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2009 DIGILAW 578 (KAR)

Balendra v. State By Police Sub-Inspector, Ankola

2009-07-31

JAWAD RAHIM

body2009
Judgment : The convicted-accused is in appeal against the judgment dated 6-12-2003 in S.C. No.56 of 2000 on the file of the Judge. Fast Track Court, Karwar, convicting him for the offence punishable under the provisions of Section 307 of the Indian Penal Code, 1860 and Sections 25(1-A) and 27(2) of the Arms Act, 1959. 2. Heard learned Counsel Sri K.M. Shiralli for the appellant and Sri P.H.Gotkhindi, learned Government Pleader for the respondent-State. 3. The substance of allegation on the basis of which the appellant was arraigned, tried and convicted are: the appellant is the younger brother of Beera Nagu Gouda (P.W.1). They have one more brother and all are agriculturists. They have a small portion of land on which mango groove has been developed. In a portion of the land lives P.W.1-Beera Nagu Gouda along with his wife P.W.3-Laxmi Beera Gouda and P.W.4-Ganapati Beera Gouda. Though P.W.1 his other brother and accused have equal rights in the joint property of agricultural lands, the accused is said to have exploited the lands to his advantage and had collected the yield of mango over years and sold it. He did not give any share to either P.W.1 or his other brother. Due to this, there was dispute among the brothers. 4. It is alleged that few days before 22-4-1999, Beera Gouda collected mango from the trees near his house and kept it in bags. The appellant-accused came to know of it and at 10.00 a.m. on 22-4-1999 lifted the sack of mangoes and picked quarrel with Beera Gouda and regarding breaking of one branch of the tree. Thereafter, he again returned to the house of the complainant at 3.30 p.m. armed with gun. P.W.1-Beera Gouda was lying on a platform in front of his house. The accused seeing him, aimed the gun and fired. P.W.1 managed to escape the gun shot and then he along with his wife-Laxmi caught hold of the appellant and disarmed him of the gun. The appellant-accused was tied to a tree with the help of other villagers and police was informed. P.W.6-Ramachandra B. Naganna, the PSI came to the spot, recorded the statement of P.W.1 and arrested the accused. The P.W.1 gave M.O.1-gun to the police officer, which was seized. 5. The appellant-accused was tied to a tree with the help of other villagers and police was informed. P.W.6-Ramachandra B. Naganna, the PSI came to the spot, recorded the statement of P.W.1 and arrested the accused. The P.W.1 gave M.O.1-gun to the police officer, which was seized. 5. The Investigating Officer examined the place of offence and found the pellets from the gun embedded in the wall and had caused damage to the shirt-M.O.2. He recovered two bullets-M.O.3 and pellets-M.O.4 from the wall and also collected M.O.5-Coir. Panchanama was prepared authenticated by P.W.2-Goureesh Thimmanna Naik. The gun was then sent for examination by ballistic expert. P.W.5-N.G.Prabhakar, Assistant Dire4ctor, FSL, Bangalore, examining the gun, bullets and pellets, gave opinion about the functionality of the gun and also about firing of bullets and the pellets. On this basis, the charge was filed against the appellant for the offence punishable under Section 307 of IPC. As he pleaded not guilty, he was put to trial. The prosecution examined in all six witnesses and placed reliance on eight documents and five material objects. The accused put up the defence of denial simplicitor and claimed to lead evidence. The learned Trial Judge relies on the evidence on record and held that it establishes the charge against the accused for committing attempt on the life of his brother Beera Nagu Gouda and rejected the defence of innocence. 6. The said judgment is impugned in this appeal. 7. The learned Counsel Sri K.M. Shiralli would contend that P.Ws.1, 3 and 4 are interested witnesses as they are husband, wife and son. They are proximately related to the accused as he is the brother of Beera Nagu Gouda and as there is family dispute regarding property, they foisted a false case to ensure that the appellant doe4s not succeed in claiming his share. He would contend that though the prosecution has leveled charge for the offence under Section 307 of the IPC, absolutely there is no injury suffered by P.W.1.-Beera Nagu Gouda. He would submit that the alleged firing by the accused is not proved. P.W.1 no doubt is the alleged victim and P.W.3 is the wife and both of them in connivance with each other have falsely implicated him. M.O.1 does not belong to the accused. M.O.1 was not seized from the possession of the accused. He would submit that the alleged firing by the accused is not proved. P.W.1 no doubt is the alleged victim and P.W.3 is the wife and both of them in connivance with each other have falsely implicated him. M.O.1 does not belong to the accused. M.O.1 was not seized from the possession of the accused. M.O.1 was produced only by the complainant/P.W.1 and again as M.O.1 was in possession of Beera Nagu Gouda, he has implanted the said object to strengthen the alleged false charge. Thirdly, he would contend that no neighbours are cited as witnesses by the investigating officer and none has been examined. The farm house in which the alleged incident occurred is surrounded by the house of other villagers and if the alleged shooting is said to have taken place then the sound would have attracted the attention of the others in the neighbourhood. He would then contend that the very fact that P.W.1, his wife and their son allegedly caught the accused at the spot and tied him would show that the complainant was in a dominant position and not the accused-appellant. Lastly, he would contend that nothing has been seized from the spot to prove the charge that the appellant-accused had fired the gun. On this basis he submits that the accused is entitled for clear acquittal. 8. Per contra, learned Government Pleader would oppose the contention of the accused and would submit that the case is based on the eye-witness account of the victim himself viz., Beera Nagu Gouda at the spot along with his wife who was also present at the spot corroborated his statement. Their son P.W.4-Ganapati had further disclosed about the trespass committed by the accused and the alleged firing. He would further contend that the fact that the accused was caught at the spot speaks to the fact that the accused had trespassed on ;the property of the complainant and fired the gun with undoubted intention of killing him. He further submits that the Trial Court has examined the evidence in detail and based on the proposition of law regarding appreciation of evidence, has rightly recorded the finding of guilt. He therefore, seeks rejection of the appeal. 9. Keeping in mind the contentions urged by both the sides, I have examined the records made available. 10. He further submits that the Trial Court has examined the evidence in detail and based on the proposition of law regarding appreciation of evidence, has rightly recorded the finding of guilt. He therefore, seeks rejection of the appeal. 9. Keeping in mind the contentions urged by both the sides, I have examined the records made available. 10. No doubt, the learned Sessions Judge has examined the records evidence, but it is necessary to observe that certain vital aspects which have a direct bearing on the veracity of the witnesses have been ignored. Firstly it has to be seen that the alleged incident is said to have occurred at 3.30 p.m. P.W.1 claims that he was in the house and he was lying on the plat-form in front of the house. The accused is alleged to have trespassed into the area in front of the farm house and not into the farm house. Entry of the accused on the land appurtenant to the farm house is alleged and not within. If that P.W.1 says is accepted to be true, then the accused is said to be at a distance of 20 feet away from where the P.W.1 was lying on the plat-form. If as alleged, the appellant had fired a gun from the range of 20 ft., then the trajectory would have been towards the ground. The accused is said to have fired from a standing position on P.W.1 who was lying on a plat-form. The height of which would normally be more than 3 feet. Undoubtedly, the line of file would be downwards from the standing position of the accused. If firing has taken place as alleged while the accused was standing, them, the trajectory would have been ultimately towards the ground level, because P.W.1 was lying on the plat-form and then, the pellets would have hit the ground. As against this indisputable facts, the evidence of P.W.1 is that the pellets were found embedded in the wall and his shirt was also damaged which was hung to a nail on the wall. If we believe this statement, then the fire should have been from a lower level to higher level. That is if the accused had shot from a standing position, then trajectory would have been straight or upward. But that I not the case of p.w.1. He submits that he was in a lying position. If we believe this statement, then the fire should have been from a lower level to higher level. That is if the accused had shot from a standing position, then trajectory would have been straight or upward. But that I not the case of p.w.1. He submits that he was in a lying position. The learned Trial Judge has not considered this aspect. It must be borne in mind that whenever the offence involves use of arm like gun and pistols, the trajectory should be ascertained. This would give us the position of the offender and the position of the victim. The learned Trial Judge has not considered the aspect of trajectory which is vital and ballistic opinion is not obtained. 11. The second and important aspect is M.O.1-gun is a single barrel gun. The ammunition used in cartridge contains pellets and lead. Cartridge comprises of several components and they are called pellets, primer and primer cap, powder or propellant, wade and projectile. Therefore, the primer and primer cap remains in the gun when it is fired. The projectiles are ejected from the gun depending on the position of the shooter and victim. Since this is a SBBL gun, there will also be expulsion of the cartridge from the barrel. It I for this reason, detailed inspection of the place of occurrence becomes necessary. If a gun was fired from a particular spot, then, we expect the place from where the gun is fired spilling of wads and the primer or primer cap. Generally, it is noticed that when firing of cartridge takes place, if not cartridge, at least the wads and the primer contents would be found fallen on the ground while simultaneously ejecting projectile pellets. In the instant case, the so-called panchanama prepared by the investigating officer only speak of recovery of pellets from the wall, but it does not show recovery of wads or primer or primer cap from the said place. If the gun was fired as stated by P.W.1 from a distance of 20 feet from where he was lying wads should have been traced or at lest the primer or primer cap or it should have been in the gun which was admittedly P.W.1. Since nothing has been found at the spot, it is difficult to believe gun was fired. Since nothing has been found at the spot, it is difficult to believe gun was fired. None of these aspects have been examined by the investigating officer and no opinion of P.W.5, the ballistic expert obtained, consequent of which, the prosecution has failed to elicit from ballistic expert about the range of firing, about the ammunition used and to link that the pellets recovered from the spot were traceable to the ammunition used in gun-M.O.1. It is therefore difficult to believe that the pellets found on the wall would have been fired from M.O.1 in the manner stated by P.W.1`. 12. Therefore, this gives rise to two theories as canvassed by Sri K.M.Shiralli that: 1. The gun belongs to P.W.1-Beera Nagu Gouda himself; and 2. To falsely implicate the accused, he himself must have fired the gun to create evidence and concealed the wads and cartridge case to avoid detection by investigating officer. 13. I am satisfied that these two aspects canvassed by Sri K.M.Shiralli in the absence of proper investigation are worthy for acceptance. Added to this, we notice from the evidence of P.W.4-Ganapati and P.W.2 that there were people in the neighbourhood where the alleged incident occurred but none have not been examined. 14. The investigating officer has not enquired any of the neighbours. None of them would have heard any gun shot. Normally, in a case of this nature where allegation is of a gun shot, it would not escape hearing of the neighbours and they would be readily present to speak about the gun shot. If not about the incident and that has also not been investigated. In the result, the witnesses on whose testimony the prosecution relies i.e., P.W.1-Beera Nagu Gouda, his wife and his son with no independent witnesses being available, has to be scrutinized with great care and caution for corroboration. Undoubtedly, that testimony can be safely described as self-serving interested testimony for the sole object of indicting the appellant in a criminal charge so as to ensure that he does not claim share in the property which is the genesis of the family dispute. It is also to be noted that when P.W.1 speaks of agricultural land being joint family property and the accused having exploited the use of mango over years, excluding other family members. It is also to be noted that when P.W.1 speaks of agricultural land being joint family property and the accused having exploited the use of mango over years, excluding other family members. The investigating officer has not questioned the other family members of P.W.1, who had share in the property to know whether the appellant/accused had deprived from the share and that was the basis of the dispute. 15. Viewed from any angle, the evidence on record in the first look may show that the accused may have shot the gun, but on close scrutiny of the evidence. It is more a case of P.W.1 indulging in falsely implicating the accused and this opinion gets fortified from the fact that P.W.1 and his wife tied the accused to a tree and they informed the police officer, who came to the spot. He then handed over the accused to the police officer. From this it is noticed that P.W.1, and his wife were in the dominant position compared to the accused and if at all armed with gun, he had come he was over powered. 16. Lastly, it is to be noticed that the recovery of the gun being from complainant and as the gun is produced by the complainant, there is possibility that he was in possession of the gun and not the accused. When these facts create doubt in the allegation, the question of convicting the accused for the serious charge of offence under Section 307 of IPC does not arise. 17. Being of that view, I allow the appeal, set aside the judgment passed in S.C.No. 56 of 2000 and the appellant is acquitted of all the charge, particularly punishable under the provisions of Section 307 of IPC and Section 25(1-A) of the Arms Act and Section 27(2) of the Arms Act. If the accused is in judicial custody, he is ordered to be set at liberty forthwith. 18. The bail bond with surety if any, executed by him shall stand cancelled. 19. M.O.1 is ordered to be confiscated to the State as there is no to claim the said material object. Similarly, the other objects being not worthy, the order passed by the Trial Court regarding its disposal is confirmed. 20. The appeal stands disposed of an terms of the above order.