Karnataka High Court
C.T. Ponnappa Alias Chuppi vs State By Circle Inspector Of Police, ... on 22 August, 2002
Equivalent citations: ILR2002KAR4390, 2002(6)KARLJ436
Author: H.N. Narayan
Bench: H.N. Narayan
JUDGMENT H.N. Narayan, J.
1. This appeal is directed against the judgment of conviction and sentence recorded by the learned Sessions Judge, Kodagu, Madikeri, convicting the accused appellant for the offence under Section 302 of the IPC and Sections 3 and 7 read with Sections 30 and 25 of the Indian Arms Act and sentencing him to suffer imprisonment for life and also to undergo imprisonment for six months for the offence under Section 30 and three years for the offence under Section 25 of the Arms Act. According to the prosecution, the accused C.T. Ponnappa alias Chuppi murdered his elder brother Chengappa on the morning of 11-8-1996 at about 8.45 a.m. in the premises of his residence "B. Kananakadu" at Badaga-Banangala Village within the jurisdiction of Sidhapur Police Station in Madikeri Taluk.
2. The case of the prosecution in brief is as follows.--The accused and deceased are the two sons of P.W. 7-Dechamma. Deceased Chengappa was married to P.W. 12-Reshma about two years prior to his death. The father of the accused and the deceased viz., Thimmaiah died 3 years prior to the date of incident. Mr. Thimmaiah was a rich man. He owned about 200 acres of agricultural land comprising coffee estate, paddy fields, other movable and immovable properties consisting of spacious bungalow and workers sheds and residential houses at Mysore and apartments at Bangalore. He had cash deposits in Banks to the extent of Rs. Ten Lakhs and he had stored about 800 bags of coffee seeds. A week prior to his death, the father of the accused and deceased had made a Will in the presence of P.W. 8-K.G. Uthappa, an Advocate and settled both movable and immovable properties to his sons and wife without reserving any property to himself. The sons were not happy with the allotment of shares to them by their father. Therefore, the parties entered into mutual written agreements after the death of their father as per Exs. P. 46 and P. 47. The accused got 100 acres of agricultural land including coffee estate under the Will and the deceased got about 89 acres and 20 acres was given to their mother, P.W. 7. The residential house was ordered to be retained by any one of the sons, but created life interest to his wife Dechamma, whoever relinquished the share in the house was allowed to sell 784 bags of coffee which was harvested, to be utilised for construction of another house. The brothers lived together with their mother for some time. Disputes arose regarding sharing of movable and also immovable properties and hence they divided the properties in accordance with the mutual agreement, Exs. P. 46 and P. 47. Deceased Chengappa opted to collect 784 bags of coffee in lieu of share in the family house. The accused agreed to the proposal. Consequently, the deceased Chengappa and his wife Reshma shifted to a rented premises at a place called Pollybetta. It is alleged that the deceased had to walk out of the family house because of persistent harassment caused to him by his brother. Deceased Chengappa had a routine habit of visiting his mother every morning and also to supervise the coffee estate which had fallen to his share. P.W. 7-Dechamma was still affectionate to him. It was also his practice that after meeting his mother and going around the estate, he used to come back to his house with a can of milk from the coffee estate. The farther allegation of the prosecution is that accused Ponnappa was not satisfied with the movable and immovable properties which he got. Therefore, it is alleged that he was sending threats of causing harm to Chengappa and that the deceased had in fact informed his wife about impending danger to his life. In spite of the advice of his wife to inform the same to the police, he declined to do so as it would have affected the prestige of the family.
3. According to the prosecution on 11-8-1996 at about 7.15 a.m. the deceased, as usual left his house in his Gypsy to supervise the estate and visit his mother. P.W. 12-Reshma saw her husband going towards coffee estate in Gypsy van. At about 8.15 a.m. P.W. 7-Dechamma noticed the accused and the deceased were talking to each other and for some time they were quarrelling which led to squabble and at that time the accused is stated to have gone inside the house and brought double barrel gun and shot his brother. P.W. 7-Dechamma, their cook Laxmana and others came to the place of incident. P.W. 7 ordered P.W. 6 to take the gun which was dropped there and keep it inside the house and then asked P.W. 6 to bring a bed and they put the injured Chengappa in the same Gypsy and took him to American Hospital at Ammathi. P.W. 12-Reshma who was working near her house saw her husband's Gypsy passing towards Ammathi. Her mother-in-law Dechamma was sitting next to the driver, Dechamma gave her signal to follow her in a taxi. Both of them reached American Hospital where P.W. 5-Dr. Rukmini Mandanna examined the injured Chengappa and declared him dead. Then they brought the dead body to the house. Somebody telephoned the police about the death of Chengappa in their estate. The message reached P.W. 13-Marishetty at about 2 p.m. He therefore visited the house of P.W. 7 who gave a written complaint as per Ex. P. 21 which was drafted by P.W. 4-Madaiah. P.W. 13 registered a case in Crime No. 92 of 1996 at Sidhapur Police Station on the basis of the said complaint against the accused under Section 302 of the 1PC. FIR was submitted to the jurisdictional Magistrate. In the meantime P.W. 14-S.R.S. Shetty, the Circle Inspector, Madikeri Rural Police Station, who received the message, promptly visited the place of incident and took over further investigation of this case from P.W. 13. He conducted inquest over the dead body in the presence of P.W. 10-B.K Madappa as in Ex. P. 50. At about 6 p.m. the accused was produced before the Circle Inspector who arrested him and recorded his voluntary statement. Thereafter, he took the hand wash (Article 9) of the accused and prepared a mahazar as per Ex. P. 51. A requisition was sent to P.W. 1 requesting him to come over to the place of incident and conduct post-mortem on the dead body of the deceased Chengappa. Accordingly, P.W. 1 conducted post-mortem between 4.45 and 6.30 p.m. on the same day and issued a report as per Ex. P. 3. P.W. 14 recovered M.O. 10-double barrel gun from the house of the accused. According to the prosecution, it was seized at the instance of the accused which was kept in the table of his house, all the seized articles were sent to chemical examination. M.O. 10-double barrel gun and the clothes of the deceased were specially packed and sealed and sent to P.W. 2-N.G. Prabhakar, ballistic expert for his examination and opinion. Some of the seized articles including the hand wash and jerkin, M.O. 1 which was on his person, were sent to Bombay by P.W. 2 for further examination and expert's opinion. Subsequently, upon a request made by P.W. 12-Reshma, the Government entrusted the further investigation of this case to COD, Karnataka and P.W. 16-B.S. Jayaraj, Inspector of Police, COD took over further investigation of this case. He made efforts to obtain further opinion of P.Ws. 1 and 2 and on completion of formalities of investigation, laid a charge-sheet against the accused for offences punishable under Section 301 of the IPC and Sections 30 and 25 of the Indian Arms Act.
3-A. The accused entered appearance through his Advocate. Charges were framed against him for the said offences. The accused pleaded not guilty and claimed to be tried. In proof of the charges, the prosecution examined as many as 16 witnesses and got marked 78 documents and 19 M.Os. and closed its case. 16 exhibits were marked on behalf of the defence. The accused was examined as required under Section 313 of the Cr. P.C. with reference to the incriminating evidence occurring against him. He has denied the said incriminating evidence. He filed two lengthy written statements and prayed the Trial Court to treat it as part of his statement under Section 313 of the Cr. P.C. As it was not a case of acquittal under Section 232 of the Cr. P.C., the Trial Judge called upon the accused to enter his defence. The accused had examined one witness on his side by summoning Dr. S.B. Patil, Prof, of Forensic Medicine. The trial of this case appeared to have consumed quite a lot of time of the Trial Court. The Trial Judge who heard the arguments in this case recorded his findings in his 170 page judgment which discloses his tremendous hard work. It was the consistent stand of the defence from the very beginning even at the time of an order under Section 209 of the Cr. P.C. by the committal Court that it was a case of accidental firing and that the accused is not responsible for the death of his brother Chengappa. The lengthy written statement filed before the Court during Section 313 statement apart from explaining the said defence, suggest some enmity and misunderstanding between the brothers. It was canvassed before the Trial Judge that the incident could not have happened in the manner in which the prosecution wanted the Court to believe and in the absence of direct evidence, conviction is not sustainable solely on the evidence of P.Ws. 1 and 2. Rejecting this contention of the defence, the Trial Judge found the accused guilty of the offences punishable under Section 302 of the IPC and Sections 30 and 25 of the Indian Arms Act and sentenced him accordingly. It is the legality and correctness of this judgment of the Trial Court which is assailed in this appeal.
4. We have heard the arguments of Sri Natarajan, learned Advocate from Chenhai Bar and also Sri B.C. Muddappa, learned Additional State Public Prosecutor and we have perused the evidence.
5. Sri Natarajan, learned Counsel for the appellant in his lucid presentation drew our attention to some of the important aspects of the case. Learned Counsel has not disputed the death of Chengappa as a result of gunshot injury. The main thrust of the argument is that in the absence of direct evidence, the prosecution which rests its case on circumstantial evidence in proof of the guilt of the accused, failed to substantiate the same by consistent and cogent evidence. He drew the attention of the Court to the evidence of P.Ws. 1 and 2, the nature of the injuries found on the dead body of the deceased and whether the said injury could be caused while both of them were quarrelling and squabbling or whether the accused brought M.O. 10, a double barrel gun from his bedroom and shot his brother dead and the nature of evidence given by P.W. 2 and D.W. 1. According to the learned Counsel it is not safe to rely on the opinion evidence to draw an inference of the guilt against the accused. Learned Counsel has also relied on the surrounding circumstances to rebut the prosecution theory that it is a case of culpable homicide. He also drew our attention to the over-active role of the Trial Judge who prepared a series of questions and recalled P.W. 1 for the purpose of further cross-examination by the Court specially when the trial was almost concluded. It is his contention that the learned Judge took more active part than the prosecution itself and that the observations made by the Trial Judge which are in the nature of inferences cannot be drawn on the basis of the evidence on record. Therefore, it is his submission that the evidence placed by the prosecution is lacking in consistency and reliability and the appellant is entitled for an order of acquittal.
6. Sri B.C. Muddappa, learned Additional State Public Prosecutor who justified the sustainability of the judgment contended with reference to the dispute between the brothers viz., the accused and the deceased, the delay in lodging the complaint, the conduct of P.W. 7-mother of the accused and the deceased and also the opinion of two experts, P.Ws. 1 and 2 and in his opinion there is no escape for the accused in this case in view of the surrounding circumstances occurring against him and therefore, pleaded for dismissal of the appeal.
7. The two points which arise for our consideration in the light of these contentions are:
(1) Whether the prosecution has failed to prove that the deceased Chengappa died as a result of gunshot injury caused by his brother, the accused on the morning of 11-8-1996 at 8.15 a.m.?
(2) If so, whether the judgment of the Trial Court is perverse and not justifiable in law?
(3) What order?
8. Re: Point No. (1).--In proof of the charges against the accused, the prosecution has relied -upon the direct evidence, the motive, the presence of the accused with the deceased at the time of incident, the opinions furnished by P.W. 1-Dr. Naveen, the post-mortem doctor and P.W. 2-N.G. Prabhakar, the ballistic expert, possession of M.O. 10-dou-ble barrel gun by the accused, the extra judicial confession allegedly made by the accused to his maternal uncle P.W. 9-M.M. Thammaiah, the hand wash of the accused and the statement of the accused himself. Since the dispute whether Chengappa died a homicidal death as a result of gunshot injury on the morning of 11-8-1996 or whether the death was due to accidental gunshot injury is really a clinching issue in this case. To unfold this mystery, the prosecution has relied upon the other circumstances apart from the direct evidence (which evidence is not available to the prosecution at the trial) and various circumstances which we have mentioned above.
9. The relationship of the accused and the deceased is not in dispute. Death of Chengappa on the morning of 11-8-1996 as a result of gunshot injury is also not in dispute. We may at once point out at the inception of the discussion of this case that P.W. 7-Dechamma, mother of the accused and the wife of the deceased are responsible for creating lot of cloud and dust around this case. According to the prosecution, the first information reached the police station at about 2 p.m. P.W. 13-Mar-ishetty who was working as ASI, Sidhapur Police Station, received a telephone message at about 2 p.m. on 11-8-1996 to the effect that a person by name Ponnappa killed his brother Chengappa by gunshot. Since the. caller did not disclose his name, he was unable to register a case. He therefore, contacted C.P.I, of Madikeri, R.S. Shetty, P.W. 14 and informed the same. At 3 p.m. P.W. 7-Dechamma came to him and filed a written complaint, Ex. P. 21. It is on the basis of the said complaint, P.W. 13 registered a criminal case in Crime No. 92 of 1996 and submitted FIR to the jurisdictional Magistrate. The Circle Inspector, P.W. 14 reached Sidhapur Police Station at 3.15 p.m. and he had taken over the further investigation of this case. According to him, he was in charge of the said police station as the regular PSI was under the orders of suspension.
10. Whether the first information of this case reached the Sidhapur Police Station at 2 p.m. or whether the police officers were aware of the incident in question much earlier to that will be considered at a later stage. The written report, Ex. P. 21 made by P.W. 7-Dechamma to the police shows that on 11-8-1996 at about 8.30 a.m. deceased Chengappa came to see his mother, P.W. 7-Dechamma and thereafter went to the office of his brother, the accused to settle the weekly accounts of the workers and came back to the house at about 9 a.m. and that the brothers were talking about the sharing of flower pots, P.W. 7 advised them as to why they were quarrelling for flower pots and asked them to keep quiet and proceeded towards the gate of the house. After reaching the gate, she heard her sons talking in loud voice and therefore, she came near them. Both of them were pulling the double barrel gun from both hands, then a fire went out of the gun hitting the left side chest of the deceased, her eldest son. The accused then kept the gun there. Thereafter, herself and accused with the help of her servant P.W. 6-Lakshman shifted him in the jeep to Ammathi Hospital where he was declared dead. Hence, her complaint does not specifically disclose the offence against the accused. However, the police have chosen to register a criminal case for the offence of murder against the accused, the second son of P.W. 7 and according to the police he was only arrested at about 6 p.m. on that day. The post-mortem doctor P.W. 1-Dr. Naveen conducted postmortem examination on the dead body of Chengappa around 4.30 p.m. The doctor noticed blackening around the tear over the jacket, the shirt and the banian were bloodstained, he was wearing a pant and an underwear, a wrist watch and a metal twist ring. He thereafter noticed an oval shaped wound over the left side of the chest 3" lower to the left areola and 18 c.m. from the middle line of the body. It was mesuring 3" horizontally and 2" vertically. Margins of the wound (hole) were inverted and abrated, blackening was present around the margin of the wound. On opening the thorax wall and rib cartilages, pellets were seen in the right intercostal spaces in 5th to 7th ribs space on the right side of the posterior aspect. Right lung perforated at multiple places more on the base and it was collapsed. Pericardium was intact. Heart was intact and empty. Abdomen walls lacerated on the left side under wound No. 1. Peritoneum lacerated under Wound No. 1 contains 1000 ml. of blood. Stomach and its contents lacerated at multiple places contained partially digested food particles. Small and large intestines lacerated at multiple places contained its contents. Left lobe of the liver was torn. Spleen torn into multiple pieces. The doctor collected pellets from the peritoneum and right pleural cavity. Wad and cardboard pieces were collected from the right pleural cavity. The injury was directed inwards, upwards and backwards. He packed and sealed the pellets, wad and cardboard pieces and also the bloodstained clothes and jerkin. There is no dispute in this case that the injury noticed was a gunshot injury and it was an ante-mortem injury and death was due to haemorrhage and shock as a result of gunshot injury.
11. Requisitions after requisitions were made to this doctor for his opinion as to the nature of injury, the possibility of gunshot by a third party, the age of the injury and also the hole found in the jerkin. The doctor has furnished his opinion in response to the requisition, Ex. P. 4 sent by P.W. 16, the Police Inspector, COD, Bangalore. Whether such a requisition sent by Ex. P. 16 and the clarification issued by P.W. 1 under Ex. P. 5 are hit by Section 162 of the Cr. P.C. is another important matter. We do not propose to enter into that controversy in the absence of any contention by the defence. Suffice it to say at this stage that P.W. 1 is orally thrashed in cross-examination both by the defence Counsel and by the Presiding Officer. After closure of the evidence in this case and after recording the statement of the accused, the Trial Judge entertained certain doubts regarding the nature of the gunshot injuries and whether it was probable that it was not an accidental gunshot. Therefore, the witness was summoned by the Court and he was virtually cross-examined by the Court. We do not find fault with this active role of the Trial Judge as the defence was provided with another opportunity of cross-examining the witness after the Court questions. Therefore, there is no error in law as such in recalling the witness by the Court. The Court has ample power to recall any witness at any stage of the proceeding for the purpose of further cross-examination as provided under Section 311 of the Cr. P.C. Perhaps on the receipt of the opinion of the post-mortem doctor the police must have registered the case against the accused. Otherwise, we find no reason for the police to register the criminal case against the accused under Section 302 of the IPC as the report made by P.W. 7 to the ASI, Sidhapur as per Ex. P. 21 do not disclose the cognizable offence. According to P.W. 7 she was not in a position to state that her second son shot her eldest son dead nor such an inference can be drawn from the perusal of Ex. P. 21. Now the fact that the accused and his mother informed their relatives residing in Virajpet, Mercara and other surrounding villages is also spoken to by the accused himself in his statement. According to the accused, they brought the dead body of the deceased from Ammathi Hospital to their house at 10 a.m.; he thereafter left his place to Mercara to meet his uncle P.W. 9-M.M. Thammaiah. P.W. 9-M.M. Thammaiah married the sister of accused's father. He was a planter. He was also an attestor to the Will prepared by the accused's father. According to the prosecution, the accused confessed before him that he shot his brother dead on the morning, but this witness turned hostile to the prosecution and disowned such a statement attributed to him by the police. Therefore, this circumstance relied upon by the prosecution viz., extrajudicial confession allegedly made by the accused before his uncle, P.W. 9 is not proved by the prosecution and is not available before the Court for its examination. Both of them returned to the house of the accused at about 12 noon. Even though the accused passed through Sidhapur to go to Mercara, he failed to inform the police at Sidhapur, as according to him the regular PSI was under the orders of suspension, but informed the Circle Inspector at Mercara about this fact at about 12 noon or at 12.15 p.m. No such defence is pleaded by the accused at the trial. No suggestion to that effect was made to P.W. 14-S.R.S. Shetty, the Circle Inspector of Mercara. The case of the prosecution that the accused was arrested after 6 p.m. on the said day is not properly explained by the prosecution as the evidence on record shows that he was very much present in his house after 1 p.m. after his return from Mercara to his house in the company of P.W. 9. The Investigation Officer and the Prosecutor appeared to have left many things unanswered and left it to the Court to examine and raise its own legal inferences. In this case the hand wash of the accused collected by P.W. 14 after his arrest at 6 p.m. on the date of incident, the seizure of M.O. 10-double barrel gun mentioned as Article 1 by P.W. 2-ballistic expert, the seizure of the clothes found on the deceased, specially jerkin, M.O. 1, the opinion of P.Ws. 1 and 2 assume all importance for the purpose of holding whether the accused is guilty of the offence of murder of his brother.
12. A word about motive.--P.W. 7-Dechamma, the mother of the accused and the deceased has not whispered any misunderstanding or quarrels between the brothers either due to partition of the properties or sharing of flower pots, except stating that at the time of incident, the brothers were quarrelling. P.W. 9-Thammaiah was examined by the prosecution to prove that the deceased Chengappa opposed creating a Trust as per the wish of his father expressed in the Will and he stopped talking to him, however he has not supported this fact also. P.W. 11-Di-vine alias Muthanna who is the younger brother of P.W. 12-Reshma and the brother-in-law of the deceased has spoken to the strained relationship between the accused and the deceased. That was due to the division of family property. According to him, his sister Reshma, P.W. 12 had been telling him on her visits to them that the accused was holding threat of killing her husband and he advised her to report the same to the police, but the deceased declined to do so. His evidence is assailed in cross-examination on the ground that his entire evidence is incorrect and he was deposing falsely before the Court to support his sister. Suggestions were also made to the effect that he instigated his sister to submit a petition to the Government stating that the local police were not investigating the case properly relating to the murder of his brother-in-law. According to him there was public agitation regarding local police, hence the matter was referred to CBI. Suggestions were also made that they engaged the services of a private legal practitioner to oppose the bail application filed by the accused and that the Court refused to grant bail on that account. We do not find fault with this conduct of P.Ws. 11 and 12. The nature of complaint filed by P.W. 7, the delay in lodging the written complaint, the presence of the Advocate in the house of P.W. 7, delay in arrest of accused must have made P.Ws. 11 and 12 to suspect the I.O. who was in charge of investigation. P.W. 12-Reshma has also corroborated this piece of material regarding the strained relationship between the deceased and the accused. But it is a fact that P.W. 7-Dechamma stayed in her husband's house which was a palatial bungalow with her youngest son, the accused. It is also not disputed that the deceased who shifted to a rented premises at Poilybetta at a distance of about 5 k.ms. from the estate where his ancestral house was situate, used to visit his mother every morning in his Gypsy van and was also going round his estate and that he used to collect milk from the estate. It was his habit to carry the milk can with him. It is also undisputed that after the death of his father, the deceased was looking after the estate and was maintaining the accounts of the estate and after some time the properties were divided in accordance with the Will and when the disputes arose, they entered into mutual agreements and shared the properties, both movables and immovables. Whether the brothers shared the family gun also as per the agreement, is a matter which requires detail consideration. P.W. 7-Dechamma however evaded to speak about this aspect though she has stated that the accused used to sleep in his bedroom in the first floor of the house and that the guns were kept in his bedroom.
13. P.W. 16-B.S. Jayaraj who was working as Police Inspector at that time, took over further investigation in this case on 21-8-1986 as per Memo No. 31/CRM/HND/COD/96. On 24-8-1996 he visited the house of P.W, 7-Dechamma and he summoned P.W. 10-B.K Madappa and C.W. 42-Poovaiah and in their presence searched the room of the accused in the house after taking permission of P.W. 7-Dechamma. The bedroom was in the first floor of the house. On inspection, he found one rifle .22 bore bearing No. 5231-129627 (M.O. 13), a telescopic rifle .30 (M.O. 14), a single barrel gun No. 15, and five chamber revolver (M.O. 16). He also found No. 27.22 ammunition (M.O. 7), four used cartridges of .22 and 16 live cartridges .22 ammunition marked No. 18, 3 DBSL empty cartridges (M.O. 19) and seized them under mahazar, Ex. P. 52, prepared in the bedroom of the accused. P.W. 10 at para 3 of his evidence has spoken to this fact and corroborated the evidence of P.W. 16. The police have also seized some guns from the house of the deceased. Ex. P. 52 was also attested by P.W. 7-Dechamma which fact is also spoken to by P.W. 10. This shows that the brothers had divided their guns prior to the date of incident.
14. The question is whether M.O. 10-double barrel gun fell to the share of the accused which was admittedly seized from the house of the accused. The evidence of P.W. 7-Dechamma shows that the accused and the deceased were found quarrelling, but she has not mentioned that anyone of them was holding the gun, M.O. 10. However, she has further stated that after she heard the sound of the gunshot, the accused and deceased were found lying on the ground and Chengappa had sustained injury and the gun was lying on the ground. It is admitted that M.O. 10 was the gun which was found lying at that place immediately after the incident. There is no specific evidence on record to show that M.O. 10-double barrel gun fell to the share of the accused. Equally there is no evidence to show that it fell to the share of the deceased. P.W. 7-
Dechamma in her evidence and also in her complaint has not stated that the deceased brought the gun with him nor he was holding it when he was quarrelling with his brother, the accused. She has refused to say to whom the said gun belonged. However, according to her, the said gun, M.O. 10 might have been used for causing injury to her son, deceased Chengappa.
14-A. The evidence of P.W. 2-Prabhakar which is based on his findings supports that it is only the accused who fired the gun, M.O. 10. In that event, he must have brought it from his bedroom where he kept his other armaments. The discussion that flows also supports our view that M.O. 10 belonged to the accused. Before we consider the evidence of P.W. 2-Prabhakar to show whether M.O. 10 was the gun used in this case, the other circumstances placed on record viz., collecting of hand wash of the accused and the deceased throws some light on this question. P.W. 14-S.R.S. Shetty, the first I.O. in this case deposed that the accused was produced before him at about 6.05 p.m. He arrested him and recorded his voluntary statement as per Ex. P. 56. After recording the voluntary statement, he collected the hand wash using distilled water and packed and sealed in separate container in the presence of panchas including P.W. 10-Madappa under Mahazar, Ex. P. 51. He also seized M.O. 10-gun on the same day which was kept on the small dining table in the house of P.W. 7-Dechamma. This I.O. conducted inquest over the dead body of Chengappa between 3.30 and 6.30 p.m. on that day. During inquest he collected hand wash and foot wash of the deceased using distilled water in separate containers. It is only thereafter, requisition was sent to P.W. 1 to conduct post-mortem examination on the dead body. The jerkin, M.O. 1, the hand wash of the accused and the deceased and double barrel gun, M.O. 10 were submitted to Forensic Science Laboratory for examination and report which is spoken to by P.W. 16. P.W. 2-Mr. N.G. Prabhakar, ballistic expert who was working as Assistant Director, FSL, Bangalore confirmed receipt of the following sealed articles on 2-9-1996 concerned in Sidhapur Police Station in Crime No. 92 of 1996:
"1. One sealed cloth packet containing one DBBL Gun bearing Sl. No. 12476 marked as Article No. I by the I.O.
2. One sealed cloth packet containing one fired cartridge case of 12 bore Shaktiman Express marked as Article No. II by the I.O.
3. One sealed cloth packet containing one live cartridge of 12 bore Shaktiman Express leaded with No. 1 shot marked as Article No. III by the I.O.
4. One sealed cloth packet containing one jerkin marked as Article No. IV by the I.O.
5. One sealed cloth packet containing one shirt marked as Article No. 5 by the I.O.
6. One sealed cloth packet containing one Banian marked as Article No. 6 by the I. O.
7. One sealed bottle said to contain hand wash marked as Article No. 9 by the I.O.
8. One sealed bottle said to contain hand wash marked as Article No. 10 by the I.O.
9. One sealed packet containing 3 cardboard wads, one plastic wad and 8 lead pellets, marked as Article No. 11 by the I.O.
10. One sealed cloth packet containing one telescopic .22 Calibre Rifle bearing Sl. No. 129627 of Zbrojovka brono marked as Article No. 12 by the I.O.
11. One sealed cloth packet containing one telescopic rifle bearing Sl. No. 2479792 of Remington Arms marked as Article No. 13 by the I.O.
12. One sealed cloth packet containing one SBBL gun bearing Sl. No. 143622 of Winchester Company marked as Article No. 14 by the I.O.
13. One sealed cloth packet containing one Five chambered Revolver marked as Article No. 15 by the I.O.
14. One sealed cloth packet containing twenty-seven. 22 calibre Cartridges marked as Article No. 16 by the I.O.
15. One sealed cloth packet contained twenty-five cartridges and 4 spent cartridges of .22 calibre marked as Article No. 17 by the I.O.
16. One sealed cloth packet containing three 12 bore cartridges marked as Article No. 18 by the I.O.
17. One sealed cloth packet containing one DBBL gun bearing Sl. No. 4465537 made in Italy marked as Article No. 19 by the I.O.
18. One sealed cloth packet containing one DBBL gun bearing Sl. No. 1001442 marked as Article No. 20 by the I.O.
19. One sealed cloth packet containing one .22 Calibre Pistol bearing Sl. No. 118267 marked as Article No. 21 by the I.O.".
After the examination of the said articles, P.W. 2 furnished the following opinion.
"1. Presence of combustion products of smokeless gunpowder residues and lead were detected in the barrel of the DBBL gun in Article No. 1 and the .22 rifle in Article No. 12. Hence, the DBBL gun in Article No. 12, bear signs of discharge. But no opinion is possible regarding actual date and time of firing.
2. Presence of combustion products of smokeless gunpowder residues were detected in the barrel of the rifle in Article No. 13. Hence, the rifle in Article No. 13 bears signs of discharge. But no opinion is possible regarding actual date and time of firing.
3. Presence of gunpowder residues were not detected in the barrels of the DBBL gun in Article No. 14, the revolver in Article No. 15, the DBBL gun in Article Nos. 19, 20 and Pistol in Article No. 21.
4. Five cartridges of 12 bore were successfully test fired through the DBBL gun in Article No. 1. Four from the right barrel and one from the left barrel. Hence, the DBBL gun in Article No. 1 is in working condition.
5. The cocked hammer of the DBBL gun in Article No. 1 did not fall when hard blows were given to the butt and also the safety mechanism is in working condition. Hence, the DBBL gun in Article No. 1 cannot prone to discharge accidentally.
6. I compared the firing pin impression on the cartridge case in Article No. 2 with that of the test cartridge which were fired through the right barrel of the DBBL gun in Article No. 1 under comparison microscope. I found that the individual characteristic marks of fire pin on the cartridges case in Article No. 2 are tallying with that of the test cartridges which were fired from the right barrel of the DBBL gun in Article No. 1. Hence, the cartridge case in Article No. 2 has been fired from the right barrel of the DBBL gun in Article No. 1.
7. Presence of lead was detected around the edges of the holes on the jerkin, shirt and banian in Article Nos. 4, 5 and 6 respectively. Hence, these holes have been caused due to the passage of lead pellets which could have been fired from the DBBL gun in Article No. 1.
8. The fibres around the holes on the jerkin, shirt and banian in Article Nos. 4, 5 and 6 were viewed under stereo microscope, it was noticed that the fibre around the edges of the holes on these garments were not burnt. Hence, there was no scorching around the holes on the garments. The surrounding area of the whole on these garments were viewed under Video Spectrum Comparitor with infrared source and a filter ranging from 500 to 1000 n.m. It was noticed that, there was no deposit of carbon particles around the holes on the garments. Hence, there was no blackening mark around the holes on these garments. Then, I subjected the surrounding area around the holes on the garments for modified Walker's test. I found that, tatooning marks around the holes on the jerkin in Article No. 4 were detected.
9. Presence of tatooning marks were not detected around the holes on the shirt and banian in Article Nos. 5 and 6 respectively.
10. The wad and lead pellets in Article No. 11 are the components of 12 bore cartridges could have been fired from the DBBL gun in Article No. 1.
11. Presence of tatooning marks were detected around the holes on the jerkin in Article No. 4. The approximate range of firing is beyond 3 ft. and, within 5 ft. from the muzzle end of the gun.
12. The origin of the Revolver in Article No. 15 is of Belgium and, it is not in working condition.
13. The Revolver in Article No. 15 can accommodate .455 calibre cartridges.
14. The three cartridges were successfully test fired through the DBBL gun in Article No. 9. Hence, the cartridges in Article No. 18 were live.
15. Six cartridges were successfully test fired (three cartridges in Article Nos. 16 and 17 were used) through the .22 Rifle in Article No. 12. Hence, the cartridges in Article Nos. 16 and 17 were live".
He issued a certificate in this regard as in Ex. P. 7. The hand wash Article Nos. 9 and 10 and control samples were referred to Analytical Chemistry Division, NAA Unit, Baba Atomic Research Centre, Mumbai along with three bottles, the spent cartridge in Article No. 2 was also referred. On receipt of the report from the BARC, Mumbai, he furnished his further opinion as follows:
"1. On the basis of quantum of barium, copper and antimony, it is confirmed that, the gunshot residue were detected in Article No. 9-I.
2. Arsenic was also detected in Article No. 9-I and that of cartridge case in Article No. 2-B".
He has issued certificate, Ex. P. 8. All the articles were received with seals and packed and then sealed. P.W. 2 has referred to Article No. 1 as DBBL gun marked as M.O. 10. He has referred to the hole contained on the left side of the jerkin, M.O. 1 and he conducted a test firing from Article No. 1/DBBL gun on the right side of the jerkin. It is elicted from this witness by the prosecution that GSR referred to by him means gunshot residues. When the weapon is fired along with the projectiles, primer residues, propellent residues, remnants of projectiles will be ejected from the barrel as well as if there is any space or crevices in the breach from that also primer product emerges and, deposits on the hand of the shooter. The composition of GSR in priming mixture consisting of antimony, barium and arsenic. Propellant composition are nitroglycerine, nitrocellulose, centrilite etc. It is observed by him that in the instant case, I.O. has collected only the hand wash in distilled water, it may contain only inorganic elements like barium, antimony, copper and arsenic. According to him, if the I.O. had collected the sample in rectified spirit, organic residues like nitroglycerine, nitrocellulose, centralite etc., could have been detected. According to the literature, the GSR residues will remain up to 17 hours with the normal activities, if the hands are not washed. The neutron activation analysis is a technique in which specimens are bombarded by neutron and the measurement of resultant gamma ray is known as neutron activisation (NAA). In the instant case, lead was not detected since the manufacturer did not use the lead compound in the priming mixture. In the scuffle normally GSR will be more on the hands of the victim when he tries to hold muzzle end compared to the shooter where he holds the trigger. Gunshot residues was not detected on the hands of the victim, on the other hand, it was detected on the hand of the accused. Jerkin which was examined by him was having thick material. It has got 3 layers at the place where the gunshot hole is present. Generally, there will be no wound of exit when a shot was fired from a 12 bore shotgun on the trunk region with small pellet. In the instant case, the pellets recovered are small ones. At the time of test firing in the Laboratory, the DBBL gun in Article No. 1 was not discharged accidentally. If there is any defect in firing mechanism or if there is any fault in the safety mechanism and also with light triggerful in such circumstances, the gun can prone to discharge accidentally. When he examined Article No. 1 it was not defective. He has opined that in gunshot injury always bleeding at the wound of entry is less. If the victim is wearing heavy and number of layers of cloth this clothing material may act as a bandage and it may absorb blood and blood may not fall at the place of shooting. If there is any gunshot hole on the clothing, those clothing material of the victim are referred to the ballistic expert in order to determine the range since before entering into the body, the pellet has to pass through the clothing. If there is any close range phenomenon on the clothing of the victim, as found by the witness, the gunshot range would be 3 to 5 ft. The triggerpull of the right trigger of the DBBL gun in Article No. 1 is about 4 KG. If the triggerfull is heavy, it will not discharge accidentally. The wading material in the 12 bore gun when entered into the body, when a shot is fired within the range of about 10 to 15 ft. As per the post-mortem report, there is an oval shaped wound at the entry point which suggests that, the shot has entered at an angle. The scorching also called charring with a closing phenomenon depending upon the barrel end of the gun and the cartridge. In the instant case, there was no scorching or charring mark around the holes of the jerkin, shirt and banian. P.W. 2 has deposed in his cross-examination that M.0s. 7, 8 and 9 (wad, 3 cardboard pieces and 8 pellets respectively) are components of M.O. 11 empty cartridges fired from M.O. 10. He also agreed to the suggestion that the size of cartridge for M.Os. 10, 20 and 21 which are also double barrel guns is the same i.e., 12 bore cartridges (M.Os. 20 and 21, the two double barrel guns seized on 29-8-1996 from the house of P.W. 12-Smt. Reshma by P.W. 16, the COD Inspector under a mahazar, Ex. P. 38). The witness has denied the suggestion that he had given his opinion in respect of M.Os. 20 and 21 to favour the I.O. He is further of the opinion that there is no evidence of use and discharge from M.Os. 20 and 21. He has also deposed that he has not examined the possibility of M.O. 11 being discharged either from M.O. 20 or 21. This witness has also used M.O. 24 (3 cardboard pieces) which are used as targets out of which used from M.O. 10. He has tested all these cartridges to find out the possible distance from which he conducted the test firings to be the approximate distance of firing. According to him, minimum range is of 3 ft. and not 1 1/2 ft. as suggested. Questions were also directed to this witness whether Article No. 9 contained hand wash of the accused and Article No. 10 of the deceased. However, he has referred to Ex. P. 9, the original report that the hand wash of the accused was marked at Article No. 9-1 and that hand wash of the deceased was marked as Article No. 10-J. The respective control sample and the said sample water have been analysed for barium, copper, antimony by Radio Neutron Activation Analysis (RNAA) and lead by Atomic Absorption Spectrometer (AAS).
15. The witness was directed to demonstrate test firing in the Court hall and at the time of testing in the Court hall after moving the safety catch to the forward direction and on hitting the butt on the hard surface the trigger did not fire. However, a third person was called into the Court hall and asked him to release the safety catch who hit the butt on the floor, but the hammer did not get released and again the butt was hit with force to the floor, then the cocked hammer was released.
The witness has explained this condition of the double barrel gun as it is sufficiently rusted and improper servicing. He has denied the suggestion that his opinion in respect of accidental firing by M.O. 10 is incorrect and the same is given to favour the I.O. It is brought out in re-examination by the Public Prosecutor that if the hard blow is given to the butt end on the floor by hitting on the floor as shown at the time of cross-examination, the firing takes place towards the sky and the injury mentioned in the post-mortem report cannot be caused. It is also elicited in the cross-examination that if the butt hits on the wall forcibly it goes straight i.e., parallel to the ground level. If the butt is hit on the hard surface holding in the angular position, firing may take place in the angular position.
16. To rebut the evidence of P.W. 2-Prabhakar, the ballistic expert, the defence summoned D.W. 1-Dr. S.P. Patil who was working as Professor in Forensic Medicine, Bangalore Medical College, Bangalore. He had vast experience in teaching Forensic Medicine and during his tenure as a Lecturer and Assistant Professor of Forensic Medicine, he conducted number of post-mortems. According to him he conducted about 0 to 80 post-mortems involving gunshot injuries. The Public Prosecutor who cross-examined this witness summoned all the records from the Department of Forensic Medicines to confront him that he had conducted only two such cases in his service. However, D.W. 1 has given certain answers both from his own experience and also from the opinions expressed by various authors from textbooks on Forensic Sciences. This witness is examined particularly for the purpose of pointing out certain mistakes committed by P.W. 1-Dr. Naveen who conducted post-mortem examination. According to him he found fault with P.W. 1 for not taking enough care while packing the bloodstained articles found on the dead body viz., M.Os. 1 to 3, the jerkin, full sleeves shirt and bloodstained banian which were found on the dead body at the time of post-mortem. He also furnished his opinion regarding the range of gunshot which according to him is 1 1/2 foot to 3 ft. and the maximum distance of fire is upto 3 ft. D.W. 1 has relied upon the opinion of various authors in support of his opinion. However, he hastened to add in his cross-examination that in cases of this nature he furnished his opinion only after receipt of ballistic expert's opinion. He has also opined that it is impossible that in the given case the deceased had attempted to hit the other person with the butt portion of the gun holding its barrel and if the other person either got injured with the butt portion or otherwise falls to the ground and struggles with the gun and if the gun in that process had hit the ground with force, that the impact had resulted in accidental firing causing injuries to the victim. Therefore, he ruled out the accidental gunshot injury to the deceased, if the gun had hit the ground with force as tried to be made out by the defence. The detailed discussion of this material arises on account of the controversy whether the accused caused the gunshot injury with the double barrel gun, M.O. 10 or whether the gunshot injury was caused to the deceased accidentally. There is abundant material on record in proof of this fact that it was M.O. 10 which was found at the place of incident and it is nobody's case that some other gun was used in this case. P.Ws. 4 and 7 have in fact spoken to this fact. P.W. 7 in particular has stated that M.O. 10-gun was found lying in-between the deceased and the accused immediately after the incident and that it is she who directed P.W. 6 to keep the gun, M.O. 10 inside the house and that the gun, M.O. 10 was kept on the dining table of the house and the same was seized by the I.O. There is no dispute insofar as this aspect is concerned. D.W. 1-Dr. Patil is examined by the defence only to show that the shot was fired within the range of 1 1/2 to 3 ft. The ballistic expert, P.W. 2 has opined that the gun was fired from the distance of 3 to 5 ft. D.W. 1 has agreed with all his experience behind him that the ballistic expert is a better person to give the opinion in case of this nature. It is rightly pointed out by D.W. 1 in his evidence that P.W. 1-Dr. Naveen has not taken care to keep the bloodstained clothes and packed them properly. He has also found fault with the I.O. who preserved the hand wash of the accused and the deceased by only collecting them in the distilled water. P.W. 1-Dr. Naveen was not an expert on Forensic Medicine when he compared his knowledge of Forensic Medicine to that of D.W. 1 who was working at that time as Professor in that field in the Medical College. P.W. 2 in this case has ruled out the possibility of washing M.Os. 1 to 3 by the I.O. as M.Os. 1 to 3 which were packed and sealed. They were found in perfect condition and there was no traces of tampering the seals. Therefore, P.W. 2 has ruled out the washing of clothes, M.Os. 1 to 3. The chemical examiner found gun deposits around the hole in jerkin and moderate blood on M.Os. 2 and 3.
D.W. 1 has opined that if the gun was fired from the distance of, say 5 ft., it would have resulted in subsidiary injury apart from main injury and also bleeding which is not the case on hand. The whole exercise of the prosecution and defence is to find out whether death occurred as a result of accidental firing. P.W. 2 has ruled out accidental firing after examining the condition of M.O. 10. He had conducted test firing not only to fix up the range of firing but also the nature of the injuries, specially in the background where the body of the deceased was covered with a banian, a shirt and jerkin M.Os. 3, 2 and 1 respectively. P.Ws. 1 and 2 have noticed tattoing marks on M.O. 1-jerkin which could have been caused according to D.W. 1 if the gun is fired from the distance of 3 ft.. The evidence of P.W. 7-Dechamma has some bearing on this question. According to her, the brothers came in front of the house from the office exchanging certain words. Both of them were alarmed at that time and thereafter she went towards the gate of the house. The exact distance from the place of incident to the gate is not stated by any of the witnesses. However, when they started quarrelling in loud voice, she started proceeding towards them. Then she heard the gun sound and when she came near the place, both of them were found lying on the ground and the deceased sustained a gunshot injury. M.O. 10 was lying by their side. Both P.W. 2-Prabhakar and D.W. 1 have ruled out the possibility of accidental firing from the circumstances explained. Both of them specifically stated that if the gun is hit on the ground, the shot would have gone towards the sky so also if it is hit on the wall it would have gone straight parallelly. It is opined having regard to the oval shape injury found on the dead body, the gun was hit from an angle. The possibility of hitting when the deceased virtually fell on the ground and while rising from the ground or when person holding the gun is standing in an elevated place. The opinions expressed by various authors on this question, in our opinion, do not fit in to all the circumstances, as each case has to be judged on its own merits having regard to the evidence placed before the Court.
17. As rightly contended by the learned Counsel for the appellant the opinion of ballistic expert is not conclusive and the Court has to form its own opinion having regard to the circumstances on record.
18. P.W. 2-Prabhakar has opined that if the deceased was holding the butt end of the gun as suggested, and if the gun had accidentally fired, it would have resulted in gunshot residues in his hand. However, the hand wash of the deceased containing Article No. 10-J did not disclose any such gunshot residues which consist of barium, copper and antimony. However, the hand wash of the accused which was collected by the I.O. in Article No. 9-I contained this substance which confirms the opinion of P.W. 2 that it is the accused who fired the gun, M.O. 10 and it was not an accidental fire.
18-A. It is strenuously contended by the learned Counsel for the defence that the Court cannot base its conclusion on the opinion evidence of P.Ws. 1 and 2 alone and the Court has to form its opinion after scrutinising the entire evidence on record. We may hasten to add that we have considered the evidence of P.Ws. 1 and 2 and also D.W. 1 with reference to the other independent evidence placed by the prosecution in proof of the charge against the accused. We have ruled out the possibility of an accidental firing in this case resulting in the death of Chengappa having regard to the proximity of the accused and the deceased and the situation in which they were quarreling and the possibility that the accused brought M.O. 10, the double barrel gun from his bed room when his mother was walking towards the gate of the house and fired at the deceased. This is the only reasonable inference that the Court can draw as we find enough material in proof of the fact that it was the accused who triggered the shot as disclosed from, his hand wash where the gunshot residues were found in his hand.
19. Learned Counsel has invited our attention to the evidence of P.W. 9-K.M. Thammaiah. It is also the case of the prosecution that the accused visited the house of P.W. 9 at Mercara after the incident around 10 or 10.30 a.m. However, it is stated by him in cross-examination that the accused washed his hands in his house. No such statement is made by this witness before the I.O. and it is for the first time after so many years this witness has come out with a new version that the accused had washed his hands in his house. Obviously this answer is elicited through P.W. 9 in his cross-examination to throw some doubt on the opinion expressed by P.W. 2, the ballistic expert. We also doubt the conduct of the I.O. in this case who arrested the accused at 6.05 p.m. on the date of accident as the case papers do not disclose that the accused was absconding till 6 p.m. When the case was registered against the accused under Section 302 of the IPC, there was no reason as to why the I.O. had not arrested the accused as he was readily available at the spot. It is true that things would have been easier for the I.O. if the mother of the accused, P.W. 7-Dechamma had come out with true facts. The statement of the accused made under Section 313 of the Cr. P.C. and the other evidence has some bearing on the fact that the Circle Inspector of Police, Mercara, with his staff was present at the place of incident at about 12 noon. His presence is suppressed by the witnesses and the I.O. himself, initially by showing that they received FIR at 3 p.m. The hand of He-machandra, a relative and Advocate who was present throughout in the house of P.W. 7-Dechamma soon after the incident till the police people came there, has something to do with the delayed information to the police and the nature of information given to them. Unfortunately, in this case P.W. 12-Reshma, wife of the deceased who was a hapless lady, was virtually in the hands of her mother-in-law and she obliged her, mostly as stated subsequently by P.W. 12 in her later part of her evidence that she was coerced by her mother-in-law to toe the way of her mother-in-law in order to get the property and cash. The further investigation made by the COD made no headway except to get some more information and opinion from P.Ws. 1 and 2.
20. The evidence discussed by us above proved a few factors viz., that the presence of the accused and the deceased at the place of incident is established. Both of them (the brothers) were found quarrelling at the time of incident, is also admitted and proved. M.O. 10-gun was the gun involved in the incident is not seriously disputed before us. The death of Chengappa as a result of gunshot injury is also not disputed. The hand wash of the accused which contained gun residues, the nature of injury to the deceased, the angle of the shot, the nature of bloodstains and the hole found on M.Os. 1 to 3, the distance from which the gunshot was made, conclusively prove the conduct of the accused who must have brought the gun from his bedroom and fired at the deceased. P.W. 12 has specifically stated that her husband had not taken the gun with him on that day nor P.W. 7 had affirmatively stated that the deceased was holding the gun or brought it with him. All these circumstances point out towards the guilt of the accused and there is no other hypothesis other than the guilt of the accused.
21. We are aware of the law regarding circumstantial evidence. In cases where the evidence is of a substantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
22. We found from our discussion that there was no cordiality between the accused and the deceased though P.W. 7 has attempted to suppress this material which lends credence from the evidence of P.W. 12-Reshma and her brother Divine Chinnappa that the accused and the deceased were not in cordial terms, sharing of flower pots and that M.O. 10, the double barrel gun was in the house of the accused and there was division of movables including the gun between the brothers and that the gunshot injury resulting in the death of Chengappa, the delayed information to the police, the meeting of minds of P.W. 7, Advocate Hemachandra and the accused before the information was given to the police, the presence of police around 12 noon resulting in suppression of true facts to some extent, the hand wash of the accused disclosing gun residues in his hands and the gunshot injury from the distance of about 3 ft. and ruling out of an accidental firing as opined by P.W. 2 which evidence conclusively prove the guilt of the accused. We rule out any other hypothesis except the one proposed to be proved by the prosecution. This is a case where the accidental firing is totally ruled out by P.W. 2. The evidence of D.W. 1-Dr. Patil is not helpful to rebut this opinion of P.W. 2 as he has also ruled out any such accidental firing. The hand wash of the deceased where no gun residue was detected by P.W. 2 is also a factor which goes against the accused. Therefore, we affirmatively hold that the death of Chengappa was homicidal and that it was caused by the accused and the accused alone and no other alternative cause as suggested by the defence is acceptable to us. Therefore, we hold the accused appellant guilty of murder of his brother Chengappa. The statement made by the accused under Section 313 of the Cr. P.C. by filing two written statements suggest his presence, the quarrel between him and his brother. We can conveniently make use of this statement of the accused to that extent as prosecution has also proved that fact.
23. The accused is also charged for the offence punishable under the provisions of Sections 3 and 7 read with Sections 30 and 25 of the Indian Arms Act. We have already held that the accused has used M.O. 10-dou-ble barrel gun for committing the offence of murder. This act of the accused is in violation of exemption granted to him by the Authority under the said Act. The recovery of belzium revolver from the possession of the accused is in proof of contravention of mandatory provision of the Indian Arms Act. Hence, the prosecution has proved the offences under Sections 3 and 7 read with Section 30 of the Indian Arms Art and Section 25 of the said Act. In fact, the learned Counsel for the appellant has not offered any argument insofar as these offences committed by the accused. The prosecution has relied on the evidence of P.W. 15-S.N. Gangadaraiah in proof of the grant of exemption. The prosecution has successfully proved the guilt of the accused under Sections 3 and 7 read with Sections 30 and 25 of the Indian Arms Act. We find no infirmity in this finding.
24. We have perused the judgment of the Trial Court. The learned Trial Judge has actively participated in the trial. We do approve of such an active participation of a Judge at the trial but not an over-active Judge. We deprecate such a role of the Trial Judge. We do not approve of the role of a Trial Judge as a passive spectator at the trial. But he shall intervene wherever it is necessary. He must not step into the shoes of Public Prosecutor and takes up his cause where the Public Prosecutor left. Sometimes over-zealousness of the Presiding Officer results in creating bias. It may sometimes affect an unbiased judicial mind. It is in this background that we caution the Trial Courts to be active at the trial but not to exhibit their over-zealousness by stepping into the shoes of the prosecutor or the defence under the guise of detecting the truth.
25. However, the Trial Judge has made a thorough discussion of the entire material on record including the expert's evidence, P.W. 2. We do not find any error in appreciation of the evidence. The conclusions reached by the Trial Judge are quite reasonable and justifiable too. It cannot be stated that the judgment is perverse and suffers from any legal flaw. The judgment in our opinion is perfectly justifiable and does not call for interference in this appeal. We do not find any merit in the appeal. Therefore, this appeal stands dismissed.