S. G. Gundegowda Alias Moganna, Appellant V. State By Yealur Police, Hassan District, Respondent.

S. G. Gundegowda Alias Moganna, Appellant V. State By Yealur Police, Hassan District, Respondent.

DATE : 31-08-1995  1996-(102)-CRLJ -0852 -KAR

JUDGE(S) :M B Vishwanath  M M Mirdhe  KARNATAKA HIGH COURT

JUDGMENT

MIRDHE, J. :- This appeal (Cr.A. 501/93) is preferred by the appellant, who was the sole accused before the trial court against the judgment dated 2nd November, 1993 passed by the Principal Sessions Judge, Hassan, in S.C. No. 5/92 convicting the appellant – accused for the offence punishable under Section 302 I.P.C. and sentencing him to death. The appellant – accused is also convicted for the offence under Section 3 read with Section 30 of the Arms Act and sentenced to undergo R.I. for three months and the learned trial Judge ordered that the sentence of R.I. for three months awarded to the appellant for the offence under Arms Act shall merge in the death sentence imposed on the appellant-accused.

2. The Principal Sessions Judge, Hassan, has also made a reference under Section 366 Cr.P.C. for confirmation of death sentence awarded by him to the appellant – accused.

3. Since both these matters are connected with each other, we have heard them together and we are passing this common Judgment in both these matters.

4. We have heard Sri Shankarappa, learned counsel for the appellant, and the learned Additional State Public Prosecutor Sri A. B. Patil, for the respondent, fully and perused the records of the case.

5. The case of the prosecution is as follows :

That deceased Mallesha was the elder brother of the appellant and deceased Yogisha was the son of Mallesha. P.W. 1 Gurumurthy is another son of deceased Mallesha. There was a dispute between Mallesha and the appellant in respect of the kharab land situated in between the lands of the appellant and deceased Mallesha and on the date of the incident P.W. 1, deceased Mallesha, and deceased Yogisha had gone to that kharan land and had put up a fence. The appellant is the licence holder of S.B.B.L. gun M.O. 2. On 4-8-91 at about 5 p.m. P.W. 1, Mallesha and Yogisha were returning after putting a fence around the kharab land and on the way the appellant suddenly appeared and fired at Mallesha causing him injuries resulting in his death and he also fired/Yogisha causing him gun shot injury and when Yogisha managed to hide behind a bush to save himself, the appellant picked up a machu fallen down on the ground by the side of Mallesha and dealt blows with it on the head, right shoulder and on the right thigh resulting in his death. P.W. 1 ran for his life and escaped from the place of incident and came to his house and informed about the incident to his mother Rukminiyamma and his uncle Ananda. He also informed the fact of the offence to the S.H.O. on phone. The S.H.O. came over to Kamanahalli after noting down the phone message that he received from P.W. 1 in the station house diary and he visited the scene of offence and saw the dead bodies and P.W. 1 prepared his complaint and he came to the police station and presented his written complaint to the P.S.I. The P.S.I. registered the complaint and after completion of the investigation, the police filed charge-sheet against the appellant-acused.

6. The learned Trial Judge after assessing the evidence led by the prosecution came to the conclusion that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt and he also held that this is the rarest of rare type of case and a fit case to award death sentence to the appellant and accordingly he has awarded death sentence to him besides the sentence of three months R.I. for violation of the provisions of the Arms Act.

7. The counsel for the appellant submitted as follows :-

That the evidence of the prosecution witnesses does not prove the guilt of the appellant beyond reasonable doubt; the case of the prosecution on motive is improbable and suffers as the relevant witnesses have made improvements changing the survey number in which the kharab land is situate. P.W. 1 is not only an interested witness but also a got up witness. Ex. P-21 – the phone message is also a concocted one. The complaint Ex. P-1 – is hit by Section 162 Cr.P.C. as Ex. P-21 – the phone meassage will be the F.I.R. in this case and the police had moved into action after the phone message. The evidence of P.W. 1 is improbable. P.W. 1 has marked time to give his complaint with a view to concoct a false story involving the appellant. Even the evidence of Ballistic Expert P.W. 26 Prabhakara cannot be relied upon as the evidence discloses that M.O. 2 and the cartridges were sent to him nearly after one month and the possibility of the seals having been tampered with cannot be ruled out in this case and no original seals have been produced either by the I.O. or the panchas. The evidence of the prosecution on extra-judicial confession also suffers on account of the improvements made by the witnesses concerned and also the improbability of making the extra-judicial confession either before P.W. 2 or P.Ws 4 and 13. On the basis of these arguments he submitted that the judgment of the trial court convicting the appellant is not sustainable.

8. In the alternative the counsel for the appellant submitted that if the Court comes to the conclusion that the conviction recorded by the trial court is sustainable in law, still this is not a case of rarest of rare cases to award death sentence to the accused.

9. The learned Additional State Public Prosecutor argued as follows :-

That the evidence of the witnesses proves the guilt of the appellant-accused beyond reasonable doubt. There is clinching evidence of the doctor P.W. 19 who conducted the p.m. examination on the dead bodies of Mallesha and Yogisha and the evidence of P.W. 26, the Ballistic Expert, which proves beyond reasonable doubt that the two deceased died due to the gun shot injuries and Yogisha also suffered injuries caused by machu by the appellant. The prosecution has been able to show from the evidence of the wife of deceased Mallesha and the evidence of Ananda that there was a land dispute regarding the ‘kharab’ land between the appellant and the deceased Mallesha and on that day P.W. 1 and the two deceased had gone to put up the fence around the kharab land and the appellant met them on the way and caused the death of Mallesha by firing at him with his S.B.B.L. gun and also caused the death of Yogisha with the same S.B.B.L. gun and causing injuries to him with machu – M.O. 1 that Mallesha had carried for putting fence. The evidence of P.W. 1 cannot be disbelieved merely because he is interested. There is no delay as such in filing the complaint. In view of the facts and circumstances of the case, even the delay in the receipt of the F.I.R. by the concerned Magistrate is explained in the prosecution evidence. The extra-judicial confession made by the appellant before P.W. 2 and also P.Ws 4 and 13 is proved by their evidence and there are no improbabilities or inherent defect in their evidence to reject it. The evidence of Ballistic Expert P.W. 26 corroborates the evidence of P.W. 1. For all these reasons the learned Additional State Public Prosecutor prayed for confirming the order of the trial court. He has further submitted that in view of the fact that even after Yogisha was injured and when he tried to hide under a bush, the appellant took the machu that had fallen from the hand of Mallesha and assaulted Yogisha and caused many injuries with machu. This cruelty on the part of the appellant in inflicting further injuries with machu even after Yogisha was on the verge of death shows the streak of a beast in the appellant and because of that this case becomes rarest of rare kind so as to award death sentence to the appellant. On the basis of these arguments he prayed for dismissal of the appeal.

10. The evidence of the prosecution led against the appellant can be classified under the following facts :-

i) The homicidal death of Mallesha and Yogisha due to the gun shot injuries and also injuries caused to Yogisha by machu;

ii) The motive on the part of the accused to cause the death of these two presons in view of the dispute between him and Mallesha in respect of phut kharab situated in between the land of the appellant and Mallesha;

iii) The evidence of P.W. 1, who witnessed the accused shooting at Mallesha with his S.B.B.L. gun M.O. 2 and also shooting at Yogisha and also assaulting Yogisha with machu which Mallesha had carried with him;

iv) The extra judicial confession made by the appellant-accused before P.W. 2 in the presence of P.W. 3 and another extra-judicial confession made by him before P.W. 4 and her husband P.W. 13.

11. Now, we will have to see whether the findings recorded by the trial court after assessing the evidence on record is sustainable in law or not on the homicidal deaths of Mallesha and Yogisha. It is the case of the prosecution that Mallesha and Yogisha died a homicidal death due to the injuries sustained by them by gun shots and also the death of Yogisha was caused by blows inflicted on his head and other parts of the body with a chopper. P.W. 19 doctor Thimmaiah who was working as Medical Officer in the Primary Health Centre in Yeslur in that year conducted p.m. examination of the dead bodies of deceased Mallesha and deceased Yogisha and he has deposed that in response to the requisition received by him from the Sub Inspector of Police, Yeslur police station he went to the spot where the dead bodies of Mallesha and Yogisha were lying in the Government Gomal land in Kamanahally and he conducted p.m. examination over the dead body of Yogisha first between 11.40 a.m. to 2.30 p.m. on 5-8-91 and he noticed as many as 12 external injuries as stated by him in his evidence. He has also stated that there were internal injuries about which he has spoken in detail in his evidence. He has stated that the injuries noted were ante-mortem in nature and the death was due to shock and haemorrhage as a result of gun shot and head injury. His p.m. report Ex. P-18 corroborates his evidence. His further evidence is that the death of Yogisha was between 18 to 24 hours prior to the commencement of his p.m. examination. He has also spoken about the direction and the distance from which shots were fired on the deceased Yogisha. The evidence of the doctor P.W. 19 proves beyond reasonable doubt that the deceased Yogisha died a homicidal death as a result of gun shots from a gun and also as a result of injuries caused on his head with a machu. This witness has further deposed that on the same day he conducted p.m. examination over the dead body of Mallesha between 2.45 p.m. and 5.30 p.m. and he noticed three external injuries which he has described in detail in his evidence and he also noticed internal injuries about which he has spoken in detail in his evidence. He has stated that the death of the deceased Mallesha was due to shock and haemorrhage as a result of injuries to heart, lung and liver which were caused by gun shot. Ex. P-19 is his p.m. report which corroborates his evidence. His further evidence is that injuries to the heart, lung and liver were caused by gun shots. His further evidence is that injuries to the heart liver and lung were fatal injuries and they were sufficient to cause the death and the death of Mallesha could have been caused about 18 to 24 hours prior to the commencement of p.m. examination. Thus, the evidence of P.W. 19 proves beyond reasonable doubt that the deceased Mallesha died a homicidal death due to the injuries caused to him by firing of gun shot and the deceased Yogisha died a homicidal death due to the injuries caused by firing 3 to 4 gun shots and also the injuries caused on his hand and other parts of the body with a chopper.

12. Motive :- The case of the prosecution on motive is that there was a kharab land situated in between the lands of Mallesha and the accused and since deceased Mallesha and Yogisha and P.W. 1 had enclosed the same by putting a fence, the accused committed the murders of Mallesha and Yogisha. The evidence of P.W. 1 Gurumurthy, P.W. 2 Sarojamma, P.W. 8 Rukmini and P.W. 13 Mogannagowda is relied upon by the prosecution to prove its case against the accused on the point of motive. P.W. 1 has stated in his evidence that his father Mallesha paid the T.T. charges for the years from 1979-80 to 1990-91 as per the receipts Ex. P-2 issued by the Village Accountant P.W. 5 Thirumalegowda. He has also deposed that his father was raising crops in the said land. P.W. 5 has supported the prosecution case. He has spoken about the issuing of Ex. P-2 and also the deceased Mallesha raising coffee plantation in the said land. The contention of the appellant’s counsel is that if the deceased Mallesha was cultivating the land authorisedly or unauthorisedly for a period of ten years, there was no immediate provocation for the accused to cause the deaths of his brother and his nephew. But the evidence of P.W. 1 discloses that it is only since 2 to 3 years prior to the incident the accused was quarrelling with Mallesha contending that he is entitled to the kharab land. P.W. 1 has also deposed that whenever Mallesha raised any crop in that kharab land, the accused used to let his cattle into the land to graze and destory the crops. The reason for putting up the fence, according to the P.W. 1, was to protect the crops raised by Mallesha in that land and stop the cattle of the accused to stray into the protion of that land. From the evidence of P.W. 1 it is clear that the quarred had started when Mallesha raised the crops 2 or 3 years prior to the incident. P.W. 2 is the sister-in-law of the accused who has corroborated P.W. 1, P.W. 8 is the wife of the deceased Mallesha and her evidence is to the effect that the villagers had advised the accused and her husband Mallesha to settle the matter amicably between themselves. Her evidence disclosed that the accused had objected for the grant of land in favour of Mallesha since they paid the T.T. charges and since he is laying a claim on the land. Mallesha has paid the T.T. charges on 6-5-91 after obtaining permission from the Tahsildar which is corroborated by Ex. P-2. Therefore, from these pieces of evidence the trial court was justified in coming to her conclusion that Mallesha paid the T.T. charges on 6-5-91 after obtaining permission from the Tahsildar P.W. 2’s evidence further discloses that the land was not cultivated by Mallesha previously. Therefore, this contention of the learned counsel for the appellant that there was no immediate cause for the accused to commit the murder cannot be believed. The evidence discloses that the deceased cultivated the land only 2 or 3 years prior to the incident after paying the T.T. charge on 6-5-91 under Ex. P-2. P.W. 1’s evidence further discloses that the said kharab land which is situated in Sy. No. 49 was converted to wet land at the time of the incident. P.W. 5 has deposed that Mallesha had enclosed 2 acres of kharab survey No. 49 of Manjoor village and he raised coffee plantation in the said land. His evidence also discloses that the matter is pending before the concerned Deputy Commissioner for the grant of land. From these pieces of evidence it is apparent that the accused was also laying claim to that kharab land which was encroached by Mallesha and in respect of which Mallesha paid T.T. charges some 3 or 4 years prior to the incident. The evidence of P.Ws 1 and 8 further discloses that Mallesha and Yogisha had gone to that land to put up a fence and that while they were returning the incident happened. The accused was laying claim to the kharab land as can be seen from the evidence of these prosecution witnesses and there was dispute between Mallesha and the accused in respect of that land. The cultivation of that land by Mallesha seems to have enraged the accused, who letting his cattle into the crops raised by Mallesha into that land and getting it destroyed by his cattle. This act of the accused made Mallesha to put a fence around that kharab land. This incident added further fuel to the anger of the accused against Mallesha and his sons. It is contended by the learned counsel for the appellant that the case of the prosecution that there was a kharab land in respect of which there was a dispute between the accused and the deceased is false as no kharab land is to be found in Sy. No. 50. Ex. D-2 is the extract of survey No. 50 and it discloses that there is no kharab land in that survey number. On the basis of Ex. D-2 this argument is advanced. The perusal of Ex. D-2 shows that there is no kharab land in Sy. No. 50. But, this point is clarified by P.W. 1 in his evidence wherein he has stated that the kharab land is situated in Sy. No. 49 and not in Sy. No. 50 and it is situtated just adjacent to Sy. No. 50 where his father and the accused got their wet lands adjacent to the Kharab land. His evidence is also to the effect that on the application made by his father Mallesha the said kharab land was granted to his father. Ex. P-5 is the survey sketch which discloses that there is a kharab land in Sy. No. 49. It is also disclosed from that survey sketch that the kharab land in Sy. No. 49 adjoins the Sy. No. 50. Ex. P-4 is the acknowledgment given to P.W. 8 Rukmini in respect of her application given for the grant of 2 acres 20 guntas of kharab land in Sy. No. 49. The evidence of P.W. 1 that the disputed land is situated in Sy. No. 49 and this kharab land is in Sy. No. 49 which adjoins Sy. No. 50 where Mallesha and the accused got their lands. Therefore, the trial court was justified in not rejecting the prosecution case on the ground that there is no kharab land in Sy. No. 50 but the kharab land exists in Sy. No. 49.

13. Another contention of the defence is that in the documents Exs. P-2 to P-2 to P-5 there is no mention that the disputed land is in Kamanahalli village on the other hand, it is in Manjoor village. P.W. 5 has stated that the distance between Manjoor village and Kamanahalli is only four furlongs. In view of this clarification this discrepancy also does not amount to a material discrepancy. Paying of T.T. charges by Mallesha, the survey sketch Ex. P-5 and the acknowledgment Ex. P-4 on the application of P.W. 4 for the grant of said land unmistakably goes to show that the disputed kharab land is situated in Sy. No. 49 of Kamanahalli village. The prosecution has been able to prove beyond reasonable doubt that there was a dispute between the accused and Mallesha in respect of kharab land situated in Sy. No. 49 of Kamanahalli village and that kharab land was just adjacent to Sy. No. 50 where Mallesha and the accused were having their wet lands.

14. When the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency, or insufficienty of motive will not play such a major role as in the case which is based on merely circumstantial evidence. If the prosecution is able to prove its case on motive it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive, that will not be a ground to throw overhead the prosecution case because in a case where there are eye witnesses the prosecution case will have to be decided on the basis of the merits of the evidence of such witnesses. In 1993 SCC (Crl) 869 : (1993 Cri LJ 1656). (Jarnail Singh v. State of Haryana), it has been held by the Hon’ble Supreme Court that failure to establish motive would not affect prosecution case. The case of the prosecution will have to be decided on the basis of the positive evidence of the eye witnesses. In this case the prosecution has been able to prove from the evidence of P.W. 1 Gurmurthy, P.W. 2 Sarojamma, P.W. 8 Rukmini and P.W. 13 Mogannagowda that on account of the dispute in respect of the kharab land situated in Sy. No. 49 and deceased Mallesha having cultivated the said kharab land the accused was nursing enmity against his brother. The learned counsel for the appellant submitted that these witnesses have made improvements by not stating before the police that the dispute was in respect of Sy. No. 49. It is to be noted that all these witnesses have stated before the police that there was a dispute between Mallesha and the accused in respect of the kharab land. But they have not given the details of the situation of that kharab land and they seem to have given a wrong survey number also. But their evidence which is corroborated by the documentary evidence referred above, this mistake committed by the prosecution witnesses that the kharab land is situated in Sy. No. 45 cannot be a ground for the Court to suspect the prosecution evidence. It was also suggested to P.W. 1 that he was cultivating the land in the name of his father on payment of T.T. charges. The trial court was justified in relying on the evidence of P.Ws. 1, 2, 8 and 13 to come to the conclusion that there was a dispute between Mallesha and the accused in respect of that kharab land situated in between the lands of Mallesha and the accused and Mallesha was cultivating it and on that day he and his sons put up a fence around the kharab land which led the accused to the commission of the murders of the said two persons. It is contended on behalf of the appellant that there was a dispute between Seetamma and Mallesha in respect of Sy. No. 47/7 for which Seetamma had filed a suit against Mallesha and as accused did not support the deceased Mallesha was bearing illwill against him. From the evidence of the prosecution it appears that Mallesha had already sold that land to Rajegowda and one Seetamma had filed a suit in respect of that land in the Court of the Civil Judge at Hassan. The evidence does not show that either the accused or Mallesha had anything to do with the said land and there was any reason for Mallesha to develop any illwill towards the accused on that count. Moreover, no such material is placed before the Court in spite of some suggestions made to the prosecution witnesses that the deceased Mallesha and his family members were bearing illwill against the accused as he was not supporting Mallesha in the land dispute between Rajegowda and sons of Seetamma. The trial Court has rightly assessed the evidence of the prosecution witnesses on the point of motive and has come to the correct conclusion that the prosecution has been able to prove beyond reasonable doubt that on account of the dispute between Mallesha and the accused regarding the kharab land in Sy. No. 49 the accused has a motive to commit the murders of Mallesha and his son Yogisha.

15. The next piece of evidence relied upon by the prosecution is the evidence of P.W. 1 Guru Murthy who is the solitary eye-witness in this case. P.W. 1 is the son of Mallesha, and the younger brother of deceased Yogisha. He has deposed that on the date of the incident at about 11 a.m. he, his father Mallesha and his elder brother Yogisha had gone to their land taking food with them for putting up a fence to the kharab land situated adjacent to the wet lands of his father and the accused. In his evidence he has made it clear that they were cultivating the said land by paying T.T. charges and that there was a dispute between his father Mallehsa and the appellant in respect of that land for the past 2-3 years. He has further deposed that his father had taken a machu with him for the purpose of fencing. He has deposed that after putting up the fence, they were returning at about 4.45 p.m. by a path way passing through the gomal land and when they were so returning at about 5. p.m., the appellant who was hiding near a bush suddenly got up and fired a gun shot which hit his father on the right side of his chest and the shot was fired from a distance of 70′ to 80′ and his father fell down after turning to a side with his face facing upwards, and the machu fell by his side. It is further the evidence of P.W. 1 that after seeing the incident he and his elder brother Yogisha started shouting and they tried to hide themselves behind a bush and at that time from a distance of 20′ the appellant fired another shot at his brother Yogesha which hit him on his left leg and then P.W. 1 ran away from that place and hid himself by the side of another bush at a distance of 20′ from that place and P.W. 1 has further stated that his brother Yogisha after receiving the gun shot on his left leg managed to get up from that place and he went to another bush by dragging his left leg and on seeing him accused fired another 3-4 shots at his brother from a distance of 20′ towards all sides of the bush where his brother was hiding. P.W. 1 has stated that the shots hit the left side of the chest, left leg and the back of Yogisha. It is further the evidence of P.W. 1 that the appellant did not leave his brother Yogisha at that stage, but he took up chopper which was lying by the side of Mallesha and with that chopper he gave blows on the head, right shoulder and right thigh of Yogisha and that, thereafter, the accused chased P.W. 1 but he ran towards the side of gomal land and managed to escape. P.W. 1 has further stated that the appellant left the machu on the place of incident and went towards his house with his gun and at that stage he noticed Moganna Gowda and his wife Dayamma coming from the side of their house. P.W. 1 has further stated that after seeing the incident, he ran to his house which is situated at a distance of 2 kms. from the place of incident and reached there at 6 p.m. and told about this incident to P.W. 8 Rukminiyamma his mother and also Anand his another uncle P.W. 9, and that, thereafter, he went and informed about this incident to his uncle Krishnegowda who was standing near the provision store at a distance of 50′ from his house and then he went and telephoned to P.W. 14 Shankaregowda requesting him to bring his jeep and come along with Lokeshagowda P.W. 18. his mother’s sister’s husband informing them that his father and elder brother were murdered. It is further his evidence that he, his uncle Krishnagowda, his uncle Ananda went to the place of incident and saw the dead bodies of Mallesha and Yogisha on the spot. It is also his evidence that after returning from the place of the incident after seeing the dead bodies of his father and brother he contacted Yeslur Police on phone by booking a trunk call from his telephone No. 47 of Changanhalli Exchange and passed on this information to Yeslur Police at about 7.30 p.m. It is his further evidence that after the police came, he took the police to the place of incident and showed the bodies of his father Mallesha and brother Yogisha and thereafter, he got a complaint written by P.W. 14 Krishnagowda and then went in the jeep to the police station and gave his complaint Ex. P-1 to the P.W. 24 in the Yeslur Police Station.

16. The evidence of this witness is attacked by the defence on the ground that he is an interested witness, that it is not safe to rely on his evidence. Merely a witness is interested or related cannot be a ground for the Court to discard his evidence. In short, the defence wants the evidence of P.W. 1 to be rejected on the ground that he is the son of Mallesha and the brother of Yogisha. In AIR 1973 SC 2443 : (1973 Cri LJ 1596), Bishan Singh v. The State of Punjab, the Supreme Court has held as follows :

“In a trial for murder, the mere fact, that the witness is the father of the deceased is not sufficient to discredit his testimony. Normally a close relative of the deceased would be most reluctant to spare the real assailants and falsely mention the names of other persons as those responsible for causing injuries to the deceased.”

In AIR 1981 SC 1390 : (1981 Cri LJ 1012), State of Rajasthan v. Smt. Kalki, the Supreme Court has shown the distinction between ‘related’ and ‘interested’. It has held as follows : (Para, 5A)

“‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be ‘interested’.”

In the case dealt with by the Supreme Court in that Ruling, the widow of the deceased was only eye-witness who saw the incident. But the Supreme Court has held that she cannot be called as an interested witness merely on the ground that she is related to the deceased. The Supreme Court has held that such a witness has no interest in protecting the real culprit and falsely implicate the accused. In AIR 1977 SC 472 : (1977 Cri LJ 273), Mst. Dalbir Kaur v. State of Punjab, the Supreme Court while dealing with the evidence of a close relative has held as follows : (Para 13)

“A close relative, who is a very natural witness in the circumstances of case, cannot be regarded as an ‘interested witness.’ The term “interested” postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason.”

The law in this regard is well settled that a witness cannot be merely disbelieved on the ground that he is related to the deceased. The evidence of such related witness will have to be assessed carefully and after careful assessment of the evidence, if it is found to be acceptable, the Court will be justified in acting on the evidence of such witnesses. We do not find that the P.W. 1 can be called as an interested witness though he may be related to the deceased as he had no reasons to save the real culprit of his father and brother and involve in place of real culprit, the appellant falsely in this case.

17. The appellant’s counsel further submitted that this witness P.W. 1 has acted in an unnatural manner as he did not try to save his own father and brother from the fatal attack made by the appellant on them and that he did not also disclose about the incident to P.Ws. 4 and 13 whom he met on the way and also did not inform his uncles or their wives whose houses were situated on the way to his house. In AIR 1983 SC 680 : (1983 Cri LJ 1272), Rana Partap v. State of Haryana, the Supreme Court has held that evidence of a witness cannot be discarded on the ground that they did not react in a particular manner. The Supreme Court has held as follows : (para 6)

“Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”

In the light of this Ruling of the Supreme Court the evidence of P.W. 1 cannot be rejected on the ground that he has not acted in a particular manner by not going to the rescue of this father and brother or by not telling Mogannagowda and Dyayamma or by not going to the houses of his uncles and aunts whose houses were situated on the way.

18. Another attack levelled by the appellant’s counsel against the prosecution is that the incident took place at 5.00 p.m. and the complaint Ex. P-1 is given to the police on the same day at 10.30 p.m. The defence contends that there is an inordinate delay in filing the complaint and Ex. P-1 cannot be the complaint in view of the phone message Ex. P-21 alleged to have been given by P.W. 1 It is also contended on behalf of the accused that even the receipt of FIR by the Magistrate is late as it was delivered to the jurisdictional Magistrate on the next day at 8 a.m. From these circumstances, the defence argues that the Ex. P-1 is a concoction and P.W. 1 is a liar. From the evidence of P.W. 1 and P.W. 22 it is proved that soon after the incident and informing his mother and others about the incident. P.W. 1 has given a telephone message to P.W. 22 and that telephone message is recorded at Ex. P-21, Ex. P-21 read as follows :

It is the contention of the defence that in view of Ex. P-21 and the fact that S.H.O. had left the police station and came over to the place of incident and saw the dead bodies. Ex. P-1 is hit by Section 162, Cr.P.C. as it has been recorded by the police after FIR Ex. P-21 and after the starting of the investigation in this case. Section 154 of Cr.P.C. lays down that every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a Police Station shall be reduced to writing under his direction and shall be read over to the informant and shall be signed by the person giving it and the substance thereof shall be entered in a book in such form as the State Government directs. Now the question is whether this telephonic message which is recorded at Ex. P-21 by P.W. 22 can be held to be the FIR in this case. The contention of the learned Addl. S.P.P. is that this cannot be an FIR because all other particulars are not mentioned in Ex. P-21 and it is not signed as required by Section 54, Cr.P.C. by P.W. 1. The question is now whether an information relating to the commission of congnizable offence received by the S.H.O. through a telephonic message can be an FIR. In 1977 Cri LJ 107, Raberi san Cova v. The State of Gujarat, the Supreme Court (sic) has held as follows :

“The first information is the earliest report made to the police officer with a view to his taking action in the matter. If the receipt of the information of an incident by the police requires the police to take an action in the matter or to investigate into it, then certainly it becomes the information of a cognizable offence.”

Their Lordships of the Supreme Court (sic) dealing with the facts in that case have observed as follows :

“The officer-in-charge of the police station received a telephonic message from a head constable P that a quarrel had taken place betwen some persons in a village in which one person had received grievous injuries and had become unconscious. He did not record the message in the telephonic register of the police station but issued order in writing to Head Constable to proceed to that village and directed him to do the needful. Subsequently a complaint about the incident was filed with the police.

Held that the information which was given by P was an information of a cognizable offence, and, therefore the first information within the meaning of Section 154 which led to action being taken by the police. It was after this information was received that the complaint was recorded by the police. Since the incident was reported to the police earlier than the complaint was recorded and since the police had taken action in the matter any other information received by the police subsequently would be hit by Section 162. Since it was hit by Section 162 it was inadmissible in evidence.”

Similarly in 1979 SCC (Cri) 910 : (1979 Cri LJ 1358). Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi v. State of Mysore the Supreme Court has held that where the investigation commenced on receipt of telephonic information about the crime, statements given subsequently furnishing detailed particulars of the accused is hit by Section 162, Cr.P.C. But our High Court in the Ruling reported in (1961) 39 Mys LJ 823. Boya Thiappaiah v. State of Mysore, has held that the phone message which was not signed by the medical officer in that case did not fall within Section 154, Cr.P.C. as no investigation was actually started after the receipt of the phone message. Similarly our High Court has held in the Ruling reported in (1965) (2) Mys LJ 646, Pascal D’Souza v. State of Mysore, a telephone message cannot be considered as first information contemplated under Section 154, Cr.P.C. In view of the law laid down by the Supreme Court (sic) in 1977 Cri LJ 107, referred to supra, the law laid down by our High Court in these two Rulings holding that telephonic message cannot amount to FIR under Section 154. Cr.P.C. cannot be said to be good law any more.

19. But the learned Public Prosecutor relied on AIR 1970 SC 1566 : (1970 Cri LJ 1415), Tapinder Singh v. State of Punjab, wherein the Supreme Court has held that an anonymous telephone message at police station that firing had taken place at taxi stand does not amount to FIR. But the point to be noted in this Ruling is that the telephone message was anonymous and therefore their Lordships of the Supreme Court had held that such an anonymous telephone message will not amount to an FIR under Section 154, Cr.P.C. The learned Public Prosecutor also relied on (1969) 3 SCC 730 : (AIR 1969 NSC 85), Sakharam v. State of Maharashtra, wherein the Supreme Court has held that a telephonic message that a person was lying injured without indicating that any offence was committed will not amount to FIR. Again the point to be noted in this Ruling is that the message was only to the effect that a person was lying injured. The message did not disclose that any offence was committed, muchless, cognizable offence. In view of these facts of the case. Their Lordships of the Supreme Court have held that it will not amount to an FIR in the case. The learned Public Prosecutor also brought to our notice the Ruling in AIR 1975 SC 1453 : (1975 Cri LJ 1201), Some Bhai v. State of Gujarat, therein the Supreme Court has held that the first information report is the earliest report made to the police officer with a view to taking his action in the matter. In that case the Supreme Court held that a cryptic telephonic message will not constitute an FIR. After perusing the Supreme Court Rulings stated above it is clear that a telephonic message also can be a FIR provided it discloses the particulars required by Section 154, Cr.P.C. about the commission of cognizable offence. The contention of the learned Addl. P.P. that the telephonic message cannot be an FIR as it does not bear the signature of the informant is also not acceptable in view of the fact that the conditions laid down by Section 154 regarding the reducing into writing the oral complaint and the signing of the complaint is merely procedural. If there is information relating to the commission of a cognizable offence, the mere fact that the police officer did not reduce it in writing which is in fact the first information, will not make it any less a first information. In this case, Ex. P-21 discloses the name of the informant, the phone number from which he sent the message and the names of the two deceased persons, names of the accused and also the death of the two persons named therein due to gun shots fired by the accused. Ex. P-21 discloses the commission of a cognizable offence by the accused and the name of the informant. Merely because it is not signed by P.W. 1 will not make it a less first information report. We think that Ex. P-21 is an FIR. more so when after P.W. 22’s coming over to Kamanahalli, P.W. 1 has confirmed about his having sent the telephonic message to the police. After recording the telephonic message in the Station House Diary, P.W. 22 came to the place of the incident and P.W. 1 confirmed about his having sent the phone message. The phone message was not a hoax in this case. It was a real phone message which has been confirmed by P.W. 1 and which discloses all the ingredients of a commission of a cognizable offence by the appellant. In view of these factors, we think that Ex. P-21 is the FIR, in this case. P.W. 22 has stated in his evidence that if a mere information is given over phone he will not register a case. This answer of P.W. 22 only discloses that he does not know the position of law correctly and no fault can be found with P.W. 22 as the question whether telephonic message can be an FIR under Section 15, Cr.P.C. was still a deabtable point till the law was laid down by the Supreme Court in the Rulings referred to by us above. In view of the fact that Ex. P-21 amounts to an FIR, under Section 154, Cr.P.C. and P.W. 22 had come to the place of incident and seen the dead bodies, which is an indication that the investigation had already started on that information, Ex. P-1 the complaint will be hit by Section 162, Cr.P.C. Though the trial Court has held that Ex. P-1 is the complaint Ex. P-21 is not the FIR., it has also considered in the alternative a to how the prosecution case will stand in case Ex. P-21 is held to be the FIR in this case. Even after holding that Ex. P-21 is the FIR in this case, the case of the prosecution remains unaffected. In this case the evidence of P.W. 1 stands corroborated by the averments in Ex. P-21 in respect of the death of Mallesha and Yogisha by gun shot injuries by appellant. But, there is no mention in Ex. P-21 about there being any assault by the accused on Yogisha with a machu. The complaint is not the encyclopedia of the prosecution case. P.W. 1 had seen his own father and brother being murdered burtally and thereafter, he ran home to save his life. He was a boy of 18 years then. He informed his mother, uncle and others about the incident and passed on this information, on telephone to the police. When a person passes on any information on the telephone, it is but natural that he will be precise and concise in his statement. He may not be able to give as many details as he can when he is face to face with a person than when he is speaking on the phone. Moreover, the medical evidence discloses that the deceased Yogisha had also injuries on his head, shoulders which can be caused by a machu. Mere non-mentioning of the fact that Yogisha was also assaulted by machu by the accused is not a ground for us to disbelieve the evidence of P.W. 1 because he has given all the particulars of the offence and particulars given by him relating to the assault by machu is corroborated by medical evidence.

20. The learned counsel for the appellant submitted that this evidence of P.W. 1 does not inspire confidence for the reason that the police have not drawn up any mahazar of the Kharab land which was alleged to have been fenced on that day. It is a fact that the police have not drawn up any mahazar regarding the fencing of the kharab land by Mallesha, Yogisha and Gurumurthy, P.W. 1 But that will not affect the veracity of the prosecution case becuase the offence has not taken place on that kharab land. The offence has taken place at some distance away from that kharab land. It would have been better if a mahazar was drawn of that fence on that kharab land to corroborate P.W. 1 But the mistake of the Investigating Officer in not drawing up the mahzar of that kharab land cannot be a ground for the Court to disbelieve the evidence of P.W. 1 which is found to be acceptable and trustworthy.

21. Another contention of the counsel for the appellant is that it will not be safe to rely on the solitary evidence of P.W. 1. Section 134 of the Evidence Act lays down that no particular number of witnesses shall in any case be required for the proof of any fact. Law does not require that there should be any particular number of witnesses for proving the case of the prosecution. The counsel for the appellant relied on a decision in the case of Mahendra Singh v. State of Rajasthan, AIR 1989 SC 982 : (1989 Cri LJ 886), wherein the Supreme Court has held that it was not safe to rely on the testimony of the sole eye-witness in that case. No law is laid down in this ruling that the testimony of a solitary witness cannot be relied upon. On the facts of the case in that ruling, Their Lordships have held that the testimony of the sole eye-witness in that case was unreliable and unacceptable and, therefore, it was not safe to rely on the sole testimony of the eye-witness in that case. But, in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000), the Supreme Court has held that the conviction can be based on the evidence of a solitary eye-witness and referring to Section 134 of the Evidence Act, it has observed that the well recognised maxim “Evidence has to be weighed and not counted” is enshrined in the said section. The Supreme Court has held as follows :

“The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the genral rule recognised in Section 134, which by laying down that “no particular number of witnesses shall, in any case, be required for the proof of any fact” has enshrined the well recognised maxim that ‘Evidence has to be weighed and not counted.” It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whole testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.

Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable and wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or sub-ornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.”

Therefore, the Court will not be justified in insisting upon the plurality of witnesses to prove certain fact of the prosecution case when the evidence of one witness is satisfactory and acceptable and free from infirmity for the conviction of the accused.

22. The evidence of P.W. 26 also corroborates the evidence of P.W. 1. It is the case of the prosecution that 7 empty cartridges were seized from the place of incident and M.O. 2-gun was also seized from the accused and the pellets recovered from the two dead bodies were sent in sealed bottles by the medical officer to P.W. 26. P.W. 26 has deposed that the S.B.B.L. gun, M.O. 2, bears the signs of discharge and the empty cartridges sent to him have been fired from that gun M.O. 2 and the pellets sent to him by the medical officer have been fired from the sam S.B.B.L. gun. He has issued the certificate exhibit P-26 and his report exhibit P-26(a). P.W. 26 examined the shirt, banian and lungi of Mallesha, marked as M.Os. 14, 13 and 12, removed from his dead body, and the banain, shirt, lungi and drawer of Yogisha, marked as M.Os. 4, 3, 5 and 6, removed from his dead boy, and sent to him for his opinion and he has opined that the holes in the said clothes are caused due to the passage of the said pellets which were fired from the S.B.B.L. gun, M.O. 2. In his report exhibit P-27(a), he has given the details and the methodology of his examination and reasons for his opinion. He has deposed that he compared the firing pin marks on the empty cartridges M.O. 15 sent to him which were recovered from the place of incident with the test cartridges fired from the same gun M.O. 2 and found that the individual characteristic marks of firing pin on M.O. 15 are identical with that of test cartridges marked as T1 to T5 which were fired from M.O. 2-S. B.B.L. gun. His evidence discloses that he tested M.O. 2. and found that it was in working condition and he also examined the pellets sent to him in the sealed bottles by the medical officer, which were recovered from the dead bodies of the deceased, and the two bottles have been marked as M.O. 23 and M.O. 24. On the basis of the holes noticed by him in the clothes of deceased Mallesha and Yogisha, he has estimated the range of firing of the gun shots. P.W. 26 has stated that there will be 80 to 100 pellets in a cartridge. In view of this answer of P.W. 16, it is contended on behalf of the defence that all the 7 empty cartridges were not recovered from the place of the incident in this case. P.W. 25 has admitted in his cross-examination that he did not find any pellets lying on the ground near the place of incident though he searched for them. P.W. 26 has stated that unless there are exit wounds on the dead bodies, all the pellets will be inside the body and if the firing range is more, there are chances of some of the pellets falling on the ground. It is also elicited in the evidence of P.W. 26 that some of the pellets may fall down after making holes in the shirt of the victim before entering the body of the victim. But, this witness has further clarified in his evidence that if the pellets fell on the ground are mixed up with muddy soil due to heavy rain, it will not be possible to trace them. P.W. 18 has deposed that there was heavy rain on the night of the incident and it was raining throughout the night. The evidence of P.W. 1 makes it clear that the incident took place in the gomal land. So, it is quite possible that the pellets might have fallen on the ground and they might have mixed up in the soil and could not have been traced by the investigating officer P.W. 25. If P.W. 25 was not able to recover some pellets from the scene of offence, it may be a lapse on the part of the investigating officer, but that cannot be a ground for the Court to disbelieve the prosecution case in view of the fact that some cartridges and blood-stained machu M.O. 1 were recovered from the place of the incident. It has been contended by the counsel for the appellant that P.W. 12, mahazardar, has deposed that only four empty cartridges were recovered from the place of incident and they were seized under exhibit P-10 and, therefore, the case of the prosecution that 7 cartridges were recovered from the place of incident cannot be true. P.W. 12 has stated that only 4 cartridges were recovered from the scene of offence. But, exhibit P-10 discloses that in fact 7 cartridges were found from the place of incident. Therefore, the evidence of P.W. 12 that only 4 cartridges were recovered is a mistake on his part and this mistake seems to have occurred on account of the fact that he had deposed some time after the recovery of the cartridges from the scene of incident. Exhibit P-10 discloses the exact place where the empty cartridges were found. In fact, the distance from the dead bodies at where the empty cartridges were lying has been given. It is also mentioned in exhibit P-10 that the 7 cartridges recovered from the place of incident and M.O. 1-machu were separately packed and sealed with the seal of the letters “B.A.” P.W. 25 has deposed to that effect. P.W. 26 has deposed that the said seal was found in tact when he received and tallied with the sample seal sent by the I.O. Therefore, the contention of the defence that the case of the prosecution that 7 cartridges were recovered from the place of incident is a concoction cannot be accepted. P.W. 19, the medical officer, has deposed that 12 pellets were recovered from the dead body of Yogisha and 11 pellets were recovered from the dead body of Mallesha and they were kept by him in two bottles and the bottles were sealed by him. In his evidence, he has identified, those bottles as M.Os. 23 and 24, P.W. 25 has deposed that he received the said sealed bottles from P.W. 19 on 3-9-1991 and he immediately sent them along with the seven empty cartridges M.O. 15 to the ballistic expert, P.W. 26 also testifies that the seals on the articles he received were found to be in tact. Therefore, it is difficult to accept the contention of the counsel for the defence that M.O. 15 and the pellets in the two bottles were planted for the purpose of this case. According to the evidence of P.W. 1, one shot was fired at Mallesha on the rightside of his chest which killed him instantaneously at the spot. The contention of the defence is that this evidence is not supported by the medical evidence of P.W. 19 and the evidence of ballistic expert P.W. 26.

23. P.W. 19 has deposed that he found 46 punctured wounds over the lateral wall of right chest scattered from right axilla upto the superior border of the right hip bone in an area of 22 inches x 5 inches, that 21 punctured situated over the ventral aspect of right upper arm scattered from the upper part of the right hand arm, upto the lower part of fore-arm, and that another 15 punctured wounds situated over the right scapulor region, scattered from superior region of the scapula upto the lower part of the scapula. According to the defence, in view of the location of the injuries on the dead body of Mallesha, 3 different shots must have been fired at Mallesha and not one shot as deposed by P.W. 1 But, P.W. 19 has clarified in his evidence that with one shot, all the injuries could be caused. According to P.W. 19, the range of the shot could be from a distance of 50 to 65 feet from Mallesha. Even P.W. 26 has clarified this position that all the three injuries could have been caused by one shot. P.W. 26 has also clarified that there need not be corresponding injuries on the body to the holes formed in the shirt showing the entry of multiple pellets in the body as some of the pellets may fall down after making a hole in the shirt, and that the injuries found on Mallesha could have been caused by 2 or 3 pellets entering body at the same time. P.W. 26 has clarified in his evidence that if 2 or 3 pellets enter the body at the same place of injury. 1 1/2 size of the injury could be caused and if a person is standing with his hands down and if the shot is fired from a side with a little angle and if he moves to a side, it may cause injury even on the ventral side of the hand. He has also stated that whenever a shot is fired to the right side of the body from right angle on the dorsel side of the right arm, the wound formed will be circular in shape and unless there is an exit wound to that injury, there will be no injury on the ventral side of the right hand. He has also stated that if the arm is lifted, it may cause corresponding injury on the side of the chest and it depends upon the range and the posture of the body, on the basis of these answers of P.W. 26, it is argued by the prosecution that the injuries on the person of Mallesha could have been caused with one shot. In view of the evidence of P.Ws. 19 and 26, causing of 3 injuries on the body of Mallesha with one shot cannot be said to be an improbability because these injuries could be caused by a sudden reflex action on the part of deceased Mallesha by lifting his right hand to some extent with the pellets entering on the side of his chest. We find support for this inference in the ruling of the Supreme Court in the case of Mohd. Aslam alias Kuyian v. State of U.P, 1993 SCC (Cri) 577 : (1993 AIR SCW 1382). In that case, one of the deceased sustained gun shot injuries at the back. There was interval between the two shots and though it was very short. Their Lordships have help that it was not unlikely or highly improbable that because of inherent reflex, the deceased had turned his side and received the injuries at the back.

24. It is contended by the counsel for the appellant that there is discrepancy with regard to the actual number of shots fired at the time of the incident in the evidence of P.W. 1, in his complaint exhibit P-1, and in the evidence of P.Ws. 2, 3, 4 and 13. No doubt, there is some discrepancy in respect of the number of shots fired as spoken to in the evidence of P.W. 1, as mentioned in exhibit P-1 by him, and in the evidence of P.Ws. 2, 3, 4 and 13. But, the witnesses cannot be expected to count the number of shots fired correctly, more so P.W. 1, when he was seeing the ghastly murders of his elder brother and father before his own eyes. At that time the mental condition of a person witnessing the murders of his father and brother will not be so as to make him aware to count the number of shots. These witnesses are rustic persons and when an incident of this magnitude had occurred, it is but natural that there will be some discrepancy in their evidence regarding the number of shots fired at the time of the incident. But, one thing is certain that minimum seven shots must have been fired at the place of the incident. P.W. 19 has deposed that Yogisha might have been hit by five or six shots. It is the specific evidence of P.W. 1 that one shot was fired at Mallesha. Then, the remaining five shots must have been fired at Yogisha and this inference is corroborated by the recovery of seven empty cartridges from the place of the incident. Expecting P.W. 1 to count the number of shots fired when he was witnessing the ghastly murders of his father and brother and when his life itself was in danger of being extinguished at the hands of the accused is to expect something unnatural and improbable from a person who is placed in such a situation. P.W. 26 has explained that with reference to the shirt of Mallesha in Article No. 1, one shot must have been fired at Mallesha and in respect of Article 4, shirt four shots must have been fired at him, and with reference to the lungi of Yogish, two shots must have been fired at him. The evidence of P.W. 26 discloses that seven shots could have been fired at the place of the incident. He has further opined that with reference to lungi in Article No. 6, two shots must have been fired from the back-side of the victim. He has given his opinion on the basis of injuries Nos. 10 and 11 found from the post-mortem report pertaining to Yogisha. He has stated with reference to the shirt in Article No. 1 of Mallesha that the approximate range of firing was 60′ from the muzzle end of the gun and with reference to the shirt of Yogisha in Article No. 4, the approximate range was 45′ from the muzzle end of the gun. He has deposed that there were three separate gun shot holes formed in the shirt of Yogesh and with reference to hole No. 2 on that shirt, the range of firing was beyond 9′ and within 12′ from the muzzle end of the gun and with reference to holes Nos. 3 and 4 on that shirt, the firing range was beyond 9′ and within 12′. It is also his evidence that in all these clothes, the presence of lead was detected around the edges of the holes. The evidence of P.W. 19 discloses that one shot must have been fired at Mallesha. He has opined that the death of Yogesha was due to shock and haemorrhage as a result of gun shot and head injury sustained with machu. P.W. 26, in his evidence, has stated as to how the injuries have been caused to deceased Mallesha and Yogisha by firing gun shots at the abovesaid ranges. Therefore, the evidence of P.W. 19 and P.W. 26 supports the evidence of eye-witness P.W. 1.

25. The counsel for the appellant submitted that the evidence of P.W. 26 will not be safe to be relied upon, because there is nothing in the evidence to show that the articles were kept in safe custody before they were sent to the expert, P.W. 26. It is also contended by him that the mahazardar has not produced the samples sent and the evidence of P.W. 21 shows that the articles were returned to him by the F.S.L., Bangalore, as they were not properly packed and sealed. He relied on a decision in the case of Modan Singh v. State of Rajasthan, 1979 SCC (Cri) 56 : (1978 Cri LJ 1531), wherein the Supreme Court has held that the prosecution must lead evidence to show that the articles seized were kept safely till they were sent to the expert. These observations were made by the Supreme Court in that case in the light of the facts of that case that the prosecution was silent as to in whose custody the objects were till they were sent to the expert. It is also contended by the counsel for the appellant that the gun M.O. 2 and the empty pellets M.O. 15 were sent to the expert only after a delay of nearly one month. P.W. 24 has deposed that on 5-8-1991 at about 3.00 or 3.30 p.m. he went to Yeslur Police Station along with the C.P.I. and at about 4.00 p.m., the accused appeared before him and produced one gun i.e., M.O. 2, which was seized by the C.P.I. under a mahazar in the presence of the mahazardars and the mahazar is exhibit P-17. P.W. 17 Mallegowda has deposed that on that day at about 4.00 p.m. when he got down from a bus at Yeslur coming from Hassan, near Yeslur Police Station he was called to the Police Station by the police, and that the accused was in the police station holding a gun and the police seized the gun in his presence after drawing the mahazar under exhibit P-17, and it was packed and sealed. Though P.Ws. 17 and 24 have been cross-examined by the defence, we do not find any such material in their cross-examination to lead to the inference that the case of the prosecution regarding the accused himself producing M.O. 2 is concoction. Further, the evidence of P.Ws. 12 and 25 discloses that M.O. 15, 7 empty cartridges, have been recovered from the place of the incident under exhibit P-10. P.W. 25 has deposed that on 5-9-1991 the seized gun was sent by him to the ballistic expert and on 3-9-1991, he received the pellets in sealed bottles from the medical officer and he sent them along with the 7 empty cartridges, M.O. 15, to the ballistic expert. No sample seal is produced by the mahazardar in this, case. The defence has also not questioned as to the reasons for the non-production of the sample seal by the mahazardar.

26. It has been contended by the counsel for the appellant that the articles were sent back by the F.S.L., Banglore, as they were not properly sealed, and therefore, the case of the prosecution that the articles were properly sealed and sent to P.W. 26 does not deserve to to be accepted. The evidence of P.W. 21 has to be seen in this regard. He has deposed that he took the property seized in this case to the F.S.L., Bangalore, and handed over them in that office, but the cloth packets were returned to him in the said office saying that they were to be packed separately and so he immediately returned to the C.P.I. office at Hassan. The evidence of P.W. 21 is that the cloth packets were returned to him by the office of the F.S.L. not on the ground that they were not properly sealed, but on the ground that they were required to be packed separately. He has further deposed that on 9-9-91, he again took all the properties in sealed packets and handed over them to the F.S.L., Bangalore, and the clothes, machu and four mud-pots were returned to him saying that separate letters were to be addressed for giving opinion in respect of them. It is made clear by P.W. 21 in paragraph-4 of his deposition wherein he has stated as follows :

“4. Seven packets of clothes, one machu, four mud-pots were handed over to C.P.I. office and reported compliance. The gun, empty seven cartridges and the pellets sealed in two bottles were retained in F.S.L. to send them to Ballistic expert.”

The evidence of P.W. 21 is very clear on the point that the packets were returned as they were required to be packed separately and the clothes, machu and mud-pots were returned as separate letters were required to be addressed for giving opinion after examination. But, his evidence is very clear that the gun, 7 empty cartridges and the pellets sealed in two bottles were retained in the F.S.L. to send them to the ballistic expert. In view of this clear evidence of P.W. 21, it is difficult to accept the contention of the counsel for the appellant that these articles were not properly sealed. Non-production of the sample seals by the panchayathdar is an irregularity. But, that irregularity will not go to the root of this case, because we find the evidence of P.Ws. 12, 17, 21, 24, 25, 19 and 26 acceptable and safe to be relied upon that the articles were sealed when they were seized by the police under different mahazars and the seals were in tact when they were sent to P.W. 26. P.W. 25 has also deposed specifically in his evidence that the seals were in tact when he received the packets for examination of its contents. The contention of the counsel of the appellant is that the evidence of P.W. 26 does not deserve to be accepted because the prosecution has not shown into whose custody those properties were given. There is no scope to raise such an inference in this case in view of the evidence of P.Ws. 19, 12, 17, 21, 24, 25 and 26 that all the articles were properly packed and sealed and the seals were in fact when the articles were sent to P.W. 26 who examined the seals and found them to be intact. There is no such material elicited in the cross-examination of P.W. 26 to lead to the inference that there is any motive on his part to depose falsely that the seals on those articles were intact.

27. The other argument that is advanced by the counsel for the appellant is that the medical evidence contradicts the evidence of P.W. 1. This argument is based on the evidence of P.W. 19 who has stated in his cross-examination that both the deceased could have died within 1 1/2 hours to 2 hours after taking their last meal, since semi-digested food was found in their stomachs. It is also contended by the counsel for the appellant that P.Ws. 1 and 8 have made improvements in their evidence that P.W. 1, Mallesha and Yogisha had taken their food for lunch when they left their house at 11.00 a.m. P.Ws. 1 and 8 have not stated in their statement before the police that the afternoon lunch was taken in a carrier by Mallesha, Yogisha and P.W. 1 when they left their house at 11.00 a.m. on that day. According to the evidence of P.Ws. 1 and 8, Mallesha, Yogisha and P.W. 1, had taken their food in a tiffin carrier with them when they had left the house at 11.00 a.m. on that day. Naturally they could not have taken their lunch because it was not lunch time. After putting up the fence for the karab land, these persons were required to take their afternnon food, and it is not uncommon with the agriculturists to carry lunch with them to the fields where they work. It may not be unreasonable to infer that these two deceased and P.W. 1 might have taken their lunch 2 or 3 hours after they left the house and if some semi-digested was found in the stomachs of the deceased, that stands explained by the evidence of P.Ws. 1 and 8 who have deposed that these persons had carried their lunch when they left their house at 11.00 a.m. Non-mentioning of this fact by P.Ws. 1 and 8 before the police is not such an omission so as to go to the root of the matter. Moreover, the evidence of P.W. 19 regarding the time of death after their last meal by the two deceased persons is an opinion evidence. When the direct evidence of P.W. 1 is satisfactory, it cannot be rejected merely on the basis of the opinion evidence of P.W. 19 as to the time of death after the last meal of the two deceased persons. In the case of Punjab Singh v. State of Haryana, AIR 1984 SC 1233 : (1984 Cri LJ 921), the Supreme Court has held that where direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence.

28. Another contention of the counsel for the appellant is that there is a delay of one month in sending the gun and M.O. 15 to P.W. 26 and, therefore, the opinion of P.W. 26 will not be safe to be relied upon. But, P.W. 26, the ballistic expert, has deposed that the seals on the articles sent to him were found in fact. In view of this unbiased evidence of P.W. 26 that the seals were found in fact by him when he received those articles, there cannot be any doubt for us to hold that there was no foul play with these articles before they were sent by the investigating agency to P.W. 26.

29. The evidence of P.W. 26 is also attacked by the defence on the ground that he has not taken the microscopic photographs of the pin marks of the cartridges and furnished the other date of the micro-scopic findings shown by the diagrams to satisfy the Court that the characteristic pin marks of the cartridges M.O. 15 recovered in this case are found to be identical with that of the test fired cartridges. In the case of Ramanathan v. State of Tamilnadu, 1978 Cri LR (SC) 318 : (1978 Cri LJ 1137), it is held by the Supreme Court as follows :

“It is true that there has been considerable difference of opinion amongst the investigators regarding the use of photographs in a Court for the purpose of illustrating the matching of the markings and while it may be that microscopic photograph, when taken with due care and in the best of conditions, may enable the evidence to be placed on the record in a visible form, it cannot be denied that a Court would not be justified in rejecting the opinion of an expert who has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary to take the photographs.”

In view of this law laid down by the Supreme Court, the evidence of P.W. 26 cannot be rejected merely on the ground that he has not taken the photographs of the cartridges concerned. He has also explained that he could not take the photographs for the want of films.

30. It is also contended that the evidence of P.W. 18 that the gun was seized at about 8.00 p.m. on 5-8-1991 in the police station from the accused does not appear to be correct. The trial Court has agreed with this contention. But, it has held that this will not go to the root of the matter as the accused himself has admitted that M.O. 2 was taken from him when he was taken from his house on the next day of the incident at 6.00 a.m.

31. P.W. 1’s evidence is corroborated by the evidence of P.W. 8, his mother, P.W. 9 Gundappagowda and P.W. 15 Krishnegowda P.W. 1 has stated that after running for his life after seeing the incident, he came home and informed his mother P.W. 8, his uncle P.W. 9 – Ananda and P.W. 15 – Krishanegowda. All these witnesses have corroborated P.W. 1 by stating that they came to know about the incident from P.W. 1. P.W. 15 has deposed that on the date of the incident, when he was standing near a grocery shop at about 6.00 p.m., P.W. 1 came and informed about the incident. The evidence of these 3 witnesses corroborates the evidence of P.W. 1 that the he came and informed them about the incident.

32. The counsel for the appellant further submitted that the evidence of P.W. 1 is not natural and believable because if really the accused was the assailant armed with machu and a gun and P.W. 1 were to be present there, his life would not have been spared by the accused as there was no hindrance for the accused to commit the murder of P.W. 1 after murdering his father and brother. The evidence of P.W. 1 is to the effect that the accused first shot at his father Mallesha and thereafter he shot at his brother Yogisha and when Yogisha limped towards a bush nearby and was trying to hide there, he again fired at him and even he picked up the machu and assaulted him with that machu. P.W. 1 has stated that the he saw all these from a bush nearby from a distance of 20′ and that thereafter on seeing him witnessing the incident, the accused came chasing him and he ran away and managed to save himself. When P.W. 1 ran, naturally he was coming nearer to the place where the houses of his uncles were situated. That could be the reason for the accused not to have chased him further as he would expose himself to the residents of those houses. The trial Court has also rightly held that due to the killing of these two persons, the possibility of the accused becoming exhausted and not having sufficient stamina to pursue P.W. 1 who was running for his life cannot be ruled out and this finding cannot be said to be incorrect or perverse. P.W. 1’s evidence is that the accused shot more than once at his father and brother. The licence of the gun M.O. 2 in favour of the accused is exhibit P-7 dated 31-12-1984. The offence had taken place in the year 1991. That means, the accused had the experience of using the gun for nearly 7 years at the time of his commission of the offence. In view of this background his firing number of shots by replacing the cartridges immediately cannot be said to be an improbability in the prosecution case. The evidence of P.W. 1 which we have discussed above and which is corroborated by the evidence of P.Ws. 8, 9, 15, 19, and 26, has been rightly accepted by the trial Court.

33. The next piece of evidence relied upon by the prosecution is that the accused made extra-judicial confession before P.Ws. 2 and 3 and also before P.Ws. 4 and 13. P.W. 4, has deposed that she told P.W. 13, her husband, that she saw the accused going with a gun towards the gomala land, on hearing some sound of gun shots, and then she and her husband went to that place and found the accused standing there, and when questioned, the accused is said to have confessed to his having committed the murders of Mallesha and Yogisha. P.W. 13 has corroborated the evidence of P.W. 4. This evidence has been accepted by the trial Court. But, after going through the evidence of P.Ws. 4 and 13, we think that it looks improbable and unnatural that the accused could have made extra-judicial confession before these two persons standing at the same spot there. Because, the evidence of P.W. 1 is that after shooting at Mallesha and also shooting at Yogisha and causing injuries to him with machu, he chased P.W. 1 to some distance. If he had chased P.W. 1 to some distance, there was no reason for the accused to go back to the same place where the dead bodies of Mallesha and Yogisha were lying. It looks highly improbable that the accused should be standing with the gun still by the time these witnesses go there. The house of these witnesses is situated at some distance away from the place of the incident. They would naturally require some time to go to that place and the evidence of P.W. 1 is that the accused chased him. In view of these facts, it looks highly unnatural and improbable that the accused should be standing holding his gun at the same place of incident. P.W. 13 has given a damaging statement in his cross-examination by stating that he came to know about the incident only from P.W. 1. From the evidence of P.W. 1, we do not find that he disclosed about the incident to P.Ws. 4 and 13 when they met him while he was returning home. The answer given by P.W. 13 that he came to know about the incident from P.W. 1 leads to the inference that the accused could not have made extra-judicial confession before P.Ws. 4 and 13. Because, if the accused had made extra-judicial confession before them, there was no point in his stating that he came to know about the incident from P.W. 1. Therefore, we are of the opinion that the trial Court was not justified in relying on the evidence of these two witnesses. But, the evidence of P.Ws. 2 and 3 regarding the extra-judicial confession made by the accused before them is natural and believable. The evidence discloses that the houses of P.Ws. 2 and 3 are situated adjacent to each other and they are situated on the way to gomal land where the incident took place. P.W. 2 has deposed that on that day when she was inside her house at about 5.00 p.m., she heard the sound of gun shots from the side of gomal land and that she came out of her house to see what it was, that she saw the accused coming returning with gun in his hand, that she asked him as to what had happened and that then he confessed to have murdered Mallesha and Yogisha. It is also her evidence that he asked P.W. 3, Prema for water and she gave him water. The accused must have felt exhausted and thirsty after the harrowing experience of murdering two persons who were so closely related to him. Therefore, his asking P.W. 3 Prema for water is quite natural. There is nothing unnatural in the accused confessing about he having committed the murders of Mallesha and Yogisha with P.W. 2, who is none else than the sister-in-law of the accused, when she asked him as to what had happened when she had seen him with the gun. This evidence of P.Ws. 2 and 3 was sought to be attacked on the ground that these two witnesses had not disclosed about the alleged extra-judicial confession immediately to the police when the police had come to village, were conducing the inquest proceedings, etc. It is also attacked on the ground that P.W. 2 has not stated the names of the deceased in her statement before the police. Merely non-stating the names of the deceased cannot amount to material improvement in view of the fact that the deceased are none else than the close relatives of P.W. 2 and the accused. We do not think that it is a material improvement. Regarding the non-stating about the extra-judicial confession before the police immediately, we have to take into consideration that these witnesses are the rustic women who are not acquainted with the procedural aspects of law. They cannot be imputed with the knowledge that it was required of them to apprise the police immediately as to what had happened there. When the police were conducting the proceedings, it is but natural for these two women not to interefere with those proceedings, by coming forward and telling about the extra-judicial confession. It is only when the statements of these witnesses were recorded, they have come forward with the version which cannot be said to be false or concocted.

34. The counsel for the appellant tried to find fault with the statements of the witnesses on the ground that there is a delay in recording the statements of some of the witnesses. We do not find that there is any such inordinate delay in recording the statements of those witnesses. Further, mere delay in recording the statements of the witnesses cannot be a ground to reject the prosecution evidence. There are instances where the Supreme Court has disbelieved the evidence of a witness where there was a delay of few days in recording the statement of the witness. There is also a case where the Supreme Court has believed the evidence of a witness where there was a delay of 52 days in recording the statement of that witness. That means, whether the delay in recording the statement of a witness can be a drawback or set back to the prosecution case will depend on the facts and circumstances of each case. After assessing the evidence of the prosecution in its totality, we find that there is no such inordinate delay in recording the statements of the prosecution witnesses.

35. Another submission made by the counsel for the appellant is that there was a delay in receipt of the FIR by the Magistrate concerned. Mere delay in receiving of the FIR by the Magistrate cannot be a ground for the Court to reject the prosecution case, if the prosecution case is found otherwise acceptable, and safe to be relied upon. In the evidence of P.W. 21, he has also explained as to how the delay has occurred in the receipt of FIR by the jurisdictional Magistrate. Hence, this cannot be a ground for the Court to reject the prosecution case.

36. The trial Court, though was not justified in relying on the evidence of P.Ws. 4 and 13, was justified in relying on the evidence of P.Ws. 2 and 3 to come to the conclusion that the accused made extra-judicial confession before them. We are aware of the law that extra-judicial confession is a weak type of evidence and it requires to be corroborated in its material particulars before it is accepted. Though extra-judicial confession may be a weak type of evidence, but still it amounts to evidence and if it is found corroborated in its material particulars, there is no prohibition for the Court to act upon it. In this case, the evidence of P.Ws. 2 and 3 finds material corroboration from the evidence of P.Ws. 19, 7, and 26, the ballistic expert, and P.W. 1, the eye-witness. Besides this extra-judicial confession, there is also direct evidence of P.W. 1. Therefore, we think that it is not risky to rely upon the evidence of P.Ws. 2 and 3 to come to the conclusion that the accused had also made extra-judicial confession before P.Ws. 2 and 3. The evidence that we have discussed so far proves beyond reasonable doubt that it is the accused who caused the death of Mallesha by firing at him with his gun M.O. 2 and also caused the death of Yogisha by firing with his gun M.O. 2 and causing injuries to him with machu M.O. 1. Therefore, the trial Court is justified in convicting the appellant-accused for the offence punishable under Section 302 I.P.C.

37. The trial Court has also convicted the appellant for the offence punishable under Section 3 read with Section 30 of the Arms Act, 1959. It is not disputed in this case that the appellant-accused is the owner of M.O. 2 as it is evident from his licence exhibit P-7. The evidence also discloses and it is also not disputed by the accused that he produced the gun before the police at the time when he appeared before the police on the next day of the incident. The evidence of P.W. 26 discloses that M.O. 2 bore the signs of discharge and M.O. 15 were fired through M.O. 2. In view of these circumstances, the trial Court is justified in convicting the accused for the offence punishable under Section 3 read with Section 30 of the Arms Act. We do not see any reasons to interfere with the judgment of the trial Court convicting the appellant-accused for the offence punishable under Section 302 and also for the offence punishable under Section 3 read with Section 30 of the Arms Act, 1959.

38. The trial Court has also sentenced the appellant-accused to R.I. for three months for the offence punishable under Section 3 read with Section 30 of the Arms Act. Looking to the facts and circumstances of the case, we think that the punishment awarded to the appellant-accused for this offence is not harsh or unjust. But, the trial Court has sentenced the appellant-accused to death and ordered that he be hanged by his neck till he is dead for the offence punishable under Section 302 I.P.C., The learned Addl. S.P.P. submitted that the way the appellant had committed the murder of Yogisha demands for a penalty not less than the death penalty in this case, because there is a streak of beastly behaviour in the accused chasing injured Yogisha and firing again at him and not being satisfied with that, again assaulting with a machu which was lying nearby. But, the counsel for the appellant submitted that this is not a rarest of rare cases so as to call for the death sentence.

39. In the case of Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466), the Supreme Court has held that in the face of the statutory provision in clause (3) of Section 354 of Cr.P.C. requiring giving of special reasons while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, extreme plea of death in no case cannot be countenanced and the death penalty cannot be said to be violative of Art. 21. In the same ruling, the Supreme Court has further observed that in order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.

40. In the case of Neti Sreeramulu v. State of Andhra Pradesh, AIR 1973 SC 2551 : (1973 Cri LJ 1775), the Supreme Court has held that long lapse of time since the imposition of the capital sentence by the trial Court and the consideration of the question of sentence by the Supreme Court constitutes a relevant ground for reducing the sentence to life imprisonment.

41. In the case of Anshad v. State of Karnataka, 1994 SCC (Cri) 1204, the Supreme Court has held as follows :

“Courts are expected to exhibit sensitiveness in the matter of award of sentence particularly, the sentence of death because life one lost cannot be brought back. For determining the proper sentence while the Court should take into account the aggravating circumstances it should not overlook or ignore the mitigating circumstances. The manner in which the crime was committed, the weapons used and the brutality or the lack of it are some of the considerations which must be present to the mind of the Court. Of course, the High Court has the power and jurisdiction to enhance the sentence of life imprisonment to death but that power has to be sparingly exercised, in “rarest of the rare cases’ for ‘Special reasons’ to be recorded. The Courts must be alive to the legislative changes introduced in 1973 through Section 354(3) Cr.P.C. Death sentence, being an exception to the general rule, should be awarded in the “rarest of the rare cases” for “special reasons” to be recorded after balancing the aggravating and the mitigating circumstances, in the facts and circumstances of a given case. The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of “rarest of rare cases”. The Courts must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case.”

42. In the case of Shiekh Ishaque v. State of Bihar, 1995 Cri LJ 2682 : (1995 AIR SCW 2001), the Supreme Court has held as follows :

“The number of persons who had lost their lives at the hands of the assailants by burning and the motive for the commission of crime are not the only considerations which have to be kept in view for imposing death penalty. It was not known as to which of the accused had actually sprinkled the kerosene oil inside the shop. There was also no material on the record to show as to which of the accused along with “some others” actually set the shop on fire. After it was concluded that the accused along with “some others” had set the shop on fire, it was not proper for the Court to have ignored that factor, which was a mitigating circumstances, while considering the question of sentence. Though the accused or at least some of them, were alleged to be armed with bombs and fire-arms, they had not used those weapons against their victims. This factor also deserved notice while considering whether the extreme penalty of death was called for in the case or not. That the accused intended that the person inside the shop should be burnt alive was established beyond doubt but there was no material to show that the accused knew or had reason to believe that there were three persons inside the shop at the relevant time. Therefore, the number of victims alone would not make the case, “rarest of the rare”. Therefore, sentence of death imposed on accused commuted to sentence of life imprisonment.

Decision of Patna High Court, Reversed.”

43. A persual of the law on this point discloses that death sentence is an extreme penalty and it should be imposed by the Court only in the rarest of rare kind and special reasons also be recorded for awarding this extreme penalty of death to an accused. From the Supreme Court rulings which we have referred to above, it is clear that mere number of deceased cannot be a ground to hold that a particular case is case of rarest of rare kind. In this case, two persons are murdered by the accused. The Court should take consideration not only aggravating circumstances, but also mitigating circumstances while considering as to whether the accused should be awarded the extreme penalty of death in law. The accused in this case is not a criminal. There are no antecedents to show that he had committed any crimes in his life prior to the date of the incident. Though he was the owner of M.O. 2 gun for nearly 7 years prior to the date of the incident, there are no incidents of his using M.O. 2 for any criminal purpose. The motive, as proved in this case, is the dispute regarding the kharab land adjoining the wet lands of the accused and Mallesha and that dispute was existing between the two brothers Mallesha and the accused for nearly two years prior to the date of the incident. The sparking point of causing the death of his brother and his son is that they fenced the kharab land. The accused seems to have become infuriated at Mallesha, Yogisha and P.W. 1 as he found that they were trying into close his claim to that kharab land by fencing it off. Therefore, there was some provocation for the accused to move into the action though he was not justified in going to the extreme limit of killing his brother and his son. The accused cannot be said to be a menace to the Society. He has not caused the death of any persons who are not concerned with the dispute existing between him and his brother. Taking into consideration these factors, his hitting Yogisha with machu after firing at him is an act of a man who had lost the control over himself due to his anger against his brother and his sons. Taking into consideration all these factors, we think that this is not a case of rarest of rare kind so as to award death sentence to the accused. The trial Court was not justified in awarding death sentence to the appellant-accused.

44. Hence, we proceed to pass the following order :

The reference made by the Sessions Judge, Hassan, under Section 374 Cr.P.C. for confirmation is rejected.

The appeal is allowed in part. The judgment of the trial Court convicting the appellant for the offence punishable under Section 302 I.P.C. and for the offence punishable under Section 3 read with Section 30 of the Indian Arms Act, 1959, is confirmed. Even the sentence of three months of R.I. awarded for the offence punishable under Section 3 read with Section 30 of the Arms Act, is also confirmed. But, the sentence of death awarded to the appellant for the offence punishable under Section 302 I.P.C. is set aside and the appellant-accused is sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 I.P.C. and both the sentences are ordered to run concurrently.

Order accordingly.

*-*-*-*-*