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PETITIONER: ATMENDRA

       Vs.

RESPONDENT: THE STATE OF KARNATAKA

DATE OF JUDGMENT:       31/03/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T QUADRI, J.      The 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. The 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.      This 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 house. On the 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.

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Ashok, 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 the coconuts. In the  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.      It can 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.      The 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.      Shri Javali,  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". They 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

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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. Therefore 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 the gun; he 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. This 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  : (1)  that the  act in  question was  without any criminal intention  or knowledge; (2) that the act was being done in  a lawful  manner by  lawful means; and (3) that act was being  done with proper care and caution. In 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.      The 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 :      "We 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.      We also  examined  the  hammer  and

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    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.      The appeal,  therefore, fails  and  it  is  accordingly dismissed.