Full Judgment Text
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CRL.A No. 1790 of 2018
C/W CRL.A No. 1416 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 3 DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1790 OF 2018 (A)
C/W
CRIMINAL APPEAL NO.1416 OF 2019 (C)
IN CRL.A No.1790/2018
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE SUB-INSPECTOR
SOMWARPET POLICE STATION
KODAGU DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
…APPELLANT
Digitally
signed by
ANJALI M
Location:
High Court
of
Karnataka
(BY SMT. RASHMI PATEL, H.C.G.P.)
AND:
MANOJ KUMAR H.R.
S/O. H.N. RAMA
AGED ABOUT 37 YEARS
OCCUPATION: COOLIE
RESIDING AT SIDDARTHA EXTENSION
HANAGALLU VILLAGE, SOMWARPET
KODAGU DISTRICT-571 236.
…RESPONDENT
(BY SRI D.P. PRASANNA, ADVOCATE)
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CRL.A No. 1790 of 2018
C/W CRL.A No. 1416 of 2019
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 19.06.2018 AND 20.06.2018 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, KODAGU AT MADIKERI
IN SESSIONS CASE NO.100 OF 2016 TO THE EXTENT OF NOT
CONVICTING THE ACCUSED/RESPONDENT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 307 OF IPC BY ALLOWING THIS
CRIMINAL APPEAL.
IN CRL.A NO.1416/2019
BETWEEN:
H.N. RAMA @ RAMU
S/O. NINGAIAH
AGED ABOUT 68 YEARS
RESIDING AT SIDDARTHA EXTENSION
HANAGALLU VILLAGE, SOMAVARPET
KODAGU DISTRICT-571 236.
...APPELLANT
(BY SRI PRASANNA D.P., ADVOCATE)
AND:
THE STATE OF KARNATAKA
SOMAVARPET POLICE STATION
KODAGU DISTRICT-571 236
REPRESENTED BY SPP
HIGH COURT COMPLEX.
...RESPONDENT
(BY SMT. RASHMI PATEL, H.C.G.P.)
*
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 454 OF
THE CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE
PRINCIPAL SESSIONS JUDGE, KODAGU AT MADIKERI IN
SESSIONS CASE NO.100 OF 2016 DATED 19-6-2018 AND
20-6-2018 IN RESPECT TO THE APPLICATION OF THE
APPELLANT IS CONCERNED AND RELEASE THE GUN TO THE
APPELLANT.
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CRL.A No. 1790 of 2018
C/W CRL.A No. 1416 of 2019
HC-KAR
THESE CRIMINAL APPEALS, COMING ON FOR HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)
Crl.A.No.1790/2018 is preferred by the State, feeling
aggrieved by the judgment of trial Court insofar as acquitting
the accused for the offence punishable under Section 307 IPC.
Crl.A.No.1416 of 2019 is preferred by the license holder
of the gun, namely the father of the accused, feeling aggrieved
by the confiscation of the said gun MO.2 and rejection of his
application filed under Section 457 of Cr.P.C.
2. We have heard both sides and perused the evidence
and material on record.
3. The accused was charged for the offence punishable
under Section 307 of IPC and Section 3 r/w 25 of the Indian
Arms Act, 1959. The case of the prosecution is that on
07.03.2016, at around 1.00 a.m. when the victim -
H.K. Surendra-CW.1 (PW.1) along with CW.2 Shashikumar
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H.H.(PW.2), CW.3 Rajendra(PW.3), CW.4 Kaushik (PW.4),
CW.5 Puttaswamy, CW.6 Dharmesh, CW.7 Amaranath,
CW.8 Keerthan and CW.9 Bhavan were celebrating Shivarathri
festival in front of Ambedkar Samudaya Bhavan, the accused
came and picked up quarrel for the reason that he was not
invited by them to the said function. At about 2.30 a.m., he
once again came and picked up quarrel with CW.1 and again, at
around 3.10 a.m., he came holding a gun belonging to his
father, with an intention to kill CW.1/H. K. Surendra and fired
at him and at that time, CW.2/H. H. Shashikumar held his
hand, hence the shot misfired. It is the further case of the
prosecution that the accused used the gun belonging to his
father to commit the murder of CW.1-H.K. Surendra and
thereby violated the license conditions as defined under Section
3 of the Indian Arms Act, 1959 and thereby committed offence
punishable under Section 307 IPC and Section 25 of the Indian
Arms Act, 1959.
4. In order to establish the guilt of the accused, the
prosecution in all examined 16 witnesses and got marked
11 documents and MOs. 1 to 4. The defence of the accused was
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one of total denial, however he did not choose to lead any
evidence on his behalf.
5. The learned Sessions Judge on appreciation of the
evidence and material on record came to the conclusion that
the prosecution has not proved the charge under Section 307
IPC, but proved the offence punishable under Section 506 IPC
and Section 25 of the Indian Arms Act, 1959. The accused was
sentenced to undergo imprisonment for a period of eight
months, which he had already undergone.
6. Assailing the impugned judgment, learned H.C.G.P
vehemently contended that the complainant i.e., PW.1, who is
the victim in this case, as well as PW.3 to PW.7, have
categorically stated that the accused came to the spot armed
with a gun(MO.2) and fired at PW.1, and at that point of time,
PW.2, Shashikumar held his hand, thus, preventing him from
causing harm to PW.1. Hence, there is ample evidence to show
that the accused brought the gun with an intention to commit
the murder of PW.1 and fired at him with that intention. She
contended that if there was no intervention by PW.2, PW.1 i.e.,
the victim in this case would have sustained gunshot injuries
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and died. She contended that the reasons assigned by the trial
Court for not convicting the accused for the offence punishable
under Section 307 IPC are not in accordance with law; the trial
Court pointing out some minor discrepancies, which do not go
to the root of the case has come to an erroneous conclusion to
acquit the accused for the charged offence punishable under
Section 307 IPC.
7. Learned counsel Sri. D.P. Prasanna, for the accused
contended that there is material discrepancy in the evidence of
the prosecution witnesses and the trial Court having taken into
consideration the said discrepancy and by giving cogent and
valid reasons has come to the conclusion that the offence under
Section 307 IPC is not attracted in this case. It is his contention
that MO.2 gun was not used to commit the offence, as alleged
by the prosecution and the witnesses have given different
versions regarding the time and use of gun. The Ballistic expert
has not stated as to the time of usage of the gun and he has
opined that there was no smell of gaseous products of GSR at
muzzle end as well as at breech end. Hence, he contended that
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C/W CRL.A No. 1416 of 2019
HC-KAR
the case of the prosecution that MO.2 was used by the accused
at the relevant point of time is not established.
8. Learned counsel further contended that the gun/MO.2
seized in the case has been confiscated to the State and the
application filed by the license holder of the gun i.e., father of
the accused for release of the said gun has been erroneously
rejected. It is his contention that if it is not proved that the gun
was not used for commission of the offence, then confiscation
of gun-MO.2 is unsustainable. Accordingly, sought to release
MO.2 in favour of the appellant in Crl.A. No.1416/2019.
9. The incident is alleged to have taken place in the early
hours of 07.03.2016. It is the case of prosecution that PW.1
i.e., the victim in this case and others were celebrating
Shivaratri festival in front of Ambedkar Samudaya Bhavan in
their Village. At around 1.00 a.m., the accused is alleged to
have come to the spot and picked up quarrel with them saying
that he was not invited to the said function. Once again, he
returned to the spot at about 2.30 a.m. and picked up quarrel
with the complainant, at that time, others consoled and sent
him back and thereafter, at about 3.10 a.m., the accused came
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to the spot holding a Kovi(M.O.2) aiming at PW.1 and uttering
that he will commit his murder, fired at him and at that time,
PW.2 Shashikumar came and held his hand, due to which, the
shot misfired. Thereafter, the accused ran away from the spot.
10. Ex.P1 is the complaint lodged by PW.1 on 8.03.2016.
On receiving the said complaint, PW.16-PSI registered a case
and issued Ex.P9-FIR to the jurisdictional Court. He proceeded
to the spot and conducted spot mahazar-Ex.P2 and seized one
empty wad from the spot(M.O.1) and subjected the same to
PF.No.32/2016. Accused was apprehended and his voluntary
statement was recorded. At his instance, Kovi-MO.2 and empty
cartridge were seized from his house. The articles seized were
sent to RFSL for Ballistic Expert's opinion. Further, he seized
the gun license produced by the father of the accused. He sent
requisition to DC through SP, to give permission to prosecute
the accused under the Arms Act. Ex.P8 is the permission letter.
11. In the case on hand, PW.1 is the victim. PW.2 to
PW.7 are the other material witnesses, who were at the spot at
the time of incident. It is the contention of the learned HCGP
that there is ample evidence to show that the accused had an
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intention to commit the murder of PW.1 and with that intention,
he brought the gun from his house and fired at PW.1. She
contended that, but, for the intervention of PW.2, the accused
would have committed the murder of PW.1.
12. We have carefully examined the evidence of PW.1 as
well as PW.2 to PW.7. In his chief examination, PW.1 has
stated that at around 3.00 a.m., accused came again armed
with Kovi and fired gunshot towards them and at that time,
they were sitting by doing pooja. The said bullet went in air. He
was partly treated hostile by the prosecution and in the cross
examination, he stated that around 03.00 a.m., accused came
directly near him with Kovi and by saying that 'I will kill you',
fired gunshot and Shashikumar CW.2 came there and held the
accused and the bullet went upwards.
13. It is relevant to see, PW.2 in his chief examination,
has stated that, accused raised Kovi and fired and he pushed
Kovi and hand of accused and hence the bullet went upwards
and hit the Panwala tree. In the cross-examination, he has
stated that accused came armed with Kovi, suddenly fired and
he pushed his hand. The accused fired, when he was holding
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his hand. There is discrepancy in the evidence of PW.1 and
PW.2. According to PW.1, accused came directly near him
holding the gun and saying that he will kill him, fired gun shot.
PW.2 has not stated that when the accused fired gun shot, he
uttered that he wanted to kill PW.1. If Ex-P1, the complaint is
perused, Shashikumar was not present near the accused. It is
stated that Shashikumar came running and held the accused,
by that time, he fired at PW.1. If evidence of PW.1 is perused,
he has not stated that PW.2 came running and then held the
hand of the accused. This is relevant, because, according to
PW.1, the accused had already fired gunshot at him and if
accused had fired gunshot aiming at him and if Shashikumar
was not present near PW.1, he should have sustained gun shot
injuries by the time PW.2-Shashikumar came to the spot. Their
testimony that accused fired aiming at PW.1 and because PW.2
held his hand, the shot misfired is therefore doubtful to accept.
To appreciate the evidence of PW.1 and PW.2, it is also relevant
to appreciate the evidence of other witnesses viz., PW.3 to
PW.7, who according to the prosecution, were at the spot,
when the incident took place.
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C/W CRL.A No. 1416 of 2019
HC-KAR
14. PW.3 in his chief examination has stated that at about
3.10 a.m., the accused came and fired gunshot and it misfired.
He has not stated that the accused fired gunshot aiming at
PW.1. In the cross-examination, he has stated that, he has not
seen any incident and not given any statement to the police. He
has stated that when the accused came for the third time, he
was inside the function hall and CW.1 and CW.2(PW.1 and
PW.2) were outside, talking and dancing to the music.
15. According to PW.4, at about 3.10 a.m., accused came
with the gun near Ambedkar Samudaya Bhavan and fired
gunshot towards CW.1-Surendra and it misfired and hit
Panwala tree and then accused left the place. He has not at all
stated that, at that time, PW.2 intervened or held the hand of
the accused, due to which, the gunshot misfired. Similarly,
PW.5 has stated that the accused came with the gun and fired
gunshot towards CW.1 and it misfired and hit the Panwala tree
and then he left the place. Even the said witness has not stated
that PW.2 intervened or held the hand of the accused, so as to
prevent him from firing at PW.1. Similar is the evidence of
PW.6 and PW.7.
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16. From the above evidence on record, it cannot be held
that the accused fired at PW.1, with an intention to commit his
murder and at that time, PW.2 held his hand, due to which, the
shot misfired. In fact, PW.1 in the chief examination has not
stated that the accused by uttering that he will kill him, fired
gunshot towards him. On the other hand, he has stated that
accused armed with a Kovi came and fired gunshot towards
them i.e., all who were present, when they were sitting and
doing pooja.
17. Learned Sessions Judge while appreciating the
evidence of the prosecution witnesses, has noticed the above
discrepancies in their evidence, wherein the witnesses namely
PW.3 to PW.7 have not at all stated that PW.2 caught hold of
the accused, because of which, there was misfire. Said
witnesses were not treated hostile by the prosecution.
18. Another aspect is that, it is not the case of
prosecution that PW.2 after holding the hand of the accused,
snatched away the gun, which he was holding. None of the
witnesses have stated that accused once again attempted on
the life of the complainant or did any such act to cause harm to
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him with the said gun. Admittedly, the gun(MO.2) was
recovered from the house of the accused, at his instance,
pursuant to his voluntary statement. If there was any intention
on the part of the accused to commit the murder, nothing
prevented him to cause further harm to PW.1. Hence, it cannot
be held that the prosecution has proved beyond doubt that the
accused committed an offence punishable under Section 307
IPC. The acquittal of the accused by the trial Court for the said
offence does not suffer from any infirmity or illegality.
19. We have perused the evidence of Ballistic Expert,
examined as PW.12. The report issued by him is marked as
Ex.P5. He has stated that, he subjected the articles sent for
examination thoroughly and scientifically and gave the
following opinion:-
i) The weapon in article No.1 is a fire arm.
ii) The SBBL gun in article No.1 bears signs of
discharge, but no opinion is possible regarding
actual date and time of firing.
iii) The SBBL gun in article No.1 is a legally
manufactured fire arm.
iv) The SBBL gun in article No.1 is in working condition
at the time of examination.
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C/W CRL.A No. 1416 of 2019
HC-KAR
20. PW.12 has stated that the cartridge case in article
No.2 has been fired through SBBL gun(article No.1). The red
colour wad in article No.3 is component of 12 bore cartridge
case which could have been fired through article No.1. He used
three cartridges for test firing and he has stated that they were
successfully fired.
21. The trial Court has come to the conclusion that the
accused has used the gun belonging to his father, knowing fully
well that it does not belong to him and misused the same to
cause an alarm to the witnesses, with whom, he had a
difference of opinion. Therefore, the act of the accused will
squarely fall under Section 506 of IPC and not under Section
307 of IPC. Further, accused has misused the gun that
belonged to his father PW.11/Ramu and therefore, contravened
the provisions of Section 3 and Section 25 of the Arms Act.
While convicting the accused for the offence punishable under
Section 506 IPC and Section 25 of the Arms Act, the learned
Sessions Judge has ordered MO.2 to be confiscated to the
State. The accused was given set off for the period already
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undergone by him as he had already undergone eight months
of imprisonment.
22. Insofar as conviction of the accused under Section
506 IPC and 25 of the Arms Act, there is no appeal preferred by
the accused. The reasons assigned by the trial Court for
convicting and sentencing the accused for the said offences, are
in accordance with law.
For the foregoing reasons, we pass the following:-
ORDER
Crl.A.No.1790/2018 and Crl.A.No.1416/2019 are
dismissed
.
The order of confiscation of MO.2 to the State is made
absolute.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MN List No.: 1 Sl No.: 19
NC: 2026:KHC:13110-DB
CRL.A No. 1790 of 2018
C/W CRL.A No. 1416 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 3 DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1790 OF 2018 (A)
C/W
CRIMINAL APPEAL NO.1416 OF 2019 (C)
IN CRL.A No.1790/2018
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE SUB-INSPECTOR
SOMWARPET POLICE STATION
KODAGU DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
…APPELLANT
Digitally
signed by
ANJALI M
Location:
High Court
of
Karnataka
(BY SMT. RASHMI PATEL, H.C.G.P.)
AND:
MANOJ KUMAR H.R.
S/O. H.N. RAMA
AGED ABOUT 37 YEARS
OCCUPATION: COOLIE
RESIDING AT SIDDARTHA EXTENSION
HANAGALLU VILLAGE, SOMWARPET
KODAGU DISTRICT-571 236.
…RESPONDENT
(BY SRI D.P. PRASANNA, ADVOCATE)
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CRL.A No. 1790 of 2018
C/W CRL.A No. 1416 of 2019
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 19.06.2018 AND 20.06.2018 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, KODAGU AT MADIKERI
IN SESSIONS CASE NO.100 OF 2016 TO THE EXTENT OF NOT
CONVICTING THE ACCUSED/RESPONDENT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 307 OF IPC BY ALLOWING THIS
CRIMINAL APPEAL.
IN CRL.A NO.1416/2019
BETWEEN:
H.N. RAMA @ RAMU
S/O. NINGAIAH
AGED ABOUT 68 YEARS
RESIDING AT SIDDARTHA EXTENSION
HANAGALLU VILLAGE, SOMAVARPET
KODAGU DISTRICT-571 236.
...APPELLANT
(BY SRI PRASANNA D.P., ADVOCATE)
AND:
THE STATE OF KARNATAKA
SOMAVARPET POLICE STATION
KODAGU DISTRICT-571 236
REPRESENTED BY SPP
HIGH COURT COMPLEX.
...RESPONDENT
(BY SMT. RASHMI PATEL, H.C.G.P.)
*
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 454 OF
THE CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE
PRINCIPAL SESSIONS JUDGE, KODAGU AT MADIKERI IN
SESSIONS CASE NO.100 OF 2016 DATED 19-6-2018 AND
20-6-2018 IN RESPECT TO THE APPLICATION OF THE
APPELLANT IS CONCERNED AND RELEASE THE GUN TO THE
APPELLANT.
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CRL.A No. 1790 of 2018
C/W CRL.A No. 1416 of 2019
HC-KAR
THESE CRIMINAL APPEALS, COMING ON FOR HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)
Crl.A.No.1790/2018 is preferred by the State, feeling
aggrieved by the judgment of trial Court insofar as acquitting
the accused for the offence punishable under Section 307 IPC.
Crl.A.No.1416 of 2019 is preferred by the license holder
of the gun, namely the father of the accused, feeling aggrieved
by the confiscation of the said gun MO.2 and rejection of his
application filed under Section 457 of Cr.P.C.
2. We have heard both sides and perused the evidence
and material on record.
3. The accused was charged for the offence punishable
under Section 307 of IPC and Section 3 r/w 25 of the Indian
Arms Act, 1959. The case of the prosecution is that on
07.03.2016, at around 1.00 a.m. when the victim -
H.K. Surendra-CW.1 (PW.1) along with CW.2 Shashikumar
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H.H.(PW.2), CW.3 Rajendra(PW.3), CW.4 Kaushik (PW.4),
CW.5 Puttaswamy, CW.6 Dharmesh, CW.7 Amaranath,
CW.8 Keerthan and CW.9 Bhavan were celebrating Shivarathri
festival in front of Ambedkar Samudaya Bhavan, the accused
came and picked up quarrel for the reason that he was not
invited by them to the said function. At about 2.30 a.m., he
once again came and picked up quarrel with CW.1 and again, at
around 3.10 a.m., he came holding a gun belonging to his
father, with an intention to kill CW.1/H. K. Surendra and fired
at him and at that time, CW.2/H. H. Shashikumar held his
hand, hence the shot misfired. It is the further case of the
prosecution that the accused used the gun belonging to his
father to commit the murder of CW.1-H.K. Surendra and
thereby violated the license conditions as defined under Section
3 of the Indian Arms Act, 1959 and thereby committed offence
punishable under Section 307 IPC and Section 25 of the Indian
Arms Act, 1959.
4. In order to establish the guilt of the accused, the
prosecution in all examined 16 witnesses and got marked
11 documents and MOs. 1 to 4. The defence of the accused was
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one of total denial, however he did not choose to lead any
evidence on his behalf.
5. The learned Sessions Judge on appreciation of the
evidence and material on record came to the conclusion that
the prosecution has not proved the charge under Section 307
IPC, but proved the offence punishable under Section 506 IPC
and Section 25 of the Indian Arms Act, 1959. The accused was
sentenced to undergo imprisonment for a period of eight
months, which he had already undergone.
6. Assailing the impugned judgment, learned H.C.G.P
vehemently contended that the complainant i.e., PW.1, who is
the victim in this case, as well as PW.3 to PW.7, have
categorically stated that the accused came to the spot armed
with a gun(MO.2) and fired at PW.1, and at that point of time,
PW.2, Shashikumar held his hand, thus, preventing him from
causing harm to PW.1. Hence, there is ample evidence to show
that the accused brought the gun with an intention to commit
the murder of PW.1 and fired at him with that intention. She
contended that if there was no intervention by PW.2, PW.1 i.e.,
the victim in this case would have sustained gunshot injuries
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and died. She contended that the reasons assigned by the trial
Court for not convicting the accused for the offence punishable
under Section 307 IPC are not in accordance with law; the trial
Court pointing out some minor discrepancies, which do not go
to the root of the case has come to an erroneous conclusion to
acquit the accused for the charged offence punishable under
Section 307 IPC.
7. Learned counsel Sri. D.P. Prasanna, for the accused
contended that there is material discrepancy in the evidence of
the prosecution witnesses and the trial Court having taken into
consideration the said discrepancy and by giving cogent and
valid reasons has come to the conclusion that the offence under
Section 307 IPC is not attracted in this case. It is his contention
that MO.2 gun was not used to commit the offence, as alleged
by the prosecution and the witnesses have given different
versions regarding the time and use of gun. The Ballistic expert
has not stated as to the time of usage of the gun and he has
opined that there was no smell of gaseous products of GSR at
muzzle end as well as at breech end. Hence, he contended that
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the case of the prosecution that MO.2 was used by the accused
at the relevant point of time is not established.
8. Learned counsel further contended that the gun/MO.2
seized in the case has been confiscated to the State and the
application filed by the license holder of the gun i.e., father of
the accused for release of the said gun has been erroneously
rejected. It is his contention that if it is not proved that the gun
was not used for commission of the offence, then confiscation
of gun-MO.2 is unsustainable. Accordingly, sought to release
MO.2 in favour of the appellant in Crl.A. No.1416/2019.
9. The incident is alleged to have taken place in the early
hours of 07.03.2016. It is the case of prosecution that PW.1
i.e., the victim in this case and others were celebrating
Shivaratri festival in front of Ambedkar Samudaya Bhavan in
their Village. At around 1.00 a.m., the accused is alleged to
have come to the spot and picked up quarrel with them saying
that he was not invited to the said function. Once again, he
returned to the spot at about 2.30 a.m. and picked up quarrel
with the complainant, at that time, others consoled and sent
him back and thereafter, at about 3.10 a.m., the accused came
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to the spot holding a Kovi(M.O.2) aiming at PW.1 and uttering
that he will commit his murder, fired at him and at that time,
PW.2 Shashikumar came and held his hand, due to which, the
shot misfired. Thereafter, the accused ran away from the spot.
10. Ex.P1 is the complaint lodged by PW.1 on 8.03.2016.
On receiving the said complaint, PW.16-PSI registered a case
and issued Ex.P9-FIR to the jurisdictional Court. He proceeded
to the spot and conducted spot mahazar-Ex.P2 and seized one
empty wad from the spot(M.O.1) and subjected the same to
PF.No.32/2016. Accused was apprehended and his voluntary
statement was recorded. At his instance, Kovi-MO.2 and empty
cartridge were seized from his house. The articles seized were
sent to RFSL for Ballistic Expert's opinion. Further, he seized
the gun license produced by the father of the accused. He sent
requisition to DC through SP, to give permission to prosecute
the accused under the Arms Act. Ex.P8 is the permission letter.
11. In the case on hand, PW.1 is the victim. PW.2 to
PW.7 are the other material witnesses, who were at the spot at
the time of incident. It is the contention of the learned HCGP
that there is ample evidence to show that the accused had an
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intention to commit the murder of PW.1 and with that intention,
he brought the gun from his house and fired at PW.1. She
contended that, but, for the intervention of PW.2, the accused
would have committed the murder of PW.1.
12. We have carefully examined the evidence of PW.1 as
well as PW.2 to PW.7. In his chief examination, PW.1 has
stated that at around 3.00 a.m., accused came again armed
with Kovi and fired gunshot towards them and at that time,
they were sitting by doing pooja. The said bullet went in air. He
was partly treated hostile by the prosecution and in the cross
examination, he stated that around 03.00 a.m., accused came
directly near him with Kovi and by saying that 'I will kill you',
fired gunshot and Shashikumar CW.2 came there and held the
accused and the bullet went upwards.
13. It is relevant to see, PW.2 in his chief examination,
has stated that, accused raised Kovi and fired and he pushed
Kovi and hand of accused and hence the bullet went upwards
and hit the Panwala tree. In the cross-examination, he has
stated that accused came armed with Kovi, suddenly fired and
he pushed his hand. The accused fired, when he was holding
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his hand. There is discrepancy in the evidence of PW.1 and
PW.2. According to PW.1, accused came directly near him
holding the gun and saying that he will kill him, fired gun shot.
PW.2 has not stated that when the accused fired gun shot, he
uttered that he wanted to kill PW.1. If Ex-P1, the complaint is
perused, Shashikumar was not present near the accused. It is
stated that Shashikumar came running and held the accused,
by that time, he fired at PW.1. If evidence of PW.1 is perused,
he has not stated that PW.2 came running and then held the
hand of the accused. This is relevant, because, according to
PW.1, the accused had already fired gunshot at him and if
accused had fired gunshot aiming at him and if Shashikumar
was not present near PW.1, he should have sustained gun shot
injuries by the time PW.2-Shashikumar came to the spot. Their
testimony that accused fired aiming at PW.1 and because PW.2
held his hand, the shot misfired is therefore doubtful to accept.
To appreciate the evidence of PW.1 and PW.2, it is also relevant
to appreciate the evidence of other witnesses viz., PW.3 to
PW.7, who according to the prosecution, were at the spot,
when the incident took place.
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14. PW.3 in his chief examination has stated that at about
3.10 a.m., the accused came and fired gunshot and it misfired.
He has not stated that the accused fired gunshot aiming at
PW.1. In the cross-examination, he has stated that, he has not
seen any incident and not given any statement to the police. He
has stated that when the accused came for the third time, he
was inside the function hall and CW.1 and CW.2(PW.1 and
PW.2) were outside, talking and dancing to the music.
15. According to PW.4, at about 3.10 a.m., accused came
with the gun near Ambedkar Samudaya Bhavan and fired
gunshot towards CW.1-Surendra and it misfired and hit
Panwala tree and then accused left the place. He has not at all
stated that, at that time, PW.2 intervened or held the hand of
the accused, due to which, the gunshot misfired. Similarly,
PW.5 has stated that the accused came with the gun and fired
gunshot towards CW.1 and it misfired and hit the Panwala tree
and then he left the place. Even the said witness has not stated
that PW.2 intervened or held the hand of the accused, so as to
prevent him from firing at PW.1. Similar is the evidence of
PW.6 and PW.7.
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16. From the above evidence on record, it cannot be held
that the accused fired at PW.1, with an intention to commit his
murder and at that time, PW.2 held his hand, due to which, the
shot misfired. In fact, PW.1 in the chief examination has not
stated that the accused by uttering that he will kill him, fired
gunshot towards him. On the other hand, he has stated that
accused armed with a Kovi came and fired gunshot towards
them i.e., all who were present, when they were sitting and
doing pooja.
17. Learned Sessions Judge while appreciating the
evidence of the prosecution witnesses, has noticed the above
discrepancies in their evidence, wherein the witnesses namely
PW.3 to PW.7 have not at all stated that PW.2 caught hold of
the accused, because of which, there was misfire. Said
witnesses were not treated hostile by the prosecution.
18. Another aspect is that, it is not the case of
prosecution that PW.2 after holding the hand of the accused,
snatched away the gun, which he was holding. None of the
witnesses have stated that accused once again attempted on
the life of the complainant or did any such act to cause harm to
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him with the said gun. Admittedly, the gun(MO.2) was
recovered from the house of the accused, at his instance,
pursuant to his voluntary statement. If there was any intention
on the part of the accused to commit the murder, nothing
prevented him to cause further harm to PW.1. Hence, it cannot
be held that the prosecution has proved beyond doubt that the
accused committed an offence punishable under Section 307
IPC. The acquittal of the accused by the trial Court for the said
offence does not suffer from any infirmity or illegality.
19. We have perused the evidence of Ballistic Expert,
examined as PW.12. The report issued by him is marked as
Ex.P5. He has stated that, he subjected the articles sent for
examination thoroughly and scientifically and gave the
following opinion:-
i) The weapon in article No.1 is a fire arm.
ii) The SBBL gun in article No.1 bears signs of
discharge, but no opinion is possible regarding
actual date and time of firing.
iii) The SBBL gun in article No.1 is a legally
manufactured fire arm.
iv) The SBBL gun in article No.1 is in working condition
at the time of examination.
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20. PW.12 has stated that the cartridge case in article
No.2 has been fired through SBBL gun(article No.1). The red
colour wad in article No.3 is component of 12 bore cartridge
case which could have been fired through article No.1. He used
three cartridges for test firing and he has stated that they were
successfully fired.
21. The trial Court has come to the conclusion that the
accused has used the gun belonging to his father, knowing fully
well that it does not belong to him and misused the same to
cause an alarm to the witnesses, with whom, he had a
difference of opinion. Therefore, the act of the accused will
squarely fall under Section 506 of IPC and not under Section
307 of IPC. Further, accused has misused the gun that
belonged to his father PW.11/Ramu and therefore, contravened
the provisions of Section 3 and Section 25 of the Arms Act.
While convicting the accused for the offence punishable under
Section 506 IPC and Section 25 of the Arms Act, the learned
Sessions Judge has ordered MO.2 to be confiscated to the
State. The accused was given set off for the period already
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undergone by him as he had already undergone eight months
of imprisonment.
22. Insofar as conviction of the accused under Section
506 IPC and 25 of the Arms Act, there is no appeal preferred by
the accused. The reasons assigned by the trial Court for
convicting and sentencing the accused for the said offences, are
in accordance with law.
For the foregoing reasons, we pass the following:-
ORDER
Crl.A.No.1790/2018 and Crl.A.No.1416/2019 are
dismissed
.
The order of confiscation of MO.2 to the State is made
absolute.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MN List No.: 1 Sl No.: 19