Karnataka High Court
State Of Karnataka vs Umesha C N on 13 December, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.1783 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M. ADIGA
CRIMINAL APPEAL NO.1783 OF 2017 (A)
BETWEEN:
State of Karnataka,
By Somwarpet Police,
Rep. by State Public prosecutor,
High Court Building,
Bengaluru-1. .. Appellant
( By Sri B.N.Jagadeesha, Addl.SPP )
AND:
Umesha C.N.,
S/o Subbaiah,
Aged about 37 years,
Chikkatholur Village,
Somwarpet Taluk-571 236. .. Respondent
( By Sri S.Mahesh, Advocate )
This Appeal is filed under Section 378(1) and (3) of Code
of Criminal Procedure, praying to grant leave to file the appeal
against the judgment and order of acquittal dated 06.06.2017
passed by the Court of the Prl.Sessions Judge, Kodagu at
Madikeri in Sessions case No.29/2015, acquitting the accused
of the offences punishable under Sections 341, 307 of IPC and
Section 30 of Indian Arms Act, 1959, set aside the judgment
and order of acquittal dated 06.06.2017 passed by the Court of
the Prl.Sessions Judge, Kodagu at Madikeri in Sessions case
No.29/2015, acquitting the accused of the offences punishable
under Sections 341, 307 of IPC and Section 30 of Indian Arms
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CRL.A No.1783 of 2017
Act, 1959, and convict and sentence the respondent-accused
for the offences punishable under Sections 341, 307 of IPC and
Section 30 of Indian Arms Act, 1959, in the interest of justice.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
16.11.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 06.06.2017, passed by the learned Prl.Sessions Judge, Kodagu, at Madikeri (hereinafter for brevity referred to as the `Sessions Judge's Court') in S.C.No.29/2015, acquitting the accused of the offence punishable under Sections 341, 307 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC') and Section 30 of the Arms Act, 1959 (hereinafter for brevity referred to as `Arms Act').
2. The summary of the case of the prosecution as stated in the charge sheet is that, on the date 17.02.2014, -3- CRL.A No.1783 of 2017 at about 6.00 p.m., when the complainant Sri C.N.Subbaiah, the father of the accused, was going towards his house in Chikkatholuru village of Somawarpet Taluk, within the limits of complainant-Police Station, the accused, who is his second son, wrongfully restrained him from moving further, picked up quarrel with him with regard to partition of the family properties, demanded an additional share to him and when refused by the complainant, who is his father, fired at him with a SBBL gun, however, the pellets missed the target and hit on the wall of the house of the complainant. Thus, the accused has committed the offences punishable under Sections 341, 307 of Indian Penal Code and Sections 3, 25 and 27 of the Arms Act, 1959.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused for the offences punishable under Sections 341, 307 of IPC and under Section 30 of the Arms Act, 1959. Since the accused pleaded not guilty, the trial was held, wherein in order to prove the alleged -4- CRL.A No.1783 of 2017 guilt against the accused, the prosecution got examined ten (10) witnesses from PW-1 to PW-10, got produced and marked documents from Exs.P-1 to P-9 and got produced two Material Objects at MO-1 and MO-2. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 06.06.2017, acquitted the accused of the offences punishable under Sections 341, 307 of IPC and under Section 30 of the Arms Act, 1959. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by the learned Addl.State Public Prosecutor and respondent/accused is represented by his learned counsel. The learned Addl.State Public Prosecutor and the learned counsel for the respondent (accused) are physically appearing in the Court.
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6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
9. Learned Addl.State Public Prosecutor appearing for the appellant-State in his argument submitted that the evidence of PW-1, who is the complainant, being the victim's evidence could not be shaken in his cross-examination from the defence side. This itself is sufficient to hold the accused guilty of the alleged offences. Still his evidence is supported by the evidence of PW-4 and PW-5. Even PW-6 also has supported the case of the prosecution stating that she too had heard the bullets sound, which has remained undisputed. -6- CRL.A No.1783 of 2017
He further submitted that the recovery of the empty cartridge at MO-1 from the spot and the recovery of SBBL gun at MO-2 at the instance of the accused further supports the case of the prosecution. In the cross- examination of PW-1, the accused has admitted the incident. Thus, the guilt of the accused for the alleged offences has been proved beyond reasonable doubt, however, the Sessions Judge's Court assuming certain doubts on its own in the matter, which doubts were totally uncalled for and untenable, has acquitted the accused of the alleged offences. Thus, the same deserves to be set aside and accused deserves to be convicted for the alleged offences.
10. Learned counsel for the respondent/accused in his argument at the outset submitted that the complainant and the accused being father and son, they have settled the matter and have decided to live peacefully, as such, by invoking the power under Section 482 of Cr.P.C., the matter may be closed. In his support, he relied upon a judgment of Hon'ble Apex Court reported in -7- CRL.A No.1783 of 2017 State of Madhya Pradesh -vs- Laxmi Narayan and others, reported in (2019) 5 SCC 688.
Learned counsel for the respondent/accused further submitted that except the complainant, there are no other eye witnesses to the alleged incident and the sole evidence of PW-1 does not inspire confidence to believe. Further, the motive is a double-edged weapon, still, the prosecution could not able to prove the motive behind the alleged commission of crime. He further submitted that, with respect to the scribe of the complaint, there is variation among the prosecution witnesses, which creates a serious doubt with respect to the first information report, as such, the same would go to the root of the case of the prosecution. Hence, the version of the prosecution cannot be believed.
Learned counsel further submitted that the place of the alleged incident is also not clear. Non-examination of Kushalappa and non-examination of Mallesh, who are the material witnesses, are fatal to the case of the prosecution. He also submitted that the alleged recovery -8- CRL.A No.1783 of 2017 of gun (`kovi' in the local language) further intensifies the doubt in the case of the prosecution. Finally stating that there is variation in the version of the prosecution witnesses regarding the seizure of the pellets, learned counsel submitted that it is considering these discrepancies in the case of the prosecution, the Sessions Judge's Court has rightly acquitted the accused of the alleged offences, as such, the same does not warrant any interference at the hands of this Court.
11. In his reply arguments, learned Addl.State Public Prosecutor submitted that the alleged compounding of the matter between the complainant and the accused and that they are now living happily are all not known to the prosecution, as such, the prosecution would not support the same. He further submitted that the appeal is by the State, but, not by the complainant. The State is not ready and interested in either compromising the matter or compounding it. Further, the alleged offence is a heinous offence, which is non-compoundable also. He further submitted that non-examination of Mallesh or Kushalappa -9- CRL.A No.1783 of 2017 is not fatal to the case of the prosecution. Even in the absence of their evidence, the prosecution has proved the guilt of the accused beyond all reasonable doubt. Stating that the evidence of the victim/complainant is sufficient to hold the accused guilty of the alleged offences, he relied upon judgments of Hon'ble Apex Court in Lakshman Singh
-vs- State of Bihar (Now Jharkhand) and connected matters, reported in (2021) 9 SCC 191 and Ashok Kumar
-vs- State of Uttar Pradesh and connected matters, reported in 2022 SCC OnLine SC 1525.
12. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond all reasonable doubt that on the date 17.02.2014, at about 6.00 p.m., near the house of CW-1 (PW-1) C.N.Subbaiah in Chikkatholuru village of Somwarpet Taluk, within the limits of complainant-Police Station, while CW-1 C.N.Subbaiah was going towards his house, the accused wrongfully restrained him from moving further and thereby has committed an offence
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punishable under Section 341 of Indian Penal Code, 1860?
(ii) Whether the prosecution has proved beyond all reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused by firing at his father CW-1 (PW-1) C.N.Subbaiah, attempted to commit his murder with an intention to kill him and with a knowledge that by his act, had he caused the death of CW-1, he would have been guilty of murder and thereby has committed an offence punishable under Section 307 of Indian Penal Code, 1860?
(iii) Whether the prosecution has proved beyond all reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused being an agriculturist, possessing a single barrel gun with exemption certificate issued by the competent authority, but, used the said gun for the commission of an offence of attempting to murder punishable under Section 307 of IPC, by firing a shot at his father CW-1 C.N.Subbaiah and thus has contravened the conditions of licence and the provisions (Sections 3, 25 and 27) of the Arms Act, 1959 and thereby has committed an offence
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CRL.A No.1783 of 2017punishable under Section 30 of the Arms Act, 1959?
[iv] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
13. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that the present appeal is filed by the complainant-State against the judgment of acquittal of the accused from the alleged offences punishable under Sections 341, 307 of IPC and Section 30 of the Arms Act, 1959. Since as per criminal law, the accused is presumed to be innocent until his guilt is proved and further the accused, in the instant case, has already been benefitted by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka,
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CRL.A No.1783 of 2017reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment
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CRL.A No.1783 of 2017was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
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CRL.A No.1783 of 2017The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in Roopwanti -vs- State of Haryana and others, reported in AIR 2023 SC 1199.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
14. Before going into the merits of the case, the opening submission made by the learned counsel for the respondent/accused in his argument that parties have compromised and settled the matter, as such, this Court by invoking Section 482 of Cr.P.C. be pleased to close the matter is required to be considered. However, the said submission was strongly opposed by learned Addl.State Public Prosecutor appearing for the appellant/State.
15. The fact that the accused is the younger son of PW-1 (CW-1) Subbaiah is not in dispute. The evidence to that effect by PW-1 (CW-1) Subbaiah, the father of the
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CRL.A No.1783 of 2017accused, PW-4 (CW-4) Smt.Jayamma, the mother of the accused, PW-5 (CW-5) Sri Harish, elder brother of the accused and PW-6 (CW-6) Smt.Veena, the wife of PW-5, as such, sister-in-law of the accused, has remained undenied and undisputed. It is in this background, learned counsel for the respondent at the outset submitted that the complainant and the accused as the father and son have settled the matter and have decided to live peacefully, as such, this Court by invoking the power under Section 482 of Cr.P.C. be pleased to treat the matter as closed. In his support, he relied upon a judgment of Hon'ble Apex Court in Laxmi Narayan's case (supra).
16. In the said case, a two-Judge Bench of the Hon'ble Apex Court by its order dated 08.09.2017, in view of the apparent conflict between the two decisions of the Hon'ble Apex Court in Narinder Singh -vs- State of Punjab, reported in (2014) 6 SCC 466 and State of Rajasthan -vs- Shambhu Kewat, reported in (2014) 4 SCC 149, had referred the matter to a Bench of three Judges.
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CRL.A No.1783 of 2017In the case before the Hon'ble Apex Court, the State of Madhya Pradesh had challenged the order of the High Court of Madhya Pradesh passed in Miscellaneous Criminal Case No.8000 of 2013, under Section 482 of Cr.P.C., quashing the criminal proceedings against the accused arising out of the FIR for the offence punishable under Section 307 read with Section 34 of IPC on the sole ground of a compromise arrived at between the accused and the complainant. The Hon'ble Apex Court after considering its various previous decisions and the law on the point was pleased to observe that, under Section 482 of Cr.P.C., the High Court has inherent powers to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, the said power is to be exercised sparingly and with caution. With the said observation in Para-15 of its judgment, the Hon'ble Apex Court was pleased to summarise the law as below :
"15. xxx xxx xxx 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings
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for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, decoity, etc. Such offences are not private in nature and have a serious impact on society;
15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;
15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious
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impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh -vs- State of Punjab, (2014) 6 SCC 466, should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove.
15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable
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offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc."
A reading of the above principle laid down by the Hon'ble Apex Court, particularly at Para-15.4 above, go to show that the High Court is required to exercise as to whether incorporation of Section 307 of IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 of IPC. For this purpose, the High Court may also have to consider the nature of the injuries sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of the weapons used etc., It further stated that the said exercisal of power under Section 482 of Cr.P.C. by the High Court to quash the proceedings on the ground of alleged compromise of the matter between the parties would be
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CRL.A No.1783 of 2017only after investigation of the matter by the investigating agency, filing of the charge sheet, framing of the charge or during the trial.
17. In the instant case, admittedly for the charges framed against the accused, a full-fledged trial took place and judgment of the Sessions Judge's Court on the merits of the case has also been pronounced. Aggrieved by the same, the State has preferred this appeal challenging the acquittal of the accused for the offences punishable under Sections 341, 307 of IPC and Section 30 of the Arms Act. Therefore, it is not a case where the alleged compromise was entered into between the parties during the stage of the trial of the case before the Sessions Judge's Court or prior to that, but, it is after pronouncement of the judgment by the Sessions Judge's Court after completion of the trial and during pendency of the appeal filed by the aggrieved party who is not satisfied with the judgment of the Sessions Judge's Court. Further the appeal is filed not by the alleged victim i.e., the complainant (PW-1/CW-1) Subbaiah, but, the appeal is filed by the State.
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CRL.A No.1783 of 2017The alleged offences are heinous and serious offences, as such, they are to be treated as a crime against the society and not against the individual alone.
18. According to the learned Addl.State Public Prosecutor for the State, the appellant-State is not willing to compromise the matter, rather, it would contest the matter since it believes that it has got a good case on its merits. Thus, the complainant (PW-1) Subbaiah, would have least scope to compromise the matter and pursue the State to compromise. Added to this, the said complainant Sri Subbaiah (PW-1/CW-1) has not approached this Court by filing a petition, much less, under Section 482 of Cr.P.C. reporting the alleged compromise if any. No petition or application of alleged compromise has been filed before this Court by either side. Thus, under the said circumstances, merely at the oral submission of learned counsel for the accused (respondent herein), it cannot be held that the parties have compromised the matter, as such, the appeal requires to be closed. For these reasons, the first point of
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CRL.A No.1783 of 2017argument of learned counsel for the respondent that parties have compromised the matter, as such, the appeal deserves to be closed, is not acceptable.
19. Among the ten witnesses examined by the prosecution, it is PW-1, PW-4, PW-5 and PW-6 who are shown to have spoken about the alleged incident.
PW-1/CW-1 Sri C.N.Subbaiah while reiterating the contents of his complaint at Ex.P-1 stated that he was having 6 acres of land and the same was partitioned about four to five years back between himself and his two sons i.e., his elder son Harish (CW-5/PW-5) and the accused. Each one of them got 2 acres of land. All of them were residing separately and cultivating the lands separately. The accused is residing at a distance of about 1 km. from his house in their village Chikkotholuru. The accused is married and has a child. The elder son Harish (CW-5) is residing in a house adjacent to his (of this witness) house. PW-1 has further stated that after partition, himself and accused were not talking to each other as the accused
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CRL.A No.1783 of 2017demanded his share to be partitioned leading to partition in the family. Being not satisfied with the same, the accused was also demanding to give share in that portion of the property which has gone to his (of this witness) share. However, he was telling to the accused that he can take the share only after his death.
20. About the incident, PW-1 has stated that an year back prior to the date of the incident, one Monday at about 6.00 p.m., when he came near his house from outside, the accused came in front of him and demanded for land. The accused was holding the gun (kovi). He asked the accused as to who instigated him to ask for share, at which, the accused fired at him through the said gun which he was holding. However, the bullet hit to the wall of his house. On hearing the noise, CWs-4 to 6 came there. The accused stayed in the spot for some time and thereafter, he left the place. It is then at about 9.00 p.m. on the same night, he lodged a complaint with the police against the accused, which complaint he has identified at Ex.P-1.
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CRL.A No.1783 of 2017The witness has further stated that on the next day, the complainant-Police visited the spot and drew a scene of offence panchanama as per Ex.P-2 and also seized an empty cartridge, which this witness has identified at MO-1. He also stated that the gun belongs to the accused and he purchased it after the partition, hence he could not identify it.
21. In his cross-examination from the accused side, the witness has stated that he has 2 acres of land which is a granted land. He has 4 acres of ancestral property in Survey No.56 and Survey No.36. He gave the details of how those lands came to him in partition. He also stated that accused used to quarrel with him now and then, however, he has not given any police complaint in that regard earlier. Giving more details about the incident, the witness has stated that, in the morning of the date of the incident, he had been to Somawarpet to sell coffee seeds and to get money. At the time of the incident, he was coming from the house of Mohana after giving him the sale money. There is a distance of about 100 meters
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CRL.A No.1783 of 2017between his house and the house of said Mohana. He also stated that while he was returning to his house, the accused was going in front at a distance of about 50 feet. No other persons acquainted to him were found in that place at that time. He further stated that accused had held the gun in his right hand and five cartridges between five fingers of his left hand. Giving more description about the incident, the witness stated that the accused had stood in the bane land of Kushalappa and thereafter, he called him as Anna and then he asked him to give a share and thereafter, he ran back at a distance of 15 ft. and fired gunshot at him, which was about a distance of 20 ft. from his house to the place of firing. No pellet hit him at that time. After the accused firing gunshot at him, he went near the accused and snatched one cartridge from him. After lapse of about five minutes, CWs.4 to 6 came to the spot and at that time, the accused abused them and returned to his house. He also stated that the police when visited the spot have seen the pellet hit hole. Except giving more details about the alleged incident in the
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CRL.A No.1783 of 2017cross-examination of PW-1, no statements favourable to the accused could be elicited in his cross-examination.
22. The second witness who has spoken about the incident is PW-4 (CW-4) Smt.Jayamma, wife of Subbaiah. The said witness in her evidence has stated about division of property of 6 acres of land among her husband and her two sons, including the accused, at 2 acres each, on the similar lines of her husband i.e., PW-1 (CW-1) Subbaiah. She stated that the accused who is her younger son used to pick up quarrel with her and his father demanding the half share in the property which had gone to the share of her husband. For that, they were telling to him to wait till their death to get the share in that property since that property is required for their livelihood.
23. About the incident, PW-4 has stated that on the date of the incident, her husband (PW-1) had been to pay jeep charges to its owner by name Sri Mohan at about 6.00 p.m. At that time, herself, her elder son CW-5 Harish and his wife CW-6 Veena were there in the house. At about 6.30 p.m., she heard a gunshot sound.
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CRL.A No.1783 of 2017Hence, herself, CW-5 and CW-6 came out of the house. They saw the accused standing at a distance of about 10 to 15 ft. armed with kovi (gun) and her husband was fell down. They lifted him, at that time, the accused ran away from the spot along with kovi towards the estate of one Sri Kushalappa. Her husband has not sustained any gunshot injuries. Since accused had pushed him, her husband had fallen.
The witness has further stated that upon enquiry, her husband i.e., CW-1, told them that accused was demanding a share from out of the share that has been gone to them (to CW-1). Though he told the accused that he can expect his share after his death, however, the accused fired gunshot at him, but, the said gunshot hit the wall. She also stated that there were pellets and empty cartridge. She identified the empty cartridge at MO-1.
She was also subjected to a detailed cross- examination, wherein, she reiterated that an alleged partition has been taken place, in which regard, an alleged Paalu Parikath was executed after the marriage of
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CRL.A No.1783 of 2017accused, but, the same was not registered. She stated that since six years, the accused was residing separately and her elder son residing separately in the house adjacent to her house from one year. She also stated that, for about five minutes, the accused was standing in the spot and then he left the spot. The empty cartridge was lying in the place of Kushalappa. There is a distance of about 10 ft. in-between her house and the land of Kushalappa. She also stated that, her husband, joined by their elder son CW-5 went to the police station. On the same night, the police came to their house and took empty cartridge. On the next day morning also, the police visited the spot. Thus, she gave more details about the incident and the developments took place thereafter till the police visited the spot. She denied that in order to prevent the accused from asking for a share in the property, a false case has been lodged against him.
24. PW-5 (CW-5) Harish, the elder son of PW-1 and PW-4, in his evidence corroborated the evidence of PW-1 and PW-4 that out of 6 acres of landed property of the
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CRL.A No.1783 of 2017family, his father, himself and the accused, who is his younger brother, got 2 acres each after division. CW-1 kept 2 acres for his livelihood. The accused was residing separately after the division. After some time, he started asking half share in the share of their father i.e., CW-1, for which, their father was telling to take the said share after his death.
About the incident, the witness has stated that on 17.02.2014, his father (PW-1) had been to Somawarpet Town in the jeep of one Sri Mohan to sell coffee seeds, however, his father returned early. Then, at about 6.00 p.m., he went to give the jeep charges to its owner Sri Mohan, at that time, this witness, his mother and wife (CW-6) Smt.Veena were there in the house. At about 6.30 p.m., he heard gunshot sound. Hence, himself, CW-4 and CW-6 came out of the house. They saw CW-1 lying in front of his house in the place of Kushalappa and the accused was standing at about 2 ft., away from him, armed with gun (kovi). On enquiry, CW-1 told that accused was demanding for "jeevanada aasthi" (property meant for
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CRL.A No.1783 of 2017living). CW-1 further told them that it was the accused who fired gunshot at him, however, he escaped, as such, the gunshot hit the wall of the portico. The witness stated that, then the accused ran away towards the estate. An empty cartridge was lying in the spot. The witness has identified the same at MO-1. The witness has also identified the gun at MO-2.
In his cross-examination, the witness has given the details of survey numbers of the property in which partition has been taken place and additional share that was being demanded by the accused. He stated that in the RTC, names of himself, his father and brother are entered as the owners of the respective shares, still, admitted a suggestion as true that there is a joint katha standing in the name of his father. He gave more details about the incident and the place of the incident. He reiterated that, after hearing the firing, when he came out of the house, the accused was still standing near his father, however, he did not speak to the accused. Himself and his mother also saw the bullet hit spot. He
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CRL.A No.1783 of 2017further stated that, his father told him that while he was returning from the house of Mohan where he had been to give the charges towards the jeep, the accused followed him. After hearing from his father, at about 7.00 p.m., himself along with his father went to the police station. The contents of the complaint was written by his father. The police came to the spot on the same day around 7.30 p.m. and took empty cartridge, however, they did not conduct any mahazar on the said day.
About identification of MO-2, the witness has stated that he can identify the gun at MO-2 since it is broken a little. He again admitted a suggestion that all the properties are standing in the joint name and katha of CW-1. The denial suggestions made to him were not admitted as true by him.
25. The last witness in the series who speaks about the alleged incident is PW-6 (CW-6) Smt.Veena, the wife of PW-5. This witness also has spoken about the alleged partition said to have taken place in the family of her husband, whereunder, 6 acres of land was
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CRL.A No.1783 of 2017partitioned among her father-in-law, husband and brother- in-law, and each one of them got 2 acres of land. Her father-in-law kept 2 acres for his livelihood.
About the incident, the witness did not speak anything, except stating that she was along with her child sleeping in the last room. On the next day morning, nobody told her anything, however, she also stated that around 7.00 p.m., she heard firing of gunshot, but, did not came out. She also stated that she does not know who fired gunshot and at whom.
Since she was expected to say on the lines similar to that of her husband and mother-in-law about the incident, but, did not speak anything about the same in clear terms, the witness was permitted to be treated as hostile and the prosecution was permitted to cross-examine her.
In her cross-examination, the suggestions made to her by the prosecution were not admitted as true by her. Though she admitted that she is in good terms with
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CRL.A No.1783 of 2017accused and his wife, but, denied that, because of the same, she is deposing falsely to help the accused.
26. PW-7 (CW-8) S.S.Ravikiran, then Police Sub- Inspector of complainant-Police Station in his evidence has stated that on 17.02.2014, at about 8.45 p.m., when he was incharge of the Police Station, CW-1 Subbaiah appeared before him and lodged a police complaint as per Ex.P-1, on the basis of it, he registered a case in their station Crime No.48/2014 and sent the FIR as per Ex.P-4 to the learned Magistrate.
27. The above evidence of PW-1, PW-4, PW-5 and PW-6 uniformly speaks about firing of a gunshot in the evening at about 6.00 to 6.30 p.m. on the date 17.02.2014 near the house of CW-1 Subbaiah. Admittedly, neither PW-4, PW-5 nor even PW-6 are eye witnesses to the alleged gunshot said to have been shot by the accused. The evidence of PW-6 that on that evening she heard a gunshot has not been denied from the accused side since she was not cross-examined from the accused side. Thus, the evidence that has come in uniformity that,
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CRL.A No.1783 of 2017on the evening of 17.02.2014, there was a gunshot near the house of PW-1 Subbaiah and the same was heard by PWs.4, 5 and 6, stands established.
28. The next point would be as to whether the prosecution has proved that it was the accused and accused alone who had fired the said gunshot. As already observed, the evidence of PWs.4, 5 and 6 are silent about the same. It is only PW-1 Subbaiah who has stated that it was the accused and accused only who shot the gunshot at him through the gun at MO-2. It is also the case of PW-1, his wife, elder son and daughter-in-law i.e., PW-4, PW-5 and PW-6 that they have seen the said incident. PW-1 has stated that it is only after the firing, those three persons came to the spot, which was in front of his house and in a space between his house and neighbouring land owner Sri Kushalappa. PW-1 has clearly stated that while he was returning from the home of one Sri Mohan, which was at a very short distance from his house, he saw the accused near his house and after seeing him, the accused turned back to him and asked to give share in the
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CRL.A No.1783 of 2017property. Since he refused to give the property, the accused who was holding the gun with him and also holding five cartridges in his left hand, fired from his gun aiming at him, however, the pellet did not hit the target, but, hit the wall of his house (of PW-1) making a small hole in it. The witness has also stated that, at the time the accused fired at him, it was about 12 to 15 ft. away from the accused. He also stated in his cross-examination that his house was at a distance of about 20 ft. from the place of firing. He further stated that even after the gunshot, the accused was still staying there for about five minutes when his wife, elder son and daughter-in-law (CW-4 to CW-6) came from the house. At that time, the accused was still there in the spot abusing him and then returned to his house.
29. Thus, in his cross-examination from the defence side, rather than creating some doubt in the evidence of PW-1 and making it difficult to believe, few more details about the incident and the presence of the accused in the spot till PW-4 to PW-6 came to the spot, was elicited.
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CRL.A No.1783 of 2017Thus, there is no reason to disbelieve the evidence of PW-1 that accused, who is his son, had fired a gunshot at him.
30. The evidence of PW-4 and PW-5, who are none else than the mother and elder brother of the accused also corroborates the evidence of PW-1 that after the gunshot, the accused was still there in the place and it is only after PW-4 and PW-5 went to the said place, the accused left the place. PWs.4 and 5 have been consistent in their evidence on the said point and have successfully withstood the cross-examination. There is no reason to disbelieve the evidence of PW-1, PW-4 and PW-5, who are admittedly the father, mother and elder brother of the accused.
31. Learned counsel for the accused in his argument contended that since the alleged incident is said to have taken place in the open space in-between the house of PW-1 Subbaiah and one Sri Kushalappa and the said space was said to be belonging to Sri Kushalappa, it was very much necessary for the prosecution to examine the said
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CRL.A No.1783 of 2017Kushalappa, as such, non-examination of Kushalappa, the neighbour, is fatal to the case of the prosecution.
32. No doubt, Kushalappa is shown to be the owner of the neighbouring property, having a house in his property. Admittedly, it is not the case of the prosecution that the house of Kushalappa was adjoining or adjacent to the house of PW-1 Subbaiah. On the other hand, the evidence of PW-1, PW-4 and PW-5 makes it very clear that there is some distance between the house of these two families and there is some open space between the house of Kushalappa and PW-1.
33. Even the scene of offence panchanama at Ex.P-2, which according to PW-1 - the complainant, was drawn on the next day morning of the alleged date of incident, also mentions the place of offence as of open land in front of house of Kushalappa. PW-1 has volunteered to say that there was no house situated which was belonging to Kushalappa in the spot. Thus, the spot of the alleged incident from where the accused fired was an open space
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CRL.A No.1783 of 2017belonging to Kushalappa, but, house of Kushalappa was not in that open space.
34. Even PW-4 also in her cross-examination has stated that in the spot of the offence, an empty cartridge was lying and the said place was belonging to Kushalappa. She has stated that there is a distance of about 10 ft. in-between her house and the land of Kushalappa. She has not stated that the said distance of 10 ft. is between her house and the house of Kushalappa, but, the said distance is to the land of Kushalappa. Thus, the house of Kushalappa might be in that land at a distant place, but, not at the spot, which was an open space where the accused was said to have stood and fired at his father.
Even PW-5, the elder brother of the accused, also has stated that when he came out after hearing the gunshot firing, he saw his father fallen in front of their house, however, in the place of Kushalappa. Hence, this witness also has shown that at a very short distance from his house, which according to PW-4, was about 10 ft. there was an open land belonging to Kushalappa.
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CRL.A No.1783 of 2017
35. Even though PW-2 (CW-2) Paramesh and PW-3 (CW-3) Nandeesh were projected as panchas to the scene of offence panchanama as per Ex.P-2, but, both the witnesses have not supported the case of the prosecution. Still, the evidence of PW-1, PW-4 and PW-5, which corroborates the evidence of PW-7 S.S.Ravikiran, the Investigating Officer, that he drew scene of offence panchanama as per Ex.P-2, substantially proves that the place of offence was an open space in the land of Kushalappa after the house of Subbaiah and the accused fired at Subbaiah standing in the said open space belonging to Kushalappa. Even Ex.P-2, which is the scene of offence panchanama, shows that the spot of the offence was open land belonging to Kushalappa on the eastern and southern side and on the western side, was the house of the complainant. The sketch shown in the said panchanama at Ex.P-2 also shows the house of the complainant and some open space thereafter towards eastern side, followed by the open land of Kushalappa.
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CRL.A No.1783 of 2017Thus, the house of Kushalappa cannot be expected to be an adjacent or adjoining house of PW-1. In such a situation, when it is only the land of Kushalappa that was abutting the property of PW-1 and the house of Kushalappa was at a distance from the house of PW-1, it cannot be expected that said Kushalappa should have heard the gunshot and should have rushed to the spot. Furthermore, it is nobody's case that Kushalappa was found available in his house at that point of time. As such, merely because said Kushalappa is not said to have been examined by the prosecution, that itself is not sufficient to suspect the case of the prosecution.
36. Learned High Court Government Pleader for the appellant contended in his argument that the gun used by the accused for the commission of the crime has been recovered at the instance of the accused and even the Ballistic Report also confirms that the cartridge at MO-1 was shot from the said gun, as such, the relationship of the weapon, the accused and the gunshot stands established.
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CRL.A No.1783 of 2017Per contra, learned counsel for the accused in his argument vehemently submitted that the very recovery of the gun (kovi) at MO-2 is doubtful since the owner of the house, by name Mallesh, in whose line house, the accused is said to have kept the gun, has not been examined by the prosecution. Further, the alleged place of seizure of empty cartridge at MO-1 is also not established by the prosecution, as such, the recovery of the gun is doubtful. Therefore, it cannot be held that the cartridge at MO-1 was shot by the gun at MO-2.
37. Learned counsel for the accused also relied upon a judgment of Hon'ble Apex Court in Mangu Singh -vs- Dharmendra and antoher, reported in 2016 Crl.L.J., 785, wherein in a case of an offence punishable under Section 300 of IPC and the alleged recovery of a country-made pistol and an empty cartridge, the Hon'ble Apex Court analysing Section 27 of the Evidence Act was pleased to observe that, even though Ballistic report shown that the gun was same from which shot was fired and it has remained undisputed and also formal witnesses stood the
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CRL.A No.1783 of 2017test which established that the gun was recovered in their presence, however, during investigation, no statement disclosing the fact/material to be discovered was proved before the Court, hence, it was held that recovery thus proved to be concocted.
38. In the instant case, the prosecution examined PW-9 Kushalappa and PW-10 Vasantha as the panchas to the alleged recovery of the gun (kovi) at MO-2 under a seizure panchanama at Ex.P-6. Though both these witnesses have identified their signatures in the said panchanama, however, stated that they signed the said mahazar at Somawarpet without knowing the contents of the same. Even after getting them treated as hostile and cross-examining them, the prosecution could not get any support from them.
Thus, the independent panchas to the alleged recovery of the gun at the instance of the accused have not supported the case of the prosecution. However, PW-7 (CW-8) S.S.Ravikiran, the Investigating Officer, in his evidence has stated that on the date 09.05.2014, the
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CRL.A No.1783 of 2017accused appeared before him along with anticipatory bail order and he formally arrested him and investigated and interrogated and recorded his voluntary statement. In the said voluntary statement, the accused apart from confessing the crime, stated that he had hidden the kovi in the line house of one Mallesh without his knowledge and if he was taken to the said place, he would show it and produce it. The relevant portion of the voluntary statement of the accused was marked at Ex.P-5, the signature of the witness was marked at Ex.P-5(a) and the signature of the accused was marked at Ex.P-5(b).
39. PW-7, the Investigating Officer has further stated that he secured two panchas by name Kushalappa (PW-9) and Vasantha (PW-10) and went to Chikkatholoru village. There the accused in the house of one Mallesh, pointed out a kovi which was lying in the bathroom and accused produced it. The witness has stated that he seized it by conducting a mahazar as per Ex.P-6. The witness apart from identifying his signature in the mahazar at Ex.P-6(a), has also identified the gun (kovi) at MO-2 and stated that
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CRL.A No.1783 of 2017he subjected the said kovi to Property Form. He has further stated that, on 18.05.2014, he sent kovi and empty cartridge to Forensic Science Laboratory, Bengaluru, for examination.
In his cross-examination, PW-7 has given more details about he recording the voluntary statement of the accused and about the recovery of the gun at MO-2. He stated that when he recorded the voluntary statement of the accused, it was him and his staff were only present, however, he did not take the signatures of his staff on the voluntary statement.
40. About the recovery, the witness has further stated that in the line houses, there were no coolie workers. Mallesh was in his house and he came along with him. There were no numbers to the line houses which were three in number. He has mentioned the same in the mahazar. The kovi (gun) was in the middle line room and in that room, there was bathroom and the said room was facing towards eastern side. There were one-by-one line houses towards north and south directions. He also stated
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CRL.A No.1783 of 2017that, on enquiry, Mallesh told them that in the line houses, nobody resides and bathroom was not being used by anybody. The suggestion that Ex.P-6 mahazar was created by him was not admitted as true by this witness.
41. Thus, apart from stating in his examination-in- chief about the alleged recovery, PW-7 in his cross- examination, that too, at the instance of the defence counsel, has given more details about the recovery of MO-2, the gun. Except making a single sentence suggestion that Ex.P-6 was created in the Police Station, nothing could be elicited in the cross-examination of PW-7 to discredit or suspect the recovery of MO-2 - gun made by PW-7 at the instance of the accused under the recovery panchanama at Ex.P-6. On the contrary, more details about the recovery was elicited from none else than the accused in the cross-examination of PW-7.
42. Our Hon'ble Apex Court in Mallikarjun and others -vs- State of Karnataka, reported in (2019) 8 SCC 359, with respect to Section 27 of the Indian Evidence Act, 1872, with regard to proof of recovery of incriminating
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CRL.A No.1783 of 2017evidence even when the panch witnesses have turned hostile, in Paragraph-23 of its judgment was pleased to observe as below:
"23. .............. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111, it was held as under:
(SCC pp. 121-22, paras 33-35) `33. In Modan Singh v. State of Rajasthan, (1978) 4 SCC 435, it was observed (at SCC p.438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra, (2001) 9 SCC 362.
34. In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10)
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`10. ...... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.'
35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case (supra), State of U.P. v. Krishna Gopal (1988) 4 SCC 302, and Anter Singh case (supra)).........' "
No doubt, the Hon'ble Apex Court in Mallikarnjun's case (supra) has opined that the sole evidence of the Investigating Officer regarding recovery cannot be brushed aside, however, it has not opined that, in all cases, the evidence of the Investigating officer is necessarily required to be accepted and proceeded further in proving the alleged guilt against the accused. In cases where the evidence of the Investigating Officer does not inspire confidence to believe the same in its entirety discarding
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the non-supporting evidence of the other projected panchas to the alleged recovery, then the evidence of the Investigating Officer also would require some corroboration.
43. In the instant case, the evidence of PW-7, as analysed above, appears to be trustworthy and believable. He has given all the details not only in his examination-in- chief, even in his cross-examination about the recovery, that too, at the instance of the accused. The gun at MO-2 was also identified by him. Except a single stray sentence of denial, the evidence of PW-7 could not be shaken in his cross-examination from the accused side. As such, the evidence of PW-7 is trustworthy and believable regarding recovery of the gun at MO-2.
44. In Mangu Singh's case (supra), the alleged recovery of country-made pistol and an empty cartridge said to have been made at the instance of the accused was suspected as concocted even though the panchas have supported the case of the prosecution, for the reason that, it is not the material recovery alone which has to be
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proved, but, the disclosure based upon which the recovery is made. The pivotal fact is making of the statement to the police which leads to recovery. It was observed that during the investigation, no statement disclosing the fact/material to be discovered was proved before the Court.
45. In the instant case, as analysed above, PW-7, the Investigating Officer in his evidence has stated about he formally arresting the accused who appeared before him, interrogating and recording his voluntary statement. The witness has stated that in his voluntary statement the accused has stated that he had hidden the kovi (gun) in the line houses of one Sri Mallesh without his knowledge and he if was taken to the said place, he would show it and produce it. The relevant portion of the voluntary statement of the accused was also marked at Ex.P-5. It is only thereafter, according to PW-7 the Investigating Officer, joined by two panchas i.e., PW-9 and PW-10, they followed the accused, who took them to the place where he had kept the gun (MO-1) and
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showing the place, produced the gun before the panchas and the Investigating Officer, which the Investigating Officer is said to have seized under panchanama at Ex.P-6. As such, in the instant case, the pivotal fact, which is making of the statement to the Investigating Officer which has led to recovery, is there and PW-7, the Investigating Officer has convincingly placed the same before the Court with the documentary corroboration at Ex.P-5. Thus, Mangu Singh's case (supra) would not come to the help of the accused in the instant case.
46. The non-examination of Mallesh would be of no consequence in the above circumstances. Even according to PW-7, the said Mallesh was not residing in the said line houses where the gun (MO-2) was said to have been kept by the accused. All the three houses in the line were vacant and abandoned. The said evidence of PW-7 has not been denied from the accused side. Moreover, according to PW-7, Mallesh was also present with him while recovering of MO-2 from one of his line houses. The said statement of PW-7 is not denied specifically in his
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cross-examination. As such, non-examination of said Mallesh as a prosecution witness is not fatal to the case of the prosecution nor even it introduces any doubt in believing the recovery of MO-2 as made at the instance of the accused.
47. PW-1 who has identified the empty cartridge at MO-1, has not attempted to identify the gun at MO-2 by stating that the gun belongs to the accused and the accused had purchased it after the partition, hence he could not identify it. The said statement of PW-1 that the said gun belongs to the accused and the accused had purchased the said gun has not been specifically denied in his cross-examination from the accused side. PW-4, the mother of the accused, who also has identified the empty cartridge at MO-1 has specifically stated that after hearing the gunshot when she came out, she saw the accused standing near her husband (PW-1), armed with a kovi (gun). PW-5, who is none else than the elder brother of the accused has identified not only empty cartridge at MO-1, but, also a gun at MO-2. He too has stated that,
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after hearing the gunshot, when he came out of the house, he saw the accused standing near his father, armed with a kovi. Stating so, he has identified the said kovi (gun) at MO-2.
48. Thus, the evidence of PW-1, PW-4 and PW-5 that the accused was armed with a kovi (gun) since has not been shaken in their cross-examination, the same proves that the accused at the time of the incident, was armed with kovi (gun), which gun, PW-5 has identified at MO-2. Therefore, it stands proved beyond doubt that, at the time of the incident, the accused was armed with a gun, which is at MO-2 and the very same gun was recovered at the instance of the accused by PW-7, the Investigating Officer under a recovery panchanama as per Ex.P-6.
49. PW-1 in his evidence has stated that when the accused shot at him through the gun which he was holding, the pellets missed the aim and instead of hitting him, they hit the wall of his (PW-1's) house. PW-4, the mother of the accused in her cross-examination has stated that, due to the gunshot made by the accused, a small
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CRL.A No.1783 of 2017hole was formed on the slab of their house and few pellets were found fallen there and four to five persons who came to the spot have picked up those pellets and threw them aside. With this, she stated that the police who visited the place on the next day morning, did not seize the pellets. She also stated that empty cartridge after firing by the accused was found fallen in the spot. She has identified the said empty cartridge at MO-1.
50. Though PW-1 and PW-2 have stated that they have few empty cartridges in their house, but, it is nobody's case that the empty cartridge at MO-1 was falsely introduced in the case and it was belonging to PW-1. Even PW-5, the elder brother of the accused also has stated that due to gunshot, his father had not sustained any injuries, however, the pellet had hit the slab of the portico and it made a hole of about ½ inch and width of about 4 inch. He also stated that he noticed two pellets in the portico and threw them. He also stated that an empty cartridge was lying in the spot, which this witness has identified at MO-1. He further stated that the
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CRL.A No.1783 of 2017police who visited the spot, took the empty cartridge. Though this witness stated that police took the empty cartridge on the evening of the date of the incident, whereas, PW-7, the Investigating Officer has stated that he seized the empty cartridge on the morning of the next day of the incident i.e., on 18.02.2014 while drawing a scene of offence panchanama as per Ex.P-2. However, both these witnesses have identified the empty cartridge at MO-1 as the very same cartridge which was found lying in the spot and seized during investigation.
51. PW-7, the first Investigating Officer has also stated that on 18.05.2014, he sent the kovi (gun) and empty cartridge to Forensic Science Laboratory (FSL), Bengaluru, for examination and thereafter due to his transfer, he handed over further investigation to CW-9. Said CW-9 Nandish Kumar, another Investigating Officer, who was examined as PW-8, in his evidence has stated that after he took up further investigation in the matter from PW-7 (CW-8) S.S.Ravikiran. He sent a requisition to obtain permission from the Deputy Commissioner to
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CRL.A No.1783 of 2017prosecute the accused under the provisions of Arms Act, through Superintendent of Police. On 10.09.2014, he received permission from the Deputy Commissioner as per Ex.P-7 and pending receipt of FSL report, he submitted charge sheet against the accused.
52. The FSL report and the Ballistic Expert's opinion with reasons were marked with consent from both side in the Sessions Judge's Court at Ex.P-8 and Ex.P-9 respectively. The FSL report at Ex.P-8 shows that the laboratory received three 12-bore cartridges, one 12-bore SBBL gun 32131 of Premsagar & Sons Mandi HP, India and one 12-bore fired cartridge case. After conducting required tests, the laboratory opined that the SBBL gun in article No.1 bears signs of discharge, but, no opinion regarding the actual date and time of firing. The SBBL gun in article No.1 was found to be in working condition at the time of examination. It also opined that the cartridge case in article No.2 has been fired through the SBBL gun in article No.1.
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53. The Ballistic Expert's report with reasons in detail gives the nature of test, including test firing conducted by them, the description of the weapon, cartridge and also their opinion regarding comparison of individual characteristics marks of firing pin, breech face and extractor/ejector marks on the cartridge case with that of the test cartridges and only thereafter came to an opinion that the empty cartridge sent to them (MO-1) was fired through the SBBL gun (MO-2).
The said report further says that the effective range of the SBBL gun was about 40 yards. Therefore, it stands established that the cartridge at MO-1 was fired through the gun at MO-2, which gun, according to PW-1, was belonging to accused, who had purchased the same after partition and the said gun was after the incident recovered at the instance of the accused by PW-7. It is also established by the Ballistic Report at Ex.P-9 that the said gun had an effective range of about 40 yards. As such, the pellets of the gunshot made by the accused standing at a distance of about 20 ft. from the house of PW-1 could
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CRL.A No.1783 of 2017able to hit the wall of the house of PW-1 and create a hole in it. The scene of offence panchanama at Ex.P-2 which PW-7, the Investigating Officer claims to have drawn by him in the presence of panchas - PW-2 and PW-3, shows that due to gunshot, the wall above the portico of house of PW-1 had sustained two holes of a depth of two to three cms. and the cement plastering of that portion of the wall was damaged.
54. Thus, even though PW-2 and PW-3, who were said to be panchas to the scene of offence panchanama have not supported the case of the prosecution that they were panchas to Ex.P-2, still, the evidence of PW-7 stands corroborated by the evidence of PW-1, PW-4 and PW-5 regarding the place of the offence and the evidence of PW-5 about the police visiting the spot and inspecting the same. Thus, it stands proved that MO-1 cartridge was fired by the accused from his gun, which is MO-2, towards PW-1.
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55. The next question would be whether the act of the accused is an act of attempt to murder his father i.e., PW-1.
Admittedly, in the instant case, PW-1 Subbaiah did not sustain any injuries. PW-1 himself has stated that the gunshot fired at him by the accused missed the target and it hit the wall of his house. Even PW-4 and PW-5 also have stated that PW-1 Subbaiah had not sustained any injuries in the alleged incident. As such, looking for the injury and the nature of the injury etc., would not arise in the case on hand.
56. A reading of Section 307 of IPC makes it clear that, it is not necessary that any injury is required to be caused on the victim by the act of the accused. The proof of causing grievous hurt or life threatening is not a sine qua non for the offence punishable under Section 307 of the Indian Penal Code. It is sufficient to base a conviction under Section 307 of IPC if there is presence of intent, coupled with some overt act executed thereon. It is not essential that bodily injury capable of causing death
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CRL.A No.1783 of 2017should have been inflicted. All though the nature of injury caused if any may have been given consideration in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may in some cases be ascertained without any reference at all to actual wounds.
57. Illustration (c) to Section 307 of IPC reads as below :
" (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this Court."
The above description go to show that the moment `A' fires the gun at `Z' with an intention to murder him, the offence punishable under Section 307 of IPC is completed. Further, if by such firing, `Z' is wounded, then, `A' would be liable to the higher punishment provided by the latter part of the first paragraph of Section 307 of IPC.
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CRL.A No.1783 of 2017Therefore, in the instant case, merely because PW-1 Subbaiah did not sustain any injury, on the other hand, he fell down, by the mere absence of the injury to PW-1, it cannot be held that Section 307 of IPC is not attracted. However, to hold that Section 307 of IPC is proved, the prosecution in addition to the alleged act of firing made by the accused, is also required to prove that the accused had an intention to murder PW-1 Subbaiah or the knowledge that his act in case causes death of Subbaiah, he (the accused) would be guilty of murder.
58. Our Hon'ble Apex Court in S.K.Khaja -vs- State of Maharashtra, Criminal Appeal No.1183/2011, dated 23.08.2013, reported in 2023 SCC OnLine SC 1093, in the case before it, wherein also the victim is said to have sustained simple injury, was pleased to observe that, merely because the injuries sustained by the complainant
- Mohammed Khan Pathan (PW-2), were very simple in nature, that would not absolve the appellant/accused from being convicted for the offence punishable under Section 307 of IPC. What is important is an intention,
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CRL.A No.1783 of 2017coupled with the overtact committed by the appellant/accused.
59. In the instant case, the intention to the act of the accused firing at his father (PW-1) has been narrated by PW-1, PW-4 and to some extent by PW-5.
PW-1, PW-4 and PW-5 have uniformly stated that among the 6 acres of land, which their family had, a partition was taken place, whereunder, PW-1, PW-5 and the accused got 2 acres each. Thereafter, they were cultivating their separate land and living separately, however, PW-1 and PW-5 were residing in adjacent houses. In order to show that the alleged partition has not taken place, several questions were put to these three witnesses in their cross-examination. In the said process, PW-1 in his cross-examination stated that he has not produced any Partition Deed or Paalu Parikath to show the division of property among them. He denied a suggestion that he has filed a false case against the accused to make him not to demand for division of property. He also
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CRL.A No.1783 of 2017denied that they are in joint possession of the entire property.
PW-4, apart from stating about the division of property and PW-1, PW-5 and the accused getting 2 acres of land under the said division, has stated that the Paalu Parikath was executed after the marriage of the accused, but, it is not registered, however, the alleged Paalu Parikath has not been produced.
PW-5 also has stated about the alleged partition, which according to him, was taken place about eight years prior to the date of his evidence, which was recorded on 01.02.2016. He stated that the Paalu Parikath though was executed, but, it is not registered. He also stated that the names of the accused, himself and CW-1/PW-1 are entered separately in the RTCs as owners of their respective shares, however, he has also admitted a suggestion that there is joint katha standing in the name of CW-1. His evidence that the RTC shows the names of the accused, PW-1 and PW-5 separately to the extent of 2 acres of land each is not denied from the accused side.
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CRL.A No.1783 of 2017Later, he admitted a suggestion that all properties are standing in the joint name and katha of CW-1. Thus, in the evidence of PW-5, suggestions were made that the property was not standing in the individual name and ownership of PW-1 (CW-1), but, the properties are standing in the joint name of all.
60. Even PW-6 also has stated about the partition and stated that about eight years back prior to her date of evidence i.e., on 01.02.2016, the property was divided into three parts and accused and CW-5 (PW-5) were given 2 acres each and CW-1 (PW-1) kept 2 acres of land for his livelihood. PW-6 was not cross-examined from the accused side. Therefore, her evidence that there was division among the properties of the family and accused, PW-5 and PW-1 got 2 acres of land each has remained undenied and undisputed.
61. It is in the background of above evidence of the parties, the evidence of PW-1, PW-4 and PW-5 regarding motive behind the alleged crime and the intention of the accused is to be analysed.
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CRL.A No.1783 of 2017PW-1 has stated that even after the partition of the property, the accused was not satisfied with the share he has got, on the other hand, he was demanding a share in that portion of the property which it had gone to the share of his father. However, PW-1 - the father, was refusing to give share to accused in his property and was telling that it was only after his death, the accused can take share in the said property. PW-1 has further stated that even on the date of the incident also, the accused who had come near the house of PW-1, demanded PW-1 for land, for which, he (PW-1) asked the accused as to who had instigated him to ask for share in his (of PW-1) share. At that time, the accused who was holding a gun, fired at him.
Thus, PW-1 has clearly shown that whenever the accused was demanding a share in the property of this witness, he was telling the accused to wait till his death to get the share. Even on the date of the incident also, the accused demanded a share in the property of his father, for which, PW-1 the father, did not respond favourably.
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CRL.A No.1783 of 2017It is then the accused fired at him with the gun he was holding. Thus, according to PW-1, the act of the accused in firing at him was intentional and with the motive.
62. PW-4 - the mother of the accused stated that, immediately after the incident, when she enquired her husband (CW-1), he told her that the accused was demanding for share in his (CW-1's) share, for that, he had told the accused to take that share after his death, however, the accused fired gunshot at him. Apart from this, PW-4, the mother of the accused, has stated in her examination-in-chief that the accused used to pick-up quarrel with his father and herself asking to give half share in the share kept for by his father. For that, they were telling him to take the said share after their demise and until then, it is required for their livelihood. The accused was again and again used to do such acts.
This evidence of PW-4 go to show that the accused was repeatedly approaching his father i.e., PW-1 (CW-1), demanding an additional share for him from out of the property that had gone to the share of his father.
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CRL.A No.1783 of 2017However, both his father and mother were refusing to give any share to him in their property and were asking him to wait till their death. This was not for the first time on the date of the incident the accused had demanded any such share.
63. PW-5, the elder brother of the accused, also stated in his evidence that, even after partition of the family property, whereunder, the accused got 2 acres of land to himself, he was demanding for half share in the share of CW-1, for which, his father i.e., CW-1, was telling to the accused to take the said share after his death. Even PW-5 also has stated that after the gunshot, when he rushed to the spot and enquired his father, he told him that the accused was demanding for `jeevanada aasthi' (property meant for livelihood). It is thereafter, he fired gunshot at him. The said evidence that at the time of the incident, the accused once again demanded a share in that portion of the property which has gone to the share of his father, has not been specifically denied from the accused side in the cross-examination.
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CRL.A No.1783 of 2017
64. Thus, the evidence of none else than the father, mother and elder brother of accused clearly go to establish that the accused since prior to the date of the incident was pestering his father (PW-1) to give him a share in the property of his father and since his father was not agreeable to the same and asking the accused to wait till his death, the accused has committed the act. Thus, the said act of the accused in firing a gunshot at his father under the above circumstance clearly establishes that the accused had decided to get a share in his father's property somehow and since his father was frequently asking him to wait till he dies, he decided to take away the life of his father. Accordingly, on the date of the incident, he approached his father duly armed with gun and cartridges and fired at his father.
65. In the above circumstances, a doubt may arise as to had the accused determined to kill his father then what prevented him to reload the gun with remaining cartridges, which according to PW-1, the accused was holding and to again fire at his father. No specific
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CRL.A No.1783 of 2017statement as an answer to this doubt can be found in the evidence of either PW-1, PW-4 or PW-5. However, from the relationship of the parties and the circumstances of the case and the evidence of PW-1, PW-4 and PW-5, what can be gathered and inferred is that, though accused had come with SBBL gun and five cartridges with him, only one cartridge was already loaded in the gun. PW-1 has stated that, after firing of the said cartridge, which missed the target and the pellet hit the wall of his house, the accused did not run away from the place, on the other hand, he was still standing there. PW-1, the father went to him and snatched a cartridge from his hand. Still, few more cartridges appears to have remained with the accused, since according to PW-1, the accused had five cartridges between his left hand fingers. PW-1 has further stated that accused loaded the second cartridge also, however, he did not fire the same.
66. As analysed above, immediately after hearing the firing made by the accused from his gun, PW-4 - the mother and PW-5 - elder brother who were in
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CRL.A No.1783 of 2017the house, came out of the house and saw both PW-1 and the accused. They have stated that the accused was still there standing very close to PW-1 and was abusing him. It is thereafter, seeing that his mother and brother have also came to the spot, he left the place along with the gun.
Thus, though the accused had come prepared, armed with a kovi and cartridges, deciding in case his father refused to give additional share in the property to him, to eliminate him and also after hearing reply of his father, fired a shot at him, but, due to the fact that the person who was his target was his father and two other persons who rushed to the spot were also his mother and own brother, probably the accused must have lost his courage to shoot once again at his father even after loading the cartridge.
67. Thus, though the accused had few cartridges with him, he did not proceed to accomplish his purpose. As such, merely because he did not accomplish his purpose by re-firing at his father, it cannot be called that he had no intention to cause the death of his father in
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CRL.A No.1783 of 2017order to achieve his purpose of getting a share in the property of his father. Therefore, the prosecution has proved the intention of the accused and the motive behind the alleged commission of the crime. Thus, it is established that the accused intended to kill his father and in that direction, he had made an attempt, which act of the accused thus proved to be an act punishable under Section 307 of IPC.
68. The accused was also charged for an offence punishable under Section 341 of IPC. It was the contention of the prosecution that before the accused firing a gunshot at his father i.e., PW-1, he had wrongfully restrained his father from proceeding further. However, the evidence of none of the prosecution witnesses, much less, PW-1 anywhere mentions that accused had restrained PW-1 wrongfully from proceeding further. No where in his evidence PW-1 has stated that when he was returning to his home from the house of Mohan, the accused restrained him from proceeding further. On the other hand, he has stated that it was he who was following
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CRL.A No.1783 of 2017the accused who was going in front of him. It is after seeing him, the accused demanded for a share in the property and thereafter moving about 10 to 12 ft. backwards, he aimed the gun at his father and fired it. Thus, absolutely there is no evidence that PW-1 was wrongfully restrained by the accused.
69. The accused is also charged for the offence punishable under Section 30 of Arms Act, 1959. PW-8 (CW-9) Nandish Kumar, the Investigating Officer, in his evidence has stated that by sending a requisition to obtain permission from the Deputy Commissioner to prosecute the accused under the provisions of Arms Act through Superintendent of Police, he received the permission, which he has produced and got marked as Ex.P-7. The said document shows that the Deputy commissioner, Kodagu District after satisfying himself that the documents placed before him by the Superintendent of Police, Kodagu District, through whom PW-8 has sent a requisition, has passed an order dated 06.09.2014, under Section 39 of the Arms Act, 1959.
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CRL.A No.1783 of 2017
70. The evidence placed by the prosecution, which is analysed above, go to show that the accused who was a licenced holder of SBBL gun, misused the said gun in attempting to kill a human being who incidentally was his father (PW-1). Thus, instead of making use of the said gun for a licenced act, he has violated the conditions of licence. Since no specific punishment is provided elsewhere in the Arms Act for the said contravening of the conditions of the licence, the act of the accused falls under Section 30 of the Arms Act, 1959. Thus, it is proved that the accused has committed the offence punishable under Section 30 of Arms Act, 1959.
71. The accused during the trial has taken a defence that a false case has been filed against him by PW-1 in order to avoid giving a share to the accused in the property. The suggestions to that effect were made to PW-1 and PW-4 in their cross-examination, however, both the witnesses have denied the said suggestion. On the other hand, as analysed above, the evidence placed by the prosecution, more particularly, the evidence of PW-1,
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CRL.A No.1783 of 2017PW-4, PW-5 and PW-6 shows that a partition among PW-1, PW-5 and the accused had already taken place, whereunder, the accused had already been given with a share of 2 acres of land. It is only thereafter the accused started residing separately with his family at a distance of about 1 km. away from the house of PW-1. Thus, when the accused has already been given with his share as per his entitlement, the question of PW-1 avoiding the accused from giving the share does not arise. On the other hand, the motive behind the crime proved by the prosecution is that the accused being not satisfied with the share what he had got, was wanted a share in the portion of the property that had gone to the share of his father. PW-1, PW-4 and PW-5 have stated that they were telling the accused to wait till the death of PW-1 to get a share in the property of his father. Thus, the prosecution evidence shows that there was nothing for PW-1 or PW-4 to give to the accused as a share since he was already given with 2 acres of land which was the equal share in the property. Therefore, the question of PW-1 filing a false complaint in
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CRL.A No.1783 of 2017order to avoid share in the property to the accused does not arise. As such, the lone defence taken up by the accused won't stand on its leg and fails to weaken the case of the prosecution in any manner. Consequently, it has to be held that the prosecution has proved the guilt of the accused punishable under Section 307 of IPC and under Section 30 of the Arms Act, 1959, beyond reasonable doubt.
However, the Sessions Judge's Court in the impugned judgment, expected an independent witness to support the case of the prosecution even in the circumstances where the availability of independent witness was not there. Further, despite there being clear evidence that the gunshot fired at PW-1 by the accused missed the target and pellets hit the wall, still, the Sessions Judge's Court expected some injury to be caused to PW-1 in the incident. As such, it expressed its doubt about PW-1 not sustaining any injuries in the incident.
72. With respect to the very minor aspect as to whether PW-1 had fallen before PW-4 and PW-5 rushed to
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CRL.A No.1783 of 2017him after the gunshot, was enlarged to such an extent to call it as a major contradiction going to the root of the case of the prosecution. When in fact, even if the same is taken as some variation in the evidence of PW-1 and PW-4, still, it was too minor to give any weightage to suspect the case of the prosecution. Further, despite the evidence of PW-1, PW-4 and PW-5 and scene of offence panchanama at Ex.P-2 mentioning about pellets hitting the wall of house of PW-1 and making a small hole in it, the Sessions Judge's Court observed that there was no proof of pellets hitting the wall. Consequently, with these unsustainable doubts and reasoning, the Sessions Judge's Court proceeded to acquit the accused of the alleged offences. However, since by virtue of the above analysis, it is proved that the accused has committed the offence punishable under Section 307 of Indian Penal Code, 1860 and under Section 30 of the Arms Act, 1959, the impugned judgment warrants interference at the hands of this Court.
Accordingly, we proceed to pass the following:
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ORDER [i] The Criminal Appeal stands allowed in-part;
[ii] The judgment in Sessions Case No.29/2015, dated 06.06.2017, passed by the learned Prl.Sessions Judge, Kodagu, at Madikeri, stands set aside, however, confining to acquittal of the accused of the offence punishable under Section 307 of the Indian Penal Code, 1860, and Section 30 of Arms Act, 1959, [iii] The accused - Umesha C.N., son of Subbaiah, resident of Chikkatholur Village, Somwarpet Taluk-571236, is convicted for the offence punishable under Section 307 of Indian Penal Code, 1860 and under Section 30 of the Arms Act, 1959.
[iv] The acquittal of the accused for the offence punishable under Section 341 of Indian Penal Code, 1860, stands confirmed.
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To hear on sentence, the matter stands passed over.
Sd/-
JUDGE Sd/-
JUDGE bk/
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Dr. HBPSJ & UMBAJ:
13.12.2023 :
HEARING ON SENTENCE Heard the submission of the learned Addl.State Public Prosecutor for the appellant on the quantum of sentence.
Learned counsel for the accused/respondent submits that the incident is a very old incident of the year 2014. The accused is a family holder having wife and children who are all his dependents, as such, he prays to take a lenient view in the matter.
Per contra, learned Addl.State Public Prosecutor in his submission submits that the offence proved is heinous in nature. The act of the accused is nothing, but, an act of attempt to kill none else than his own father. As such, maximum punishment permissible for the proven guilt be ordered.
It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.
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Hence, keeping the above principle of the sentencing policy and considering the facts and circumstances of the case and also the alleged mitigating factors canvassed before the Court and considering that there is no criminal antecedent with the accused and also keeping in mind the circumstances of the case, we proceed to pass the following:
ORDER ON SENTENCE [1] The accused - Umesha C.N., son of Subbaiah, resident of Chikkatholur Village, Somwarpet Taluk-571 236, is sentenced to undergo simple imprisonment for a period of six years and to pay a fine of `10,000/- (Rupees Ten Thousand Only) and in case of default of payment of fine, to undergo simple imprisonment for a further period of three months for the offence punishable under Section 307 of the Indian Penal Code, 1860 and to undergo simple imprisonment for a period of
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three months for the offence punishable under Section 30 of the Arms Act, 1959.
Both the above sentences shall run concurrently;
[2] The accused is entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.
[3] The accused shall surrender before the learned Sessions Judge's Court within fortyfive (45) days from today and serve the sentence as ordered above by this Court.
[4] Out of the fine amount paid, if any, by the accused, a sum of `8,000/- be paid to PW-1- Subbaiah, as compensation to the victim under Section 357 of Code of Criminal Procedure, 1973. The remaining sum of `2,000/- shall go to the State.
[5] MO-1 is ordered to be destroyed as per the order of the trial Court, however, after
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CRL.A No.1783 of 2017the period of appeal and in case, if no appeal or Special Leave Petition is preferred by the accused. The order of the Sessions Judge's Court with respect to MO-2 remains unaltered.
[6] A free copy of this judgment be furnished to the accused immediately by the Registry.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE bk/