STATE OF KARNATAKA Vs. THANGARAJ

JUDGEMENT

(1.) This appeal by the State of Karnataka is filed against the judgment of the High Court setting aside the judgment of the trial Court and acquitting the respondent, the sole accused in the case, of the offence under Section 302, IPC.

(2.) The accused and the deceased Krishnamurthy were working as Security Guards in Hindustan Aeronautics Limited, Bangalore ('H.A.L.' for short). On 26-3-1981 the accused was on duty for second shift at Trolly gate and he was required to do duty at two points i.e. Trolly Gate and Ammunition Store and accordingly at about 11.45 p.m. he was on duty at Ammunition Store. Prior to him P.W. 19 Nataraj, a Security Guard, was doing his duty at Ammunition Store and he was relieved by the accused. P.W. 19 was having M.O. 14, the musket and also five live cartridges with him while on duty and on being relieved he gave them to the accused who was doing his duty there. The deceased Krishnamurthy left his house at about 10 p.m. to go to his duty and came to H.A.L. P.W. 12 Manikeyam, Subedar in the Security department allotted the duties to the deceased and P.W. 10 Joseph and P.W. 11 Arjunan. They along with the deceased and another security guard Markanda Rao went in the bus driven by P.W. 10. When the bus went for a little distance, the deceased asked to stop the bus and he got down from the bus and took casurina sticks, M.O. 4, with him in the bus. The bus came to the West Cross Barrier and Markanda Rao was posted for his duty there and thereafter the bus came to Ammunition Store. The deceased Krishnamurthy got down and took out the casurina sticks from the bus and kept them on one side. He told P.W. 11 who was with him that the guard on duty at that time was not to be seen there and P.W. 11 told him to look around. Then the deceased gave his beat book, Ex. P. 13 to P.W. 11 for making signature and when P.W. 11 was standing at the first step in the passage of the bus for signing the entry he heard the sound of firing and immediately Krishnamurthy fell on the ground. Thereafter the accused came and pointed the musket at page No. W. 11 and told him that he would not spare him also and then he pointed the rifle at page No. W. 10 and asked him to put off the engine of the bus. Accordingly P.W. 10 put if off. Then the accused went to the Ammunition Store and P.W. 10 started the bus and he and P.W. 11 came to the main gate. In the meantime the accused himself telephoned to P.W. 12 and told him that he has shot at the third shift guard Krishnamurthy and that ambulance should be sent immediately. P.Ws. 10 and 11 also came just then and told P.W. 12 about the shooting. P.W. 12 passed on this information to P.W.16, S. V. Mannaji Rao, the Assistant Security Officer, who in turn informed P.W. 13, K. K. Muddappa, the Security officer. Thereafter P.Ws. 12, 13, 16 and 18, Papanna (Security Jamadar) came to the Ammunition Store and they saw the accused standing with the musket in his hand. These persons asked the accused to put down the musket and immediately he was caught by P.Ws. 12 and 16 and on being asked, he told that he had kept the ammunition near the telephone and the pouch, M.O. 16 containing four live cartridges and one case of used cartridge were found. They immediately took the accused to H.A.L. Airport Police Station. P.W. 13 gave his complaint and produced the accused before the police who arrested him and attached the musket and cartridges. The F.I.R. was registered and investigation commenced. After inquest, the dead body of the deceased was sent for post-mortem. The doctor, who conducted the post-mortem, found an entrance fire-arm injury on the frontal portion of the neck with the corresponding exist injury and he opined that the deceased died because of that injury. After completion of the investigation, the charge-sheet was laid. The prosecution examined 24 witnesses and out of them, P.Ws. 10 and 11 figured as eye-witnesses. P.Ws. 9, 12, 13 and 16 spoke about the other circumstances. When examined under Section 313 Cr. P.C. the accused pleaded not guilty and stated that he has been falsely implicated and that on the date of occurrence he was assigned the duty of guarding at the Trolly Gate and he remained there till midnight and went to the house at about 3 a. m. and when he was sleeping in his house, the police came and took him. The learned trial Judge particularly relying on the evidence of P.Ws. 9 to 12 and 19 held that the accused who was posted on guard duty at Trolly Gate, was also later on relieved from there and taken to Ammunition Store and posted on guard duty and as spoken to by the eye-witnesses he shot at the deceased and accordingly convicted him. The High Court, however, went into the question whether the prosecution has established that at the relevant time the accused was on duty at the Ammunition Store and commenting that the beat book maintained by P.W. 19 regarding the duty at Ammunition Store has not been produced, observed that the same gives rise to suspicion about the prosecution case. The High Court, in the first instance, considered the evidence of P.W. 12 who spoke about the phone call and extra-judicial confession and doubted the same for certain reasons and held that the same reasons would also apply to the evidence of P.Ws. 10 and 11 and therefore their evidence should be rejected. These are the main findings of the High Court which are vehemently assailed by the learned counsel for the appellant, the State of Karnataka.

(3.) To prove that the accused was posted for guard duty at the Ammunition Store with a musket along with a pouch containing five live cartridges, the prosecution relied on the evidence of P.Ws. 9, 13, 18 and 19. These are all independent witnesses and there is no reason what so ever to doubt their veracity. P.W. 9, K. Narasimhalu, was working as Subedar in the security department at the relevant time. he deposed that on 26-3-1981 he was on duty from 3. P.M. to 11 P.M. One of the duties he was to perform was of taking the roll call of guards, assigning the duties to them and maintaining the records. He deposed that he called upon all the guards for the purpose of roll call and took the roll call and then assigned duties to all of them. He assigned the duty of guarding Ammunition Store to P.W. 19, Nataraj from 3 p.m. to 11 p.m. Another shift of guards started at 4.15 p.m. and that would be working till 0.15 A.M. P.W. 9 knew the deceased as well as the accused who were also working as security guards. According to P.W. 9, the accused took charge of his post of duty at Trolly Gate at 4.15 p.m. P.W. 9 went around at 10.15 p.m. and he found the accused on duty at Trolly Gate and he made the entry in the beat book and he took the accused with him and went to the Ammunition Store and asked him to take charge of the ammunition from P.W. 19 and relieved him. Accordingly the accused took charge and relieved P.W. 19. P.W. 9 further deposed that the accused who was put on duty at Ammunition Store was also given a 410 musket with five live cartridges and P.W. 19 while handing over the charge to the accused also handed over the musket and five cartridges. The main criticism against the evidence of this witness is that in the beat book there is no entry to the effect that the accused was posted at two points on that day. Because there is no corresponding entry, the High Court discarded his evidence. The evidence of P.W. 9 is clear that for some reason or other he took the accused and posted him near the Ammunition Store and took P.W. 19 with him. We are unable to see any reason as to why the evidence of P.W. 9 should be discarded merely on the ground that there is no entry in the beat book. His evidence is also corroborated by the evidence of P.W. 19. He gave all the details in his deposition as to how he was relieved from his duty at the Ammunition Store by P.W. 9 and the accused took charge and he also handed over the musket and five live cartridges. His evidence is also discarded by the High Court on the ground that there is no written record as to the handing over of the charge. Regarding the recovery of the musket and four live and one used cartridges from the pouch which was in the custody of the accused, there is the evidence of P. Ws. 13 and 18 which is supported by P.W. 12. According to the prosecution, P.W. 12, Subedar in the security department received the phone call from the accused confessing that he had killed the deceased and P.W. 13, the Security Officer was informed immediately. P.W. 13 started in a car and at the main gate he picked up P.W. 12 and on the way he also picked up P.W. 16, Assistant Security Officer and P.W. 18, the Security Jamadar and they went to the Ammunition Store and halted at a distance of 50 feet. All of them saw the accused standing near the gate of Ammunition Store with a rifle in his hand. P.Ws. 12 and 16 managed to catch hold of the accused and took the rifle from the hands of the accused and also recovered the pouch containing four live and one used cartridges. They also saw the dead body of the deceased Krishnamurthy lying there. It can be seen that all these steps were taken immediately after receipt of the phone call and that is the consistent prosecution case from the beginning. The F.I.R. was promptly given on that very night at about 1.45 A.M. and the accused also was produced. In the F.I.R. all these details are mentioned. But the plea of the accused, as mentioned above, is of total denial and he stated that he was sleeping in his house wherefrom he was taken to the police station. This on the face of it is false. Yet, the High Court discarded the evidence of P.Ws. 12, 13, 16, 18 and 19, all responsible officers, initially having doubted the prosecution case that the accused was put on duty at the Ammunition Store at the relevant time solely on the ground that there was no entry in the beat book. We have carefully considered the reasons given by the High Court and we are of the view that they are wholly unsound.