M G PONNAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal by the convicted accused is directed against the judgment of conviction recorded against him by the learned Sessions Judge, Kodagu at Madikeri, in a judgment dated 30-11-1999 in S. C. No. 48/95. Initially, this case was pending before the Additional Sessions Judge, Kodagu at Madikeri, who framed the charges against the accused and tried the accused-appellant for the offences punishable under S. 302 of the Indian Penal Code and under S. 27 of the Indian Arms Act. Since the Additional Court was shifted from Madikeri, the matter was taken over by the learned Sessions Judge, Kodagu at Madikeri, who after hearing the learned counsel on both sides passed the impugned judgment of conviction.

(2.) ). The facts giving raise to this appeal in brief are as under : deceased-Muthappa and the accused-Ponnappa were the two sons of late Ganapathi, a resident of Cheyyandane village who was essentially an agriculturist owning certain extent of Coffee and wet lands at Nariyandada village, situated in the jurisdiction of Napoklu Police Station. Father of the accused and deceased died a few years prior to the date of incident in which Muthappa died. After his death, the brothers had partitioned the family properties. While the accused-Ponnappa was residing in a house situated in the portion of the Coffee Estate, which fell to his share, the deceased-Muthappa was working as Assistant Sub-Inspector of Police, Ponnampet Police Station, which was at a distance of 40 kms. , from his village. It is the case of the prosecution that the accused used to quarrel with his elder brother Muthappa and often demanded him to part with his share of properties in his favour, as he was working as the Assistant Sub-Inspector of Police in a far off place and was also giving pin pricks to the servants of his brother, who were working in the estate of his brother. Deceased-Muthappa had not obliged him. He used to visit his estate in the company of his wife P. W. 1 Smt. Lilly and was supervising the agricultural operations and of harvesting coffee and paddy. During those days, he used to stay in a portion of the house constructed for the workers. He engaged two servants by name Shabeer P. W. 3 and Narayana C. W. 6. It is the case of the prosecution that the deceased-Muthappa constructed a line of houses both in the Coffee Estate, which measures about 3 acres and also another line of houses near the wet land at a distance of about a quarter kilometer from the line of the houses constructed in the Coffee Estate. It is the case of the prosecution that P. W. 3 Shabeer had occupied two houses in the line of houses situated at Coffee Estate. His master Muthappa used to stay in three other vacant houses when he visited the Estate. It is the specific case of the prosecution that two days prior to the date of incident, which occurred on 10-2-1995, deceased-Muthappa elder brother of the accused, came to the Estate along with his wife P. W. 1 Smt. Lilly, and supervised harvesting or picking of coffee seeds. P. W. 3 Shabeer and C. W. 6 Narayana were engaged in the picking of coffee seeds till noon time. Thereafter, Muthappa is stated to have directed them to put up the fence near the hay stalk. After completing the fencing work, when P. W. 3 Shabeer and C. W. 6 Narayana were returning home in front of the house of the accused, as they had to pass through that way, the accused abused them and scolded them. Both of them promptly reported this fact to their master Muthappa who was present in his house. He immediately left the house to ask his brother the accused, as to why he scolded his servants. He was followed by his wife P. W. 1 smt. Lilly, P. W. 3 Shabeer, and C. W. 6 Narayana. It is stated that deceased-Muthappa was ahead of his wife by about 10' to 15' and P. W. 3 by about 20. ' When he approached the wooden gate, which was the entrance to the Estate from the main road, the accused who was standing on the other side of the gate holding a double barrel gun fired at his brother, which shot hit his chest causing injuries and sudden collapse. There was no time left for any one of those who were present there to rescue or to protect Muthappa. While the accused left the place suddenly with this double barrel gun, P. W. 1 Smt. Lilly fell on her husband and started crying and asked her servant P. W. 3 Shabeer to bring some water. P. W. 3 Shabeer immediately went to the house, which was 50' away from the place of incident and brought some water and put it to the mouth of the deceased who breathed his last. Every one of them were taken aback by the sudden turn of events. P. W. 1 Smt. Lilly was in great shock. It is the further case of the prosecution that in the meantime, the neighbourers also assembled there. P. W. 1 Smt. Lilly requested P. W. 3 Shabeer and C. W. 6 Narayana, to keep watch over the dead body of her husband and went to the main road to see whether she could catch some vehicle to go to Napoklu Police Station to lodge a complaint. She noticed a jeep coming towards the Estate in the main road. She requested the driver of the jeep to take her to Napoklu Police Station to report the murder of her husband. Accordingly, she reached the said Police Station, which was at a distance of 18 kms. , from her place at 7. 30 p. m. , and got prepared a complaint Ex. P. 1 with the assistance of the Station Writer and filed the complaint Ex. P. 1 before P. W. 11 T. S. Kempaiah Assistant Sub-Inspector of Police who was the Station House Officer at that time. He registered a criminal case against the accused on the basis of the said complaint, in Crime No. 16/1995 under S. 302 of the I. P. C. He deputed P. W. 7 Janardhan Police Constable to carry the F. I. R. , and the complaint to the C. J. M. , Madikeri. He hired a jeep and reached the place of incident at about 9. 30 p. m. , and found the dead body of Muthappa lying in a pool of blood with gun shot injuries on his chest. The dead body was found at a distance of about 6' from the main gate of his Estate. P. W. 3 Shabeer and C. W. 6 Narayana were present. He deputed his Constables and others to trace the accused. He also kept watch over the dead body along with other Constables. On the next day morning, P. W. 12 Jagdish, Sub-Inspector of Police visited the place of incident at about 6. 00 a. m. , and took over the further investigation from P. W. 11 Kempaiah, Assistant Sub-Inspector of Police. He collected P. W. 2 Ganapathi and P. W. 4 Aiyappa and conducted the inquest as per Ex. P. 2 and seized Hawai Chappals M. O. 2, blood stained mud and leaves and sample mud and leaves as per M. Os. 6 and 7 respectively, at the scene of offence. He deputed his staff to trace the accused and left the place to Ponnampet Police Station. At about 10. 00 a. m. , his Constables produced the accused person before him. He questioned and recorded his voluntary statement, the admissible portion of which is marked at Ex. P. 6. He recovered M. O. 1 double barrel gun at the instance of the accused person who produced the same from his house. The accused also produced M. Os. 8 to 10 the empty cartridge, cartridges, wad and pellets. The accused was thereafter produced before the jurisdictional Magistrate and obtained judicial custody. Since there was a delay in filing the final report, the accused availed the statutory bail as provided under S. 167 (2) of Code of Criminal Procedure. We are still at a loss to know as to why there was delay in filing the final report. The dead body of Muthappa was subjected to post-mortem examination by P. W. 15 Dr. H. V. Devadas, who furnished the post-mortem report as per Ex. P. 13. P. W. 12 Jagadish, Sub-Inspector of Police drew up a rough sketch of the scene of offence as in Ex. P. 9. P. W. 12 also recorded the statement of eye-witnesses during the course of inquest. Further investigation was taken over by P. W. 16 M. M. Shetty, Circle Inspector of Police who completed the formalities of the investigation by recording the further statements of witnesses and sending the articles to the FSL and also the gun M. O. 1 to the Ballistic Expert P. W. 14 Mr. N. G. Prabhakar. He also sent a request to the District Magistrate, Madikeri, to permit him to prosecute the accused person, as there was violation of the provisions of the Indian Arms Act. However, no such permission was granted as the accused was a resident of Coorg and he was exempted from seeking any licence for possessing a fire-arm. After completing the formalities of the investigation, P. W. 16 laid the charge-sheet against the accused under S. 302 of the Indian Penal Code and under S. 27 of the Indian Arms Act.

(3.) ACCUSED entered appearance through his Advocate and denied the charges framed against him. In proof of those charges the prosecution relied upon the oral evidence of 16 witnesses, 15 documents and ten material objects, and closed its case. In view of the incriminating material occurring against the accused, the trial Court examined the accused under S. 313 of the Code of Criminal Procedure. Since it was not a case of acquittal under S. 232 of the Code of the Criminal Procedure, the trial Judge directed the accused to enter his defence. However, the accused had not chosen to let in any defence evidence. The learned trial Judge thereafter heard the arguments in this case. The learned counsel for the defence had also chosen to file his written arguments. The learned trial Judge on scrutiny of the evidence and on consideration of the contentions canvassed at the Bar, found the accused-appellant guilty of the offences punishable under S. 302 of the I. P. C. , and under S. 27 of the Indian Arms Act, the legality and correctness of which is challenged by the accused in this appeal.