LAKKAPPA NINGAPPA ITTAPPANNAVAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Lakkappa, Ningappa and four others were tried for the murder of Shiddappa and Nagappa. The trial court convicted them under S. 447, 326 and 302 read with Section 149 of the Indian Penal Code and sentenced them to life imprisonment under 302 Indian Penal Code, 2 years under 326 Indian Penal Code and 3 months under 447 Indian Penal Code. On appeal, filed by all the accused, the High court gave benefit of doubt to accused 6 and acquitted him, the conviction and sentence of accused 2 so Ningappa under Section 302 Indian Penal Code was upheld and so far as accused 1 and 3 to 5 were concerned they were acquitted of the charge under Section 302 read with Section 149 Indian Penal Code but were convicted under Section 304 Part II read with Section 149 Indian Penal Code and sentenced to Five years' rigorous imprisonment. The conviction and sentence of accused 1 to 5 for offences under S. 447 and 326 read with 149 Indian Penal Code was upheld. This court granted special leave only to accused 1 and 2. The special leave petition of accused 3 to 5 was dismissed by this court.

(2.) We may notice the prosecution story in a nutshell. The lands of the accused and the deceased are adjacent to each other. There was dispute regarding the boundary between the two parties for the past about 5 to 6 years. On the date of occurrence 10/12 persons had gone to deceased Nagappa's land for plucking chillies. At the same time the accused were also working in their fields. The bullocks of the accused strayed into the land of deceased Nagappa. The deceased-party started abusing the accused party. The abuses led to the fighting and in the process Nagappa and Shiddappa belonging to the complainant party died as a result of injuries inflicted on them by the accused. It is the prosecution case that appellant 2 assaulted the deceased with byakolu (an agricultural implement). The High court came to the conclusion that injuries on the person of the deceased were caused as a result of altercation on the spur of the moment. The High court on appreciation of evidence came to the conclusion that the common object of the unlawful assembly was to cause injuries to the deceased persons and not to commit the murder. So far as Ningappa, appellant 2 was concerned the High court found that even after the deceased fell down, he continued to press the neck of deceased Shiddappa with byakolu which resulted in his death. On this reasoning the conviction of appellant 2 under Section 302 Indian Penal Code was upheld.

(3.) Learned counsel appearing for appellant Ningappa has contended that there is no material on the record to distinguish his case from other accused persons who were convicted under Section 304 Part II Indian Penal Code. According to him the High court was not justified in maintaining theconviction of ningappa under Section 302 Indian Penal Code. We see considerable force in the contention of the learned counsel. The prosecution witnesses have deposed that both Ningappa and accused 6 Basappa throttled the neck of the deceased with their respective weapons. The High court disbelieved this part of the prosecution story and acquitted accused 6. We are of the view that the eyewitnesses having been disbelieved partly, resulting in the acquittal of accused 6 it would not be safe to believe them qua appellant 2. We give appellant-Ningappa benefit of doubt and acquit him of the charge under Section 302. We, however, convict him under Section 304 Part II and sentence him to rigorous imprisonment for five years.