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2013 Supreme(Kar) 1178
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
K. SREEDHAR RAO and H. BILLAPPA, JJ.
STATE OF KARNATAKA —Appellant
Vs.
SUNIL @ DINESH @ SURESH @ JAYANANDA GANIGA AND ANOTHER —Respondent
Criminal Appeal No. 396 of 2007
Decided on : 24-05-2013
Advocate Appeared:
P.M. Nawaz, Addl. SPP, for the Appellant
C.H. Jadhav, K. Prasanna Shetty, for the Respondent
Proper identification procedures and consistency of witness testimony are crucial in establishing guilt beyond reasonable doubt.
Headnote:
Acquittal - Criminal Conspiracy - Indian Penal Code, 1860 - Sections 120(B), 302 read with Section 149 - Indian Arms Act, 1959 - Sections 3 and 25
Fact of the Case:
The accused were acquitted of the offences of criminal conspiracy, murder, and possession of arms. The prosecution's case was based on eyewitness testimony and ballistic evidence.
Finding of the Court:
The trial court acquitted the accused based on inconsistencies in witness testimony and lack of proper identification procedures. The court found the evidence against the accused to be doubtful and not proper.
Issues: The main issue was whether the judgment and order of acquittal called for interference.
Ratio Decidendi: The court found that the identification of the accused was doubtful and not proper, as proper identification procedures were not followed. The ballistic evidence was deemed inconsequential due to the lack of proper identification of the accused.
Final Decision: The appeal was dismissed, and the acquittal of the accused was upheld.
H. BILLAPPA, J.-This appeal by the State is directed against the Judgment and order dated 17th October, 2006 passed by the Sessions Judge, Udupi, in S.C. No. 97/2001.
2. By the impugned judgment and order, the learned Sessions Judge has acquitted the accused Nos. 1 to 3 of the offences punishable U/Ss.120(B), 302 read with Section 149 of IPC and Sections 3 and 25 of the Indian Arms Act.
3. Aggrieved by that, the Appellant-State has filed this appeal.
4. Briefly stated the case of the prosecution is:
That the accused No. 5-Vishwanath Shetty was demanding haftha from the deceased-Prabhakar Acharya. When A5 was unable to extort money from the deceased Prabhakar Acharya, A5 along with the other accused hatched conspiracy to kill the deceased. On 17.05.2001, at about 7.45 or 8.00 p.m. the accused Nos. 1 and 2 suddenly entered the shop of deceased Prabhakar Acharya and shot him dead and ran away from the spot and escaped in a car.
5. Based on the statement of PW1, a case in Crime No. 153/01 of Udupi Town police station has been registered for the offences punishable under Section 302 read with Section 34 of IPC and Section 25 of the Indian Arms Act.
6. After investigation, the charge sheet has been filed against the accused for the offences punishable under Sections 120(B), 302 read with Section 149 of IPC and Sections 3 and 25 of the Indian Arms Act.
7. At the trial, the prosecution has examined in all 34 witnesses and Exhibits P1 to Ex.P.68(a) and MOs.1 to 29 have been marked.
8. A4 has died during the pendency of the proceedings and the case against him has abated. A6 has been discharged. A5 has absconded and the case against him has been spilt up. The case is tried only against A1 to A3.
9. The trial Court on appreciation of the evidence on record has acquitted the accused Nos. 1 to 3 of the offences punishable U/Ss.120(B), 302 read with Section 149 of IPC and Sections 3 and 25 of the Indian Arms Act.
10. Aggrieved by that, the Appellant-State has filed this appeal.
11. Sri. P.M. Nawaz, the learned Addl. State Public Prosecutor contended that the impugned Judgment and order cannot be sustained in law. He also submitted that the trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the evidence of PWs. 1, 2, 5, 6 and 7 who are eye witnesses and the evidence of PW 31 clearly establishes the guilt against the accused. He also submitted that the opinion of the ballistic expert shows that the weapon was used in the commission of the offence. Therefore, the trial Court was not justified in acquitting the accused. He therefore submitted that the impugned judgment and order cannot be sustained in law.
12. As against this, the learned counsel for the respondents 1 to 3 submitted that the impugned judgment and order does not call for interference. He also submitted that the trial Court on proper consideration of the material on record and taking into consideration that there is no description of the accused in the FIR, T.I parade was not proper and the evidence of the witnesses is totally inconsistent has acquitted the accused and therefore, the impugned judgment and order does not call for interference. He also submitted that the Appellate Court cannot lightly interfere with the findings recorded in the trial Court unless they are perverse.
13. We have carefully considered the submissions made by the learned counsel for the parties.
14. The point that arises for our consideration is:
Whether the impugned judgment and order calls for interference?
15. The death was homicidal is not in dispute. The prosecution mainly relies upon the evidence of PWs. 1, 2, 5, 6, 7 and PW.31 who is the ballistic expert. PW1 has deposed that he was working as salesman in the shop of the deceased Prabhakar Acharya. On 17.5.01 at about 7.45 or 8 p.m. when he was in the shop along with the others namely Varadaraju, Lakshmana and daughters of the deceased, two persons suddenly entered the shop and fired shot at the dec
