Allowed

S Kushal v. State by N R Pura Police Station

Karnataka HC13 Feb 2023CRL.RP/835/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka in a criminal revision petition set aside the conviction and acquited the petitioner. The court found that the prosecution failed to prove possession and seizure of the gun due to contradictory police evidence, hostile witnesses, and a mechanically issued sanction order.

What did the court decide?

Petitioner acquitted; judgment and order of conviction and sentence set aside.

S Kushal Vs State by N R Pura Police Station — Corruption | Karnataka HC (2023)

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CRL.RP No. 835 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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CRIMINAL REVISION PETITION NO. 835 OF 2013

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BETWEEN:

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S. KUSHAL S/O SEENA POOJARY, AGED 46 YEARS, AGRICULTURIST, R/O BELLUR VILLAGE, N.R.PURA TALUK, CHIKMAGALUR DISTRICT.

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…PETITIONER

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(BY SRI. PRASAD.B.S., ADVOCATE)

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AND:

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Digitally signed by SUCHITRA M J Location: HIGH COURT OF KARNATAKA

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STATE BY N.R.PURA POLICE STATION, CHIKMAGALUR.

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…RESPONDENT

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(BY SMT. RASHMI JADHAV, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 27.01.2012 PASSED BY THE C.J. AND J.M.F.C., N.R.PURA IN C.C.NO.312/2010 AND ALSO SET ASIDE THE CONFIRMING ORDER DATED 26.09.2013 PASSED BY THE PRL. S.J., CHIKMAGALUR IN CRL.A.NO.77/2012 AND ACQUIT THE PETITIONER OF THE CHARGED LEVELED AGAINST HIM.

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THIS PETITION, COMING FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.RP No. 835 of 2013

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ORDER

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This Criminal Revision Petition under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed by the sole petitioner, challenging the judgment of conviction dated 27.01.2012 and order of sentence dated 31.03.2012 passed by the Civil Judge and JMFC, N.R.Pura (for short 'trial Court') in C.C.No.312/2010 and judgment and order passed by the Principal Sessions Judge, Chikmagalur (for short 'Appellate Court') in Crl.A.No.77/2012 dated 26.09.2013.

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Heard learned counsel for the petitioner and also learned High Court Government Pleader appearing for the respondent.

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Brief facts of the case leading to filing of this revision petition as revealed from the records are, on 05.03.2010, PW.1-T.H.Chandrappa and PW.8-K.C.Nagesha were deputed by P.S.I, N.R.Pura for investigation in Crime.No.25/2010. For the purpose of investigation, the aforesaid persons had gone to Kudregundi, Nagaramakki and surrounding places and at about 11.45 a.m., when they were

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returning from the house of one Prakash (PW.4), who is resident of Bellur, they saw a person holding gun coming from opposite direction and on seeing the police, the said person started running. Immediately, PWs.1 and 8 chased him and caught hold of him and on enquiry, the said person disclosed his name as Kushal, resident of Sankadakone, Bellur Village and he also stated that gun belongs to him and he did not have licence to the said gun. Immediately, the gun was seized from the said person and mahazar was drawn in the presence of panchas and thereafterwards, PW.1 took the petitioner to the police station and registered a complaint. On the basis of his complaint, the case was registered in Crime.No.28/2010 against the petitioner for the offence punishable under Section 3 read with Section 25 of the Indian Arms Act. The police after investigation had filed charge sheet and petitioner was tried for the aforesaid offence in C.C.No.312/2010.

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In order to substantiate its case, the prosecution

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got examined nine witnesses as PWs.1 to 9 and marked six documents as Exs.P1 to P6. On behalf of the petitioner, he did not led any defence evidence nor got marked any documents on his behalf. The seized gun was marked as MO.1. The trial

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CRL.RP No. 835 of 2013

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Court thereafterwards heard arguments on both sides and by its judgment of conviction dated 27.01.2012, convicted the petitioner and by order of sentence dated 31.03.2012, for the offence punishable under Section 3 read with Section 25(1B) of the Arms Act, sentenced him to undergo simple imprisonment for a period of one year and also to pay fine of Rs.5,000/- and in default to pay fine, petitioner was directed to undergo further simple imprisonment for a period of four months.

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Being aggrieved by the said judgment of conviction and order of sentence, the petitioner filed Crl.A.No.77/2012, which was dismissed by the Appellate Court by its judgment dated 26.09.2013. It is under these circumstances, the petitioner is before this Court in this revision petition.

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Learned counsel for the petitioner submits that the Courts below have erred in convicting the petitioner for the alleged offence. He submits that the prosecution has failed to prove the alleged offence against the petitioner and the material witnesses have not supported the case of the prosecution. He submits that the prosecution has not proved seizure of the gun from the petitioner and therefore, the Courts

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CRL.RP No. 835 of 2013

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below were not justified in convicting the petitioner. He submits that PWs.1 and 8 are the police witnesses and except the evidence of said witnesses, there is no material to prove the seizure of the gun from the petitioner. He submits that the sanction order passed by the Deputy Commissioner is mechanical, which would be evident from the date and proceedings number and therefore, even on this aspect, the petitioner ought to have been acquitted by the Courts below.

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Per contra, learned HCGP appearing for the respondent-State has argued in support of the impugned judgment of conviction and order of sentence and submits that the seizure of the gun from the petitioner has been successfully proved by the prosecution by examining PWs.1 and 8. There is nothing on record to disbelieve the version of the said witnesses. Even PWs.3 and 4 have supported the prosecution and therefore, the Courts below were justified in convicting the petitioner and accordingly, prays for dismissal of the revision petition.

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I have carefully considered the arguments

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addressed on both the sides and also perused the material available on record.

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Section 3 of the Arms Act, 1959 (hereinafter referred to as ‘the Act’ for brevity) provides that no person shall acquire or have any possession or carry any firearm or ammunition without a valid licence and Section 25(1B) of the Act provides punishment for contravention of Section 3. For the purpose of holding a person guilty for the aforesaid offences, the prosecution is required to prove the possession of the firearm with the accused and also its seizure from him in accordance with law. It is the case of the prosecution that on 05.03.2010, when PWs.1 and 8 were deputed for the purpose of investigating a case in Crime.No.25/2010, they accidentally saw the petitioner who was holding a gun and after seeing PWs.1 and 8, who were police constables, he started running and immediately they chased him and caught hold of him and thereafterwards, seized the single barrel muzzle loading gun from him, for which, he did not possess any valid licence. In order to establish the case of the prosecution against the petitioner, the prosecution in all has examined nine witnesses

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CRL.RP No. 835 of 2013

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before the trial Court. PWs.1 and 8 are the police constables, who were deputed by the higher officers for the purpose of investigation of Crime.No.25/2010. PW.2 is an independent witness, examined by the prosecution and he turned hostile. PWs.3 and 4 are the brothers, who are two other witnesses examined by the prosecution to prove that PWs.1 and 8 have arrested the petitioner while he was holding the gun. PWs.5 and 6 are the panch witnesses for the seizure mahazar and both of them have turned hostile. PWs.7 and 9 are the police witnesses-ASI and PSI who have registered the case and also carried further investigation in the case.

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To prove the possession and seizure of the gun from the petitioner, the prosecution has placed reliance on the evidence of PWs.1, 3, 4 and 8. PWs.1 and 8 are the head constables who were allegedly deputed by the Higher Officers to investigate the case in Crime.No.25/2010. PW.1 has stated that on 05.03.2010, at about 11.45 a.m., while he along with PW.8 were near the house of PW.4-Prakash, they saw the petitioner person coming from opposite side with the gun in his hand and upon seeing him, the petitioner started running. Immediately, they chased and caught hold of him and

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thereafterwards seized the gun from him. He has stated that the petitioner was seen by him for the first time at Belluru Kadu Rasthe. PW.8 who is said to be along with PW.1, at that point of time had stated during the course of evidence that he had seen the petitioner for the first time while he was walking on Sunkadha Kuni Rasthe (road). PW.8 has further stated that while they were on their way to Belluru Village, they had found petitioner on Sunkadha Kuni Rasthe, whereas, PW.1 has stated that they had reached Belluru and carried out investigation in and around the house of PW.4-Prakash and they had seen the petitioner at Belluru Kadu Rasthe (road). Therefore, it is evident that the evidence of PWs.1 and 8 are contradictory. Further, it is also required to be noted that the complaint has been lodged by PW.1. The arrest of the petitioner in the present case is not on the basis of any complaint lodged by the private party, whereas, it is suo moto case. Therefore, it cannot be said that PWs.1 and 8 are not interested in the case.

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The statement of the petitioner was recorded under Section 313 of Cr.P.C., wherein, the petitioner has clearly stated that police have registered a false case against him at the instance of PW.3-Sadananda and PW.4-Prakash, who were

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CRL.RP No. 835 of 2013

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inimical to him. Therefore, in the absence of any corroborative evidence, it would not be possible to solely rely on the evidence of PWs.1 and 8 for the purpose of holding the petitioner guilty for the offences punishable under Section 3 read with Section 25(1B) of the Act.

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PWs.3 and 4 are the brothers and during the course of their evidence, it has come on record that they have got some ill-will against the petitioner. The materials on record goes to show that they had fought with each other with regard to some water dispute for irrigating their respective properties.

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PWs.3 and 4 have stated before the Court that they have seen the petitioner in possession of the gun prior to PWs.1 and 8 apprehending him. According to them, after the police i.e., PWs.1 and 8 apprehended the petitioner, they had seen the petitioner with PWs.1 and 8 and he was being accosted by them. Therefore, for the purpose of proving the possession of seizure of the gun, the evidence of PWs.3 and 4 would not be much helpful to the prosecution and having regard to the admitted fact that they have some ill-will against the petitioner, it would not be safe to place reliance on their evidence in the

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absence of any other independent witnesses. According to them, in between their house and the house of the petitioner, there are 3-4 houses and the prosecution has not examined any one witness from the said house. PW.2 who is said to be the independent witness has turned hostile to the case of the prosecution. For the purpose of proving seizure of gun from the petitioner, the prosecution had examined the panch witnesses. PWs.5 and 6 who are the panch witnesses have turned hostile and nothing has been elicited from them. Therefore, the prosecution has utterly failed to prove the seizure of firearm from the petitioner. It is also not in dispute that the gun which was seized allegedly from the petitioner was not loaded and the petitioner was not carrying any ammunition with him for the purpose of loading the gun. If that is so, it would be very difficult to believe that the petitioner was allegedly carrying the gun with him for the purpose of hunting. Under such circumstances, I am of the considered view that the prosecution had utterly failed to prove the possession of the seized gun from the petitioner and the trial Court as well as the Appellate Court have completely failed to properly appreciate the evidence available on record.

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CRL.RP No. 835 of 2013

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Further from perusal of Ex.P5, which is the sanction order issued by the jurisdictional Deputy Commissioner, it is seen that the said document is dated 02.05.2006 and the documents bears No.eÉ2 £ÁåzÉÆÃ¥À 06/2006-07, whereas, the alleged crime relates to the year 2010. Therefore, I find substance in the argument of the learned counsel for the petitioner that even sanction order in the case on hand was issued by the jurisdictional Deputy Commissioner in mechanical, without there being proper application of mind.

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Under these circumstances, I am of the considered view that the trial Court as well as the Appellate Court have erred in finding the petitioner guilty for the offence punishable under Section 3 read with Section 25(1B) of the Act and having regard to the FSL analysis of the evidence on record, I am of the opinion that the said judgment of conviction and order of sentence, which have been challenged in this revision petition are not sustainable. Accordingly, the following:

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ORDER

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Criminal Revision Petition is allowed.

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The judgment and order passed by the Principal Sessions Judge, Chikmagalur in Crl.A.No.77/2012

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CRL.RP No. 835 of 2013

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dated 26.09.2013 and the judgment of conviction dated 27.01.2012 and order of sentence passed by the Civil Judge and JMFC, N.R.Pura in C.C.No.312/2010 dated 31.03.2012 are set-aside. The petitioner is acquitted of the offences for which he was charged.

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Sd/JUDGE

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SMJ List No.: 1 Sl No.: 14

S Kushal v. State by N R Pura Police Station

Case brief

What is this about?

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S Kushal v. State by N R Pura Police Station

Case brief

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