Karnataka High Court
Aiyaraniyanda Monnappa @ Ravi vs The State Of Karnataka on 19 September, 2018
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 19TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.300 OF 2014
BETWEEN:
AIYARANIYANDA MONNAPPA @ RAVI,
SON OF LATE SOMAIAH,
AGED 30 YEARS,
AGRICULTURIST,
VANACHALU, GALIBEEDU VILLAGE,
MADIKERI TALUK - 571 201.
... APPELLANT
(BY SRI B.N.JAGADEESHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY THE
CIRCLE INSPECTOR OF POLICE,
MADIKERI RURAL CIRCLE,
KODAGU DISTRICT - 571 201,
REPRESENTED BY
LEARNED STATE PUBLIC PROSECUTOR
...RESPONDENT
(BY SRI I.S.PRAMOD CHANDRA, SPP-II)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 25/29.03.2014 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN
S.C.NO.29 OF 2011 - CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF INDIAN PENAL CODE AND SECTION 3
READ WITH 25 AND 27 OF ARMS ACT, AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF TWENTY
YEARS AND TO PAY FINE OF RS.12,000/- (RUPEES
TWELVE THOUSAND) IN DEFAULT TO PAYMENT OF FINE,
SHALL HAVE TO UNDERGO SIMPLE IMPRISONEMENT FOR
A PERIOD OF ONE YEAR FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF INDIAN PENAL CODE AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF ONE YEAR
AND TO PAY FINE OF RS.2,000/- IN DEFAULT OF PAYMENT
OF FINE, SHALL HAVE TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF TWO MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 3 READ WITH 25
AND 27 OF THE INDIAN ARMS ACT. THE SUBSTANTIVE
SENTENCE OF IMPRISONMENT SHOULD RUN
CONCURRENTLY AND DEFAULT SENTENCE SHOULD RUN
SEPARATELY. THE APPELLANT/ACCUSED PRAYS THAT HE
BE ACQUITTED.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, RAVI MALIMATH, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The case of the prosecution is that on 11.08.2010 at about 5.45 p.m., within the limits of Madikeri Rural Police Station at Galibeedu Village in Vanachalu near the estate of one Aiyaraniyanda Erappa on Galibeedu-Kadamakallu Road, accused Nos.1 and 2 were conspiring to commit the murder of Aiyaraniyanda Ponnappa and his wife Shanthi. There were property disputes between the accused and the deceased. When both Aiyaraniyanda Ponnappa and his wife Shanthi were coming on their motorcycle bearing Reg.No.KA-21-J-405 from the side of the estate of Aiyaraniyanda Erappa towards their house, accused No.1 fired with his SSBL Gun towards Aiyaraniyanda Ponnappa and his wife Shanthi. Both of them sustained fatal injuries and died at the spot.
2. PW-2, on hearing about the incident from his mother PW-1, who in turn had heard about the incident from the local villagers, goes to the spot and finds that 4 both Aiyaraniyanda Ponnappa and his wife Shanthi were lying dead. Thereafter, the case was registered in Crime No.202 of 2010 against unknown persons for the offence punishable under Section 30 of the Indian Penal Code. Thereafter, investigation was taken up. Both the accused were arrested on 12.08.2010. On completion of the investigation, a charge-sheet was laid against both the accused for the offences punishable under Section 120(B), 302 of IPC and Section 3 read with Sections 5 and 27 of the Indian Arms Act. The accused pleaded not guilty and claimed to be tried.
3. In order to prove its case, the prosecution examined 22 witnesses and got marked Exs.P1 to P23 and marked 33 material objects. The defence got marked Exs.D1 and D2.
4. By the impugned judgment, accused No.2 was acquitted. Accused No.1 was convicted for the offence punishable under Section 302 of I.P.C. and sentenced to 5 undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.12,000/-, in default of payment of fine, to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of IPC. He was also convicted for the offence punishable under Section 3 read with Sections 25 and 27 of the Indian Arms Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. Aggrieved by the same, the accused has filed this appeal.
5. Sri.B.N.Jagadeesha, learned counsel appearing for the appellant contends that the Trial Court has committed an error in misreading the evidence on record. That the prosecution has failed to prove its case against the accused. That there is no material to indicate that the accused was involved in the commission of the offence. The Trial Court has passed the judgment on 6 surmises and conjectures. Hence, he pleads that the appeal be allowed by acquitting the appellant.
6. On the other hand, Sri.I.S.Pramod Chandra, learned State Public Prosecutor-II disputes the same. He contends that substantial evidence has been led in by the prosecution to prove its case against the accused. That the evidence of the Ballistic expert would clearly indicate that the Gun was owned and used by the accused against the deceased and that he has committed the murder of two persons. Under these circumstances, the entire evidence having been considered in a right and just manner, no interference is called for. Hence, he pleads that the appeal be dismissed.
7. Heard learned counsels and examined the records.
8. The entire case of the prosecution rests on circumstantial evidence. There are no eye-witnesses to 7 the incident. Therefore, the prosecution would have to prove its case by establishing every link in its case, in order to bring home the guilt of the accused. Therefore, we propose to consider each one of these factors, to ascertain whether the prosecution has proved its case beyond reasonable doubt or not.
9.(a) MOTIVE: With regard to the motive to commit the offence, the prosecution primarily relies on the evidence of PW-4.
(b) PW-4 is the daughter of the deceased. The deceased in this case are husband and wife and the parents of PW-4. She is studying at Bengaluru. She has stated in her evidence that there were property disputes between the accused and her parents, namely, Aiyaraniyanda Ponnappa and his wife Shanthi. That the property disputes were not resolved. That the accused had threatened to assault the father of the witness, 8 namely, the first deceased. That there was a threat meted out to her father.
(c) We have considered the evidence as well as the cross-examination of PW-4. We do not find anything worthwhile in the cross-examination that would persuade us to disbelieve the evidence of PW-4 regarding motive. The evidence of PW-4 would clearly narrate the previous enmity between the accused and the deceased. Therefore, the accused had a grudge against them. In view of the pending disputes between the accused and the deceased, the same was a motive for commission of the offence. She is the daughter of the deceased. She is aware of the disputes between her parents and the accused. She is the right person to speak about the dispute between her parents and the accused. In the absence of any worthwhile cross examination, we are of the view that the trial court was justified in accepting the case of the prosecution, so far as the motive is concerned. 9
10.(a) CAUSE OF DEATH: With regard to the cause of death, the Doctor was examined as PW-19.
(b) Dr.Shylaja.N., PW-19, conducted the post- mortem on both the deceased. She has submitted her report in terms of Exs.P13 and P14. Ex.P13 is with reference of the first deceased Aiyaraniyanda Monnappa @ Ravi. She has opined that the death is due to 'shock and haemorrhage', as a result of gunshot injuries sustained. She has stated that pellets were found in the body of the deceased. She has noticed as many as eight injuries on him. Six of the injuries are penetrating injuries. There are injuries sustained on the skull, right lower eyelid, middle of lower lip, front of the neck, front of left chest and that the fourth rib was fractured. That the pellet has perforated the lower lobe of the left lung. On further dissection, penetrating wound in abdominal cavity deep was present. That the pellets have perforated the subcutaneous tissue and stomach. That the left kidney was shattered into 10 pieces beyond alignment. Omentum was contused at places.
(c) So far as the report of Smt.Aiyaraniyanda Shanthi, namely the wife of the first deceased is concerned, the doctor has noticed as many as seven injuries on her. That there was a split, irregular laceration and fracture over the face with penetrating wound over the front of the right ear. A penetration wound over the back of right shoulder. That the entry wounds of the pellets were present over the front of the chest. On further dissection, a cardboard wad was recovered from the under surface of the wound. That the underlying subcutaneous tissue, omentum and peritoneum were irregularly lacerated with multiple pellets embedded in them. The superior surface of liver showed multiple pellet entry wounds, the undersurface showed an irregular laceration. One pellet was embedded in the liver parenchyma deep. There was an irregular circular to oval entry wound over 11 the front of the chest at left hypochondrium was present. On further dissection, a metal wad was recovered from the subcutaneous tissue. That the underlying 10th, 11th and 12th ribs were fractured. Stomach showed a perforating pellet wound. Intestines and omentum were contused at places with few pellets embedded on them. On further dissection, multiple pellets entry wounds were present over the back and hip of the sacral region. On further dissection, the underlying pelvic bone and sacrum showed multiple fractures. Uterus showed three pellets entry wounds. Here also, the doctor opined that the death of the second deceased was due to 'shock and haemorrhage', as a result of gunshot injuries.
(d) The witness has stated about all the injuries sustained by both the deceased in her evidence. She has narrated the various injuries as noted by her. She has also opined with regard to the cause of death. There is no 12 serious cross-examination of this witness to disbelieve the evidence.
(e) Having considered the evidence as well as the contentions, we are of the view that the evidence would clearly indicate that the death of both the deceased was as a result of gunshot injuries. No further evidence is necessary for us to hold the same. There are no unexplained injuries sustained by both the deceased that would create a doubt in the prosecution case. The case of the prosecution is that the death was due to gunshot injuries inflicted by the accused. The medical evidence clearly leads to that conclusion alone. Hence, while accepting the medical evidence, we have no hesitation to hold that the death of both the deceased was due to gunshot injuries.
11.(a) Ownership of the Gun: The case of the prosecution is that the Gun - M.O.No.13 is under the ownership of the accused. It is a licensed Gun. The 13 license has been marked as Exs.P-22 and 23. M.O.Nos.14 and 24 to 27 are empty cartridges. M.O.Nos.28 and 29 are live cartridges. M.O.No.30 is the cartridge embedded in the gun. M.O.No.31 are the wad pieces and M.O.No.32 are also empty cartridges.
(b) Sri.N.G.Prabhakar - PW-21 is the Ballistic Expert. He has stated in his evidence that he has submitted his reports in terms of Exs.P16, 18 and 19.
Ex.P16 is the information furnished by him. He has stated that the gun was in a working condition. That the effective range of the gun is forty yards. That the cartridges in Article Nos.9 and 10 of the report were live and the same could be fired through the SBBL Gun in Article No.1. The wads in Article No.6, the led pellets in Article No.7 and the led pellets and wad pieces in Article No.8 are the components of 12-bore cartridges and the same could have been fired through the SBBL Gun in Article No.1. The cartridge cases in Article Nos.3 and 4 14 have been fired through the SBBL Gun in Article No.1 and lastly, he opined that it is not possible to state that cartridge case 1(a) and cartridges cases in Article Nos.2 to 5 have been fired through the Gun, Article No.1.
Ex.P17 are the samples.
Ex.P18 is the Invoice of Articles and Ex.P19 is the method of examination and reasons adopted by him for furnishing the report.
(c) Learned counsel for the appellant contends that out of the five cartridges that were examined by the expert, no opinion was framed with regard to three cartridges. His opinion to the effect that it is not possible to state that marks on the cartridge cases marked as 1(a) and marks on the cartridge cases in Article Nos.2 to 5 have been fired through the same Gun, Article No.1. Therefore, the prosecution has failed to prove that the cartridges had caused the death of both the deceased.
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(d) We are unable to accept such a contention. The opinion of the Ballistic expert is not to the effect that the cartridges have not been fired through the Gun or that it could not have been used in the firing of the Gun. The information furnished by the witness is that he is not in a position to state whether the three cartridges could be fired through the Gun. Therefore, there is no opinion at all so far as these three cartridges are concerned. Under these circumstances, the question of holding any opinion in favour of the accused would be improper. There is no positive finding recorded by the witness on these cartridges. Therefore, the opinion of the expert on these cartridges cannot be considered either in favour of the accused or in favour of the prosecution.
(e) So far as the other cartridges are concerned, there is a clear opinion that the two cartridges were fired through the Gun, namely, Article No.1. The case of the prosecution is that the cartridges were used to fire from 16 the Gun by the accused. The medical evidence supports the case of the prosecution, that the death was due to injuries caused due to gunshots. The Ballistic Expert has clearly stated that the two gunshots were fired with two cartridges of the same Gun. There is nothing to disbelieve such evidence. The evidence of the Ballistic Expert corroborates with the medical evidence. Two cartridges were fired, at both the accused, which resulted in their death. The cartridges were fired from the Gun of the accused. Therefore, the contention of the appellant on this score cannot be accepted. The finding of the Ballistic Expert corroborating with the evidence of the medical expert requires to be accepted. The evidence of the Ballistic Expert would also indicate that the live cartridges were also test fired by the Ballistic Expert and these match the live cartridges with the cartridges that were used for firing by the accused. That the cartridges would contain pellets and wads and upon firing the cartridges, pellets and wads would get disbursed. On disbursal, the pellets and 17 wads would enter the body of the deceased, which were noticed in the postmortem report of each of the deceased.
12. Regarding surrender of the weapon: PWs-6 and 9 are the panch witnesses for the recovery of the Gun. They have stated that the witness appeared in the Police Station at 8.30 a.m., and the accused appeared in the police station at 9.00 a.m. and surrendered the Gun, M.O.No.13. Along with the Gun, two live cartridges and four empty cartridges were also surrendered to the Police. That there was also one cartridge in the Gun. The cross- examination is with regard to the difference of time as narrated by the witness. However, we do not find that the difference of time would enure to the benefit of the accused. The statement of the witness is to the effect of the surrender of the Gun, cartridges, etc., There is no worthwhile cross-examination so far as the surrender of the Gun is concerned. Only because of the difference of time when the surrender took place, the same cannot be 18 considered to disbelieve the statement of the witnesses. The witnesses have clearly narrated with regard to the actual surrender of the Gun and cartridges to the Police. Therefore, the difference of time would not really be fatal to the prosecution.
13. On considering the entire evidence and material on record, what emerges is the following:
The ownership of the Gun belonging to the accused has been proved. It is not disputed that the cartridges were used. Atleast two cartridges were used to fire from the Gun. The evidence of the Ballistic Expert is clear on this issue. The medical evidence would indicate that the death was due to the injuries caused by the gunshots. That a number of pellets, wads, etc., were found embedded in both the bodies. The motive to commit the offence has been proved by the prosecution. Therefore, this leads to the only conclusion, that it was the accused who committed the murder of both the deceased. He had 19 a motive to commit the offence. The Gun belongs to him. The cartridges were fired from his Gun. He has surrendered the gun and the cartridges to the police. The death was due to gunshot injuries. Therefore, we have no hesitation to hold that the Trial Court was justified in passing the order of conviction.
14. Yet another aspect is the defence of the accused. He has set up an alibi. He has stated that on the date of the incident, namely, on 11.08.2010, he was in Bengaluru City and was not aware of the incident. Having taken such a defence, it was for him to establish the same. There is no material to indicate his absence at the scene of the offence on the date of the incident. There is no material to support his statement that he was in Bengaluru on 11.08.2010. Therefore, the accused has not been able to establish this alibi he has set up. Therefore, the failure of the accused in proving his alibi would also lend 20 assurance to the Court with regard to the guilt of the accused.
15. None of the statements of the witnesses have really been contested by the accused. There is no serious cross-examination with regard to the material particulars of the incident. The witnesses have stood by the statement made in the cross-examination. There are no valid suggestions made by the learned counsel for the appellant to disbelieve the statement of the witnesses.
16. Regarding Sentence: Learned counsel for the appellant contends that the Trial Court has sentenced the accused/appellant to undergo rigorous imprisonment for a period of twenty years. He submits that it is too harsh and therefore, the same should be reduced.
The learned SPP-II submits that the punishment awarded is proper.
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17. On hearing the learned counsels, we do not find any ground to interfere with the quantum of the sentence awarded by the Trial Court. The aggravating circumstances are that the accused has committed the murder of two people from the Gun belonging to him. The cartridges were fired by him. This is a motive to commit the offence. The offence was committed by him in a pre- planned manner. No mitigating circumstances are brought about by the appellant in order to reconsider the sentence awarded by the Trial Court. It is a plea without any basis. Having taken away the lives of two persons, the Trial Court was of the view that a sentence of twenty years imprisonment without remission is just and proper. Hence, we are of the consider view that the sentence awarded is just and proper. We do not find any error to interfere with the well-considered order of the Trial Court even so far as the sentence is concerned.
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18. For all the aforesaid reasons, the appeal is dismissed.
The judgment dated 25/29.03.2014 passed in S.C.No.29 of 2011 by the First Additional District and Sessions Judge, Madikeri, Kodagu as against accused No.1/appellant for the offence punishable under Sections 302 and 120(B) of the Indian Penal Code and Section 3 read with Sections 25 and 27 of the Indian Arms Act is affirmed.
Sd/- Sd/-
JUDGE JUDGE
dh