A M CHENGAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal assails a conviction and sentence under S. 302, IPC. The appellant before us was a Forest Guard attached to the Nagarahole National Park and the facts are slightly unusual. According to the prosecution, sometime before the incident which took place at about 4 p. m. on the evening of 30-1-98, the accused had found a baby deer which was orphaned as a result of the fact that a poacher had killed the mother;the infant deer was taken by the accused to his own house and it appears that the accused and his family developed a very deep bond with this little animal because it further emerges that the animal was virtually nursed back to life by the accused and his wife and was thereafter being looked after by them. A few days before the incident the deer disappeared and the accused was searching everywhere for it when he is supposed to have received the information from some school children that the deer was with the deceased. He is supposed to have gone to the residence of the deceased Thammaiah who was a Coffee Planter and some incident is supposed to have taken place at that time. Going by the complaint which the accused had lodged to his superior officer, we have reason to believe that the incident was one of some seriousness wherein the deceased threatened the accused with a gun and he also shot the deer in question. Thereupon, the accused reported the matter in writing to his superior officer and obtained a search warrant obviously for purposes of seizing the evidence of the offence and he executed the search warrant in the course of which a thorough search was conducted of the residence of the deceased by PW. 23 and the accused in the presence of PW. 2. This took place on 26-1-88. We find that on the one hand this incident must have not only infuriated but also humiliated the deceased but on the other hand, since no traces of the animal were found as indicated in the report submitted after the search, it would have provoked a similar reaction not only of fury but of frustration in the accused. This is evidence from the fact that he had applied for taking the deceased into custody which did not take place. Thereafter the prosecution alleges that on 30-1-88 at about 4 p. m. the accused who had a double barrel gun with him (MO. 4) went to the residence of the deceased. He met the wife of the deceased who is PW. 1 Rohini and had some discussion with her in the course of which she offered him water which he accepted. It is of some significance for us to indicate that the accused had not gone alone but that he was accompanied by another person from the department by the name of Marni (absconding ). The accused asked Rohini where her husband was. The deceased in the meanwhile was working in the pumphouse a short distance away and Rohini called out to him whereupon he came out from there. The accused in the meanwhile had walked in that direction and it is also on record that some talk took place between him and the deceased after which he lifted the gun and fired it once. The deceased was hit on the left side near the waist and he fell down. The accused and his companion thereupon ran away from that place. There was a considerable time-lag in moving the injured Thammaih to the Primary Health Centre, Gonikoppal after which he was shifted to the K. R. Hospital in Mysore where he was admitted only at 7 p. m. A statement of the deceased or rather a dying declaration was recorded by PW. 24 who is the investigating officer and it was scribed by PW. 16. It is a short statement indicating that it was the accused who had shot at the deceased. The police originally registered an offence under Ss. 307, 448 and 506, IPC and since the deceased died sometime thereafter the charge was altered to one under S. 302, IPC. On completion of the investigation, the accused was put on trial. The learned Sessions Judge at the conclusion of the trial recorded the finding that the accused is guilty of the offence punishable under S. 302, IPC and sentenced him to undergo rigorous imprisonment for life. As far as the offence under S. 448, IPC is concerned, he has awarded rigorous imprisonment for one year and to pay a fine of Rs. 2000/- in default rigorous imprisonment for six months. For the offence under S. 506, I. P. C. is concerned, he has awarded rigorous imprisonment for two years and a fine of Rs. 2000/- in default rigorous imprisonment for six months. The substantive sentences were directed to run concurrently. The present appeal is directed against the conviction and sentences awarded to the accused-appellant.

(2.) WE have heard the appellant's learned advocate Sri C. H. Hanumantharaya with R. B. Sadashivappa on behalf of the appellant and the learned Addl. S. P. P. who represents the State. In the course of the hearing, the learned advocates have taken us through the record and have made their respective submissions with regard to the factual aspects which we shall have occasion to deal with and, having regard to some of the special features of this case, they have also advanced their submissions with regard to the legal position which aspect we shall deal with presently. The appellant's learned advocate vehemently submitted that if the prosecution evidence is analysed, as far as the main incident is concerned that it rests very heavily on the oral evidence of PWs. 1, 2 and 5 and that it is supported by the medical evidence. We do not propose to deal with the first aspect of the case in very great detail. We have carefully scrutinised the evidence of the three witnesses PW. 1 Rohini who is the wife, PW. 2 Puttama who is the neighbour and PW. 5 who also claims to have seen the incident. It was submitted before us that if the evidence of these witnesses is minutely scrutinised that it would cast a serious doubt as to whether these three persons have actually witnessed the incident in the context that the prosecution alleges namely that they are eye witnesses. To this group, we need to bracket the evidence of PW. 6 also because the prosecution relied on his evidence on the ground that he was an eye witness. What has vehemently been submitted by the appellant's learned advocate is that even assuming that PW. 1 who is the wife would normally and naturally be in the house and PW. 2 who is a neighbour may have come there for any reason and simultaneously, even if PWs. 5 and 6 had come there for some work as it appears that they had something to do with the pump, that they had not actually witnessed the incident in question as the version given by these four witnesses are not identical. Apart from this, though they claim to have seen the incident the submission is that at the very highest their attention could have been attracted to the spot after hearing the gun shot. We have considered this argument and we have also taken into account the submission canvassed by the learned Addl. S. P. P. who has submitted that the quality of the evidence of these four witnesses could not have been what it is if they had not witnessed the incident and were only claiming to have seen it. Our evaluation is to the effect that it would not be possible to discredit the claim of the four witnesses that they were present and that they have seen the incident. It is only natural that the powers of comprehension and the spots from where each of them have seen the sequence of events differs. That explains the minor discrepancy. The basic substratum that emerges from this evidence is that the accused and Mari came to the house of the deceased on that afternoon and that the accused initially had some conversation with PW. 1, that he had some water which was offered to him after which he asked for the deceased, which was why PW. 1 called out to him. The deceased was quite some distance away in the pump-house and he came out when he was called by his wife and told that the accused wants to see him. The deceased was walking towards the accused and the accused was also walking towards the deceased. It is around this crucial time that the versions become extremely vague, for one thing there is a suggestion that some talk took place between the accused and the deceased and even in the statement or dying declaration of the deceased which is in Kannada, he uses the expression 'eradu maathu' which is equivalent of some talk. How far the two had advanced towards each other is not very definite and there is even a suggestion that the accused finally moved backwards, lifted the gun and shot at the deceased. We have taken special note of the fact that all these four witnesses are deliberately silent with regard to the nature of the talk which took place between PW. 1 Rohini and the accused even though she vaguely states that it had something to do with the house and what is even more vital is that they are again silent with regard to what precisely transpired after the accused came out from the pump-house. We do not believe that the witnesses were unaware of this nor do we accept the position that they could not have heard the exact nature of the conversation and it does appear to us that therefore for some reason this very crucial evidence has been kept back. We have specifically referred to this aspect of the case because we shall have to take special note of it while ultimately dealing with the question as to what precisely would be the offence that the prosecution has established against the appellant-accused. The learned trial Judge has effectively accepted the eye-witness evidence and in our opinion rightly except however as regards the aspects that have been noted by us above.

(3.) WE have on record the statement of the deceased which has been recorded by PW. 24, the Investigation Officer which is in the handwriting of PW. 16 and this statement has also been duly certified by the doctor. It is a short statement and beyond implicating the accused as the person who shot the deceased, it does not set out very many other details. What we have taken note of as far as this document is concerned, is only that the deceased does not even refer remotely to any background incidents or hostility nor does he so much as even suggest as to what was the reason why the incident took place or the genesis of what made the accused use the fire-arm against him. This will have some bearing on the legal position as indicated by us while analysing the evidence under the earlier head.