BETWEEN
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31" DAY OF Iu LY, 20o9...f _
BEFORE
THE HONBLE MRJUSTICE IviA>WAD._ R.AHINI_"
CRIMINAL APPEALTNo.1é'4gj;_2D03 . ~. " "
1, BALENDRA
AGE:39 YEARS
S/O NAGU GOUDA
R/A KANTRI A
ANKOLA TALu:<A * T..IIVAppELLANT
(BY SR1 M_S_AHA1'i5{.AL.lLI',VAADVQCATE)
AND
STATE' BY P SI «A.N.KOLA
_R'EP.EY SP9 HIGH COURT BLDG
I BANG_ALC_)RE ...RESPONDENT
(BY SR_I PV__H’C:2iGTIKHINDI, HCGP)
THISCRIEVEINAL APPEAL IS FILED U/S. 374(2) CR.P.C.
THE ADVOCATE FOR THE APPELLANT AGAINST THE
,J’LJ’D.C5M’ENT DT. 6.12.2003 PASSED BY THE S3,, FAST
__fR)f\ICK”COURT, KARWAR, IN S.C.NO.56/O0 – CONVICTING
6′?
accused at the spot and tied him would show that the
complainant was in a dominant position and not:,__’t’he
accused-appellant. Lastly, he would contend th_a’t”‘n.ot’hjin’g__VA’
has been seized from the spot to prove the the”
appeilant–accused had fired the gun.
submits that the accused is entitl-.=:_d forclear acqd’iLjtal.’ _
8. Per contra, learned ‘G_o~=.r,ernment’ P,levad”evr”‘wouid
oppose the contention of the accu’se.d:’-a’n”d..wouldsubrnit that
the case is based on theae’y_ewi’t-nesis of the victim
himself viz., Beeragi’éagL::”t3i’ou_:d:a alongwith his
wife who”was,,V.,:a;lsoAv’:’;pres’e.n’t-‘at”t’he”:spot corroborated his
statement, ‘Their,son.,PWV;4i::¢a.napati had further disclosed
about the trespass -._comi’rn..Et’ted by the accused and the
*’~a_llege’d’3’i:.firi_hg.,,_ He’Wo.u.l.d’ further contend that the fact that
.’th’e.e.accus’e,d’was’caught at the spot speaks to the fact that
the.’?’CicusedV”V’si’i._h.ad trespassed on the l’JroDertY of the
‘Complaiaiant and fired the gun with undoubted intention of
He further submits that the Trial Court has
ii’-.___”‘exa’mined the evidence in detaii and based on the
_ “proposition of law regarding appreciation of evidence, has
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rightly recorded the finding of guilt. He therefore, seeks
rejection of the appeai.
9. Keeping in mind the contentions urged by both
the sides, 1 have examined the records made available”,..:”~–.l_l’*-_
LEO. No doubt, the learned Sessions V’
examined the records evidence, bu’t’*it,is7_ ne,ces’sar’yv..it0’i’»..
observe that certain vital aspects1°wh.i’.ch’l hla’v§’
bearing on the veracity of the iwitnesseshltiaive–,bVeen”~–.ig’nor”ed.
Firstly it has to be seen that th,e'”al..I”egéd.,incident. isisaid to
have occurred at 3.30 ‘ _1PW’.s1,.iclainisV:h_tha’t–.he was in the
house and heitwas.._|§’ing’«.,on.,__the.’ platform in front of the
house. Thealccusedli’s,”aii’e«g:ed”:to have trespassed into the
area ingrrongt of theVVf’a’rm house and not into the farm house.
accused on the land appurtenant to the farm
ho’:,is’e’__ not within. If what PW.1 says is
_accepted to betrue, then the accused is said to be at a
ivddlgihlstance or ‘.20 feet away from where the PW.1 was lying on
t_he,_V’pl-at’é–form. If as alleged, the appellant had fired a gun
it the range of 20 ft., then the trajectory wouid have
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been towards the ground. The accused is said to have fired
from a standing position on PW.1 who was lying on a plate
form. The height of which would normally be more than 3
feet. Undoubtedly, the line or fire would be dow_n”w,a’rds.,,’
from the standing position of the accused.
taken place as alleged whiie the accused {wash’s.tan’dii.n’g,’i’i_. it
then, the trajectory would have been”«ulti.rnaltel’y’townaa’dsV’l_l:thje:’l–:
ground’ level, because PW.1, w’asL:I’y.i_ng on and
then, the pellets would have ‘T/3.’svva.gai§rist this
indisputable facts, the evi”cience’that the pellets
were found embe.clde_d was also
damaged, whi.ch’l’l’vwVasV:”hu’n,g””to a nail on the wall. If we
believe this~staten1ent’,,’thengthle fire should have been from
a lower; ‘level to highelr level. That is if the accused had shot
position, then trajectory would have been
!SAti'”a_ii3l_lyt.lAO’i’t’t1pWiav’rd”. But that is not the case of PW.1. i-le
_submi’t–s tl_iat~.l:’i”e was in a lying position. The learned Trial
itH”:’h”ilu’d..ge_.hastnot considered this aspect. It must be borne in
mm_d”trhat whenever the offence involves use of arm like
.:_fgu–l**ilVand pistols, the trajectory should be ascertained. This
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case of PW.1 indulging in falsely implicating the accused
and this opinion gets fortified from the fact that PW.1_…and
his wife tied the accused to a tree and they inforrn_’ed..f”t.h’e.’4
police officer, who came to the spot. He then ‘
the accused to the police officer. From~th.is it_4’isiVn’ot:Vi,ce.d if
PW.:t, and his wife were in the dominrzantip’ositien”
to the accused and if at all arrnfe-dygéiwiyth gun, heh.ad’:..c’o’me: he
was over powered.
16. Lastly, it is to not§§¥’ced_:’tih_at,:the recovery of
the gun being frontc.Qm;;»:’l’aiVna_’r:i:t gun is produced
by the r_’orh’p.lai’+;1anVtf;i.;”thefe–is ‘p’oss’ibility that he was in
possession of tl1eVVg.i;i’n:% the accused. When these
facts create”‘~.do’ubt-._incithe allegation, the question of
“‘convi._c’t’i.ng__gV’th.e acc’u’se.d<for the serious charge of offence
of IPC does not arise.
‘E3ei’ng of that view, I allow the appeal, set aside
V.judg’m’ent passed in S.C.No.56/2000 and the appellant
“iacquiétted of all the charge, particularly punishable under
.:’_4″‘th.ei:provisions of Section 307 of IPC and Section 25 (1)(a)
pi’?