Karnataka High Court
Puttamadappa vs State Of Karnataka on 13 November, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 13TH DAY OF NOVEMBER 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.723 OF 2010
BETWEEN:
Puttamadappa,
Son of Kempanna,
Aged 42 years,
Occupation: Business,
Residing at No.705/3,
Thyagaraja Road,
K.R.Mohalla,
Mysore.
...APPELLANT
(By Shri. Prasanna Kumar .P, Advocate)
AND:
State of Karnataka by
Nazarbad Police Station,
Represented by the
State Public Prosecutor,
High Court Building,
Bangalore - 560 001.
...RESPONDENT
2
(By Shri. K.R.Keshavamurthy, State Public Prosecutor1)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellant praying to set aside the judgment and order of
conviction and sentence dated 16/17.06.2010 passed by the 4th
Additional District and Sessions Judge, Mysore in
S.C.No.55/2008 - convicting the appellant/accused for the
offence punishable under Section 324 of Indian Penal Code,
1860 and etc;
This appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the State Public Prosecutor.
2. The facts leading up to this case are as follows:
The complainant was one Krishnaiah Shetty, who had alleged that his daughter Rashmi was working with the appellant in his institution known as 'A to Z' Spoken English. It transpires that the daughter of the complainant, Rashmi was 3 married to one Nagendra in the year 2006. Since Rashmi had to discontinue her work with the institution run by the appellant, he was upset and had called upon Rashmi to continue to work for him. However, since Rashmi had by then given birth to a child and was not inclined to join him, it was alleged that the appellant was constantly bothering Rashmi to come and join his institution. When she had refused, he had threatened to cause harm to her and her family. In this regard, they had reported the matter to the Police. The appellant had been called to the Police Station and he was advised to desist from such conduct. However, it is alleged that on 1.8.2007, it transpires that the appellant had come to the house of the complainant and when Rashmi was sleeping with her child in a particular room, the appellant is said to have sneaked up to the ventilator and thrown in a fire cracker, popularly known as an 'atom bomb' and by virtue of the explosion, she was injured. Initially, on hearing the sound of the explosion, the complainant thought that a cylinder containing Liquefied Petroleum Gas (LPG) had 4 burst and he had rushed out of the house and saw the appellant running away and mounting his motor cycle and riding away. Rashmi also is said to have seen through the ventilator the accused appellant departing. It is on the basis of the evidence of these witnesses, joined by PW.4 the mother of Rashmi, that a case was registered against the appellant for offences punishable under Sections 307, 436 and 9B(i)(b) of the Explosive Substances Act, 1884 (Hereinafter referred to as the 'ES Act', for brevity).
The appellant having entered appearance and after further proceedings, the court below had framed charges against the accused for the aforesaid offences and the accused having pleaded not guilty and having claimed to be tried, the prosecution had examined PWs.1 to 10 and got marked Exhibits P.1 to P.8, apart from Material Objects MOs.1 to 4. The appellant, in turn, had got marked several documents marked as Exhibits D.1 to D.48 in support of his defence. Thereafter, the trial court having recorded the statement of the 5 accused under Section 313 of the Code of Criminal procedure, 1973 and after having heard both the parties, had proceeded to frame the following points, which if loosely translated, would read as follows:
"1. Whether the prosecution proves that on 1.8.2007, at about 5.00a.m., that the accused, with an intention to kill Rashmi, PW.4 who was residing at 10th Cross, Vinaya Marga, Siddhartha Nagar, Mysore, had thrown a fire cracker, which is popularly known as 'atom bomb' and had injured PW.4 and thereby committed offences punishable under Sections 302 and 307 of the Indian Penal Code, 1860?
2. Whether the prosecution proves that on the said date and time, the accused with an intention to destroy the house of the complainant, had thrown a fire cracker, which is popularly known as atom bomb and lit the house and thereby has committed an offence punishable under Section 436 of the Indian Penal Code, 1860?
3. Whether the prosecution proves that on the said date and time, the accused had possessed an explosive substance - atom bomb without possessing any valid license and thereby had committed an offence punishable under Section 9B(b) of the Explosive Substances Act,1884?"
6
The court below had held point no.1 partly in the affirmative and point no.2 in the negative. Consequently, had convicted and sentenced the accused to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.5,000/- for the offence punishable under section 326, IPC.
It is that which is under challenge in the present appeal.
3. The learned Counsel for the appellant would point out that the alleged incident is said to have taken place at 5 a.m., and the appellant having committed the act as alleged, Rashmi has been examined as PW.4 and the father of Rashmi and the complainant, Krishnaiah Shetty was examined as PW.1 and Soubhagya Lakshmi, the mother of Rashmi as PW.5. The sequence of events alleged is that Rashmi and her child were sleeping in a particular room and Rashmi was woken up by an explosion inside the room, which according to her, was realized in retrospect, that it was caused by a fire cracker - which was thrown through the ventilator of the room and according to her, she had immediately looked out of the ventilator to see the 7 appellant go down the stairs and ride away on his motor cycle. Similarly PW.1, the complainant had stated that he had also been woken up by an explosion and he thought that a gas cylinder had burst and had come out of the house to see the appellant go down the stairs, mount the motor cycle and ride away. The learned Counsel for the appellant would point out that the fire cracker thrown through the ventilator, if it took some time to burst and the person who had thrown the same would wait to see the result is hardly acceptable. Hence, the question of Rashmi having been woken up by the explosion and she having gathered her wits to go near the ventilator and having looked out to see the appellant running away, would be unacceptable and would not be the natural human conduct, as it could not be expected that a person could deduce the source of the explosion and also rush to see the departing miscreant.
Secondly, it is pointed out that the incident is said to have taken place at 5a.m., when there was little light, apart from any 8 street lights or other artificial lighting. Hence, the appellant having been identified is also remote.
Insofar as the evidence of PW.1, the complainant is concerned, it is not his case that he was in the same room. He was in some other room and if he had heard the explosion, it is unnatural for him to come out of the house, when the explosion was inside the house. Similarly, the complainant having come out of the house immediately after the explosion and having seen the appellant running away is again remote. The learned Counsel would submit that the complainant, who was said to be 67, being expected to react with such alacrity, to realise as to what had happened and to rush out and to find the appellant running away would be remote.
Insofar as PW.5 is concerned, it is not her case that she saw the appellant at all. Therefore, the very incident having occurred and that the appellant was the perpetrator of the crime is difficult to accept, as the case of the prosecution cannot be 9 accepted on the basis of the evidence tendered by PWs.1,4 and 5.
Insofar as the incident said to have occurred inside the room where Rashmi was said to be sleeping along with her child and the same having caused damage, is sought to be established by producing pieces of green thread, which again are claimed to be pieces of a fire cracker. This has not been spoken to by any expert witness except the self serving statements of PWs.1, 4 and 5 to claim that it was, in fact, a fire cracker or that there was an explosion in the room.
Thirdly, the learned Counsel would point out that insofar as the alleged injury caused to Rashmi on her thumb is concerned, the injury is described as a simple injury by the doctor, who in his testimony, has not expanded as to how the injury could have been caused, or whether it was on account of any explosion. Therefore, it is the self serving claim of Pws.1, 4 and 5 that the appellant was instrumental in having caused any such explosion and the explosion in turn, having caused an 10 injury to Rashmi. The entire case is sought to be foisted on the appellant, merely because he was upset that Rashmi had left his institution upon her marriage with Nagendra and that he had tried to persuade her to come back to the institution notwithstanding that she had got married to Nagendra. That by itself would not be a logical conclusion of any such act having been committed by the appellant. Therefore, mere suspicion of the appellant being instrumental in having committed such act or having caused any such injury cannot be readily accepted.
The learned Counsel would therefore draw attention to the reasoning of the court below, which merely has accepted the unilateral evidence of PWs.1, 4 and 5, without the corroborating evidence of any independent witness, who had actually seen the appellant arriving at the scene or leaving the scene after having committed the alleged act. Therefore, the learned Counsel would submit that the prosecution had failed to establish his case beyond reasonable doubt. 11
4. Though the learned State Public Prosecutor would seek to justify the findings of the court below, as rightly pointed out by the learned Counsel for the appellant, the manner in which the alleged acts are said to have been committed by the appellant, is only on the basis of the evidence of PWs.1,4 and 5, as rightly pointed out by the learned counsel, it is evident that Rashmi, who was the immediate victim of the alleged explosion of a fire cracker or injury that was caused to her, even according to her, that Rashmi would have been woken up from sleep and it was quite possible for the accused or the person who had thrown the cracker into the room to depart from the scene. Further, she had gathered her wits to immediately look out of the window and to observe the accused leaving the place also is not possible as it was 5 a.m., and possibly no sufficient light for her to have identified the accused.
Similarly, the evidence of PW.1, the complainant to state that he had been woken up from sleep by a loud explosion and he had immediately rushed out of his house to investigate and 12 he had found the accused leaving would also not explain the time gap that would have occasioned on his waking up from his sleep and going out of the house to catch the appellant, taking to his heels, is not readily acceptable. Therefore, it is merely a suspicion that the accused may have been involved, that a case is sought to be made out against the accused.. The court below having held that there was no case made out for the offence punishable under the provisions of the ES Act, but a case was made out of having caused an injury to Rashmi cannot be accepted. For if the primary allegation of the accused having come to the house of the complainant and having thrown a fire cracker into the room where Rashmi was sleeping was made out. The further accusation that by virtue of the explosion, an injury had been caused to Rashmi cannot also be accepted. Therefore, the conclusion is without basis.
Hence, the appeal is allowed. The judgment of the court below is set aside. The accused is acquitted. The fine amount, 13 if any, paid shall be refunded to the appellant. The bail bond furnished by the appellant stand cancelled.
Sd/-
JUDGE nv