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2010 DIGILAW 1029 (KAR)

Changananmad Aiyappa v. State of Karnataka

2010-09-24

K.GOVINDARAJULU, V.G.SABHAHIT

body2010
Judgment :- Sabhahit, J. This appeal is filed by accused Nos.1 & 2 in Sessions Case No.58/2002 on the file of the District & Sessions Judge, Madikeri being aggrieved by the judgment of conviction and sentence dated 7-3-2006 wherein accused Nos.1 & 2 – appellants herein have been found guilty of having committed the offences punishable under Sections 302 r/w 34 IPC and Section 307 r/w 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- each, in default of payment of fine to undergo rigorous imprisonment for six months for the offence punishable under Sections 302 r/w 34 IPC and further sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- each, in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Sections 307 r/w 34 IPC. 2. The essential facts of the case leading up to these appeals with reference to the rank of the parties before the learned Sessions Judge are as follows: It is the case of the prosecution that there was enmity between Tammaiah @ Dali – and accused No.1 regarding dispute over the land. The complainant – P.W.11 – Bollera Devaiah is the resident of Theralu village and is residing with his parents in the said village. He was studying in 10th standard. He has studied up to 10th standard in the High School situated at Birunani village. On 28-4-2002 Tammanna @ Dali had asked the father of Bollera Devaiah to send the tiller for transporting firewood to his house on hire basis and his father sent the tiller along with his son – Bollera Devaiah and his servant’s son – Chippanna – P.W.13 to the land of Tammanna @ Dali and they transported one load of firewood in the tiller from the land of Dali @ Thammaiah to his house. Thereafter, Bollera Devaiah had again gone there to load the firewood. At that time, Changanamada Aiyappa – accused No.1 and his wife Anitha – accused No.2 said that the land belonged to them and why they were transporting firewood from their land and quarreled with them and accused No.1 went away with his wife – accused No.2. Thereafter, Bollera Devaiah had again gone there to load the firewood. At that time, Changanamada Aiyappa – accused No.1 and his wife Anitha – accused No.2 said that the land belonged to them and why they were transporting firewood from their land and quarreled with them and accused No.1 went away with his wife – accused No.2. He took one load of firewood in the tiller and unloaded the same in the house of Dali @ Thammaiah and came to the spot to load the tiller with the firewood and when he was on the way to the house of Dali at about 2.00 p.m. near ‘Pappadamara bane’, accused No.1 along with his wife – Anitha – accused No.2 were waiting for him to come in the trolley and fired from the revolver which he was holding and accused No.2 was giving bullets to accused No.1 to fire from the revolver. Immediately he stopped the tiller and ran away along with Chippanna – P.W.17. Thereafter accused No.1 fired several times at Tammanna @ Dali one after another and caused the death of Thammanna @ Dali and went away with his wife. He was also injured in the incident and Chippanna – his servant’s son was also injured in the incident. Himself and Chippanna left the tiller there itself and came to the house and informed the same to their father and thereafter they were taken to Government Hospital. Gonikoppa in Bollera Muttanna’s jeep and admitted there. When accused No.1 was firing at Dali, accused No.2 – his wife was instigating accused No.1 to cause murder of Thammanna @ Dali and that accused attempted to commit murder of the complainant and his servant’s son – Chippanna – P.W.17. One G.N. Devaiah – P.W.18 who was working as Head Constable at Srimangala Police Station received a phone call wherein it was disclosed that in Theralu village, murder has been caused by gunshot and two persons sustained injuries and accordingly went to the hospital on receiving the medical intimation from the medical officer as per Ex.P-20 and recorded the statement of Bollera Devaiah and returned back to the police station. P.W.18 registered the case in Crime No.32/2002 for the offences punishable under Sections 302 & 307 IPC and Sections 25 and 27 of the Indian Arms Act. 3. P.W.18 registered the case in Crime No.32/2002 for the offences punishable under Sections 302 & 307 IPC and Sections 25 and 27 of the Indian Arms Act. 3. P.W.15 – Santhoshkumar was working as Circle Police Inspector at Kutta Circle and Srimanagala Police Station comes within the jurisdiction of Kutta circle. On 28-4-2002 at about 5.00 p.m. hereceived wireless message that one person by name Aiyappa (accused No.1) shot dead one Thammaiah at Tharalu village and accordingly himself and P.W.16 rushed to the police station. On verification it was revealed that complaint was lodged in Srimangala Police Station and the case was registered in Crime No.32/2002 for the offence punishable under Section 302 IPC. Immediately, he along with the staff – PSI (P.W.16) rushed to the spot and when he went to the said spot at 9.30 p.m., they found the dead body of Thammaiah by the side of the road with gun shot injuries. They found the tractor trailer was loaded with firewood on the spot and near the same, empty cartridges and wad materials fallen to the ground. Since it was dark night, to safeguard the spot, he deputed his staff and to search for the accused, he camped at Birunani village and he deputed his Police Sub Inspector to trace out the absconding accused. On 29-4-2002 at about 7.00 a.m. he visited the spot along with his staff and conducted inquest mahazar in the presence of the panchas – Ex.P-12. He also collected blood stained mud, sample mud, wad, three empty cartridges and since the pellet came into the contract with the trailer which hit the trailer, the same was recovered and they were sealed and packed. He also seized blue coloured Hawai chappal of the deceased – Thammaiah @ Dali and sent the dead body along with his staff to the medical officer – P.W.4 for conducting post mortem examination. He recorded the statement of the witnesses. After the post mortem examination was conducted, the police constable produced the cloths of the deceased i.e., one pant, shirt and one undergarment which were on the body of the deceased and the same were seized under mahazar Ex.P-8. He returned to the police station and the Sub-Inspector – P.W.16 had arrested accused No.2 and produced before him. After the post mortem examination was conducted, the police constable produced the cloths of the deceased i.e., one pant, shirt and one undergarment which were on the body of the deceased and the same were seized under mahazar Ex.P-8. He returned to the police station and the Sub-Inspector – P.W.16 had arrested accused No.2 and produced before him. He interrogated and enquired with her and recorded the voluntary statement of accused No.2 and produced her before the Court along with remand application. On 30-4-2002 he came to know that accused No.1 had surrendered before the Virajpet Court and after knowing the same, he moved an application before the Court to give him custody of police for a period of two days and accused No.1 was given to the police custody. After securing the presence of accused No.1, he enquired and interrogated him and accused No.1 gave his voluntary statement as per Ex.P-13 and on the basis of voluntary statement, he had led them to Tharalu village to the uncultivated land, where the accused have hidden the weapon of attack i.e., gun – M.O.4 and the same was seized under mahazar Ex.P-14. Thereafter accused No.1 led them to his house and produced relevant documents pertaining to the gun and the same was seized under a separate mahazar – Ex.P-15. He also seized blood stained cloths of accused No.1 i.e., one full shirt and one jeans pant as per M.Os.6 & 7 and undergarment as per M.O.8 and recorded the statement of the witnesses. On 1-5-2002 the complainant produced the blood stained cloths i.e., one short which was blood stained and which contained holes of pellets and the same was seized under mahazar – Ex.P-5. He recorded the statement of injured Chippanna – P.W.17. He had requested the PWD authorities to give the sketch of scene of offence and he received the rough sketch of the scene of offence as per certificate – Ex.P-17 from P.W.24 – Assistant Executive Engineer. Thereafter, he obtained sanction order from the District Magistrate, Kodagu as per Ex.P-9. He obtained gun licence pertaining to accused No.1 as per Ex.P-18 from the District Magistrate, Kodagu – P.W-10 and after completing the investigation, filed charge sheet on 24-6-2002 against accused Nos.1 & 2 of having committed the offence punishable under Sections 302, 307, 114 r/w 34 IPC and Sections 25 and 27 of the Indian Arms Act. He obtained gun licence pertaining to accused No.1 as per Ex.P-18 from the District Magistrate, Kodagu – P.W-10 and after completing the investigation, filed charge sheet on 24-6-2002 against accused Nos.1 & 2 of having committed the offence punishable under Sections 302, 307, 114 r/w 34 IPC and Sections 25 and 27 of the Indian Arms Act. The case was committed to the Sessions Court and numbered as Sessions Case No.58/2002. The learned Sessions Judge framed charges against accused Nos.1 & 2 of having committed the offences punishable under Section 307 r/w 34 IPC and Section 302 r/w 34 IPC and against accused No.2 of having committed the offence punishable under Section 114 IPC and against accused No.1 of having committed the offence punishable under Sections 25 & 27 of the Indian Arms Act. Both the accused pleaded not guilty and claimed to be tried. 4. The prosecution examined P.Ws.1 to 25 and got marked Exs.P-1 to P-25 and M.Os.1 to 14. The defence of the accused is one of denial. The accused did not chose to lead any defence evidence. However, temporary injunction order passed in O.S.No.36/2002 on the file of Addl. Civil Judge (Jr.Dn), Virajpet was produced by accused No.1. The learned Sessions Judge, after considering the contention of learned counsel appearing for the parties and after appreciating the oral documentary evidence produced by them, by judgment dated 7-3-2006 held that the prosecution has proved beyond reasonable doubt that accused Nos.1 & 2 have committed the offence punishable under Sections 307 r/w 34 IPC and Section 302 r/w 34 IPC and held that the prosecution has failed to prove that accused No.1 has committed the offence punishable under Sections 25 & 27 of the Indian Arms Act and that accused No.2 has committed the offence punishable under Section 114 IPC. After hearing the learned counsel appearing for the accused, sentenced the accused Nos.1 & 20 to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- each, in default of payment of fine to undergo rigorous imprisonment for six months for the offence punishable under Sections r/w 302 r/w 34 IPC and further sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/-each, in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Sections 307 r/w 34 IPC. It was ordered that both the substantive and default sentences shall run concurrently. 5. Being aggrieved by the judgment of conviction and sentence passed by the learned Sessions Judge, Madikeri accused Nos.1 & 2 have preferred this appeal. 6. We have heard the learned counsel appearing for the appellants and the learned SPP. 7. The learned counsel appearing for the appellants submitted that the prosecution has miserably failed to prove that accused have committed the offence as alleged against them. The evidence of the complainant and his servant’s son – P.Ws.11 & 13 are not truthful and reliable. The evidence of P.W.17 – an eye witness is also not truthful and reliable and P.W.20 who is also an eye witness according to the prosecution, has not supported the case of the prosecution and was treated as hostile and recovery is not proved in accordance with law. Further, the prosecution has also failed to prove the motive for having committed the offence and the trail Court has not properly appreciated the oral and documentary evidence and the prosecution has miserably failed to prove the guilt of the accused. Therefore, the judgment of conviction and sentence passed by the trial Court is liable to be set aside and the appellants be acquitted of their charge of having committed the offences punishable under Sections 307 r/w 34 IPC and Sections 302 r/w 34 IPC. 8. The learned SPP appearing for the respondent-State submitted that evidence of the eye witnesses – P.Ws.11, 13 & 17 among whom P.Ws.11 & 13 are injured witnesses, is truthful and reliable and nothing has been elicited in their cross examination to disbelieve their evidence. Their evidence is corroborated by the evidence of P.W.17 and the mere fact that P.W.20 has turned hostile, would not discredit the evidence of P.Ws.11 13 & 17 and recovery made on the basis of voluntary statements of accused and also other circumstances proved by the prosecution would clearly prove the guilt of the accused. The sentence imposed is also proportionate to the offences proved and cannot at all be said to be excessive so as to call for interference in this appeal and he sought dismissal of the appeal. 9. The sentence imposed is also proportionate to the offences proved and cannot at all be said to be excessive so as to call for interference in this appeal and he sought dismissal of the appeal. 9. Having regard to the contentions urged in this appeal, the points that arise for determination are: (1) Whether the finding of the trial Court that the prosecution has proved beyond reasonable doubt that accused Nos.1 & 2 have committed the offences punishable under Section 307 r/w 34 IPC and Section 302 r/w 34 IPC and sentence passed against accused Nos.1 & 2 therein is justified or calls for interference in this appeal? (2) What order? We answer the above points as follows: (1) The finding of the trial Court is justified and does not call for interference. (2) As per final order for the following reasons: 10. We have given our careful consideration to the contentions of learned counsel appearing for the parties and scrutinized the material on record. 11. The prosecution in order to bring home the guilt of the accused, is relying upon the motive, evidence of eye witnesses P.Ws.11, 13 & 17 and circumstantial evidence as also recovery made on the basis of voluntary statement given by accused No.1 and expert evidence of P.W.23, the ballistic expert – P.W.25 and forensic science laboratory report. The prosecution has relied upon the evidence of P.W.11 – complainant and P.W.13 who accompanied him at the time of incident and also the evidence of P.W.17 who is the brother of the deceased Thammaiah @ Dali. P.W.20 who is also an eye witness has not supported the case of the prosecution. 12. P.W.11 has deposed in his examination-in-chief in consonance with the averment made in the complaint and has deposed that he is a resident of Theralu village. He knew Dali @ Thammaiah and he knew accused Nos.1 & 2 in this case. He has deposed in his examination-in-chief that on 28-4-2002 in the morning at about 10.00 a.m., Dali @ Thammaiah called his father (P.W.12) in his house requesting to send him along with the tiller to his land to transport firewood from his land to his house at Theralu village on hire basis. The land of Thammaiah is at a distance of about 1 k.m. from his house. The land of Thammaiah is at a distance of about 1 k.m. from his house. Accordingly, himself and Chippanna – P.W.13 went in the tiller to the land of Thammaiah at about 11.10 a.m. on 28-4-2002. At that time, Dali @ Thammaiah and his servant were already present in the said land. They loaded the firewood to the tiller in the land of Dali @ Thammaiah and he drove the tiller and carried the firewood therein to the house of Dali @ Thammaiah from his land. Then at about 11 a.m. they unloaded the firewood in the house of Dali @ Thammaiah. As per the directions of Dali @ Thammaiah, they again went with the tiller to his land to bring another load of firewood from his land. Thereafter they loaded firewood in the tiller from the land of Dali @ Thammaiah and when they reached the spot near Pappadamara bane after loading the firewood for the second time and were proceeding to the house of Dali @ Thammaiah, accused No.1 fired them with SBBL gun which he was holding and at that time, accused No.2 who is the wife of accused No.1 fired them with SBBL gun which he was holding and at that time, accused No.2 who is the wife of accused No.1 was also present. The said gun shot hit him and also to Chippanna –P.W.13 and he sustained pellet injuries at the front side right shoulder at two places, center of his chest and on his left side below abdomen and sustained bleeding injuries. Chippanna – P.W.13 received the gun shot hit on his back side right leg and on his right toe. He also sustained bleeding injuries and at that time, both were in the tiller. Dali @ Thammaiah was also in the tiller sitting on the top of the firewood load. The first hit of gun shot from accused No.1 towards them was from the distance of about 15 feet. The distance between the land of Dali @ Thammaiah and the scene of offence is about 1 km. As soon as he received the gun short, he took his servant’s son Chippanna and got down from the tiller and ran away from the tiller after stopping it. At that juncture, accused No.1 was hiding himself behind the bush and as soon as he was running with Chippanna, accused No.1 came out of the bush. As soon as he received the gun short, he took his servant’s son Chippanna and got down from the tiller and ran away from the tiller after stopping it. At that juncture, accused No.1 was hiding himself behind the bush and as soon as he was running with Chippanna, accused No.1 came out of the bush. Then the accused No.1 again fired Dali @ Thammaiah with the SBBL gun and the said Dali @ Thammaiah sustained gun shot on his right side shoulder and right side neck. Thereafter, the said Dali @ Thammaiah fell down the firewood load from the tiller on the road side and sustained bleeding injuries. Again accused No.1 fired at Dali @ Thammaiah with SBBL gun for the second time on his right side neck below ear and again for the third time also, accused No.1 fired gun shot to the victim Dali @ Thammaiah on his right side ribs. At that juncture, accused No.2 was providing live cartridges to accused No.1. He has further deposed that they were going in the tiller in a straight road nearby the spot and after he received gun shot hit and while he was running away, he used to see towards backside and thus he could see the act of accused No.1 firing for three times to the victim Dali @ Thammaiah. After he received the gun shot, he ran away with Chippanna for a distance of about half a kilometer. He has further deposed that after the incident, accused Nos.1 and 2 went to their house with the SBBL gun. The distance between the scene of offence and the house of accused is about half a kilometer. He has further deposed that while loading the firewood in the tiller in the land of Dali @ Thammaiah, both the accused Nos.1 & 2 questioned the said Dali @ Thammaiah as to why he is loading the firewood and that the said firewood belonged to accused Nos.1 & 2 and thus accused Nos.1 and 2 asserted their claim. But the victim Dali @ Thammaiah replied asserting that the firewood belonged to him and it was about 12.00 noon. At that juncture, accused Nos.1 & 2 gave the threat uttering to the victim Dali @ Thammaiah that “ninage kalisuttene” i.e., they would teach him a lesson. But the victim Dali @ Thammaiah replied asserting that the firewood belonged to him and it was about 12.00 noon. At that juncture, accused Nos.1 & 2 gave the threat uttering to the victim Dali @ Thammaiah that “ninage kalisuttene” i.e., they would teach him a lesson. So uttering in the land of Dali @ Thammaiah, the accused Nos.1 and 2 went to their house. At the time of uttering in the land of Dali @ Thammaiah at the time of first load, accused Nos.1 and 2 were not having any weapon. He has further deposed that after 15 minutes after the above incident and after he ran away from the tiller, he again turned back to the spot along with his servant’s son Chippanna and he found that victim Dali @ Thammaiah was dead. At that juncture, Ramesh – P.W.17 younger brother of Dali @ Thammaiah and P.W.21 were present near the dead body of Dali @ Thammaiah when he returned back to the spot after 15 minutes. On enquiry, he narrated the incident to them and he pointed out the scene of offence to them and thereafter himself along with his servant’s son Chippanna proceeded towards his house leaving the tiller at the spot itself. He reached his house and his father was there in the house and he narrated the incident to his father and thereafter, himself, Chippanna, his father and his mother went in the jeep of Bollera Muthanna driven by himself to Gonikoppa Government Hospital at 4.45 p.m. The doctor at Gonikoppa Govt. Hospital examined him and the injured Chippanna and gave the treatment. Thereafter, Gonikoppa police came to Gonikoppa Govt.Hospital and recorded his oral complaint reduced into writing as per Ex.P-10 and he has signed the same as per Ex.P-10(a). He was admitted in the hospital for one day and so also, his servant’s son Chippanna was also admitted in the hospital for one day. He has identified SBBL gun – M.O.4 and he has also identified his shirt – M.O.5 which he was wearing at the time of incident. 13. P.W.13 – Chippanna who is an eye witness and the injured, has deposed in his examination-in-chief that he knows P.W.11 – complainant and his father – Nanaiah and is working under P.W.11 as coolie in his coffee estate at Theralu. He knows accused Nos.1 and 2. 13. P.W.13 – Chippanna who is an eye witness and the injured, has deposed in his examination-in-chief that he knows P.W.11 – complainant and his father – Nanaiah and is working under P.W.11 as coolie in his coffee estate at Theralu. He knows accused Nos.1 and 2. He sustained gun shot injury on his right knee and on his left big toe and at that time, accused No.1 fired the gun shot towards him. At that time, wife of accused No.1 was also present with the accused No.1 and accused No.2 was supplying cartridges. Accused No.1 was having SBBL gun in his hand. At that time, in the tiller along with him, the deceased Dali @ Thammaiah, Nanaiah, Nanaiah @ Ramesh – P.W.12 and Bollera Devaiah – P.W.11 were present. The complainant was driving the tiller at that time and the firewood was loaded in the said tiller. The deceased Dali @ Thammaiah was sitting by the side of P.W.11. Apart from him, the gun shot hit came and hit the said tiller and also to the complainant – P.W.11. Soon after himself and P.W.11 – Devaiah received the gun shot hit, they together ran towards the house of Dali @ Thammaiah from the tiller. Thereafter himself, the complainant-P.W.11, Ramesh @ Nanaiah – P.W.12 along with jeep owner Muthanna went in the said jeep to Gonikoppa Govt.Hospitla for treatment and he was admitted in the hospital for one day and the complainant – P.W.11 was also admitted in the hospital for one day and the accused No.1 fired gun shot towards them at about 3.00 p.m. on the date of the incident. 14. P.W.17 – B.K. Ramesh is younger brother of deceased Thammaiah. He has deposed in his examination-in-chief that on 28-4-2002 at about 2.00 p.m. when he was in his estate – Poppadamada bane, he saw that a tractor tiller which was loaded with firewood was coming on the road and P.W.11 was driving the tractor and deceased Thammaiah was sitting on the firewood loaded in the tiller and one boy – Chippanna was sitting by the side of the driver. When the tractor tiller was coming on the road, he was standing by the side of the road in his estate, he heard the bullet sound. Suddenly he came to main road. When the tractor tiller was coming on the road, he was standing by the side of the road in his estate, he heard the bullet sound. Suddenly he came to main road. Simultaneously he heard hue and cry of one person, driver of the tiller and second bullet fire was hit to his elder brother Thammaiah who was sitting on the firewood in the tiller and accused No.2 – Anitha was supplying the bullets to accused No.1 to load them and abetting to open the fire against Thammaiah. Accused No.1 has opened fire against his brother three times. First bullet hit on right side hand and body of his brother Thammaiah. Second round fire hit on below the right ear on the neck and third bullet hit on the neck. After opening the fire four times, when Thammaiah fell down to the ground, both accused Nos.1 & 2 went away with the impression that he died in the spot. Since accused No.1 was holding the gun, he could not try to pacify the incident and his brother fell down to the ground and died. All his cloths were stained with blood. He saw the dead body of his brother and was shocked and sat by weeping. At that time, Shivappa and wife of the deceased – Kusuma, his sister-in-law came to the spot and enquired with the driver of the tiller – P.W.11 who has sustained bullet injuries upon his chest and a boy – Chippanna who has also sustained bullet injuries to his legs. Later on Shivappa intimated the incident to his father. Then injured P.W.11 – Devaiah and P.W.13 – Chippanna were shifted to the hospital for treatment. He has identified the gun which is marked as M.O.4 and he has also identified the cloths of his brother as per M.Os.1 to 3. He has further deposed that landed property of accused was adjacent to the land belonging to his elder brother Thammaiah and since there was a property dispute between them, it resulted in this incident. 15. He has identified the gun which is marked as M.O.4 and he has also identified the cloths of his brother as per M.Os.1 to 3. He has further deposed that landed property of accused was adjacent to the land belonging to his elder brother Thammaiah and since there was a property dispute between them, it resulted in this incident. 15. The above said facts spoken to by P.Ws.11, 13 & 17 amongst whom P.Ws.11 & 13 are injured witnesses will have to be appreciated in the light of the facts elicited in the cross examination and also the evidence of other witnesses and material placed on record by the prosecution to find out whether their evidence is truthful, cogent, consistent and reliable. 16. It is elicited in the cross examination of P.W.11 that they had purchased the tiller one year prior to the incident. He does not remember the number of the said tiller. The seat of the driver of the tiller was of the length 4 feet and his servant’s son – Chippanna – P.W.13 was sitting at his left side and there is space in the tiller nearby the driver seat to keep or to place the legs and to apply brake. He was placing his right leg on the brake of the tiller whereas, he was placing his left leg in the space nearby the driver seat. The said road leads from his house to Birunani and by the side of the road there is the house of victim Dali and the distance between his house and the house of Dali is about 1 ½ kms. The width of the road nearby the scene of offence is about 12 feet. On either side of the said road, there is forest having big bushes. He does not know the type of firewood which was loaded in the tiller. At the place where firewood was stocked, there is garden land and all the three sides there is jungle having small bushes. It is further elicited in the cross examination that first gun shot hit was fired towards him and Chippanna at the scene of offence from behind the bushes which is one km. away from the land of Dali @ Thammaiah. Some pellets came to hit to the body of the tiller also. The said pellets came to hit towards the right side of the tiller. away from the land of Dali @ Thammaiah. Some pellets came to hit to the body of the tiller also. The said pellets came to hit towards the right side of the tiller. His father showed the tiller to the police but he has not showed the tiller to the police. When the gun shot was fired towards him and Chippanna, it was only gun shot. At the time of incident, he was wearing half pant. When the tiller was moving, accused No.1 fired the gun shot at him and Chippanna for the first time. The said road was visible for a distance of about 20 feet ahead from the place where he received the first gun shot from accused No.1. After the distance of about 20 feet from the scene of offence on the road, there is little curve and the same road leads towards Birunani. After they received the gun shot hit for the first time, himself and Chippanna together ran away for about half a k.m. towards Birunani. After crossing the distance of about half a k.m., himself and Chippanna returned back to the scene of offence by walking briskly. It is also elicited in the cross examination that when they returned back, they found the victim Dali had fallen into the drain situated by the side of the road at the left side of the road leading towards Birunani. The drain situated by the left side of the road wherein the victim Dali @ Thammaiah had fallen is at the distance of about 5 feet from the place where he had stopped his tiller and in the drain blood had fallen. When they so returned back to the scene of offence, one Ramesh, brother of the victim Dali @ Thammaiah and Shivappa were present near the scene of offence. It was about 2.00 p.m. when they returned back to the scene of offence and they narrated the incident to Ramesh and Shivappa and immediately they left and went back to their house. It is further elicited in the cross examination that when they were so proceeding to Gonikoppa Govt. Hospital, they had been to Srimangala Police Station on the way and narrated the incident to the police. It is further elicited in the cross examination that when they were so proceeding to Gonikoppa Govt. Hospital, they had been to Srimangala Police Station on the way and narrated the incident to the police. But the police in Srimangala Police Station did not record his statement but they recorded his statement in the Gonikoppa hospital and they were in Srimangala police station for about five minutes. It is further elicited in the cross examination that on the date of incident, he saw for the first time accused Nos.1 & 2 in the land of Dali @ Thammaiah when the first load of firewood was being loaded. Their tiller went inside the land of Dali @ Thammaiah near the place where the firewood was stocked. He did not point out to the police the place in the land of Dali @ Thammaiah where the firewood was stocked. Apart from Victim Dali @ Thammaiah, there were other two servants who loaded the firewood in his tiller. He does not know the names of those two servants but he can identify them. He has denied a suggestion that he did not actually see the shooter who fired the other three gunshots subsequently towards victim Dali @ Thammaiah and at the time of incident, he had not seen accused Nos.1 & 2. He has also denied a suggestion that when he has narrated the incident to the police in Srimangala police station, he did not refer the names of accused Nos.1 & 2 as responsible for the incident and that during the course of narrating the incident to the police in the police station, he had stated that he does not know the name of the shooter. 17. It is elicited in the cross examination of P.W.13 – Chippanna that the firewood stocked was in jungle. The distance between the main road and the place where the firewood was collected is about one furlong. He knew the accused Nos.1 & 2 previously prior to the incident. The distance between his house and the house of accused is about 1 k.m. The accused Nos.1 & 2 used to go to the shop through different road but not through the road running in front of their houses. The firewood was loaded in the tiller. The balance of firewood remained stocked in the jungle. The gun shot was fired from the bush towards the tiller. The firewood was loaded in the tiller. The balance of firewood remained stocked in the jungle. The gun shot was fired from the bush towards the tiller. The distance between their tiller and the said bush was about 8 to 10 feet. When the gunshot was fired from the bush he was sitting on the driver seat. There is only one seat to the said tiller. He was sitting at the left side of Devaiah – P.W.11 on the seat in the tiller. Soon after he received the gun shot hit, he came to know that it was gun shot hit. The tiller was proceeding at that time towards Theralu village and he was sitting on the seat to the left side of P.W.11 facing towards Theralu. The gun shot came from the front side. Soon after himself and Devaiah – P.W.11 received gun shot hits, they ran towards Theralu and so running, they both went to the house of Dali @ Thammaiah. They did not receive first aid treatment in the house of Dali @ Thammaiah. They narrated the incident to the wife of Dali @ Thammaiah and himself and Devaiah – P.W.11 proceeded to their house. Thereafter they went to the house Muthanna and they were taken to the hospital. 18. It is elicited in the cross examination of P.W.17 that the road goes from forest to Birunani and buses and vehicles passes through the road. The place from where the gun shot was fired is a jungle. It is false to suggest that on 28-4-2002 he had been to Dharmasthala temple. It is further elicited in the cross examination that his statement was recorded on 29-4-2002 at about 9.30 p.m. Poonacha, Shivappa and Mandanna were present at that time. Their statements were also recorded. He had stood in the forest land about 15 feet away from road in opposite direction of his coffee estate. His elder brother was placed on the firewood stock which was loaded in the tiller and he was sitting facing front. At the gun shots were fired one after another from left side. The first gun shot was fired against his brother at a distance of 15 ft., second at a distance of 10 ft and third was shot at a distance of 5 ft. When the first bullet was shot, he had fallen to the ground. At the gun shots were fired one after another from left side. The first gun shot was fired against his brother at a distance of 15 ft., second at a distance of 10 ft and third was shot at a distance of 5 ft. When the first bullet was shot, he had fallen to the ground. It is also elicited in the cross examination that no blood was fallen on the firewood stocked on the tiller. The blood had fallen profusely on the ground. He had shown the place of incident to the police at 7.30 p.m. When the police had come, Shivappa, Poonacha were also present. He does not know whether mahazar was prepared. It is further elicited that he was at the spot about 15 to 20 minutes. When the first fire was opened, it hit on the right side of the chest of Devaiah. He has not stated before the police about Devaiah receiving the gun shot. Chippanna has also received injuries to his leg. He has not stated to the police this fact. He has not stated before the police that on 28-4-2002 Poonacha had come to the spot. He has not observed during his stay of about 20 minutes at the spot, the people or the vehicle passing through the road. He used to reside permanently at Balele village and he own properties there. The distance between Balele and the place of incident is about 47 kms. He has denied a suggestion that in Theralu village, no landed property stands in his name. He has stated before the police that he is owning immovable landed property at Theralu village. He had also spoken to Devaiah coming to the place. He has narrated the facts to the police. He also owns similar type of SBBL gun like M.O.4 which he has kept in Balele village and there is a long standing dispute and ill will between their family and family of the accused and Bollera family. It is false to suggest that he had not been to the spot and had not witnessed the incident personally and he is deposing falsely in this case. 19. The prosecution in order to bring home the guilt of the accused must first prove that Dali @ Thammaiah suffered homicidal death and that P.W.11 – Devaiah and P.W.13 – Chippanna sustained pellet injuries. 20. 19. The prosecution in order to bring home the guilt of the accused must first prove that Dali @ Thammaiah suffered homicidal death and that P.W.11 – Devaiah and P.W.13 – Chippanna sustained pellet injuries. 20. The prosecution is relying upon the evidence of P.W.4 – Dr. C. Nataraj – medical officer who conducted post mortem examination on the dead body of Thammaiah @ Dali on 29-4-2002 at about 10.00 a.m. He has deposed in his examination-in-chief that he found that rigor mortis present all over the body and found the following external injuries. “1. Entry wound: A wound of 10 x 8 c.m. seen over the right side of neck extending upto the right side of face just below right ear. It is inverted in shape running laterally upwards. The margins of the wound is contused. There is blacken of the surrounding skin of the wound. Exit Wound: It is 9 x 10 cm present on left side of neck below left ear the wound is extending up to left side of face. The edge of the wound is everted. There is no blacken of the skin around the wound. Multiple wounds were seen on the chest, abdominal wall, left arm, left fore arm, right arm, right fore arm each of about 1 – 3 cms in diameter. Lacerated wound present over the right elbow joint measuring about 9x8 cm. There is no blacken around the skin of the wound. There is an abarated wound over left side of frontal bone measuring about 2 x 2 cm. He has spoken to about cloths which were found on the body of Thammaiah @ Dali and has opined that death was due to cerebral shock, caused due to injury to the carotid arteries and accordingly, he issued post mortem report at Ex.P-3. He has also deposed that injuries mentioned in the post mortem are antemortem in nature. Thammaiah @ Dali must have died more than 10 hours prior to the post mortem examination. Injury No.1 is the gun shot entry wound. The injury exit wound is also the gun shot wound. Injury No.3 multiple wound are also the gun shot injury. He cannot say if other injuries like lacerated wound and abrated wound are gun shot injuries or by any other means. Injury No.1 is the gun shot entry wound. The injury exit wound is also the gun shot wound. Injury No.3 multiple wound are also the gun shot injury. He cannot say if other injuries like lacerated wound and abrated wound are gun shot injuries or by any other means. If the assailant shoots the victim with the gun shot and if the victim falls on the rough surface or ground, then the injuries like lacerated wound and abrated wounds are possible and the gun shot might have fired from the right side of the victim because entry wound No.1 is at the right side of neck of the victim and that there is exit wound at left side neck and from the entry wound and exit wound it can be said that gun shot fired was from close range. He has also deposed that he has collected blood stained cloths from the death body and handed over to the police. 21. Nothing has been elicited in his cross examination to disbelieve his evidence that Thammaiah @ Dali had sustained gun shot injuries and he died due to cerebral shock caused due to injury to be carotid arteries. It is elicited in his cross examination that the assailant must have stood by the side of the deceased and shot from the gun; multiple injuries are seen in the chest, abdominal wall, left and forearm and the injuries may be caused with the iron rod or club. He found more than three gun shot injuries, out of that, one is from a contact range and in other two injuries, there are no exit wounds. The pellets have traveled inside the body in such injuries and on account of the same, he say that it is from long distance at about 15 feet or 20 feet. He cannot say that whether these three gun shot injuries would have caused by single person or different person and whether single weapon or different weapons are used. 22. The inquest report on the body of the deceased was prepared after noticing the injuries. Ex.P-3 would also show that Thammaiah @ Dali had sustained gun shot injuries and therefore it is clear that Thammaiah @ Dali died due to gun shot injuries. The fact that Thammaiah @ Dali suffered homicidal death is also not disputed by the accused. 22. The inquest report on the body of the deceased was prepared after noticing the injuries. Ex.P-3 would also show that Thammaiah @ Dali had sustained gun shot injuries and therefore it is clear that Thammaiah @ Dali died due to gun shot injuries. The fact that Thammaiah @ Dali suffered homicidal death is also not disputed by the accused. However, according to the prosecutor it was accused No.1 shot from SBBL gun abetted by his wife and according to defence witnesses were not aware of the shooters who caused gun short injuries to Thammaiah @ Dali and caused his homicidal death and therefore, prosecution has proved beyond reasonable doubt that Thammaiah @ Dali suffered homicidal death. 23. The prosecution has proved beyond reasonable doubt that P.Ws.11 & 13 had also sustained gun short injuries. P.W.5 – Dr. A.S. Saroja who has examined P.Ws.11 & 13 at CHC, Gonikoppa has deposed in her evidence that she examined P.W.11 – Devaiah and found the following injuries: 1. “Pellet entry wound seen over the left side of the abdomen in the inguinal region, measuring about 2.2 to 3 cms, oval in shape surrounding area is red in colour, and slight bleeding. 2. Pellet entry wound seen over the right shoulder measuring about 2cm and oval in shape, surrounding area is red in colour, slight bleeding. 3. Pellet entry wound seen over the middle of the chest in the sternal area measuring about 2cm oval in shape, surrounding area is red in colour, slight bleeding. 4. Pellet entry wound seen over the right upper part of the chest measuring about 2 x 3 cm. It is irregular in shape, surrounding area is reddish, slight bleeding.” She has also stated that X-ray No.709 dated 28-4-2002 shows pellets inside the wounds. She has also deposed that accordingly she has issued wound certificate and bears her signature as per Ex.P-4. The injured Devaiah disclosed the above history before her. P.W.5 – Dr. A.S. Saroja has also deposed that all the injuries contained in Ex.P-4 are gunshot injuries. She also deposed that P.W.13 – Chippanna was also examined by her on 28-4-2002 and she found the following injuries: 1. “Pellet entry wound seen over the right posteror aspect of the knee measuring about 3 cms oval in shape, slight bleeding, surrounding there is reddish. 2. She also deposed that P.W.13 – Chippanna was also examined by her on 28-4-2002 and she found the following injuries: 1. “Pellet entry wound seen over the right posteror aspect of the knee measuring about 3 cms oval in shape, slight bleeding, surrounding there is reddish. 2. Pellet entry wound seen over the left medical aspect of the toe measuring about 2cm oval in shape, surrounding over reddish in colour and slight bleeding.” X-ray No.710/29-4-2002 reveal that there were pellets inside the wound. She has also deposed that one B.M. Nanaiah – C.W.7 had accompanied the injured. Nothing has been elicited in the cross examination to disbelieve the evidence that P.Ws.11 & 13 have also sustained gun shot injuries and the fact that in the same incident in which Dali @ Thammaiah suffered gun shot, which is not disputed by accused Nos.1 & 2. According to the defence of accused Nos.1 & 2, it is not accused No.1 who fired from SBBL gun and the witnesses do not know who shot towards P.Ws.11 & 13 and Dali @ Thammaiah. Therefore, prosecution has also proved beyond reasonable doubt that P.Ws.11 & 13 also sustained gun shot injuries. The prosecution in order to bring home the guilt of the accused, has to prove that it was accused No.1 at the instigation of accused No.2 who shot from SBBL gun and caused gun shot injuries to P.Ws.11 & 13 and Dali @ Thammaiah who suffered homicidal death due to the injury and P.Ws.11 & 13 had sustained injuries as per the wound certificate issued by P.W.5 by which accused No.1 shot at them from SBBL gun and accused No.2 was supplying cartridges to accused No.1 and instigated him to cause injury and kill Dali @ Thammaiah. 24. It is clear on appreciation of the evidence of P.Ws.11 & 17 that P.Ws.11 & 13 are injured eye witnesses. They have also been injured by gun shot. The evidence of P.W.5 would clearly show as per wound certificate Exs.P-4 & 5 that they had sustained entry wound and there were pellets inside the body on the injury sustained by them. Further, the evidence of P.Ws.11 & 13 has to be appreciated to find out as to whether the evidence is truthful, reliable, cogent and consistent and should be made the basis for bringing home the guilt of the accused. 25. Further, the evidence of P.Ws.11 & 13 has to be appreciated to find out as to whether the evidence is truthful, reliable, cogent and consistent and should be made the basis for bringing home the guilt of the accused. 25. It is clear from the facts elicited in the cross examination of P.Ws.11 that nothing has been elicited in his cross examination to disbelieve his evidence that he has witnessed the incident of accused No.1 causing gun shot injury to himself. P.W.13 – Chippanna and Dali @ Thammaiah. Apart from suggesting that the witnesses – P.Ws.11 & 13 have not seen accused No.1 shooting from the gun which he was holding and that the gun shots were from some other persons and that they had deposing falsely, it is denied by the witnesses the suggestion that they are deposing falsely to implicate the accused. The other material elicited in the cross examination of P.W.11 would itself show that the said facts reiterate the fact about the presence of P.Ws.11 & 13 at the spot and that they have witnessed the incident and that accused No.1 shot from SBBL gun which he was holding and accused No.2 was present and was supplying live cartridges to accused No.1 to enable him to shoot at P.Ws.11, 13 & Dali @ Thammaiah. It is elicited in the cross examination of P.W.11 that the first gun shot hit was fired towards him and Chippanna (P.W.13) at the scene of offence from behind the bushes. Some pellets came to hit to the body of the tiller also and the said pellets came to hit towards right side of the tiller. His father showed the tiller to the police. When the gun shot was fired towards him and Chippanna, it was only gun shot and at the time of incident, he was wearing half pant. It is further elicited in the cross examination that tiller was in moving condition when accused No.1 fired the gun shot at him and Chippanna for the first time. The said road was visible for the distance of about 20 feet. After they received the gun shot hit for the first time, himself and his servant’s son Chippanna (P.W.13) together ran away about ½ km. towards Birunani and himself and P.W.13 again returned back to the scene of offence from such distance of ½ cm. The said road was visible for the distance of about 20 feet. After they received the gun shot hit for the first time, himself and his servant’s son Chippanna (P.W.13) together ran away about ½ km. towards Birunani and himself and P.W.13 again returned back to the scene of offence from such distance of ½ cm. by walking briskly and they found Dali @ Thammaiah had fallen into the drain situated by the side of the road. It is also elicited that P.W.17 – Ramesha – younger brother of Dali @ Thammaiah and Shivappa were present at the scene of offence and when they again returned to the spot, he remained at the spot for about 2 minutes and narrated the incident to Ramesh and Shivappa. It is further elicited in the cross examination of P.W.11 that he saw for the first time accused Nos. 1 and 2 in the land of Dali @ Thammaiah where firewood was stocked. It is submitted by learned counsel appearing for the appellants that the evidence of P.W.11 would show that himself and Chippanna – P.W.13 ran away from the spot after first gun shot and they could not have seen the gun shot injury caused to Dali @ Thammaiah and that they returned to the spot after the incident was over and he also submitted that it is elicited in the cross examination of P.W.11 that on the way to Gonikoppa hospital, they had been to Srimangala Police Station but the police did not record his statement at the police station and the police at Gonikoppa recorded his statement in his Gonikoppa hospital and therefore, original complaint might have given when they had gone to the police station before going to the hospital and the said complaint has been suppressed. 26. 26. There is no merit in the said contention as it is clear from the evidence of P.W.11 that he has clearly explained in his examination-in-chief as to how after sustaining gun shot injury, himself and Chippanna stopped the tiller at the spot and ran away to some distance and found accused Nos.1 & 2 and while they were seeing, accused No.1 going near Dali @ Thammaiah and causing gun shot injuries to him and Dali @ Thammaiah fell down from the top of the load of firewood and thereafter also he was injured by gun shots fired by accused No.1 and accused No.2 was supplying live cartridges to accused No.1. Further, the facts elicited in the cross examination would itself show that they have visited Srimangala police station before going to Gonikoppa hospital. Since they were injured, they were sent to the hospital and statement was recorded in the hospital and no statement was recorded in the police station and therefore suppression of original complaint as alleged by learned counsel for the appellant does not arise. 27. Similarly, on appreciation of evidence of P.W.13 – Chippanna, it is clear that his evidence would corroborate with the evidence of P.W.11 regarding the incident and nothing has been elicited in his cross examination to disbelieve his evidence about gun shot injuries sustained by himself and P.W.11 and gun shot injuries caused to Dali @ Thammaiah who succumbed to the injuries later and that it was accused No.1 who caused gun shot injuries and it was accused No.2 – wife of accused No.1 who was supplying live cartridges to accused No.1 and was instigating him to kill Dali @ Thammaiah. Suggestion made to this witness that he has not seen as to who caused the gun shot injuries and it was not accused Nos.1 & 2 who caused gun shot injuries from SBBL gun which he was holding, has been denied by the witness and that he is deposing falsely to help P.W.11 has also been denied by P.W.13. The facts elicited in the cross examination of this witness would also reiterate his presence at the scene of offence and accused Nos.1 & 2 being present and accused No.1 causing sun shot injury to P.Ws.11 & 13 and Dali @ Thammaiah and accused No.2 was supplying live cartridges to accused No.1 instigating him to kill Dali @ Thammaiah. The facts elicited in the cross examination of this witness would also reiterate his presence at the scene of offence and accused Nos.1 & 2 being present and accused No.1 causing sun shot injury to P.Ws.11 & 13 and Dali @ Thammaiah and accused No.2 was supplying live cartridges to accused No.1 instigating him to kill Dali @ Thammaiah. Further, it is elicited in his cross examination of this witness that he knew accused Nos.1 & 2 even prior to the incident. Accused Nos.1 & 2 used to go to a shop of Mandamaiah nearby his house. Firewood was loaded in the tiller. Gun shot was fired from the bush towards the tiller. The distance between the tiller and the said bush was about 8 to 10 feet. He has pointed out the distance by showing the distance between witness box and the eastern wall of the court hall. When the gun shot was fired, he was sitting on the driver seat by the side of P.W.11. Soon after he received gun shot, he came to know that it was gun shot hit and tiller was proceeding at that time towards Theralu village and he was sitting on the seat to the left side of P.W.11 facing towards Theralu and gun shot came from the front side. Soon after himself and P.W.11 received gun shot hit, they ran towards Theralu and both went to the house of Dali @ Thammaiah. 28. Learned counsel for the appellants submitted that facts elicited in the cross examination would show that according to P.W.13, gun shots were fired from the front side and according to P.W.11 gun shot was fired from the right side and gun shot hit the body of tiller on the right side. This cannot be said to be the material inconsistency in the evidence of P.Ws.11 & 13 as P.Ws.11 & 13 have been injured by gun shot hit and that at the spot, P.W.11 had stopped the tiller and P.W.13 was moving away from the tiller. Having regard to the circumstances in which they were placed at the situation, it is clear that such minor discrepancies would not assume much importance when gun shot injuries were sustained by P.Ws.11 & 13 and Dali @ Thammaiah and that it was caused by accused No.1 at the instigation of accused No.2 which is found to be truthful and reliable. 29. 29. It is clear from the appreciation of the evidence of P.W.17 that P.W.17 has not spoken to about accused No.1 who caused injury to P.Ws.11 & 13 as by the time he came to the road, he saw accused No.1 shooting at his brother Dali @ Thammaiah and he saw the driver going on the road having stopped the tiller and his evidence is not helpful to prove that it was accused No.1 who caused gun shot injury to P.Ws.11 & 13. Further, his evidence would show that it was accused No.1 who caused gun shot injury to his elder brother Dali @ Thammaiah and accused No.2 was supplying bullets to accused No.1 to load them and abetting to open fire against Thammaiah and take his life. 30. It us clear from the facts elicited in the cross examination that though his evidence is inconsistent with the evidence of P.Ws.11 & 13 so far as injury caused to P.Ws.11 & 13, his evidence would clearly show that it was accused No.1 who caused gun shot injuries to Dali @ Thammaiah and accused No.2 – wife of accused No.1 was present at the spot and was instigating by supplying live cartridges to accused No.1 to kill Dali @ Thammaiah. To that extent, it is helpful to the prosecution to corroborate the evidence of P.Ws.11 & 13. IT is also clear from the evidence of P.Ws.12, 17 & 21 to the effect that they have seen the gun shot injuries on P.Ws.11, 13 & Dali @ Thammaiah. Therefore, it is clear that P.Ws.11, 13 & Dali @ Thammaiah sustained gun shot injuries is not disputed by the accused. However, according to them, it was not accused No.1 at the instigation of accused No.2 caused gun shot injuries to them. Therefore, the evidence of P.Ws.11 & 13 is also corroborated regarding site of injury on P.Ws.11, 13 and Dali @ Thammaiah and also injuries sustained by P.Ws.11 & 13 as per Exs.P-4 & 5 which is corroborated by the evidence of P.W.5. Therefore, the evidence of P.Ws.11 & 13 is also corroborated regarding site of injury on P.Ws.11, 13 and Dali @ Thammaiah and also injuries sustained by P.Ws.11 & 13 as per Exs.P-4 & 5 which is corroborated by the evidence of P.W.5. The mere fact that there may be minor discrepancies regarding distance from which accused No.1 had fired from his SBBL gun to cause gun shot injury between the evidence of eye witnesses and the doctor, the same would not be material so as to doubt the evidence of eye witnesses who are eyes and ears of justice and is held to be truthful and reliable it is also well settled that medical officers are examined only to prove the injuries that are found on the body of persons whom they are examined as held by the Hon’ble Supreme Court in Dharma vs. Nirmal Singh @ Bittu & Another (1996 SCC (Crl.) 444). 31. The evidence of P.W.17 also corroborates the evidence of P.Ws.11 & 13 insofar as gun shot injuries caused to Dali @ Thammaiah and accused No.2 who was present at the spot was instigating accused No.1 to cause gun shot injuries to Dali @ Thammaiah and finish him. The prosecution is also relying upon the recovery of SBBL gun on the basis of voluntary statement of accused No.1 and the documents pertaining to the said gun and also the evidence of Ballistic Expert – P.W.23 and Forensic Expert – P.W.25 to bring home the guilt of the accused. 32. It is clear from the evidence of P.W.15 that on the basis of voluntary statement of accused No.1 as per Ex.P-13, accused No.1 led him and produced SBBL gun which had been concealed and the same was seized under mahazar – Ex.P-14 and also produced the documents pertaining to the gun and blood stained cloths as per M.Os.6 to 8 were seized under mahazar Ex.P-15. The evidence of P.W.15 cannot be disbelieved only on the ground that he was a police officer as nothing has been elicited in the cross examination to disbelieve his evidence. The evidence of P.W.15 cannot be disbelieved only on the ground that he was a police officer as nothing has been elicited in the cross examination to disbelieve his evidence. The mere fact that P.W.22 who is a pancha to Ex.P-15 has not supported the case of the prosecution would not itself render recovery made on the basis of voluntary statement of accused No.1 improbable as the documents produced by accused No.1 would clearly show that he was the owner of SBBL gun. Further, the prosecution has proved that pellets were fired from M.O.4 and the same showed sign of discharge and that empty cartridges which were found on the spot was fired from SBBL gun recovered from accused No.1 on the basis of his voluntary statement. 33. P.W.23 – N.G. Prabhakar who is Assistant Director, Forensic Science Laboratory was working in the Ballistic Division of Forensic Science Laboratory, Bangalore. He has deposed that he had undergone training in Forensic Ballistics conducted by National Institute of Criminology and Forensic Science, New Delhi and he had also attended workshop on Wound Ballistics conducted by the Central Forensic Science Laboratory, Calcutta. He examined various types of fire arms and ammunition during his tenure. He has deposed that SBBL gun which was seized in this case had been sent to him for furnishing his opinion on 21-5-2002 and Article Nos.3 & 6 to 19 were received in the laboratory through Police Constable 208 of Srimangala Police Station and the seals on the said articles Nos.3 & 6 to 18 were intact and tallied with the sample seal sent by the Investigating Officer and the seal on article No.19 was intact and tallied with the sample seal sent by the medical officer. He opened the articles and noticed that article No.6 contained one shirt, article No.7 contained one 12 bore SBBL gun bearing Sl.No.5251-98 of Bjati & Co., Article No.8 contained one fired 12 bore cartridge case, article No.9 contained one fired 12 bore cartridge case, article No.9 contained one plastic wad, article Nos.10 to 13 contained 12 bore fire cartridge cases, article No.14 contained one plastic wad, article No.15 contained three deformed lead pellets, article No.16 contained one wad piece, article No.17 contained one full arm shirt, article No.18 contained one blue coloured jeans pant and article No.19 contained 9 deformed lead pellets. He has also received Xerox copy of the post mortem report of the deceased Thammaiah. He has also deposed that SBBL gun in article No.7 bears signs of discharge and was in working condition. The cartridge cases in article Nos.8, 10 & 12 have been fired through the SBBL gun in article No.7. However, he as stated that it is not possible to state as to whether the cartridge case in article No.13 has been fired through SBBL gun in article No.7 or not since the firing pin impression on the cartridge case is not clear. The wads in article Nos.9, 14 & 16 the lead pellets in article No.15 and 19 are the components of 12 bore cartridges and the same could have been fired through the SBBL gun in article No.7. The encircled holes on the shirts in article No.3 and 6 have been caused due to passage of lead pellets. The garments in article No.17 and 18 are unfit for examination. The approximate range of firing with respect to wound No.1 is beyond 6 feet and within 9 feet from the muzzle end of the gun. The holes on the shirt in article No.3 have been caused by more than 2 shots fired beyond 9 feet and within 40 feet from the muzzle end of the gun. He has issued the certificate in this regard as per Ex.P-22 which bears his signature at Ex.P-22(a). He has also stated that he has enclosed detailed method of examination as per Ex.P-23 and also the reasons for opinion furnished. He also stated that he can identify all the properties. Nothing has been elicited in his cross examination to disbelieve his evidence that SBBL gun which had been seized on the voluntary statement of accused No.1 was in working condition and cartridge cases at article Nos.8, 10, 11, 12 & 13 have been fired through SBBL gun and the encircled holes on the shirts at article Nos.3 and 6 have been caused due to the passage of lead pellets. In order to disbelieve the contents of Ex.P-22, it is elicited in the cross examination that in his opinion in Sl.No.8, he has not mentioned the damage that might have been caused to the shirt worn by the deceased and so far as Sl.No.9 is concerned, he cannot say the maximum number of shots that could have been fired, but he can only say that it is more than two shots and he has not mentioned the number of holes in the shirt. It is also elicited in the cross examination that he has noticed number of holes and he cannot say if it is said that more than 4 shots have been fired, the shot referred in Sl.No.8 is independent of shots referred in Sl.No.9. Therefore, the evidence of P.W.23 is helpful to the prosecution to prove that with the help of SBBL gun and at the instigation of accused No.2, accused No.1 fired at P.Ws.11, 13 and Dali @ Thammaiah and the shirts which were seized were bearing holes caused due to passage of lead pellets. 34. The evidence of P.W.25 is also helpful to the prosecution. P.W.25 – B. Nanjundappa is working as Ass.Director, Forensic Science Laboratory, Bangalore. He has deposed in his examination-in-chief that on 21-5-2002 he received four sealed articles concerned in this case of Srimangala police station and verified those articles. The labels and seals were intact and tallied with the invoice sent by the Investigating Officer as well as their samples. On 1-6-2002 another two articles were referred from fire arms section for further examination concerned to same crime number. He opened each of the articles and found that item No.1 – mud in a plastic container, item No.2 mud control in a plastic container, item Nos.3 to 6 were one shirt, one pant, one chaddi and one shirt respectively. The description of the parcels and the description of the articles are mentioned in page No.1 of chemical examination report. Those articles were properly registered under B.S.528/2002. He conducted tests on the stains which were found on each articles. By Catellitic and crystal test, those stains were confirmed that they are blood stains. He has noted the result of analysis in page No.2 of his report. Except item No.2, all the articles were stained with blood. Those articles were properly registered under B.S.528/2002. He conducted tests on the stains which were found on each articles. By Catellitic and crystal test, those stains were confirmed that they are blood stains. He has noted the result of analysis in page No.2 of his report. Except item No.2, all the articles were stained with blood. The details regarding number of stains, approximate size and location are clearly noted in his report – Ex.P-25. Apart from suggesting that he has not examined any articles which has been denied by him, nothing has been elicited in his cross examination to disbelieve his finding that there were blood stains on the cloths which had been sent to him, which were seized during the investigation. 35. On appreciation of the material on record relied upon by the prosecution to bring home the guilt of the accused, it is clear that the prosecution has proved beyond reasonable doubt that it was accused No.1 who fired gun shot form the SBBL gun which he was holding and caused bullet injury to P.Ws.11 & 13 and Dali @ Thammaiah. We have also held that prosecution has proved beyond reasonable doubt that Dali @ Thammaiah suffered homicidal death and therefore the evidence of the above said witnesses clearly show that accused No.1 fired gun shots at P.Ws.11, 13 & Dali @ Thammaiah at the instance of accused No.2 – wife of accused No.1, who was present with him was supplying live cartridges to accused No.1 to enable him to fire from SBBL gun which he was holding in furtherance of the common intention to kill Dali @ Thammaiah PW.11 and P.W.13. 36. There is no merit in the contention of learned counsel appearing for the appellants – accused that the evidence of P.Ws.11, 13 & 17 did not prove the presence of accused No.2 and that she participated in the commission of crime by accused No.1 and benefit of doubt may be given to her. 37. It is clear from the appreciation of the evidence of P.Ws.11 & 13 as already referred to above and also the evidence of P.W.17 that accused No.2 was present at the time of incident and accused No.1 was holding a gun and it was accused No.2 who was supplying live cartridges to accused No.1 and instigating him to cause gun shot injuries. Therefore, the very fact that accused No.2 was present with accused No.1 and was supplying live cartridges to accused No.1 to kill Dali @ Thammaiah would show that prosecution has proved beyond reasonable doubt that accused Nos.1 and 2 have committed the offence punishable under Section 302 r/w 34 IPC. 38. So far as it relates to causing gun shot injuries to P.Ws.11 & 13, it is clear that accused No.1 in the presence of accused No.2 and with her assistance, caused gun short injuries to P.Ws.11 & 13 while the tiller was in moving condition. Therefore, P.W.11 who was driving the tiller, stopped it and P.Ws.11 & 13 who suffered injury by the first gun shot from accused No.1 ran away to a distance from the tiller after stopping it. The evidence of P.W.5 would clearly show that injuries sustained by P.Ws.11 & 13 were simple, there were entry wound and x-ray reveals pellets at the site of injury inside the body. Having regard to the circumstances under which gun shot has been fired on P.Ws.11 & 13 by accused No.1, it is clear that it can be only with the intention of causing murder. If P.Ws.11 & 13 had not stopped the tiller and ran away to some distance, they would have been killed by further gun shots and accused No.1 would have been guilty of committing murder and therefore the offence committed by accused Nos.1 & 2 in furtherance of common intention in causing murder of to P.Ws.11 & 13 would clearly fall attempt to commit murder punishable under Section 307 r/w 34 IPC. 39. There is no merit in the contention of learned counsel for the accused that there was no intention to cause the death of P.Ws.11 & 13 and there is only one gun shot injury to P.Ws.11 & 13. 39. There is no merit in the contention of learned counsel for the accused that there was no intention to cause the death of P.Ws.11 & 13 and there is only one gun shot injury to P.Ws.11 & 13. When the intention is to cause murder is proved by the prosecution, the mere fact that the victim escaped and could not cause gun shot injuries is not relevant as it is well settled that for proving of the offence to commit murder, it is not necessary even an injury should have been caused with the intention to cause death and act on the part of victim escaping from the said injury sought to be enforced by the accused and if the victim had not escaped the injury, the accused would have been guilty of committing murder as held by Hon’ble Supreme Court in State of Maharashtra vs. Balram Bama Patil (1983 Crl.L.J 331 (SC). 40. Therefore, it is clear from the re-appreciation of the ocular and documentary evidence adduced by the prosecution before the trial Court that the prosecution has proved beyond reasonable doubt that accused Nos.1 & 2 have committed the offences punishable under Section 302 r/w 34 IPC and Section 307 r/w 34 IPC and sentencing them to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- each, in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 302 r/w 34 IPC and further sentencing them to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- each, in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 307 r/w 34 IPC, cannot be said to be excessive. It was ordered by the trial Court that both the substantive and default sentences to run concurrently. 41. Therefore, we hold that the judgment of conviction and sentence passed by the trial Court against the appellants is justified and does not suffer from any error or irregularity so as to call for interference in this appeal. 42. Accordingly, we answer the points for determination and pass the following: ORDER The appeal is dismissed. The judgment of conviction and sentence passed by the Sessions Judge, Kodagu, Madikeri in S.C.No.58/2002 dated 7-3-2006 is confirmed. 42. Accordingly, we answer the points for determination and pass the following: ORDER The appeal is dismissed. The judgment of conviction and sentence passed by the Sessions Judge, Kodagu, Madikeri in S.C.No.58/2002 dated 7-3-2006 is confirmed. The bail granted to accused No.2 is cancelled and the trial Court shall take steps to secure the presence of accused No.2 and remand her to custody to serve the sentence.