Karnataka High Court
Vithal Mahadev Patil vs The State By Belgaum Rural Police on 28 July, 1995
Equivalent citations: 1996(2)ALT(CRI)482, 1996CRILJ1796
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
JUDGMENT Mirdhe, J.
1. This appeal is preferred by the appeallant who was the accused No. 1 in the trail court against the judgment dt. 20/21-4-1994 passed by the II Additional Sessions Judge, Belgaum in S.C. No. 187/91 convicting the appellant - accused for the offence punishable under S. 302, IPC and sentencing him to suffer imprisonment for life and convicting him for the offence punishable under S. 324, IPC and sentencing him to R.I. for one year and also convicting him for the offence punishable under S. 3(1) r/w. S. 25(IB) of the Arms Act, 1959 and sentencing him to R.I. for one year and to pay a fine of Rs. 500/- in default to suffer R.I. for three months. He is also convicted for the offence punishable under S. 5 r/w S. 27 of the Arms Act, 1959 and sentenced to R.I. for three years and to pay a fine of Rs. 1000/- in default to suffer R.I. for six months for the offence punishable under S. 5 r/w. S. 27 of the Arms Act. All the above substantive sentences to run concurrently.
2. We have heard the learned counsel Sri Jagadesh Patil for the appellant and the learned Additional State Public Prosecutor Sri A. B. Patil for the respondent fully and perused the records of the case.
3. The case of the prosecution is as follows :-
That P.W. 1 Parashuram Vani, is the permanent resident of Waghawada village and he has got four brothers by name Mallappa, Pandu, Rajaram and Maruti. Mallappa - the eldest brother of the complainant was residing separately. But, all the other remaining brothers were living together and they were maintaining themselves by their agricultural occupation. In the year 1986-87 appellant was preparing country liquor and then Rajaram - the younger brother of the complainant was also selling liquor. The Excise authorities raided the shop of the appellant-accused No. 1. The appellant suspected that Rajaram was responsible for the raid on his shop and he was giving information to the police and therefore he developed enmity against Rajaram and the complainant and his brothers and he was giving threats to the complainant and his brothers. P.W. 1 had filed a complaint against A-1. The police warned the appellant. This enraged appellant and he started threatening that he would murder any one out of the P.W. 1 and his brothers. On 19-6-91 the complainant went to his land to attend to his agricultural work. At that time P.W. 2 Sarojini, who is the niece of P.W. 1 came to the land weeping and told that A-1 and A-2 along with others came behind the deceased and on seeing them they caught the deceased and A-1 fired with a country pistol at Maruti and the bullet also caused an injury to the little finger of her left hand. The deceased walked for some distance and fell down shouting in Marati, which is translated in Kannada in the land of Appaiah Naik. Immediately the complainant and P.W. 2 went to the land and some persons of the neighbouring lands came there. The deceased was lying in the field of Appaiah Naik and he had sustained injury below his right shoulder and he was bleeding heavily and he was struggling for life. P.W. 1 asked as to what happened, the deceased told that when he and P.W. 2 Sarojini were going on the Government road near the land of P.W. 18 and that A-1 Vithal and A-2 Pandu along with two others came from behind and chased him and A-1 with banduk in his hand fired at his back and he sustained bleeding injury on the right side of the back below the right shoulder. It is also the case of the prosecution that the deceased further told the complainant that there was no hope of his survival and should be immediately taken to the dispensary. But the complainant asked him not to lose hope and he tried to pour water into the mouth of the deceased taken from the ditch. But Maruti breathed his last at 12-45 p.m. The police were informed on phone by P.W. 4. P.S.I. came to the spot. P.W. 1 gave his complaint. The police registered the case and after the registration of the case, police started investigation after completing and investigation police filed chargesheet against the accused.
4. The trial court believed the evidence of the prosecution as against this appellant, who was accused No. 1. But it did not act on the evidence of the presecution so far as A-2 was concerned and A-2 was acquitted by the trial Court and the appellant was convicted for the various offences and sentenced to various sentences as mentioned above by us. By the mere fact that A-2 has been acquitted by the trial court it cannot be inferred that the trial court was not justified in convicting the appellant for the offences with which he has been charged. It is a well settled principle of law that witnesses can be believed in part and disbelieved in part. If the trial court has disbelieved the witnesses so far as their evidence against A-2 is concerned, that cannot be a ground for this Court to reach a conclusion that it was not justified in convicting accused No. 1. The State has also not preferred any appeal against the judgment of the trial Court acquitting accused No. 2. Therefore, we are not required to probe into that aspect of the case. But, this Court will have to see whether the judgment of the trial court suffers from any such legal infirmities such as misreading of the evidence, perversity in assessing the evidence, wrong approach to the law and facts of the case, to find out whether the trial Court's judgment against the appellant is sustainable in law.
5. The prosecution has relied on various pieces of evidence, which can be classified as follows :-
(1) The evidence on the point of motive. The witnesses on this point are P.Ws. 1, 4 and 5;
(2) The evidence of eye-witness, who is said to have been injured in the incident i.e. the evidence of P.W. 2;
(3) The dying declaration alleged to have been made by the deceased before P.Ws. 1, 2, 3, 4, 8 and 10;
(4) Abscondance of the accused which is based on the evidence of P.Ws. 18 and 19;
(5) Production of the country pistol M.O. 4 on the voluntary statement Ex. P-41 and the evidence in this regard consists of P.Ws. 6, 9 and 19. There is also the evidence of Ballestic Expert which the prosecution has relied upon to corroborate the evidence of the eye-witness.
6. Motive :- The case of the prosecution on motive is that the appellant who was doing the business of selling illicit liquor had a grudge against P.W. 1 and his brothers including Maruti the deceased as he suspected that Rajaram had given information to the police leading to the raid by the police on his shop. It is also the prosecution case that A-1 was warned by the police not to issue threats to P.W. 1. It is disputed in this case that P.W. 1 has got four brothers and the deceased Maruti was one of his brothers. P.W. 1 has deposed that during the year 1986-87 appellant was selling country liquor and A-1 suspected that Rajaram was responsible for the Excise authorities raiding his shop and he developed enmity against P.W. 1 and his brothers. Though it is the case of the prosecution that P.W. 1 had filed a compliant against A-1 that complaint is not produced on the basis of which the police had warned the accused not to indulge in threatening the deceased. There is no record produced to show that any criminal cases were pending between P.W. 1 and his brother on the one hand and the appellant on the other. The prosecution has not produced any documentary evidence to show that either there was any complaint given by P.W. 1 or that there was any prosecution launched against the appellant on the complaint of P.W. 1 and his brother. Even the incident alleged by the prosecution about the raiding of the shop of the appellant on the information of Rajaram was four or five years prior to the incident in question. It looks rather unnatural and improbable that the accused should have waited for such a long time to wreak his vengence on P.W. 1 and his brothers. Moreover, Rajaram was said to be the person who was responsible for informing the police about the illcit business of the appellant in country liquor. Therefore, the grievance should be against Rajaram and not against the deceased Maruti. Even the threat that is alleged to have been issued against P.W. 1 and his brothers appears to be somewhat unnatural in the sense that the appellant is alleged to have been threatened to kill one of the brothers. Either the appellant should have the motive to murder Rajaram who is alleged to have informed the police about the illicit business of accused No. 1 or he should have thought of liquidating all the brothers. There is no reason as to why particularly appellant developed enmity on the deceased out of the 4 or 5 brothers. The motive appears to be unnatural. We are aware that when there are eye-witnesses, the existence or non-existence, sufficiency or insufficiency of the evidence will not play a crucial role as it will do in any case which is based on purely circumstantial evidence. In this case the prosecution is also relying on other pieces of evidence. If those other pieces of evidence are found to be acceptable, the Court will not be justified in rejecting the prosecution case merely on the ground that it had failed to prove motive against the accused or the motive alleged against the accused does not appear to be natural.
7. The next piece of evidence that is relied upon is the evidence of injured eye-witness P.W. 2 Sarojini. It is not disputed that Sarojini is the niece of P.W. 1. P.W. 2 has deposed that on that day both she and her uncle Maruti had gone for grazing their cattle as her father was not keeping well and as there was holiday for her school on that day. She has also deposed that she took meals and left the house by 10-30 a.m. and when she and her uncle were going on the road for grazing the cattle and were near the land of Appayya Naik, A-1 Vithal Patil and A-2 Pandu Patil came from behind and on seeing the deceased A-2 abused him by saying in Marati, which on translation in English will mean "Bastard, found. Don't leave him", and the deceased started running. Then A-1 fired at the deceased with pistol at the instigation of A-2 and the bullet fired by A-1 hit the deceased on the right side of the back below the right shoulder and some pieces of the bullet also hit her little finger. It is further her evidence that the deceased crossed two paddy fields and felt down in the paddy field of Appayya Naik crying that he was dying and the time was 11-30 a.m. then. It is further her evidence that she got frightened and ran to the land of P.W. 1 Parashuram and told the incident to P.W. 1. Thereafter she and P.W. 1 came to the land of Appayya Naik and that some other persons namely Mallawwa Goral, Jayappa Hundre, Ganapati Hundre, Shanta Hundre, Pundalik Parit, Kallappa Belagaonkar also came to the spot and that P.W. 1 asked the deceased as to what had happened and that the deceased narrated the incident in which A-1 fired at him at the instigation of A-2 and deceased also asked P.W. 1 to shift him to Hospital immediately as there was no hope of his survival and that the deceased asked for some water and that P.W. 1 brought the stagnated water from the ditch and poured into the mouth of the deceased and he breathed his last. The entire prosecution case is based on the evidence of this witness. She is a child witness. She is a related witness in the sense that she is related to P.W. 1 and the deceased. But merely because she is an interested or child witness or related witness cannot be a ground for the court to discard her evidence. It is only a ground to be cautious in assessing her evidence. If after careful assessment of the interested and related and child witness, the Court finds that there is truth in that evidence, law does not prohibit the Court from acting on such evidence and basing conviction of an accused on such evidence. Therefore, the Court will have to assess such evidence very cautiously and carefully and can act on such evidence only if the possibility of this witness acting out of interestedness or relativeness or due to tutoring is clearly ruled out. P.W. 2 was a student studying in a school during that period. She has stated that she was attending the school and the school timing was from 7-30 a.m. to 1-30 p.m. and again from 2-30 to 5-00 p.m. According to this witness, she left the home taking cattle on that day at about 10-30 a.m. The reason for her taking cattle for grazing was that her father was sick and she had a holiday. Her father has not been examined in this case to corroborate her say that he was sick on that day and therefore her daughter took the cattle. If there were to be the school for this girl on that day, she would not have gone for grazing the cattle as the school timings of this witness were 7-30 a.m. to 1-30 p.m. Her evidence is that the incident was over by 11-30 a.m. We have seen the calendar for the year 1991 published by the High Court of Karnataka, the date of offence - 19-6-91 falls on Wednesday. We have also perused that calendar to find out whether 19-6-91 was a declared holiday fully or restricted. But, the calendar does not disclose that 19-6-1991 was a holiday. The Court is entitled to look to this calendar and take judicial notice of the fact that 19-6-91 was not a holiday declared by the Government of Karnataka. There is no evidence to show that on account of any local event like some festival, some `jatra' or any other such occasion the school was declared to be having holiday on that say. The evidence of this witness appears to be not true because when there was no holiday, the occasion for this witness to go with the deceased for grazing her cattle was not there. It looks unnatural and improbable that she should avoid the school and go for grazing the cattle which was done by her father when she was going to school. She has given the evidence that accused Nos. 1 and 2 came from the back side of the deceased, A-2 abused him and at the instigation of A-2, A-1 fired with the pistol at the deceased causing him injuries and the deceased walked for some distance and fell in the land of Appayya Naik. The specific case of the prosecution is that not only accused Nos. 1 and 2 followed the deceased but there were some other persons also who had followed the deceased and chased the deceased and they were also the persons who shared the common intention of accused No. 1 to murder the deceased. In Ex. P-1 the complaint P.W. 1 has mentioned that he and P.W. 1 has mentioned that he and P.W. 2 came running to the land of Appayya Naik along with Jayappa, Ganapati, Pundalik, Kallappa Mallawwa and Shantabai his brother Maruti was lying in the land of Appayya Naik with bullet injury on the right side of the back below the right shoulder and he was bleeding and shouting and on enquiry with him he told him that when he and Sarojini were coming on the Government road and when they came near the land of Appayya Naik suddenly Vithal Mahadev Patil and Pandu Ramagouda Patil and two others came from behind and on seeing him they told that they should not leave him and then he started running and then A-1 Vithal fired at him and he shouted that he was dying and he fell on that land. If the dying declaration that is mentioned in Ex. P-1 is perused there is reference to two other persons besides the two accused. But this eyewitness P.W. 2 does not whisper that two others were with the accused at that time. Therefore, her evidence contradicts the alleged dying declaration made by the deceased before P.W. 1 and others. This is a strong circumstance to make the court hesitate to act on the evidence of P.W. 2, because if she were to be the eye-witness she would not contradict the alleged dying declaration by not mentioning the two other persons who were stated to be involved in the offence as per the dying declaration of the deceased.
8. The learned Addl. S.P.P. has stressed on the fact that this witness is an injured witness and such a witness could not be concocted or created as she sustained injury on the little finger of her right hand due to the split pieces of the bullet. P.W. 2 has also spoken to this aspect. The prosecution is basing its contention on the bullet injury of P.W. 2 on the evidence of P.W. 14. P.W. 14 has deposed that she examined P.W. 2 on 19-6-1991 who had come there with the history of injury due to gun shot and she noted the injuries on her person. The injuries noted by her are as follows :-
"(Blood staining) lacerated wound 1 cm leniear injury, skin depth, on the dorsum of the little finger on the 2nd phalygn, bleeding present."
She has also opined that the injuries are simple in nature and might have been caused by hard and blunt substance. She has admitted in the cross-examination that the injury noted in Ex. P-27 can be caused if the girl while playing comes in contact with any hard and blunt object. In the cross-examination she has admitted that the CPI brought Ex. P-27 to the hospital and she endorsed her opinion on the back side. She has also admitted that as per the request of the CPI she has given her opinion as per Ex. P-27 (b). Her further evidence is that CPI has not brought any country pistol and she did not see any cartridge or any piece of cartridge before giving her opinion. She has further admitted that except the request of the CPI there was nothing before her to say that the injury noted in Ex. P-27 could have been caused by the cartridge. This witness has also stated that she cannot say as to what type of fire arm could cause the injury like in Ex. P-27. The evidence of this witness will not be safe to be acted upon as she has given Ex. P-27(b) without observing the cartridge or without there being any material for her to give her opinion in that way. The opinion given by any Expert must be based on some reasons. Here there are no reasons at all to support her opinion Ex. P-27(b). Ex. P-27(b) is an opinion without any reason given by this witness just to oblige the police. Form that evidence we cannot infer that the prosecution has proved that the injury sustained by P.W. 2 was due to gun shot. The injury could be caused if the girl came in contact with any hard and blunt substance during the play. Another thing to be noted is that as per the dying declaration of the deceased mentioned by P.W. 1 in Ex. P-1 the deceased ran for some distance along with P.W. 2. But P.W. 2 has not deposed in her evidence that when the deceased ran she also ran with the deceased. From the evidence and the dying declaration it appears that the A-1 did not fire shot immediately but after chasing the deceased for some distance he fired. But there is no evidence to show that P.W. 2 also followed the deceased in that chase. Therefore, there is no evidence that when A-1 fired the shot at the deceased. P.W. 2 was in such a close proximity to the deceased so as to sustain an injury on her finger by the gun shot. There are many omissions also in her evidence. But they are not proved in this case through the evidence of Investigating Officer. But the reasons discussed above are more than enough to reject the evidence of P.W. 2.
9. The next piece of evidence that is relied upon by the prosecution is the dying declaration that is alleged to have been made by the deceased before P.Ws. 1 and 2 and other persons who had come there. The evidence of P.Ws. 1, 2, 3, 4, 8 and 10 has been pressed into service by the prosecution on this point. The dying declaration is a piece of evidence which can be made basis for the conviction of the accused provided it is found to be natural, believable and free from legal infirmities. Rule of prudence and not rule of law requires that the dying declaration should be corroborated. If the dying declaration were to be true in this case perhaps that could have been the basis for convicting the accused. But the dying declaration is not free from infirmities in this case. P.W. 1 in his complaint Ex. P-1 has stated that the deceased told him as to how he came to sustain injuries at the hands of accused No. 1. As per that dying declaration there were four persons including the accused Nos. 1 and 2 and all the four persons chased him. If we come to the evidence of P.W. 1 before the Court he has stated that his brother told him that both the accused came from behind and A-2 told not to leave the deceased and thereafter A-1 fired at him. The point to be noted is there is no reference of the other two persons in the dying declaration about which P.W. 1 speaks in his evidence. Similar is the evidence of P.W. 2. She also does not speak about the other two persons. Even P.W. 3's evidence is also not to that effect. P.W. 4 says that Ganapathi came running to him and P.W. 3 told him that he learnt from deceased Maruti himself that A-1 fired at him with gun near the land of Appayya Naik. But there is no reference of the said two persons in his evidence. P.W. 8 has turned hostile and P.W. 10 is the doctor whose evidence will have to be considered at a later stage to see whether the prosecution could prove whether he was in a condition to give the dying declaration. The evidence of P.Ws. 1, 2, 3, 4 and 8 does not disclose that the dying declaration was to the effect that four persons including accused Nos. 1 and 2 were involved in that attack whereas in the dying declaration set up in Ex. P-1 - the complaint of P.W. 1 there is reference to four persons. Therefore, there is contradiction between the version of the dying declaration as set up in Ex. P-1 and the evidence of these witnesses. These witnesses while deposing before the Court have totally forgotten that the case of the prosecution that there were other two persons with the accused involved in the incident. Such a mistake could not have been committed by these witnesses if really their evidence regarding dying declaration by the deceased was true.
10. Now coming to the condition of the deceased to give the dying declaration, the evidence of P.W. 10 has to be perused. P.W. 10 Suchata is the doctor who conducted the p.m. examination over the dead body of Maruti and she has noted the following internal injuries :-
"Skull and vertebrae : intact. Brain cut section showed peticheal hemorrhage. Thorex compound fracture 8th and 9th ribs. right side.
2. pellets lodged in the inter-costal space in the lateral wall of the chest corresponding to be black mark outside. From the pleura cavity one pellet and rubber cork cylendrical (1 1/2 cms. x 1 cms. x Larynx and trachea - intact. Lungs - Rt. lung lower lob congested C.L.W. found in three in number in the lateral surface measuring 1) 4 1/2 cm x 1/2 cm., second one 5 cms x 1 cm and third one 3 cms x Rs cm. Two pallets 1/2 cm., dia meter extracted from the C.L.W. on lateral surface.
Heart - intact. All chambers are empty. Large vessels - intact. Abdomen - Wall intact. Mouth and pharyn and oesophagus - intact. Stomach contained rice particles. Small and large intestines contained gas and fluid. Liver pale. Two CL Ws 1) 8 cm x 2 cm., 2) 4 x 1/2 cm. on the supra lateral surface. Three perforated wounds on the anterior surface measuring 1/2 cms. in diameter."
In view of these injuries the prosecution ought to have elicited from the doctor that inspite of these three injuries the deceased was in a position to walk some distance up to the land of Appayya Naik and he was also in a position to give dying declaration. After sustaining such injuries whether it was possible for the deceased to walk some distance ? The evidence of P.W. 10 who conducted the post-mortem examination does not throw any light on this point. Therefore, there is no medical corroboration to the case of the prosecution that the deceasd was in a physical condition and was capable of walking some distance to the land of Appayya Naik and also make dying declaration before P.W. 1 and other witnesses. In view of these infirmities in the evidence we are of the opinion that it will be risky for the court to rely on such evidence regarding the alleged dying declaration.
11. The next piece of evidence that is relied upon by the prosecution is the abscondence of the accused and the voluntary statement made by the accused as per Ex. P-41 and in pursuance of the voluntary statement recovery of the country pistol M.O. 4 from the room which he was occupying. In view of the evidence of the eye-witness and the dying declaration found to be unacceptable mere production of M.O. 4 cannot be a ground to convict the accused. The Supreme Court in AIR 1977 SC page 1753 (Narsinbhai Haribhai Prajapati etc. v. Chhatrasinh) has held that where the evidence of eye-witnesses is totally unacceptable, mere presence of motive and recovery of blood-stained clothes and dharias with the accused were wholly insufficient for sustaining charge of murder. In this case we have found that the evidence of prosecution on motive and the evidence of P.W. 2 and the evidence in respect of the alleged dying declaration is not safe to rely upon. In such a situation on the basis of the alleged production of M.O. 4 by the accused No. 1 from his room cannot be a ground for the Court to hold that he is guilty of the offence of murder or causing hurt to P.W. 2. The evidence of the prosecution is not sufficient to prove beyond reasonable doubt that it is the appellant who used to carry the pistol for causing injuries to deceased Maruti resulting in his death and also injury to P.W. 2. The prosecution has relied on the evidence of P.W. 17, - N. G. Prabhakar, the Assistant Director of the Forensic Science Laboratory, Bangalore, who gave the opinion as per Ex. P-32. In Ex. P-32 the opinion of P.W. 17 is as follows :-
"1. The five live cartridges in Art. No. 4 were successfully test fired from the country made pistol in Art. No. 1. Hence the country made pistol in Art. No. 1 is in working condition.
2. The lead shots and wad in Art. No. 3 are the components of the 12 bore cartridge like in Art. No. 2.
3. As far as opinion with respect to Art No. 2 is concerned the same is herewith refrained as the origin of the live cartridge of the make of that of the spent cartridge is not available."
We have perused Ex. P-32. But there are no reasons given by the witness in support of his findings. The Court can refuse to place any reliance on the opinion of an expert which is unsupported by any reasons as held by the Supreme Court in (Haji Mohammad Ekramul Haq v. The State of West Bengal). Even in his opinion he has stated that he was refrained the opinion regarding Art. No. 2 which is the fire cartridge as the origin of the live cartridge and the make of that of the spent cartridge are not made available to him. Therefore, there is no concluding opinion by P.W. 17 that the fired cartridge was fired from this country pistol M.O. 4. He has also stated in his evidence that he made notes while examining M.O. 4 and the cartridge. He has also stated that his opinion Ex. P-32 is based on the notes prepared by him and the same is prepared in the exercise of his official duty. If those were the reasons for his opinion, those reasons ought to have been supplied to the defence. But, it is not disputed in this case that the said notes which according to P.W. 17 contained the reasons for Ex. P-32 were not supplied to the defence. Prosecution cannot make use of any material or evidence - the copies of which are not supplied to the defence to prepare him to meet the same. P.W. 17 has stated as follows :-
"It is true that M.O. 1 cartridge after firing cannot be ejected from the chamber of the weapon unless the weapon is broken open."
The post-mortem report was not sent to him and he saw the post-mortem report Ex. P.- 13 only at the time of evidence and thereafter he has given the range at the time. The shirt bears the lable of Delux Tailors, Belgaum'. Why a villager, who was maintaining himself by grazing cattle should have a shirt stitched by 'Delux Tailors of Belgaum' is also not explained in the prosecution evidence. The shirt is not examined by P.W. 17. In view of these infirmities in the prosecution evidence it will have to be held that the prosecution has failed to prove that M.O. 1 was fired through M.O. 4. In view of this finding recovery of M.O. 4 which is alleged to be in pursuance of the voluntary statement of accused No. 1 also will not come to the aid of the prosecution to prove its case for the offence punishable under Ss. 302 and 324, IPC.
12. Even the complaint Ex. P-1 appears to be clouded with suspicious circumstances. As per P.W. 1 this complaint was given by him to the P.S.I. on the spot. As per the prosecution case it was sent to the police station and it came to be registered at 16-15 hours on 19-6-91. The inquest report is Ex. P-14. The timings during which the inquest proceedings were held as mentioned in Ex. P.-14 is 15-35 to 17-30. That is the inquest proceedings went upto 5-30 on that day. P.W. 1 has specifically stated in his evidence that he gave the complaint after the inquest proceedings. If the complaint was given after the inquest it must have been given after 5-30 p.m. Then how it could reach the police station at 16-15 hours is a thing that has remained unexplained in the prosecution evidence. Even Ex. P-14 bears the crime number. There is no evidence to show that after the complainant was given the I.O. ascertained on phone from the S.H.O. as to what would be its number and thereafter he mentioned its number in Ex. P-14. There is no explanation forthcoming in the prosecution evidence. P.W. 16 has admitted that the P.S.I. who was in the police station upto 10 a.m. received the phone message at 10 a.m. But, according to the P.S.I. P.W. 18 he received the phone message at 2-30 p.m. He has stated that some one rang up to him about the incident about 2-30 p.m. and he tried to enquire but the receiver was put down immediately. P.W. 3 has given evidence that he informed P.W. 4 and others about the incident. P.W. 4 has also stated that he informed to the police. P.W. 18 the P.S.I. has deposed that he recorded the phone message in the station house diary. But the station house diary is not produced in this case. These circumstances are grounds for us to raise an adverse inference against the prosecution case. P.W. 16 has stated that the P.S.I. left the police station at 10 a.m. There is no evidence to show that the P.S.I. has returned to the police station after 10 a.. In that situation that he received the phone message at 2-30 p.m. becomes suspicious. The phone message which admittedly was received by the P.S.I. at 10 a.m. as per the evidence of P.W. 16 and the non-production of the station house diary containing the receipt of that phone message create doubt as to the very genesis of the prosecution case. We are doubtful whether the prosecution has put the true genesis at the case before the court in this case. The possibility of first complaint being suppressed also cannot be ruled out in this case. Taking into consideration all these aspects of the prosecution evidence it is obvious that it will be risky for any court to convict the accused on the basis of such evidence for the offence under Ss. 302 and 324, IPC. The trial court has failed to see these infirmities in the prosecution case and was wrong in convicting the appellant for the said offences.
13. So far as the offence alleged against the accused under the Arms Act the prosecution has failed to prove the sanction to prosecute the appellant. It has marked the said sanction through the evidence of P.W. 19. It is not sufficient proof of the sanction. The person who has granted the sanction should have been examined by the prosecution to prove the sanction granted in accordance with law. Moreover, the evidence of the mahazardar and the CPI. on this point is that the accused took the key from the upper portion of the door. This circumstance can lead to the inference that the accused was not in exclusive possession of the room. Key is kept in such a fashion in a particular premises which is visible to enable the other occupants also to open the door and make use of the premises. The prosecution has failed to prove that the said weapon has been used by the accused for the commission of the offences alleged against him. Therefore, even this charge levelled against the accused by the prosecution is not proved.
14. For the reasons discussed above, we proceed to pass the following order :-
The appeal is allowed. The judgment of the trial court convicting the appellant for the offences with which he is charged is set aside and the appellant is set at liberty forthwith, in this case.
15. Appeal allowed.