Karnataka High Court
Kumar Prasad @ Kumar @ Nayikumar vs State Of Karnataka By on 9 January, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 1076 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1076 OF 2011
BETWEEN:
1. KUMAR PRASAD @ KUMAR
@ NAYIKUMAR
S/O NAGAPPA,
AGED ABOUT 33 YEARS
R/A 36, YALENAHALLI VILLAGE
BEGUR HOBLI
BANGALORE.
2. FRANCIS @ SWATER FRANCIS
S/O AROGYA SWAMY,
AGED ABOUT 36 YEARS
RESIDING BEHIND BEGUR CHURCH
BEGUR VILLAGE
BANGALORE - 560 068.
3. L SUNEEL
S/O LATE LINGAIAH,
AGED ABOUT 28 YEARS
R/AT NO.32, IN THE HOUSE OF
Digitally signed by
SANDHYA S ANNAMMA, 8TH MAIN,
Location: High 4TH CROSS, BEGUR MAIN ROAD
Court of Karnataka HONGASANDRA, BEGUR HOBLI
BANGALORE - 560 068.
...APPELLANTS
(BY SRI. R V RAJASHEKARA, ADVOCATE)
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CRL.A No. 1076 of 2011
AND:
STATE OF KARNATAKA BY
ELECTRONIC CITY POLICE
BANGALORE.
...RESPONDENT
(BY SRI S VISHWA MURTHY, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED:13.7.11/20.09.11 PASSED BY THE II
ADDL. S.J., BANGALORE (R) DIST., BANGALORE IN
S.C.NO.213/09 - CONVICTING THE APPELLANTS/ACCUSED NOS.2
TO 4 FOR THE OFFENCE P/U/S 399 AND 402 OF IPC AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of conviction and order
of sentence dated 13.07.2011 passed in S.C. No. 213/2009 by
the II Additional Sessions Judge, Bangalore Rural District,
Bangalore, convicting appellants - accused Nos. 2 to 4 for the
offence punishable under Sections 399 and 402 of IPC and
accused No. 3 for the offence punishable under Section
25(1B)(a) of the Arms Act. Appellant Nos. 1 and 3/accused Nos.
2 to 4 were sentenced to undergo rigorous imprisonment for a
period of 3 years and to pay fine of Rs.5,000/- for the offence
punishable under Section 399 of IPC; to undergo rigorous
CRL.A No. 1076 of 2011
imprisonment for a period of three years and to pay fine of
Rs.5,000/- for the offence punishable under Section 402 of IPC
and accused No. 3 to undergo rigorous imprisonment for a period
of 3 years and to pay fine of Rs.5,000/- for the offence
punishable under Section 25(1B)(a) of the Arms Act.
2. The prosecution case is that P.W.1 - complainant who was
working as Police Inspector CCB, Bengaluru, filed a complaint on
09.12.2008 stating that on 09.12.2008 in the evening at about
05.00 pm he received credible information stating that the
accused armed with deadly weapons were waiting on
Bommanahalli - Begur Road, Opposite Canara Bank Begur
Branch, near BMTC bus stop, in four wheelers for P.W.3 -
Puttaraju in pursuance of their conspiracy and plan to kill P.W.3 -
Puttaraju. P.W.1 secured panchas, namely, C.W.2 - Prakash and
P.W.2 - Abdul Samad to his office and informed them regarding
the information and thereafter all of them including the panchas
went to the above referred spot in departmental vehicles and
parked them at a distance. Thereafter, they checked the said
place and found two four wheelers - Tata Safari bearing
CRL.A No. 1076 of 2011
registration No. KA-51-N-63 and KA-51-P-6255 and they all
encircled the said vehicles. Two persons ran away from the said
vehicles (who are absconding - accused Nos. 5 and 6). P.W.1 and
his staff caught four persons who are accused Nos. 1 to 4 and
enquired their names and they disclosed their names. Accused
No.1 was known to the complainant as he was a rowdy sheeter
having many criminal cases registered against him. Thereafter,
P.W.1 and his staff and panchas searched the vehicles and
accused persons. Accused No. 1 was possessing a pistol in his
right pant pocket (M.O.1) and they found two mobiles of Nokia
make and seized them. Accused No. 1 revealed that said pistol is
loaded with cartridges and they were taken out and they were five
in numbers (M.O.2). Accused No. 1 revealed that he does not
possess any license for possessing the pistol. Accused No. 1
further revealed that P.W.3 - Puttaraju had engaged and hired
him and his associates to kill one Rajesh for supari amount of
Rs.30.00 lakhs. On account of said hiring, accused No.1 and his
associates killed the said Rajesh, but subsequently P.W.3 -
Puttaraju has not paid the said amount to accused No. 1 and his
associates. Hence, accused No. 1 along with accused Nos. 2 to 6
CRL.A No. 1076 of 2011
conspired and planed to kill P.W.3. In pursuance of the said
conspiracy and plan all the accused came in above referred two
vehicles and on 02.12.2008, in the evening and were waiting for
P.W.3 to kill him and rob his belongings. Accused No. 1 disclosed
name and addresses of two persons who ran away from the said
vehicles and they are accused Nos. 5 and 6. Accused No. 1 also
disclosed that accused No. 3 is possessing one revolver. P.W.1
enquired the person who was sitting in the driver seat of the said
vehicle who disclosed his name and he is accused No. 2 and
nothing was found in his possession and he admitted that he
along with the rest of the accused had conspired and planned to
kill P.W.3 - Puttaraju for non-payment of supari amount.
Thereafter, P.W.1 enquired the person sitting in the middle seat of
the vehicle who disclosed his name and he is accused No. 3. On
search, P.W.1 found one revolver (M.O.3) in his right pant pocket
and he disclosed that it was loaded with cartridges. P.W.1 found
totally seven cartridges (M.O.4). He also disclosed that they had
come to the said place as per conspiracy and plan to kill P.W.3 -
Puttaraju for the above said reason. Thereafter P.W.1 enquired
another person who was sitting by the side of accused No. 3 and
CRL.A No. 1076 of 2011
he disclosed his name and address and he is accused No. 4 and a
Nokia company phone was found (M.O.7). He also disclosed that
he and rest of the accused had conspired to kill P.W.3 - Puttaraju
for the aforesaid reason. P.W.1 found said two Tata Safari vehicles
and enquired with regard to their ownership and one was bearing
registration No. KA-51-P-6255 and another, KA-51-N-63. P.W.1
seized the said vehicles and material objects under panchanama
Ex.P.1 between 07.00 pm and 08.30 pm on 09.12.2008 and
thereafter went to jurisdictional Police station and filed written
complaint Ex.P.2 at about 09.30 pm and handed over accused
Nos. 1 to 4 to the possession of the Station House Officer i.e.,
P.S.I. (P.W.5) along with Ex.P.1 - mahazar. P.W.5 received
Ex.P.1, registered the case for the offence punishable under
Sections 399 and 402 of IPC and Section 25(1B)(a) of the Arms
Act and issued FIR (Ex.P.8). Thereafter P.W.5 recorded voluntary
statements of accused and statement of P.W.2 and Police
Constables who had accompanied P.W.1. Thereafter P.W.5 after
issue of sanction order by the Police Commissioner (Ex.P.9) in
respect of offence under the Arms Act, sent M.Os. 1 to 4 to FSL
for examination and received a report - Ex.P.4 along with Ex.P.5 -
CRL.A No. 1076 of 2011
invoice of articles, Ex.P.6 - method of examination and reasons
given by P.W.4 and Ex.P.7 - sample seal. Thereafter, P.W.5 filed a
charge sheet.
3. The prosecution examined six witnesses i.e., P.W.1 to P.W.6
and got marked documents Ex.P.1 to Ex.P.13 and material objects
M.O.1 to M.O.8. At the stage of recording the statement of the
accused under Section 313 of Cr.P.C. - the accused No. 1
remained absent and absconded and case against him came to be
split up and registered in S.C. No. 164/2011. Thereafter
statements of the accused Nos. 2 to 4 came to be recorded under
Section 313 of Cr.P.C.
4. After hearing arguments of both the sides the trial Court
framed points for consideration and convicted the appellants for
the offence punishable under Section 399, 402 IPC and appellant
No. 2 - accused No. 3 for the offence punishable under Section
25(1B)(a) of Arms Act. The said judgment of conviction and order
of sentence has been challenged by appellants - accused Nos. 2
to 4 in this appeal.
CRL.A No. 1076 of 2011
5. Heard arguments of the learned counsel for the appellants
and learned HCGP for the respondent - State.
6. Learned counsel for the appellants would contend that the
seizure of material objects i.e., M.O.1 to M.O.7 and two Tata Safari
vehicles has not been established since one of the panchas who
has been examined as P.W.2 has not supported the case of the
prosecution. P.W.3 - Puttaraju who is stated to have not paid the
supari amount to accused No. 1 and other accused persons
targeting to kill him and rob valuables from him has not supported
the case of the prosecution and stated that he does not know the
accused persons. Accused No.1 has been acquitted by the trial
Court in S.C. No. 164/2011 by judgment dated 06.08.2013. The
said judgment has been rendered based on the evidence recorded
in the case on hand and he had participated in the proceedings all
along till recording of the entire evidence and subsequently
remained absent and absconded. Accused Nos. 2 to 4 who are
appellants herein are similarly placed to that of accused No.1 and
therefore, they are also entitled for acquittal of the charges levelled
CRL.A No. 1076 of 2011
against them. Even the accusations against accused No.1 is more
severe than the accusations against the present appellants since
he was the main person who is having grudge against P.W.3 and
pistol which was found with him is reported to have been in
working condition by P.W.4 - ballistic expert and cartridges
contained in it were live cartridges. The revolver (M.O.3) found
with appellant No.1 - accused No. 2 was found to be not in
working condition as examined by P.W.4 who has stated M.O.4 -
seven bullets found in it were also examined and he has given
report that he cannot say whether they are live or not. P.W.1 and
other Police officials were having grudge against accused No.1 who
was involved in several crimes and he was a rowdy sheeter and
therefore a false complaint has been field against him and his
associates who are appellants herein. P.W.4 has not stated which
accused was possessing M.O.3 revolver with M.O.4 bullets. It is his
further submission that the alleged plan of accused persons is to
kill P.W.3 - Puttaraju and they prepared for the same holding
weapons. It is his further submission that merely preparing to
commit murder is not an offence. He has placed reliance on the
decision of the Hon'ble Apex Court in the case of Chaturi Yadav
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CRL.A No. 1076 of 2011
and others Vs. State of Bihar reported in AIR (1979) SCC
1412 wherein it is observed as under:
"In this view of the matter, there is
no legal evidence to support the charge
under Sections 399 and 402 against the
appellants. The possibility that the
appellants may have collected for the
purpose of murdering somebody or
committing some other offence cannot be
safely eliminated."
It is his further submission that based on the same
evidence accused No.1 has been acquitted. Therefore, these
appellants are also entitled for the benefit of doubt as held by the
Hon'ble Apex Court in the case of Anil Shamrao Sute and Anr.
Vs. State of Maharashtra, reported in (2013)CRI.L.J.2223.
He also placed reliance on the decision of High Court of
Patna in the case of Mahendra Choudhary Vs. State of Bihar
reported in LAWS (PAT)-2000-3-14 wherein it is held as under.
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CRL.A No. 1076 of 2011
"There is possibility that the accused
appellants might have collected for the
purpose of committing some other
offence(s) like murdering somebody.
Thus, in the circumstances of the case,
there is no legal evidence to support the
charge under Sections 399 and 402 of the
Indian Penal code against all the
appellants."
With this, he prayed to allow the appeal and set aside the
judgment of conviction and order of sentence passed by the trial
Court.
7. Per contra, learned HCGP supported the reasoning
assigned by the trial Court in holding that the appellants have
committed the offence. It is his further submission that appellants
have committed the offence. It is his further submission that
appellants and accused No.1 were found in the car possessing
pistol and revolver with live bullets and they were preparing to
commit the murder of P.W.3 - Puttaraju and rob him. The
evidence of P.W.1 and P.W.6 itself establishes the case of the
prosecution. There are no reasons to disbelieve their evidence as
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CRL.A No. 1076 of 2011
they have given evidence in their official capacity. The
contradiction pointed out in the evidence of P.W.6 that he has not
stated which accused was possessing M.O.3 - revolver is a minor
contradiction. With this he prayed to dismissed the appeal.
8. On the grounds made out and considering the arguments
advanced, the following point arises for my consideration.
Whether the trial Court erred in
convicting the appellants - accused Nos.2
to 4 for the offence punishable under
Sections 399 and 402 of IPC and
appellant No. 2 - accused No.3 for the
offence punishable under Section
25(1B)(a) of Arms Act?
9. My answer to the above point is in the affirmative for
the following reasons.
P.W.1 - complainant has deposed the facts stated in the
complaint and seizure of material objects under Ex.P.1 - mahazar
in the presence of P.W.2 and C.W.2 under seizure mahazar
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CRL.A No. 1076 of 2011
Ex.P.1. The evidence of P.W.1 is in corroboration with the
averments of Ex.P.2 - complaint and seizure mahazar - Ex.P.1.
The evidence of P.W.1 is corroborated by the evidence of P.W.6
who is the Head Constable who accompanied P.W.1 -
complainant while conducting the process of search and seizure
of accused persons. P.W.6 fully corroborates the evidence of
complainant including seizure of all M.Os. but only thing is that
P.W.6 stated that he does not remember the fact from whom the
revolver is seized.
10. P.W.5 who is the Investigating Officer has deposed
regarding the receipt of complaint, mahazar, handing over the
accused persons with material objects, registering the case,
issuing FIR, recording the voluntary statements of accused
persons and sending M.Os. 1 to 4 for FSL examination, receipt of
report of ballistic expert, obtaining sanction order from the Police
Commissioner and filing of the charge sheet against the accused
persons.
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CRL.A No. 1076 of 2011
11. P.W.2 and P.W.3 are material witnesses to the case of
the prosecution. P.W.2 is one of the panchas to the seizure
mahazar - Ex.P.1. P.W.2 has not supported the case of the
prosecution and he has turned hostile. He has stated that nothing
was seized in his presence from the accused persons. Another
pancha witness C.W.2 has not been examined. The evidence of
P.W.1 and P.W.6 who are Police official witnesses regarding the
seizure of M.O.1 to M.O.7 and two vehicles under Ex.P.1 -
mahazar is not corroborated by the panch witness - P.W.2.
12. M.O.3 revolver, M.O.4 -cartridges contained in M.O.3
were examined by P.W.4 - ballistic expert and as per his report -
Ex.P.4, M.O.3 revolver is not in working condition and he cannot
say whether M.O.4 bullets were live or not. Therefore, this M.O.3
revolver cannot be said to be an arm in view of the report of
P.W.4 as per Ex.P.4 that it is not in working condition.
13. All the accused persons were stated to have assembled
in two vehicles with a conspiracy and plan to kill P.W.3 -
Puttaraju and rob him as he did not pay the supari amount of
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CRL.A No. 1076 of 2011
Rs.30.00 lakhs to accused No.1. P.W.3 has not supported the
case of the prosecution and he has stated that he did not know
accused No. 1 and other accused. As per the case of the
prosecution the accused had assembled and were preparing to
commit the murder of P.W.3 - Puttaraju as he did not pay the
supari amount. Merely making preparation to commit an offence
like murder is not an offence. There is nothing on record to show
that accused had assembled and were preparing to commit
dacoity. As per the case of the prosecution itself accused had
assembled and were preparing to commit the murder of P.W.3 -
Puttaraju. Thus, in the circumstances of the case, there is no
legal evidence to support the charge under Section 399 and 402
of IPC against all the appellants. Further, seizure of M.O.3 -
revolver and M.O.4 - bullets from the possession of appellant No.
2 - accused No. 3 under Ex.P.1 - mahazar is not proved by the
prosecution since P.W.2 - one of the panchas examined turned
hostile.
14. Based on the same evidence accused No. 1 was
acquitted by the trial Court in S.C. No. 164/2011. The State has
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CRL.A No. 1076 of 2011
not preferred any appeal challenging the said judgment of
acquittal. Therefore, the benefit of doubt is also to be given to
the accused Nos. 2 to 4 who are appellants herein as held by the
Hon'ble Apex Court in the case of Anil Shamrao Sute (supra).
Therefore, the conviction of the appellants for the offence
charged is not suspendable in law. Hence, the following;
ORDER
I. The appeal is allowed.
II. The judgment of conviction and order of
sentence dated 13.07.2011 passed in S.C.
No. 213/2009 by the II Additional Sessions
Judge, Bangalore Rural District, Bangalore
is hereby set aside. Appellants - accused
Nos.2 to 4 are acquitted of the offence
punishable under Sections 399 and 402 of
IPC and Section 25(1B)(a) of the Arms
Act.
III. Refund fine amount paid, if any, to
appellants-accused No.2 to 4.
Sd/-
JUDGE.
LRS
