Adeappa vs The State of Karnataka

A.V. Chandrashekara, J—The appellant was the first accused in a criminal case bearing registration in Sessions Case No. 85/2010, which was pending on the file of the I Addl. District and Sessions Judge at Gulbarga. Honnappa was the second accused in the said case. A charge sheet had been filed against both these accused for the offence punishable under Sections 504 and 307 of IPC and Section 25 and 27 of Indian Arms Act, 1959.

The brief facts leading to the registration of the case and consequential investigation by Afzalpur police station are as follows;

"In the first information it is alleged that on 11.03.2009 when CW.1 the first informant went to the shop of Mainabai to purchase Beedi, accused No. 1/appellant herein came there and picked up a quarrel and abused him by using vulgar words and dashed front wheel of his Hero Honda motor-cycle bearing registration No.KA-32/1103 to his chest as a result of which CW.1 fell down. When the first informant resisted, accused No. 1 assaulted him with a stone on his head on the left side and caused bleeding injuries. It is further alleged that he took out a pistol from his pocket and when he was about to fire on CW.1, at that time CW.1 the complainant kicked on his hand and a bullet was fired. Hearing that sound, complainant''s son Prakash came there and tried to apprehend accused No. 1. But accused No. 1 managed to escape on his motorcycle. It is alleged that said pistol was purchased by accused No. 1 from accused No. 2 and the said incident was witnessed by Virupakshi and Jyoti. On the basis of the first information, Afzalpur police registered a case in Crime No. 42/2009 and after investigation they had filed a charge sheet for the offences punishable under Sections 504, 506 and 307 of IPC against accused Nos. 1 and 2. Both the accused had pleaded not guilty and had claimed to be tried."

In order to bring home the guilt of the accused in all 22 witnesses have been examined and as many as 25 exhibits got marked on behalf of the prosecution. 7 Nos have been got marked on behalf of the prosecution. Sri N.G. Prabhakar, Ballistic expert of FSL is examined as PW.21 to bring home the fact that accused had fired from the pistol marked as MO.4 and it was in working condition. Sri K.S. Satyamurthy, District Collector, had granted sanction to prosecute the accused. He is examined as PW.22. Sri R.S. Rotti, the investigating officer who conducted the investigation recovered the pistol from the house of accused No. 1 vide Ex. P4.

Learned Sessions Judge has acquitted both the accused for the offence punishable under Sections 504 and 307 of IPC and Section 25 of Indian Arms Act. But he has convicted the first accused for the offences punishable under Sections 27 of Indian Arms Act only and has sentenced him to undergo three years of imprisonment and to pay fine of Rs. 10,000/- in default to undergo simple imprisonment for a period of two years vide judgment of conviction and sentence dated 29.10.2010. It is this judgment of conviction of sentence, which is called in question before this Court by filing appeal under Section 374(2) of Cr.P.C.

Learned counsel for the appellant has vehemently argued that the trial Court has erred in convicting the accused/appellant for the offences punishable under Section 27 of the Indian Arms Act, when he has been acquitted for the remaining offences inclusive of offence punishable under Section 25 of the Indian Arms Act. It is further argued that, when the very recovery of MO.4 is not proved to the hilt, the question of using fire-arm by this appellant does not arise and therefore he could not have been convicted. He has argued that the judgment of the conviction and sentence is opposed to law, facts and probabilities.

Per contra the learned Government Pleader has vehemently argued that the learned Judge has navigated through the entire oral and documentary evidence and has come to the conclusion that it was this appellant who had fired a cartridge through MO.4 and there is unimpeachable materials placed on record. Hence, he has requested this Court to confirm the judgment of conviction and sentence of this appellant for the offence punishable under Section 27 of Indian Arms Act.

The case of the prosecution is that this appellant had possessed MO.4 with him at the time when he assaulted CW.1/Kashinath and he wanted to fire at him and at that time CW.1 kicked on his hand and therefore a cartridge was fired from MO.4. Soon after the incident, accused No. 1 is stated to have ran away from the spot on his motorcycle. The case of the prosecution is that MO.4 was being concealed by accused No. 1, who is appellant herein, in his house and that was recovered from his house at his instance. Ex. P4 is stated to be the mahazar drawn on 19.03.2009 by PSI/PW.19 in the presence of two independent witnesses relating to the recovery of MO.4. The independent witnesses have been examined as PWs.4 and 5 and none of them have supported the case of the prosecution. In spite of serious cross-examination done by the learned Public Prosecutor with the permission of the Court, nothing useful has been elicited from their mouth to support the case of the prosecution even remotely.

It is the case of PW.19 that first accused was subjected to custodial interrogation and during his custodial interrogation he had volunteered to show the place where he had concealed MO.4. According to him accused had concealed the same in a steel box in his house and brought out that box and gave pistol and three live cartridges in the presence of panchas, in his house. Ex. P-19 is stated to be the relevant portion leading to the distinct recovery of MO.4 at his instance. Mere marking of the relevant portion found in the voluntary statement, as Ex. 19 would be sufficient. The investigating officer was expected to depose that accused had volunteered to disclose the place of the concealment of pistol if he were to be taken to the place.

During the course of cross-examination PW.19 has deposed that accused alone went inside the house and brought a steel box and opened the same in their presence and gave MO.4 and three live cartridges to him. Admittedly, the box allegedly containing MO.4 was not seized by investigating officer. The features of the steel box with reference to the size are not forthcoming in Ex. P4. Independent witnesses have not supported the case of the prosecution in any manner. This Ex. P.4 is a document evidencing the alleged recovery of MO.4 at the instance of this appellant and this was not produced before the learned JMFC at any point of time except while filing charge sheet. In the examination in chief, PW.19 has not deposed the date and time of custodial interrogation done by him and the date on which it was recovered at the instance of this appellant. He has deposed that he had subjected the accused to custodial interrogation and he gave a voluntary statement and thereafter two panchas were got to the police station and that accused got them to his house. This would fall short of the expected standard to accept the important evidence relating to recovery under Section 27 of Evidence Act.

In the light of material witnesses not supporting the case of the prosecution and in the light of the lacuna found in the evidence of PW.19, the learned Judge has acquitted both the accused for the offence punishable under Section 25 of Indian Arms Act. What is held by the learned Judge in paragraph No. 74 of the impugned judgment is that, it is very difficult to hold that accused have committed offences punishable under Section 25 of Indian Arms Act.

PW.16/Amruth is stated to have seen accused No. 2 selling MO.4, MO.1 and it is in this regard his statement was recorded but he has not supported the case of the prosecution in any manner. When the very sale of MO.4 by accused No. 2 to accused No. 1 is not proved, the learned Judge is justified in acquitting both the accused for the offence punishable under Section 25 of Indian Arms Act.

In paragraph No. 75 of the impugned judgment at page 33, the learned Judge has held that, from the bare reading of the Sections 25 and 27 of the Indian Arms Act, it is seen that both these Sections operate in two different sets of circumstances and constitute different set of offences. But the learned Judge has failed to know that in order to sustain conviction for offence punishable under Section 27 of Indian Arms Act, the offence punishable under Section 25 of Indian Arms Act, will have to be proved beyond reasonable doubt. Section 27 of Indian Arms Act cannot be considered as an independent of Section 25 of Indian Arms Act, since a man cannot use a firearm without possessing the same. Thus the learned Judge has adopted a wrong approach to the real state of affairs.

For better appreciation of the facts of the case, Section 25 and 27 of Indian Arms Act, 1959 are reproduced below;

"Section 25 comes into the picture if a fire arm, exposes or offers for sale or transfer, or has in his possessions for sale, transfer, conversion, repair, test or proof any arms or ammunition in contravention of section 5 of the Indian Arms Act".

"Section 27 also refers to Section 5 of the Indian Arms Act, if any person uses any arms or ammunition in contravention of section 5, then punishment is contemplated, then such a person will have to be punished for the offence punishable under Section 27 of the Indian Arms Act, 1959."

What is observed by the trial Court is that, just because accused No. 1 has been acquitted for the offence punishable under Sections 307 and 504 of IPC, the same shall not ipso facto make out a case of acquittal for the offence punishable under Section 27 of Indian Arms Act. Reliance is placed upon the evidence of N.G. Prabhakar, Ballistic expert examined as PW.21 and his report. What he has deposed is that MO.4 was in working condition when he tested the same and that the use of cartridge had been fired from MO.4. He is not able to give opinion about the approximate time of using the cartridge in MO.4.

In order to sustain conviction under Section 27 of the Indian Arms Act, the prosecution has required to prove that the accused possessed;

"(a) illegal fire arm;

(b) used it and

(c) the said firearm was in working condition."

Possession of illegal firearm is a must for proving the offence punishable under Section 27 of the Indian Arms Act. Mere marking of recovery panchanama cannot be considered as the basis for proving offence punishable under Section 27 of the Indian Arms Act. What is held by the learned Judge in paragraph No. 81 is that, presumption is available under Section 114 of the Indian Evidence Act as to the officials acts of the Investigating Officer, more so, in the absence of any previous enmity between the investigating officer and the 1st accused. If MO.4 pistol and live bullets marked as MO.5 to 7 had been really recovered under recovery panchanama marked as Ex. P4 and the same had been recovered from the possession of the accused, nothing came in the way of the Court to convict the accused for the offence punishable under Section 25 of the Indian Arms Act, 1959.

Nothing is placed on record to show that the house of search described in Ex. P4 with reference to the boundaries actually belonged to the first accused. Some document should have been collected from the concerned panchayath relating to the house in question. In the light of the non-furnishing of any material about the ownership of the house being in possession of first accused, much credibility cannot be attached to Ex. P4. The learned Judge has failed to critically examine his vital documents in the light of other surrounding circumstances.

None of the witnesses examined on behalf of the prosecution about the first accused having used MO.4 either at the time of incident or after that at any point of time, have deposed to that effect.

Unless the recovery of MO.4 is proved to the hilt, the opinion given by the Ballistic expert cannot be blown out of the proportion to hold that it was accused who had used MO.4 and one of the used cartridge had been fired from MO.4.

What is held in the case of Sumersinbh Umedsinh Rajput @ Sumersinh Vs. State of Gujarat, AIR 2008 SC 904 : (2008) CriLJ 1388 : (2008) 1 JT 97 : (2007) 14 SCALE 74 : (2007) 13 SCC 83 , is that, if the prosecution case of attempt to murder by gun shot injury fails resultantly, the prosecution under Section 25 of the Indian Arms Act would also fail.

It is to be seen that MO.4 was allegedly recovered from the house of accused No. 1 on 19.03.2009 vide Ex. P4. But it was handed over to FSL on 03.06.2009 by PW.15/Sharanu P.C. No. 1356 of Afzalpur police station. The inordinate delay in sending MO.4 to FSL has not been considered by the trial Court. Nothing is placed on record to demonstrate that the seized MO.4 was properly sealed and it was affixed with seal. If the recovery was really done on 19.03.2009, in the natural circumstances the investigating officer would have sent it for FSL report at the earliest and inordinate delay in sending the same to FSL is not explained in any manner. In the light of serious legal infirmities and in the light of acquittal of this appellant for the offence punishable under Section 25 of the Indian Arms Act, conviction and sentence of the appellant for the offence punishable under Section 27 of the Indian Arms Act, 1959 is not justified. Accordingly, the appeal will have to be allowed and judgment of conviction and sentence passed against this appellant will have to be set aside.

ORDER

Appeal is allowed.

The judgment of conviction and sentence passed for the offence punishable under Section 27 of Indian Arms Act, 1959, against this appellant is set aside. Consequently he is acquitted for the offence alleged against him. If the appellant has deposited any fine pursuant to the sentence of fine, the same shall be returned to him after the appeal period is over.