B.G. Nadappa vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal passed by the Fast Track Court, Virajpet in Sessions Case No. 58/2001 dated 8.7.2010, is called in question, in this appeal.

Accused No. 1 was charged, tried and acquitted for the offences under Section 307 read with Section 34 of IPC and Sections 25 and 27 of the Indian Arms Act. Accused No. 2 was separately charged for the offence under Section 114 of IPC also.

Case of the prosecution in brief is that, accused are from ''Kammanamane'' family and whereas complainant and eye witnesses are from ''Baggana'' family. Both families have got animosity since a long period. They are fighting the litigations before the Courts. Civil Suits are pending between two families with regard to pathway; so also, the brother of accused had filed a complaint against P.W.1 and other eye witnesses herein, in which, P.W.1 and other eye witnesses herein are convicted by the trial Court. However, they are said to have been acquitted by the first appellate Court.

The material on record reveals that the animosity continued till the happening of the incident on hand.

At 9 a.m. on 16.9.1999, when complainant-Nadappa was standing in front of his house, the accused No. 1 fired a gunshot against the complainant at the instigation of accused No. 2; accused No. 1 is none other than the son of accused No. 2; as a result of gunshot, the complainant sustained injuries on his chin, right shoulder and stomach; P.Ws. 2, 4, 5 and 6 saw the accused firing the gun at the complainant; immediately they came to the spot; however, accused Nos. 1 and 2 fled away from the scene; the injured/complainant was immediately taken to Hospital at Somwarpet; subsequently, he has taken treatment in City Hospital, Kadri, Mangalore; the Doctor has opined that the complainant has sustained simple injuries; while taking treatment in the hospital at Somwarpet, the Sub Inspector of Police recorded the statement of P.W.1 as per Ex. P1; based on which Crime No. 250/1999 came to be registered in Somwarpet Police Station. The police after investigation laid the charge sheet.

In order to prove its case, the prosecution in all examined 13 witnesses; got marked 16 exhibits and 5 material objects. On behalf of defence, three witnesses are examined and 5 documents are got marked.

The trial Court on evaluation of the material on record, as aforementioned acquitted the accused by giving benefit of doubt.

Exs. D1 to D5 produced by the accused would clearly reveal that there are litigations going on between the two families both in the Civil Court and in the Criminal Court; it is the case of the prosecution also that the litigations are going on since long time in between the two families.

Keeping this in mind, we have evaluated the material on record.

P.W.1-Nadappa, is the injured eye witness. P.Ws.2, 4, 5 and 6 are the eye witnesses to the incident in question. P.W.3 is the ballistic expert who has examined the articles sent by the investigating officer. The ballistic expert''s opinions are at Exs. P3 and P4. Exs. P5 and P6 disclose about the method of examination done by P.W.3. Ex. P7 is the report of Deputy Director of Forensic Science Laboratory. P.W.7 is a witness for recovery of gun and cartridge. P.W.8 is a medical officer, who treated the victim-P.W.1 in City Hospital, Kadri, Mangalore. P.W.9 is working as medical officer in General Hospital, Somwarpet, who gave first-aid treatment to the injured and sent the injured for higher treatment to Mangalore. P.W.10 conducted part of the investigation and laid the charge sheet. P.W.11 is the District Magistrate, who issued sanctioned order for prosecuting accused Nos. 1 and 2 for the offences under the provisions of Indian Arms Act. P.W.12 is the Sub Inspector of Police of Somwarpet Police Station, who completed the entire investigation. P.W.13 is the Tahsildar, Somwarpet, who has deposed that on 11.9.1999, the elections were held for Lok Sabha and Vidhan Sabha and on 6.10.1999, the votes are counted at Mangalore.

The evidence of Tahsildar clearly reveals that the counting of votes with regard to assembly as well as the parliamentary elections was held at Mangalore on 16.9.1999.

It is the specific case of the defence that accused No. 2 was not in station during the relevant point of time in as much as he had been to Mangalore in support of Congress Party Candidate to participate in counting of votes in Mangalore on 16.9.1999. In support of such defence, DW.3 is examined. The trial Court has believed the version of DW.3 and concluded that accused No. 2 might not have been there on the spot during the relevant period and date.

So also, it is the specific defence of accused No. 1 that he was in bus stand of Somwarpet during the relevant point of time and the police came to the bus stand and apprehended him illegally. In order to prove the said fact, DWs. 1 and 2 are examined by the defence. The trial Court has accepted the versions of DWs.1 and 2 also.

Be that as it may, in order to satisfy ourselves about the correctness of the conclusion reached by the trial Court, we have re-appreciated the materials on record.

It is not in dispute that P.Ws.1, 2, 4, 5 and 6 are all from ''Baggana'' family. It is also not in dispute that accused Nos. 1 and 2 are from ''Kamanamane'' family. As aforementioned, undisputedly, the litigations are going on between the two families since long time. Thus, there is ill will between two families. Whenever the function takes place in the respective of families, the other family members are not invited though the family houses of both the families are situated in the nearby area. P.Ws.1, 2, 4, 5 and 6 were accused in a criminal case initiated by the brother of accused Nos. 1 and 2 and all were convicted by the trial Court initially, however, subsequently they are said to have been acquitted by the appellate Court. Civil litigations are pending consideration between the two families with regard to pathway. It is the specific case of the prosecution that, the offence in question has taken place because of the dispute between the parties relating to pathway. All these facts are taken into consideration by the trial Court for concluding that the injured as well as the eye witnesses are all interested persons.

It is a case of the prosecution more particularly the versions of P.Ws.1, 2 and 6 that the accused No. 1 fired a gun shot standing on the public road which passes in front of the house of accused No. 1. It also admitted by the eye witnesses that people usually pass through the public road during the said time, none of the independent eye witnesses are examined to prove the case of the prosecution. On the other hand, the witnesses examined are all from ''Baggana'' family. The trial Court has considered the versions of all the eye witnesses in detail and has narrated as to how the version of each of the eye witnesses differs with other eye witnesses.

P.W.1 has admitted that accused No. 1 was walking on the road in front of his house for about 5 minutes; accused No. 1 was holding the gun; P.W.1 was also present all through in front of his house; he did not go inside and protect himself; he did not visualize that accused No. 1 may fire gunshot at him; however, it is alleged that accused No. 1 fired a gun shot against P.W.1; this version of P.W.1 is rightly found by the Court below as artificial.

Though P.W.2 is posed as an eyewitness in the case, he has deposed that after hearing the gun shot, he ran to the house of P.W.1 and after hearing gun shot other eye witnesses also came to the spot. Thus, it is clear P.Ws.2, 4, 5 and 6 were actually not the eye witnesses but arrived to the spot after hearing the gun shot sound.

On evaluation of the material on record, the trial Court has concluded that the facts as narrated by the eyewitnesses appear to be highly artificial and casual. Even on re-appreciating, we also concur with the said conclusion. We find that the prosecution has suggested the original and genesis of the incident. We find that the testimony of the eye witnesses is highly artificial. Since the genesis of incident is shrouded in mystery, a reasonable doubt arises in the mind of the Court as to the circumstances under which the victim sustained injuries.

The medical report reveals that P.W.1 sustained 3 simple injuries. P.W.8 - the Doctor who treated the victim has also deposed in support of the wound certificate issued by him. Thus, it is clear that the victim has sustained 3 simple injuries. Though, it is a case of the prosecution as well as the version of the Doctor that pellet embedded in the jaw is removed after operating; the pellet so removed is not produced before the Court for getting it compared with other pellets seized in order to verify as to whether there was really a gun shot from the gun seized or not; secondly, the blood stained clothes of the victim are not seized though admittedly, he sustained bleeding injuries; thirdly, though the crime was registered based on the complaint of P.W.1, the police did not accompany the victim to the Doctor (P.W.8) for taking treatment. Generally the police will take the victim for treatment, but there is nothing on record to show that the police took the victim for treatment.

In the light of these facts, the Court below, in our considered opinion is justified in concluding that the suspicion arises in the mind of the court as to whether the injuries sustained by P.W.1 are really the gun shot injuries or not.

In addition to the same, though the Doctor-P.W.8 has deposed that the victim was subjected to x-ray examination and though such x-ray films allegedly disclose pellets in the jaw as well as in the stomach; the x-ray films are not produced before the Court; the Doctor also has deposed that he does not know as to what happened to the pellets removed by him. Thus, it is clear that the evidence of P.Ws.8 and 9 i.e., medical officers who have given medical treatment to the injured is not at all supported by the relevant documentary evidence.

Merely because the palm of accused No. 1 was containing the residues of gun powder, it cannot be said that accused No. 1 was responsible for gunshot injuries. The trial Court has considered this aspect of the matter also.

In Coorg District, it is not uncommon for the people to have the gun for protecting their properties. Almost every house in that District has got either SBBL gun or DBBL gun as the case may be. The guns are used generally for protecting the property from the wild animals. In that regard, there could be firing at the wild animals only to frighten them. Consequently, each of the guns maintained by the villagers of Coorg District would show the signs of discharge and their palms may also show the presence of residues of gun powder. Only based on the said circumstances, accused No. 1 cannot be convicted, particularly when, we find that the origin and genesis of the case of the prosecution is shrouded with mystery.

Even on re-evaluation of the material on record, we do not find any ground to interfere with the Judgment of the Court below. The view taken by the trial Court is one of the possible views. This being the appeal against the judgment and order of acquittal, the appellate Court would be normally slow in interfering with such Judgment even in case if the second view is possible under the facts and circumstances. In the present case, we find that the view taken by the trial Court is one of the possible views.

Hence, no interference is called for. Accordingly, appeal fails and the same stands dismissed.