STATE OF KARNATAKA Vs. K M KUKKAPPA

JUDGEMENT

(1.) WHAT started as a long standing property dispute at Napoklu village in Madikeri ended abruptly on 30. 5. 1992 at about 6. 30 P. M with the death of one Monnappa and gun shot injuries to PW. 12 subramani. PW. 13 Nanaiah and his aged mother Kamavva. The prosecution alleges that the accused K. M. Kukkappa and the deceased as also the injured persons belong to the same extended family and that there were the inevitable skirmishes with regard to respective shares in an area of about 50 acres of land. Despite litigations and partitions, the disputes continued and the bone of contention appears to be a small area of 40 cents adjoining the house of the accused which he was not agreeable to partition as he wanted to construct a residential house there. A civil suit was filed and during the pendency of the suit the accused put up a fencing around that area which was forcibly demolished by the deceased and other members of the family. The accused lodged a police complaint and finally, with the intervention of the police on 29. 5. 1992 the parties had arrived at some kind of temporary settlement. This position however does not appear to be correct because the accused and his wife both of whom have given evidence as defence witnesses deposed to the effect that on the way back from the police station the deceased and his group stopped the autorickshaw in which the accused was traveling back, pulled him out, abused him, manhandled him, put mud on his face and it is even alleged that one of them urinated in his mouth. The aftermath came the next morning when the prosecution alleges that Monnappa was proceeding towards the small temple and the accused fired at him with a gun. He sustained injuries on different parts of the body as over 48 pellets had hit him and he fell down bleeding. The sound of the fire-arm brought PW. 12 subramani, PW. 13 Nanaiah and his aged mother Kamavva as also pw. 4 and some others to the spot. It is alleged that the accused used the gun a couple of times thereafter as a result of which subramani, Nanaiah and Kamavva had sustained gun shot injuries though none of them were of any seriousness. The persons who had gathered there virtually wrenched the gun from the hands of the accused after which the injured persons were taken to the respective hospitals. Though the injuries on Monnappa were not very serious, it appears from the sequence of events that there was a long time lag by the time he reached the hospital at Madikeri as a result of which he died more due to loss of blood than due to the gun shot injuries. The police arrested the accused and charged him with offences punishable under Section 302, 326, 324 and Section. 27 of the Arms Act. It is alleged that on the morning of 30. 5. 1992 itself the accused who had also sustained certain injuries came to the police station, met PW. 30 and informed the Police Inspector that he had shot the four persons mentioned above. Pursuant to a voluntary statement made by the accused, the gun was seized from his residence. The ballistic expert has opined that the gun was in working condition and that it had been recently fired, the police recovered the cartridges from the scene of offence and after completion of the investigation the accused was charge sheeted and put up for trial. The learned trial judge held that the evidence on record did not conclusively establish that the injuries to the four persons had been caused by the accused as the evidence did not conclusively indicate that the witnesses were in a position to identify the persons who had fired the gun for a variety of reasons and consequently, acquitted the accused of all the charges, the State has assailed the correctness of the acquittal order through the present appeal. Since the accused was unrepresented, this Court appointed learned Advocate Mr. V. Ranga Ramu as Amicus Curiae to appear on behalf of the respondent-accused. At the hearing of the appeal, we have been taken through the entire record by the learned Addl. S. P. P. and by the respondent's learned Advocate and we have thoroughly reviewed the evidence on record and evaluated the submissions canvassed on various points of fact and points of law.

(2.) MR. Koti, learned Addl. S. P. P. has, to start with referred extensively to the judgment of the trial Court and to the fact that the reasons adduced by the learned trial Judge for rejecting the evidence of PWs. 12,13 and 15 as also PW. 2 who is the father of the complainant Kariappa are weak, hollow and unsustainable. He has demonstrated to us that these are all unsophisticated witnesses and that despite the usual limitation that they have very clearly deposed to the fact that they arrived on the scene immediately after they heard the sound of the gun shot which had been directed against monnappa and that when they rushed to that spot where he had fallen, which was near the residence of the accused, that he fired the gun twice injuring Subramani, Nanaiah and Kamavva. It was only after this that the accused was disarmed. They have admitted the fact that there was a dispute with regard to the area of 40. cents of land and they contended that the accused could not have put up a fencing during the pendency of the injunction order. Mr. Koti has then relied on the evidence of the police officer PW. 30 who deposed to the effect that the accused came to the police station and surrendered at about 10. A. M. on 30. 5. 1992 and stated that he had shot Monnappa and the other three persons referred to by us. Mr. Koti also relies heavily on the evidence of recovery of the gun, the evidence of the ballistic expert who has in turn stated that the gun was in working condition and that it has been fired, the scene of offense mahazar which indicates that the used cartridges were recovered from that spot and above all, he placed heavy reliance on the evidence of the accused and his wife who are Dws. 1 and 2. His submission is that the general background of disputes and hostility is admitted by both sides and that this was the reason behind the firing by the accused. He points out that even though the accuse has contended in his evidence and in his statement that he was assaulted and humiliated on the previous day that he does not admit his presence on the next morning on 30. 5. 1992 when the incident took place. It is Mr. Koti's submission that in the light of this record, there is really very little for the prosecution to establish because the majority of the prosecution case is admitted. He then goes on to point out that in the case of all the four injured persons, there is an entry in the medicolegal register indicating that it was the accused who had inflicted the gun shot injuries on them. Lastly, Mr. Koti submits that even as far as the injuries on the person of the accused are concerned that he has himself referred to these in his deposition while narrating the incident on the evening of 29. 5. 1992 and that consequently even this aspect of the prosecution's duty i. e. of explaining the" injuries on the accused has been complied with. He has therefore submitted that the order of acquittal is liable to be set aside and that the accused will have to be convicted. With a full sense of responsibility, Mr. Koti points out that even though the main head of charge is under Section 30. 2 IPC. that after a very careful study of the medical evidence that it Will have to be held that at the highest, the accused could be held guilty of the offense punishable under Section 304 (ll) IPC. as far as deceased Monnappa is concerned.

(3.) THE respondent's learned Advocate has submitted that in so far as he retraces the sequence of events, his contention is that admittedly when Monnappa sustained the gun shot injuries none of the witnesses were prese. nt. He states that being very early in the morning that the remaining witnesses were not around and it is also not clear as to whether they were even awake, it is their case that monnappa had already fallen down injured when they arrived there and he contends that all the witnesses though they allege hostility against the accused have not in so many words deposed to the fact that they saw the accused firing the gun. It is his contention that fire-arms are freely used in this district in all sorts of petty quarrels and that the dispute with regard to the land was a long standing one invoiving a large number of family members and that even if this dispute formed the background that there is no reason to conclude that it was the accused alone who had attacked the injured persons and caused the death of Monnappa. He has pointed out to me that the investigation in this case was extremely lax that the complaint was lodged after considerable delay only on the next morning that the statements of witnesses have been recorded as late as ore and two months thereafter and that in totality, the prosecution case does not inspire any confidence. White defending the acquittal order, learned Advocate advanced the alternate submission that the Court must take very serious note of the fact that though the accused was facing a serious charge that he has still entered the witness box and given evidence on oath and that his evidence has not been even slightly shaken in cross-examination. His submission is that the accused was at the receiving end on the previous night that he had been subjected to a severe attack and horrifying levels of humiliation by the complainant's group and that the injuries on the accused would clearly indicate that the morning's incident was not a on-way affair as deposed to by the witnesses, his submission is that if the Court were to hold that the evidence establishes that the accused caused the injuries to the four persons that the Court must take note of the fact that he was one against whole group on the other side, that the incident took place in front of his house in which he has been injured and that consequently, the Court must uphold the plea that the accused acted in exercise of the right of self-defence.