a I IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 02 h1D DAY OF DECEMBER 2011 PRESENT THE HON’BLE MR.JUSTICE D V SHYLENDRA KUMAR AND THE HON’BLE MR.JUSTICE C R KUMARASWAMY CRIMINAL APPEAL NO.1662/2006 BETWEEN: STATE OF KARNATAKA BY THE SUB-INSPECTOR OF POUCE, CHAMARAJANAGAR TOWN POUCE STATION, CHAMARAJANAGAR APPELLANT (BY SRI P. M. NAWAZ, ADDL. SPP.) AND: 1. AMJAD KHAN @ AMJAD, SON OF HABEEB ULLA KHAN @ HABEEB, AGED ABOUT 22 YEARS, NO. 12/12, III CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. 2. ZAKIR KHAN @ ZAKIR, SON OF SARDAR KHAN, AGED ABOUT 35 YEARS, NO. 12/21, III CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. ci tJ I El ‘p. 3. ZUBERA, SON OF SADNA ULLA, AGED ABOUT 20 YEARS, I CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. 4. FAIROZ © MUNNA, SON OF ABDUL WAHAB © WAHAB, AGED ABOUT 28 YEARS, NO. 12/239, I CROSS, K. P.MOHALLA, CHAMARAJANAGAR TOWN. 5. AFSAR, SON OF ABDUL WAHAB © WAHAB, AGED ABOUT 24 YEARS, NO. 12/239, III CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. 6. ZAKA ULLA, SON OFABDULWAZEERSAB AGED ABOUT 38 YEARS, I CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. 7. ZAKRIA, SON OF ABDUL SUBHAN, AGED ABOUT 28 YEARS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. 8. SANA ULLA, SON OF ABDUL WAZEER SAB, AGED ABOUT 42 YEARS, I CROSS, K. P. MOHALLA CHAMARAJANAGAR TOWN 9. MOHAMMED ASGAR © WAHAB, SON OF ABDUL WAHAB © WAHAB, AGED ABOUT 37 YEARS, NO. 12/239, I CROSS, (di 4% 3 K. P. MOHALLA, CHAMARAJANAGAR TOWN. 10. MOHAMMED PARIKH, SON OF MOHAMMED ASGAR @ ASGAR, AGED ABOUT 20 YEARS, NO. 12/239, I CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. 11. SYED ZABI ULLA, SON OF SYED IBRAHIM, AGED ABOUT 34 YEARS, I CROSS, K. P. MOHALLA, CHAMARAJANAGAR TOWN. ... RESPONDENTS (BY SRI N. V. VIJAY, ADV. FOR Ri TO Ru) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 29.04.2006 PASSED BY THE LEARNED PRESIDING OFFICER, FAST TRACK COURT, CHAMARAJANAGAR IN S. C. NOS. 146/2004, 364/2004, 420/2004 AND 36/2005 THEREBY ACQUITTING THE RESPONDENTS - ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 120 (B) AND 302 R/W 149 I. P. C. AND SECTIONS 3 AND 25 OF THE ARMS ACT. THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, KUMARASWAMY J., DELIVERED ThE FOLLOWING: LI 4 4 JUDGMENT This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to file an appeal against the judgment and order of acquittal dated 29.4.2006 passed by the Presiding Officer, Fast Track Court, Chamarajanagar, in S.C.No.146/2004 (old S.C.No.360/04); S.C.No.364/2004 (old S.C.No.39/04), S.C.No.420/04 (old S.C.No.144/04) and S.C.No.36/05 acquitting the accused Nos. 1 to 12 for the offence punishable under Section 120-B IPC, accused Nos.2 to 8 for the offences punishable under Sections 143, 144, 147, 148 and 302 read with Section 149 of Indian Penal Code and accused No.2 for the offence punishable under Section 25(1B) (A) (AB)of the Arms Act, 1959. 2. The contents of the complaint is as under: That on 7.7.2000 at about 4.45 p.m. in front of the house of Khaleel, Chamarajnagar Town, accused Nos. 1 to 8 formed themselves into an unlawful assembly holding deadly weapons like gun, pistol and chopper with a common intention of committing murder 5 of Fayazulla due to previous enmity, picked up quarrel with the complainant brother Fayazulia and threatened him that he would kill him and accused No.2 fired towards Fayazulla by means of a gun and the bullets pierced in his shoulder and chest consequently he sustained bleeding injuries. On the basis of the complaint of Mohammad Sabulal © Sabulal, Chamarajnagar Town, a criminal case came to be registered as Crime No.74/2004 by the Sub Inspector of Police, Chamarajanagar Police Station, against accused Nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 506, 307, 302 read with 149 Indian Penal Code. At the first Instance, the injured was taken to the Government Hospital at Chamarajanagar Town for the treatment and subsequently for higher treatment. While he was being shifted to Government Hospital at Mysore on the way near Nanjangud, he succumbed to the injuries. On the basis of the death memo sent by the doctor, Section 302 of Indian Penal Code was also 6 added in the Cr.No.74/2004 of Chamarajanagar Police Station. The Investigating agency after completion of the investigation, filed charge sheet against accused Nos.1 to 12 for the offences punishable under Sections 143, 147, 148, 120B, 302 read with 149 IPC and Sections 3 and 25(1B)(A)(B) of the Indian Arms Act, 1959. 3. The contents of the charge sheet is as under: “Accused Nos.1 to 12 were the residents of Chamarajnagar Town Police Station. There was a political rivalry between the children of charge sheet witness No.25 and the accused. A few days back, there was a quarrel between accused Nos.2, 7 and 10 and the son of charge sheet witness No.25 and there was also an attempt to kill him and this incident took place on 4.7.2000 at 6.30 p.m. It is further mentioned in the charge sheet that on 7.7.2000 at about 4.45 p.m. when Fayazulla @ Fayaz LI. Sr S• — —. —. —. — 7 son of C.W.25 was proceeding towards KSRTC bus stand, accused Nos.1 to 8 conspIred and formed themselves into an unlawful assembly and accused Nos.2 and 3 were holding guns, accused Nos.1 and 4 to 8 were holding chopper, picked up quarrel with Fayaz and accused No.2 fired at Fayaz by means of a gun. It Is further stated that accused Nos. 1 to 12 conspired together with an intention to kill Fayaz and formed an unlawful assembly holding deadly weapons like gun and chopper; picked up quarrel with Fayaz and accused No.2 without possessing any license has fired towards Fayaz and killed him.” 4. PW1 Is the complainant and brother of the deceased, who is a lone witness, who has supported the case of the prosecution. 5. PW5.2, 3 and 7 are the eye witnesses. They have turned hostile to the side of the prosecution. Nothing is elicited in their cross-examination to discredit their evidence. V. S 6. PW4 is the inquest panch witness. PWS — Rahamatuila, speaks about the motive and also about the earlier incident. 7. PW6 — Salfuila @ Saifu is the owner of the garage. He states that he saw the dead body at the time of inquest panchanama. He does not know about the cause of death of death of deceased. This witness has turned hostile to the side of the prosecution. Though he was cross examined by the learned State Public Prosecutor, nothing is elicited to disbelieve his evidence. 8. PW8 — Ayub Pasha, has deposed that he knows the accused and PW1’s elder brother Fayaz. He states that PW1’s brother Fayaz was murdered. He states that about 5 years back, in the evening at about 6.00 p.m. when he was in his house, his mother told him that she had received a telephone call about the gunshot injury sustained by Fayaz. Then he proceeded to the Government Hospitai, Chamarajanagar and found that Fayaz was made to sleep in a stretcher and he was (7 - 9 breathing. He had sustained injury on the left shoulder. Thereafter, he aiongwith the family members of Fayaz made arrangements to shift the injured In an Ambulance to Government Hospital, Mysore. While he was being shifting, he died. The injured mother tried to pour water Into his mouth, but he could not drink the water. Then, the injured was taken to Government Hospital, Nanjangud. There, the doctor declared that he has dead. Then, they all came back to Government Hospital, Chamarajanagar. He further deposed that there was political rivalry between the accused and deceased. He states that due to the political rivalry, this incident has occurred. 9. PW9 — AIim Ulia has deposed that he does not know as to what was the reason for the death of Fayaz. This witness has turned hostile. During his cross examination, nothing is elicited to discredit his testimony. 10. PW1O — Mohammed Khalim @ Khalim Ulla was running petty shop. He has deposed that on L/. c-a ••- - — ••——.—.eu—:. .fl — 10 07.07.2000 in the evening, no incident had taken place. He further deposed that he has not made any statement before the police. This witness has turned hostile to the side of the prosecution. 11. PW11 — Jakaulla is the brother of PW6. He came to know about the death of Fayaz through his mother. He states that the police have not recorded his statement. This witness is also turned hostile to the side of the prosecution. 12. PW12 — Mustaq is the witness for seizure of the pellets panchanama-Ex.P11. This witness has also turned hostile to the side of prosecution. 13. PW13 — Inayuthulla, is the younger brother of deceased Fayaz. He has deposed about the political rivalry between the accused and the deceased. He also speaks about the shifting of Injured from Government Hospital, Chamarajanagar to Government Hospital, Mysore. He states about the gunshot Injury sustained by the injured and he also states that while the injured was being shifted from Government Hospital, cJ 11 Chamarajanagar to Mysore, near Nanjangud, he succumbed to the injuries. During the cross examination, the suggestion put to him were all denied. 14. PW14 — Mohammed Sabulal alias Sabuial is the father of the deceased. He has deposed that he came to know about the incident from PW3. Then he proceeded to the Government Hospital, Chamarajanagar, then he came to know that his son Fayaz was shifted to Government Hospital, Mysore. 15. PW15 — Maliaiah is the driver of the Ambulance. He has deposed that on 07.07.2000 at about 4.15 p.m. he received a caii from Government Hospital, Chamarajanagar and thereafter, he went to the hospitai and took the injured and his family members to K R Hospital, Mysore. While he was being shifted to major Hospital, he died. Thereafter, he was taken to the Government Hospital, Nanjangud. The doctor deciared that he is dead. Again, they went to Government Hospitai, Chamarajanagar. V 12 16. PW16 — Kalim is the seizure mahazar witness. He has deposed that he does not know about the seizure of pant — M09 and shirt — MOlO under Ex.P13. This witness has turned hostile to the side of the prosecution. 17. PW17 — Zameer Is the auto driver who shifted Fayaz from the spot of offence to Government Hospital, Chamarajanagar. This witness has turned hostile to the side of the prosecution. 18. PW18 — Syed Imran has deposed about the seizure of blood stained stone and mud and sample of stone and mud. The spot was inspected and mahazar was drawn as per Ex.P2. 19. PW19 — Mustaq has deposed that about 5 years back Fayaz died due to gunshot injury. He states that Fayaz had sustained gunshot injury on his left shoulder. He states that the bullets were sent to FSL, Bangalore for examination and a mahazar was drawn to that effect as per Ex.P11. He states that about 15 small pellets were seized. 13 20. PW2O — Sathish has deposed that on 07.07.2000 at about 4.30 p.m. when he was in his house, he received a message from Ahmed that Fayaz had sustained injury and he had been shifted to Government Hospital, Chamarajanagar. The distance between the hospital and his house is about ¾ kms. Then he proceeded to the hospital and saw Fayaz. Fayaz had sustained gun shot injury to his left shoulder. On the instructions of the doctor, he aiongwith the family members of Fayaz made arrangements to shift the injured to K R Hospital, Mysore. While he was being shifted, he died. This witness has turned hostile to the side of the prosecution. 21. PW21 — Iqbai Ahmed is the eye witness. He has deposed that about 3 to 4 years back, when he had been to the house of his daughter at Chamarajanagar, at about 4.30 p.m. when he was going near KSRTC bus stand, he saw some persons holding sword and one person brought Fayaz near accused No.2 and he fired Fayaz by means of a gun and Fayaz sustained injury to £1 14 his left shoulder. He further deposed that he does not know the name of accused No.2 but he can identify him. He further deposed that somebody took Fayaz in an autorlckshaw to the hospital. He states that he does not know the reason as to why accused No.2 fired towards Fayaz. This witness has turned hostile to the side of the prosecution. During the cross examination by Public Prosecutor, the suggestion put to him were all denied. During the cross examination of the defence Counsel appearing for accused Nos.2 and 3, he states that when the incident took place, he was present at a distance of 60 feet. 22. PW22 — Nisar Ahmed is the eye witness. He has turned hostile to the side of the prosecution. PW23 — Rahis Ahmed is the panch witness for seizure of chopper as per Ex.P19. This witness has turned hostile to the side of the prosecution. PW24 — Syed Afzal is the witness for seizure of chopper as per Ex.P20 at the C! ‘5 instance of accused No.7. ThIs witness has turned hostile to the side of the prosecution. 23. PW25 — Syed KhalIi is the lorry driver. He is also the witness for seizure of chopper as per Ex.P20 at the Instance of accused No.7. This witness has also turned hostile to the side of the prosecution. PW26 — Hasina Banu has deposed that she knows the accused. She states that about 4 to 5 years back, Fayaz died, but she does not know how he died. This witness has turned hostile to the side of the prosecution. 24. PW27 — P Srlnivas is the Circle Inspector, Chamarajanagar Police Station. He has deposed that on 13.12.2000 PW5 — Rahamathulla appeared before him and gave complaint. On the basis of the complaint, Crl.No.4/2000 was registered. 25. PW28 — K Annappanayaka Is the Police Inspector, Chamarajanagar Police Station. He has deposed that on 17.04.2004 at about 1.30 p.m. when he was on his duty, he received a message that accused No.2 was In his house. Then, he aiongwith two persons £7 I 16 went to the house of accused No.2 and apprehended him and brought him to the police station. Then, he recorded the voluntary statement of accused No.2 as per Ex.P23. Accused No.2 has stated that he would point out the place whether he concealed the gun. Then, he secured the panchas and they went alongwith the accused No.2 where the gun was concealed. Then, accused No.2 went to the backyard of his house and dug the mud and removed one SBBL gun and handed over the same to the investigation officer. He also seized M07 — half portion of empty cartridge and he drew mahazar to that effect as per Ex.P24. MOl and 7 were subjected to the property form No.52/2004. Then, he produced accused No.2 before the JMFC Court, Chamarajanagar. He states that on 17.05.2004, MOl and 7 were sent to FSL, Bangalore. He recorded the statement of Probationery Sub Inspector Srl.N Kirankumar and the Police Constable Sri.H C Shankar. He states that he received the report from FSL, Bangaiore on 24.05.2004. He drew a mahazar to that U S ‘7 effect as per Ex.P25. Though this witness was cross examined, noting is elicited to discredit his testimony. 26. PW29 — H C Shankar, is the Police Constable, Chamarajanagar Police Station. He was entrusted with the duty of watching the dead body on 07.07.2000. As per the Instruction given by his superior officer, he handed over the apparel of the deceased to the investigation officer after postmortem examination. He states that on 17.04.2004, he alongwith PW28 and Probationary Sub Inspector went to the house of accused No.2 and apprehended him and brought him to the police station and recorded his voluntary statement. Accused No.2 gave voluntary statement to the effect that he would point out the place where the gun was concealed. Then, they all went to the house of accused No.2. Accused No.2 went to the backyard of his house and dug the mud and removed one SBBL gun and handed over the same to the investigation officer. He also seized M07 — half portion of empty cartridge and he drew mahazar to that effect as per Ex.P24. During 18 the cross examination, the suggestion put to him were all denied. 27. PW3O — Athifulia Khan speaks about the seizure of M02 — one country made gun from accused No.3. This witness has turned hostiie to the side of the prosecution. PW31 — Athaulla is the seizure panch witness In respect of seizure of peliets from accused No.3. This witness has turned hostile to the side of the prosecution. 28. PW32 — Shashikumar is the Police Constable of Chamarajanagar Police Station. He has deposed that accused No.3 was arrested and produced before him by his staff. He recorded the voluntary statement of accused No.3. M02 — one country made gun was seized at the instance of accused No.3. 29. PW33 — Ajaz Pasha has deposed that on the instruction of the police, he went to the house of accused No.2. Accused No.2 produced the gun by digging the mud In the backyard of his house. Then the police seized MOl- gun, M07 — one broken half empty I 19 cartridge and M08 — one polythene sheet used for wrapping MOl and they drew mahazar to that effect as per Ex.P24 and he had affixed his signature to Ex.P24. 30. PW34 — Samiulla speaks about the seizure of M09 — pant and MOlO — shirt of the deceased as per Ex.P13. PW35 — Athaulla Khan has deposed about the seizure of chopper as per Ex.P19. This witness has turned hostile to the side of the prosecution. 31. PW36 — H B Mahadevegowda is the Head Constable of Chamarajanagar Police Station. He has deposed that on 08.07.2000, he arrested accused No.4 and on 09.07.2000, he arrested accused Nos.7, 9, 11 and 12 and produced them before the Police Inspector on 24.08.2000. As per the instructions of the police inspector, he went to the Government Hospital, Chamarajanagar and collected the pellets from Dr.Srinivasamurthy and handed over the same to the police inspector. 32. PW37 — Abdul Rehman speaks about the seizure of chopper as per Ex.P31. This witness has also C, 20 turned hostile to the side of the prosecution. PW38 — Rihan is also the witness for seizure of chopper and he has also turned hostile to the side of the prosecution. PW39 — Nazir Khan Is the witness for seizure of MOl — one SBBL gun from accused No.2 as per Ex.P24. This witness has turned hostile to the side of the prosecution. 33. PW4O — Mahadevarao Pawar is the Sub Inspector of Police, Chamarajanagar Police Station. He has deposed that on 07.07.2000 at about 5.00 p.m. he received a wireless message from the Police Inspector Llngaiah that near K P Mohalla some bustle had taken place and he requested him to come to the spot. Then, he went to the spot and noticed that one person had been injured by gunshot and he was shifted to Government Hospital, Chamarajanagar. Then he went to the hospital and came to know that for higher treatment, the injured was being shifted to K R Hospital, Mysore. He went near the injured and noticed that he was not In a position to give statement. Hence, he could not record the statement of the injured. Then he & 21 went to the police station, by that time, PW1 was there in the police station and he gave complaint as per Ex.P1. Then on the basis of Ex.P1 he registered the case in Cr.No.74/2000 for the offences punishable under Sections 143, 147, 148, 506 and 307 read with Section 149 of Indian Penal Code and under Sections 3 and 25 of Indian Arms Act. He sent Ex.P32 - FIR to the JMFC Court, Chamarajanagar through PC 2538 and sent the xerox copy of FIR to his superior officer. Then, he proceeded to the spot and drew spot panchanama as per Ex.P2 and seized Mos3 and 4. Then, he directed the staff to apprehend the accused and went to the poiice station. MOs.3 and 4 were subjected to the property form No.52/2000. At about 8.30 p.m. an employee of the Government Hospitai, Chamarajanagar came to the police station and he gave a Medico Legal Memo to the police inspector which is marked as Ex.P33. In Ex.P33 it was mentioned that the injured died while he was being shifted at about 7.00 p.m. It was also mentioned that the dead body was kept in a Government Hospital, Chamarajanagar. He further states that as per Ex.P33, he added Section 302 of Indian Penal Code in ExP32 FIR and drew mahazar as per ExP34 and sent the same to the Court of JMFC, Chamarajanagar through PC 2538 and sent xerox copies of Ex.P34 to his superior officer. He further states that he handed over the case papers to SrLLLingaiah, Police Inspector for further investigation. He further states that since SrLLLingaiah has dead, on the basis of the case diary he speaks about investigation made by deceased L. Lingaiah. He had drawn ExP5 — inquest panchanama on 87.2000. He states that on 0L072000, Sri.LLingaiah, Police Inspector deputed two police constables to watch the dead body and he recorded the statement of PW8 Ayub Pasha and he recorded further statement of PW1 Mohammed AU. On the basis of the statement recorded, he apprehended accused Nos9 to 12. On 08072000, staff of the Police Station produced accused No4 before deceased LLingaiah. He recorded the voluntary statement of accused No4 as per ExP35. Accused No.4 has stated before the deceased Investigating Officer, he would show the place where he 23 had concealed the chopper.” In pursuant of the voluntary statement of accused No.4, they seized the chopper and drew mahazar as per Ex.P19. He also sent the pellets to the FSL. He also recorded the statement of witnesses. Exs.P40 to P42 were the FSL reports. 34. PW41 — Dr.P Srinivasamurthy, is the medical officer who conducted the postmortem examination on the dead body. He has deposed that there was gunshot Injury on the left shoulder of the deceased. He states that he found multiple entry wounds seen all over the left anterior part of anti axillary fob and left shoulder joints with upper 2/3 of the upper arm area measurIng 8” X 8”. Each injury measuring ½ cm x ½ cm some of them are clubbed together measuring 1cm x 1cm and one bigger wound measuring ½” x ½”. Blood was oozing out of the wound. A bums area of 2” X 1” seen above in left nipple. He states that he removed 16 pellets from the left upper arm. He has opined that the death was due to shock and hemorrhage as a result of injury to vital organs. He further states that bullets must have fired C,. at a distance of about 20 to 25 feet. Except, eft shoulder there was no other injuries found on the dead body. He knows little knowledge about the fire arms. He denies the suggestion put to him that there was an accidental fire. 35. PW42 — N G Prabhakar is the Assistant Director, FSL, Bangalore. He is a ballistic expert. He has deposed that he had examined more than 5000 fire arms. On 18.05.2004, he examined the articles pertaining to Cr.No,74/2000 of Chamarajnagar Police Station. Seals were intact. He states that in one packet there was MOl SBBL gun. It was manufactured at Jahuri and Sons company, In another packet, there was half used empty cartridge which is marked as M07.