Partly allowed

Nagaraj v. the State of Karnataka

Karnataka HC8 Dec 2016CRL.A/94/2010

Case brief

AI extract

What is this about?

High Court reduced the sentence of two appellants from 10 years to 2.5 years and the third appellant from 10 years to 5 years, finding inconsistencies in prosecution evidence regarding the number of shots and guns fired while acknowledging their liability for attempted murder and possession of illegal arms.

What did the court decide?

Sentence of Accused No. 3 reduced from 10 years to 5 years; Sentences of Accused Nos. 1 and 2 reduced from 10 years to 2 years and 6 months.

Nagaraj Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF DECEMBER 2016

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL APPEAL No.94 OF 2010

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BETWEEN:

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Nagaraj, Son of Late Chikkhonnaiah, Aged 45 years, Resident of Doddabelavangala Hobli, Doddaballapura Taluk, Bangalore Rural District.

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Jayarama, Son of Nagaraj, Aged about 20 years, Resident of Doddabelavangala Hobli, Doddaballapura Taluk, Bangalore Rural District.

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Suresh, Son of Nagaraj, Aged about 19 years, Resident of Doddabelavangala Hobli, Doddaballapura Taluk, Bangalore Rural District.

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…APPELLANTS

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(By Shri Jagadeesha B.N., Advocate )

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AND:

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The State of Karnataka, Represented by the Public Prosecutor, By Doddabelavangala Police Station.

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…RESPONDENT

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(By Shri S. Vishwamurthy, Government Pleader )

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This Criminal Appeal filed under Section 374(24) of the code of Criminal Procedure, 1973, by the advocate for the appellants praying to set aside the order of conviction and sentence dated 25.11.2009 in S.C.No.130/2007 passed by the Presiding Officer, Fast Track Court-V, Bangalore Rural District, Bangalore – convicting the appellants/accused No.1 for the offence punishable under Section 114 of IPC and Appellant/accused Nos.2 and 3 are convicted for the offence punishable under Section 307 read with Section 34 of IPC and Section 27 of Arms Act and Accused Nos. 1 to 3 are convicted and to undergo imprisonment for 10 years and to pay fine of Rs.5,000/- each in default they shall undergo imprisonment for six months for the offence punishable under Section 307 read with 34 of IPC and accused No.1 is convicted and to undergo imprisonment for 10 years for the offence punishable under Section 114 of IPC and further accused Nos.2 and 3 are convicted and to undergo imprisonment for 7 years for the offence punishable under Section 27 of the Arms Act read with 34 of IPC. All the sentences shall run concurrently.

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This appeal coming on for Hearing this day, the Court delivered the following:

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JUDGMENT

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The appellants are in appeal questioning their conviction for offences punishable under Sections 504, 114, 307, 212 read

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with section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959.

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The facts leading up to this appeal are as follows:

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The complainant was inimically disposed towards the

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accused as a result of a feud over sharing the water channel. It transpires that there was constant friction between them. On 9.10.2006 at about 7p.m., near Thippur village, the accused had all descended on the complainant, PW.1, who was the brother of accused no.1 and his sons and had picked up quarrel. It is alleged that accused no.1 had instigated accused no.2, who was armed with a single barrel muscle loader gun to kill the complainant and his sons and at his instigation, accused no.2 is said to have fired the gun thereby causing injuries on the left hand and left elbow of PW.2. It is further alleged that using

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the same gun, he had fired at PW.3 thereby injuring his stomach and right thigh and in this vein, PWs.2 and 6 had suffered grievous injuries. Thereafter it transpires that to escape from the law, accused nos.1 to 3 had taken shelter under accused no.4 and accused no.4 had harboured them knowing that they had committed offences punishable under the provisions as aforesaid. It is in this background that a case was registered against them. The appellants stood trial and they pleaded not guilty and claimed to be tried. It is thereafter that they went to trial. The prosecution had examined 14 witnesses, PW.1 to PW.15. However, it was noticed that there was no PW.9 examined, but while assigning the number to the witnesses, it was incorrectly noted as PW.8 and after PW.8, PW.10 was examined and this is how though it is shown as PWs.1 to 15, there were 14 witnesses that were examined and thereafter several exhibits were marked apart from material objects. It is after recording the statement of the accused under

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Section 313 of the Code of Criminal Procedure, 1973, that the court below had framed the following points for consideration:-

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“1. Whether prosecution proves beyond all reasonable doubts that on 9.10.2006 at 7 p.m. near Thippur village in front of complainant house all the accused with old enemity with regard to leaving of canal water with common intention abusing filthy language to CW1 to 3 and thereby committed an offence punishable under Section 504 read with 34 of IPC?

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2. Whether prosecution proves beyond all reasonable doubts that on the said date, time and place at the instigation of accused No.1 , accused No.2 and 3 taken SBMI, gun illegally and also with common intention to kill CW2 and 3 at the instigation of accused No.1 and accused No.3 fired gun on CW2 left upper arm and accused No.2 taken the same gun and fired on CW3 on his stomach and on right thigh due to which they sustained grievous injuries and they made attempt to kill

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them and thereby committed an offence punishable under Section 307 read with 34 of IPC?

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3. Whether prosecution proves beyond all reasonable doubts that on the said date, time and place accused No.1 abated accused No.2 and 3 and they tried to kill CW2 and 3 and thereby committed an offence punishable under Section 114 read with 34 of IPC?

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4. Whether prosecution proves beyond all reasonable doubts that on the said date, time and place accused No.4 knowing that accused No.1, 2, 3 are tried to kill CW2, 3 through SBMI, gun at the instigation of accused No.1, even then given shelter with an intention of screening them from legal punishment, and thereby committed an offence punishable under Section 212 read with 34 of IPC?

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5. Whether prosecution proves beyond all reasonable doubts that on the said date,

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time and place accused No.2 possessing the SBMI, gun and with common intention same is used by accused No.2 and 3 for illegal purpose and thereby committed an offence punishable under Section 27 of the Arms Act read with 34 of IPC?”

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The court below has answered points no.1 and 4 in the negative and points 2, 3 and 5 in the affirmative and had convicted accused nos.1 to 3 and sentenced them to undergo imprisonment for 10 years and to pay a fine of Rs.5,000/- each for an offence punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity) and accused no.1 was convicted to undergo imprisonment for 10 years for an offence punishable under Section 114 of the IPC and accused nos.2 and 3 were convicted and sentenced to undergo imprisonment for 7 years for an offence punishable under Section 27 of the Arms Act

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read with section 34 of the IPC. The sentences were to run concurrently.

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It is this which is under challenge in the present appeal.

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The learned counsel for the appellants would contend

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that the court below had failed to appreciate the evidence in the right perspective. That the court below has overlooked material contradictions in the evidence of the witnesses. As for instance, Exhibit P.1 was the complaint submitted by PW.1 on 9.10.2006, in which it is stated that appellant no.2 and appellant no.3 were each holding two country made guns and both of them fired at PW.6 and PW.2 with their respective guns. However, in the course of evidence, PW.1 had stated that appellant no.3 was holding a gun and that it was he who fired the gun and hit PW.6 and thereafter the same gun was taken by appellant no.2 from appellant no.3 and he fired the gun which hit PW.2. However, it is further pointed out that PWs.2 and 6, in their deposition, had stated that it was appellant no.2, who

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was holding the gun and it was further claimed that appellant no.3 had taken the gun from appellant no.2 after appellant no.2 had fired at PW.6 and thereafter he had fired the same gun which hit PW.2. Therefore, the evidence tendered by these witnesses namely, PWs.1,2 and 6 are contrary to each other as to how many guns were used and who was holding which gun and therefore, the very case of the prosecution in its narration lacks clarity and is not consistent with the actual circumstance that there was only one gun which was produced at the trial and it was only that gun which was exhibited as a Material object and therefore leading to a serious doubt as to the manner in which the incident had taken place.

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The counsel for the appellants would also point out that PW.2 had sustained injury to his right hand, however, PW.6 had stated that PW.2 had sustained injury to his left hand. Therefore, it is clear that there is inconsistency which further throws suspicion as to the manner in which the incident might have taken place. It is further pointed out that the gun which

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was seized and produced at the trial was a country made gun and that it was loaded with pellets and when it is fired, the pellets generally spread and would injure several people around. However, there was no injury to any person other than PW.1, 2 and 6 and though PW.1 and 7 were also present at the scene it is inexplicable that they were not injured. It is pointed out that the gun was fired from a distance of 30 feet that PW.2 had claimed that the firing had taken place from a distance of 10 to 15 feet. This again is a discrepancy which is not explained by the prosecution. It is further contended that PW.2 could not have fired the same gun for the second time as it would have to be re-loaded and to reload the gun of the nature, which is involved, at least two minutes time is required and there is no indication that there was such reloading of the gun at all. There is yet another twist to the narration where PW.7 had indicated that the second time the gun was fired was 15 minutes later after the first time that it was fired. Whereas the prosecution is completely silent on this aspect and there is no

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explanation forthcoming and as to whether there was indeed a 15 minute gap between the two shots that were fired. It is in this fashion that the learned counsel seeks to cast a serious doubt as to the sequence of events and the manner in which the incident is said to have taken place, in contending that when the prosecution had failed to establish its case against each of the accused insofar as the overt act said to have been committed by each of them beyond reasonable doubt, it would result in a gross miscarriage of justice, if all the accused are treated as alike in the commission of the alleged offence and are uniformally punished with similar punishment in holding that all the three accused were guilty of the same acts as it were. The learned Counsel hence would submit that the court below has failed in its duty to analyse the evidence in its proper perspective and to ensure that the prosecution had indeed established its case in the manner that it was sought to be urged and therefore, it could not be said that the charges framed

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against the accused have been proved beyond all reasonable doubt and hence seeks acquittal of the accused.

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While the learned Government Pleader seeks to justify

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the judgment of the court below.

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In the above circumstances, and the contentions

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urged, there is indeed inconsistency in the manner in which the prosecution has sought to put forward its case and the evidence that is lead in support of the charges that are framed. The relationship of the parties is not denied. Accused no.1 and the complainant were indeed brothers and the other accused are the sons of the complainant as well as the accused and it is also not in serious dispute that there was constant friction between the two families over sharing of water and it was indeed an incident where a gun was fired thereby injuring PWs.2 and 6 in the presence of PW.1 and PW.7. The gun which is produced at the trial is only one and it is identified as a country made gun, single barrel muscle loader gun and it is also the opinion of the

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expert that it had been fired recently and there was residue of gun powder found in the muscle and that the time or the period at which it had been fired could not however be ascertained. It is found from the record that though PW.2 and 6 had been injured by the pellets that were discharged when the gun was fired, none of the pellets were recovered after they were removed. While PWs.2 and 6 had received treatment at the hospital to which they were admitted after they were injured. However, the evidence tendered, as if there were two weapons that were used, may not be the actual fact. It is however discernible from the evidence tendered that there was one gun which was being carried by accused no.3. It is evident that the gun having been fired once was sufficient to have caused injury to both PWs.2 and 6, as it is the evidence of the expert that the muscle loader of the kind used in the commission of the offence is loaded with gun powder, coconut fibre, priming mixture and therefore when the gun is fired the pellets would spread as they move out of the barrel of the gun and it is possible that the

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pellets can cause injuries to more than one person if it is shot at two or more people. It is in this fashion that the injuries have been caused to both PWs.2 and 6. This would be a safe conclusion that can be drawn as regards the weapon used and the distance from which it was fired and that PWs.2 and 6 were close to each other. The other persons present not having been injured could be explained by the fact that they were away from the trajectory of the direction in which the pellets have flown. Therefore, there is no difficulty in concluding that there was only one gun fired once, but has injured PWs.2 and 6. It was not necessary for the prosecution to embellish its case on the footing that there were two guns fired by two persons. This was a mere surplusage to bolster the case of the prosecution and apparently was an empty exercise which was not necessary. Therefore, from the evidence of record, it can be safely concluded that it was accused no.3, who had fired the gun after taking it from the brother of accused no.2 and as a result of which, the injury has occurred. There is no reason to

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look for a second gun to examine whether there was a second shot fired as was claimed by PW.7, who had tendered evidence to state that there was a second shot fired 15 minutes after the first shot was fired. This evidence was wholly irrelevant and could not be accepted by the trial court and has been rightly rejected. Therefore, if the primary contention of the appellants is that there is inconsistency in the evidence and it ought to be disbelieved cannot be readily accepted as indeed it is established that PW.2 and PW.6 did suffer injuries caused by the pellets discharged from a Single Barrel Muscle Loader gun, which is indeed found to be a weapon that was produced and marked at the trial. According to the expert’s opinion, the injuries could have been caused by the pellets discharged on the said gun being fired. If these sequence stands established from the material on record after eschewing such other inconsistent material evidence that is on record, the question then is as to the punishment that would be attracted insofar as the overt acts of each of the accused. That the two families were at loggerheads

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is not in dispute. Therefore, passions were running high at any given time and use of a fire arm was a deliberate act which could have been avoided. Therefore, the use of the weapon was capable of killing both PWs.2 and 6. Hence, accused no.3, having actually fired the weapon at PWs.2 and 6 cannot be contended as an act of extreme passion and having been provoked. Since the dispute between the parties was one which had lingered for a long time, it cannot be said that the act cannot be characterized as being provoked by extreme passion or in a fit of anger. It was a deliberate act and therefore the punishment imposed is justified.

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However, accused no.3 is a young man of about 19 at the time of his conviction and he would be about 26 and would be in his prime and if there is any scope for reformation, it is only possible if the punishment imposed on him is tempered with compassion. If the punishment imposed on the said accused is relaxed, there is every chance of the man growing up to be a respectful citizen after having realized his folly. Therefore, the

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punishment which is imposed on the said accused is concerned, is for a period of 10 years, which can be reduced to 5 years, which would also include the time that he has already spent in custody of over one and half years. Therefore, if the punishment in all is restricted to 5 years as far as accused no.3 is concerned, interests of justice would be met.

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In so far as accused nos.1 and 2 are concerned, it is evident that the gun could not have been fired more than once without being reloaded. And there is no evidence that it was indeed reloaded, in which event, accused no.2 could not be said to have fired the gun and accused no.1 could not have instigated accused nos.2 and 3 to fire the gun, as they were sufficiently charged with emotion over the years in having had a running controversy as to the sharing of water and hence, the role of accused nos.1 and 2 may not be that of accused no.3, as there are no overt acts, other than using foul language against the complainant and his sons. and also without being encouragement for accused no.3 to have fired gun would be to a

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certain extent liable for punishment, not to a degree as could be attributed to accused no.3, who has actually committed an overt act of firing, which was likely to kill PWs.2 and 6. Therefore, the punishment imposed on them ought not to be of the same degree as would apply to accused no.3. Again, this Court is of the opinion that the punishment imposed on accused no.3 should be substantially reduced. The same would equally apply insofar as accused nos.1 and 2 are concerned. Accordingly, the sentence imposed on accused nos. 1 and 2 is reduced by a period of two years and six months, which would include the time that he had already spent in jail. Therefore, the punishment imposed on them is restricted to a maximum of 2 years and 6 months.

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The appeal is partly allowed in terms above.

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Sd/- JUDGE

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Nagaraj v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Nagaraj v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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