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2002 DIGILAW 788 (KAR)

M. G. PONNAPPA v. STATE OF KARNATAKA

2002-12-18

H.N.NARAYAN, M.S.RAJENDRA PRASAD

body2002
NARAYAN, J. ( 1 ) THIS appeal by the convicted accused is directed against the judgment of conviction recorded against him by the learned Sessions Judge, Kodagu at Madikeri, in a judgment dated 30-11-1999 in S. C. No. 48/95. Initially, this case was pending before the Additional Sessions Judge, Kodagu at Madikeri, who framed the charges against the accused and tried the accused-appellant for the offences punishable under S. 302 of the Indian Penal Code and under S. 27 of the Indian Arms Act. Since the Additional Court was shifted from Madikeri, the matter was taken over by the learned Sessions Judge, Kodagu at Madikeri, who after hearing the learned counsel on both sides passed the impugned judgment of conviction. ( 2 ) ). The facts giving raise to this appeal in brief are as under : deceased-Muthappa and the accused-Ponnappa were the two sons of late Ganapathi, a resident of Cheyyandane village who was essentially an agriculturist owning certain extent of Coffee and wet lands at Nariyandada village, situated in the jurisdiction of Napoklu Police Station. Father of the accused and deceased died a few years prior to the date of incident in which Muthappa died. After his death, the brothers had partitioned the family properties. While the accused-Ponnappa was residing in a house situated in the portion of the Coffee Estate, which fell to his share, the deceased-Muthappa was working as Assistant Sub-Inspector of Police, Ponnampet Police Station, which was at a distance of 40 kms. , from his village. It is the case of the prosecution that the accused used to quarrel with his elder brother Muthappa and often demanded him to part with his share of properties in his favour, as he was working as the Assistant Sub-Inspector of Police in a far off place and was also giving pin pricks to the servants of his brother, who were working in the estate of his brother. Deceased-Muthappa had not obliged him. He used to visit his estate in the company of his wife P. W. 1 Smt. Lilly and was supervising the agricultural operations and of harvesting coffee and paddy. During those days, he used to stay in a portion of the house constructed for the workers. He engaged two servants by name Shabeer P. W. 3 and Narayana C. W. 6. During those days, he used to stay in a portion of the house constructed for the workers. He engaged two servants by name Shabeer P. W. 3 and Narayana C. W. 6. It is the case of the prosecution that the deceased-Muthappa constructed a line of houses both in the Coffee Estate, which measures about 3 acres and also another line of houses near the wet land at a distance of about a quarter kilometer from the line of the houses constructed in the Coffee Estate. It is the case of the prosecution that P. W. 3 Shabeer had occupied two houses in the line of houses situated at Coffee Estate. His master Muthappa used to stay in three other vacant houses when he visited the Estate. It is the specific case of the prosecution that two days prior to the date of incident, which occurred on 10-2-1995, deceased-Muthappa elder brother of the accused, came to the Estate along with his wife P. W. 1 Smt. Lilly, and supervised harvesting or picking of coffee seeds. P. W. 3 Shabeer and C. W. 6 Narayana were engaged in the picking of coffee seeds till noon time. Thereafter, Muthappa is stated to have directed them to put up the fence near the hay stalk. After completing the fencing work, when P. W. 3 Shabeer and C. W. 6 Narayana were returning home in front of the house of the accused, as they had to pass through that way, the accused abused them and scolded them. Both of them promptly reported this fact to their master Muthappa who was present in his house. He immediately left the house to ask his brother the accused, as to why he scolded his servants. He was followed by his wife P. W. 1 smt. Lilly, P. W. 3 Shabeer, and C. W. 6 Narayana. It is stated that deceased-Muthappa was ahead of his wife by about 10' to 15' and P. W. 3 by about 20. ' When he approached the wooden gate, which was the entrance to the Estate from the main road, the accused who was standing on the other side of the gate holding a double barrel gun fired at his brother, which shot hit his chest causing injuries and sudden collapse. There was no time left for any one of those who were present there to rescue or to protect Muthappa. There was no time left for any one of those who were present there to rescue or to protect Muthappa. While the accused left the place suddenly with this double barrel gun, P. W. 1 Smt. Lilly fell on her husband and started crying and asked her servant P. W. 3 Shabeer to bring some water. P. W. 3 Shabeer immediately went to the house, which was 50' away from the place of incident and brought some water and put it to the mouth of the deceased who breathed his last. Every one of them were taken aback by the sudden turn of events. P. W. 1 Smt. Lilly was in great shock. It is the further case of the prosecution that in the meantime, the neighbourers also assembled there. P. W. 1 Smt. Lilly requested P. W. 3 Shabeer and C. W. 6 Narayana, to keep watch over the dead body of her husband and went to the main road to see whether she could catch some vehicle to go to Napoklu Police Station to lodge a complaint. She noticed a jeep coming towards the Estate in the main road. She requested the driver of the jeep to take her to Napoklu Police Station to report the murder of her husband. Accordingly, she reached the said Police Station, which was at a distance of 18 kms. , from her place at 7. 30 p. m. , and got prepared a complaint Ex. P. 1 with the assistance of the Station Writer and filed the complaint Ex. P. 1 before P. W. 11 T. S. Kempaiah Assistant Sub-Inspector of Police who was the Station House Officer at that time. He registered a criminal case against the accused on the basis of the said complaint, in Crime No. 16/1995 under S. 302 of the I. P. C. He deputed P. W. 7 Janardhan Police Constable to carry the F. I. R. , and the complaint to the C. J. M. , Madikeri. He hired a jeep and reached the place of incident at about 9. 30 p. m. , and found the dead body of Muthappa lying in a pool of blood with gun shot injuries on his chest. The dead body was found at a distance of about 6' from the main gate of his Estate. P. W. 3 Shabeer and C. W. 6 Narayana were present. 30 p. m. , and found the dead body of Muthappa lying in a pool of blood with gun shot injuries on his chest. The dead body was found at a distance of about 6' from the main gate of his Estate. P. W. 3 Shabeer and C. W. 6 Narayana were present. He deputed his Constables and others to trace the accused. He also kept watch over the dead body along with other Constables. On the next day morning, P. W. 12 Jagdish, Sub-Inspector of Police visited the place of incident at about 6. 00 a. m. , and took over the further investigation from P. W. 11 Kempaiah, Assistant Sub-Inspector of Police. He collected P. W. 2 Ganapathi and P. W. 4 Aiyappa and conducted the inquest as per Ex. P. 2 and seized Hawai Chappals M. O. 2, blood stained mud and leaves and sample mud and leaves as per M. Os. 6 and 7 respectively, at the scene of offence. He deputed his staff to trace the accused and left the place to Ponnampet Police Station. At about 10. 00 a. m. , his Constables produced the accused person before him. He questioned and recorded his voluntary statement, the admissible portion of which is marked at Ex. P. 6. He recovered M. O. 1 double barrel gun at the instance of the accused person who produced the same from his house. The accused also produced M. Os. 8 to 10 the empty cartridge, cartridges, wad and pellets. The accused was thereafter produced before the jurisdictional Magistrate and obtained judicial custody. Since there was a delay in filing the final report, the accused availed the statutory bail as provided under S. 167 (2) of Code of Criminal Procedure. We are still at a loss to know as to why there was delay in filing the final report. The dead body of Muthappa was subjected to post-mortem examination by P. W. 15 Dr. H. V. Devadas, who furnished the post-mortem report as per Ex. P. 13. P. W. 12 Jagadish, Sub-Inspector of Police drew up a rough sketch of the scene of offence as in Ex. P. 9. P. W. 12 also recorded the statement of eye-witnesses during the course of inquest. H. V. Devadas, who furnished the post-mortem report as per Ex. P. 13. P. W. 12 Jagadish, Sub-Inspector of Police drew up a rough sketch of the scene of offence as in Ex. P. 9. P. W. 12 also recorded the statement of eye-witnesses during the course of inquest. Further investigation was taken over by P. W. 16 M. M. Shetty, Circle Inspector of Police who completed the formalities of the investigation by recording the further statements of witnesses and sending the articles to the FSL and also the gun M. O. 1 to the Ballistic Expert P. W. 14 Mr. N. G. Prabhakar. He also sent a request to the District Magistrate, Madikeri, to permit him to prosecute the accused person, as there was violation of the provisions of the Indian Arms Act. However, no such permission was granted as the accused was a resident of Coorg and he was exempted from seeking any licence for possessing a fire-arm. After completing the formalities of the investigation, P. W. 16 laid the charge-sheet against the accused under S. 302 of the Indian Penal Code and under S. 27 of the Indian Arms Act. ( 3 ) ACCUSED entered appearance through his Advocate and denied the charges framed against him. In proof of those charges the prosecution relied upon the oral evidence of 16 witnesses, 15 documents and ten material objects, and closed its case. In view of the incriminating material occurring against the accused, the trial Court examined the accused under S. 313 of the Code of Criminal Procedure. Since it was not a case of acquittal under S. 232 of the Code of the Criminal Procedure, the trial Judge directed the accused to enter his defence. However, the accused had not chosen to let in any defence evidence. The learned trial Judge thereafter heard the arguments in this case. The learned counsel for the defence had also chosen to file his written arguments. The learned trial Judge on scrutiny of the evidence and on consideration of the contentions canvassed at the Bar, found the accused-appellant guilty of the offences punishable under S. 302 of the I. P. C. , and under S. 27 of the Indian Arms Act, the legality and correctness of which is challenged by the accused in this appeal. The learned trial Judge on scrutiny of the evidence and on consideration of the contentions canvassed at the Bar, found the accused-appellant guilty of the offences punishable under S. 302 of the I. P. C. , and under S. 27 of the Indian Arms Act, the legality and correctness of which is challenged by the accused in this appeal. ( 4 ) WE have heard the arguments of Sri M. T. Nanaiah, learned counsel for the appellant and Sri B. C. Muddappa, learned Additional S. P. P. , for the State. We have perused the evidence. ( 5 ) SRI M. T. Nanaiah, learned counsel for the appellant has submitted the following contentions for our consideration :a) That the complaint is not filed by P. W. 1 Smt. Lilly at the Napoklu Police Station at 8. 00 p. m. , as claimed, but it was filed when the police visited the place of incident on the said night and that there is delay in despatching the F. I. R. , to the jurisdictional Magistrate. This circumstances raised a serious doubt as to the genuineness of the prosecution's case;b) That there is variance in the evidence of P. Ws. 1 and 3 regarding the place of incident i. e. , the place where deceased was standing and the place where accused was standing;c) The oral evidence of P. Ws. 1 and 3 contradicts the experts' evidence, i. e. , Dr. H. V. Devadas P. W. 15 and the ballistic expert Mr. N. G. Prabhakar P. W. 14;d) non-examination of C. W. 6 Narayana another coolie of deceased is fatal to the prosecution's case;e) the conduct of the man folk present at the scene of offence in allowing a lady in distress to go alone to the police station at that hour of night is unnatural;f) that the accused was very much found in his house immediately after the incident and that the very conduct of the accused in not absconding even after the ghastly murder of his brother indicates his innocence and this is a circumstance which goes against the prosecution;g) Ex. D. 1 marked by the defence raises serious doubt as to the credibility of the evidence of P. W. 3 Shabeer. D. 1 marked by the defence raises serious doubt as to the credibility of the evidence of P. W. 3 Shabeer. According to the learned counsel for the appellant, the trial Court has ignored the material discrepancy in the evidence of prosecution and this has resulted in grave J injustice to the accused. The case of the prosecution is not proved beyond doubt. Therefore, the learned counsel for the appellant contended that the accused is entitled for an order of acquittal. ( 6 ) THE learned Additional S. P. P. , in justification of judgment of conviction and sentence against this appellant has pointed out that the defence has failed to bring out any circumstance to show that the police were aware of the incident before the complaint Ex. P. 1 was filed by P. W. 1 Smt. Lilly. The delay in submitting the FIR to the jurisdictional Court immediately after registering the case is properly explained through the witness who was entrusted to take the F. I. R. , and that the defence has failed to show that the Police Constable who was in charge of submitting the F. I. R. , to the Court was not in a position to reach Madikeri on the said night. Therefore, the FIR was submitted to the C. J. M. , within the reasonable time. Hence, this circumstance does not give raise to any doubt at all. It is further submitted that Ex. D. 1 the contradiction marked in the evidence of P. W. 3 Shabeer, does not touch the main aspect of the case as Ex. D. 1 refers only to the question whether C. W. 6 Narayana another worker of deceased-Muthappa was residing by the side of P. W. 3's house or was he residing in another barrack situated by side of the wet land? Therefore, the said discrepancy does not affect the tenor of the prosecution's case at all. The presence of P. Ws. 1 and 3 in the estate and at the place of incident is quite natural and their evidence has not been discredited in any manner in the cross-examination. There is no contradiction in the evidence of eye-witnesses and in the experts' evidence. The Court has to examine the evidence of the experts P. Ws. 14 and 15 with reference to the ocular evidence of P. Ws. 1 and 3. There is no contradiction in the evidence of eye-witnesses and in the experts' evidence. The Court has to examine the evidence of the experts P. Ws. 14 and 15 with reference to the ocular evidence of P. Ws. 1 and 3. The non-examination of C. W. 6 Narayana is not at all fatal to the prosecution's case. He is given up by the prosecution, as he turned hostile to its case and a memo to this effect has been filed by the prosecutor. Therefore, the prosecution's case does not suffer from serious infirmities so as to raise any genuine doubt in its case. The experts' evidence clearly discloses that Muthappa died as a result of gun shot injury and M. O. 1 double barrel gun belonging to the accused was recovered which showed signs of recent discharge and that pellets like M. Os. 8 and 9 were fired from the said gun. The trial Judge has virtually dissected each word and sentence given by the prosecution witnesses and made a detailed analysis of the entire evidence and reached correct conclusion while holding the appellant-accused guilty of the offences punishable under S. 302 of the I. P. C. , and S. 27 of the Indian Arms Act. There are no grounds at all to disrupt the judgment of the trial Judge and hence, this appeal is liable to be dismissed. ( 7 ) WE have given our anxious considerations to these submissions of the learned counsel on both sides. Therefore, the questions which arise for our consideration are as under:1. Whether the prosecution has failed to prove that it was the accused-appellant alone who committed murder of his brother Muthappa on the evening of 10-2-1995 at about 5. 45 p. m. , in his Estate by causing gun shot injuries?2. If so, whether the accused-appellant is entitled for an order of acquittal? 3. What order? ( 8 ) THE prosecution rests its case on the direct evidence of P. Ws. 1 and 3 the wife of the deceased-Muthappa and his servant. The prosecution has also relied upon other circumstances like motive, the homicidal death of Muthappa, the recovery of M. O. 1 SBBL gun, and the probability of causing gun shot injuries to the deceased-Muthappa from M. O. 1. 1 and 3 the wife of the deceased-Muthappa and his servant. The prosecution has also relied upon other circumstances like motive, the homicidal death of Muthappa, the recovery of M. O. 1 SBBL gun, and the probability of causing gun shot injuries to the deceased-Muthappa from M. O. 1. ( 9 ) THERE is no dispute in this case that deceased-Muthappa died as a result of gun shot injuries on the evening of 10-2-1995 at about 5. 45 p. m. The death of Muthappa on the said evening is not seriously disputed before us. The evidence of P. Ws. 1 and 3 and the report made by P. W. 1 at about 7. 30 p. m. , on the same day, clearly shows that such an incident had occurred as alleged at about 6. 00 p. m. ( 10 ) ). The evidence of P. W. 2 Ganapathi, the inquest panch, clearly shows that he visited the place of incident at about 7. 00 p. m. , on that day and found the dead body of Muthappa lying near the wooden gate of his shed. This statement of P. W. 2 has not been challenged by the defence. Hence, his evidence shows that death of Muthappa occurred prior to 7. 00 p. m. , on 10-2-1995. It is the specific case of P. Ws. 1 and 3 that Muthappa was murdered at 5. 45 p. m. on the said day. P. W. 15 the post-mortem Dr. H. V. Devadas, has not specified the time of death. But, there is no cross-examination on this question at all. It is not the case of the prosecution nor the case of the defence that Muthappa died prior to 5. 30 p. m. on 10-2-1995. Therefore, death of Muthappa must have taken place around 6. 00 p. m. , only on that day and the cause of death is not disputed in this case. The post-mortem Doctor found two circular punctured wounds measuring about 2 mm. , incise on the second and third ribs. These injuries were caused by a gun shot. We do not propose to prolong this discussion, in the absence of any contention canvassed for consideration on this point and we have no difficulty in agreeing with the opinion expressed by the trial Judge that it is a case of homicidal death. , incise on the second and third ribs. These injuries were caused by a gun shot. We do not propose to prolong this discussion, in the absence of any contention canvassed for consideration on this point and we have no difficulty in agreeing with the opinion expressed by the trial Judge that it is a case of homicidal death. ( 11 ) THERE is some evidence in proof of the motive to the alleged offence. It is the evidence of P. Ws. 1 and 3 that the accused was not happy with his brother's presence in the Estate and cultivation of his Estate by his personnel, as he wanted his brother's lands to himself after partition. The evidence of P. W. 3 Shabeer showed that accused used to abuse and scold the workers even for pittance. The object of his conduct was to scare them away from the lands of his brother. It is contended by the learned counsel for the appellant that though there is some motive attributed to his client, that motive is not sufficient to take this extreme step of gunning down his own brother. ( 12 ) WE have a catena of decisions of the Apex Court, which has answered this very contention repeatedly. Nobody knows the mind of the accused and what makes an accused person to take such an extreme step of murdering his own brother. Very often, Courts have come across cases where their own kith and kin have been murdered even on trivial matters. Though in a case of direct evidence, the motive aspect does not assume much importance, we find some material or some evidence placed by the prosecution to show that the accused was grudging an ill-will against deceased-Muthappa. It is a matter, which the Court cannot ignore while considering the evidence on record. ( 13 ) IT is the evidence of P. W. 1 Smt. Lilly, wife of deceased-Muthappa, that she went to Napoklu Police Station, which is at a distance of 18 kms. , from her place and lodged the complaint at about 8. 00 p. m. This fact is spoken to by P. W. 11 T. S. Kempaiah, who registered a criminal case on her complaint Ex. P. 1. , from her place and lodged the complaint at about 8. 00 p. m. This fact is spoken to by P. W. 11 T. S. Kempaiah, who registered a criminal case on her complaint Ex. P. 1. P. W. 8 Sunderraj, the Head Constable of the said Police Station, who accompanied P. W. 11 after registering the case, has also spoken to the presence of P. W. 1 Smt. Lilly at the Police Station at 7. 30 p. m. , and lodged the complaint. This evidence of P. W. 8 in particular that P. W. 1 came to the Police Station at 7. 30 p. m. , and lodged the complaint is not at all assailed in the cross-examination. In fact, P. W. 8 Sunderraj has not been cross-examined at all though this fact is disputed by the defence while cross-examining P. W. 1 Smt. Lilly and P. W. 11 T. S. Kempaiah. ( 14 ) SRI M. T. Nanaiah, learned counsel for the appellant made attempts to project a theory that P. W. 11 T. S. Kempaiah, Assistant Sub-Inspector of Police, came with his staff to the place of incident much prior to 9. 30 p. m. He finds support to this contention by the evidence of P. W. 2 Ganapathi, who categorically states that when he visited the Estate at 7. 00 p. m. , both P. W. 1 Smt. Lilly and P. W. 3 Shabeer and Police people were also present. It is true that the prosecution has not explained this evidence of P. W. 2. But, what is surprising in this case is that no telephonic message or any other information reached the Police prior to 7. 30 p. m. There is not even a whisper or suggestion to the prosecution witnesses including P. W. 1 Smt. Lilly and P. W. 11 Kempaiah S. H. O. of the Napoklu Police Station, that some message either telephonic or otherwise was received at the Police Station and that they visited the place of incident immediately. Therefore, we find no evidence in support of such an argument addressed at this stage, without any basis at all. An argument can only be accepted if it is based on evidence or reason. Therefore, we find no evidence in support of such an argument addressed at this stage, without any basis at all. An argument can only be accepted if it is based on evidence or reason. ( 15 ) THERE is no delay at all in lodging the complaint in this case, as the F. I. R. , reached the jurisdictional police within two hours of the incident and the complainant was very much present in the Police Station within one and half hour. Having regard to the distance of 18 kms. , from the place of incident to the Police Station, we do not find any delay at all in this case in giving the first information to the police. ( 16 ) IT is strenuously contended by the learned counsel for the appellant that there is intentional delay in submitting the F. I. R. , to the Court and that the complaint must have been prepared at the place of incident after the visit of P. W. 16 M. M. Shetty, the Circle Inspector of Police. This argument is built up on the ground that the Police have failed to furnish the F. I. R. , to the jurisdictional Magistrate on the night of the incident. P. W. 7 Janardhana, Police Constable who was entrusted with the task of carrying FIR to the jurisdictional Magistrate, Madikeri, has explained the delay in doing so. According to him, there was no conveyance available at that time to go to Madikeri from Napoklu Police Station. It is not in dispute that the said Police Station is situated in the remote corner of Madikeri District. It is not even suggested to this witness that conveyance was available on that night to go to Madikeri from Napoklu Police Station. If we remember the evidence of P. W. 11 Kempaiah that he hired a jeep to go to the place of incident on the said night, which itself clearly shows that usual conveyance was not available to move about from that place. Madikeri district is a hilly area and the Napoklu Police Station is situated in a remote corner of that District in a hilly and forest area where public conveyance is not easily available. Madikeri district is a hilly area and the Napoklu Police Station is situated in a remote corner of that District in a hilly and forest area where public conveyance is not easily available. Therefore, the explanation offered by the prosecution in our opinion is satisfactory and there was no chance of any concoction in this case, falsely implicating the accused in the commission of the alleged offence. The argument that none of the men folk who were present near the place of incident attempted to go to the Police Station to inform this fact as any person could have set criminal law in motion, is no doubt a well sounded argument. But, P. W. 1 Smt. Lilly who was an eye-witness to the incident chose to approach the police herself. She was not a rustic lady. She was the wife of a Junior Police Officer. There is not even a remote suggestion to any of these witnesses that she availed the extra care of the Police Officers on the ground that her husband was also a Police Officer in a different place. We do not mistake for a moment that local Police had taken some interest in investigating the case promptly in view of the murder of their own brother officer. ( 17 ) THAT takes us to the evidence of P. Ws. 1 and 3. P. W. 1 Smt. Lilly wife of the deceased, has repeatedly asserted that herself and her husband have come to their Coffee Estate two days prior to the date of incident for the purpose of harvesting the coffee seeds, with the assistance of P. W. 3 Shabeer and C. W. 6 Narayana. This fact is fully corroborated by P. W. 3 Shabeer. We have already noticed the fact that P. W. 1 and her husband used to visit their Coffee Estate for agricultural operations and for harvesting the coffee and paddy and used to stay in the accommodation reserved for themselves in the line of houses where P. W. 3 Shabeer was also residing. There is no contradiction marked in the evidence of this witness that P. W. 1 and her husband were not visiting the Estate for the said purpose. Therefore, the presence of P. W. 1 Smt. Lilly, and P. W. 3 Shabeer who was working there, is not unnatural. There is no contradiction marked in the evidence of this witness that P. W. 1 and her husband were not visiting the Estate for the said purpose. Therefore, the presence of P. W. 1 Smt. Lilly, and P. W. 3 Shabeer who was working there, is not unnatural. Learned counsel for the appellant was attempted to project the theory that P. W. 1 Smt. Lilly came to the place of incident only after coming to know of the said incident and that she visited the place in a jeep in the company of her son who was studying at Virajpet. She has flatly denied this suggestion. According to P. Ws. 1 and 3, both P. W. 3 Shabeer and C. W. 6 Narayana who were returning in front of the house of the accused in the said evening after completing the fencing work, when accused scolded them for no reason, and this was reported to deceased-Muthappa by them. Therefore, Muthappa wanted to question his brother as to why he scolded his servants. He left his house towards the house of the accused. He had to pass through the wooden gate of his Estate, then cross the main road and go to the house of the accused. It is the case of the prosecution that when Muthappa came near the said gate, P. W. 1 Smt. Lilly and P. W. 3 Shabeer were behind him at a distance of 15' to 20. ' At that time, accused who was holding a double barrel gun, fired towards Muthappa. Muthappa sustained gun shot injuries. He was at a distance of 6' from the said gate. This fact is amply established by the evidence of not only P. Ws. 1 and 3 but also from the evidence of inquest Panch P. W. 2 Ganapathi and P. W. 4 Aiyappa. The Sub-Inspector of Police P. W. 12 Jagadish, who conducted the inquest panchanama, has also made a statement that the dead body of Muthappa was found at a distance of 6' from the wooden gate. ( 18 ) IT is argued by the learned counsel for the accused that since the road from the house of the deceased to the gate was zig zag and not straight one, there was no chance of hitting straight and, therefore, it must be from the angle. The cross-examination of the experts has directed this aspect. ( 18 ) IT is argued by the learned counsel for the accused that since the road from the house of the deceased to the gate was zig zag and not straight one, there was no chance of hitting straight and, therefore, it must be from the angle. The cross-examination of the experts has directed this aspect. The eye-witnesses have spoken to the overt act committed by the accused who fired at the deceased with the double barrel gun, which according to them caused the death of Muthappa. Both these eye-witnesses were cross-examined at length. In fact, there is no clinching cross-examination on the incident at all though usual questions are directed on the incident. As we have already noted, except marking a contradiction at Ex. D. 1 in the evidence of P. W. 3, no serious infirmity is pointed out by the defence in the evidence of P. Ws. 1 and 3. No such enmity is attributed to any of the witnesses except suggesting to P. W. 3 Shabeer that he was committing theft of oranges in the Estate of the accused. From the careful perusal of the evidence of these witnesses, we find no material as to why these witnesses should falsely implicate the accused in a case of this nature. The learned counsel for the appellant has failed in our opinion to brand these two witnesses as unnatural and unreliable witnesses. In our opinion, their evidence has not been impeached in cross-examination. Their evidence is credible and reliable. We find no good ground to doubt and reject their evidence. ( 19 ) THE learned counsel for the appellant has directed his argument to the evidence of P. Ws. 14 and 15. P. W. 15 is the post-mortem Doctor. He has opined that he noticed three punctured wounds oval shaped but those punctured wounds according to him were circular measuring about 2 mm. , in size on the left side of the chest. It is contended by the learned counsel for the appellant that those oval shaped injuries can only be caused if gun is fired from the angle. It is elicited from the evidence of P. W. 14 Dr. N. G. Prabhakar, the ballistic expert that if a shot is fired perpendicularly towards the target then the wound of entry would be circular in nature. There is no dispute about this aspect. It is elicited from the evidence of P. W. 14 Dr. N. G. Prabhakar, the ballistic expert that if a shot is fired perpendicularly towards the target then the wound of entry would be circular in nature. There is no dispute about this aspect. The opinion of both these experts shows that injuries 1 and 2 could be caused by a shot from a distance of 9' to 12. ' It is not disputed that the dead body was found at a distance of 6' from the wooden gate and that the accused was standing on the other side of the wooden gate. Considering this distance, the probability of firing from a distance of 9' to 12' from the muzzle and of the gun is not ruled out. ( 20 ) THE learned counsel for the appellant has also strenuously contended that P. W. 15 Dr. Devadas, has opined that accused must have fired two shots. He has relied upon the evidence of P. W. 15 found at para 5 of his cross-examination wherein the witness has stated that the force of projectile, which caused injuries 1 and 2 is different from the force of projectile, which caused injury No. 3. It is also elicited from this witness that there is possibility of two gun shots one in respect of injury No. 3 and another in respect of injuries 1 and 2. ( 21 ) INJURIES 1 and 2 are the punctured wounds while injury No. 3 though called as a punctured wound is a skin deep injury, which we style it as superficial one. There is no further probe offered by the prosecution or by the defence whether pellets fired from the gun would cause these injuries 1 to 3. If the evidence of P. Ws. 14 and 15 is accepted as true, then single shot could cause two punctured wounds. The third injury is found at a distance of 7" below the injuries 1 and 2. Therefore, a split pellet could cause a superficial injury like injury No. 3 is not ruled out. Therefore, the evidence of P. Ws. 1 and 3 that A. 1 fired only once has to be accepted. Otherwise, there would have been more number of punctured wounds on the body of the deceased. Therefore, a split pellet could cause a superficial injury like injury No. 3 is not ruled out. Therefore, the evidence of P. Ws. 1 and 3 that A. 1 fired only once has to be accepted. Otherwise, there would have been more number of punctured wounds on the body of the deceased. Even if there was more than one shot, the shot would not have hit the deceased as he collapsed to the ground and the second shot would have hit either P. W. 1 or P. W. 3, who immediately came forward towards the deceased. Therefore, this theory projected by the learned counsel for the appellant has no force and we reject it. The evidence of P. W. 14 Mr. Prabhakar, ballistic expert clearly shows that M. Os. 8 to 10 could be fired from a double barrel gun like M. O. 1. It is undisputed that M. O. 1 belonged to the accused. It was seized from his house. The recovery evidence placed by the prosecution in our opinion has no substance in the background of the presence of the accused in his house who was readily available for arrest and the gun was not concealed. Therefore, recovery of M. O. 1 does not come to the help of the prosecution's case as provided under S. 27 of the Evidence Act. ( 22 ) IT is true that the police have committed usual and same laches in searching the accused everywhere except in his own house. He was found on the next day morning in his house from where he was taken to the Police Station. Abscondance of the accused would have lent some credence to the prosecution's case, but his presence in his house, in our opinion, does not disclose his innocence in the light of the evidence adduced by the prosecution, which is quite convincing and reliable. Therefore, we do not find any merit at all in this appeal as the review of the entire evidence on record clearly convinces us that it is the accused and accused alone who committed murder of his own brother Muthappa on the evening of 10-2-1995 at about 5. 45 or 6. 00 p. m. , and M. O. 1 gun, which belonged to him was used for committing the offence punishable under S. 27 of the Indian Arms Act. 45 or 6. 00 p. m. , and M. O. 1 gun, which belonged to him was used for committing the offence punishable under S. 27 of the Indian Arms Act. ( 23 ) AS we have observed above, the learned Sessions Judge has in fact made a detailed discussion of the entire evidence let in by the prosecution and also considered the contentions of the defence and rightly held the accused-appellant guilty of the offences alleged against him. We do not find any good ground to interfere with the judgment of the trial Court. Therefore, the judgment of conviction and sentence recorded by the learned trial Judge is liable to be confirmed. ( 24 ) IN the result and for the foregoing reasons, this appeal fails and it is accordingly dismissed. Appeal dismissed. --- *** --- .