Karnataka High Court
The State Through Chadachan Police ... vs Ashok S/O Mallappa Gantgal on 6 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B. A. PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.3592/2013
C/W
CRIMINAL APPEAL No.3582/2013
In Crl.A.No.3592/2013:
Between:
The State through
Chadachan Police Station
Tq. Indi, Dist: Bijapur
Represented by Addl. State
Public Prosecutor, Gulbarga
... Appellant
(By Sri Prakash Yeli, Addl. S.P.P.)
And:
Ashok S/o Mallappa Gantgal
Aged: 39 years, Occ: Coolie
R/o Chadchan, Tq. Indi
Dist: Bijapur
... Respondent
(By Sri Nandkishore Boob, Advocate)
This Criminal Appeal is filed under Section 378(1) and
(3) of Cr.P.C., praying to (a) grant leave to appeal against the
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order of sentence dated 06.04.2013 passed by the Fast Track
Court-I/II, Bijapur at Bijapur in Sessions Case No.119/2010
thereby not sentencing the accused/respondent for the
offences punishable under Sections 25 and 27 of Indian
Arms Act (b) To pass sentence on the accused/respondent
for the offences punishable under Sections 25 and 27 of
Indian Arms Act.
In Crl.A.No.3582/2013:
Between:
Ashok S/o Mallappa Gantgal
Age: 39 years, Occ: Coolie
R/o Chadchan, Tq. Indi
Dist: Bijapur
... Appellant
(By Sri Nandkishore Boob, Advocate)
And:
The State of Karnataka
Through Chadchan Police Station
Represented by S.P.P.
High Court of Karnataka
Circuit Bench at Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C., praying to call for records and to set aside the
judgment dated 06.04.2013 passed by the learned Fast
Track Court I/II Bijapur in Sessions Case No.119/2010 and
consequently to acquit the appellant.
These appeals coming on for final haring this day,
B.A.Patil J., delivered the following:-
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JUDGMENT
Criminal Appeal No.3592/2013 has been filed by the State and Criminal Appeal No.3582/2013 has been filed by the appellant-accused challenging the judgment of conviction and order of sentence passed by the Fast Track Court-I/II, Vijayapur in S.C.No.119/2010 dated 06.04.2013.
2. We have heard the learned Additional State Public Prosecutor Sri Prakash Yeli for the appellant- State and also for respondent and learned counsel Sri Nandakishore Boob for the appellant-accused as well as the respondent.
3. The brief facts of the case of the prosecution are that appellant often used to visit the house of Basappa who happened to be the brother of the complainant and also used to pick up quarrel with said Basappa alleging that because of him he had sustained loss of Rs.5,00,000/-. It is further alleged that the 4 accused also used to inform the same to the deceased and the deceased advised accused not to come to his house. Being enraged by the said words, on 08.02.2010 at about 7.30 p.m. when the deceased and his wife were standing, the accused fired with his country made pistol to the deceased on his back and as a result of which the deceased died on the spot. On the basis of the complaint, a case has been registered in Crime No.12/2010 and after investigation, the charge sheet was filed. The committal Court committed the case to the Sessions Court, the Sessions Court took the cognizance and secured the presence of the accused and after hearing both sides, the charge was framed. The accused pleaded not guilty and he claimed to be tried and as such the trial was fixed. To establish the case of the prosecution, the prosecution got examined 26 witnesses and got marked 29 documents and 14 material objects. During the course of cross- examination, accused got marked Exs.D1 to D4. 5 Thereafter the statement of the accused was recorded under Section 313 of Cr.P.C., by putting incriminating material as against him. He denied the same. After hearing both sides, the impugned judgment of conviction and order of sentence has been passed.
4. It is the submission of the learned Addl. SPP that though the trial Court has come to the conclusion that the accused has committed the offence punishable under Section 302 of IPC and also under Sections 25 and 27 of the Indian Arms Act, while sentencing the accused he has been only convicted for the offence punishable under Section 302 of IPC and no sentence has been passed for the offence punishable under Sections 25 and 27 of the Indian Arms Act. For that portion of the judgment he has preferred the appeal and prays that proper sentence may be imposed for the alleged breach of sections.
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5. It is the submission of the learned counsel for the appellant-accused that the judgment of conviction and order of sentence passed by the trial Court is contrary to law and material placed on record. It is his further submission that the trial Court has relied upon the evidence of PW-6 who is none other than the wife of the deceased. He submits that her conduct and the evidence itself create a doubt of her presence at the place of the incident. He further submitted that the trial Court has not properly appreciated the evidence of PW-6 while considering the case of the prosecution. He submits that the Ballistic Expert who has issued Ex.P-28 has not been examined and without examining the Ballistic Expert, the conclusion arrived by the trial Court itself is not sustainable in law. It is his further submission that as per Ex.P-28 the Ballistic Expert has opined that it is not possible to state as to whether the cartridge case in Article No.C-2 has been fired through the Single Shot 7 Pistol in Article No.C-1 or not. When he has expressed a doubt that the said bullet has been fired from the pistol which has been seized then under such circumstances the trial Court ought to have given the benefit of doubt to the accused.
6. It is his further submission that as per the evidence of PW-6, the accused came and all of a sudden fired and even in her evidence she has not deposed with reference to the fall of the deceased on the ground but as per the postmortem report Ex.P-17 it indicates that there were as many as 5 external injuries on the body of the deceased. The prosecution has utterly failed to explain the said injuries found over the body of the deceased. In the absence of such material, the trial Court ought to have acquitted the accused. He further submitted that the Police Constable PW-23 has taken the seized articles to the FSL Bangalore, on 06.05.2010 but he has deposed that FSL authority did not receive 8 the articles because they were not properly sealed and the same has been handed over back to the Chadchan Police Station. Subsequently PW-24 has taken the said articles on 08.08.2010 and submitted the same to RFSL authorities. But Ex.P-28 goes to show that the articles which have been submitted were in a sealed condition and the seal was in tact. That itself goes to show that subsequently the sealing has been done by fabricating the documents. It is his further submission that all other material witnesses have not supported the case of the prosecution. When PW-21 with whom the transaction was there, he himself has not stated with regard to the transaction and animosity existing between himself and the accused, under such circumstances, the motive which has been alleged by the prosecution also is not proved in accordance with law. Under such circumstances, the trial Court ought to have given the benefit of doubt to the accused. On 9 these grounds he prayed to allow the appeal and to set aside the judgment of conviction.
7. Per contra, the learned Addl. SPP vehemently argued and contended that PW-6 is an eyewitness to the alleged incident and even the evidence of PW-17 doctor who has conducted autopsy over the body of the deceased and the postmortem report Ex.P-17 clearly indicate the fact that it is the accused who has fired and because of the said injuries the deceased died. He further submitted that since the accused has used the country pistol, under such circumstances it is very difficult for the Ballistic Expert to come to the conclusion whether said bullet has been used from the said pistol or not. It is not a machine made pistol then under such circumstances opinion expressed in Ex.P-28 is not going to affect the case of the prosecution. It is his further submission that the trial Court after considering all the evidence and material placed on 10 record, has come to a right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeal filed by the accused.
8. We have carefully and cautiously gone through the submissions made by the learned counsels for the parties and perused the records including the trial Court records.
9. The prosecution in order to establish its case, got examined as many as 26 witnesses. PW-1 is the younger brother of the deceased who spoke about the motive. PW-2 is the inquest mahazar panch to Ex.P-2 and he is also a witness to the spot mahazar Ex.P-3 wherein the live bullets have been seized and he is also a witness to Ex.P-4 whereunder the clothes of the deceased have been seized. PW-4 is the spot mahazar panch to Ex.P-5. PW-5 is the seizure mahazar panch of the pistol at the instance of the accused. PW-7 is also a seizure mahazar panch to Ex.P-6 whereunder 11 the pistol and two live bullets have been seized. PW-8 is the owner of the shop who was sitting near the house of the deceased who spoke with regard to motive. PW-9 is also a neighbour who has spoken with regard to motive and he is also an eyewitness to the alleged incident. PW-10 is the neighbour who has spoken about the motive and he is also an eyewitness to the alleged incident. PW-11 is a witness who has carried the injured in his tom-tom vehicle. PW-12 is the eyewitness to the alleged incident. PW-13 is also an eyewitness to the alleged incident. PW-14 brother of the deceased is also an eyewitness to the alleged incident and PW-15 is a hearsay witness. All these witnesses have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross-examination of these witnesses, nothing has been elicited by the prosecution to substantiate the case of the prosecution.
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10. The only evidence which is available to substantiate the case of the prosecution is that of PW-6. She is none other than the wife of the deceased. In her evidence she has deposed that the accused used to tell that because of Basappa Nandur, he has sustained loss to the extent of Rs.5,00,000/- and the said fact used to be told before her husband and her husband used to tell the accused not to tell the said fact before him and has also told him that he should not come near his house. For that the accused was enraged. She has further deposed that the accused used to wander around the deceased. On 08.02.2010 when herself and her deceased husband came on two wheeler at about 6.30 or 7.00 p.m. she got down from the two wheeler and at that time her husband told to feed the children and make them to sleep and when herself and her husband were standing in front of each other at that time accused was standing behind the deceased and he was holding the pistol and accused with said pistol shot 13 and the said bullet passed through the back left ear and when she saw it was bleeding and immediately he was shifted to the hospital. There her husband has been declared as dead. She has further deposed that she was not due Rs.5,00,000/- to the accused and accused has assaulted being enraged. During the course of cross- examination she has deposed that immediately after fire and falling of her husband Malasidda has informed the same. Her husband and brothers are having mobile phone. She has admitted the fact as per Ex.D1 and D2. Except that nothing has been elicited from the mouth of this witness.
11. Keeping in mind the aforesaid evidence of PW-6 we shall proceed to scrutinize the said evidence. As is evincible from her deposition, on seeing the assault with gun by the accused she neither got scared, ran away from the said spot nor she has even made any hue or cry. Though as per the case of the prosecution 14 so many other eyewitnesses were also present, she has not even called for the help of any of them who were present nor she has asked the persons present to catch hold of the accused. Her conduct of not making any hue and cry nor getting scared or not weeping or calling anybody diffuse normal human behaviour. Even on perusal of the evidence of PW-6 she has categorically deposed before the Court that she and the deceased had been on a two wheeler and when they came on the two wheeler she got down from the two wheeler and her deceased husband told to feed the children and make them to sleep but further she has surprisingly says that herself and her husband were standing and at that time the accused was behind her husband and in his hand pistol was there. When she has seen the pistol in the hand of the accused, neither she warns the deceased nor tried to save him by pushing or telling anything in this behalf. This conduct of the witness also appears to be not natural and probable. When the conduct itself is 15 not normal and that it is unnatural, then under such circumstances the presence of the said witness itself appears to be doubtful. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Lahu Kamlakar Patil and another vs. State of Maharashtra reported in (2013) 6 SCC 417 wherein at paragraph nos.21, 26 and 27 it has been observed as under:
"21. The attack is based on the grounds, namely, that the said witness ran away from the spot; that he did not intimate the police about the incident but, on the contrary, hid himself behind the pipes near a canal till early morning of the next day; that though he claimed to be eye witness, yet he did not come to the spot when the police arrived and was there for more than three hours; that contrary to normal human behaviour he went to Pune without informing about the incident to his wife and stayed for one day; that though the police station was hardly one furlong away yet he did not approach the police; that he chose not even to inform the police on the telephone though he arrived at home; that after he came from Pune and learnt from his wife that 16 the police had come on 21.2.1988, he went to the police station; and that in the backdrop of such conduct, his version does not inspire confidence and deserves to be ignored in toto.
26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded.17
27. Keeping in mind the aforesaid, we shall proceed to scrutinize the evidence of PW-2. As is evincible from his deposition, on seeing the assault he got scared, ran away from the hotel and hid himself behind the pipes till early morning. He went home, changed his clothes and rushed to Pune. He did not mention about the incident to his family members. He left for Pune and the reason for the same was also not stated to his family members. He did not try to contact the police from his residence which he could have. After his arrival at Pune, he did not mention about the incident in his sister-in-law's house. After coming back from Pune, on the third day of the occurrence, his wife informed that the police had come and that Bhau, who had accompanied him, was dead. It is interesting to note that in the statement under Section 161 of the Code, PW-2 had not stated that he was hiding himself out of fear or he was scared of the police. In the said statement, the fact that he was informed by his wife that Bhau was dead was also not mentioned. One thing is clear from his testimony that seeing the incident, he was scared and frightened and ran away from the hotel. He was frightened and hid himself behind the pipes throughout the night and left for home the next 18 morning. But his conduct not to inform his wife or any family member and leaving for Pune and not telling anyone there defies normal human behaviour. He has also not stated anywhere that he was so scared that even after he reached home, he did not go to the police station which was hardly at any distance from his house. There is nothing in his testimony that he was under any kind of fear or shock when he arrived at his house. It is also surprising that he had not told his family members and he went to Pune without disclosing the reason and after he arrived from Pune and on being informed by his wife that his companion Bhau had died, he went to the police station. We are not oblivious of the fact that certain witnesses in certain circumstances may be frightened and behave in a different manner and due to that, they may make themselves available to the police belatedly and their examination gets delayed. But in the case at hand, regard being had to the evidence brought on record and, especially, non-mentioning of any kind of explanation for rushing away to Pune, the said factors make the veracity of his version doubtful. His evidence cannot be treated as so trustworthy and unimpeachable to record a conviction against the appellants. The learned 19 trial court as well as the High Court has made an endeavour to connect the links and inject theories like fear, behavioural pattern, tallying of injuries inflicted on the deceased with the Post Mortem report and convicted the appellants. In the absence of any kind of clinching evidence to connect the appellants with the crime, we are disposed to think that it would not be appropriate to sustain the conviction."
12. Keeping in view the ratio laid down in the above decision, the evidence which has been produced by the prosecution in respect of PW-6 creates a doubt in the case of the prosecution.
13. Be that as it may, as per evidence of PW-6 the bullet has hit on the left side of the deceased. But as could be seen from the postmortem report Ex.P-17 there are as many as five external injuries. There is abrasion over the right forehead, abrasion over right side malar region, contused abrasion with swelling over left side of the front of chest, missile entery wound 20 surrounded by impact abrasion over its upper inner part and lower inner part of left side of back of chest and abrasion over back of left side abdomen. The prosecution has not explained as to how the remaining injuries have been suffered by the deceased especially when the present witness who is said to be present at the place of the alleged incident. If really she was present, she could have explained all the injuries either by explaining the that immediately after the incident he might have fallen down or because of that he has suffered with the injuries. No explanation has been given in this behalf by the prosecution. During the course of cross-examination of PW-6 she has stated that she has not stated before the police as per Ex.D-1 and she has also not stated that her husband was standing in front of the house along with motor cycle as per Ex.D-2. When the said statement has been made by her before the police, the question arises before the Court that when on the alleged date of incident they 21 came on the motor cycle and when the deceased has already told her to go and feed the children and make them to sleep, whether he was on the motor cycle or he has put the stand of the motor cycle and thereafter he was talking and what happened to the said motor cycle when the alleged incident has been taken place, how all of a sudden the accused appeared there is also surprisingly not stated by this witness. When she herself is the wife of the deceased and all these aspects have not been categorically and clearly stated by this witness, then under such circumstances, her evidence appears to be doubtful and the benefit of doubt has to go the accused.
14. Be that as it may, even as could be seen from the evidence of PW-23, the Police Constable who has carried the seized articles during the course of investigation to RFSL, in his evidence he has deposed that on 06.05.2010 he has been deputed by CPI to the 22 FSL, Bangalore along with two articles and two articles were duly sealed and he has gone to Bangalore and FSL authorities did not receive the articles because they were not properly sealed and the same have been brought back. But PW-24 has again carried the said articles on 08.08.2010 and has given for the purpose of chemical examination to Bangalore. But as could be seen from Ex.P-28 the said articles are said to have been sent in a sealed box and the seals were in tact. When the seals were said to be in tact, the question arises as to in whose presence the said seals have been made and if really in the first instance seals were not in tact, subsequently if the Investigating Officer has sealed them and sent, atleast he could have drawn a mahazar by calling the same witness or independent witness. In the absence of such material, it creates doubt in the case of the prosecution.
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15. Be that as it may, the another factor which has been seen from Ex.P-28 is that the Ballistic Expert has opined that it is not possible to state as to whether the cartridge case in Article No.C-2 has been fired through the Single Shot Pistol in Article No.C-1 or not. When the Ballistic Expert himself has expressed the doubt with regard to the firing of the said cartridge from the said country pistol, then under such circumstances the doubt creates whether it is the same pistol with which the accused assaulted the deceased. When all the material witnesses have not supported the case of the prosecution and when the evidence of PW-6 also is not trustworthy and reliable, then under such circumstances the benefit of doubt has to go to the accused. We are conscious of the fact that merely because she is an interested and related witness, her evidence cannot be discarded. Provided if the said evidence is cogent, concrete and acceptable the Court can accept the same and convict the accused. But 24 under the above said facts and circumstances, the evidence which has been given by the said witness is not acceptable in law.
16. Even as could be seen from the records it is the case of the prosecution that accused used to allege that because of one Basappa he has suffered with loss to the extent of Rs.5,00,000/- and he used to come and tell the same before the deceased and deceased has told him not to come and tell about the same and not to come to his house. Being enraged with this, the accused has assaulted the deceased. That itself appears to be surprising. In the first instance, said Basappa has been examined as PW-21 and he has not supported the case of the prosecution with regard to any transaction with accused and himself and even if some transaction was existing between PW-21 and the accused, then under such circumstances the animosity will be there with PW-21 rather than with the deceased. The motive 25 which is said to have been alleged as against the accused itself is doubtful and in that light also the prosecution case creates a doubt. Taking into consideration the above said factual matrix of the case on hand, we are of the considered opinion that the trial Court without taking into consideration the actual evidence in its proper perspective, has come to a wrong conclusion and has wrongly convicted the accused. Though the State has preferred the appeal contending that the accused has to be sentenced for the offence punishable under Sections 25 and 27 of the Indian Arms Act but when the prosecution case itself has created a doubt to the effect that the said pistol which is used is the same pistol and it is the accused who has assaulted the deceased with the pistol and there is no coordination and connection between the cartridge and the pistol, under such circumstances we are of the considered opinion that the appeal filed by the State is liable to be dismissed as devoid of merits. Even as 26 could be seen from the evidence of PW-5 and PW-7 they are the material witnesses for seizure of the pistol at the instance of the accused. They have not supported the case of the prosecution and they have completely turned hostile. Under such circumstances, the possession of the accused with reference to the pistol itself has not been established. Though the Investigating Officer has deposed with reference to the recovery of the said pistol but when the panch witnesses have not supported the case of the prosecution, his evidence does not substantiate the case of the prosecution. In that light also the appeal filed by the State is not sustainable and the same is liable to be dismissed. Taking into consideration the above said factual matrix, we pass the following:
ORDER Criminal Appeal No.3592/2013 filed by the State is dismissed as devoid of merits. Criminal Appeal No.3582/2013 filed by the accused is allowed. The 27 judgment of conviction dated 06.04.2013 and the order of sentence dated 10.04.2013 passed by the Fast Track Court-I/II, Vijayapur in S.C.No.119/2010 is set aside and the appellant-accused is acquitted of all the charges levelled against him. He shall be released forthwith if he is not required in any other case.
The Jail Authorities are hereby directed to release the appellant-accused Sri Ashok S/o Mallappa Gantgal resident of Chadchan, Taluk Indi, District, Vijaypur, forthwith, if he is not required in any other case.
The Registry is hereby directed to intimate the Principal District and Sessions Judge, Vijayapura as well as the concerned Jail Authorities through e-mail to release the appellant - accused Sri Ashok S/o Mallappa Gantgal, resident of Chadchan, Taluk Indi, District, Vijaypur, forthwith, if he is not required in any other case.28
The Registry is also directed to send back the trial Court records.
Sd/-
JUDGE Sd/-
JUDGE swk