B. G. SHIVASWAMY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Criminal Appeal No. 449 of 1999 has been filed by Accused 10 B.G. Shivaswamy and Criminal Appeal No. 450 of 1999 has been filed by Accused 6 B.S. Prabhuswamy. These two appellants along with nine other accused persons were tried before the IInd Additional Sessions Judge, Mysore for offences punishable under Ss. 143, 147, 148, 341, 323, 324 and 302 read with Sec. 149 of the Penal Code. The Sessions Judge convicted Accused 4, 5, 7, 9 and 11 for all the offences charged against them. However, the present appellants were acquitted of all the charges u/s. 302 read with Sec. 149 of the India Penal Code but for the minor offences they were convicted and sentenced to undergo imprisonment for various periods, the maximum of which runs to six months' imprisonment. In the appeal preferred by the State, the present appellant-Accused 10 Shivaswamy was found guilty of offence punishable u/s. 302 read with Sec. 149 of the Indian Penal Code and Accused 6 Prabhuswamy for minor offences.

(2.) We have heard the appellant's counsel and also counsel for the respondent State. The prosecution case, as disclosed from the FIR statement of PW 4, is that the deceased Puttegowda and his associate wanted a passage through the property of one Gurumallappa. Gurumallappa initially agreed for the pathway through his property but his relatives and friends objected to the same and he later refused on account of the prior disputes between the two groups of people, the accused forming one group and the deceased Puttegowda and others forming the other. On the date of the incident, Puttegowda along with PWs 3, 6 and some others came in a lorry. When the lorry reached the place of the incident, the accused persons, who had already collected there, intercepted the lorry. One of the accused opened the cabin of the lorry and pulled out Nanjundegowda, PW 6 and assaulted him. The appellant Shivaswamy and Accused 2 Guruswamy chased PW 6 Nanjundegowda but they could not cause any injury to Nanjundegowda and they came back and the further case of the prosecution is that the appellant exhorted the other accused to kill the deceased Puttegowda and Accused 4, 5, 7, 9 and 11 caused various injuries on the deceased and he died of multiple injuries. The Sessions Judge acquitted the appellant Shivaswamy on the ground that PW 2 and PW 3, who were alleged to be the eyewitnesses, did not state to the police that the appellant Shivaswamy had exhorted to kill Puttegowda. His finding was on the basis of the statement made by PW 26 the investigating officer. The Sessions Judge also held that when these appellants chased Nanjundegowda hence he could not have been present there when the deceased Puttegowda was being attacked by others. The High Court reversed these findings and held that the appellant Shivaswamy exhorted to kill the deceased Puttegowda so that he should also be treated as a member of the unlawful assembly and be punished for the offences under Sec. 302 read with Sec. 149 of the Indian Penal Code.

(3.) We have carefully considered the evidence of PW 26 and also the first information report statement wherein it is stated that the appellant Shivaswamy and another person had chased PW 6 Nanjundegowda. If that be so, the Sessions Judge was right in holding that he could not have been present at the time when Puttegowda was attacked by others. The investigating officer had stated that PWs 2 and 3, when questioned did not state that the appellant Shivaswamy instigated others to commit the offence. The reasons given by the Sessions Judge, which are found to be true, should not have been lightly reversed by the High Court. The only allegation against the present appellant-Accused 10 is that he made exhortation to kill Puttegowda. It is important to note that Puttegowda was not attacked by the present appellant-Accused 10, but as many as five persons attacked him and caused various injuries. It is difficult to believe that it was done solely on the basis of the instigation of the present appellant. The High Court was in error in holding that the appellant Shivaswamy shared the common object and he was liable for the offence u/s. 302 read with Sec. 149 of the Indian Penal Code.