.5 PW-15 is the doctor who conducted Post Mortem examination. PM report is as per Ex.P10. The report of PW15 is as per Ex.P11. Exs.P12, P13, P14 and P15 were marked through PW-15. Ex.P12 is the opinion, P13 and 14 are the case sheets of the Victoria Hospital, Bangalore, P15 is the wound certificate. The evidence of PW-15 further 8 discloses that the accused was admitted to Victoria Hospital and from there, he was shifted to Plastic surgery male ward. Ex.P14 is another referral letter issued to the accused by the Tuberculosis and Rajiv Gandhi Institute of Chest Diseases, Bangalore. Ex.P15 is the Wound Certificate of the accused issued by the doctor in respect of the wounds sustained. PW-16 is the Police Inspector, who investigated the crime in part. PW-17 is the Asst. Executive Engineer, who issued the sketch of scene of offence as per Ex.P20. PW-18 is the Assistant Director of FSL. His report is at Ex.P17. Practically, PW18 may not be a relevant witness to this case, inasmuch as the blood stained clothes of the accused and the chopper which are said to have been seized have not been sent for FSL examination.
5.6 PW-19 is the Ballistic expert who has given the report as per Ex.P23 after examining the MO-1 Gun and its parts. PW-10 is the doctor/Professor, Plastic Surgery and Burns Department of Victoria Hospital who treated the accused. Exs.P24, P25 and P26 are the OPD slips, case sheets and discharge summary marked through PW-10. PW-21 is the Inspector of Police, who completed the 9 investigation and laid the charge sheet. PW-22 is the Revenue Inspector, who issued the RTC extracts relating the agricultural lands of the deceased as per Ex.P29 to P31 Mutation Register Extracts.
6. From the aforementioned material, it is clear that the prosecution has mainly relied upon the 'circumstance of motive' to prove its case. PWs.1 and 5 who are the brother and sister respectively of the accused, have deposed that the accused used to quarrel with the deceased frequently to get the katha changed into his name in respect of the share allotted to him by the deceased. Except the motive part, we do not find anything on record to connect the accused with the crime.
7. It is the case of the prosecution that accused assaulted his mother Sharadamma with chopper brutally and thereafter, he wanted to commit suicide by shooting himself with the help of MO-6 Gun. The accused was lying in his house with severe gun shot injuries.
7.1 While conducting the scene of offence panchanama Ex.P21, SBML Gun allegedly used by the 10 accused for committing suicide is seized from the spot. The said panchanama reveals that SBML Gun seized is having length of 56 inches.
8. The Evidence of PW-19 Ballistic Expert is to be considered at this stage. Two articles were sent to him for examination. Article No.1 contained different sizes of lead pieces and black gun powder. Article No.2 contained one SBML Gun without action block and with a ramrod. Thus, the important material which is sent to Ballistic Expert's opinion is Article No.2, used for committing suicide. The Ballistic Expert says that Article No.2 is a part of firearm and it is not a complete firearm. It is also specified by him that barrel of the Gun was in a loaded condition. It is further specified that the action block (striker or trigger) is missing in Article No.2 and therefore, opined that it is not possible to conduct test fire.
8.1. From the aforementioned material, it is amply clear that firstly, the SBML Gun seized is a part of firearm and it is not a complete firearm. Secondly, it is clear that the barrel of the Gun is in a loaded condition. We are at a 11 loss to understand as to how the Gun was found to be loaded after firing, if so by whom. The accused was in a critical condition as was clear from the evidence of the Police who apprehended the accused. It would not be possible for him to load the Gun once again after firing himself. It is not also the case of the prosecution that Gun was loaded second time. Moreover, the fire arm could not have been used without the striker. The Ballistic expert has admitted in the cross examination that since the striker is not there, it is not possible for him to have the test fire. Also, it is impossible for any person to shoot himself (one self) with such a Gun. Therefore, in our considered opinion, the accused must not have been shooted himself with the Gun which has seized. In the cross examination of the Ballistic expert, he has admitted that without the action block (striker), the Gun cannot be operated. He has further admitted that if a person sustains any Gun shot injuries, the cloth of the injured and also the swab around the would should be collected for expert's opinion for analysis. He can say about the distance of fire only if the swab is collected and sent; normally, the investigating officer used to send the 12 clothes of the injured and the swab around the injuries for chemical analysis.
8.2 It is also admitted by the Ballistic Expert that if a person sustains gunshot through SBML gun, the wad materials would be found inside the body. He has further volunteered that if there is exit injury the wad materials should be found on the place of occurrence. He has further deposed that the investigating officer did not send wad material along with Article No.1 for examination. It is further admitted by him that if a shot is fired from a close range or from a contact range, there will be scorching, blackening and tattooing mark will be found around the entry wound. In the matter on hand, there are neither scorching, blackening and tattooing marks found near the entry wound as is clear from the medical records.
8.3 In view of the same, we are of the clear and considered opinion that the Gun, which is seized from the spot might not have been used for shooting the accused.
9. In this context, it is relevant to consider the statement of the accused recorded u/s.313 Cr.PC. In his 13 statement, it is specified that he went in the morning of 2.8.2007 to the house of his mother; and at that point of time, he found the dead body of his mother. The gold chain which always used to be worn by the mother was missing. It is also stated in his statement that his mother was not having good character after the demise of his father and number of people used to visit her house. In order to inform about the incident in question, he came out of the house; by the time, he came out of the house, somebody shot at him either with the revolver or with the Gun. Thus, according to him, he was shot by third party and such third party must have killed his mother also.
9.1 As aforementioned, except the motive, there is no connecting link between the accused and the crime. If the theory of the prosecution that the accused tried to commit suicide by himself is ruled out from the explanation offered by the accused in his statement u/s.313 Cr.PC.
10. The chopper which is allegedly recovered and seized was not sent to FSL for examination. There is nothing on record to show that such chopper was having blood 14 stains that too of human origin. Looking to the injuries i.e., about 10 grievous injuries sustained by the deceased, including the first injury i.e. cranium is opened into two halves along with scorn along the midline from the frontal bone to occipital bone measuring about 9 x 1 ½ x 1 ½ inches, the assailants dresses must have been spurted with blood. In the matter on hand, i.e. curiously the dresses of the accused are not seized. Even according to the case of prosecution, the accused was very much present on the spot when the police came and he was shifted to hospital from the spot. If it is so, there is no reason as to why his clothes were not seized and sent to FSL for comparing the blood group, if really there were blood stains on his clothes.
11. In the light of such material on record, we are of the firm opinion that there is no connecting link between the accused and the crime. Since the accused cannot be connected with the crime, in our considered opinion, the Trial Court is not justified in convicting the accused. The Trial Court has merely on surmises and conjunctures proceeded to convict the accused. Based on the 15 circumstance of motive alone, the accused may not be convicted for the offence punishable under Section 302 of IPC. Hence, we conclude that the prosecution has not proved its case beyond reasonable doubt in respect of both the charges. Accordingly, following order is made:
(1) The judgment of conviction and the order of sentence dated 19.3.2009 passed in SC No.10/2008 by the Presiding Officer, Fast Track Court, Chikmagalur, stands set aside. The appellant/accused is acquitted of the charges leveled against him.
(2) The appellant/accused shall be set at liberty forthwith, if not required in any other case.
(3) The operative portion of this order shall be intimated to the concerned prison authorities.
SD/-
JUDGE SD/-
JUDGE PL