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,
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
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.
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.
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
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
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
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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punishable 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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reported 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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was 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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The 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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accused, 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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In 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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only 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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The 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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argument 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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demanded 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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The 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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between 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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cross-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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Hence, 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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accused, 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
- 29 -
family, 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
- 30 -
living). 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
- 31 -
further 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
- 32 -
partitioned 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
- 33 -
accused 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,
- 34 -
on 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
- 35 -
property. 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.
- 36 -
Thus, 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
- 37 -
Kushalappa, 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
- 38 -
belonging 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.
- 39 -
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.
- 40 -
Thus, 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.
- 41 -
Per 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
- 42 -
test 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
- 43 -
accused 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
- 44 -
he 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
- 45 -
that, 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
- 46 -
evidence 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)
- 47 -
`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
- 48 -
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
- 49 -
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
- 50 -
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
- 51 -
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,
- 52 -
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
- 53 -
hole 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
- 54 -
police 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
- 55 -
prosecute 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.
- 56 -
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
- 57 -
able 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.
- 58 -
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
- 59 -
should 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.
- 60 -
Therefore, 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,
- 61 -
coupled 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
- 62 -
denied 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.
- 63 -
Later, 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.
- 64 -
PW-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.
- 65 -
It 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.
- 66 -
However, 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.
- 67 -
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
- 68 -
statement 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
- 69 -
the 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
- 70 -
order 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
- 71 -
the 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.
- 72 -
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,
- 73 -
PW-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
- 74 -
order 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
- 75 -
him 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:
- 76 -
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.
- 77 -
To hear on sentence, the matter stands passed over.
Sd/-
JUDGE
Sd/-
JUDGE
bk/
- 78 -
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.
- 79 -
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
- 80 -
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
- 81 -
the 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/
