Mallikarjngouda S/O ... vs State Of Karnataka
2022 Latest Caselaw 1176 Kant

                             1


           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 27TH DAY OF JANUARY, 2022

                          BEFORE

           THE HON'BLE MR.JUSTICE S. RACHAIAH

                   CRL.A. No.2759/2013

BETWEEN:

MALLIKARJUNGOUDA
S/O YALLAPPAGOUDA PAVADIGOUDRA,
AGE:60 YRS, OCC:AGRICULTURIST,
R/O: SHIRUR VILLAGE,
TQ: NAVALGUND,
DIST: DHARWAD.                          ... APPELLANT

(BY SRI. VASANT G HOLEYANNAVAR, ADV.)

AND

STATE OF KARNATAKA,
R/P BY SPP OF HIGH COURT OF
KARNATAKA, DHARWAD BENCH:
AT: DHARWAD.
(CPI NAVALGUND POLICE STATION
NAVALGUND).                             ...RESPONDENT

(BY SRI. PRASHANT V.MOGALI, HCGP)

      THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE CONVICTION AND SENTENCE ORDER
DATED 26.08.2013 AND THE ORDER ON SENTENCE DATED
27.08.2013 PASSED BY THE P.O. BY II-ADDL. DIST. & SESSIONS
JUDGE, DHARWAD, IN S.C.NO.14/2012 FOR THE OFFENCES P/U/S
504, 307 OF IPC AND U/S 30 OF THE ARMS ACT, 1959 AND ACQUIT
THE APPELLANT/ACCUSED NO.1 FOR THE CHARGES LEVELED
AGAINST HIM.
                                  2

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, THIS DAY, S.RACHAIAH J., DELIVERED THE FOLLOWING:

                              ORDER

The appellant in this case has filed this appeal to set aside

the conviction and sentence order dated 26.08.2013 passed by

the II Additional District and Sessions Judge, Dharwad, in SC

No.14/2012 for the offences punishable under Sections 504 and

307 of Indian Penal Code (hereinafter for brevity referred to as,

'IPC') and Section 30 of the Indian Arms Act, 1959 (hereinafter

for brevity referred to as, 'Arms Act')

2. The Trial Court convicted the accused No.1 for the

offence punishable under Section 307 of IPC and directed him to

undergo simple imprisonment for a period of five years and he

shall also pay a fine of Rs.5,000/- and in default of payment of

fine, he shall undergo simple imprisonment for a period of six

months.

Further, the appellant has to undergo simple imprisonment

for one month each for the offence punishable under Section 504

of IPC and Section 30 of the Arms Act 1959.

Before discussing the evidence, it is necessary to go

through the brief facts.

3. The appellant and the respondent- complainant are

the own brothers. (for convenience the ranks of the Parties will

be stated as per the Trial Court rankings) They were residing

separately and their houses are situated opposite to each other.

There was a dispute between the brothers, in respect of family

properties. One of the brother namely, Arjunagouda died and

his son Shivakumar @ Kirankumar was staying with the

appellant. The said Shivakumar @ Kirankumar found missing

since three to four months. The P.W.1 has asked the

whereabouts of Shivakumar @ Kirankumar to the Accused No.1.

The Accused started scolding the complainant and there were

verbal exchanges taken place between them. On intervention of

P.W.6 and 7, the quarrel has been pacified.

4. After sometime, the complainant along with PWs.8

and 9 were sitting on the deck of the complainant. All of a

sudden, the Accused No.1, brought the gun and fired towards

the complainant. The bullet pellets hit P.W.8 and P.W.9 who

were sitting along with the complainant. Consequently, both

P.W.8 and 9 have sustained injuries. The injured were shifted to

SDM Hospital in an Ambulance.

5. Upon the complaint filed by the complainant, the

police have registered the case, conducted investigation and

submitted the report/charge sheet. The J.M.F.C Court at

Navalgund has committed the proceedings to the Sessions

Court. The accused have pleaded not guilty and claimed for

trial. The prosecution in order to prove the case before the Trial

Court, has examined 14 witnesses and got marked 22

documents i.e. Ex.P.1 to Ex.P.22 and also got marked M.O.1 to

M.O.7. After hearing the submission of both learned Public

Prosecutor and the Defense counsel, the Sessions Court

convicted the accused No.1 for the offence punishable under

Section 307 of IPC ordering him to undergo simple imprisonment

for a period of 5 years and he shall also pay a fine of Rs.5,000/-

and in default of payment of fine, he was further directed to

undergo simple imprisonment for a period of 6 months. Further,

the appellant was directed to undergo simple imprisonment for

one month each for the offence punishable under Section 504 of

IPC and Section 30 of the Arms Act 1959.

6. Being aggrieved by the above judgment and order of

conviction passed by the learned II Additional District and

Sessions Judge, Dharwad, the Accused has filed this appeal.

7. The learned counsel for the appellant/Accused

submits that, the trial Court has ignored the evidence on record

and failed to appreciate the same in right perspective and also

the conviction passed under section 307 of IPC against the

accused is not sustainable under the law, facts and

circumstances of the case.

8. Further he submits that, though the alleged firing

took place in front of the house of P.W.1., except P.W1, 8 and

9, no other independent witnesses have supported the case of

the prosecution. The M.O.1 gun said to have been seized at the

instance of accused under the seizure panchnama. However, the

witnesses of the said seizure panchnama have turned hostile.

The prosecution has failed to establish the incident and seizure

of gun from the accused.

9. Further, he submits that, the trial court has lost sight

of appreciation of related witnesses who are inimical towards the

accused.

10. Per contra, Sri.Prashant V.Mogali, learned High

Court Government Pleader submits that, the Trial Court based on

the evidence adduced has rightly convicted the accused.

11. Further, he submits that, the weapon used is a

gun which is considered as lethal weapon. Though the injuries

sustained have been considered as Simple in nature as per

medical records, the intention behind the firing could have been

looked into. Hence, interference to the well reasoned Judgment

is uncalled for and prays to reject the appeal.

12. Heard both the parties to the lis, and perused

the documents on record.

13. Questions which arises for my consideration

are:-

i) Whether the trial Court has justified that as on

the alleged date and time the incident has taken

place?

ii) Whether the prosecution has proved that the

alleged seizure of the gun i.e. M.O.1 at the

instance of the accused?

iii) Whether the prosecution has proved that P.W.8

and P.W.9 have sustained injuries by the said

M.O.1 ?

iv) Whether the Appellant has made out any grounds

to interfere in the Judgment of conviction passed

by the Trial Court?

           v)     What order?

My answers to the above questions are:-

        Point No.1: Negative

        Point No.2 :Negative

        Point No.3 : Negative

        Point No.4 : Affirmative

        Point No.5: As per the final order.

14. This Court being First Appellate Court and in

order to re-appreciate the evidence of each witnesses, it is

necessary to analyze the evidence of each witness, which reads

thus;

P.W.1 Mallannagouda Yellappagouda Paawadigoudar, is the

complainant. He has lodged a complaint on 24.01.2011 which is

marked as Ex.P1. He has reiterated the averments of the

complaint and supported the case of the prosecution. PW.2

Fakirappa Shiddappa Karigar and PW.3 Ningangouda

Shekargouda Balanagoudar have supported spot mahazar which

is marked as Ex.P2. P.W4 Niganagouda Ganganagouda Patil and

PW.5 Ravi Mahadevappa Khanagoudra are the witnesses to the

spot mahazar which is marked as Ex.P3 under which M.O.1-Gun

is said to have been seized. P.W.6 Shivanagouda Mahadevgouda

Pawadigoudar and P.W.7 Madivalagouda Naganagouda Totad are

the eyewitnesses to the incident. P.W.6 turned hostile however

another eye witnesses P.W.7 supported the case of the

prosecution. P.W.8 Rudragouda Shivanagouda and PW.9

Prashantgouda are the injured witnesses and they have

sustained injuries during the incident. P.W.10 Dr.Ashwin

Kulkarni, Medical Officer has admitted the victim on the night of

24.01.2011 at emergency ward of SDM Medical College,

Dharwad. P.W.11 Ashok Veerappa Kammar, Head Constable he

has examined the gun recovered in this case. P.W.12

Dr.Shivanand Siddappa Karigar was a duty Doctor in the

emergency ward who examined the victim and submitted a

report as per Ex.P.14. P.W.13 N.G.Prabhakar, Scientific Officer,

Truth Lab, Bangalore he has examined the cartridges and gun

and submitted his report as per Ex.P.19 which clearly shows that

the pellets recovered from the body of the injured were fired

from 12 bore gun which is recovered and identified as M.O.1.

P.W.14 Investigating Officer who has conducted the investigation

and submitted the charge sheet.

15. Before going to the details of the case, it is

necessary to look at the provision of section 307 of IPC which

reads thus;

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned".

16. On careful reading of the above said provision,

it is clear that, the intention to kill is the sine - qua - non to

attract the provision of section 307 of IPC . Injury may be minor

or grievous that is immaterial.

17. Reliance is also placed to the Judgment of the

Hon'ble Supreme Court in the case of Hari Kishan and State of

Haryana Vs. Sukhbhir Sing and others reported in AIR 1988

SC 2127. "The intention of knowledge of the accused must be

such as is necessary to constitute murder".

18. As regards the alleged incident is concerned,

though the prosecution has examined 14 witnesses, except

P.W.1, P.W.8 and P.W.9 and official witnesses, no other

independent witnesses have supported the case of the

prosecution. P.W.1, as per the evidence deposed that, he has

enquired the accused about the Shivakumar @ Kirankumar

where he was gone and what had happened to him. Annoyed by

the said enquiry, the accused started abusing and threatened

the complainant that he would kill him. Then, the accused No.

1 has went inside the house and brought the gun and fired

towards the complainant. On contrary, P.W.9 has stated that, he

along with P.W.8 have gone to ask the whereabouts of

Shivakumar @ kirankumar to the accused No.1, the said

Shivakumar @ Kirankumar who is their cousin. At that time, the

Accused No.1 had started abusing them and fired towards them.

Consequently, they have sustained injuries. The version of

P.W.8 though supported the case of the prosecution, he is none

other than the Son of P.W.1. and reiterated the version of his

father. This being the fact, the contradiction in their evidence

creates doubt in the mind of this court about the genuineness of

the incident. Thus, This court is of the opinion that, the

prosecution has failed to prove the incident that has taken place

on the alleged date and time.

19. As regards, the seizure of M.O.1-gun at the

instance of accused No.1 is concerned, the prosecution has relied

on the evidence of P.W.4 and P.W.5 who are the witnesses to

seizure - mahazar of gun M.O.1. The said seizure Panchanama

which is marked as Ex.P3 has not been proved through these

witnesses. P.W.4 and P.W.5 have turned hostile. The

prosecution has neither collected any documents to show that

the accused was the owner of the said gun nor collected any

license to use the same. As the prosecution has failed to collect

any such documents to show that ownership and licence to use,

it would be unsafe to believe that the accused No.1 is the owner

of the said M.O.No.1. and the same has been seized at his

instance. It is trite law that, when the seizure - mahazar

witnesses have turned hostile, the evidence of the Investigating

officer can be relied upon to prove the seizure. In this case, the

prosecution has miserably failed to collect the documents of

ownership of the gun. Hence, this Court is of the opinion that

the prosecution has failed to prove the ownership of the gun and

its usage by the accused is doubtful. The said doubt should

obviously be benefit to the accused.

20. Though, the Trial court has not discussed

about evidence of related witnesses, it is necessary to discuss

about the related witnesses and its evidentiary value. The

enmity between P.W.1 and the accused has been established

through his cross examination. It is the case of the prosecution

that, the accused has not properly partitioned the property. The

share of P.W.1 has unevenly distributed. Further, P.W.1 in his

cross-examination has admitted that, usually, the villagers could

fire in the air to make run the wild pigs from spoiling the crops

during night hours. As the prosecution has failed to prove the

gun belongs to the accused, the suggestion of the accused

matters a lot. Hence, the evidence of the related witness in this

case can not be believed about the incident, seizure of the gun

and alleged firing in absence of the other corroboration.

21. As regards the injuries of P.W.8 and 9 is

concerned, it is true that, the P.W.8 and 9 have sustained

injuries. The Doctor P.W.10 examined the injured and submitted

report as per Ex.P8 to 10 and Ex.P11 and 12. The Ballistic expert

has examined the gun and submitted report as per Ex.P19.

However, the prosecution has failed to prove that, the said

injuries have been caused by the accused by using his gun

M.O.1. Thus, the evidence of P.W.8 and 9 are unable to accept

as gospel truth about the incident.

22. As the Prosecution has failed to prove the

incident, the seizure of gun and ownership and license to hold

the gun etc., this Court is of the opinion that there is a doubt

about the incident. In absence of independent witnesses, it is

unsafe to conclude that, the alleged incident had been proved by

the prosecution. Further, the seizure of the gun at the instance

of accused No.1 is also doubtful because, the witness to the

seizure - Mahazar have turned hostile. No such clinching

evidence forthcoming from the entire evidence and documents

with respect to ownership of the gun. Hence, This Court after

considering over all evidence and material on record opined that

the alleged incident and seizure of the gun at the instance of

accused No.1 is doubtful. Such doubt must go to accused as

benefit of doubt. Accordingly, the accused No.1 is entitled for

acquittal for the alleged offence under Section 307 and 504 of

IPC and Section 30 of the Indian Arms Act.

23. Thus, the appellant has made out grounds to

interfere in the judgment which is impugned herein The appeal

filed by the Appellant is deserved to be allowed, accordingly, I

pass the following

ORDER

The Appeal filed by the Appellant is allowed. The Impugned

Judgment and order of conviction passed by the II Additional

District and Session Judge at Dharwad in S.C. No. 14/2012

dated 26/08/2013 is set - aside. Consequently, the accused is

set - at liberty, if he is not required in any other case.

Sd/-

JUDGE

Vmb/Un