Karnataka High Court
Sri Dhananjaya Belchada vs State Of Karnataka on 5 October, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 246 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 246 OF 2016
BETWEEN:
SRI DHANANJAYA BELCHADA
AGED ABOUT 27 YEARS
S/O LATE T GOPALA
R/O NEAR AMBEDKAR MAIDAN
THOKKOTTU
MANGALURU - 575 021
DAKSHINA KANNADA DISTRICT.
...APPELLANT
(BY SMT. HALEEMA AMEEN, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA STATE OF KARNATAKA
MURTHY RAJASHRI
Location: HIGH BY THE POLICE INSPECTOR
COURT OF MANGALORE SOUTH
KARNATAKA
POLICE STATION
MANGALORE - 575 001.
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SRI RANGASWAMY 3R, HCGP)
THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 30.01.2016 AND 02.02.2016 PASSED BY THE
PRINCIPAL S.J., D.K., MANGALORE IN S.C.No.131/2013 -
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CONVICTING THE APPELLANT/ACCUSED No.1 FOR THE
OFFENCE P/U/S 25(1-A) OF THE ARMS ACT.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed against the judgment of
conviction and order on sentence dated 30.01.2016
passed in S.C.No.131/2013 by the Principal Sessions
Judge, Mangaluru, convicting the appellant - accused No.1
for the offence under Section 25(1-A) of the Arms Act,
1959 (for short hereinafter referred to as 'the Act'),
sentencing to undergo rigorous imprisonment for a period
of five years and to pay fine of Rs.25,000/- and in default,
to undergo further imprisonment for one year.
2. The factual matrix of the case is that; the appellant -
accused No.1 is a close associate of Sri.Krishna Shetty @
Kitty of Karkala and on 21.02.2007 at about 9.30 pm.,
when he was taken into custody by PW1 - Police
Inspector, he was found in illegal possession of two live
bullets and he has given his voluntary statement and led
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CRL.A No. 246 of 2016
the police and produced four live bullets, one revolver and
an empty magazine which was concealed in the house of
accused No.2 (deceased) which was said to have been
obtained from accused No.3. Charge sheet came to be
filed for the offences under Sections 25(1-A) and 26 of the
Act.
3. The prosecution examined nine witnesses as PWs.1
to 9 and got marked sixteen documents as Exs.P1 to P16
and MOs.1 to 5 and statement of the accused came to be
recorded under Section 313 of Cr.P.C.
4. The Trial Court, after hearing the arguments on both
sides formulated the points for consideration and convicted
the appellant - accused No.1 for the offence under Section
25(1-A) of the Act and acquitted him for the offence under
Section 26 of the Act. Accused No.3 came to be acquitted
for the offences under Sections 25(1-A) and 26 of the Act.
Since accused No.2 died during the pendency of the trial,
case against him abated. The said judgment of conviction
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of the appellant - accused No.1 has been challenged in
this appeal.
5. Heard the arguments of learned counsel for the
appellant - accused No.1 and learned High Court
Government Pleader for the respondent - State.
6. Learned counsel for the appellant - accused No.1
would contend that the seizure under Exs.P1 and P3 are
not proved since Panchas - PWs.2, 3 and 7 turned hostile
and not supported the case of the prosecution. The
statements of PWs.2, 3 and 7 as per Exs.P11 to P13 have
not been confronted to PW1, who recorded the statements
and therefore, they remained not proved. The seizure
mahazar - Ex.P1, statement of the appellant - accused
No.1 - Ex.P2 and seizure mahazar - Ex.P3 have been
prepared prior to registering the case and therefore,
recovery under Ex.P3 is bad in law as there was no case
registered against the appellant - accused No.1 and he
was not the accused at the time of recording the
statement - Ex.P2.
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6. a) There was a crime registered in Karkala Police
Station in Crime No.42/2007 against this appellant -
accused No.1 and accused No.3 and another for the
offences under Sections 3 and 25 of the Arms Act and PW1
who arrested the appellant - accused No.1 and seized one
pistol, four live bullets and one empty cartridge from the
possession of the appellant - accused No.1 ought to have
handed over the appellant - accused No.1 and seized
materials to the Investigating Officer who was
investigating Crime No.42/2007. The appellant - accused
No.1 has been arrested without any basis and without any
allegations against him. PW1 has not prepared any arrest
mahazar at the time of arrest of the appellant - accused
No.1. PW1 has not stated regarding preparing of sample
seal while seizing the articles under mahazars Exs.P1 and
P3. There is a delay in sending the seized articles for FSL
examination. PW1 conducted entire investigation including
the seizure, filing of complaint, arrest, recording of
statement of the witnesses and it is bad in law.
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6. b) PW9 who took up further investigation has received
FIR and complaint in Crime No.42/2007 of Karkala Town
Police Station registered against this appellant - accused
No.1, accused No.2 and another for the offences under
Sections 3 and 25 of the Act and Section 34 of IPC, ought
to have handed over all the investigation papers and
materials in the said crime instead of filing the charge
sheet against the appellant - accused No.1 and two others
for the said offences. The seizure mahazar - Exs.P1, P3
and P7 have not been proved. There are several
infirmities in the investigation including conducting of
entire investigation by PW1 and therefore, the evidence of
PWs.1 and 4 - Police Officers cannot be relied on
to establish the seizure under Exs.P1 and P3. With this,
she prayed to allow the appeal and acquit the appellant -
accused No.1.
7. Per contra, learned High Court Government Pleader
for the respondent - State would contend that two live
bullets were found in possession of the appellant -
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accused No.1 and they were seized under Ex.P1. At the
instance of the appellant - accused No.1, one revolver,
four live bullets, one empty magazine have been seized
from the house of accused No.2 under mahazar - Ex.P3.
Even though the Panchas - PWs.2 and 3 have turned
hostile, the evidence of PWs.1 and 4 - Police Officers
establish the seizure mahazar - Exs.P1 and P3. The
evidence of PW6 - Forensic Expert and his report - Ex.P8
would establish that MOs.1 to 5 that are seized are
prohibited fire arms. The investigating Officer has
obtained sanction to prosecute the accused which has
been issued by PW1, who is competent to issue sanction.
There is no enmity made out against PWs.1 and 3 - the
police officers, who are supporting the appellant - accused
No.1 to disbelieve their evidence. The conviction can be
based only on the testimony of the sole evidence. No
animosity between the Police Officers and the appellant -
accused No.1 has been made out. On this ground, he
relied on the decision of the Hon'ble Apex Court in the
case of Rameshbhai Mohanbhai Koli and Others
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reported in (2011) 11 SCC 111 and in the case of Sumit
Tomar Vs. State of Punjab reported in (2013) 1 SCC
395. He supported the reasoning assigned by the Trial
Court. On these grounds, he sought dismissal of the
appeal.
8. On the grounds made out, considering the arguments
advanced, the following point would arise for my
consideration;
"Whether the Trial Court has erred in convicting
the appellant - accused No.1 for the offence under
Section 25(1-A) of the Arms Act?"
9. My answer to the above point is in the affirmative,
for the following reasons;
PW1 is the Police Inspector working at the relevant
period in Mangaluru South Police Station. He received a
credible information that this appellant - accused No.1 is
an associate of a rowdy sheeter Sri.Krishna Shetty @ Kitty
(accused No.3). He along with his staff including PW4
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went there. His staff Sri.Dinesh Poojary has shown this
appellant - accused No.1 stating that he is
Sri.Dhananjaya, an associate of a rowdy sheeter - accused
No.3. PW1 took him to his custody and brought him to
police station. PW1 has not stated as to what is the
ground for arrest of the appellant - accused No.1. There
were no cases registered against the appellant - accused
No.1 in the police station in which PW1 was working.
Therefore, there was no basis for arrest of the appellant -
accused No.1.
10. PW1 found two live bullets on personal search of the
appellant - accused No.1 which came to be seized under
mahazar - Ex.P1 in the presence of PWs.2 and 3. PWs.2
and 3 did not support the case of the prosecution with
regard to seizure of two live bullets from the possession of
the appellant - accused No.1 under mahazar - Ex.P1.
There is only evidence of PWs.1 and 4 with regard to
seizure of two live bullets from the possession of the
appellant - accused No.1 under mahazar - Ex.P1.
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11. PW1, after preparing the seizure mahazar in the
police station, without registering any case against the
appellant - accused No.1 proceeded to record his
confessional statement as per Ex.P2. Only the admissible
portion in the said statement is marked as Ex.P2, wherein
this appellant - accused No.1 has stated that he has kept
the remaining four live bullets, one revolver and one
empty magazine in the cupboard in the bed room of the
house of Sr.Rajendra and he will show the same. PW1
after recording the voluntary statement of the appellant -
accused No.1 as per Ex.P2 proceeded along with Panchas
and the appellant - accused No.1 and the appellant -
accused No.1 has taken the police and Panchas to the
house of Sri.Rajendra (Accused No.2) and produced one
Country made revolver and four live bullets, one empty
magazine which were kept in the cupboard in the bed
room of the house of accused No.2. When PW1, the
appellant - accused No.1 and the Panchas and other police
staff went to the house of accused No.2, it was locked and
the police took the keys from the landlord Sri.Lawrence
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D'Souza (PW8) and opened the lock. PW8 denied the
entire aspect of the police visiting the house and he
handing over the keys and tracing of the material objects
in the house of accused No.2 - Sri.Rajendra. PWs.2 and 3
are also Panchas to Ex.P3, but has also not supported the
case of the prosecution with regard to seizure of MOs.2 to
4 at the instance of accused No.1 under mahazar - Ex.P3.
PW1 thereafter went to police station, prepared the
statement as per Ex.P4 and he himself registered the case
and prepared FIR - Ex.P5 and sent it to the jurisdictional
Court. Who was the Station House Officer when PW1 went
to police station, whether he took the charge as Station
House Officer has not been stated by PW1 in his evidence.
12. The appellant - accused No.1 was not an accused
when his statement as per Ex.P2 came to be recorded by
PW1, as no case was registered against him at that time.
Even though PW1 came to be arrested in service bus stand
at Mangaluru and no arrest mahazar has been prepared.
What are the grounds for his arrest have not been
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disclosed to the appellant - accused No.1 by PW1. The
intimation of arrest has not been given to the relatives or
friends of the appellant - accused No.1. The appellant -
accused No.1 came to be arrested only on the ground that
he is an associate of a rowdy sheeter - accused No.3.
13. In Ex.P2, there is a mention that accused No.3
sustained injuries to his leg due to mis-fire of the pistol,
when he fell down, he was admitted to Atheno Hospital,
Mangaluru and accused No.3 said to have given a
revolver, six live bullets and one empty magazine to this
appellant - accused No.1 who stated to have kept them in
the house of accused No.2 - Sir.Rajendra. PW1 did not
make any enquiry as to whether any case is registered
against accused Nos.1 and 2 in that regard in any of the
police station in Karkala. PW1 has not conducted any
investigation in that regard.
14. The evidence of PW9 who took further investigation
reveal that he collected FIR and complaint in Crime
No.42/2007 of Karkala Town police Station registered for
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the offences under Section 3 and 25 of the Act and Section
34 of IPC against accused Nos.1, 3 and another. The said
FIR is at Ex.P15 and the complaint is at Ex.P16. PW9
came to know on receiving the FIR and complaint that a
case is already registered against accused Nos.1 and 3 for
the same offence under Section 25 of the Act. The said
case has been registered on 25.02.2007 and this appellant
- accused No.1 has been arrested on 27.02.2007 ie., after
two days. PW9 after coming to know about registration of
the case against accused Nos.1 and 3 for the offence
under Section 25 of the Act, ought to have handed over
the investigation papers to the Investigating Officer in
Crime No.42/2007 of Karkala Police Station. Instead of
that, PW9 has filed separate charge sheet against the
appellant - accused No.1.
15. The prosecution has not placed any material as to
what happened to the said case registered in Crime
No.42/2007 of Karkala Police Station.
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16. Learned High Court Government Pleader would
contend that even though the Panchas - PWs.2 and 3
have not supported regarding seizure of MOs.1 to 4 under
Exs.P1 and P3, but the evidence of PWs.1 and 4 being the
police officers would establish the seizure mahazars -
Exs.P1 and P3. The very act that PW1 arresting this
appellant - accused No.1 without any grounds, continued
investigation, seized two live bullets from his possession
under mahazar, recorded his confessional statement,
seized MOs.2 to 4 under Ex.P3 and thereafter, himself
prepared a complaint and himself registered it and
thereafter continued further investigation and arrested
accused No.2 and seized MO.5, two live cartridges from his
house at his instance as per Ex.P7. This itself shows that
PW1 is an interested person in registering the case against
this appellant - accused No.1. PW4 being the police
constable is sub-ordinate to PW1. Even the arrest
mahazar has not been prepared at the time of arrest of
the appellant - accused No.1 and the grounds of arrest
have not been stated by him and there were no grounds at
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all to arrest him at that point of time and there is no
evidence regarding intimation of arrest of the appellant -
accused No.1 to his family members. Therefore, the
evidence of PWs.1 and 4 with regard to seizure of MO.1
under Ex.P1 - mahazar and seizure of MOs.2 to 4 under
mahazar - Ex.P3 at the instance of this appellant -
accused No.1 is not reliable in the absence of independent
witnesses. PWs.2 and 3 have not supported the case of
the prosecution. Even PW8 - landlord of the house of
accused No.2 has not supported the case of the
prosecution with regard to he opening the key of the
house of accused No.2 and the appellant - accused No.1
showing the arms kept in the house and seizure under
Ex.P3. Even the statement of PW2 as per Ex.P11, PW3 as
per Ex.P12 and PW7 as per Ex.P13 and PW8 as per Ex.P14
are not confronted to Investigating Officer (PW1) who
recorded the statements. The said statements of PWs.2,
3, 7 and 8 remained not proved.
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17. Considering all these aspects, the prosecution has
failed to establish the guilt of the appellant - accused No.1
beyond reasonable doubt. The Trial Court ought to have
given the benefit of doubt to the appellant - accused No.1.
The Trial Court erred in holding that the appellant -
accused No.1 has committed the offence under Section
25(1-A) of the Act. In the result, the following;
ORDER
The appeal is allowed.
The judgment of conviction and order of
sentence passed in Sessions Case No.131/2012
dated 30.01.2016 passed by the Principal Sessions
Judge, Mangaluru is set-aside. The appellant -
accused No.1 is acquitted of the offence under
section 25(1-A) of the Arms Act.
Fine, if any, paid by the appellant - accused
No.1 is ordered to be re-funded to him.
Sd/-
JUDGE
GH
