Karnataka High Court
State Of Karnataka vs Amjad Khan @ Amjad S/O Habeeb Ulla Khan @ ... on 2 December, 2011
Bench: D.V.Shylendra Kumar, C.R.Kumaraswamy
a
I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE h1D
02
DAY OF DECEMBER 2011
PRESENT
THE HON'BLE MR.JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE C R KUMARASWAMY
CRIMINAL APPEAL NO.1662/2006
BETWEEN:
STATE OF KARNATAKA
BY THE SUB-INSPECTOR
OF POUCE, CHAMARAJANAGAR
TOWN POUCE STATION,
CHAMARAJANAGAR
APPELLANT
(BY SRI P. M. NAWAZ, ADDL. SPP.)
AND:
1. AMJAD KHAN @ AMJAD,
SON OF HABEEB ULLA KHAN @ HABEEB,
AGED ABOUT 22 YEARS,
NO. 12/12, III CROSS,
K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
2. ZAKIR KHAN @ ZAKIR,
SON OF SARDAR KHAN,
AGED ABOUT 35 YEARS,
NO. 12/21, III CROSS,
K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
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I El
'p.
3. ZUBERA,
SON OF SADNA ULLA,
AGED ABOUT 20 YEARS,
I CROSS, K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
4. FAIROZ © MUNNA,
SON OF ABDUL WAHAB © WAHAB,
AGED ABOUT 28 YEARS,
NO. 12/239, I CROSS,
K. P.MOHALLA,
CHAMARAJANAGAR TOWN.
5. AFSAR,
SON OF ABDUL WAHAB © WAHAB,
AGED ABOUT 24 YEARS,
NO. 12/239, III CROSS,
K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
6. ZAKA ULLA,
SON OFABDULWAZEERSAB
AGED ABOUT 38 YEARS,
I CROSS, K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
7. ZAKRIA,
SON OF ABDUL SUBHAN,
AGED ABOUT 28 YEARS,
K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
8. SANA ULLA,
SON OF ABDUL WAZEER SAB,
AGED ABOUT 42 YEARS,
I CROSS, K. P. MOHALLA
CHAMARAJANAGAR TOWN
9. MOHAMMED ASGAR © WAHAB,
SON OF ABDUL WAHAB © WAHAB,
AGED ABOUT 37 YEARS,
NO. 12/239, I CROSS,
(di
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3
K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
10. MOHAMMED PARIKH,
SON OF MOHAMMED ASGAR
@ ASGAR,
AGED ABOUT 20 YEARS,
NO. 12/239, I CROSS,
K. P. MOHALLA,
CHAMARAJANAGAR TOWN.
11. SYED ZABI ULLA,
SON OF SYED IBRAHIM,
AGED ABOUT 34 YEARS,
I CROSS, K. P. MOHALLA,
CHAMARAJANAGAR TOWN. ... RESPONDENTS
(BY SRI N. V. VIJAY, ADV. FOR Ri TO Ru)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378 (1) AND (3) OF THE CODE OF CRIMINAL
PROCEDURE AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 29.04.2006 PASSED BY THE
LEARNED PRESIDING OFFICER, FAST TRACK COURT,
CHAMARAJANAGAR IN S. C. NOS. 146/2004, 364/2004,
420/2004 AND 36/2005 THEREBY ACQUITTING THE
RESPONDENTS -ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 144, 147, 148,
120 (B) AND 302 R/W 149 I. P. C. AND SECTIONS 3
AND 25 OF THE ARMS ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, KUMARASWAMY J., DELIVERED
ThE FOLLOWING:
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JUDGMENT
This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to file an appeal against the judgment and order of acquittal dated 29.4.2006 passed by the Presiding Officer, Fast Track Court, Chamarajanagar, in S.C.No.146/2004 (old S.C.No.360/04); S.C.No.364/2004 (old S.C.No.39/04), S.C.No.420/04 (old S.C.No.144/04) and S.C.No.36/05 acquitting the accused Nos. 1 to 12 for the offence punishable under Section 120-B IPC, accused Nos.2 to 8 for the offences punishable under Sections 143, 144, 147, 148 and 302 read with Section 149 of Indian Penal Code and accused No.2 for the offence punishable under Section 25(1B) (A) (AB)of the Arms Act, 1959.
2. The contents of the complaint is as under:
That on 7.7.2000 at about 4.45 p.m. in front of the house of Khaleel, Chamarajnagar Town, accused Nos. 1 to 8 formed themselves into an unlawful assembly holding deadly weapons like gun, pistol and chopper with a common intention of committing murder 5 of Fayazulla due to previous enmity, picked up quarrel with the complainant brother Fayazulia and threatened him that he would kill him and accused No.2 fired towards Fayazulla by means of a gun and the bullets pierced in his shoulder and chest consequently he sustained bleeding injuries.
On the basis of the complaint of Mohammad Sabulal © Sabulal, Chamarajnagar Town, a criminal case came to be registered as Crime No.74/2004 by the Sub Inspector of Police, Chamarajanagar Police Station, against accused Nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 506, 307, 302 read with 149 Indian Penal Code.
At the first Instance, the injured was taken to the Government Hospital at Chamarajanagar Town for the treatment and subsequently for higher treatment. While he was being shifted to Government Hospital at Mysore on the way near Nanjangud, he succumbed to the injuries. On the basis of the death memo sent by the doctor, Section 302 of Indian Penal Code was also 6 added in the Cr.No.74/2004 of Chamarajanagar Police Station.
The Investigating agency after completion of the investigation, filed charge sheet against accused Nos.1 to 12 for the offences punishable under Sections 143, 147, 148, 120B, 302 read with 149 IPC and Sections 3 and 25(1B)(A)(B) of the Indian Arms Act, 1959.
3. The contents of the charge sheet is as under:
"Accused Nos.1 to 12 were the residents of Chamarajnagar Town Police Station. There was a political rivalry between the children of charge sheet witness No.25 and the accused. A few days back, there was a quarrel between accused Nos.2, 7 and 10 and the son of charge sheet witness No.25 and there was also an attempt to kill him and this incident took place on
4.7.2000 at 6.30 p.m. It is further mentioned in the charge sheet that on 7.7.2000 at about 4.45 p.m. when Fayazulla @ Fayaz LI.
Sr S• -- --. --. --. --
7son of C.W.25 was proceeding towards KSRTC bus stand, accused Nos.1 to 8 conspIred and formed themselves into an unlawful assembly and accused Nos.2 and 3 were holding guns, accused Nos.1 and 4 to 8 were holding chopper, picked up quarrel with Fayaz and accused No.2 fired at Fayaz by means of a gun. It Is further stated that accused Nos. 1 to 12 conspired together with an intention to kill Fayaz and formed an unlawful assembly holding deadly weapons like gun and chopper; picked up quarrel with Fayaz and accused No.2 without possessing any license has fired towards Fayaz and killed him."
4. PW1 Is the complainant and brother of the deceased, who is a lone witness, who has supported the case of the prosecution.
5. PW5.2, 3 and 7 are the eye witnesses. They have turned hostile to the side of the prosecution. Nothing is elicited in their cross-examination to discredit their evidence.
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6. PW4 is the inquest panch witness. PWS -- Rahamatuila, speaks about the motive and also about the earlier incident.
7. PW6 -- Salfuila @ Saifu is the owner of the garage. He states that he saw the dead body at the time of inquest panchanama. He does not know about the cause of death of death of deceased. This witness has turned hostile to the side of the prosecution. Though he was cross examined by the learned State Public Prosecutor, nothing is elicited to disbelieve his evidence.
8. PW8 -- Ayub Pasha, has deposed that he knows the accused and PW1's elder brother Fayaz. He states that PW1's brother Fayaz was murdered. He states that about 5 years back, in the evening at about 6.00 p.m. when he was in his house, his mother told him that she had received a telephone call about the gunshot injury sustained by Fayaz. Then he proceeded to the Government Hospitai, Chamarajanagar and found that Fayaz was made to sleep in a stretcher and he was (7
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9 breathing. He had sustained injury on the left shoulder. Thereafter, he aiongwith the family members of Fayaz made arrangements to shift the injured In an Ambulance to Government Hospital, Mysore. While he was being shifting, he died. The injured mother tried to pour water Into his mouth, but he could not drink the water. Then, the injured was taken to Government Hospital, Nanjangud. There, the doctor declared that he has dead. Then, they all came back to Government Hospital, Chamarajanagar. He further deposed that there was political rivalry between the accused and deceased. He states that due to the political rivalry, this incident has occurred.
9. PW9 -- AIim Ulia has deposed that he does not know as to what was the reason for the death of Fayaz. This witness has turned hostile. During his cross examination, nothing is elicited to discredit his testimony.
10. PW1O -- Mohammed Khalim @ Khalim Ulla was running petty shop. He has deposed that on L/.
c-a ••- -
-- ••----.--.eu--:. .fl --
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07.07.2000 in the evening, no incident had taken place. He further deposed that he has not made any statement before the police. This witness has turned hostile to the side of the prosecution.
11. PW11 -- Jakaulla is the brother of PW6. He came to know about the death of Fayaz through his mother. He states that the police have not recorded his statement. This witness is also turned hostile to the side of the prosecution.
12. PW12 -- Mustaq is the witness for seizure of the pellets panchanama-Ex.P11. This witness has also turned hostile to the side of prosecution.
13. PW13 -- Inayuthulla, is the younger brother of deceased Fayaz. He has deposed about the political rivalry between the accused and the deceased. He also speaks about the shifting of Injured from Government Hospital, Chamarajanagar to Government Hospital, Mysore. He states about the gunshot Injury sustained by the injured and he also states that while the injured was being shifted from Government Hospital, cJ 11 Chamarajanagar to Mysore, near Nanjangud, he succumbed to the injuries. During the cross examination, the suggestion put to him were all denied.
14. PW14 -- Mohammed Sabulal alias Sabuial is the father of the deceased. He has deposed that he came to know about the incident from PW3. Then he proceeded to the Government Hospital, Chamarajanagar, then he came to know that his son Fayaz was shifted to Government Hospital, Mysore.
15. PW15 -- Maliaiah is the driver of the Ambulance. He has deposed that on 07.07.2000 at about 4.15 p.m. he received a caii from Government Hospital, Chamarajanagar and thereafter, he went to the hospitai and took the injured and his family members to K R Hospital, Mysore. While he was being shifted to major Hospital, he died. Thereafter, he was taken to the Government Hospital, Nanjangud. The doctor deciared that he is dead. Again, they went to Government Hospitai, Chamarajanagar.
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16. PW16 -- Kalim is the seizure mahazar witness. He has deposed that he does not know about the seizure of pant -- M09 and shirt -- MOlO under Ex.P13. This witness has turned hostile to the side of the prosecution.
17. PW17 -- Zameer Is the auto driver who shifted Fayaz from the spot of offence to Government Hospital, Chamarajanagar. This witness has turned hostile to the side of the prosecution.
18. PW18 -- Syed Imran has deposed about the seizure of blood stained stone and mud and sample of stone and mud. The spot was inspected and mahazar was drawn as per Ex.P2.
19. PW19 -- Mustaq has deposed that about 5 years back Fayaz died due to gunshot injury. He states that Fayaz had sustained gunshot injury on his left shoulder. He states that the bullets were sent to FSL, Bangalore for examination and a mahazar was drawn to that effect as per Ex.P11. He states that about 15 small pellets were seized.
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20. PW2O -- Sathish has deposed that on 07.07.2000 at about 4.30 p.m. when he was in his house, he received a message from Ahmed that Fayaz had sustained injury and he had been shifted to Government Hospital, Chamarajanagar. The distance between the hospital and his house is about ¾ kms. Then he proceeded to the hospital and saw Fayaz. Fayaz had sustained gun shot injury to his left shoulder. On the instructions of the doctor, he aiongwith the family members of Fayaz made arrangements to shift the injured to K R Hospital, Mysore. While he was being shifted, he died. This witness has turned hostile to the side of the prosecution.
21. PW21 -- Iqbai Ahmed is the eye witness. He has deposed that about 3 to 4 years back, when he had been to the house of his daughter at Chamarajanagar, at about 4.30 p.m. when he was going near KSRTC bus stand, he saw some persons holding sword and one person brought Fayaz near accused No.2 and he fired Fayaz by means of a gun and Fayaz sustained injury to £1 14 his left shoulder. He further deposed that he does not know the name of accused No.2 but he can identify him. He further deposed that somebody took Fayaz in an autorlckshaw to the hospital. He states that he does not know the reason as to why accused No.2 fired towards Fayaz. This witness has turned hostile to the side of the prosecution. During the cross examination by Public Prosecutor, the suggestion put to him were all denied.
During the cross examination of the defence Counsel appearing for accused Nos.2 and 3, he states that when the incident took place, he was present at a distance of 60 feet.
22. PW22 -- Nisar Ahmed is the eye witness. He has turned hostile to the side of the prosecution. PW23
-- Rahis Ahmed is the panch witness for seizure of chopper as per Ex.P19. This witness has turned hostile to the side of the prosecution. PW24 -- Syed Afzal is the witness for seizure of chopper as per Ex.P20 at the C! '5 instance of accused No.7. ThIs witness has turned hostile to the side of the prosecution.
23. PW25 -- Syed KhalIi is the lorry driver. He is also the witness for seizure of chopper as per Ex.P20 at the Instance of accused No.7. This witness has also turned hostile to the side of the prosecution. PW26 -- Hasina Banu has deposed that she knows the accused. She states that about 4 to 5 years back, Fayaz died, but she does not know how he died. This witness has turned hostile to the side of the prosecution.
24. PW27 -- P Srlnivas is the Circle Inspector, Chamarajanagar Police Station. He has deposed that on 13.12.2000 PW5 -- Rahamathulla appeared before him and gave complaint. On the basis of the complaint, Crl.No.4/2000 was registered.
25. PW28 -- K Annappanayaka Is the Police Inspector, Chamarajanagar Police Station. He has deposed that on 17.04.2004 at about 1.30 p.m. when he was on his duty, he received a message that accused No.2 was In his house. Then, he aiongwith two persons £7 I 16 went to the house of accused No.2 and apprehended him and brought him to the police station. Then, he recorded the voluntary statement of accused No.2 as per Ex.P23. Accused No.2 has stated that he would point out the place whether he concealed the gun. Then, he secured the panchas and they went alongwith the accused No.2 where the gun was concealed. Then, accused No.2 went to the backyard of his house and dug the mud and removed one SBBL gun and handed over the same to the investigation officer. He also seized M07 -- half portion of empty cartridge and he drew mahazar to that effect as per Ex.P24. MOl and 7 were subjected to the property form No.52/2004. Then, he produced accused No.2 before the JMFC Court, Chamarajanagar. He states that on 17.05.2004, MOl and 7 were sent to FSL, Bangalore. He recorded the statement of Probationery Sub Inspector Srl.N Kirankumar and the Police Constable Sri.H C Shankar. He states that he received the report from FSL, Bangaiore on 24.05.2004. He drew a mahazar to that U S '7 effect as per Ex.P25. Though this witness was cross examined, noting is elicited to discredit his testimony.
26. PW29 -- H C Shankar, is the Police Constable, Chamarajanagar Police Station. He was entrusted with the duty of watching the dead body on 07.07.2000. As per the Instruction given by his superior officer, he handed over the apparel of the deceased to the investigation officer after postmortem examination. He states that on 17.04.2004, he alongwith PW28 and Probationary Sub Inspector went to the house of accused No.2 and apprehended him and brought him to the police station and recorded his voluntary statement. Accused No.2 gave voluntary statement to the effect that he would point out the place where the gun was concealed. Then, they all went to the house of accused No.2. Accused No.2 went to the backyard of his house and dug the mud and removed one SBBL gun and handed over the same to the investigation officer. He also seized M07 -- half portion of empty cartridge and he drew mahazar to that effect as per Ex.P24. During 18 the cross examination, the suggestion put to him were all denied.
27. PW3O -- Athifulia Khan speaks about the seizure of M02 -- one country made gun from accused No.3. This witness has turned hostiie to the side of the prosecution. PW31 -- Athaulla is the seizure panch witness In respect of seizure of peliets from accused No.3. This witness has turned hostile to the side of the prosecution.
28. PW32 -- Shashikumar is the Police Constable of Chamarajanagar Police Station. He has deposed that accused No.3 was arrested and produced before him by his staff. He recorded the voluntary statement of accused No.3. M02 -- one country made gun was seized at the instance of accused No.3.
29. PW33 -- Ajaz Pasha has deposed that on the instruction of the police, he went to the house of accused No.2. Accused No.2 produced the gun by digging the mud In the backyard of his house. Then the police seized MOl- gun, M07 -- one broken half empty I 19 cartridge and M08 -- one polythene sheet used for wrapping MOl and they drew mahazar to that effect as per Ex.P24 and he had affixed his signature to Ex.P24.
30. PW34 -- Samiulla speaks about the seizure of M09 -- pant and MOlO -- shirt of the deceased as per Ex.P13. PW35 -- Athaulla Khan has deposed about the seizure of chopper as per Ex.P19. This witness has turned hostile to the side of the prosecution.
31. PW36 -- H B Mahadevegowda is the Head Constable of Chamarajanagar Police Station. He has deposed that on 08.07.2000, he arrested accused No.4 and on 09.07.2000, he arrested accused Nos.7, 9, 11 and 12 and produced them before the Police Inspector on 24.08.2000. As per the instructions of the police inspector, he went to the Government Hospital, Chamarajanagar and collected the pellets from Dr.Srinivasamurthy and handed over the same to the police inspector.
32. PW37 -- Abdul Rehman speaks about the seizure of chopper as per Ex.P31. This witness has also C, 20 turned hostile to the side of the prosecution. PW38 -- Rihan is also the witness for seizure of chopper and he has also turned hostile to the side of the prosecution. PW39 -- Nazir Khan Is the witness for seizure of MOl -- one SBBL gun from accused No.2 as per Ex.P24. This witness has turned hostile to the side of the prosecution.
33. PW4O -- Mahadevarao Pawar is the Sub Inspector of Police, Chamarajanagar Police Station. He has deposed that on 07.07.2000 at about 5.00 p.m. he received a wireless message from the Police Inspector Llngaiah that near K P Mohalla some bustle had taken place and he requested him to come to the spot. Then, he went to the spot and noticed that one person had been injured by gunshot and he was shifted to Government Hospital, Chamarajanagar. Then he went to the hospital and came to know that for higher treatment, the injured was being shifted to K R Hospital, Mysore. He went near the injured and noticed that he was not In a position to give statement. Hence, he could not record the statement of the injured. Then he & 21 went to the police station, by that time, PW1 was there in the police station and he gave complaint as per Ex.P1. Then on the basis of Ex.P1 he registered the case in Cr.No.74/2000 for the offences punishable under Sections 143, 147, 148, 506 and 307 read with Section 149 of Indian Penal Code and under Sections 3 and 25 of Indian Arms Act. He sent Ex.P32 - FIR to the JMFC Court, Chamarajanagar through PC 2538 and sent the xerox copy of FIR to his superior officer. Then, he proceeded to the spot and drew spot panchanama as per Ex.P2 and seized Mos3 and 4. Then, he directed the staff to apprehend the accused and went to the poiice station. MOs.3 and 4 were subjected to the property form No.52/2000. At about 8.30 p.m. an employee of the Government Hospitai, Chamarajanagar came to the police station and he gave a Medico Legal Memo to the police inspector which is marked as Ex.P33. In Ex.P33 it was mentioned that the injured died while he was being shifted at about 7.00 p.m. It was also mentioned that the dead body was kept in a Government Hospital, Chamarajanagar. He further states that as per Ex.P33, he added Section 302 of Indian Penal Code in ExP32 FIR and drew mahazar as per ExP34 and sent the same to the Court of JMFC, Chamarajanagar through PC 2538 and sent xerox copies of Ex.P34 to his superior officer. He further states that he handed over the case papers to SrLLLingaiah, Police Inspector for further investigation. He further states that since SrLLLingaiah has dead, on the basis of the case diary he speaks about investigation made by deceased L. Lingaiah. He had drawn ExP5 -- inquest panchanama on 87.2000. He states that on 0L072000, Sri.LLingaiah, Police Inspector deputed two police constables to watch the dead body and he recorded the statement of PW8 Ayub Pasha and he recorded further statement of PW1 Mohammed AU. On the basis of the statement recorded, he apprehended accused Nos9 to 12. On 08072000, staff of the Police Station produced accused No4 before deceased LLingaiah. He recorded the voluntary statement of accused No4 as per ExP35. Accused No.4 has stated before the deceased Investigating Officer, he would show the place where he 23 had concealed the chopper." In pursuant of the voluntary statement of accused No.4, they seized the chopper and drew mahazar as per Ex.P19. He also sent the pellets to the FSL. He also recorded the statement of witnesses. Exs.P40 to P42 were the FSL reports.
34. PW41 -- Dr.P Srinivasamurthy, is the medical officer who conducted the postmortem examination on the dead body. He has deposed that there was gunshot Injury on the left shoulder of the deceased. He states that he found multiple entry wounds seen all over the left anterior part of anti axillary fob and left shoulder joints with upper 2/3 of the upper arm area measurIng 8" X 8". Each injury measuring ½ cm x ½ cm some of them are clubbed together measuring 1cm x 1cm and one bigger wound measuring ½" x ½". Blood was oozing out of the wound. A bums area of 2" X 1" seen above in left nipple. He states that he removed 16 pellets from the left upper arm. He has opined that the death was due to shock and hemorrhage as a result of injury to vital organs. He further states that bullets must have fired C,.
at a distance of about 20 to 25 feet. Except, eft shoulder there was no other injuries found on the dead body. He knows little knowledge about the fire arms. He denies the suggestion put to him that there was an accidental fire.
35. PW42 -- N G Prabhakar is the Assistant Director, FSL, Bangalore. He is a ballistic expert. He has deposed that he had examined more than 5000 fire arms. On 18.05.2004, he examined the articles pertaining to Cr.No,74/2000 of Chamarajnagar Police Station. Seals were intact. He states that in one packet there was MOl SBBL gun. It was manufactured at Jahuri and Sons company, In another packet, there was half used empty cartridge which is marked as M07.
During his cross examination, he states that MOl is the legally manufactured weapon. He further states that bullets have been fired from MOl. MO1 was in order. MO2 was fired from M01. Fire length is 40 feet. During his cross examination, he clearly admits that M07 were small pellets. Pellets were not sent for examination. He cannot say as to how many days back, the bullets were fired from MOl. Ex.P25 is the ballistic expert report.
36. The statements of the accused were recorded. Accused had denied the prosecution allegations. Further, accused No.2 has indicated that he was alongwith his father in the hospital and they have stated that they have no defence evidence. However, at the later stage, the defence has examined one witness i.e., mother of accused Nos.1 and 2. She has deposed that her husband was in a coma stage at Mission Hospital, Mysore from 06.07.2000 to 09.07.2000 and accused Nos.2 and 3 were at Mysore, Mission Hospital. Suggestion put to her that accused Nos.2 and 3 were not there at Mission Hospital, were all denied,
37. The sum and substance of the finding of the Trial Court is as under:
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The Trial Court has observed during the cross examination of PW1 that gun was shot at a close range i.e., from a distance of 10 feet. This portion of his evidence will have to be appreciated alongwith the evidence of PW41. According to PW41 gunshot was fired from a distance of about 25 feet. Thus there is discrepancy between the evidence of PW1 and PW41. PW1 has deposed that subsequent to the gunshot Fayaz fell down and accused Nos. 1 to 8 ran away. The Trial Court has also further observed that PW1 was really present at the scene of offence is the matter to be appreciated with care and caution. The evidence of DW1 who is the mother of accused No.2 shows that the father of accused No.2 (husband of DW1) was admitted at Mission Hospial, Mysore and that the father of accused No.2 died in the said hospital on 09.06.2000. The fact that the father of accused No.2 was admitted to Mission Hospital, Mysore is not in dispute. Her evidence also shows that her husband was in a coma stage till his death. Thus attempts are made on behalf of accused Nos.2 and 3 to establish their plea of alibi. The natural 27 conduct of a son cannot be forgotten. The Trial Court has also observed that cross examination of PW33 shows that the deceased is distant relative of his wife. Therefore, it is difficult to believe that he is an independent and unbiased witness. When his evidence Is appreciated alongwith the evidence of PW28, it is difficult to believe that he was present at the time of recovery of MOl, 7 and 8. The Trial Court has further observed that there Is discrepancy regarding the time of drawing of mahazar Ex.P24 regarding recovery of Mos.1, 7 and 8. The Trial Court has also observed that mode of recovery of M02 appears to be little artificial and therefore, it has to be held that the prosecution has not established the recovery of M02 on the information of accused No.3. The Trial Court has also observed that the evidence adduced by the prosecution about the recovery of Mos.1 and 2 and one chopper is not convincing and therefore, all these things have remained not proved. The Trial Court has also observed at para 26 of the judgment that the evidence of PW42 N G Prabhakar the Ballistic Expert though shows that C-, a • 4 28 Mosi and 7 were examined by him and that he found the symptoms of gun shot from MOl and equally from M07 his evidence In cross examination shows that he cannot state the period at which MOl was used with M07. Though it is found in his evidence that there was gun shot from MOl his evidence is of no assistance to establish that there was discharge from M07 through MOl on 09.07.2000. The Trial Court has also observed that though It is established that accused No.2 dId not possess gun licence there is no evidence to show that accused No.2 possessed M02. The Trial Court was of the opinion that due to political enmity between the parties, false implication of the accused cannot be ruled out. The prosecution has failed to bring home the guilt of accused Nos.1 to 12 beyond reasonable doubt for the offences charged. Therefore, they were acquitted by extending the benefit of doubt.
38. Feeling aggrieved by the same, the State has preferred this appeal.
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39. We have heard learned Addi. State Public Prosecutor for the appellant as well as learned Counsel for the respondents. We have perused the Trial Court records.
40. Learned AddI. State Public Prosecutor submits that the incident took place on 07.07.2000 at about 4.40 p.m. The complaint was lodged at about 5.30 p.m. and the crime was registered. PW1 -- the brother of the complainant is the eye witness who has lodged the complaint. PW1 has specifically states the overtact of accused No.2 and also the presence of accused Nos.1 to 8 at the spot. Accused No.2 was absconding for over a long time after the commission of offence. He was arrested on 17.04.2004. In pursuance of his voluntary statement, MOl SBBL gun was recovered from the backyard of his father's house. MOl to 7 were sent to FSL. Ex.P25 -- the report of FSL lent supports to the prosecution case. The evIdence of PW1 is corroborated with the medical evidence. The injury mentioned by the doctor as well as the evidence of eye witness I.e., PW1 tallies. There was political rivalry 30 between the accused and the deceased and his relatives. There is conspiracy by the accused to kill the Fayaz. PW33 the panch witness speaks about the seizure of MOl - SBBL gun and M07 -- half used empty cartridge. The investigating officer speaks about the seizure of chopper from the accused.
41. Sri.P.M.Nawaz, learned Addi. State Public Prosecutor has vehemently urged that the Trial Court has not properly appreciated all the evidence. The Trial Court has not properly appreciated the evidence of PW1 in a proper perspective. The evidence of PW1 is corroborated with the evidence of PW21 so far as the overtact attributed against accused No.2 is concerned.
42. Learned Counsel for the respondents- accused submits that there is considerable delay in reaching the FIR to the Magistrate. This creates a doubt in the case of the prosecution. He further submits that the place of incident is disputed. The investigation does not reveal about the definite place of incident. PW21 Is a chance witness. The evidence of C, I a 3' PW21 is not trustworthy. Even the recovery has not been established by the prosecution. The recovery is belated. Therefore, no credence can be given to the recovery of MOl after 4 years. No steps regarding proclamation under SectIon 82 of Cr.P.C and attachment of property were initiated in the Trial Court against accused No.2 and other absconding accused. It is also his contention that accused were very much available and the police have failed to apprehend them. The presence of PW1 at the spot is doubtful. He is highly interested witness. The evidence of PW1 is not corroborated with the expert evidence i.e., ballistic expert. Scribe of the complaint Ex.P1 was not examined. Therefore, it creates a doubt about the contents of complaint. The presence of PW1 at the hospital where the deceased was being treated at Government Hospital, Chamarajanagar also creates a doubt about the prosecution case and the genuiness of the complaint as PW1 has admitted In his cross examination that he went to the police station after attendIng to deceased brother in the hospital, wher eas (7 • 32 the crime is registered at about 5.30 p.m. in the hospital.
43. The point that arises for our consideration in this appeal is:
"Whether the finding recorded by the Trial Court calls for Interference or not?"
44. Our answer to the above point is as under
for the following reasons:
In this case, the incident occurred on 07.07.2000 at about 4.45 p.m. Cr.No.74/2000 was registered at about 5.30 p.m. and the FIR was received by the learned Magistrate on 08.07.2000 at about 4.00 a.m. through PC No.2538 of Chamarajanagar Town Police with enclosure. No proper explanation is forthcoming by the prosecution as to why there was delay in sending the FIR to the learned Magistrate. Even the FIR carrier i.e., PC No.2538 -- CW39 has not been examined in this case. No plausible explanation Is forthcoming by the prosecution as to why he was not examined.
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45. In this case, the material witness Is PW1 is the complainant. He has deposed In his evidence that he was in judicial custody for the past 9 months and he was brought from jail to given evidence in this case. He was working as a lorry cleaner. He has deposed that he know accused Nos.5 to 11. He has further deposed that on 07.07.2000 at about 4.00 p.m. he was in the house. His elder brother Fayaz went out of the house to bring TVS moped. After 15 mInutes, Nizam came and told that accused Nos.1 and 3 assaulted Fayaz. Thereafter, he proceeded to the place where the incident took place. He has further deposed that accused Nos.1 to 8 were abusing his brother and accused No.2 fired at his brother Fayaz, by means of gun, due to the gunshot, Fayaz has sustained injury on his left shoulder. Immediately, Fayaz fell down. Then injured was shifted to Government Hospital, Chamarajanagar, then somebody wrote the complaint and he affixed his left LTM and then he handed over the same to Sub Inspector of Police. Accused No.3 was also holding pistol. He had identified MO1-SBBL gun. He further 34 deposed that his elder brother is working for BJP. There was political rivalry between them in connection with assembly election. In that election, BJP candidates have won. During his cross examination, he states that accused Nos.1 to 8 were abusing Fayaz and when he went to the spot Fayaz had not sustained any injury. Since he was surrounded by the accused, he could not come near his brother. He is unable to tell who wrote the complaint. He has presented the complaint to the Police between 5.00 p.m. to 5.15 p.m. His elder brother Fayaz has sustained injury on his left shoulder. When his brother died, it was about 7.00 p.m.
46. In the present case, PW1 has clearly states in his chief examination that his elder brother went to take Moped. After 15 minutes of his brother left the house, Chotu S/o Nizam came and told that accused Nos.1 to 8 were assaulting Fayaz. Thereafter, PW1 went to the spot and saw accused No.2 firing towards Fayaz, but the evidence of PW1 is not corroborated with the evidence of PW3 who is also the eye witness. This witness has turned hostile. Though there is an evidence * St 35 to the effect that accused No.2 fired SBBL gun towards Fayaz, consequently, Fayaz sustained injuries to his left shoulder, but the SBBL gun was seized after lapse of four years. The pellets which were removed from the body of the deceased were not sent for the examination of the ballistic expert to ascertain whether the pellets were fired from the SBBL gun - MOl. The expert witness does not speak anything about this aspect. Therefore, the evidence of PW1 is not corroborated with the evidence of ballistic expert. On careful appreciation and appraisement of the evidence of PW1, it is clear that Chotu came and Informed PW1, then, he went to the spot by that time, accused Nos. 1 to 8 were present and Fayaz was also present. It is in the evidence of PW1 that accused No.2 fired Fayaz after he went there. Even the scribe of the complaint has not been examined in this case. The complaint reveals that the Jakir and Jakria were holding the pistol. In the further statements of the complainant which was recorded by CW56- L.Ungaraj, the complainant states at the time when the complaint was written, due to the inadvertence he LI t.
-S stated that )aklr and Jakria were holding the pistol but at the time of bustle Jakir was holding one small gun and Jakria was holding chopper.
47. In order to elicit contradiction and omission on part of the testimony of the complainant, Charge sheet Witness 56 was not available for cross- examination since he is dead. The complainant gives different version. There is inconsistency in the evidence of PW1 when compared to FIR regarding holding of weapon by the other accused. This creates a doubt about the presence of PW1 at the spot. Further there Is political rivalry and deep enmity between the accused and deceased and his relatives and some of the prosecution witnesses. The evidence of PW1 is not corroborated with the evidence of other eye witness. PW21 though has stated in his chief examination that he saw accused No.2 firing towards Fayaz, but he further states in his chief examination that he does not know the name of accused No.2. Though this witness has stated that he will be able to identify the accused No.2 'I 4 et .3 but no test identification parade is conducted by the Investigating Agency. Besides, this witness has turned hostile and his evidence may not be useful to the case of the prosecution to establish his case. PW1 does not say anything about holding of chopper by the other accused, but whereas PW21 states that other accused were holding chopper. There is inconsistency in the evidence of PW1 and PW21.
48. Though in the evidence of doctor - PW41, the pellets were removed from the dead body but those pellets were not sent for examination to the ballistic expert. The pellets which was fired from MOl has not been sent for examination of the ballistic expert. PW1 does not speak about the shooting range. During the cross examination of Assistant Director, Forensic Science Laboratory, Bangalore - PW42 clearly admits that the pellets were not sent for. He cannot state about how many days back the pellets were fired from the MOl.
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49. The High Court will always give proper weight and consideration to such matters as the credibility of witnesses, the presumption of innocence in favour of the accused, which is further reinforced by his acquittal by the trial Court, the right of the accused to the benefit of the any doubt and the slowness of an appellate Court in disturbing a finding of fact arrived at by the trial Judge, who had the advantage of seeing the witnesses.
50. In this case, the Trial Court has appreciated the evidence and came to a conclusion that the evidence adduced by the prosecution has not proved its case beyond reasonable doubt and it has given benefit of doubt in favour of the accused. We are of the view that the finding recorded by the Trial Court is sound and proper. Therefore, we do not find any grounds to interfere with the findings recorded by the Trial Court.
51. In view of the above discussion, we pass the foilowing:
• S. a 39 ORDER This Criminal Appeal is dismissed.
sd/a IUDGE Sd! JUDGE *bgn/a