STATE OF KARNATAKA Vs. ATMENDRA GANAPATI HEGDE

JUDGEMENT

(1.) Appellant No. 1 is the son of appellant No. 2 and both are residents of Taddalse in Sirsi taluka of Karwar District. Accused No. 2 is an Advocate. The undisputed facts are that Sripati Hegde who died in about the year 1982 or 1983 left behind five sons and two daughters. Accused No. 2 is the eldest, the second son is Venkataramana, the third Adinarayana, the fourth Viswanath and the fifth deceased Ashok Hegde. About a year after the death of Sripati Hegde there was a partition among his four sons and they started living separate. Adinarayana sold away his properties to his other brothers and settled down at Sirsi and has been doing business. Viswanath however continued to live with Ashok but later shifted to Sangli. His properties were also being managed by deceased Ashok. Ashok and accused No. 2 occupied the houses adjacent to each other. There is a dividing wall in between. Ashok also put up a fence on the edge of the land fallen to his share and which is annexed to the house fallen to his share. Between these two backyards of the houses of Ashok and accused No. 2 is a coconut tree. It appears Ashok and accused No. 2 were claiming proprietary rights in this tree. Yield from this tree was substantial. P.W. 5 Ramchandra and P.W. 6 Manjunath Hegde who is a relative of accused No. 2 and the deceased were the panchayatdars who partitioned the family properties among these brothers. Even P.W. 5 is the brother of Sripati Hegde though he is living in another village. The distance between the two villages is hardly one mile.

(2.) About eight months after this partition dispute arose between accused No. 2 and deceased Ashok Hegde with regard to the ownership of the said coconut tree. Each of them claimed exclusive ownership on it. However P.Ws. 5 and 6 when approached by the deceased and accused No. 2 advised them to get their respective land on either side of the tree measured and till then an arrangement was made between the two brothers under which each of them was entitled to take the coconuts falling on his land. They however advised not to pluck the coconuts till the measurement was over. Thus the right to collect the coconuts falling on their respective land was given to them pending settlement of the dispute. This arrangement was made about one year prior to the death of Ashok. In the house of deceased Ashok lived at the material time with his wife P.W. 1 Vijayalakshmi and his three children. The youngest was a son of one year four months. The eldest was a daughter of about seven years. P.Ws. 2 and 3 Parameshwar and Ramadas are the agricultural labourers working in the agriculture land of the deceased. Making due allowance to the controversy with regard to condition of their service it is not disputed that for quite a long time they had been working under this family and after partition they continued to work under deceased Ashok. The houses of the accused and the deceased face East and the coconut tree in question was on the Western side of these houses. Thus the fencing was only to separate their respective backyard. Even after partition there used to be some minor disputes with regard to taking of water from the tap connected to the pump set installed to draw water from a tank.

(3.) Accused No. 2 has another son by name Rajendra. As accused No. 2 used to commute between Taddalse and Karwar for his legal practice, his two sons and his wife used to look after their lands. This Rajendra happens to be the elder son of accused No. 2. Sometime prior to the incident in question this Rajendra had assaulted deceased Ashok on his arm for which a police complaint came to be filed and later during the pendency of this case in the Sessions Court he was convicted. On 28-9-1986 both accused No. 2 as well as deceased filed petitions at the Sirsi Police Station which was received by P.W. 19. Under Ex. P-24 deceased Ashok complained that that morning at about 10.30 a.m. both these accused persons indulged in removing the stone fencing put up by him and when questioned both of them threatened him with dire consequences. Accused No. 1 threatened him with a knife and accused No. 2 with a club. His assertion that the deceased had put up the stone fencing at the border of his land fell on deaf ears. The petition given by accused No. 2 is at Ex. D-3 and it was against deceased Ashok, P.Ws. 2 and 3 and one Bangareja Eregowda. Accused No. 2 complained therein that the persons named therein as accused had trespassed on his land and committed theft of 27 betelnut plants from his Bagayat land and this land was subject-matter of a grant from the Deputy Commissioner. He also complained that the deceased had prevented him from plucking the coconuts from the coconut tree standing on his land. The theft of betelnut plants was earlier to this incident of 28-9-1986 and Ex. D-3 related to the incident of the deceased and others preventing him from taking the coconuts from the said tree. P. W. 19 the Sub-Inspector of Police who received these two petitioners gave endorsements to them as per Exs. P-25 and P-26 respectively. They were so given after he made a local inspection and found that it was a dispute of civil nature. The two endorsements direct them to settle the dispute in a Civil Court and till then not to indulge in acts leading to breach of peace. In spite of that it appears there was no love lost between the two brothers. Ashok Hegde died a homicidal death on account of a firearm injury sustained on 30-10-1986 at about 11 a.m. or so. On a complaint filed by P. W. 2 one of the farm servants a case of murder was registered and on investigation charge-sheet came to be filed against both the accused persons under S.302 r/w. Ss.34 and 114, I.P.C. and also under S. 27 of the Arms Act. The Sessions Court at Karwar to which the case was committed acquitted the accused holding that deceased Ashok sustained gun shot wound accidentally. The defence taken by the accused was that when the deceased was getting the coconuts plucked through his servant one Ganapati Gowda and when the two farm servants of the deceased were also there these accused came in their way and when they questioned them the deceased attempted to assault them with a "Reeper" and either due to the swing of the "Reeper" touching the hammer of the gun or the creeper pulling it the pin of the cartridge got hit and the deceased was consequently hit by the pellets. This theory appears to have found favour with the trial court. The State has now challenged this judgment of acquittal of the appellants by the Sessions Court.