SHANKARAYA NAIK Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal arises out of the following facts:

(2.) One B.K.Naik had two brothers - Rekhya Naik and Ganga Naik PW 6. Balappa Naik, the deceased, PW3 Veeraya Naik, PW 7 Naga Naik and PW9 Shantamma are the children of B.K.Naik and Jamballama, PW1. Shankaramma PW24 was the wife of the deceased. The accused are all sons of Rekhya Naik aforesaid whereas PW.5, Moulasab is the son-in-law of PW6. All the persons being closely related were residents of the Janatha Colony falling within the jurisdiction of Yergera Police Station, Raichur District. As per the prosecution story, land measuring more than 5 acres belonging to B.K.Naik had been mortgaged to Rekhya Naik, father of the accused. The deceased Balappa Naik, who had shifted to Bombay was able to save some money to redeem a part of the land and was making efforts to redeem the remaining portion of the property as well. As the accused had enjoyed the usufruct of the property for some time, they were not happy at this turn of events which had led to ill will between the parties. On 25th August 1995 at about 6.30 p.m., the deceased along with some of the witnesses was sitting outside their houses when all the accused armed with clubs and sickles came there and assaulted Balappa Naik and when those sitting there, that is, his mother, sister, brothers and uncle intervened, they too were assaulted and caused various injuries. Veeraya Naik PW3 lodged the first information report at about 3 a.m. on 26th August 1995 and on its basis, a case was registered under sections 143, 147, 148, 324, 323 and 504 read with Section 149 IPC. All the injured including Ballappa Naik were sent to the District Hospital and examined by Doctor Chandra Rao PW8. As the condition of Balappa Naik was serious, he was admitted to the hospital but later succumbed to the injuries. As a result, a case under Section 302/149 IPC was also added. The Doctor also noted specific injuries on PW 1, 3, 5, 6, 7 and 12. All the eight accused were arrested in due course and were charged for offences punishable under Sections 147,148,302 read with section 149, 326, read with 149, 324 read with 149, 323 read with 149 and 504 IPC and as they pleaded not guilty, they were put to trial. The prosecution relied on the evidence of the aforesaid witnesses, in addition to the evidence relating to the recovery of weapons etc. The accused denied the allegations leveled against them in their statement made under Section 313 Cr.P.C. Ex.D1 was also marked on their request and taken into evidence.

(3.) The trial court in its judgment dated 31st October 1997 held that though the assault on Balappa and the other injured in the hands of the accused had been proved, the prosecution had failed to establish the common object of the unlawful assembly to cause the murder of Balappa or causing an assault and injury on the injured witnesses and in this view of the matter, the accused were liable to be convicted for their individual acts. Applying this principle, the trial court found that A1 Lachamappa Naik, A7 Nagappa Naik and A8 Hanumantha Naik had not committed any individual overt act pertaining to the deceased or the injured and as such they were entitled to the benefit of doubt and thus an acquittal. Accused No.4 Sriramulu Naik was held guilty for causing the death of Balappa under Section 302 IPC. The court also opined that accused No.5 Gopal Naik and accused No.6 Reddy Naik were liable to be convicted under Sections 324 and 326 IPC in so far as the attack on Balappa was concerned, whereas the other accused Nos. 2 to 6 were found guilty of assault on the injured witnesses and were convicted for offences punishable under Section 324 and 326 IPC. Accused No.4 Sriramulu Naik was accordingly sentenced to undergo imprisonment for life and fine of Rs.2000/- for the offence under Section 302 IPC with a default sentence. Accused Nos. 2 to 6, who were found guilty under Section 326 IPC were sentenced to undergo R.I. for two years and a fine of Rs.1000/- each with a default sentence and under Sections 324 IPC and were sentenced to undergo R.I. for a period of one year and fine of Rs.500/- each with default sentence.