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PETITIONER: STATE OF KARNATAKABY H.A.L. AIRPORTPOLICE, BANGALORE

       Vs.

RESPONDENT: THANGARAJ

DATE OF JUDGMENT12/07/1995

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PUNCHHI, M.M.

CITATION:  1995 AIR 2124            JT 1995 (7)   516  1995 SCALE  (4)353

ACT:

HEADNOTE:

JUDGMENT:           THE 12TH DAY OF JULY, 1994 Present:           Hon’ble Mr. Justice M.M.Punchhi           Hon’ble Mr. Justice K. Jayachandra Reddy Mr. K.H. Nobin Singh, Adv. for Mr.M.Veerappa, Adv. for the appellant. Mr. C.V. Francis, and Mr.G.Prakash, Advs. for the Respondent           J U D G M E N T The following Judgment of the Court was delivered:           IN THE SUPREME COURT OF INDIA           CRIMINAL APPELLATE JURISDICTION           CRIMINAL APPEAL NO. 432 OF 1988 State of Karnataka by H.A.L. Airport Police, Bangalore           V. Thangaraj                     J U D G M E N T K. JAYACHANDRA REDDY. J.           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 I.P.C.      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 Ammunititon 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

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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  Maniekyam,   Subedar  in   the  Security  department allotted the  duties to  the deceased  and P.W.10 Joseph and P.W.11 Arjunan.  They alongwith  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 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 P.W.11 and told him that he would not  spare him  also and  then he pointed the rifle at P.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 telephone  and the  pouch, M.O.  16 containing  four live cartridges and  one case  of used cartridge were found. They immediately  tookthe   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 exit 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  occurence 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 leteron  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

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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.      To prove  that the accused was posted for guard duty at the  Ammunition  Store  with  a  musket  alongwith  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 whatsoever 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.19 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  TrollyGate and  he made  the entry in the beat book and he accused with him and went to the Ammunition Store and asked him  to take  charge of the ammunition from P.W.19 and relieve  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 enable to see any reason as to any 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 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

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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 the, saw the accused standing near  the gate of Ammunititon 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 five 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 took. We have carefully  considered the  reasons given  by  the  High Court and we are of the view that they are wholly unsound.      When once  it is  accepted that  the accused was at the relevant time  on duty  at the  Ammunition  Store  and  that musket, M.O.  14 and  four live and one used cartridges were recovered   from   him   almost   immediately,   then   this circumstance itself  would  be  sufficient  to  connect  the accused with the guilt because the dead body of the deceased Krishnamurthy  was   admittedly  lying   near  the  gate  of Ammunition Store.      Further, we  have the  evidence  of  two  eye-witnesses P.Ws. 10  and 11.  P.W.11, Arjunan,  was working as Security Jamadar for  the last 23 years. He knew the deceased and the accused. On  26.3.1981 he reported for duty at about 11 P.M. and accordingly informed P.W.12, the Subedar who ordered him to take  two guards with him in the bus and post them at the points of  their duty.  The bus driven by P.W.10 was waiting at the  main gate.  He himself  and the  two security guards namely the  deceased and one Markanda Rao sat in the bus. On the West  Cross Barrier  the guard Markanda Rao got down and the bus  stopped  near  the  Ammunititon  Store,  where  the deceased got  down. The deceased came near the bus again and told  P.W.11   that  no  guard  was  to  be  seen  near  the Ammunititon Store.  Then the  deceased gave the beat book to P.W.11 who stood on the first step of the passage of the bus with the  beat book in his hand. He signed the beat book and gave it  to the  deceased. Just  at that  time he  heard the sound  of   firing  and   saw  the   deceased  falling  down immediately on  his back. The accused came near the door and pointed the rifle at P.W.11 as well as at P.W.10, the Driver and asked  him to  put off  the engine  of the bus. Then the accused went to the Ammunition Store. P.W.11 asked P.W.10 to start the bus immediately and they came to the main gate and both of  them  immediately  informed  P.W.12,  the  Subedar. P.W.11 further  deposed that the incident took place between 11.55 P.M.  and 12  midnight. He also identified the musket, M.O.14, which was in the hands of the accused. He was cross- examined at  length. He,  however, admitted  that he had not signed the  beat book of the accused on that night. He added that he  did not  go to the police station as he felt giddy. We do not find anything significant in his cross-examination which affects  his veracity.  P.W.10 amply  corroborates the

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evidence of P.W.11. P.W.10 deposed that he was the driver in the security  department in  H.A.L. and  he knew the accused and the  deceased. On  26.3.1981 his  duty commenced from 11 P.M. to  6.30 A.M.  He checked  the bus and kept it ready to take the  personnel and drop them at their respective posts. Two security guards namely the deceased and Markanda Rao and P.W.11 boarded  the bus  and as  directed by  P.W.11, P.W.10 stopped the  bus and dropped Markanda Rao first at the point of his  duty and  then stopped  the bus  at Ammunition Store where the  deceased got  down with  a bundle of fuel sticks. P.W.11 asked  the deceased  to look  around if the guard was present anywhere. P.W.11, however, made an entry in the beat book and  posted the  deceased at Ammunition Store. When the deceased was  at a  distance of  2-1/2 feet  from  the  bus, P.W.10 heard  the sound  of firing  and immediately  saw the deceased falling  down. Just  then the accused came near the bus with  a rifle  and pointed  the same  at P.W.11 and said that he  would shoot  him also  and when  the bus  was in  a started condition,  the accused  came near  P.W.10 and asked him to  put off  the engine  and thereafter the accused went towards the Ammunition Store. Immediately he started the bus and came to the main gate alongwith P.W.11. Both of them got down and  went to  the office and informed P.W.12 as to what has happened.  He further deposed that at about 6.30 A.M. on 27.3.1981  he  and  P.Ws,  11,  12  and  13  went  near  the Ammunition Store  where his  statement was  recorded by  the police. This witness was also cross-examined at length. Much of it  was about  the distance  between  the  places  namely Ammunition Store where the bus stopped etc. He admitted that there is  no register  maintained in  his office to show the movement of  the bus on that night. He denied the suggestion that the  bus driven  by him  did not go near the Ammunition Store. It can thus be seen that the evidence of P.Ws. 10 and 11 amply  establishes that  it was  the accused who shot the deceased dead.  Then we have the evidence of P.W.12, Subedar in the  security department. He deposed about allocating the duties to the deceased and that he instructed P.W.10 to take Markanda Rao  and the deceased and that he instructed P.W.10 to take Markanda Rao and the deceased and drop them at their respective places  of duty.  He further  deposed at about 12 midnight he  received a  phone call  from Ammunititon  Store which was  from the  accused who  told him on phone in Tamil that he  had shot  the deceased  and that he should send the ambulance immediately.  P.W.12 made an entry in Ex.P.12, the daily occurrence  diary. Just  then P.Ws. 10 and 11 returned in the  bus and  he was  also  informed  by  them  that  the deceased was  shot dead  by the  accused. P.W.12 immediately passed on  the information  P.W.16, the  Assistant  Security Officer, who  immediately alongwith  P.W.13 and  P.W.18 came in a  car. All  of them  went to  the Ammunition  Store  and parked the  car at  about 50 feet. They kept the head-lights on and in that light they saw the body of the deceased lying on the  ground at  a distance of 10 feet from the Ammunition Store and  found the accused near the gate of the Ammunition Store holding a rifle in his hands. P.W.16 asked the accused to keep  the rifle  on the ground and accordingly he kept it on the ground and raised his hands. He was caught hold of by P.W.16 and  P.W.18 went  and brought  the rifle and on being asked the  accused told that he had kept the ammunition near the telephone  and the  pouch containing  four live  and one used cartridges  was secured.  All  of  them  alongwith  the accused came  in the  bar to  the Airport Police Station and P.W.13 gave  the report  and the  accused was handed over to the police alongwith the rifle and the cartridges. P.Ws. 13, 16 and  18 also  deposed about  these details  as to  how on

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information they  went to  the Ammunition Store and took the accused into  custody and  also secured  the musket  and the ammunition. We  do not  find anything important which in any manner affects  their veracity. Further as stated above, the evidence of  P.W.19 establishes that the accused took charge from P.W.19 and that at the time of relieving, P.W.19 handed over the  musket  and  the  live  cartridges  to  him.  This evidence coupled  with the  evidence of  the above mentioned witnesses would  establish that  the accused  was on duty at the relevant  time and  that he  was responsible for causing the death  of  the  deceased.  Thus  there  is  overwhelming evidence given  by the above mentioned independent witnesses which fully  establishes the  guilt of the accused. As noted above, the  plea of the accused has been of total denial and he simply  stated that  he was in the house wherefrom he was taken to the police station, which is totally false.      Inspite of  overwhelming evidence  mentioned above, the High Court for no valid reason rejected the same. One of the infirmities pointed  out by  the High Court is that there is no mention  about the  alleged confession  of the accused to P.W.12 on phone in the complaint and therefore, according to the  High   Court,  all   this  story   has  been  built  up subsequently. We  see absolutely no logic in this reasoning. When  several   responsible   officers   deposed   that   on information they  immediately went  to the  Ammunition Store and took  the accused  into custody  in the manner mentioned above, there  was no  need at that juncture again to mention the said  talk on telephone. P.W.12, however, stated that he made an  entry in  the daily occurence diary and we are at a loss to  know as  to why the evidence of this witness should be brushed  aside simply  on the  ground that  there was  no relevant entry in the beat book regarding the posting of the accused at  the Ammunition  Store and  that some details are not found  in the complaint. The appreciation of evidence by the High  Court is  highly unsound  and absolutely  no valid reasons are  given for  disagreeing with the findings of the trial court.  We are  satisfied that  under  the  facts  and circumstances  of   the  case   and  on  the  basis  of  the overwhelming evidence,  the only  reasonable view is the one taken by the trial court.      For all the above reasons, we set aside the judgment of the High  Court and  restore the judgment of the trial court convicting  the   accused  under   Section  302  I.P.C.  and sentencing him to undergo imprisonment for life. Accordingly the appeal is allowed.