Karnataka High Court
Gangadhar Naga Naik vs State Of Karnataka on 16 December, 1996
Equivalent citations: 1997CRILJ3655
JUDGMENT
1. This appeal is preferred as against the judgment dt. 30-3-93 passed by the learned Sessions Judge at Karwar. North Kanara District in S.C. No. 25/92, whereby the said Sessions Judge convicted in sentenced the appellant-accused herein.
2. I heard the learned Counsel for the appellant Sri Vinod Prasad and the learned High Court Government Pleader Sri B. H. Satish appearing for the respondent-State. I have also perused the case records.
3. To narrate the facts in brief of the prosecution case are that, on 1-3-91, the complainant-P.W. 1 had gone to the stream at Doddasare in Hemgar village in siddapur Taluk to lay a bund to divert the course of the stream to his place where he was constructing a house by blocking the flow of the water. That the appellant and three other persons staying in the lower terrain came to the spot and standing at a distance of '15 to 20' asked P.W. 1-complainant as to why he was blocking the flow of stream water and that the complainant-P.W. 1 told them that he was constructing a new house and water was, therefore, needed for the purpose of the said construction. That as against the said of the complainant-P.W. 1. the appellant-accused and the three other persons with him insisted that the bund be removed and the stream water be allowed to flow. It is stated that the appellant-accused No. 1 and the fourth accused by name Manja were having guns in their hands and that the accused Nos. 2 and 3 instigated the complainant-P.W. 1 to fire the gunshot to him and that, at that, the appellant-accused No. 1 fired a gunshot from his gun in his hand and the bullets/pellets hit at the back of the complainant-P.W. 1. At that, the complainant-P.W. 1 cried out loudly due to the injuries he suffered and he fell down and that after hearing the sound, his mother-P.W. 2, his maternal uncle-P.W. 4 and his sister-P.W. 3 came running to the spot from their houses situated at a distance about 100 or 150 feet from the place of incident. That thereafter, his cousin, one Ramesh-P.W. 5 took him to Siddapur Government Hospital and as per the advice of the Doctor in the said Hospital, he was X-rayed in a private Nursing Home and the Doctor-P.W. 10 had also examined him with reference to the said X-rays and P.W. 10 advised the complainant-P.W. 1 to go to Sagar Hospital, for the reason that necessary instruments were not available to remove the bullets/pellets. Accordingly, on his advice, complainant-P.W. 1 had been to Sagar Hospital where he was treated for a few days and as per the further advice of the Doctors at Sagar Hospital, he had taken treatment in the District Government Hospital, Shimoga. It was opined by the Doctors that the bullets/pellets stuck inside the body could not be removed easily without risk to his life and opined that the said bullets/pellets stuck inside the body were not dangerous to his life even if they were not removed.
4. That P.W. 10 having taken note of the medico-legal case, sent information to Sagar Town Police Station at about 10.30 p.m. on the day next i.e. 2-3-91 and on receipt of the said message of P.W. 10-Doctor of the Government Hospital, Sagar, P.W. 14-Head Constable registered a case in Crime No. 42/91 and since the offence had taken place within the jurisdiction of Siddapur Police Station, the said F.I.R.-Ex. P. 13 was sent to Siddapur Police Station, whereupon on 3-3-91. P.W. 15-Sub-Inspector of Siddapur Police Station had re-registered the case in Crime No. 32/91 of his Police Station and he had sent the FIR-Ex. P. 14 to the jurisdictional Magistrate. That thereafter, P.W. 15 had taken up investigation, arrested the accused persons, recorded their voluntary statements including that of the appellant-accused herein and further recovered the gun M.O. 3 from the appellant-accused stated to have been used for the offence and after obtaining the necessary reports such as wound certificate-Ex. P. 6 together with Ex. P. 8 photo of the appellant-accused and his X-rays Exs. P. 9 and P. 10 from P.W. 10, Ex. P. 11-FSL report from Assistant Director and Ballistic Expert-P.W. 12, Ex. P. 12-certificate from the jurisdiction Magistrate to say that accused No. 1 was not having licence for having a gun, he filed the charge-sheet before the jurisdictional Magistrate.
5. On being committed to Sessions for taking trial before the learned Sessions Judge, the learned Sessions Judge had framed charges for the offence under Ss. 109, 307 read with Sec. 34 of I.P.C. and Ss. 25 and 27 of Indian Arms Act. The appellant-accused and three other accused persons pleaded not guilty before the learned Sessions Judge and thereafter the learned Sessions Judge held the trial, heard the parties and on appreciation of evidence on record, passed the impugned judgment whereby he had convicted the appellant-accused for the offences under Sec. 307 of I.P.C. and Ss. 25 and 27 of the Indian Arms Act. While acquitting the three other accused persons by giving benefit of doubt to them and further sentenced the appellant-accused for three years' R.I. for the offence punishable under Sec. 307 of I.P.C. one year R.I. for the offence under Ss. 25 and 27 of the Indian Arms Act. The said judgment and sentence passed by the learned Sessions Judge is now under appeal before this Court in the hands of the appellant-accused.
6. The learned Counsel for the appellant-accused argued that P.W. 1 in his complaint before the Police at Ex. P. 1 had stated that while he was seeing the appellant-accused, he (the appellant-accused) had fired the gunshot and if that version were to be correct, the injuries would have been to the front portion of the body of P.W. 1 and that at no stretch of imagination, it could be on the backside of his body and that the very fact that the bullets/pellets injuries were found on the backside of the body of P.W. 1, clearly shows that the gunshot was fired from behind. He further argued that, in the said circumstances, there was no chance for the P.W. 1 to witness or see the culprit at all; more so, when the alleged incident had taken place at about 5.30 a.m. in the moonlight. He drew sustenance for such an argument from the statement of P.W. 2-the mother of P.W. 1 and P.W. 3-Kanne, the sister of P.W. 1 before the Police under Sec. 161 of Cr. P.C. marked as Exhs. D. 1 and D. 2 respectively, wherein P.W. 2 and P.W. 3 had stated that at the point of time of the incident there was moonlight. Therefore, he submitted that in the said facts and circumstances, It was not at all possible for P.W. 1 to witness or see and identify the person who had fired the gunshots.
7. The next point he argued is that, the recovery of M.O. 3-gun was not proved by the prosecution before the learned Sessions Judge the reason that the mahazar witnesses P.Ws. 8 and 9 had gone hostile and, therefore, the seizure mahazar-Ex. P. 3 had also gone not proved. Drawing my attention to the evidence of P.W. 1 that there was yet another person by name Manja, accused No. 4 who was also stated to be holding the gun in his hand, he argued that the prosecution story cannot be accepted on its face value so as to say with certainty that it was the appellant-accused who had fired the gunshot as against P.W. 1, this situation according to him assumes importance when the F.I.R. was very badly delayed and registered as late as on 10.30 p.m. on 2-3-91 when the incident in question according to the prosecution had, taken place in the early part of the day previous i.e. 1-3-91. On the point of delay, he further submitted that the F.I.R. in question was not registered before the jurisdictional Police at Siddapur Police Station, but before the Sagar Police Station and thereafter the same was stated to have been transferred to the Siddapur Police Station. Therefore, according to the learned Counsel for the appellant-accused, the said delay is fatal to the case of the prosecution and that the delay was for the purpose of deliberation and scheming to implicate the appellant-accused falsely in the case.
8. The other point that he canvassed before me is with regard to the opinion of the Ballistic Expert-P.W. 12. Taking me through his evidence, the learned Counsel for the appellant-accused argued the bullets/pellets stated to have been fired by M.O. 3-gun by the appellant-accused was not recovered by the Police and sent to P.W. 12 and it is for that reason P.W. 12 had deposed before the Court below that he could not give definite opinion with regard to M.O. 3. Therefore, he submitted that the opinion and evidence of P.W. 12-the Ballistic Expert in the case is of no consequence and assistance to the prosecution. According to him, the prosecution case had to fail on that count alone.
9. The last point the learned Counsel argued is with regard to the wound certificate-Ex. P. 6. He submitted that Ex. P. 6 was given by the Doctor who had examined him at the first instance at Siddapur Government Hospital. Taking me through the evidence of P.W. 10 that he could not remove the bullets/pellets from the body of P.W. 1, since he was not having the necessary equipments in his Hospital and that therefore, he advised P.W. 1 to go to the Sagar Government Hospital, the learned Counsel for the appellant-accused submitted that, in the said circumstances, the evidence of P.W. 10 cannot be taken to support the case of the prosecution in any way. According to the counsel Sri Vinod Prasad, the Doctors whom the prosecution would have examined were the Doctors who had treated P.W. 1 in Sagar Government Hospital and the District Government Hospital, Shimoga. Furthermore, he submitted, that in the absence of the evidence of the Doctors at Sagar and Shimoga Hospitals, the medical evidence of P.W. 10 could not be of any assistance to the prosecution.
10. While summing up the argument, the learned Counsel for the appellant-accused, Sri Vinod Prasad submitted that the learned Sessions Judge was pleased to give the benefit of doubt to the other accused persons barring the appellant accused herein, and according to him, there was no justification on the part of the learned Sessions Judge not to extend that benefit to the appellant-accused herein; more so, under the aforementioned circumstances of the case.
11. For the aforesaid reasons, the learned Counsel for the appellant-accused submitted that the conviction and sentence passed by the learned Sessions Judge in the impugned judgment is not just and proper and therefore, the same is liable to be set aside in the hands of this Court in the instant appeal.
12. The learned Government Pleader appearing for the responded-State counter argued that the evidence of P.W. 1 - the injured witness is corroborated not only by the evidence of P.Ws. 2, 3 and 4, but also by the evidence of P.W. 10 - the Doctor as well as P.W. 12 - the Ballistic Expert. It is his submission that just because P.Ws. 2, 3 and 4 happened to be the blood relatives of the injured witness - P.W. 1, their evidence cannot be brushed aside, for the same is natural and acceptable and according to him, the evidence of P.Ws. 2, 3 and 4 has to be well accepted by this Court also.
13. On the point of delay, the learned Government Pleader argued that the incident had taken place at about 5-30 a.m. on 1-3-1991 and that P.W. 2 and his relatives having more concern for attending to P.W. 1 who sufferred injuries by gunshot, had arranged for taking P.W. 1 to the nearest Hospital at the first instance to Siddapur Government Hospital and that in the said Siddapur Hospital, P.W. 10 had advised for taking X-rays in a private Nursing Home, produced at Exs. P. 9 and P. 10. That P.W. 10 had also examined P.W. 1 with reference to Exs. P. 9 and P. 10 - X-rays to conclude that the bullets/pellets which were stuck in the body of P.W. 1 could not be removed by him as the necessary equipments were not available in his Hospital and it is on his advice, thereafter, the P.W. 1 had to be shifted to the Sagar Government Hospital. The learned Government Pleader had also pointed out that it is also in the evidence of P.W. 10 - Doctor that the case of P.W. 1 being a medico-legal case, he had also sent communication to the Siddapur Police Station and that by the time the Police arrived to his Hospital, P.W. 1 was already removed to the Sagar Government Hospital and that it was thereafter, on a message from the Doctor at Sagar Government Hospital, P.W. 14 - Head Constable of Sagar Police Station had registered a case at the first instance in Crime No. 42/91 after recording the oral complaint of P.W. 1, reduced to writing by Police as per Ex. P. 1 and transferred the said F.I.R. Ex. P. 13 to P.S.I. Siddapur Police Station - P.W. 15 who in turn had re-registered the crime of his Police Station in No. 32/91, Ex.P. 14. In the said circumstances, the learned Government Pleader submitted that there is no delay worth the name and even if there is some delay, the same is well explained under the above facts and circumstances.
14. He further argued that though the mahazar witnesses, P.Ws. 8 and 9 have gone hostile, the evidence of P.W. 15 should sustain for the seizure of M.O. 3 - gun under Ex. P. 5; that just because P.W. 15 happened to be the Police Officer, it does not mean that his evidence should not be accepted at all and that in the instant case, the M.O. 3 - gun was seized by P.W. 15 on the credible information given to him by none other than the appellant-accused himself. While taking me through the evidence of P.W. 12 - the Ballistic Expert, the learned Government Pleader had submitted that it is in the evidence of the said witness that he had opined the presence of black gun powder and residue lead which were detected in the barrel of the gun and the gun M.O. 3 bore signs of discharge. All that he had stated in his opinion is that no opinion is possible regarding the actual date and time of firing. He further argued that when the bullets/pellets were not removed, question of sending the same to P.W. 12 did not arise at all and, therefore, it cannot be argued by the other side now that the evidence of P.W. 12 - the Ballistic Expert is not in support of the case of the prosecution.
15. In support of his argument, the learned Government Pleader had also cited before me the reported decisions in 1990 SCC (Cri) 168 : (1989 Cri LJ 1482) to the effect that if the delay in filing the FIR is well explained, the delay therefor cannot be fatal to the case of the prosecution; in on the point that non-mentioning of names of the accused persons in the FIR is of no consequence and in 1992 Cri LJ Short Notes 153 (sic) on the point that non-recovery of weapon of attack from the possession of the accused persons cannot fail the case of the prosecution. I find the relevancy in citing the said decisions by the learned Government Pleader.
16. While concluding his argument, the learned Government Pleader submitted that the guilt of the accused was proved by the prosecution before the learned Sessions Judge beyond all reasonable doubt and there is no error in the impugned judgment now under challenge before this Court and, therefore, he prayed that the appeal be dismissed and the impugned judgment passed by the learned Sessions Judge be confirmed.
17. Having heard both sides, the points for my consideration are :
(i) whether the impugned judgment passed by the learned Sessions Judge now under challenge is just and proper and based on material evidence on record ?
(ii) whether the same is called for to be interfered with by this Court in the instant appeal ?
18. I answer the above points as follows :
The learned Counsel for the appellant-accused had argued that in the facts and circumstances of the case, there was no possibility for P.W. 1 to suffer injuries on his back if he was shot at by the appellant-accused while he was seeing him and spontaneously firing at him. Probably, the learned Counsel for the appellant-accused might have placed P.W. 1 to face the appellant-accused when the alleged at of firing the shot from the gun M.O. 3 took place. I feel that there is no force in the said argument of the learned Counsel for the appellant-accused. No doubt there were exchange of words, but nevertheless, the same being a short exchange of words, there was no need for making the appellant-accused and the injured P.W. 1 to come face to face when they were admittedly at a distance of 25' to 50' apart. To visualise the possible situation of the appellant/accused and his three other associates on the one side and P.W. 1 on the other, the spot mahazar at Ex. P. 3 is of good assistance. In Ex. P. 3 - spot mahazar, it is mentioned that the stream in question was running in East-West direction and that P.W. 1 was in the one edge of the stream abutting the land on the southern side, whereas the gun shot in question in the hands of the appellant/accused had emerged from the northern direction on the opposite edge of the stream. It is also mentioned in Ex. P. 3 - spot mahazar that the width of the stream running in East-West direction is about 25 feet. If that is so, the gun shot appears to have been fired from a distance of about 30 feet across the stream.
19. In this context, Ex. P. 8 - the photograph of P.W. 1 depicting the injuries P.W. 1 suffered on his back can be beneficially observed. From the said photograph at Ex. P. 8, it is clear that the injuries on the back of P.W. 1 could be by sideways and such injuries could be possible if P.W. 1 was witnessing the appellant-accused person from the sideways as he posed his back in the photograph. When the evidence on record is that the gunshot was almost instant with the instigation to fire to the appellant-accused by his associates/accused Nos. 2 and 3, intervening a very few exchange of words, I do not rule out the injuries on the back of the P.W. 1 from his sideways on his left; all the more, that depends upon how P.W. 1 had positioned himself when he was working on the bund to divert the stream water to his place. That being the position, it is not possible for me to accept the argument of the learned counsel for the appellant that in the facts and circumstances of the case, P.W. 1 would not have suffered the injuries on his back.
20. The learned Counsel for the appellant-accused had argued that when the alleged gun shot was stated to have been fired at about 5.30 a.m. in the moonlight it was quite difficult to identify the person firing the gun shot to P.W. 1. It should be pointed out here that even if it is true that the incident of gunshot had occurred in and around 5.30 a.m. on 1-3-1991 it could not be said that the appellant-accused person could not be identified at that hour, for it is in the evidence on record that there was moon-light at that point of time. So it can be safely said that at 5.30 a.m. on that day either there was moonlight or the twilight, not rendering P.W. 1 incapable of identifying appellant-accused herein, moreso, when appellant-accused was not a stranger but instead well conversant with even knowing by name. As a matter of fact, at the earlier opportunity when P.W. 1 had lodged a complaint, not only that P.W. 1 had identified the appellant-accused and his associates, but also he had mentioned without any difficulty the names of all of them. It is borne on record that it is a small place and the appellant-accused and his associates were living at a short distance in a place down-stream and P.W. 1, his mother - P.W. 2, his sister - P.W. 3 and other persons on the one side and appellant-accused and three of his associates were known to each other well, moreso, when they belong to common social group and that being the position, it appears to me that there was no difficulty what soever for P.W. 1 to identify the appellant-accused. It is relevant to mention in this context that in the cross-examination of P.W. 1 by the appellant-accused before the learned Sessions Judge, it was not suggested to him that appellant-accused was not on the spot at the relevant point of time. If that is so, it is clear that appellant-accused No. 1 was very much present at that point of time when P.W. 1 was fired with gunshot.
21. Yet another point the learned Counsel for the appellant-accused argued is with regard to the recovery of M.O. 3 - gun. It is relevant to mention here that though the mahazar witnesses P.Ws. 8 and 9 for recovery of M.O. 3 - gun have gone hostile to the prosecution, there is evidence of I.O. - P.W. 15 to say that M.O. 3 - gun was recovered from the appellant-accused himself after his arrest. Much has been argued by the learned Counsel for the appellant regarding the non-recovery of the bullets/pellets fired from M.O. 3 - gun and with the non-forwardal of M.O. 1 - shirt and M.O. 2 - lungi of P.W. 1 to the Ballistic Expert. Such a submission was made by the learned Counsel for the appellant-accused as the Ballistic Expert - P.W. 12 had stated in his evidence that the Police did not refer to him the bullets/pellets and the related damaged clothing of the pellets, it would have been possible for him to even definite opinion. In this regard, it should he pointed out that there is direct evidence of the injured P.W. 1 to the effect that it is the appellant-accused who had fired the bullets/pellets to him and he was not only an eye witness, but also injured eye witness for the said incident of firing. It has to be remembered here that even if P.W. 1 suffered the bullet injuries, he was not only conscious, but also walked nearly 2 kms. accompanied by P.W. 5, his cousin, on his way to Siddapur Government Hospital after he suffered the bullet injuries. If that was the state of bodily condition of P.W. 1, even he suffered the bullet injuries, I do not think that P.W. 1 had inside any error in identifying the appellant-accused on the crucial day, moreso, when he was knowing him well even by name and there ensued short (hot) exchange of words with regard to the bund he was erecting on the stream. When there is direct evidence of P.W. 1 for the firing of the gunshot by the appellant-accused supported by the evidence of P.W. 2 to say that when P.W. 1 had suffered the bullet injuries and fallen down and he told thereafter to P.W. 2 that it was the appellant-accused who had fired the gunshots. Hence, there is direct evidence of P.Ws. 1 and 2 to the above effect. In my considered view, the evidence of P.W. 12 - Ballistic Export to say that he would have placed definite opinion in case the bullets/pellets and the clothing of P.W. 1 i.e. M.Os. 1 and 2 were sent to him is of less consequence. Even otherwise, P.W. being the injured, there was no reason for him to falsely implicate the appellant-accused, had it not been true that it is he who had fired the gunshot, to him, moreso, when the presence of appellant-accused on the scene of incident was not disputed by him as it has been observed by me in paragraph No. 20 supra.
22. In this regard, it is relevant to refer to what the Supreme Court held in a reported decision in . In the said decision, the Supreme Court held that the gunshot injuries itself is the hallmark of the presence the accused person at the time of occurrence. In the instant case in hand too it is clear that the appellant-accused was very much present at the place of incident. In this context, it is appropriate to what the Supreme Court held in yet another case of gun-shot injuries (Ramaswamy v. State of Tamil Nadu). In the said case, the Supreme Court held that the ocular version of the incident by a person who was injured in the same occurrence is of great value to the prosecution and the same cannot be doubled. In the instant case in hand it is nobody's case that there was misunderstanding or ill will between the appellant-accused and the injured P.W. 1.
23. With regard to the other charge against the appellant-accused under Section 25 and 27 of the Indian Arms Act, 1959 is concerned it has to be observed here that for prosecution of the appellant-accused for the offence under Sections 25 and 27 of the Indian Arms Act, 1959, the sanction of the District Magistrate as contemplated under Section 39 is a must. To quote Section 39 of the Indian Arms Act, 1959 here, the same reads as follows :
"39. Previous sanction of the District Magistrate necessary in certain case. -
No prosecution shall he instituted against any person in respect any offence under Section 3 without the previous sanction of the District Magistrate."
From the above provisions of law, it is clear that there can be no prosecution against the appellant-accused without there being the previous sanction of the District Magistrate. From the records pertaining to the case, it clear that the appellant-accused and his associates were charge-sheeted without recourse to the said provision of law and all that the prosecution did was to obtain certificate from the Taluk Magistrate Siddapur as per Ex. P. 12 to say that appellant-accused was not holding a gun licence. Hence, it is clear that the very prosecution of appellant-accused is totally vitiated for want of the sanction by the District Magistrate under Section 39 of Indian Arms Act, 1959. That being the legal position, it has to be held that the very framing of charge by the learned Sessions Judge as against the appellant-accused for the offence under Section 25 and 27 under the Indian Arms Act, 1959 cannot sustain in law and the same, therefore, has to go in toto, hence the impugned judgment passed by the learned Sessions Judge in holding the appellant-accused guilty under Section 25 and 27 of the Indian Arms Act, 1959 and further sentencing him (to undergo) rigorous imprisonment for one year on that count is liable to be set aside and the same is hereby accordingly set aside.
24. For the aforesaid reasons, I hold that the appellant-accused was guilty of the offence only under Section 307 of I.P.C. The impugned judgment convicting the appellant-accused and further sentencing him to undergo rigorous imprisonment for three years the said offence under Section 307 of I.P.C. passed by the learned Sessions Judge is upheld. I find no error therein for the aforesaid reasons and accordingly shall sustain.
25. Let the appellant-accused surrender to bail, if he is on Court bail and suffer the sentence as above. He is also entitled to for set off for the period in J.C. when the case was pending before the Courts below during pre-trial and the trial.
26. In the result, the appeal succeeds in part and accordingly allowed in part, in so far as the same related to challenge of the impugned judgment for conviction and sentence of the appellant-accused under Sections 25 and 27 of the Indian Arms Act.
27. Appeal partly allowed.