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2001 DIGILAW 191 (KAR)

C. T. PONNAPPA @ CHUPPI v. STATE OF KARNATAKA

2001-02-27

M.F.SALDANHA

body2001
SALDANHA, J. ( 1 ) THIS is a bail application with a difference which has necessitate us to have to not only call for the records but on the subsequer occasion to send for the double barrel gun which was the weapo involved in the commission of the offence and to hear arguments i considerable detail from the respective Counsel. The appellant why was the original accused before the Sessions Court has been convicted for having committed an offence punishable under Section 302 IPC and he has appealed against the conviction and sentence the appeal having been admitted, I A. I has been preferred praying for his release on bail pending the disposal of the appeal. We refrali from referring to the facts on record except where absolutely essentia because the law postulates that the appeal Court need not and certainly will not embark upon an evaluation of the evidence at the stage of deciding an application for interim bail. The principles on which a Court would consider an application for bail at the pretria stage are considerably different from those on which an appeal Court would decide such an application at the post conviction stage, the obvious reason being that there is already an assessment of the evidence and the record and if there is an adverse verdict, particular in cases where the conviction is for a serious offence such as one punishable with imprisonment for life or a heavy jail sentence that certainly is a disqualification against the accused. ( 2 ) WHILE it is true that the appeal Court is required to do a quick summary assessment of the material before it more importantly the reasoning of the Trial Court and the findings, over the years a few well defined principles have emerged with regard to the grant of bail at the post trial stage. The first of these is that if the findings recorded appear to be wholly wrong or perverse and if it does appear that the conviction itself would be totally unsustainable the appeal Court would certainly grant interim bail. The first of these is that if the findings recorded appear to be wholly wrong or perverse and if it does appear that the conviction itself would be totally unsustainable the appeal Court would certainly grant interim bail. The Supreme Court and the High courts have been very rightly emphatic about the rights of the accused and particularly the concept of wrongful confinement and encroachment on liberty and have deprecated the mechanical approach that was in practice hitherto, that bail was refused at the post conviction stage purely as a matter of policy irrespective of the quality of the judgment or even the prima facie correctness of the findings. It is a very delicate situation in so far as for obvious reasons the appeal Court is not required at the admission stage to do an indepth evaluation of the evidence which is the function of the Court at the final hearing. All that the Court is required to do is to generally apply its mind and do a summary assessment in the light of what has been pointed out by the Counsel representing the parties and to decide the bail application but again while doing so, as a rule of prudence the appeal Courts do not record elaborate reasons and findings because this would undoubtedly prejudice the parties at the stage of final hearing. At the same time, the law enjoins upon the court to pass a speaking order which must reflect very clearly that the Court has applied its mind to the aspects that were pointed out and has thereafter decided the application one way or the other. Again, as a rule of caution where the conviction is for a serious offence the Court is' also required to apply the alternate theory of assessing whether, even if the conviction appears to be wrong under that charge whether it could still be sustainable for a slightly lesser offence. A classic example would be where on the face of it, the records indicate that a conviction under Section 302 IPC is totally unsustainable but where there may be sufficient material to hold that the accused could clearly be convicted for the offence punishable under Section 304 or 326 IPC both of which offences still carry heavy jail sentence. This last aspect does assumes some importance in the present case. This last aspect does assumes some importance in the present case. ( 3 ) AGAIN, the advisability or rather the inadvisability of admittingan accused to bail in either border line cases or arguable cases, has been the subject matter of much legal debate and the view that has ultimately emerged is that merely because the appeal is bound to take sometime to be heard and it is demonstrated that the appellant has some chance of success that the Courts must err on the safe side by granting bail-as otherwise, it would be an atrocity if it so later happens that the appeal Court records an order of acquittal after the accused has spent considerable time in jail. This is an extremely difficult area and the appeal Courts are required to abide by the principle of granting bail provided the appellant has reasonably good chances of success. It is necessary to emphasize this last principle because it has been the experience of this Court in a large, number of appeals where the accused were all indiscriminately released on bail at the admission stage merely because the appeal would take a long time for a decision and consequently, when the appeal has failed, all sorts of specious arguments were advanced that the accused is a gainfully employed or that the accused has married and has young children or that the accused is totally repentant after several years had elapsed and that it would be virtually inhuman to reconfine the accused to jail. It is therefore the sale principle to follow that only in those of the cases where there are reasonably good chances. of total success that bail be granted and to do a very correct judicial assessment of the very large number of other cases where only a partial success appears to be possible. In such situations what is very necessary is that the Court must never overlook the fact that if the chances clearly indicate only partial success which would only involve a down gradation of the sentence, it is to the benefit of the accused to undergo that part of the sentence so that by the time the appeal is heard it could, in appropriate cases be reduced to the period already undergone. This Court has culled out the principles applicable in these situations and restated them because bail is invariably asked for on the basis of the familiar argument that there are flaws in the judgment or that the Trial Court has overpitched the gravity of the conviction and the moment the judgment is demonstrated to be assailable, the conclusion is not that it would ipso facto result in an acquittal. In other words, the possibility of an alternative head of conviction can never be overlooked. ( 4 ) IN all bail applications, the paramount factor that requires consideration is the question as to whether the accused will be available when required by the Court. Undoubtedly at the pretrial stage an equally important aspect is the question as to whether the accused would misuse the liberty to tamper with the evidence or to intimidate the witnesses or to sabotage the trial by otherwise interfering with the course of the judicial proceeding. While the last of these considerations may not be applicable at a post conviction stage the aspect of possible abscondence becomes doubly important. Recent research has demonstrated that in as many as 21. 66% of criminal appeals the cases are required to be ultimately- consigned to the dormant file because of the non-availability of the accused. At times the Courts do take the precaution of laying down stringent conditions in order to thwart the possibility of the abscondence such as, impounding the Passport or issuing directions that steps be taken to prevent the accused from going out of a certain area or even leaving the country without specific Court orders but none of these have proved to be good enough. While the traditional argument is being put forward by the learned Public prosecutor that a welt to do person would have every chance of absconding, experience has shown that even in the not well to do cases this factor has manifested itself and infact, the percentage of accused in the later category is very much higher because most of them have no permanent jobs or places of residence or families through whom they could be traced and they therefore vanish and the fact that the surety is penalised is of little consolation. Next, comes the principle that in those of the cases where the conviction is for a serious offence such as murder and the accused is faced with the prospect of life imprisonment, that there would be a strong tendency to abscond if released on bail rather than to face the consequences. This is one of the strong considerations on the basis of which the Courts have repeatedly held that if there are strong possibilities that would impel an accused to run away from the law rather than take the risk of remaining around till the appeal is decided, that the latter course is predominant. Where an appraisal was done in the year 1999 for the purposes of assessing as to in how many cases where the accused have absconded during the pendency of the appeals and the police have been directed to trace them out, it was found that the accused have been traced in hardly 1. 08% of the cases, which is a factor which the Courts need to take cognisance of. The fallacious argument is invariably used by highlighting that the presumption of innocence is the guiding factor of our criminal jurisprudence, but an appeal Court can never loose sight of the fact that this presumption no longer operates once the Trial Court has recorded an adverse verdict. While something can certainly be said about this presumption at the pretrial stage it would certainly not be relevant once a Court of competent jurisdiction has dispelled that presumption through a verdict Of guilty resulting in a conviction. This argument looses sight of the fact that the only appraisal that an appeal Court is required to undertake while admitting an appeal is as to whether the case requires reconsideration and therefore, the mere admission of an appeal has no bearing on its final outcome. ( 5 ) WE refer to this concept only because the argument was repeatedly pressed before us by the appellant's learned Counsel that the appeal having been admitted, the adverse verdict is both vulnerable and questionable and that therefore the entertainment of the appeal itself would ipso facto qualify the appellant for the grant of interim bail. ( 5 ) WE refer to this concept only because the argument was repeatedly pressed before us by the appellant's learned Counsel that the appeal having been admitted, the adverse verdict is both vulnerable and questionable and that therefore the entertainment of the appeal itself would ipso facto qualify the appellant for the grant of interim bail. First of all, in life imprisonment convictions such as the present one, barring the microscopic minority of cases where the appeal is totally and completely devoid of merit, one review by the- appeal Court is granted almost as a matter of course and the admission of the appeal ,is therefore hardly reflective of the merits or for that matter the chances of success. Undoubtedly, it was vehemently contended that the present appeal makes out a very strong arguable case because many of the facts are not really in dispute and the essential defence pleaded was that even assuming that the accused was holding on to the gun that it went off accidentally and it will therefore not confer any criminal liability on the accused. The submission was that if this defence finds favour with the appeal Court that there is no means whereby the appellant can be justly and adequately compensated for the years spent in jail as the normal time frame for the disposal of a murder appeal is relatively long. It is this last aspect of the case that necessitated our doing a very thorough and meticulous reappraisal of the record which was an extremely time-consuming job but we undertook this double exercise in order to ensure that no injustice is done to the accused even in the least. ( 6 ) THE oral arguments advanced by the learned Counsel took aconsiderable period of time and since much was argued with regard to the weapon in question we decided to send for it in order to appreciate the validity or otherwise of the submissions and we also heard the learned Counsel further after the receipt of the record and the weapon. By this time the assignments had changed and the bench had to be reconstituted for purposes of completing the part- heard arguments. By this time the assignments had changed and the bench had to be reconstituted for purposes of completing the part- heard arguments. Since the two learned Judges were by then on two other Division Benches the issues canvassed were carefully discussed and we were of the view that this is not a case in which interim bail can be granted bearing in mind that the broad principles and concepts that have been enunciated by us earlier. We however decided that before the order was finally pronounced even though we were not inclined, to admit the accused to bail and therefore his continuing in custody would not prejudice him, that it would be desirable to do a personal appraisal of the record in order to be totally correct. ( 7 ) PAUSING here for a moment, we were very conscious of the fact that the normal formula which the Division Bench would adopt for purposes of deciding the question of the interim bail would be that the factual and legal position be summarily appraised for purposes of deciding the question of bail even though the Court would not be required to set out the elaborate reasons and conclusions in the order as, prejudging any of the issues at the interim stage would not be proper The non-mention of reasons and conclusions would not however be indicative of the fact that the merits of the case, to the extent necessary are not being examined. We need to mention that this appraisal of the extremely heavy record of this case by each of us one after the other in the midst of our other work assignments did take considerable time. Also, one of us, saldanha J. , was unable to attend the Court for a considerable period of time in between due to the serious illness and hospitalisation of his wife who was suffering from a life threatening ailment and this has contributed to the delay in ultimately pronouncing the order. ( 8 ) WE shall briefly deal with some of the significant heads of argument that were canvassed before us, the first of them being that the accused and the deceased are brothers. The appellant's learned Counsel on the basis of elaborate references to the record demonstrated to us that the accused and the deceased are both coffee estate owners. ( 8 ) WE shall briefly deal with some of the significant heads of argument that were canvassed before us, the first of them being that the accused and the deceased are brothers. The appellant's learned Counsel on the basis of elaborate references to the record demonstrated to us that the accused and the deceased are both coffee estate owners. There is no dispute about the fact that they are extremely well to do persons and the learned Counsel was at pains to contend that this is a case in which despite various suggestions from the prosecution that there were some minor family problems between the brothers, and that effectively the prosecution has not been able to even remotely establish any motive. What was repeatedly emphasised was that there was neither hostility or enemity nor for that matter jealousy between the brothers and that consequently it would be inconceivable to even argue that the accused harboured any intention of committing the murder of his brother. While this was the foundation for some other subsidiary submissions the learned SPP pointed out and perhaps with some justification, that the establishment of motive is not a necessary ingredient for the sustenance of a murder conviction provided the charge is otherwise established. ( 9 ) TAKING on from the a fore said contention, the appellant's learned Counsel advanced his stronger submission in law that assuming the worst, namely that it is established that the accused was responsible for the ultimate death, that this is a case which could never go beyond culpable homicide not amounting to murder and that the lesser charge even if established would only justify a much lower sentence. The learned SPP was quite vehement about his argument that the accident theory Has very justifiably been ruled out and that even the applicability of the lesser charge has been carefully considered by the Trial Court and rejected and that the reasoning is absolutely invincible on the present record and that therefore, this argument does not merit any acceptance. Whether or not the ultimate verdict in the appeal would justify a conviction on a lesser ground on a lesser charge it is difficult to reasonably fathom because the learned trial Judge on the basis of a very thorough appreciation of the evidence has convicted under Section 302 IPC. Whether or not the ultimate verdict in the appeal would justify a conviction on a lesser ground on a lesser charge it is difficult to reasonably fathom because the learned trial Judge on the basis of a very thorough appreciation of the evidence has convicted under Section 302 IPC. This is not a case where there is no evidence nor is it a case where the appreciation of evidence has been slipshod or cavalier. All that we can say in regard to this argument, as of now, is that undoubtedly these are several debatable issues but that we are unable to persuade ourselves to hold at this stage that they would certainly justify a reduction of the charge. Undoubtedly, the issue is open but we do find that this is not a case in which the Court can straightaway conclude that the conviction under Section 302- IPC can never be upheld. ( 10 ) AGAIN, we are conscious of the latest the ories with regard to the concepts of punishments particularly as enunciated in several of the more recent decisions of the Supreme Court wherein the Court has accepted that a reasonable period of imprisonment would be sufficient even if the conviction is under Section 304 IPC, We find from the record however that the period undergone by the accused in custody is extremely short and that this would hardly be sufficient even if the most liberal view were to be taken for a sentence under section 304 IPC. ( 11 ) ON the contrary if that argument were to be upheld on his behalf and if he has undergone a reasonable period of sentence by the time the appeal is heard which we propose to expedite, then it would be to the benefit of the accused to have undergone'the period in custody until that time. The appellant's learned Counsel advanced very elaborate arguments in support of his contention that in the absence of any premeditation and motive that even on probabilities this is a case which points very clearly and very firmly towards the accident theory. The appellant's learned Counsel advanced very elaborate arguments in support of his contention that in the absence of any premeditation and motive that even on probabilities this is a case which points very clearly and very firmly towards the accident theory. What the learned Counsel demonstrated to us was that whereas the prosecution alleges that the accused brought the gun out from his own house and that this conduct would clearly signify an intention to kill, that the defence had propounded the theory that it was the deceased Who had brought the weapon with him. Prima facie, it does appear that there is no conclusive evidence to establish exactly from whose custody the weapon merged though a lot of material has been placed on record to suggest that the weapon belonged to the father, that it was in the house occupied by the accused and that it was he who brought it out from there. We refer to this aspect of the case for the limited reason that the custody of the weapon would make a lot of difference to the finding on the point of whether it was an accident or a deliberate act and suffice it to say, that from the appraisal of the record done by us it is difficult to straightaway uphold the defence version. ( 12 ) THERE was a vehement debate between the learned Counsel with regard to the accident theory and we need to start by pointing out that the learned Trial Judge has relied on the opinion of the ballistics expert, the considerable amount of literature on the subject from the various books by different authors and as is evident from the judgment, has meticulously examined almost every possibility before discarding this theory. Two of the most important heads on the basis of which the learned Trial Judge has based his findings emanate from the trajectory of the bullet and the learned Trial Judge has conclusively held that it is impossible for the deceased to nave sustained the injury on his chest with the bullet travelling in the direction in which it did if the gun had accidentally gone off. There is also a detailed discussion with regard to the type of fire arm, the operation of the safety catch, the triggers, etc. There is also a detailed discussion with regard to the type of fire arm, the operation of the safety catch, the triggers, etc. , and the (earned Judge has also discarded the defence theory that if in the course of a struggle the weapon was banged violently on the ground that it would have fired accidentally. ( 13 ) AFTER hearing the appellant's learned Counsel at some length on these specialised aspects and the learned SPP who stoutly defended the correctness of the Trial Court's findings, we did agree to the unusual procedure of calling for the weapon and examining it ourselves. It would be improper for us to set out our elaborate reasons for the conclusion that we have reached which is to the effect that it would be difficult at this interim stage without a thread bare consideration to reject the findings of the learned Trial Judge under these two heads. The size of the weapon, the make and quality of the weapon, its structure and its condition'are some of the factors that have been taken into consideration by US while arriving at this conclusion. ( 14 ) ONE of the strongest factors that the prosecution relies upon against the accused is the finding of the gunpowder residue on his hands. The appellant's learned Counsel has challenged this head of evidence probably on the ground that admittedly the incident took place in the morning and the hands of the accused were washed and the residue collected late in the afternoon and the argument was that he was not in custody and that even assuming without admitting that some gun, powder had deposited on his hands that it can never have continued to be there for several hours because, in the normal course it would have been washed off. Secondly, what was contended was that if the two brothers were struggling with the weapon when it went off that the presence of this residue on the hands of the accused can be perfectly explained. The learned SPP draws strong support from the analysis report which conclusively indicates that the residue was found in the liquid that was collected after washing the hands of the accused and that there is no manner or means whereby the investigating authorities could have fabricated this evidence. The learned SPP draws strong support from the analysis report which conclusively indicates that the residue was found in the liquid that was collected after washing the hands of the accused and that there is no manner or means whereby the investigating authorities could have fabricated this evidence. All that we wish to record as far as this head is concerned is that the issue is virtually wide open and certainly does not assist the accused conclusively at this stage for purposes of the grant of interim bail. ( 15 ) THIS is one of the cases in which the oral evidence is relatively of less consequence. The prosecution has sought to rely on the evidence of PW7 Dechamma who is the mother of the accused but also happens to be the mother of the deceased in so far as, both of them were brothers. The evidence of the mother is conclusive on only one point, namely that a verbal altercation has taken place between the brothers just prior to the incident. She seems to Suggest that they had moved some distance away from the house towards the gate and that she was not paying much attention to what was happening until she heard the gun shot and a perusal of her deposition will indicate that the evidence is more or less noncommittal. This is perhaps understandable because she has already lost one son, the deceased Chengappa, and was certainly aware of the fact that her only surviving son the accused Ponnappa is facing a murder charge and that she is effectively the only eye witness. It is more or less apparent from the manner in which the complaint was lodged by her'and the tenor of her evidence that she is either holding back a lot or that she is making a deliberate attempt to ensure that she does not provide any incriminating material to support a conviction against her surviving son. While this undoubtedly handicaps the prosecution, what is vehemently argued on behalf of the accused is that this is virtually the only evidence in support of the charge and if the same does not establish the culpability that the prosecution must suffer for it. While this undoubtedly handicaps the prosecution, what is vehemently argued on behalf of the accused is that this is virtually the only evidence in support of the charge and if the same does not establish the culpability that the prosecution must suffer for it. The appellant's learned Counsel vehemently submitted that this is not a case of "a little evidence" but virtually a case of "no evidence" because he then pointed out that the only other person who was around there at that time was the Cook Lakshman who suggests that his attention to the incident was drawn only after the gun was fired and consequently, that on vital issues the prosecution has failed to establish the charge. This submission overlooks the fact that the greater part of the prosecution case is hardly in dispute in so far as admittedly the incident has taken place just outside the family house and that the accused has not denied his presence or for that matter participation in the incident. Though we have indicated our views wjth regard to the residue which was allegedly found in the hand wash of the accused ft is in the aforesaid context that the learned SPP adamantly insisted that the nexus between the accused and the offence is conclusively established from the fact that whereas considerable amount of gunpowder residue was found on the hands of the accused that nothing was found on the hands of the deceased. He has reinforced his submission by pointing out that in this background the evidence establishes the offence against the accused while at the same time totally destroys the defence theory that there was a scuffle over the gun between the two brothers. The learned SPP has also relied heavily on tne fact that from the blackening around the wound and the scorching around the clothes where the bullet had entered, that it is equally established that the shot was fired almost from point- blank range. We refrain from elaborately setting out the elaborate submissions canvassed under this last head by the two learned counsel because that is a finding that is reserved for the final hearing of the appeal but suffice it to say, that as of now we are unable to hold that any of the arguments is totally destructive of the proecution case. . . ( 16 ) ONE mote contention raised on behalf of the accused was that there is a violent contradiction between the medical evidence and the ballistic expert's evidence, that these are mutually self -destructive and that the Court ought not to place reliance on either of the two. We do concede that medical evidence is of paramount importance in criminal cases and if it cannot be reconciled with other heads of evidence then the prosecution case may collapse In certain situations. Prima facie however, that does not appear to be the case here and the learned Trial Judge has, through a very long winded process of reconciliation been able to establish that these heads are not mutually self-destructive. To the limited extent that we have applied our minds to these two heads of evidence for purposes of this interim application, all that we can say is that the findings of the learned Trial Judge which have been arrived at after a process of deep consideration cannot be discarded outright. ( 17 ) AS indicated earlier, since this case presents several unusual features some of them even unique, and since it was very vehemently contested but above all, since it involves the liberty of the accused, we have gone through the exercise of doing more than a prima facie evaluation of the record. It has been a very time consuming and laborious process but in the present context, a very necessary one because the arguments on both sides indicated a very strong contest and it is the basic duty of this Court to ensure that white the interests of justice are maintained that no injustice should occur in the least to the accused. The learned SPP went to the extent of submitting that it would be dangerous to release the accused on interim bail on whatever terms because he is a well to do person and has all the potential of being able to abscond and it was his submission that if the accused despite all the restrictions placed by the Court were to leave the country that it would be impossible to bring him back. Contrary to this, the appellant's learned Counsel pointed out to us and perhaps with justification, that this allegation is baseless because the accused was on bail for a considerable period of time and did not make any attempt to evade the process of the law. Since we are of the view that the accused is not entitled to the grant of interim bail, we have not addressed ourselves to the terms that may have to be imposed on him or for that matter the safeguards which the Court will have to prescribe in order to ensure his presence. ( 18 ) IN the final analysis, despite a to tally impartial and unbiasedre view of the material before us we are unable to persuade ourseles that this is a case in which the accused is entitled to interim bail. We do concede however that there is much to be said in favour of the appellant's case under the different heads and that consequently, it is a case that would qualify for expeditious disposal. Normally, having spent considerable amount of judicial time hearing the arguments and much much more on appraisal of the record we would have ourselves preferred to dispose off the appeal itself on merits. Had the assignment continued that would have been the correct and most desirable course of action but in view of the change of assignment, that was not possible though it would have saved a lot of judicial time in so far as another bench would not have been required virtually to rehear the case on merits. All that we can do is to direct the Office to transfer this case to the list of expedited appeals. We permit the appellant's learned Counsel to prepare the paper books if the same has not already been done and to file the same with the Office and once this procedure has been completed it is open to the appellant's learned Counsel to request the Court to take up the appeal for hearing. ( 19 ) THE interim application for bail filed by the appellant fails and stands dismissed. --- *** --- .