Karnataka High Court
Sri Thachamanda T Kariappa @ Raja vs The State Of Karnataka on 13 February, 2025
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CRL.A No. 1070 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE K. V. ARAVIND
CRIMINAL APPEAL NO. 1070 OF 2018
Between:
Sri Thachamanda T.Kariappa @ Raja
S/o Late Thimmaiah,
Now aged 66 years,
Agriculturist,
R/o Kalladi Garvale Village,
Suntikoppa Hobli, Somwarpet Taluk
Kodagu District-571201.
...Appellant
(By Sri P.D.Subrahmanya, Advocate)
And:
Digitally signed The State of Karnataka
by VEERENDRA
KUMAR K M By Circle Somwarpet Police Station,
Location: HIGH Represented by State Public Prosecutor,
COURT OF High Court of Karnataka,
KARNATAKA High Court Building,
Bengaluru-560 001.
...Respondent
(By Sri Vijay Kumar Majage, SPP-II)
This Criminal Appeal is filed u/s 374(2) Cr.P.C. praying to
set aside the judgment dated 11.01.2018 and order of
conviction and sentence dated 16.01.2018 passed by the
Principal District and Sessions Judge, Kodagu, Madikeri in
S.C.No.62/2015 - convicting the appellant/accused for the
offence p/u/s 302, 307 of IPC and section 27 of Arms Act.
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CRL.A No. 1070 of 2018
Date on which the appeal was
15.01.2025
reserved for judgment
Date on which the judgment was
13.02.2025
pronounced
This Criminal Appeal, having been heard & reserved,
coming on for pronouncement this day, judgment was delivered
therein as under:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
The accused who has been convicted for the
offences punishable under Sections 302 and 307 of
IPC, and Section 27 of the Arms Act has preferred
this appeal.
2. The accused and Nanjunda, the deceased
are brothers. There was a property dispute
between them, the accused was grousing against
his brother as he was allotted less share when the
division of ancestral properties was effected. It
was in this background, when Nanjunda and his
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wife Bhagyavati (PW2) were treading the path to
their coffee estate around 9.30am, on 10.3.2015,
the accused shot him dead with his gun. PW2 was
walking beside her husband and when the accused
shot at his brother, a pellet struck right side of her
abdomen and suffered an injury. As she yelled
accused started loading the gun again to shoot
her. Frightened PW2 started running to escape;
the accused chased her for some distance, and
then he went near Nanjunda, who had fallen down
and again shot on his chest from a close distance.
PW1, the sister of the accused and Nanjunda who
came to spot hearing gunshot, gave a report of
this incident at 11.15am to Somwarpete police as
per Ex.P1 on the same day.
3. PW1 to PW30 are the witnesses examined
by the prosecution. The Sessions Judge, Madikeri,
before whom trial was held, has recorded the
reasons that the oral testimonies of PW1 and PW2
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are believable in as much as they find
corroboration from the testimonies of PW3 and
PW4. PW2, the wife of Nanjunda got injured when
the incident occurred. The evidence given by
PW30, the doctor who examined PW2, fortifies the
testimony of PW2. PW17 who conducted autopsy
confirmed gunshot injuries. The cross-examination
of the prominent witnesses has not been
successful. Contradictions pointed out by the
defence counsel are negligible, and therefore the
case of prosecution has been proved beyond
reasonable doubt.
4. We have heard the arguments of Sri
P.D.Subrahmanya, learned advocate for the
appellant and Sri Vijaykumar Majage, the State
Public Prosecutor-II.
5. The first point of argument of Sri
P.D.Subrahmanya was with respect to evidence
given by PW1 and PW2. He argued that PW1 was
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not an eyewitness, but she has deposed as if she
was an eyewitness. Her evidence contains
improved versions which do not find a place in
Ex.P3. The trial court has accepted her evidence
as that of an eyewitness, which is an error. So far
as evidence of PW2 is concerned, it was his
argument that her evidence is unreliable in spite of
her being an injured witness because she has not
narrated about the happenings of the event prior
to and at the time of firing. The prosecution ought
to have marked her statement said to have been
recorded by PW21. In these circumstances her
evidence required corroboration from other
evidence. Merely for the reason that the wound
certificate as per Ex.P20 shows that PW2 had
suffered simple injuries, those injuries are not
sufficient to establish involvement of the accused.
5.1 His second point of argument was that
according to prosecution, there were two gunshots,
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but there is no evidence for the second shot. The
prosecution story is that Nanjunda fell down after
receiving first gunshot and he was in prone
position when there was second firing. That
means there should have been an entry wound on
the back, which was not found at all.
5.2 Third point of argument was that
involvement of accused cannot be established with
the help of evidence given by PWs3 to PW6 and
PW10 as they are hearsay witnesses to incident.
Likewise PWs7 to 9, 11 to 15 and 18 are also
hearsay witnesses. PWs14, 15 and 18 have partly
supported seizure of MO11 and MO12.
5.3 The fourth limb of argument was that
extra judicial confession said to have been made
before PW19 is not recorded in Ex.P3 and the said
confession is not corroborated by other witensses
including PW3. The evidence of the doctor (PW17)
is not conclusive proof, and it is also insufficient to
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establish second gunshot. Therefore there is no
proof beyond reasonable doubt. The trial court
could not have recorded conviction.
6. Sri Vijaykumar Majage argued that oral
testimony of PW2 is very reliable as she is injured
witness. She was present with her husband when
he was shot dead. She saw accused shooting at
her husband. In that course she too suffered
injuries. Therefore her evidence stands on high
pedestal. She has not been discredited in the
cross-examination. PW1 saw accused fleeing that
place with a gun. Her evidence is very much
relevant as she was the first informant. She is the
sister of accused and the deceased. There is no
chance that she has deposed falsehood. That
apart gunshot sound was heard by other witnesses
who came to spot immediately. Two gun shot
injuries were noticed by the doctor. Accused
confessed his guilt before PW19. Ballistic expert's
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evidence and medical evidence corroborate the
evidence given by PW2. Looked from any angle it
cannot be said that prosecution case is not
established. The appeal therefore deserves to be
dismissed.
7. Now the main question is whether the
testimonies of PW1 and PW2 are wholly reliable. It
is better to first evaluate the evidence of PW2.
Her testimony in examination-in-chief shows that
on 10.03.2015 around 09.30am, her husband and
she were treading the pathway to go to their
coffee estate. The accused armed with a gun
suddenly came in their front and opened fire at her
husband. The gunshot hit the chest of her
husband and she too sustained injuries at that
time below right side abdomen. Her husband fell
down; accused started loading the cartridge once
again; and seeing this she started running towards
the road. Once again she heard a gunshot from
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the place where her husband had fallen down. She
was under shock. PW1 came to that place
immediately and took her aside. By that time PW4
Leelavathi and PW5 Karumbaiah and some others
came to that place and they took her to
government hospital. She stated that her husband
died at the spot itself. She identified the gun MO1
and also the clothes and the cap of her husband.
She has stated that about 20 to 22 years ago i.e.,
even before her marriage, her father-in-law had
effected partition of the ancestral properties
between the accused, her husband and her
mother-in-law. Accused was looking after the
share given to his mother. In the cross
examination it was elicited from her that there was
a property dispute between the accused and her
husband. If her entire cross examination is
perused, nothing worthwhile mentioning here was
extracted from her.
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8. PW1 is the sister of the deceased and the
accused. Her house was situated at a distance of
200 feet from the house of the deceased and the
accused. She stated that about 3 months before
the incident occurred, a quarrel had taken place
between the accused and the deceased in relation
to property as accused No.1 had a grouse that he
did not receive enough share in the properties. As
regards the incident her evidence is that in
between 09.00 and 09.45am, as she was going to
her old house from new house she heard a gunshot
sound from the side of the estates of the accused
and the deceased. She rushed towards that place
immediately and saw her brother Nanjunda having
fallen down and the accused chasing PW2 with a
Kovi or gun. She also saw PW2 falling down. Then
accused again went near Nanjunda, shot him again
and ran away from that place. She saw Nanjunda
being dead. She also saw PW2 having sustained
injuries on her abdomen. She has stated about
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taking PW2 to hospital along with Leelavathi and
others and then giving a report to Somwarpet
police as per Ex.P1. She too has not been
discredited in the cross examination.
9. The evidence given by PW3, PW4, PW5
PW6 and PW7 may also be referred here.
10. PW3 is the son of PW1. He has stated
that on 10.03.2015 at 09.30am PW1 and he came
to their old house to take coffee to the labours and
at that time both of them heard gunshot sound
from the side of the house of the accused. His
mother rushed towards the spot from where the
gunshot sound came and he went towards the
house of Rajappa, his paternal uncle. Telling
about the gunshot sound to Rajappa he took him
towards the house of the accused. He saw
Nanjunda lying dead. His mother had already
shifted PW2 to the house of Karumbaiah. He went
there and saw the injuries that PW2 had sustained
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on her abdomen and when he enquired her, he
came to know about the incident. He was also a
witness to the mahazar drawn as per Ex.P3 in
connection with seizing the gun, one empty
cartridge and clothes of the accused. He identified
all those items.
11. PW4-Leelavathy too has given evidence
that on 10.03.2015 around 09.30am she heard two
gunshot sounds and screaming voice when she was
going towards the house of the accused. She also
saw PW1 bringing injured PW2. They all went to
the house of Karumbaiah and took PW2 to hospital.
12. PW5-Karumbaiah has also given the
evidence in the same way. As he did not speak
with regard to property dispute between the
accused and the deceased, he was treated hostile
witness and cross examined by the public
prosecutor. In the cross examination he admitted
the suggestions that there were petty quarrels
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between the two in respect of property dispute and
both of them were advised by him and others not
to quarrel like that.
13. PW6 is a relative of PW1 and PW2. Her
evidence also shows that on 10.03.2015, when she
was in her house, around 10.00am, one person
came and informed her husband about the
incident. Immediately she and her husband went
to the spot on a scooter. At a distance of half
kilometer from the house of deceased, they saw
PW5 and others taking PW2 in a car and seeing
them they stopped the car. She saw PW2 having
sustained injuries due to gunshot. She also went
to hospital. When PW2 regained consciousness,
she told about the incident of accused shooting at
her husband.
14. PW7 is the mother of the accused and the
deceased. In nutshell her evidence is that she
came to know about the incident.
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15. From the evidence of all these witnesses,
a clear picture is available that what has been
deposed by PW2 is believable. It is impossible to
hold that PW1 is not an eyewitness. She may not
have seen the first gunshot, but she heard the
sound, and she came to that place, she saw PW2
being injured and the accused again shooting at
the deceased. PW1 rushing towards spot is
testified by PW3 who also heard gunshot sound.
PW1, PW3, PW4, PW5 and PW6 are consistent in
stating that they all took injured PW2 to the
hospital. The evidence given by PW1, PW3, PW4
and PW5 cannot be called hearsay evidence, for at
the time of incident they were all present at
nearby places, and all of them heard gunshot
sound. They also took PW2 to hospital. All these
events are so closely connected with each other to
main incident forming part of same transaction
which fall within the ambit of Section 6 of Indian
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Evidence Act. Therefore there is corroboration to
the oral testimony of PW2.
16. PW17 is the doctor who conducted post
mortem examination over dead body of Nanjunda,
and Ex.P7 is the post mortem report. Before
dissecting the body, he noticed multiple
penetrating wounds and found fifty seven pellets
inside the body. He stated that there were no exit
wounds. He stated that after receiving the FSL
report he gave his final opinion for the death to be
due to shock and hemorrhage as result of injuries
to heart and lungs. The evidence of PW17 also
corroborates the testimony of PW2. Since PW1
and PW2 stated that accused shot at Nanjunda two
times, and the learned counsel for the accused
disputed second shot, evidence given by PW28, the
ballistic expert requires to be referred to now. The
police sent to him eight articles for his opinion.
His examination of all the articles confirmed firing
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from article No.1, i.e., the gun and presence of
two gunshot holes. He opined that the first hole
might have occurred due to firing from
approximate range of 2.5 feet to 3 feet. In regard
to second hole, the approximate firing range might
be beyond 10 feet and within 36 feet. He also
noticed a third hole, but according to his opinion,
it might have occurred due to impact by wads.
The evidence of PW28 confirmed two gunshot
penetrating holes. In the cross-examination he
answered that, if the firing was from a distance of
2 ½ feet, there would be less chances of
occurrence of exit wound. That means, there is
corroboration from PW28 also. It may be
mentioned here that as per the testimony of PW1
and PW2, the first hole that PW28 noticed was due
to second shot, and the second hole was due to
first firing. Thus seen the testimonies of PW1 and
PW2 cannot be discarded at all.
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17. As regards motive, PW5 has stated that
there were petty quarrels between the accused and
Nanjunda. PW8 has stated that accused himself
had asked him about four days prior to 11.11.2014
to come to his house to discuss property matters.
He went to the house of the accused on
11.11.2014, that the accused and Nanjunda were
present and at that time accused put forth a
demand for 60 cents of land. PW9 has also given
evidence about participating in the meeting held
on 11.11.2014. From this evidence it is clear that
accused had a motive to shoot him.
18. So far as seizure of the gun-MO1 and the
clothes of the accused is concerned, PW19 has
stated that on 10.3.2015, he went to Somwarpete
police station where all these articles were seized
by the police from the accused and drew up a
mahzar as per Ex.P3. He was treated hostile by
the prosecution for the reason that he did not
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support in the examination-in-chief as regards
revelation made by the accused about shooting
Nanjunda dead. In the cross-examination by the
public prosecutor PW19 admitted that accused
made such a statement before him. SPP-II
submitted that this was an extra-judicial
confession. But it cannot be treated as an extra-
judicial confession because even if accused had
made such a statement, it was in the police station
at the time of seizure of gun and the clothes of the
accused. Since it was in the presence of police, no
credence can be attached to it. However, the
evidence of PW19 can be acted as led to seizure of
gun and clothes (MOs1, 9 and 10).
19. From the foregoing discussion a clear
conclusion can be drawn that PW2 was an
eyewitness to the entire incident. PW1 was an
eyewitness so far as second gunshot is concerned.
As discussed above their testimonies find
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corroboration from other witnesses. Motive is also
forthcoming. It is not the defence version that
accused was provoked by deceased-Nanjunda.
When PW2 and Nanjunda were going towards their
coffee estate the accused shot at Nanjunda with
his gun. In this view, it can be said that offence
under Section 302 of IPC is proved.
20. Accused had licence for the gun
possessed by him, but he used it for committing
crime. For this reason offence under Section 27 of
the Arms Act stands proved. The trial court has
rightly recorded conviction for this offence.
21. So far as the offence under Section 307
of IPC is concerned, it may be stated that this
offence does not get established. No doubt PW2
suffered injuries when the accused opened fire at
his brother-Nanjunda. At that time his intention
might be to shoot Nanjunda and because PW2 was
standing beside her husband she too sustained
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injuries. Her testimony discloses that after her
husband fell down accused started loading the
cartridge and started going towards her. Afraid of
this she started running. But the accused did not
shoot at PW2 instead he again shot at his brother-
Nanjunda. In this circumstance it is difficult to
hold he had intention to make an attempt on the
life of PW2. At the best it may amount to an
offence punishable under Section 324 of IPC.
Therefore conviction for the offence under Section
307 of IPC cannot be sustained instead accused
can be convicted for offence under Section 324 of
IPC.
22. Now we proceed to pass the following :
ORDER
(a) Appeal partly succeeds.
(b) Conviction of the accused for the
offences under Section 302 of IPC and
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Section 27 of the Arms Act is sustained.
Sentence imposed on him for these two
offences is confirmed.
(c) Conviction of the accused for the offence
under Section 307 of IPC is set aside,
and he is held guilty of the offence under
Section 324 of IPC. He is sentenced to
rigorous imprisonment for a period of
three years and fine of Rs.10,000/-. In
default of payment of fine, accused shall
undergo imprisonment for a period of two
months.
(d) Sentence of imprisonment for all the
offences is made to run concurrently.
(e) For the purpose of remission under
Section 432 of Cr.P.C, accused is entitled
to set off for the period he has already
spent in jail.
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(f) Order of the trial court in regard to
payment of compensation from the fine
amount and direction given to District
Legal Services Authority to compensate
the victims under Karnataka Victim
Compensation Scheme is also sustained.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
CKL/KMV
