Bangalore District Court
The State Of Karnataka vs Rabeendra Kuamr Mishra @ R.K.Mishra on 23 October, 2017
IN THE COURT OF THE LXI Addl.City Civil ,
& SESSIONS JUDGE: BENGALURU CITY (CCH-62)
Dated this the 23rd day of October, 2017
PRESENT :- SRI. S.A.CHIKKORDE M.A., LL.M.,
LXI Addl. City Civil & Sessions Judge, B'lore.
SESSIONS CASE No.1577/2011
Complainant : The State of Karnataka
By MAHADEVAPURAPolice Station,
Bengaluru.
Reptd. by Public Prosecutor,
City Civil Court Complex, Bengaluru
.V/s.
ACCUSED: Rabeendra Kuamr Mishra @ R.K.Mishra
S/o.S.N.Mishra,
46 years
No.272, Writers Safeguard Building,
Near OM Farm Circle
White Field
Bangalore-66.
(By Sri.D.S., Advocate)
1. Date of occurrence of 10.08.2011
offence
2. Date of report of offence 10.08.2011
3. Arrest of the accused 10.8.2011 at 2.30 p.m.,
4. Commencement of trial 7.8.2012
5. Closing of trial 15.12.2015
6. Name of the complainant OM Prakash
7. First information report 11.8.2011 X ACMM Court,
reached to the Magistrate Bangalore.
2 S.C.No.1577
S.C.No.1577/201
1577/2011
/2011
8. Offences complained of U/s. 307 r/w.30 of Indian
Arms Act
9. Opinion of the Judge Accused found guilty
10. Sentence or order Accused is acquitted as per
the Judgment
JUDGMENT
The Sub-Inspector of Police Mahadevapura Police Station, filed charge sheet against the accused for the offence punishable U/s. 307 r/w.30 of Indian Arms Act.
2. The case of the prosecution in brief is as under that :
On 10.8.2011 at about 10.00 to 10.10 a.m., the complainant was doing his business in his Mahalakshmi News Paper and Xerox shop at that time one R.K.Mishra got down from Tata 207 jeep bearing registration No.KA-53-9955 belong to Writer Safe Guard company and asked for Rajasthan Daily News Papers by giving Rs.4/- and had asked to give change of 50 paise. At that time the complainant told that he had no change and instead of 50 paise change he would give his chocolate. Being enraged by this, R.K.Mishra abused the complainant in Hindi Language as Suvar ke bache. The complaiannt asked R.K.Mishra not to abuse him at that time R.K.Mishra told the complainant that he would not leave him and with the help of double barrel gun which he had with him fired at complainant. In this act, the complainant sustained injuries on his neck, CW-2 had sustained injuries on his right thigh, CW-3 had sustained injuries on right hand and CW-4 had sustained injuries on left leg. As CW-1 to 4 had sustained bleeding injuries, they were 3 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 was shifted to the hospital for treatment and thereby. R.K.Mishra committed the offence of Attempt to Murder punishable u/s 307 of IPC. On the basis of the information given by the complainant to the jurisdictional police, the police have registered the case in Cr.No.380/2011 for the offences punishable U/s. 307 of IPC.
It is further alleged that on the above said date, time and place the accused had misused the barrel gun for commission the above offence and thereby committed the offence punishable under Section 39 of Arm Act.
During the course of investigation accused person was arrested and produced before the Court. He was remanded to Judicial Custody. After completion of investigation C.W.25 DYSP, K.S.Nagaraju, Special Task Force filed charge sheet against the accused for the offences punishable U/s. 307 of IPC r/w.30 of Arms Act 1959
3. On receipt of the charge sheet, the learned X ACMM, Bengaluru took cognizance of the offence cited therein. Since the offence U/s.307 of IPC is exclusively triable by the Court of Sessions, the case was committed to the Court of Principal City Civil and Sessions Judge, Bengaluru City, who in turn registered case against accused in SC.1577/2011, and pleased to make over the case to this Court for disposal in accordance with law.
4. Thereafter this Court secured the records. After hearing the learned Public Prosecutor for State and learned Public Prosecutor 4 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 for the accused, since there are sufficient materials to frame charge, charge for the offences punishable U/s. 307 r/w.30 of Arms Act was framed, read over and explained to the accused. He pleaded not guilty and claimed for trial.
5. The prosecution in order to establish the guilt of the accused, examined in all 17 witnesses as P.Ws.1 to 17 and through them got marked 30 documents Exs.P.1 to P.30 and M.Os.1 to 8. Inspite of sufficient opportunity given to the prosecution the concerned police failed to secure the presence of C.Ws.4, 11,13 and 14, so the prayer of the prosecution to re-issue NBW to those witnesses was rejected and evidence of prosecution was taken as closed. CW-21 was given up.
6. After closure of prosecution evidence, accused was examined U/Sec. 313 of Cr.P.C., so as to enable him to explain the circumstances appearing against him. Wherein the accused denied the incriminating evidence appeared in the prosecution evidence and did not choose to lead any defence evidence on his behalf.
7. Heard the learned Public Prosecutor for the State and defence Counsel for the accused and perused the material placed on record.
8. The following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 10.8.2011 at about 10.00 to 10.10 a.m., in furtherance of common intention picked quarrel with C.W.1 5 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 and with an intention of causing his death, accused fired with barrel gun to CW-1 in the process CW-2 to 4 also sustained caused grievous injuries knowingly that if death was caused you accused would be guilty of offence of murder and thereby the accused committed an offence punishable U/s.307 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place accused had misused the barrel gun and thereby committed the offence punishable under Section 30 of Indian Arms Act 1956?
3. What order?
9. My findings on the above points are as under:
Point No.1 & 2: Negative.
Point No.3 : As per final order, for the following :
REASONS
10. Point No.1: Out of 17 witnesses examined by the prosecution, P.W.1 - OM Prakash is the complainant and injured, PW-2 Nataraj PW-3 Niranja are the eye witnesses, PW-4 B.C.Ravindra is FSL Officer, PW-5 I.M.Narayanaswamy, PW-6 Shivaraj, PW-7 Madhusudan, PW-10 N.C.Manjunath, PW-11 Bharamegowda, PW-15 Shivareddy.K are hostile witnesses, PW-8 Dr.MuraliKumar.V., PW-9 Dr.Mohan Kumar deposed about examination of injured OM Prakash, PW-12 Srinivas HC 5899 of Mahadevapura P.S., has deposed about the apprehending of the accused along the vehicle bearing No.KA-53-9955, PW-13 6 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 Basavaraja Patil the then ASI of Mahadevapura P.S., has deposed about conducting of investigation, PW-14 Venkatesh, HC - 1340 deposed about the collecting of wound certificate from Vyedhi Hospital and about Ex.P.15, MO-7 and 8, PW-16 PC 10972 then working at Mahadevapura P.S., deposed about Ex.P.1 and Ex.P.19, PW-17 K.S.Nagaraju DYSP Special Task Force deposed about the conducting of investigation and submission of charge sheet before the court.
11. On perusal of the evidence of PW-1 to 17 it reveals that except PW-1 to 4, 8, 9, 12, 13, 14, 16 and 17 remaining witnesses have turned hostile to the prosecution in respect of Ex.P.2, Ex.P.8 to 10 and 17 though some of these prosecution witnesses have been turned hostile to the prosecution, their evidence cannot be tally discarded but it has to be seen in the light of the evidence of other supporting witnesses for the prosecution, the evidence given by above hostile witnesses would be helpful to the prosecution inorder to bring home the alleged guilt of the accused for the alleged offences beyond all reasonable doubt.
12. On perusal of the evidence of PW-1 to 4, PW-8, 9, 12 to 14 and 16, 17 in the light of the suggestions made by the learned counsel for the accused it reveals that the defence of the accused for the alleged offences are concerned is that of total denial of the case of the prosecution on the ground that accused was in the jeep at that time the complainant, Nataraj and Niranjan went along with clubs near the jeep and assaulted the accused and while the accused entered inside the jeep these three persons snatched away 7 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 the gun from the accused and pulled him outside and in that process there was two times misfire from the gun and also on the ground that while the complainant Nataraj and Niranjan assaulted on the left fore hand, consequently caused grievous injuries to him and as well as caused injuries on both shoulder and also on left eye and caused bleeding injuries and as well as on the ground that on 10.8.2011 as the gun shot was due to misfire while snatching away the gun from the accused and as well as assaulted the accused caused him injuries a false complaint has been filed against the accused. However, the said defense of the accused has been categorically denied by PW-1 to 3, 13 and 17 in toto. Therefore, considering all these circumstances in the light of the nature of the offence alleged against the accused it is to be seen whether prosecution is able to bring home the alleged guilt of the accused for the alleged offences beyond all reasonable doubt.
13. On perusal of the evidence of PW-1 Omprakash S/o.Nanjundappa in his examination in chief he has deposed that for the last 10 years he is running shop at RHB Colony, Mahadevapura and doing business in Xerox and selling news paper in the name and style as Bhagyalakshmi News Paper and he knows the accused before the court and that the accused is working as Security Guard in Write Safe Guard Company. He also denied that on 10.8.2011 at about 10.00 a.m., accused came to his said shop in a vehicle bearing registration no.KA-53-9955 inorder to purchase Rajasthan News paper and paid Rs.4/- as the cost of the said daily news paper is Rs.3.50ps and at that time as he was not having balance chance amount of 50 paise he gave one chocolate to 8 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 him, for which the accused refused to receive the same. Meanwhile he told to the accused that now he was not having change and get deducted 50paise while purchasing news paper on the next date for that accused insisted for tendering his chance and also accused abused him in filthy language and at that time he asked the accused as to why accused was abusing him, for that the accused went by giving threat to him saying that if he won't pay his change he would kill him by pointing his index finger to him. PW-1further deposed that he asked the accused as to why he was abusing. Meanwhile the accused brought his gun which was kept in the vehicle and shown to him by pointing towards him. Meanwhile he asked the accused to what he was doing in that process while the accused was targeting double barrel gun towards his chest at that time he pushed the accused towards right side, immediately he pushed him towards right side and accused fired consequently he passes through causing scratches through his neck and thereafter hit to Nataraja who was in beeda shop and Sanjeev and Niranjan who were consuming tea in the shop of Niranjan and they have sustained injuries. He also deposed that Nataraj and Niranjan have also sustained injuries to their legs and hands and thereafter he went to the K.R.Puram Hospital and subsequently he lodged complaint to the P.S., as per Ex.P.1 and also identified his signature at Ex.P.1(a) and thereafter police came over the spot and drawn mahazar as per Ex.P.2 and seized double barrel gun, cartridge and blood stained cloths in his presence and he also identified his signature on the said mahazar at Ex.P2(a). He also deposed that Ex.P.2 Mahazar was also signed by panch witnesses Bramegowda and another. He also deposed by identifying material 9 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 objects MO-1 to 6 double barrel gun at MO-1, 14 pellets MO-2, one empty cartridge top shop MO-3, MO-4 Cotton stained with blood and MO-5 sample cotton, MO-6 Identification card of accused. He also deposed that he took treatment at Bowring Hospital and his wound certificate is at EX.P.3.
14. PW-2 Nataraj has deposed in his examination in chief that he is running a beeda shop infornt of the shop of PW-1 by name Bhagyalakshmi Xerox and news papers for the last ten years and he knows the accused before the court who is working as security guard in Writers safe guard company and as well as he knows the complainant, CW-3 and 4. He also deposed that on 10.8.2011 as usual at about 5.00 a.m., he went to his shop and accused as usual came to shop of PW-1 to purchased Rajasthan news paper while he was going to load ATM machine amount in the vehicle, at that time it was 10.10 a.m., meanwhile PW-1 was doing business in his shop and he was also doing his business in his shop. He also deposed by corroborating the evidence of PW-1 with regard to the alleged evidence as deposed by PW-1 and also identified his wound certificate at Ex.P.4 and he also identified MO-1 gun produced before the court which was used by the accused at the time of the alleged incident. He also identified the vehicle in which the accused had come to the shop of PW-1 marked at Ex.P.7 and the cherries after the gunshot hit to his right leg and caused injury to him and he identified the accused before the court was the same person who fired at the time of the alleged incident.
10 S.C.No.1577S.C.No.1577/201 1577/2011 /2011
15. PW-3 Niranjan has deposed in his examination in chief with regard to the alleged incident by corroborating the evidence of PW-1 and 2 and also that he knows the accused before the court who was working as Security Guard in the Write Safe Guard Company. It is also clear from his evidence in chief with regard to the alleged incident has deposed by corroborating the evidence of PW-2 and in the said incident PW-2 sustained injuries to his leg and a small pillet for hit to his right fore head and caused bleeding injury and he took one day treatment at Chinmaya Hospital at Indira Nagar and also identified his wound certificate as Ex.P.5 and also identified MO-1 gun. He also deposed in his examination-in chief after the alleged incident persons at the alleged spot caught hold of the accused and also the vehicle in the photo copy produced at Ex.P.7.
16. On perusal of the evidence of PW-4 it reveals that he deposed that for the last twenty years he is working as FSL Officer Madivala, Bangalore and he is a B.Sc Graduate and Diploma in Forensic Bale tic experienced and also experienced for search of the place of offence and already he has given his opinion in more than 1,000 cases. He further deposed that he has received item No.1 to 13 which was sent by ACP along with Form No.152 from Asst. Director by name N.G.Prabakar on 8.9.2011 the letter bearing No.MDPS/Certified copy of/122/2011 dt.26.8.2011 and he subjected the item No.1 to 13 and found all these articles with intact seal of the investigating officer were tallying with the model seal and as well as the seal of medical officers at Item no.12 and 13 tallying with the model seal. He further deposed by identifying FSL 11 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 report at Ex.P.6 and also identified his two signatures at Ex.P.6(a) and Ex.P6(b). He also deposed about each and every description of item No.1 to 13 accordingly 14 pellets which he had examined marked as MO2 and top shot disk marked as Ex.P.3, gun at MO-1 and two empty cartridges marked as MO.9 and 10 and one D formed pellet marked as MO-7 and one pant piece marked as MO-8 and item No.3 and 4 identified by him are those already marked as MO-4 and 5. He further deposes that he had not sent items at Sl. No.7 to 11 were not sent back to the I.O. He also deposed by identifying sample seal marked as Ex.P.20 and also after examining of all the items by him he again sealed it and sent back.
17. Whereas the evidence of PW-5, I.M.Narayanaswamy who is running the Manasa Driving School infornt of Canara Bank at Mahadevapura and he deposed that he knows CW-1 to 4 and CS-6 and 7 and his driving school is situated by the side of beeda shop of CW-2 and also there is a shop of CW-1 situated towards right side of his school at Sl. No.3 doing business of sale of news paper and Xerox and as well as he knows the accused before the court. He also deposed that about two - three years back at 10.00 a.m., he was in his said driving school and he came out from his school after hearing the sound and by that time the accused was having gun and people were shouting and CW-1 sustained injuries near right side of his neck and CW-2 sustained injury to his right leg and CW-3 Niranjan also sustained injury to his hand and also one person who had come to his school for learning driving had also sustained injury. He also deposed that as he came out after hearing the sound of gun shop but earlier to that he had not witnessed or 12 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 seen as to what had happened and he came to know that accused had gun in his hand and thereafter police came to the spot and shifted the injured person to the hospital and also police took the accused with them and as well as police have recorded his statement. He also deposed by identifying gun at MO-1 and as well as he identified the agency van as per the photo copy produced at Ex.P.7 except those facts PW-5 has not deposed anything in his examination in chief. Hence PW-5 has been treated hostile by the prosecution.
18. Similarly if the evidence of PW-6 in his examination in chief is taken into consideration he has deposed by corroborating the evidence of PW-5 as he stated that on alleged date of incident he was also working as Writers Safe Guard Security as jeep driver and was proceeding with vehicle from carrying cash for loading to ATM of ICICI Bank and by that time the accused was gunman and CW-6 was cash custodian and he identified the said jeep as per the photo copy produced at Ex.P.7. He further deposed that on the way to Mahadevapura accused went to the shop to bring the news paper by that time he was in the said vehicle and also there was a galata between shop keeper and the accused and he do not know what had happened as to who did what to whom and subsequently four - five persons from the public came and assaulted the accused later on police came there, took him alogn with the accused and CW-6 with their said van to the Police Station and he identified the gun at MO-1 which was in the hand of the accused and he had not seen as to firing towards CW-1 and police have recorded his statement. Except these facts he has not deposed any other facts 13 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 hence he has been treated as hostile by the prosecution. So far as PW-5 and 6 are concerned who are independent witnesses to the alleged incident their respective evidence in chief do not link to the accused with regard to the alleged overt act so far as the alleged gun at MO-1 is concerned and during their respective cross- examination by learned P.P. nothing worthwhile has been elicited to believe their respective evidence inspite of confronting their statement made before the I.O. at Ex.P.8 and 9 respectively.
19. Whereas the evidence of Pw-7 is taken into consideration it reveals that he being the panch witness for the spot and recovery of MO-1, 7 and 8 mahazar as per Ex.P.10 is concerned has deposed that about 3 years back he put his signature in the P.S., and police made writing in respect of the spot mahazar of galata obtained his signature on the mahazar at Ex.P.10 and also identified signature at Ex.P.10(a) and he further deposed that he knows CW-11 and also accused but he has been treated as hostile by the prosecution and during his cross-examination by the learned Public Prosecutor wherein he has categorically admitted that on 10.8.11 Mahadevapura Police have called him and CW-11 to the Police Station and in between 5.00 to 5.30 p.m., accused with the custody of the police produced gun said to be used for the alleged incident at MO-1 and in their presence police have drawn detailed mahazar by seizing double barrel gun and empty cartridge and one Tata jeep as shown in photo copy at Ex.P.7 and further elicited that by that time FSL Officer was present and examined hands of the accused and took control Swab of the upper and lower right hand and also upper and lower left hand of the accused by packing in the cover 14 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 and seized the same and he further identified two empty cartridges at MO-7 and 8 but in his cross-examination by the learned counsel for the accused has elicited he had gone to the P.S., along with CW-1 and 2 to lodge complaint at about 12.30 p.m., and after writing the mahazar, he signed in between 3.00 to 3.30 p.m., but he do not know the contents of the said panchanama as the police read over the contents to him and while it is also elicited that while police seized MO.1, 7 and 8 after they were packed and sealed by that time it was 3.00 p.m.,
20. PW-10 and 11 are concerned on perusal on their respective evidence it reveals that though these two witnesses have turned hostile to the case of the prosecution in respect of Ex.P.2 seizer mahazar of Mo-2 and 6 and also MO-1 but in their respective examinational chief though they admitted their respective signatures on the spot mahazar at Ex.P.2 i.e., Ex.P.2(b) and (c) but as PW-10 has deposed in his examination in chief that he do not know anything except the fact that about three years back Mahadevapura police came near the book shop of CW-1 situated at Mahadevapura in front of Canara Bank and with regard to incident of gun shot by the accused, conducted mahazar and seized pieces of pellets and blood sample from the spot and he identified the same which are marked at MO-3 to 5 were seized in his presence but in respect of MO-2 and 6 are concerned they were not seized in his present and he also deposed that chits were affixed on MO-2 to 6 and it bears his signature and therefore PW-10 has been treated as hostile and is cross-examined by the learned Public Prosecutor. He admitted that MO-2 and 6 were seized but due to lack of 15 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 memory he could not say this fact in his examination in chief and the said panchanama was conducted in between 11.45 a.m., to 1.00 p.m., Whereas the evidence of PW-11, his evidence in examination in chief is nothing but replica of the evidence of PW-10 but in his cross-examination made by the learned Public Prosecution wherein it is elicited that MO-1 gun was not seized at the time of mahazar. But having regard to the respective versions elicited by the learned counsel for the accused PW-10 admitted that police have not seized Mo-6 in his presence and where as it is elicited during cross-examination of PW-1 by the learned counsel for the accused that by that time accused was having gun and with regard to the remaining suggestions are concerned made during the cross-examination of PW-10 and 11 have been categorically denied by them.
21. PW-8 and 9 who are the Doctors have deposed in their respective examination in chief about the examination of the injured who was brought to his hospital on 13.8.2011 at about 12.30 p.m., by his mother with pre history of gun shot injury occurred on 10.8.2011 at 11.00 a.m., an on his examination he found the following injury;
A Punctured wound with small clot with tenderness over the right forearm with swelling.
In this regard he has issued wound certificate as per Ex.P.5 and also identifies his signature at Ex.P.5(a). he further deposed that on the same day at 4.15 p.m., Dr.Veera Manjunath conducted operation under local Anastasia and foreign body identified and extracted and in this regard report of the operation is produced at 16 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 Ex.P.11. He also deposed that the above injury might have been caused due to gun shot and Dr.Veera Manjunath informed him that the said foreign body was a pellet and so also PW-9 deposed about the examination of injured by name Omprakash.K.N. S/o.K.Nanjundappa on the above said dated at 10.20 a.m., and on his examination he found the following injury;
Bruise over right side of the neck measuring 1 x 1 cm He found that there was no evidence of fracture radio opaque foreign body and opined that the said injury is simple in nature and issued wound certificate as per Ex.P.3. he also deposed that on the same day at 5.55 p.m., one Nataraj was brought to hospital one K.M.Omprakash with prehistory of injury in gunshot at 10.20 a.m., and on his examination he found the following injury;
Bruise over the right thigh measuring 1 x 1 cm On getting the X-ray report he found that there was no fracture or dislocation and opined that the said injury was simple in nature and he issued the wound certificate as per Ex.P.4 and opined that such injury may be possible in a gun shot case.
22. PW-12 in his examination in chief has deposed that on 11.8.2011 himself CW-9, 21 and 24 were instructed by CW-25 to trace out the accused and vehicle used for the commission of the alleged offence and at about 2.00 p.m., o the information furnished by the informants he came to know that the vehicle which they were searching was found near Marathahalli bridge. Accordingly he went there and found the vehicle bearing registration no. KA-53- 9955 belonging to writers safe guard with accused in the vehicle, on interrogation accused told his name as R.K.Mishra and he was 17 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 working as security guard in PN writers Safe Guard Company and thereafter he brought the accused along with the said vehicle and produced before the senior officer i.e., CW-25 and CW-24 gave report in that regard and he identified the person before the court as the person whom they arrested and identified the vehicle in Ex.P.7 as the same vehicle which they brought along with the said person standing before the court. But in his cross-examination by the learned counsel for the accused wherein it is elicited that when accused was brought with the vehicle to the police station it was about 2.30 p.m., At that time the driver of the vehicle was along with accused in the said vehicle and remaining suggestions with regard to the defense of the accused are concerned have been denied by PW-12 in toto.
23. PW-13 has deposed in his examination in chief by corroborating the evidence of PW-12 in respect of arrested of the accused along with the said vehicle and produced before his superior officer i.e., CW-25 at about 2.30 pm as per Ex.P.13 and identified his signature at Ex.P.13(a) and he also deposed by identified the accused before the court was the person to whom he had arrested on that day and also identified the vehicle as per photo copy produced at Ex.P.7. In his cross-examination by the learned counsel for the accused has elicited that on seeking the police accused had not made attempt to escape from the place. It is also elicited that the place where accused was arrested form the alleged spot of offence the distance was 4 kilometers. He denied the suggestions that accused was brought in Hoysala Police van to the Police Station at about 11.00 a.m., and he also denied the 18 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 suggestion that while the accused was arrested at 11.00 a.m., persons gathered at the place have assaulted the accused and therefore the injury was sustained by the accused on his hands and face.
24. PW-14 has deposed in his examination in chief that on 13.8.2011 as per the order of his superior CW-25 he went to Vydehi Hospital in between 8.30 to 9.00 a.m., and he had brought one torn pant and one pellet whichw ere handed over to him by the Doctor who conducted operation over the injured Sanjeev and produced the same before CW-25 along with report as per Ex.P.15 and also identified his signature at Ex.P.15(a) and he further identified one pellet marked as MO-7 and one pant piece as MO-8 and this witness has not been cross-examined by the counsel for the accused since it was submitted by the Advocate for the accused that he had no cross.
25. PW-15 deposed that one day during the year 2011 police called him to the Mahadevapura P.S. and obtained his signature on the mahazar at Ex.P.16 and his signature is marked at Ex.P.16(a). He also deposed that earlier he had not seen the accused and police have not conducted panchanama in his presence and police have not recorded any of his statement. But he identified his signature on the chit affixed to the sealed cover. It was opened in the open court and it was a gun license which he had seen in the Police Station. However, he further deposed that he do not know who produced the said license and the said gun license is marked as Ex.P.17, hence PW-15 has been treated as hostile by the 19 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 prosecution and during his cross-examination by the learned Public Prosecutor wherein it is elicited that police called him and also CW-13 to the Police Station on 12.8.2011 and the accused was with the police custody took them to the 3rd floor of the Mottapa Devara Building situated at Nagondana Halli village of Himadi Halli i.e., from his house gun license at Ex.P.17 produced before the police between 2.00 to 3.00 p.m., and police seized the same under the mahazar as per Ex.P.16. But in this regard he further stated that accused was not present with them and he denied the suggestion that he is deposing that accused was not with him due to his loss of memory. He also denied the suggestion made with regard to the statement given by him before the police as per Ex.P.18 inorder to help the accused. But having regard to his version elicited by the learned counsel for the accused wherein PW- 15 has categorically admitted that "¥ÉÇðøÀgÀÄ fæ£À°è DgÉÆæ ªÀÄ£ÉUÉ ºÉÆÃzÀgÀÄ. £Á£ÀÄ, £À£Àß PÁj£À°è CªÀgÀ£ÀÄß »A¨Á°¹zÉ£ÀÄ. D ¸ÀܼÀzÀ°è ¥ÉÇðøÀgÀÄ §gÀªt À ôUÉ ªÀiÁrzÀgÀ JAzÀgÉ, £À£Àß ªÀÄÄAzÉ ªÀiÁr®è. ¥ÉÇðøÀgÀÄ ªÀĺÀdgÀ£ÀÄß N¢ ºÉý®è. CzÀgÀ°è K£ÀÄ §gÉAiÀįÁVzÉ JAzÀÄ UÉÆwÛ®è JAzÀgÉ ¤d. ¤.¦.16(J) ¸À»AiÀÄ£ÀÄß £Á£ÀÄ ¥ÉÇÃ.oÁuÉAiÀÄ°è ºÁQzÉÃÝ £É. oÁuÉAiÀÄ°è ¥ÉÇðøÀgÀÄ ¥ÀjZÀAiÀÄ EzÀÝgÀÄ, CªÀgÀÄ ¸À» ºÁPÀÄ JAzÀÄ ºÉýzÀÝjAzÀ, ¸À» ºÁQzÉÝÃ£É JAzÀgÉ ¤d."
26. PW-16 has deposed in his examination in chief that from 2008 to August 2014 he worked as police constable at Mahadevapura P.S., and on 10.8.2011 as per the order of CW-25 he was directed to carry the FIR and complaint pertaining to this 20 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 case to 10th A.C.M.M. Court at 3.00 p.m., accordingly at 4.15 p.m., he handed over the same to the said Court and he identified the FIR at Ex.P.19 and complaint at Ex.P.1 and subsequently his statement was recorded by CW-25. His evidence by the defence counsel is remained unchallenged.
27. PW-17 has deposed in his examination in chief that on 25.7.2011 to 30.9.2013 he worked as a police inspector of Mahadevapura P.S. On 10.8.2011 at about 11.00 a.m., CW-1 appeared before him along with written complaint and lodged the same after receipt of the said complaint he registered the same in his police station Cr. No.389/2011 and sent FIR as per Ex.P.19 along with original complaint at Ex.P.1 to the jurisdictional Magistrate and he also deposed about entire investigation made by him and filed charge sheet against the accused before the jurisdictional Magistrate on 22.10.2011. But as far as credibility of the evidence of this witness is taken into consideration inview of the suggestions made by the learned counsel for the accused pertains to the above defence taken by the accused have been categorically denied by PW-17 in toto but where as PW-17 has admitted in his cross-examination on page No.7 at para No.2 from 3rd line that "¢B10.08.2011gÀAzÀÄ £ÀªÀÄä ºÉÆAiÀÄì¼À ©Ãmï ¥ÉÇðøÀgÀÄ ¦AiÀiÁð¢AiÉÆA¢UÉ DgÉÆæAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §AzÀgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¢B10.08.2011gÀAzÀÄ ¨É½UÉÎ 11.00 UÀAmɬÄAzÀ ªÀÄgÀÄ ¢ªÀ¸À ¨É½UÉÎ 11.00 UÀAmÉAiÀĪÀgUÉ É DgÉÆæ £ÀªÀÄä ¥ÉÇÃ.oÁuÉAiÀįÉÃè EzÀÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ vÀ£Àß ¸Àé EZÁÑ ºÉýPÉAiÀÄ°è vÀ£UÀ É ¸ÁªÀðd¤PÀgÀÄ ºÉÆqÉ¢zÀÝjAzÀ vÀ£Àß JqÀUÉÊUÉ 21 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 ¥ÉmÁÖVzÀÄÝ, D¸Àvà ÉæAiÀÄ°è aQvÉì PÉÆr¸À¨ÃÉ PÉAzÀÄ PÉýzÀÝ, D ¥ÀæPÁgÀ aQvÉì PÉÆr¹zÉÝÃªÉ JAzÀgÉ ¸Àj. CzÉà ¢ªÀ¸À ¸ÀAeÉ ¨ËjAUï D¸ÀàvÉæAiÀÄ°è aQvÉì PÉÆr¹zÉÝêÉ. D zÁR¯ÉUÀ¼À£ÀÄß zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀvÀæzÉÆA¢UÉ £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹®è JAzÀgÉ ¤d. GzÉÝñÀ ¥ÀǪÀðPÀªÁV CªÀÅUÀ¼À£ÀÄß ºÁdgÀÄ ¥Àr¹®è JAzÀgÉ ¸ÀjAiÀÄ®è."
It is also elicited that FSL Officer Kirankumar had not given report to him and also admitted that he did not take signature of the said FSL Officer on the spot mahazar.
A far as the credibility of the entire evidence of PW-1 to 3 is taken into consideration in the light of the suggestions made by the learned counsel for the accused wherein it is elicited that on the alleged date of incident i.e., on 10.8.2011 public gave information to the police, but he do not know exactly who he was and alleged incident had taken place between 9.30 to 10.00 a.m., police came there within 10 minutes. It is also elicited that Hoysala Police came and took the injured Sanjeev to the Hospital and by that time public caught hold the accused and police took him to the custody and also took him to the Police Station and along with them PW-1 Nataraj and Niranjan accompanied with the police. It is also elicited that he was in the Police Station for a duration of about 10 minutes. It is also elicited that after lodging his complaint he went to the hospital but he denied the suggestion that he lodged the complaint after returning from the hospital. PW-1 further admitted that while lodging the complaint accused was present in the Police Station. It is also elicited that beeda shop of Nataraj is situated towards left side of his paper shop at a distance of about 2 to 3 22 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 feet. It is also elicited that CW-3 Niranjan is running tea shop in a pushing cart and the said Niranjan keeps his pushing cart at a distance of 30 to 40 feet from his shop and also there is a automobile shop situated towards right side of his shop and abutting to it there is a driving school and in this regard counsel for the accused confronted one photocopy with regard to the above circumstances which is marked as Ex.D.1 since PW-1 admitted the same. It is also elicited in his further cross-examination on page No.6 at para No.10 from 3rd line that " £Á£ÀÄ CAUÀr¬ÄAzÀ ºÉÆgÀUÉ §AzÀÄ DgÉÆæUÉ UÀ£ï AiÀiÁPÉ vÉÆÃj¸ÀÄwÛ¢ÃÝ AiÀiÁ JAzÀÄ PÉýzÉ, £ÀlgÁeï¤UÉ ±ÀÆmï ªÀiÁrzÀ ±À§Þ PÉý £Á£ÀÄ ºÉÆgÀUÉ §AzÉ, £ÀlgÁeï ¥sÉÊAiÀÄgï ªÀiÁqÀĪÀÅzÀQÌAvÀ ªÀÄÄAZÉ PÉʬÄAzÀ UÀ£ï PɼU À É ªÀiÁrzÁUÀ £É®PÉÌ UÀÄAqÀÄ ºÁj, ¸ÀAfêÀ£À PÁ°UÉ vÁQvÀÄ, £Á£ÀÄ UÁ§jAiÀiÁV DgÉÆæAiÀÄ£ÀÄß PÉýzÁUÀ, DgÉÆæ £À£Àß PÀqÉ UÀ£ï vÉÆÃj¹ JzÉUÉ ±ÀÆmï ªÀiÁqÀ®Ä §AzÁUÀ £Á£ÀÄ PÉʬÄAzÀ ¨ÁågÀ¯ï£ÀÄß vÀ½îzÁUÀ, vÀ£Àß PÀwÛ£À §®¨sÁUÀPÉÌ vÀgÀÄazÀ UÁAiÀĪÁ¬ÄvÀÄ ªÀÄvÀÄÛ ¤gÀAd£ï£À PÉÊUÉ KmÁ¬ÄvÀÄ".
28. It is also elicited in his cross examination on page No.7 at para No.11 that "£Á£ÀÄ DUÀ CAUÀrAiÀÄ JqÀUÀqÉUÉ ªÀÄÄRªÀiÁr gÀ¸ÉA Û iÀÄ ªÉÄÃ¯É ¤AwzÉÝ ¤gÀAd£ï ºÉÆÃmÉ¯ï ºÀwÛgÀ ¸ÀAfêÀ nà PÀÄrAiÀÄÄvÁÛ PÀĽwzÀÝ. DgÉÆæ gÀÉÆÃqï£À°è ¤AvÀÄ ¤gÀAd£ï EªÀjUÉ ±ÀÆmï ªÀiÁqÀ¨ÉÃPÁzÀgÉ, DgÉÆæ ¤AwzÀÝ fÃ¥ï ºÀwg Û ÀzÀ ªÀÄÄAzÉ gÀ¸ÉA Û iÀÄ°è ¤gÀAd£ï ¤AwzÀÝ, DUÀ ¸ÀAfêÀ ¤gÀAd£ï ºÉÆÃmÉ¯ï ºÀwÛgÀ nà PÀÄrAiÀÄÄvÁÛ PÀĽwzÀÝ. DgÉÆæ ªÉÆzÀ®Ä £ÀlgÁeï¤UÉ gÀ¸ÉÛAiÀÄ°è ±ÀÆmï ªÀiÁrzÁUÀ DvÀ UÀ£ïC£ÀÄß PɼÀPÉÌ vÀ½îzÁUÀ UÀ£ï¤AzÀ §Ä¯Émï £É®PÉÌ vÁV, ¸ÀAfêÀ£À PÁ°UÉ KmÁ¬ÄvÀÄ JA§ «µÀAiÀĪÀ£ÀÄß £Á£ÀÄ ¦AiÀÆð¢AiÀÄ°è ºÉý®è JAzÀgÉ ¤d".
23 S.C.No.1577S.C.No.1577/201 1577/2011 /2011
29. Similarly during cross-examination of PW-2 the learned counsel for the accused elicited that accused while shooting by that time he had crossed the footpath situated infront of his shop. He also admitted that while the gun was holding down bullet fell on the road and by that time he had not seen as to where Niranjan was sitting. It is also elicited that the distance between the alleged place of shooting and driving school is about 15 feet and whereas place was keeping the pushing cart of Niranjan is at a distance of 50 feet from the place of the alleged incident. It is also elicited by the learned counsel fro the accused during cross-examination of PW-2 on page No.5 at para No.7 from 5th line that "DgÉÆæ £À£Àß JzÉUÉ §AzÀÆPÀÄ UÀÄj¬ÄlÄÖ gÀ¸ÉÛAiÀÄ°è UÀÄAqÀÄ ºÁPÀ°PÉÌ ¥ÀæAiÀÄvÀß ªÀiÁrzÁUÀ ¨ÁågÀ¯ï£ÀÄß £Á£ÀÄ PɼU À É vÀ½îzÉ DUÀ UÀÄAqÀÄ £À£Àß §® vÉÆqÉUÉ vÁQ KmÁ¬ÄvÀÄ ªÀÄvÀÄÛ C¯Éè PÀĽwzÀÝ ¤gÀAd£ïUÉ PÉÊUÉ KmÁ¬ÄvÀÄ JAzÀÄ F «ZÁgÀªÀ£ÀÄß £Á£ÀÄ ¥ÉÇð¸ÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆqÀĪÁUÀ ºÉý®è JAzÀgÉ, ¸ÀjAiÀÄ®è".
30. Similarly the credibility of the evidence of PW-3 is taken into consideration in the light of his version elicited by the learned counsel for the accused wherein it is elicited that after the alleged incident CW-1 gave intimation to the police phone call to the police and while police came to the spot and he was in the said place. He also admitted that police came to the spot and took the accused to the Police Station and thereafter himself CW-1 and 2 went to the Police Station, he also admitted that while lodging the complaint in the police station accused was present in the police station. Pw-3 also admitted that on 10.8.2011 CW-1 was making galata that accused in respect of change, but the remaining suggestions with 24 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 regard to the above defence of the accused are concerned he has categorically denied the same in toto.
31. On going through the entire evidence of PW-1 to 3 and above admissions and other relevant circumstances along with evidence of medical officer PW-8 and 9 with regard to the injuries sustained by PW-1 to 3 in the alleged incident as per Ex.P.3, 4 and 5 it reveals that the alleged injuries shown in the above wound certificate PW-8 and 9 have been categorically deposed in their respective examination in chief itself that the injuries stated therein are simple in nature and in their respective opinion said injuries would be caused by gun shot. But in this context the evidence of Pw-1 to 3 assessed objectively keeping inview of the unequivocal admission given by PW-17 I.O. who admitted in his cross- examination with regard to the aspect that on the alleged date of incident accused had sustained injuries for which the accused gave his voluntary statement before him for getting treatment for the same and on the same day evening the accused took treatment at Bowring Hospital and the wound certificate of the accused is not produced by the I.O. along with the charge sheet. If this material admission is taken into consideration along with undisputed fact of alleged firing along with the other connecting circumstances of this case so far as the motive for the alleged incident as per the evidence of PW-1 to 3 i.e., complainant alleged to have had not given change for the purchase of Rajasthan daily news paper i.e., for 50 paise change for which PW-1 said to have told the accused to take he chocolate instead of the remaining change towards purchase of the said news paper. This theory a per the evidence of 25 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 PW-1 to 3 who have said to have been sustained alleged injuries in the said incident their evidence is not corroborated by any independent witnesses in this case i.e., PW-5 and 6 as they have turned hostile to the prosecution and Ex.D.2 the relevant portion of the statement given by PW-5 before the I.O. is taken into consideration it creates doubt to believe the evidence of PW-1 to 3 that the injuries sustained by PW-1 to 3 on account of the alleged overt act of the accused by MO-1 intentionally inorder to take away the life of PW-1 and caused injuries to PW-2 and 3 during the course of alleged course of incident. When such being the situation the evidence of PW-1 to 3, 5 and 6 is taken into consideration along with the evidence of additional witness FSL expert who has issued his report as per Ex.P.6 along with the reasons stated therein in respect of MO1 to 6, 9 and 10 and also keeping inview of certain material admissions elicited during cross-examination of additional witnesses i.e., PW-4 and also the evidence of PW-17 Investigating office, who also admitted certain material facts as referred above supra it clearly goes to show that doubt arises with regard to the material aspect that the injuries sustained by PW-1 to 3 on account of the shots from MO-1 by the accused and accused did it intentionally to murder PW-1 and caused injuries to PW-2 and 3 and caused injuries to PW-2 and 3 caused if really such alleged incident had taken place it is for the prosecution to explain the injuries found on the accused in the alleged incident and the material evidence with regard to the treatment taken by the accused in Bowring hospital during evening houses on the same day of the incident is not produced by the I.O. along with charge sheet and therefore this itself is nothing but with holding material 26 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 evidence about the innocence of the accused. Therefore, under these circumstance the evidence of these witnesses and above material admissions are taken into consideration it clearly goes to show that the evidence of PW-1 to 4, 6 and 7 and 17 are not free from the doubt to believe the case of the prosecution.
32. So far as the evidence of PW-7 in respect of the mahazar at Ex.P.10 spot and seizer of MO-7 and 8 are concerned, his evidence and also the evidence of PW-10, 11 and 15 are taken into consideration it clearly goes to show that their evidence is inconsistent to each other if their evidence read along with the evidence of PW-17 similar the evidence of PW-6 and 7 is also taken into consideration along with evidence of PW-17 also reveals the inconsistency of their evidence to each other and therefore, their evidence cannot be believable as they are not free from about. It is also pertinent to note that the evidence of other prosecution witnesses PW-13 and 14 and PW-16 are taken into consideration their evidence in their respective examination in chief appears to be formal one hence their evidence though remained unchallenged but keeping inview of the above defense taken by the accused it is crystal clear that the instant case the evidence of PW-7 in respect of alleged seizer of MO-7 and 8 and the evidence of PW-11 in respect of alleged seizer of MO-2 to 6 and the evidence of PW-15 pertains to alleged seizer of gun license at Ex.P.17 under the mahazar at Ex.P.16 and the evidence of all these witnesses taken into consideration it clearly goes to show that the evidence of these witnesses are inconsistent to each other and not free from the about as the evidence of these witnesses is contradictory to the 27 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 evidence of Investigating Officer PW-17. Therefore, from all these circumstances it is clear that on the alleged date of incident the galata said to have taken place between the complainant and the accused in respect of return of change in respect of purchase of the news paper by the accused, the evidence of Pw-1 to 3 is not linking to the alleged overt act of the alleged gun shot was the intentional act of the accused since the prosecution has failed to produce the wound certificate in respect of the injuries sustained by the accused in the said galata and thereby on the contrary having regard to the above defense therein put forth by the accused which would probabalize that though there was a fire by gunshot but it was a misfire. Therefore, under these circumstances it is quite but natural if two or more persons making galata with a person holding gun would cause misfire and in that eventuality causing injuries to the persons near by would be inevitable. Therefore, under these circumstances if the entire evidence of PW-1 to 17 and above materials placed before this court are taken into consideration it clearly goes to show that the accused has intended or admitted to take away the life of complainant and cause injuries to PW-2 and 3 on the alleged date, time and place and also the accused had intentionally violated or controverted any condition of license in respect of gun at MO-1 as contemplated under Section 30 of Indian Arms Act 1959 and thereby this court is of the considered view that prosecution has failed to bring home the alleged guilt of the accused beyond all reasonable doubt and it is well settled principle of law that if any doubt arises in the prosecution case such doubt should be extended to the accused. Hence, considering all these circumstances it is clear that prosecution has failed to prove that 28 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 the accused has committed the offence under Section 307 of IPC and Section 30 of the Indian Arms Act. Accordingly point No.1 and 2 are answered in the negative.
33. Point No.3 : Having regard to my above observations and findings on point No.1 and 2 in negative, extending the benefit of doubt to the accused, I proceed to pass the following :
ORDER Acting under Sec.235(1) Cr.P.C, I do hereby acquit the accused, for the offences punishable U/s.307 of IPC and Section 30 of Indian Arms Act 1956. The bail bonds and surety bonds of the accused stand cancelled.
M.Os.1-Double barrel gun is ordered to be confiscated to the state and MO.2 to 8 being worthless articles are ordered to be destroyed after appeal period is over.
(Dictated to the Stenographer directly on the computer, corrected and then pronounced by me in the open Court on this the 23rd day of October, 2017).
(S.A.CHIKKORDE) LXI Addl. City Civil & Sessions Judge, Bengaluru.29 S.C.No.1577
S.C.No.1577/201 1577/2011 /2011 ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:-
PW.1 - OM Prakash PW.2 - Nataraju PW.3 - Niranjan PW.4 - Ravindra PW.5 - Narayanswamy PW.6 - Shivaraju PW.7 - Madhusudan PW.8 - Dr.Murali Kumar PW.9 - Dr.Mohan Kumar PW.10 - Manjunath PW.11 - Barmegowda PW.12 - Srinivas PW.13 - Basavaraju Patil PW.14 - Venkatesh PW.15 - Shivareddy PW.16 - Chudalingaiah PW.17 - K.S.Nagaraju
LIST OF WITNESSES EXAMINED FOR THE DEFENCE :-
- NIL -
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION :-
Ex.P.1 - Complaint Ex.P.1(a,b) - Signatures Ex.P. 2 - Spot mahazar Ex.P.2(a-c) - Signatures 30 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 Ex.P.3 to 5 - Wound Certificates Ex.P.6 - FSL Report Ex.P.6(a,b) - Signatures Ex.P.7 - Photo Ex.P.8 - Statement of PW-5 Ex.P.9 - Statement of PW-6 Ex.P.10 - Mahazar Ex.P.10(a,b) - Signatures Ex.P.11 - Report Ex.P.12 - Permission letter Ex.P.13 - Report Ex.P.13(a) - Signature Ex.P.14 - Acknowledgement Ex.P.14(a) - Signature of PW-17 Ex.P.15 - Report of PW-17 Ex.P.15(a,b) - Signatures Ex.P.16 - Panchanama Ex.P.16(a,b) - Signatures Ex.P.17 - Gun license Ex.P.18 - Statement Ex.P.19 - FIR Ex.P.19(a) - Signature Ex.P.20 - FSL Seal Ex.P.21 - PF Ex.P.21(a) - Signature Ex.P.22 - Voluntary Statement of accused Ex.P.22(a,b) - Signatures Ex.P.23 - PF 31 S.C.No.1577 S.C.No.1577/201 1577/2011 /2011 Ex.P.23(a) - Signature Ex.P.24 - PF Ex.P.24(a) - Signature Ex.P.25 - PF Ex.P.25(a) - Signature Ex.P.26 - Wound certificate Ex.P.26(a) - Signature Ex.P.27 - Trip sheet of Writers Safe Guard Company Ex.P.28 - Attendance extract Ex.P.29 - Personal information of accused Ex.P.30 - BIO-DATA of accused
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:-
- NIL -
LIST OF MATERIAL OBJECTS MARKED FOR THE
PROSECUTION:
MO-1 - Double barrel gun
MO-2 - 14 pellets
MO-3 - Cartridge
MO-4 - Blood stained cotton
MO-5 - Cotton
MO-6 - Identification card
MO-7 - Pellet
MO-8 - Pant piece
(S.A.CHIKKORDE)
LXI Addl. City Civil & Sessions Judge,
Bengaluru.
32 S.C.No.1577
S.C.No.1577/201
1577/2011
/2011
23.10.2017
S-PP
A- DS
Order pronounced in open Court vide
detailed order passed separately.
ORDER
Acting under Sec.235(1) Cr.P.C, I do
hereby acquit the accused, for the offences punishable U/s.307 of IPC and Section 30 of Indian Arms Act 1956. The bail bonds and surety bonds of the accused stand cancelled. M.Os.1 to 8 being worthless articles are ordered to be destroyed after appeal period is over.
LXI Addl. City Civil & Sessions Judge Bangalore.33 S.C.No.1577
S.C.No.1577/201 1577/2011 /2011