STATE OF MYSORE Vs. RAJU SHETTY

JUDGEMENT

(1.) In respect of an incident which took place at about 8 a.m. on the morning of the 28th of April 1957 at Kuchoor in Arkula village, Manglore Taluk, South Kanara, in front of the house of one Iddinabba Beary, in which the said Iddinabba Beary received some simple injuries and one Mohamad Hussain alias Monu Beary received serious injuries which resulted in his death at the Hospital later that night, sixteen persons were tried by the learned Sessions Judge of South Kanara upon four charges. The first and the third of them were against all the 16 accused persons, the former being for the offence of rioting armed with deadly weapons punishable under Section 148 of the Indian Penal Code, and the latter for the offence of murder punishable under Section 302 read with Section 149 of the Indian Penal Code. The second charge was only against the 2nd and the 5th accused for having committed the murder of the aforesaid Monu Beary in the course of the same transaction and in pursuance of their common intention to cause his death punishable under Section 302 read with Section 34 of the Indian Penal Code. The fourth charge was against accused Nos. 3, 4 and 5 for the offence of voluntarily causing hurt to Iddinabba Beary in the course of the same transaction and in pursuance of their common intention to cause hurt punishable under See. 324 read with Section 34 of the Indian Penal Code.

(2.) After trial, the learned Sessions Judge has acquitted all the accused of all the charges. The principal if not the only substantial reason stated in support of the acquittal is that P. W. 1 Iddinabba had no right whatever in respect of the trees in the yard, that the mango tree in respect of the usufruct of which the incident occurred, was in the possession of the first accused and that such acts as could be attributed to the accused or any of them were those done in the exercise of the right of private defence and therefore not punishable as offences. The learned Sessions Judge further held that because the name of the 2nd accused had not been correctly stated in the first information EX. P-2, his name must have been subsequently introduced and that in any event, he was entitled to the benefit of the doubt upon evidence.

(3.) The State has filed this appeal against the said order of acquittal, impleading thereto only the first five accused as respondents. There is no appeal against the acquittal of the rest of the accused persons. The contention of the appellant is that whatever may be the position in respect of accused Nos. 6 to 10, there can be no doubt about the complicity of the first five accused persons in the crime, the first two of whom are direct brothers, the 3rd and the 4th, the tenants of the first accused living in the same village and the 5th a person who is said to have purchased from the first accused the usufruct of the mango tree in respect of which the incident is said to have occurred, that the evidence against these five persons is clear and convincing and that, therefore, their acquittal by the learned Sessions Judge is manifestly wrong and illegal.