Recovery Of A Weapon From An Open Place Accessible To All Not Reliable: SC

Preface

It has to be taken most seriously that none other than the Apex Court which is the highest court of India has in a most learned judgment titled Manjunath vs State of Karnataka in Criminal Appeal No. 866 of 2011 and cited in Neutral Citation No. 2023 INSC 978 that was pronounced as recently as on November 6, 2023 in the exercise of its criminal appellate jurisdiction has minced just no words to state unequivocally that the incriminatory objects when discovered in places accessible to the public cannot be solely relied upon to establish the guilt of the accused persons. It must be mentioned here that the Supreme Court Bench comprising of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Sanjay Karol was hearing an appeal against a judgment of the Karnataka High Court which had reversed the acquittal granted by the Trial Court and convicted the 6 appellants for offences under Section 304 Part II IPC to undergo a sentence of rigorous imprisonment for 4 years while upholding the acquittal of the rest. The Apex Court in this leading judgment referred to recent case law titled Jaikam Khan vs State of UP (2021) 13 SCC 716, where the top court had caught the right pulse and held that, "It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries." It also referred to the most recent judgment titled Nikhil Chandra Mondal vs State of WB 2023 LiveLaw (SC) 171 wherein it was held while acquitting accused that the recovery of knife was from an open place accessible to one and all. We thus see that the Apex Court very rightly set aside the conviction awarded by the Karnataka High Court on the appellants.

Introduction

At the very outset, this brief, brilliant, and balanced judgment authored by Hon’ble Mr Justice Sanjay Karol for a Bench of the Apex Court comprising of Hon’ble Mr Justice Abhay S Oka and himself sets the ball rolling by first and foremost putting forth in para 1 that, "Appellants [Manjunath (s/o Bachanna) A-1; Ramegowda (s/o Bachanna) A-2; Ramappa (s/o Narayanappa) A-3; Ramesh (s/o Chikka Venkatarayappa) A-4; Manjunath (s/o Ramappa) A-5; Dyavappa (s/o Narayanappa) A-7]. (six in number) have filed this appeal against the judgment and order dated 21st September 2010 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.1795 of 2004 whereby the appeal filed by the State against the verdict of acquittal in favour of all 29 accused, vide judgment and order dated 25th September, 2004 in S.C. No.162 of 1999, passed by the Additional Sessions Judge - Presiding Officer, Fast Track Court-II, Kolar, was partly allowed. Overturning the same in respect of A-1 to A-5 and A-7, the Court while convicting them for having committed an offence punishable under Sections 143, 144, 146, 147, 148, 447, 324, 326, 504 and 506 r/w Section 149 of Indian Penal Code, 1860 sentenced each one of them to undergo rigorous imprisonment for a period of 4 years and pay a fine of ₹ 5000 each."

Factual Prism

To put things in perspective, the Bench while shedding light on crucial facts envisages in para 2 that, "2. The facts, as set out by the Courts below, shorn of unnecessary details are :-

2.1 On 6th August 1997, the deceased namely Byregowda (Hereinafter, the deceased) and his brothers, T.V. Narayanaswamy (PW4), T.V. Gopalreddy (PW5), T.V. Rajanna (PW10) and Marappa (PW2) had gone to the fields to work when, allegedly, all the accused armed with weapons such as clubs, iron rods and choppers came and threatened them. PW2, PW4, PW5 and PW10 managed to escape but while the deceased, was attempting to do so, he was grievously assaulted by A1, A2 and A3 by means of iron rod and a steel edged weapon (chopper). Immediate medical treatment was administered to the deceased at the Sidlaghatta General Hospital by Dr. Loganayaki (PW1) who also informed the police. V.M. Sonnappa (PW19), the then Sub-Inspector of Police took his statement (Ex. P1) and as a consequence therefore, registered FIR being Crime No. 249/1997 dated 08.08.1997 under several penal provisions.

2.2 After due investigation, the challan came to be filed and the case was committed to the Court of Additional Sessions Judge-Presiding Officer, Fast Track Court-II, Kolar. All the accused denied the charges under section 120B, 143, 447, 302 read with Section 149 IPC and claimed trial. Accused Nos.6 and 8 are recorded to have died and therefore, the proceedings against them stood abated at this stage."

Findings Of The Trial Court

Do note, the Bench notes in para 3 that, "The prosecution in order to prove the charges levied, examined 28 witnesses; exhibited 24 documents and three material objects. The accused did not lead any evidence save and except producing five witnesses to contradict the version of PW 4, Gopala Reddy (PW5), Chandrappa (PW15), T.V Krishnappa (PW17) and T.S Ramakrishna (PW13) respectively."

It would be of immense significance to note that the Bench then while elaborating exhaustively specifies in para 4 that, "The evidence led was categorized into five heads – (a) ocular; (b) Dying declaration; (c) circumstantial evidence; (d) recovery of incriminating material; and (e) motive.

4.1 PW2, PW3 and PW15 are eyewitnesses and PW2 and PW15 have not supported the case of the prosecution. PW2 has deposed that he had heard from the family members of the deceased that he had sustained various injuries and upon reaching there found the latter to be lying a little away from his own lands and later find out that he had died. PW3 has deposed that he had seen the accused persons assaulting the deceased, and it is they who had laid the deceased, post such assault, on the eucalyptus leaves on the fields of PW11. PW15 stated that he saw the deceased lying on southern side of the eucalyptus plantation where PW2, PW4 and PW5 were also present. PW15 has deposed that he saw the accused persons armed with weapons and proceeding towards the garden. He followed them and found that the accused had chased and assaulted the deceased. It is a point of conflict whether the accused had, as per the statement of PW3, laid the deceased down on the eucalyptus fields of PW11 - Raghava or was it PW15 who had done so. No other witnesses have deposed to that effect.

The Trial Court, therefore, did not rely on the ocular evidence.

4.2 In respect of the dying declaration, it was observed that the evidence clearly shows PW19 to not have recorded the declaration. It has borne out from cross examination of this witness that it was one of his staff members, namely Nataraj who had recorded the statement who was neither cited nor examined as a witness. Moreover, this deponent has not even endorsed such a statement.

4.3 In respect of the medical evidence furnished, it was observed that PW1 admitted non stating of who furnished history of injuries- whether it was injured himself or another person who had brought him to the hospital. This, read alongside PW1’s earlier statement that numerous persons were present with the injured/deceased led the Trial Court to believe that, on account of severe head injury he was not in a position to give a statement and it was other persons present who furnished necessary details to form the same.

4.4 In respect of circumstantial evidence, it was observed that PW2 has not implicated any of the accused in the circumstance relating to a mob approaching the fields in the morning of 6 August 1997. PW15 had deposed, as noted above that the deceased was laid on eucalyptus leaves in an injured state. It was however not his case that the deceased had informed him about who caused his injuries. This, led the Trial Court to observe "falsity" in the evidence of PWs 4,5,6 and 7 who stated the deceased had told that the accused assaulted him.

4.4.1 For PW3 and PW13, it was observed that their conduct did not reflect that of an "ordinary prudent man" as the former did not rush to the village or to the rescue of the deceased but instead, ostensibly, to invite the villagers to a hiding place; and the letter since he claimed to have heard the accused persons conspiring to attempt to take the lives of the deceased and his brothers and further claimed that later he heard the persons state that while one of them was caught, others ran away. Despite hearing this he proceeded to leave to attend the marriage of someone at Vijayapura. This, the Court, found to be a conduct, against of a prudent person who proceeded as normal, despite hearing of a conspiracy to kill a fellow man.

4.4.2 It is in light of above conclusions that the Trial Court held the web of circumstances to be unable to point "unerring, cogently and positively" to the guilt of the accused.

4.5 On recovery of weapons, the Court observed that although the weapons had been recovered at the instance of accused persons - clubs at the instance of A10, A3, A5, A6 and A7; iron rod at the instance of A1 and A2 and chopper at the instance of A4, but doubted the veracity of the seizure on the ground that the clubs were recovered from a place of common access and the chopper as well as the rods were recovered from places where others also resided. Further, it was observed that the clubs seized (M.O. 3) were of 4 ft in length and 3 inches, in diameter which could cause such as abrasion(s), contusion(s), and laceration(s). However, the medical evidence of PW1 did not record any such injury. The Court, therefore, concluded that the incriminating objects or weapons were not of any assistance in the case against the accused.

4.6 On motive, it was observed that although a dispute had taken place on the night of 4th August, 1997 between PW4 and A1, A2, A4, A7, A8, A9, A11 and A12 regarding the obstruction of a pathway, resulting into criminal prosecution against the persons involved but leading only to their acquittals. Therefore, in view of the Court, motive was absent.

4.7 Two other aspects were also urged on behalf of the prosecution, one; regarding the place of occurrence of offence and two; the delay in recording the statements of the ocular and circumstantial witnesses. On both these grounds as well, the court did not find anything to be pointing towards the guilt of the accused persons.

4.8 In view of such findings, the court acquitted all accused persons."

Most Important Findings

Most significantly, the Bench minces just no words to propound in para 28 that, "As reflected from record, and in particular the testimony of PW-15 it is clear that the discoveries (stick as shown by A10, for instance) was a eucalyptus stick, found from the eucalyptus plantation, which indisputably, is a public place and was found a week later. A second and third stick purportedly found half kilometre away on that day itself, was found by a bush, once again, a place of public access. Two further sticks recovered at the instance A6 and A7, were also from public places. An iron chain produced from the house of A1 and A2, is not free from the possibility that any of the other occupants of their house were not responsible for it. We, further cannot lose sight of the fact that sticks, whether bamboo or otherwise, are commonplace objects in village life, and therefore, such objects, being hardly out of the ordinary, and that too discovered in places of public access, cannot be used to place the gauntlet of guilt on the accused persons."

Conclusions

Most fundamentally, the bottom-line of this judgment in the form of conclusion is then enumerated in para 29 wherein it is held that, "Our conclusions, therefore, are thus:

29.1 The dying declaration, although undoubtedly a substantive piece of evidence upon which reliance can be placed, in the present facts is rendered nugatory as the person who took down such declaration was not examined, nor did the police officer (PW19) endorse the said document with details of who took down the declaration. It is also not clear as to in front of which of the relatives of deceased was the same taken down.

29.2 The circumstantial evidence present on record does not point to the hypothesis of the guilt of the accused persons, for the reasons discussed above.

29.3 None of the eyewitnesses-PWs 2, 3, 15, as referred to by the trial court have succeeded in attributing a particular role to any of the accused persons and equally so, to A-1 to A-5 and A-7, whose acquittals have been overturned by the High Court."

It is worth noting that the Bench notes in para 30 that, "In our considered view, the view taken by the Trial Court was a possible view and there being no error in correct and complete appreciation of evidence as also application of law; the High Court, without assigning any cogent reasons ought not to have interfered with such findings."

As a corollary, the Bench observes in para 31 that, "For the aforesaid reasons, the judgment impugned before us in Criminal Appeal Number 1795 of 2004 dated 21 September 2010, is set aside. The appeal is, accordingly, allowed."

Most forthrightly, it cannot be lost sight of that the Bench minces just no words to point out in para 32 expounding that, "Having allowed the appeals as above, we are constrained to observe that the Criminal Appeal u/s 378 Code of Criminal Procedure, 1973 the High Court has not appreciated the severity of the allegations involved to the full extent. That a Court of Appeal should be circumspect in overturning its judgment of acquittal, is not a principle that requires reiteration. It has been held time and again that an acquittal will only be overturned in the presence of very compelling reasons. (Tulsiram Kanu v State AIR 1954 SC 1) Further, right from the Privy Council [Sheo Swarup v King Emperor AIR 1934 PC 227(2)] onwards, it is been held that the presumption of innocence in favour of the accused is bolstered if the trial court hands down an acquittal. [Ghurey Lal v State of U.P. (2008) 10 SCC 450] We find the High Court not to have observed the said principles in deciding the appeals. Quite opposite thereto, perfunctory reasons stand recorded to restore the convictions of the Appellants herein. The observations of the trial court along with the principle of a bolstered principle of innocence, were summarily cast aside. The same cannot be said to be in accordance with the law."

Resultantly, the Bench mandates in para 33 that, "As a result, the acquittals handed down by judgment and order dated 25th September 2004 in S.C. No. 162 of 1999, passed by the Additional Sessions Judge- Presiding Officer, Fast Track Court-II, Kolar, are restored. The judgment of conviction and sentence, as awarded by the High Court, stands set aside."

For clarity, the Bench clarifies in para 34 that, "Since the sentence awarded by the High Court under Section 304 Part II of the IPC was for 4 years, and the application of exemption from surrender was disallowed by this Court, vide order dated 13th December 2010, the Appellants appear to have already served the sentence awarded to them."

In addition, the Bench directs in para 35 stating that, "It is however directed, that the fine made payable by each of the accused, as a result of the impugned judgment be refunded to them. Consequently, bail bonds, if in effectuation, shall stand discharged. The appeal is accordingly, allowed."

Finally, the Bench then concludes by holding in para 36 that, "In view of the above, interlocutory applications, if any, shall stand disposed of."

In essence, the bottom-line of this notable judgment is that the Apex Court has sent a very clear and loud message to all the Courts including High Courts also that recovery of a weapon from an open place accessible to all is not reliable. This was held so uprightly while overturning a judgment of the Karnataka High Court which had wrongly turned down the most meticulous findings of the Trial Court. Very rightly so!