Karnataka High Court
Palani vs The State Of Karnataka on 6 December, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2023:KHC:44227
CRL.A No. 79 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 79 OF 2012
BETWEEN:
PALANI,
S/O GOVINDASWAMY,
AGED ABOUT 24 YEARS,
R/A INDOMAVATU, DHARMAPURI DISTRICT,
TAMILNADU, R/AT MODURU,
KASBA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT.
...APPELLANT
(BY SRI. SHIVASWAMY, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY THE CIRCLE INSPECTOR OF POLICE,
KUNIGAL CIRCLE, KUNIGAL,
Digitally signed
TUMKUR DISTRICT.
by CHAITHRA REPRESENTED BY STATE PUBLIC PROSECUTOR,
P
Location: High
HIGH COURT BUILDING,
Court of BANGALORE - 560 001.
Karnataka
...RESPONDENT
(BY SRI. B. LAKSHMAN, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE ORDER DATED: 2.12.2011 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, TUMKUR IN S.C.NO.224/2010 -
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 4(B) AND 5 OF THE
EXPLOSIVE SUBSTANCES ACT 1908.
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CRL.A No. 79 of 2012
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The judgment and order dated 02.12.2011 passed by the
Court of Principal Sessions Judge at Tumakuru in
S.C.No.224/2010 is under challenge in this appeal preferred by
accused No.2.
2. Charges were framed against accused Nos.1 and 2
for the offence punishable under Sections 4 and 5 of the
Explosive Substances Act, 1908 (hereinafter referred to as 'the
Act' for short). The learned Sessions Judge was pleased to
acquit accused No.1 and convict the appellant/accused No.2 for
the charged offences.
3. The appellant/accused No.2 has been sentenced to
undergo simple imprisonment for a period of four years along
with a fine of Rs.3,000/- and in default to pay the fine amount,
to further undergo simple imprisonment for a period three
months for the offence punishable under Section 4(b) of the
Act. He is sentenced to undergo simple imprisonment for a
period of three years and to pay fine of Rs.2,000/- and in
default to pay the fine, to further undergo simple imprisonment
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for a period of two months for the offence punishable under
Section 5 of the Act.
4. Heard both the sides and perused the evidence and
material on record.
5. It is the case of the prosecution that on 19.12.2008
at about 1.00 p.m., a credible information was received by the
Police Sub-Inspector of Huliyurdurga police station that in
survey No.6 of Kallanayakanahalli, certain persons are trying to
blast rocks using explosive substances. Immediately, the Police
Sub-Inspector/PW-8 accompanied with the panchas and his
staff went to the spot, from where they apprehended accused
No.2, who was found in possession of three gelatin sticks, 7
capes and a blue colour wire measuring 7 feet, wrapped in a
plastic paper. Another person, who was along with accused
No.2 ran away from the spot. The explosive substances found
in the possession of accused No.2 were seized under a
mahazar-Ex.P2 in the presence of panch witnesses.
6. According to the prosecution, accused Nos.1 and 2
were in illegal possession of explosive substances kept with
them for the purpose of blasting the rocks in the Government
gomal land bearing survey No.6 situated at Moduru,
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Kallanayakanahalli village, without having any valid permit or
license.
7. In order to bring home the guilt of the accused, the
prosecution got examined PWs.1 to 10 and got marked Exs.P-1
to P-14 and M.O.Nos.1 to 3.
8. Amongst the prosecution witnesses, PWs-1 to 4 and
9 have not supported the case of prosecution. PWs-5 and 6 are
the Police Constable, who are part of the riding team. PW-7 is
the Deputy Commissioner, who issued sanction order marked
as per Ex.P-11 for the prosecution of the accused. PW-8 is the
Police Sub-Inspector, who headed the riding team. PW-10 is
the Circle Inspector of Police/IO, who concluded the
investigation and laid the charge sheet.
9. Ex.P-2 is the seizure mahazar under which the
explosive substances are alleged to have been seized from the
possession of accused No.2. The said mahazar was drawn on
19.12.2008 between 2.00 p.m. and 3.00 p.m. The mahazars
are signed by three witnesses namely Jayaram (PW-2),
H.N.Venkateshaiah (PW-3) and one Veerashetty.
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10. According to the prosecution, the Police Sub-
Inspector of Huliyurdurga police station received a credible
information regarding un-authorized use of explosives and
blasting of rocks at Kallanayakanahalli village near Moduru. In
his deposition PW-8 has stated that, he received the
information at about 1.00 p.m. on 19.12.2008 that in survey
No.6 of Kallanayakanahalli village, certain persons are blasting
the rocks using explosive substances. Therefore, he along with
his staff and panchas went to the spot to conduct a ride. He
has stated that two persons were sitting near the rock and on
seeing them, they tried to run away. They were able to
apprehend accused No.2 but, another person escaped. He has
further stated that accused No.2 was holding a plastic bag in
which three gelatin sticks, 7 capes and 7 feet blue colour wire
were found, which are seized under a mahazar-Ex.P-2. Both
PWs-5 and 6, the Police Constables who went along with
PW-8 to the spot have deposed about apprehending accused
No.2 and seizure of M.Os.-1 to 3.
11. FIR was registered showing one Gangadhara as
accused No.1 and Palani, the appellant as accused No.2.
According to PWs-5, 6 and 8, there were two persons present
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when they went to the spot. On the basis of the statement of
the accused, the person who ran away from the spot was
identified as one Gangadhara S/o late Ningaiah, as mentioned
in Ex.P-2. However, while filing charge sheet, the said
Gangadhara was dropped and charge sheet was filed against
one Narayana S/o late Venkatashetty, in place of Gangadhara,
arraigning him as accused No.1. In the cross examination, PW-
6 has stated that on 04.08.2009 when the accused was
enquired, he informed that the person who ran away from the
spot was not Gangadhara but, he was Narayana.
12. It is relevant to see that Gangadhara S/o late
Ningaiah has been examined as PW-1. He has stated in his
chief-examination that, between 1995-2000 he used to blast
the rocks under a license, in survey No.6 of Moduru
Kallanayakanahalli village. After the contract was over, he
entered politics. Even though the incident took place on
19.12.2008 and FIR was registered against the appellant and
one Gangadharaiah, who according to PW-8 was the person
who ran away from the spot, the said accused was not charge
sheeted. On the other hand, he has been cited as a witness.
PW-8 has stated that on 04.08.2009, he got information that
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accused who ran away from the spot was not Gangadhara but,
it was Narayana. Hence, PW-10 who took over investigation
from PW-8, filed charge sheet against the said Narayana and
appellant herein. Hence, the investigation conducted in this
case does not appear to be a fair investigation. The evidence
of the official witnesses therefore, requires a careful scrutiny.
13. PW-5 in his cross-examination has stated that the
seized articles were sealed in the presence of panch witnesses.
PWs-5 and 8 have also stated that seized materials were
sealed. Ex.P-2-Mahazar does not indicate that the seized
materials were sealed in the presence of panchas. It is
relevant to see that according to PW-10, the seized substances
were diffused on 10.06.2009 and thereafter, they were sent for
examination to the Forensic Science Laboratory (FSL) on
15.06.2009. It is not forthcoming as to whether the materials
were sealed once again in the presence of panchas before they
were sent to FSL after they were diffused.
14. It is the specific case of the prosecution that three
gelatin sticks, 7 capes and 7 feet blue colour wire were seized
from accused No.2. In his chief examination, PW-6 has stated
that from accused No.2 three gelatin sticks, 7 capes and a
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piece of wire were seized under a panchanama; As per the
suggestions made to one of the panch witnesses by the public
prosecutor namely, PW-2, a 5 feet wire was produced before
the Court. The witnesses have admitted that the plastic bag
held by accused No.2 was not produced before the Court.
15. In view of the above noted discrepancy and
contradictions in the case of prosecution, the evidence of PWs-5
and 6 and the Investigation Officer, namely PWs-9 and 10 does
not inspire the confidence of the Court. The FSL result alone
cannot be accepted unless the prosecution adduces credible
evidence to prove the seizure of M.Os-1 to 3.
16. As per Ex.P-2 the seizure panchanama was
conducted in the presence of three panchas namely, Jayaram
(PW-2), H.N.Venkateshaiah (PW-3) and Veerashetty. PW-2
and 3 have turned hostile. PW-2 has stated that he signed the
mahazar in the police station, whereas, PW-3 has stated that
the police came to the shop and took his signature on a paper.
PW-9-Lokesha S/o Veerashetty is another witness who was
examined by the prosecution in support of Ex.P2. However, he
has also turned hostile. He has stated that when he had been
to the police station, his signature was taken on a mahazar. He
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has stated that in his presence the police have not seized
anything.
17. From the above discussion and for the foregoing
reasons, it cannot be held that the prosecution has established
the guilt of the appellant/accused No.2 beyond reasonable
doubt. The appellant is entitled to the benefit of doubt.
Accordingly, I pass the following:-
ORDER
i) The appeal is allowed.
ii) The judgment and order dated 02.12.2011 passed by
the Court of Principal Sessions Judge at Tumakuru in
S.C.No.224/2010 is set aside.
iii) The appellant/accused No.2 is acquitted for the
offence punishable under Sections 4(b) and 5 of the Explosive
Substances Act, 1908.
iv) His bail bond stands cancelled.
Sd/-
JUDGE
CPN
