Karnataka High Court
Odiyanda Pattu @ Erappa vs The State Of Karnataka on 31 January, 2015
Bench: Mohan M. Shantanagoudar, P.S.Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 31st day of January, 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
Criminal Appeal No.1241/2011
BETWEEN:
ODIYANDA PATTU @ ERAPPA
S/O LATE RAMAPPA
AGED ABOUT 39 YEARS
AGRICULTURIST
R/AT SURLABBI VILLAGE
SOMWARPET TALUK ... APPELLANT
(By Sri K.A. CHANDRASHEKAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
VIRAJPET RURAL POLICE
KODAGU DISTRICT ... RESPONDENT
(By Sri B.T. VENKATESH, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C. BY
THE ADV., FOR THE APPELLANT/ACCUSED NO.1 PRAYING TO
SET ASIDE THE ORDER DATED 31.03.2008/01.04.2008
PASSED BY THE AD-HOC DIST., & S.J. FTC., VIRAJPET IN
S.C.NO.27/2006-CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 OF IPC AND SEC. 25 OF
INDIAN ARMS ACT AND ETC.
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THIS APPEAL HAVING BEEN HEARD, RESERVED AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, P.S. DINESH KUMAR, J., DELIVERED THE FOLLOWING:-
JUDGMENT
This is a case of cold blooded murder committed with clinical precision by a single gunshot killing the victim instantly.
2. The accused No.1 has filed this appeal challenging the Judgment and sentence dated 31.3.2008 in S.C.No.27/2006 on the file of the Adhoc District & Sessions Judge, Fast Track Court, Virajpet.
3. By the said Judgment, the Court below has sentenced accused No.1 to undergo imprisonment for life and pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for two years for an offence under Section 302 of IPC; and to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- and in default of payment of fine; and to undergo rigorous imprisonment for a period of one year for contravention of Section 25 of the Indian Arms Act, 1959.
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4. We have heard Sri K.A. Chandrashekar, learned Counsel for the appellant and Sri B.T. Venkatesh, learned Addl. SPP for the Respondent/State and perused the records.
5. Learned Counsel for the appellant assailing the correctness of the Judgment of the trial Court has contended that the said Judgment is unsustainable in as much as it suffers from serious legal infirmities. He has mainly urged the following grounds in support of appeal:
(a) PW.1 has deposed in his evidence that the complaint-Ex.P1 was 'written' by PSI., - PW19 and on the other hand, PW.19 has stated that he has received the complaint thereby meaning that it was a written complaint and that this contradiction in statements is a serious lacuna in law;
(b) "PW.1 in his evidence has stated that the accused No.1 came at 10 a.m. near the house of the victim". The learned Counsel for the appellant has developed an argument on this statement that this sentence would mean that the PW.1 had 4 seen the accused No.1 earlier than the actual incidence and therefore, the testimony of PW.1 is not reliable.
(c) Accused No.2 is acquitted on the same set of facts. Therefore, accused No.1 ought to have been given the benefit of 'doctrine of parity' and acquitted.
(d) The incident has taken place in the
night and there was no sufficient
light/illumination to identify the
accused. Therefore, the testimony of eye witnesses cannot be relied upon.
(e) The trial Court had not framed any charge under Section 25 of the Indian Arms Act but yet held in paragraph-42 of the Judgment that not framing charge under the Indian Arms Act has not lead to failure of justice.
6. The learned Counsel has amplified the above grounds in detail and taken us through the Judgment of the trial Court, depositions and submitted that in view of the grounds urged by him, the order of conviction against 5 accused No.1 is not sustainable in law, liable to be set aside and accused No.1 is entitled for an acquittal.
7. Per contra, Sri B.T. Venkatesh, learned Counsel appearing for the respondent/State while supporting the judgment of the trial Court submits that there is no scope for interference by this Court in this appeal in as much as the instant case hinges upon the eyewitness of mother, brother and a relative, who have narrated the incident in unison in their deposition and stood the cross-examination very firmly and prays for dismissal of the appeal.
8. It is the case of the prosecution that, on 8.4.2005 between 10 and 10.30 p.m., the accused Nos.1 and 2 in furtherance of their common intention travelled to Kadanoor Village and committed the offence of murder of deceased - Leelavathi, wife of the accused No.1 while the deceased Leelavathi and other family members were sitting in the hall watching TV; the accused shot the victim using a gun and the victim died instantly. PW.1 - brother of the deceased informed the police over phone about the incident. The ASI., PW.19 and his staff came to the spot and received 6 a written complaint from PW.1, which was registered in Crime No.41/2005 in Virajpet Rural Police Station at about 12.30 a.m. and the same was received by the Magistrate at 2.30 a.m. on 9.4.2005 through PC No.250. On 9.4.2005, inquest was conducted by the Taluka Executive Magistrate as per Ex.P5 and the dead body was subjected to post mortem. The clothes on the dead body were seized under Ex.P21; The IO recorded the statement of witnesses - PW.4
- the mother of the deceased - Nanjavva and PW.6 - Ravi @ Ponnappa. After completing investigation, a charge sheet was laid against the accused.
9. After arresting the accused, their voluntary statements were recorded; the material objects were seized and sent to FSL for chemical examination and ballistic expert's report.
10. To prove its case, the prosecution has examined in all 28 witnesses and got marked 33 exhibits and 12 material objects. The defence has not examined any witness but produced exhibit D1 - the statement of PW.6 in its support.
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11. We have gone through the Judgment, depositions and the material on record.
12. PW.1 - Charamana, is the brother of the deceased and an eyewitness. He has stated in his deposition that after dinner on the fateful day, he was sitting with his deceased sister, mother and a relative - Ponnappa and watching TV. At around 10 p.m. the accused No.1 came near the house and shot at the deceased through the window from outside and the deceased sustained a bullet injury in the middle of her chest; the accused No.1 ran away from the scene of offence with his gun; accused No.1 had come along with accused No.2 on a motor cycle; accused No.2 was with his motor cycle; after the incident, both accused left the place on the motor cycle. In the cross-examination, he has affirmed that immediately after the gunshot, he turned towards the window and saw the accused in the light emanating from an electric bulb and a torch, which he had kept by the side of the cot.
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13. PW.2 - K.M.Poovaiah, is a neighbour and a panch witness to Ex.P3, whereunder the gun was seized on 3.1.2006 and Ex.P4, whereunder the motor cycle was seized from the house of accused No.2. He has identified his signature at Ex.P3(a) and testified that MOs.5 to 8 are the same which were seized under Ex.P3. It is further stated by him that on 17.1.2006, a motor cycle was seized under mahazar-Ex.P4 and he has identified the signature at Ex.P4(a). Nothing contrary to the said statements is elicited in the cross-examination.
14. PW.3 - Achapanda Ganapathy, is a panch witness to Inquest Mahazar-Ex.P5. PW.4 - Nanjavva, is the mother of the deceased and an eye witness. Her evidence is similar to that of PW.1 and she has stated that the accused No.1 was ill treating her deceased daughter - Leelavathi; that on the fateful day while she was preparing to retire for the day and moved towards the bedroom, she heard a gunshot and cry of her daughter deceased Leelavathi. When she rushed back to the hall, she saw that her deceased daughter was hit by a bullet; she saw through the window 9 that the accused No.1 was running with a gun. In the cross-examination, she has denied that there is only 2½ feet space on the western side of the house and stated that there is an open area of 4 feet. She has further volunteered to state that there is about 8 to 10 feet elevated portion extending north to south and they go to the coffee estate/land from the western side using stairs/stone masoned steps. She has further deposed that towards the left side of the western side window, there was a bulb of 60 watt/candle fixed at a height of about 6 to 7 feet. She has categorically stated that the bulb was burning at the time of incident. She has reiterated in the cross-examination that she saw the accused wearing a black coloured shirt and holding a gun in his hand and escaping. She has further stated in the cross examination that her son - Charamana saw the accused with the help of a torch.
15. PW.5 - Shanthi, is the sister of the deceased. She has stated that she learnt about the incident on phone from her brother and thereafter reached the Virajpet. 10
16. PW.6 - Ravi Ponnappa, is another eyewitness and a relative of the family. He has stated in his examination-in-chief that when he turned his face towards the window, he saw accused No.1 with the gun; PW.1 informed the police on phone and police visited the place of occurrence; the gun was recovered from the house of the sister of the accused No.1. The police seized dismantled gun and 3 cartridges - MO.8 as per Ex.P3. He has identified his signature on the said exhibit. In the cross-examination, he has categorically stated that on the date of the incident, a 60 candle bulb was burning at the backyard; the accused No.1 ran away from the southern side; windows are fixed at about 3 feet height and measure about 5 x 4 feet and that he has seen the accused within a distance of about 4 - 5 feet through the window.
17. PW.7 - Kanathanda Subash & PW.10 - Appanda Appaiah, are hostile witness before whom the accused is stated to have made some extra judicial confession. PW.8- B.K.Kanti, is the Panchayath Secretary, who has issued a Residential Certificate. PW.9 - K.T. Thammaiah, is the 11 photographer, who has taken the photographs of the dead body and the place of incident. PW.11 - N.G. Prabhakar is a ballistic expert, who has given a report as per Ex.P10. He has stated in his evidence that he has undergone training in forensic Ballistic at National Institute of Criminology and forensic Science in New Delhi; he has examined the gun sent to him and identified his signature at Ex.P10(a). He has opined as per Ex.P10 that the firearm parts were manufactured legally; components in articles 1 to 4 constitute a complete 12 - bore shot gun; the lead pellets and wad pieces are the components of 12 bore cartridges; the holes marked as '7H' on the nighty in Article No.7 have been caused due to the passage of lead pellets and the approximate range of firing is between 15 to 20 feet from the muzzle end of the gun. In Ex.P11, he has stated that the hole marked on the nighty (Article No.7) corresponds to the wound mentioned in the post mortem report. Nothing is elicited in the cross examination, which may adverse the case of the prosecution. Thus, the opinion of the ballistic expert conclusively establishes the victim was killed by the 12 bore shotgun. MO.8 is the dismantled 12 bore shot gun 12 seized under panchanama-Ex.P3. PW.2 has testified the seizure in his deposition.
18. PW.12 - Dr. T.D. Govindaraju, is the Doctor, who has conducted the post mortem as per Ex.P12. He has stated that there was a penetrating wound on the right side of the chest; Wads and Chills collected from right thorax were 55 in number. He has opined that the death of the deceased has occurred due to shock and hemorrhage as a result of gunshot. In the cross-examination, he has denied a suggestion that the wound noticed on Ex.P13 is possible if a person shot himself.
19. PW.13 - K.P. Somaiah, is the Taluka Executive Magistrate, who has conducted the Inquest Mahazar-Ex.P5. He has identified his signature at Ex.P5(b). He has stated that he recorded the statements of Nanjavva
- mother of deceased and others. Perusal of statement of Nanjavva in Ex.P5 is corroborates her evidence that at about 10.30 p.m. on 8.4.2005, a gunshot from the open window hit Leelavathi, who died instantly. The statement further discloses that when her son Charamana focused a 13 torch towards the window, accused No.1 ran away with a gun.
20. PW.14 - Yogachar is the RTO., who has stated that the motor cycle bears registration of Haryana State and he cannot identify the District in which the said number is registered.
21. PW.15 - B. Nanjundappa is the Deputy Director of Regional FSL, Mysore and has deposed that the blood stains on testing showed that the blood belongs to 'O' group.
22. PWs.16 & 17 - Naganda Mani & Pasura Uthappa, respectively are the hostile witnesses. PW.18-A.V. Kiran is the Police Constable who handed over the body to the relatives. PW.19 - M.K. Sadashiva is the ASI., who received the telephone call from PW.1 and also received the complaint - Ex.P1. PW.20 - D.N. Puttuswamy, is the Assistant Sub Inspector, Somwarpet, who received the complaint from Virajpet. PW.21 - C.N. Diwakara is the Police Inspector, who recovered the motor cycle-MO.9 from 14 A2. PW.22 - M. Ankaiah, is an Assistant Engineer working with the Electricity Supply Company and stated that on verification he has found that there was no electricity supply to Kadanoor village only between 11 to 11.10 p.m. on 8.4.2007.
23. PW.23 - Billavara Poovappa is a hostile panch witness to Ex.P21. PW.24 - N. Shabareesha, is a panch witness to the seizure mahazar-Ex.P26, whereunder, pellets and wads were seized. PW.25 - K.A. Naveen is a hostile panch witness to Ex.P26. PW.26 - S.D. Cheluvaraju is the photographer. PW.27 - Umesh.G is the Police Inspector, who conducted the spot inspection and handed over the case to PW.28 - G.S. Gajendra Prasad, who has filed the charge sheet.
24. PW.28 has deposed that on 29.12.2005, he applied for a body warrant of accused No.1 before the JMFC., Virajpet and retained the accused No.1 in police custody from 2.1.2006 to 4.1.2006; he recorded the voluntary statement of accused No.1 and went to village Amathi and recovered MOs.3, 5 to 8 as per Ex.P3 from the 15 house of Minnamma near the cattle shed. He has identified the signature at Ex.P3(c); further he has reiterated the details of investigation conducted by him. Nothing is elicited in the cross examination, which may adversely affect the case of the prosecution.
25. The case on hand rests mainly on the versions of eye witnesses viz., PWs.1, 4 and 6. All three witnesses have consistently deposed that the accused No.1 shot the deceased from an open window, which is on the western side of the hall in which the deceased was sitting and watching TV; there was a 60 watt bulb at a height of about 6 to 8 feet; that there is a backyard space about 4 feet between the western side of the wall and the elevated coffee yard which can be approached by steps. PW.1 & PW.4 are consistent in their testimonies that the deceased was married to accused No.1 and that he was ill treating her. PW.6 has given a detailed narration of the entire incident and all the witnesses have firmly withstood the test of cross examination.
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26. The incident has occurred at 10.30 p.m. and the FIR is drawn at 12.20 a.m. and reached the Magistrate by 2.30 a.m. i.e., within 4 hours from the time of offence.
27. The motive for the crime is the differences between the couple i.e. the accused No.1 and the deceased.
28. On careful perusal of the material on record, in our considered opinion, the trial Court has rightly held that the case of the prosecution is proved beyond reasonable doubt as against accused No.1.
29. Now, adverting to the first ground urged by the learned Counsel for the appellant with regard to the discrepancy in the evidence of PW.1 that PSI., has written the complaint-Ex.P1 and the statement of PW.19 stating that he has received the complaint, we have carefully gone through both the depositions of PWs.1 and 19. The PW.1 has stated that the contents of Ex.P1 were written by the PSI. PW.19 has stated that he received the complaint from PW.1 at 11.15 p.m. Therefore, the only inference that can be drawn by a harmonious reading of both the statements 17 is that a complaint of PW.1 was received by PW.19. Hence, the hair splitting argument of the appellant does not affect the case of the prosecution in any manner and it is noted only to be rejected.
30. The second ground that the PW.1 has seen the accused No.1 prior to the incident is equally fallacious. The portion of statement of PW.1 in examination-in-chief, in respect of which, the appellant seeks to draw support is reproduced verbatim hereunder:
............ "When we were sitting in the hall at about 10 p.m. accused No.1 came near our house, shot with gun against my sister - Leelavathi............"
31. The above sentence in our opinion is very natural and conveys that the witness has described the offence committed by the accused No.1 in his own way. At any stretch of imagination, the said sentence does not mean that PW.1 had seen the accused prior to the gunshot somewhere outside the house.
32. The third ground that the accused No.1 is entitled for acquittal as the accused No.2 has been 18 acquitted on the same set of facts, is wholly untenable because the material on record unequivocally discloses that it was the accused No.1 who fired the gunshot at the deceased. A careful scanning of the entire depositions makes it clear that, the entire case of the prosecution is concentrated only against the accused No.1. No witness has spoken about the commission of offence by the accused No.2. Except the recovery of the motor cycle, no act related to the crime is forthcoming as against the accused No.2. In the circumstances, it can also be presumed that the accused No.2 may not have even known the reason for which the accused No.1 was going to the house of the deceased. Admittedly, the deceased is the wife of the accused and it is very natural for a husband to visit the place of his wife. Insofar as the gun is concerned, it is also natural for the people residing in Coorg area to have firearms. In the circumstances, we hold that the benefit of 'Doctrine of Parity' is not available to the accused No.1 in this case.
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33. The fourth ground urged by the appellant is that there was not enough illumination to identify the accused No.1. The versions of eye witnesses PWs.1, 3 and 6 are consistent that there was sufficient light in the backyard on the western side of the building with a bulb of 60 watt was burning at the time of the incident. Further, the accused No.1 is not a stranger. The PW.4 is the mother-in-law and PW.1 is the brother-in-law of the accused. PW.6 is also a relative of the family. Therefore, all these witnesses will be familiar with the demeanor of the accused. Nothing is elicited by the defence in the cross examination which may even remotely compel us to doubt the testimony of these witnesses. Hence, this ground of the appellant also fails.
34. The last ground is that no charge is framed under Section 25 of the Indian Arms Act and therefore the Judgment of the trial Court is liable to be interfered with. The learned trial Judge has considered this issue in para- 42 of the Judgment and held that in the circumstances of the case, not framing of charge under Section 25 of the Indian Arms Act does not result in failure of justice. We 20 disagree with this finding and hold that an accused is required to be put on notice and given an opportunity to defend himself. Consequently, the conviction and sentence recorded under Section 25 of the Indian Arms Act, is unsustainable in view of said technical reason.
35. In our considered view, the ocular testimony of PWs.1, 4 and 6 are consistent, cogent and reliable. We do not find any ground to doubt the veracity of these witnesses. The presence of these witnesses on the scene of offence is natural and probable. Hence the trial Court is justified in believing the ocular testimony of these witnesses. The motive for offence is animosity between accused No.1 and the deceased. The deceased had also filed a complaint against the accused on 30.10.2004 for offences punishable under Sections 323, 324 and 506(2) of IPC as per Ex.P32. The ill treatment meted out by the accused No.1 is spoken to by PWs.4 & 5.
36. A careful analysis of the depositions of all the witnesses proves the case of the prosecution beyond reasonable doubt that the accused No.1 has committed the 21 offence of shooting and killing the deceased. The prosecution has miserably failed in bringing home the guilt of the accused No.2.
37. On re-appreciation of the evidence and the entire material on record, we agree with the finding recorded by the trial Court with regard to the offence punishable under Sections 302 of IPC and hold that the prosecution has proved the case beyond reasonable doubt as against accused No.1. The reasons assigned and conclusions arrived at by the trial Court are just and proper. Hence, the appeal is liable to be dismissed.
38. According, we proceed to pass the following order:-
ORDER
(i) The judgment and order of conviction and sentence under Section 25 of the Indian Arms Act passed by the trial Court, is set aside;
(ii) The judgment and order of conviction, convicting and sentencing the accused 22 No.1 for the offence under Section 302 of IPC, is confirmed.
The appeal to that extent stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE cp*