Case Note & Summary
This criminal appeal, filed under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC), arose from the judgment of conviction and order of sentence dated 24/26.08.2010 passed by the Fast Track Court, Udupi, in S.C. No. 9/2008. The appellant, Ganesh Kumar (accused no.1), was convicted for offences punishable under Sections 120B and 307 read with 511 of the Indian Penal Code, 1860 (IPC) and sentenced to two years of imprisonment. The case of the prosecution was that on 16.08.2006, the appellant, along with accused no.2 (Pandu Pai @ Panduranga Pai @ Praveen Pai, who died during trial), hatched a criminal conspiracy to kill CW-2 Nagesh Devadiga @ Pitti Nagesh for a ransom of Rs.2,00,000/- due to previous enmity. At around 5 p.m. near Kukkikatte Bus Stop, Badagubetta Village, the appellant was waiting for CW-2 with a photograph and a sword concealed in his back. On suspicion and information from PW-4 Anwar, police personnel patrolling the area apprehended the appellant. Upon search, a sword (MO-1), Rs.100 currency note, photograph of CW-2, a paper with printed letters ‘SKKK Fruits’, and another photo in a cover were seized in the presence of panch witnesses. PW-8, the Sub-Inspector of Police, lodged a suo moto complaint (Ex.P6), leading to registration of an FIR (Ex.P7). The investigation was later handed over to PW-12, who filed the charge sheet. The trial court, after examining 12 witnesses and marking exhibits and material objects, convicted the appellant. The appellant challenged the conviction contending that the evidence of PWs 1 (Head Constable, a panch witness), 4 (independent witness), 8 (PSI, part I.O.), and 12 (I.O.) was contradictory and inconsistent; that no public were present at the bus stop, undermining the panchnama; that CW-2, a rowdy-sheeter, was not examined, making the conspiracy theory doubtful; that PW-2 (nephew of CW-2) turned hostile; that PW-6 (witness to seizure mahazar) did not support the case; that PW-7 (photographer) turned hostile; and that mere possession of a sword could not establish either the conspiracy or the attempt to murder, as the ingredients of Section 511 IPC were not met and Section 307 IPC requires actual hurt. The appellant further argued that the evidence was not properly appreciated, leading to miscarriage of justice. On the other hand, the learned High Court Government Pleader contended that the appellant himself confessed before PW-8 that he was hired by accused no.2 to kill CW-2, proving the conspiracy; and that non-examination of CW-2 was not fatal as he was recently injured and hospitalized. The judgment text provided is incomplete and ends mid-sentence during the prosecution's submission, and no final decision or reasoning of the High Court is available in the excerpt. Thus, the outcome of the appeal and the court's analysis remain unrecorded in the given material.
Issue of Consideration
Whether the trial court was justified in convicting the appellant under Sections 120B and 307 read with 511 of the Indian Penal Code based on the evidence on record; Whether the non-examination of CW-2 (Pitti Nagesh) was fatal to the prosecution case
Law Points
- ingredients of Section 511 IPC
- Section 307 requires hurt
- mere possession of sword does not prove conspiracy
- non-examination of key witness is fatal
- contradictions in evidence benefit accused
- mens rea and actus reus must be proved
- preparation is not attempt
Case Details
2020 LawText (KAR) (02) 40
Criminal Appeal No. 1203 of 2010
For Appellant: Mohammed Faruke; For Respondent: M. Divakar Maddur, HCGP
State by Udupi Town Police
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Nature of Litigation
Criminal appeal against conviction for offences under Sections 120B and 307 read with 511 IPC
Remedy Sought
Setting aside the judgment of conviction and order of sentence dated 24/26.08.2010 passed by the trial court in S.C. No. 9/2008
Filing Reason
The appellant alleged erroneous appreciation of evidence, contradictions in the testimonies of prosecution witnesses, and non-examination of key witness CW-2, which rendered the conviction unsustainable
Previous Decisions
The trial court (Fast Track Court, Udupi) convicted the appellant under Sections 120B and 307 r/w 511 IPC and sentenced him to two years' imprisonment on 24/26.08.2010
Issues
Whether the prosecution proved beyond reasonable doubt that the accused had conspired and attempted to murder CW-2 Nagesh Devadiga?
Whether the non-examination of CW-2 (Pitti Nagesh) is fatal to the prosecution's case?
Whether the conviction under Section 307 read with Section 511 IPC is sustainable in light of the contradictions in the evidence of PWs 1, 4, 8, 12 and the hostile witnesses?
Submissions/Arguments
Appellant contended that the evidence of prosecution witnesses was contradictory and inconsistent; no public were present at the bus stop during the panchnama; CW-2 was not examined; PW-2, PW-6, and PW-7 turned hostile; mere possession of a sword does not prove conspiracy or attempt; and the ingredients of Section 511 IPC and Section 307 IPC were not established.
Respondent State contended that the appellant confessed before PW-8 that he was hired by accused no.2 to kill CW-2 for Rs.2,00,000/-, thereby proving the conspiracy; and non-examination of CW-2 was not fatal as he was severely injured and hospitalized.
Judgment Excerpts
The factual matrix of the case as per the charge-sheet laid by the I.O. is that on 16.08.2006, the appellant-accused No.1, along with accused No.2 Pandu Pai @ Panduranga Pai @ Praveen Pai, had agreed to take away the life of CW-2 Nagesh Devadiga @ Pitti Nagesh for a ransom of Rs.2,00,000/-, because of some previous enmity.
on 16.08.2006, at around 4 p.m., he was on patrolling duty along with Sub-Inspector of Police and other police constables PC No.1883, PC No.1882 and PC No.2199. At around 5 p.m., near Kukkikatte Bus Stand area, they found that accused No.1, on seeing these police along with Circle Inspector, he made an attempt to run away, but this team surrounded the accused and apprehended him.
Merely because MO-1 sword is found with the accused, it cannot be said that this accused was waiting for CW-2 Pitti Nagesh to eliminate him in pursuance of the criminal conspiracy hatched by him along with accused No.2.
Section 511 of IPC is attempting to commit an offence. The offence under Section 307 of IPC itself is a penal provision of law, hence the question of attempting as noted in the charge-sheet under Section 511 of IPC, does not arise at all, unless having well founded theory with ingredient of the offence.
Procedural History
On 16.08.2006, the appellant was apprehended and articles seized. PW-8 PSI filed a suo moto complaint (Ex.P6) and FIR (Ex.P7) was registered. The case was investigated by PW-12, who eventually filed a charge-sheet before the Committal Court. The trial court framed charges under Sections 120B and 307 r/w 511 IPC. The accused pleaded not guilty. The prosecution examined PWs 1 to 12, marked Exs P1 to P10 and MOs 1 to 6. After recording the accused's statement under Section 313 Cr.P.C. and hearing arguments, the trial court convicted and sentenced the appellant on 24/26.08.2010. The appellant filed the present appeal under Section 374(2) Cr.P.C. challenging the conviction.
Acts & Sections
- Indian Penal Code, 1860: 120B, 307, 511
- Code of Criminal Procedure, 1973: 374(2), 313, 233
