Shekhappa Basavanneppa Halasur vs State of Karnataka

S.K. Sangalad, J.—This appeal is directed against the judgment and order dated 28-11-1998 passed in S.C. No. 94 of 1996 convicting the appellant-accused for the offences punishable u/s 304-11 and sentencing him to undergo S.I. for 3 years and also S.I. for 3 years for the offence punishable u/s 27(1) of the Arms Act. Both the sentences have been ordered to run concurrently.

The story of the prosecution in nutshell is as follows:

The appellant hereinafter referred to as ''accused''.

The accused was working as A.R.S.I. at D.A.R., Dharwad and he was instructor for the trainees. On 20-10-1994, there was a rehearsal on the eve of ''Police Martyrs Day'' between 6 a.m. to 7 a.m. It was held at the police parade ground at the Headquarters of Dharwad. At about 6.50 a.m. or 6.55 a.m. the accused fired at a mad dog which came to that ground with 0.22 rifle. But the shot missed the dog and hit the cyclist in his chest. On account of this, there was instantaneous death. Immediately the appellant himself along with others took him to the Civil Hospital, Dharwad. The deceased boy was aged about 12 years. He was also none other than the son of colleague of this accused. It is also alleged that the accused came into possession of the rifle unlawfully and used it unlawfully. As such, the offences as alleged by the prosecution have been committed.

A complaint was filed with suburb police, who registered a case in Crime No. 345 of 1994 for the afore-stated offences and the FIR was dispatched.

P.W. 27 is the I.O. who has filed the charge-sheet after completing the investigation.

P.Ws. 1 to 27 were examined and Exs. P-1 to P-18 were produced and M.Os. 1 to 12 were marked for the prosecution. For the defence no witness was examined muchless any document was marked.

After hearing the arguments on both the sides, the lower Court has come to the conclusion that it is this accused who is responsible for the commission of the offence. As such, he has been found guilty for the aforesaid offence.

P.W. 12 is the eye-witness for this incident- P.W. 1 is none other than the father of the deceased and P.W. 2 is the mother of the deceased. According to the prosecution, on coming to know of the unfortunate incident, they rushed to the spot and found that their son was dead with bullet injury.

Mr. B.R. Patil, learned Counsel for the accused has strenuously submitted that the evidence of P.W. 12 is not worthy of any credence as it suffers from infirmities. His main contention is that if the version of P.W. 2 is believed, the evidence of P.W. 12 is shattered by the prosecution witness. It is the case of the prosecution that it is P.W. 12 who fired first at the mad dog but it somehow escaped. This accused who was present at the spot, taunted P.W. 12 stating that he was not a good shot. So saying he snatched the rifle from his hands and fired at the mad dog. To his ill-luck also, the dog escaped but boy died.

The contention of Mr. B.R. Patil is that according to P.W. 12, two rounds were fired. If that is the case, the Investigating Officer, must have seized two blank cartridges. The version of P.W. 12 is that there was firing twice and the version of P.W. 2 is that there was firing only once. Hence there is diametrically opposite evidence led by the prosecution.

I think there is great force in the submission of Mr. B.R. Patil to the effect that the Investigating Officer should have seized two blank cartridges. For a moment, if much reliance is placed on the testimony of eye-witnesses, then this submission appears to have been greater force. The prosecution says right from the inception that it was P.W. 12 who fired first and for the second time, it was this accused. It is not the case of the prosecution that the incident has taken at some other place. It very much occurred within the area of the police ground and that too when they were rehearsing for ''Police Martyrs'' day. Everyone was well-aware of the consequences and more so, the Investigating Officer could not have omitted to seize two blank cartridges. Even assuming that the story of the prosecution is accepted in to excluding this, the case of the prosecution does not advance an inch further. According to the evidence of P.W. 2 the fire has taken place only once in view of the seizure of only one blank cartridge. In view of these two versions which are on the record namely if the version of P,W. 2 is accepted, then the story of the prosecution that this accused fired for the second time falls to the ground. If the version of P.W. 12 is accepted, the omission to seize second blank cartridge weeds out the root of the prosecution case. Under the said circumstances, naturally doubt arises. It is also in the evidence of P.W. 2 that she heard sound only once. If that is to be believed, it is the case of the prosecution that P.W. 12 has fired first.

It is also pertinent to note that P.Ws. 10 and 11 were the eye-witnesses. They are none other than the police personnel. When they were eye-witnesses and when they were very much present on the spot, naturally the truth must have come out. When they have not supported the case of the prosecution, it is futile exercise for the prosecution. Naturally of the two circumstances, one which is in favour of the accused is to be accepted. In my opinion the benefit of doubt has to go to the appellant. In view of these observations, the appeal is allowed and the conviction is set aside and the appellant is set at liberty. The bail bond executed shall stand cancelled.