STATE Vs. JATTAPPA

JUDGEMENT

(1.) WE have heard the learned Additional State Public Prosecutor, the learned Counsel who represents the respondents-accused who are the original accused 2 to 4 before the Trial Court. The case against accused 1 was separated because he was apparently absconding. The allegation was that at around midnight on 13-9-1994, the present three accused along with accused 1-Vishnu had gone to the residence of deceased Nagappa, the reason being that some altercation had taken place between the parties earlier that day in the course of the Ganapati procession. The accused are alleged to have knocked at the door and P. W. 1-Sumithra who is the wife of the deceased Nagappa opened the door. The accused called Nagappa out and in fact, virtually dragged him out, tore his shirt and an altercation took place between the four accused and Nagappa. At the end of this altercation, accused 1 inflicted a stab injury on the abdomen of Nagappa after which they all ran away from that place. Dimensionwise, the injury was a very small one measuring half-an-inch but the weapon had caused a small tear to the intestine and the kidney. P. W. 1-Sumithra took her husband into the house and obviously attended to him and it was only the next day that he was taken to hospital. Obviously, because of the haemorrhage Nagappa died. The police arrested the accused and at the end of the investigation they were charge-sheeted for having committed offences punishable under Section 302 read with Sections 114 and 34 of the IPC. The majority of the crucial witnesses did not support the prosecution and we are ultimately left with the evidence of wife Sumithra who is P. W. 1 and the mother, P. W. 6. Sumithra very categorically states that the four accused had come to their residence on that night, that they had assaulted her husband and that he came to be stabbed in the course of that incident. The mother, p. W. 6 has deposed to the effect that deceased Nagappa had told her that accused 2 was on inimical terms with him and that he had threatened to kill him and that accused 2 was the person who gave the knife to accused 1 who in turn stabbed Nagappa. We need to take note of the fact that P. W. 6 was admittedly not present when the incident took place and everything that she has stated is on the basis of what her son is supposed to have told her. It is for this reason that this evidence will have to be perhaps slightly discounted or accepted with a level of caution.

(2.) THE learned Additional State Public Prosecutor has submitted that the presence of P. W. 1-Sumithra is perfectly natural, that she knows the accused, that she has identified them and that her evidence has withstood the test of cross-examination and consequently this evidence as corroborated by the evidence of P. W. 6, the mother and the medical evidence of Dr. Lachappa, P. W. 1 is more than sufficient to establish the charges. His submission is that even if accused 1 is absconding, that the remaining accused can be convicted in him absence if it is established that they abetted him and shared the common intention in which case the liability of the act of stabbing Nagappa would devolve on all the accused. The learned Counsel therefore submitted that the order of acquittal recorded by the learned Trial Judge is bad in law and that the same must be set aside and the three accused must be convicted for the offence punishable under Section 302 read with Section 34 of the IPC.

(3.) THE learned Counsel representing the accused has seriously assailed the evidence insofar as he submits that there is a clear desire on the part of P. Ws. 1 and 6 to foist the stabbing incident on the present accused even though it is an individual act attributable to accused 1. He lays emphasis on the fact that there is no dispute about the evidence insofar as the allegation is that accused 1 was the person who used the knife even if the accused shared the common intention of assaulting nagappa. The submission canvassed is that unless there is additional material before the Court to establish that the common intention of the group was directed towards killing Nagappa, that it would not be permissible in law to convict the present accused for that offence even if the court were to hold them guilty of the lesser charge of having physically assaulted Nagappa. The learned Counsel has submitted that even if the evidence indicated that the remaining accused assisted accused 1 in the knife assault or on the other hand if they established that they had instigated accused 1 to stab the deceased that only then the prosecution can argue that they could be held liable for this act but in the absence of either of these two factors, that the acquittal order under Section 302 would have to be sustained. He has attacked the evidence of P. W. 1 with regard to the alleged assault on deceased Nagappa by accused 2 to 4 by pointing out that there were virtually no injuries on the deceased either external or internal other than the stab injury and one small bruise on the knee which is hardly attributable to an assault. His submission therefore is that the order of acquittal is perfectly just and should be upheld.