IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 965/2017 BETWEEN S. K. Lavakumar S/o Kuttappa Aged about 51 years Devanuru Village Balele, Virajpet Taluk Kodagu District – 571218.
(By Sri. S .V Shastri, Advocate for Sri Ravindranath .K - Advocate) AND State of Karnataka Represented by Ponnampet Police-571218.
(By Sri. Thejesh .P, HCGP) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order passed in the Crl.A.No.33/2013 dated 23.5.2016 on the file of II-Additional District and Sessions Judge, Kodagu- Madikeri, sitting at Virajpet and confirming the order in C.C.No.302/2010 dated 28.02.2013 on the file of Civil Judge and J.M.F.C., Ponnampet with respect to confiscation of M.O.1, SBBL Gun by the State / Respondent in the above case and release M.O.1 to the custody of the petitioner by allowing this petition.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
Crl.A.No.33/2013 confirming the judgment of conviction and order of sentence dated 28.2.2013 rendered by the trial Court in C.C.No.302/2010 for the offence punishable under Section 506(2) of IPC, in sofar as it relates to order of confiscation of the SBBL gun – M.O.1 to the State.
2. The brief facts of the case is that on 26.5.2007 at 10.00 a.m. in Balele Devanuru Village when CW.1 had gone to his house, then the accused had brought the SBBL gun in a manner to shoot CW.1 and threatened with dire consequences. Therefore, a crime came to be registered in Cr.No.57/2007 under Section 506(2) of IPC against the accused. The Ponnampet police seized the SBBL gun from the accused and the same came to be marked as M.O.1 and after investigation by the IO, charge sheet was laid in C.C.No.302/2010. The charges were framed and read over to the accused but he did not plead guilty and claimed to be tried.
3. In support of the case of prosecution, PW.1 to PW.7 were examined and Exs.P1 to P.5 and M.O.1 were got marked. Thereafter, incriminating statement was recorded as contemplated under Section 313 of Cr.P.C. whereby the accused denied the truth of the prosecution case. Subsequently, the accused did not come forward to adduce any defense evidence. The trial Court after appreciation of evidence on record and hearing the arguments advanced on both the side, passed the impugned judgment of conviction and order of sentence convicting the accused for the offence punishable under Section 506 of IPC and sentenced him to undergo SI for five months and to pay fine of Rs.2,000/-. In default to pay the fine amount, to undergo SI for one month. M.O.1 seized in the said case was ordered to be confiscated to the State after expiry of period of the appeal.
4. Aggrieved by the said judgment, the accused preferred an appeal before the first Appellate Court in Crl.A.No.33/2013. The Appellate Court vide judgment dated 23.05.2016 allowed the appeal and set-aside the judgment of conviction and order of sentence passed by the trial Court and acquitted the accused for the offence punishable under Section 506(2) of IPC. Further, held that in respect of order passed by the trial Court regarding M.O.1 holds good after appeal period is over. It is this judgment which is challenged under the present revision petition on the ground of confiscation of M.O.1 SBBL gun to the State.
5. Learned counsel for the petitioner contends that the lower Appellate Court has failed to consider the evidence of the prosecution witnesses in a proper perspective relating to confiscation of M.O.1 SBBL gun. The prosecution witnesses have not identified the SBBL gun marked as M.O.1 for committing the offence by the petitioner. Therefore, the Court below ought to have released M.O.1. to the petitioner. Further, it is contended that the Court below failed in not considering the fact that the petitioner is Kodava by race and is holding the fire arms bearing No.SBBL Gun No.947903 under Exemption No.A-3-ARM283 issued by the jurisdictional Magistrate. As the petitioner is residing in a remote place of Kodagu District and that the National Park is adjacent to his property, there are more chances of wild animals entering into nearby vicinity and cause damage to life and property. These facts have not been considered by the Court below and erred in ordering confiscation of the gun at M.O.1 to the State.
6. It is further contended that when the lower Appellate Court has ordered for acquittal of the petitioner against the offences alleged, instead of release of M.O.1 – SBBL gun, has ordered for confiscation of the same to the State. He contends that the Court below has failed to consider the fact that by virtue of the order of confiscation of M.O.1, the SBBL gun, the petitioner has lost his right to acquire another gun or another license from the competent authority. On all these grounds, learned counsel for the petitioner seeks for allowing this petition.
7. Learned HCGP for the respondent State contends that the trial Court on appreciation of material evidence available on record has passed the impugned judgment of conviction and order of sentence and the same is based on law and facts. He further submits that the State has not preferred any appeal or revision against the judgment rendered by the first Appellate Court in Crl.A.No.33/2013. But the SBBL gun as per M.O.1 belongs to the accused and the same has been used by him to extend life threat to PW.1 and the same is reflected in the substance of the charge sheet laid by the IO. Mere because of the acquittal from the offence, he cannot claim that M.O.1 be confiscated to the state.
He contends that the petition being devoid of merits may be dismissed.
8. In this context of the contentions as taken by the learned counsel for the petitioner and so also, learned HCGP for the State, it is pertinent to note that accused is the younger brother of the complainant – CW.1. The complainant was the Bank employee is also not in dispute. According to the complaint, the incident took place on 26.5.2007 at about 9 a.m. to 9.30 a.m. PW.1 is a senior Bank Manager. The timing stated by PW.1 is not consistent with the timing mentioned in the complaint. In the chief-examination PW.1 states that the accused had shown the gun to kill PW.1 by assaulting, but the same has not been stated in the complaint. The version of PW.1 is not supported by any of independent witnesses though the incident happened at 10.00 am on broad day light.
9. Further, the PW.1 in his cross-examination states that the accused damaged the glasses of Esteem Car but the police have not seized the Car nor seized the broken glass pieces of the Car. The accused and complainant are said to be the brothers. It appears that there is case and counter case between the complainant and accused. PW.1 has admitted in his evidence that he has filed suit in O.S.No.45/2004 for partition. Hence, there appears to be strained relationship between both of them.
10. Further, it is relevant to note that PW.2 and PW.3 who are the mahazar witnesses have turned hostile and have not supported the case of the prosecution. Drawing of mahazar is not at all proved including the seizure of M.O.1. PW.4 states that he signed on Mahazar in the police station and M.O.1 was not seized in his presence. PW.5 one of the witness to the seizure mahazar of M.O.1 has also turned hostile. Hence, as observed by the lower Appellate Court, the trial Court failed to take note of all these facts and has come to conclusion that accused is guilty of the offence and convicted the accused on surmises and conjunctions. Hence, the judgment of the Appellate Court in allowing the appeal and setting aside the judgment of conviction and order of sentence passed by the trial Court is just and proper and I find no justifiable ground to interfere with the same.
11. But insofar as, the judgment of the lower appellate Court in respect of order passed by the trial Court regarding confiscating of M.O.1 to the State after the expiry of appeal period, appears to be erroneous, for the reason that the prosecution witnesses have not identified the M.O.1 – SBBL gun for committing the offence by the petitioner. Further, the lower Appellate court while acquitting the accused has given a finding that the prosecution has failed to establish the involvement of the petitioner in the criminal activities. Further, it has held that the drawing of mahazar and seizure of M.O.1 is not proved. When such being the case, the order of confiscation of SBBL gun – M.O.1 to the State passed by the both the courts below is bad in law and the same needs interference of this Court. Therefore, the petition merits consideration.
For the aforesaid reasons and findings, I have to proceed to pass the following:
ORDER Criminal Revision Petition is hereby allowed. Consequently, the impugned order passed by the trial Court in C.C.No.302/2010 dated 28.02.2013 in sofar as it relates to confiscation of M.O.1, SBBL gun to the State and confirmed by the lower Appellate Court in Crl.A.No.33/2013 vide order dated 23.05.2016, is set- aside.
Consequently, the competent authority is directed to release M.O.1 – SBBL gun to the petitioner/license holder on proper identification, as expeditiously as possible in an outer limit of within a period of two months from the date of receipt of a copy of this order, in accordance with law.
DKB Sd/- JUDGE