Vs. The State of Karnataka  INSC 193 (31 March 1998)
Mukherjee, Syed Shah Mohammed Quadri Quadri, J.
sole appellant, Atmendra, and his father Ganapati, were tried in Sessions Case
No. 5 of 1987 for offences punishable under Section 302 read with sections 34,
114 IPC and Section 27 of the Indian Arms Act by learned Sessions Judge, Karwar
and were acquitted by judgment dated 3.9.1987.
State of Karnataka filed Criminal Appeal No. 17 of
1988 against the said judgment. During the pendency of the appeal Ganapati died
on 8.1.82. On April 23, 1992, a Division Bench of the Karnataka High Court set
aside the judgment of the Trial Court and convicted Atmendra under Section 302
and sentenced him to suffer imprisonment for life and under Section 27 of the
Indian Arms Act and awarded punishment of undergoing rigorous imprisonment for
one year and to pay a fine of Rs. 200/- and in default to suffer further
rigorous imprisonment for two months; substantive sentences were directed to
run concurrently. Against that judgment of the High court Atmendra is in appeal
before this court.
case presents a glaring example of how a man getting enraged by trivial things
has committed the most heinous crime of murder of the nearest relative. Here
plucking coconuts from disputed tree ended up in the death of rival claimant Ashok
Hedge, who was no other than the uncle of the appellant and the real brother of
Ganapati, a practising advocate. The brothers were living in adjacent houses.
But the relations between them were far from cordial and had reached such a
stage that a criminal case was filed against Rajendra, the eldest son of Ganapati.
At the backyard of their houses on the western side, there is a disputed
coconut tree till their claim of ownership was settled, however, each was
permitted to take away the coconuts falling on the side of the backyard of his
fateful day of October
30, 1986 at about
11.00 Ashok, his wife Vijayalakshmi PW-1 and servants Parameshwar and Ramdas,
PWs-2 and 3 respectively were in his house. They noticed that one Vittal Bhandari
(CW-7) was plucking the coconuts in clusters and throwing them down, while the
appellant and his father were standing on "chadi" (the raised
platform) behind their house watching the coconuts.
his wife and servants came on to the chadi of their house on hearing the noise
of falling of the coconuts and questioned Bhandari as to why he was plucking
course of exchange of words Ganapati instigated the appellant to finish Ashok
stating that he had become arrogant and then there followed a shot from the
gun, which resulted in instantaneous death of Ashok, the deceased, The
appellant and Ganapati were charged and tried for the offences stated above.
The defence of the appellant was that the deceased swung the reeper at the
appellant and as he was turning to avoid the blow the gun also turned in the
same direction on account of which the reeper touched the hammer of the gun
which went off and hit the deceased.
be seen the controversy fell in a short compass, namely, as to whether the
appellant shot at the deceased and thus killed him or whether the gun got fired
due to the strike of the reeper swung by the deceased.
prosecution examined as many as 20 witnesses (PWs 1 to PWs 20); and marked
exhibits P1 to P33; the defence examined DWs 1 to 3 and marked as Ex.D1 to D15.
M.Os.1 to 17 are material objects marked in the evidence. PWs-1 to 3 are
eye-witnesses. PW-1 is the wife of the deceased; PWs-2 and 3 are the servants
of the deceased. On the basis of the evidence on record, the Trial Court found
that motive was established; though it did not believe the plea of self- defence
which was also set up by the accused, however, it held that on the facts
accidental firing of gun could not be ruled out and consequently acquitted the
accused. On appeal by the State, the High Court confirmed the finding of the
Trial Court with regard to motive; it concluded that Bhandari (CW-7) was
plucking the coconuts from the disputed tree at the behest of the appellant and
his father; it accepted the evidence of eye-witnesses (PWs-1 to 3) and held
that the gunshot was not the result of striking of the reeper swung by the
deceased but that the appellant fired at the deceased to commit his murder and
thus convicted him and awarded sentence noted above.
the learned senior counsel, appearing for the appellant, contended that the
appellant did not shoot at the deceased but it was an accidental fire due top
the deceased throwing the reeper which struck the gun and that then the Trial
Court had accepted the defence and acquitted the appellant, the High Court
ought not to have upset the acquittal. Among the eye-witnesses, PW-1 is the
wife of the deceased and her presence on the scene of the occurrence is but
natural. She stated that Bhandari was plucking the coconuts from the tree
situated behind their house and the appellant and his father were standing on
the chadi of their house at that time. The deceased asked Bhandari not to pluck
the coconuts as there was dispute with regard to the coconut tree. Then, Ganapati
remarked he had become very arrogant, finish him. Thereafter the appellant
fired a bullet with the gun at her husband who fell down saying "Ayyo - 1 am dead".
started shouting and immediately PW-4 and others came there. PW-2 (P. Gouda)
who was working with the deceased for more than 6/7 years corroborated the
evidence of PW-11; so also another servant PW-3 (Ramdas Gouda). A perusal of
the judgment of the Trial Court shows that their evidence was not disbelieved
except to the extent of growth of shrubs around the disputed coconut tree.
Indeed, the Trial Court observed that the evidence of those three eye-witnesses,
was amply corroborated by the circumstantial and the evidence of PW-4, PW-8 and
PW-12 who were the persons who came and saw the deceased immediately after the
occurrence. The High Court also accepted their testimony and in our view
rightly so. The ocular evidence accepted by the both the Trial Court as well as
by the High Court, established that on the instigation of Ganapati, the
appellant fired at ashok.
it was an intentional act of the appellant. PW-9, the doctor who conducted the
Post Mortem examination on the dead body of the deceased stated that there was
a gun wound on the right side of the chest, anteriorly over 2nd, 3rd, 4th and
5th ribs at their anterior ends, irregularly shaped, measuring 2"
horizontally and 2-1/2" vertically surrounded by a multiple pellet wound
over an area of 18" transversely and B" vertically. PW-14 is the
ballistic expert who spoke to the presence of lead particles in the barrel of
further stated that in this case characteristics of firing from a short
distance of 2-3 feet were totally absent and that the approximate distance of
firing was beyond 8' and within 20' from the muzzle of the gun, which is in
conformity with the case of the prosecution. The cross- examination of this
witness was directed to establish the possibility of gunfire due to jerk. DW-3 was
examined to speak to distance from which the gun might have been fired.
witness was an advocate and was deposing on the basis of his experience. In
view of the evidence of PW-14, no importance can be attached to his testimony
and in any event nothing helpful to the appellant can be found in his evidence.
There are more reason than one as to why the defence of gun getting fired
accidentally cannot be believed. first, though the plea of defence of accident
is a complete answer under Section 80 of the IPC, it is not attracted to the
facts of this case. Section 80 says that if anything is done by accident or
misfortune it would not be an offence. To claim the benefit of this provision
it has to be shown :
the act in question was without any criminal intention or knowledge;
the act was being done in a lawful manner by lawful means; and
act was being done with proper care and caution.
view of the evidence of PWs-1 to 3 which is believed by both the courts and
also by us the conclusion that the appellant fired at the deceased at the
instigation of late Ganapati intentionally is irresistible; as such the first
requisite of section 80 would be lacking. Secondly, the reeper said to have
been swung by the deceased at the appellant , as spoken to in his statement
under Section 313, Cr.P.C., was not found at the scene of the occurrence as
could be seen from the Panchnama (Ex.P-20). All other object found at the scene
of occurrence were seized as M.Os.3 to 7. Had the appellant who was present in
the house immediately after the occurrence, spoken about the reeper and if it
were there, it would have been seized from the scene of the occurrence along
with other articles.
learned counsel also argued that the High Court had committed a serious error
in examining the gum which was rusting for more than two years and in coming to
the conclusion that the shot could not have been accidental. It would be
appropriate to read here that portion of the judgment which deals with the
aforementioned contention, which reads as follows :
secured the shot gun M.O.1 and examined it closely. Its butt portion measures
12" in length and above the butt portion the length of the barrel is
36-1/2" from the butt end. This roughly comes to 4 feet, which would be
much above the waist of a person of normal height.
also examined the hammer and even with violent push with fingers we did not
find the hammer to get released. It got released only when the trigger was
pulled and this trigger is within a semi-circular metallic cover. Therefore the
"Reeper" hitting the trigger is wholly impossible and that is not
case of accused-1 either." A perusal of this extract shows that the High
Court did inspect the gun for ascertaining the possibility of the hammer
getting released due to strike by the reeper and observed that even with a
violent push with fingers, the hammer did not get released. Further, it found
that the trigger was within a semi-circular metallic cover and that the hammer
got released when the trigger was pulled and that the trigger hitting the
trigger was an impossibility and that was not the case of the appellant. It is
thus clear that the High Court considered the probability of accidental fire as
spoken to by the appellant in his statement under Section 313 Cr.P.C. and which
was sought to be supported by evidence of PW-14 and arrived at the conclusion
not only with regard to testing its operation but also noting the physical
features of the gun. We find no illegality in this approach of the High Court.
The judgment under appeal warrants no interference.
appeal, therefore, fails and it is accordingly dismissed.