DHEERAJ GOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Counsel for the appellants and the learned State Public Prosecutor for the State.

(2.) The case of the prosecution was that there were disputes in respect of land between PW.2 Umanath Naika and his younger brother, accused no.1, Krishna @ Kitta Naika. There had been earlier quarrels between them and four months prior to the complaint, on 11.9.1999, PW.2 Umanath Naika had to leave Kodipady to go to the house of his brother-in-law Lingappa Naika at Nere. A week prior to 11.9.1999, Umanath Naika is said to have met one Poovani Gowda and he had informed Poovani Gowda that on 11.9.1999, he would be proceeding to Kodipady to cast his vote at an election and that he would meet him near a temple. And on 11.9.1999, at about 11.30a.m., Umanath Naika is said to have travelled in a car from Puttur to Kodipady to meet PW.3 at the temple, as arranged and Poovani Gowda was said to have been waiting with his sons, PW.1 Honnappa Gowda and PW.4 Jagadish. PW.3 and his sons were asked to board the car and accordingly, they had got into the car. Umanath Naika and his brother-inlaw Lingappa Naika and Balachandra were already in the car and they were proceeding towards Anaje. PW.3 and his sons had already cast their votes in the polling booths at the Panchayat office. The car is said to have stopped near the shop of one Abdul Khader. All the six passengers had alighted and went to the shop of Abdul Khader. Umanath Naika is said to have told others that he would cast his vote and he went towards the Primary School building, where the polling booth was set to cast his vote. By the time PW.2 returned, an auto rickshaw bearing registration No.CNO 9881, which was said to have been driven by accused no.2 had come there and the time was about 12 noon. Accused nos.1 to 11 are said to have come in the auto rickshaw. Of them, Lakshman Naika, accused no.2 and Fedrick, accused no.3 are said to have thrown chilly powder at PW.2 Umanath Naika and Umanath Naika avoided it and was about to run. Accused no.1, who was armed with a dagger, inflicted a blow on the left shoulder of Umanath Naika Accused no.1 Shivappa Naika and Accused no.5 Dheeraj Gowda held both the upper limbs of Umanath Naika. When Umanath Naika was trying to run away, Krishna Naika again inflicted a blow with a dagger on his right cheek. And also inflicted a blow on his left eye brow and right eye lid. Fedrick, Accused no.3 armed with an iron rod is said to have inflicted a blow on the knee of PW.2, at which PW.2 had fallen to the ground. At that time, Lingappa Naika in order to prevent accused no.1 from further assaulting PW.2, had intervened and accused no.1 is said to have inflicted a blow with a dagger on the right chest of Lingappa Naika. Lingappa Naik ran towards the school and fell down. PW.3, who saw the accused coming towards him, had tried to run away, but accused no.2 had stabbed him with a dagger on the left side of the back of PW.3 and he fell to the ground. Accused no.5 Dheeraj Gowda and Accused no.11 Padmanabha Gowda are said to have again assaulted PW.3 with their hands and kicked him. Fedrick, who was armed with a iron road, is said to have inflicted a blow on the head of PW.1. Accused no.7 Inas Veigas, accused no.8 Cyril Veigas, and Accused no.6 Dinakar Gowda had assaulted PW.1 with their hands. Fedrick is said to have kicked PW.4 Jagadish, who fell to the ground. Accused no.10, Nagesh Gowda and accused no.9 Moris Veigas and accused no.4 Shivappa Naika had assaulted PW.4 on his back with their hands. PWs.1 to 4, PW.10 and Lingappa Naika were shouting for help and accused nos.1 to 11, with their arms had sped away in the auto rickshaw in which they had come. In the meanwhile, PW.14 Kali Naika, a home guard, who was on duty at the polling booth, is said to have brought the auto rickshaw at the directions of a Head Constable, in which the injured Lingappa Naika was taken to a Government hospital. PWs.2, 3 and 10 were also taken to the Government Hospital. Lingappa Naika was declared brought dead at the hospital. PWs.2,3 and 10 were admitted to a hospital. PW.1 Honnappa Gowda and PW.4 Jagadish had come to the Government Hospital in another auto rickshaw. They were examined and admitted to the hospital. This was a fall out of the dispute between Umanath Naika and Krishna Naika in respect of the partition in the landed properties left behind by their father and there had been earlier quarrels between them as already stated. It is in this background, on the basis of a complaint by PW.1, Honnappa Gowda, the Police had registered a case and had thereafter arrested the accused and after further proceedings, a charge-sheet having been filed, the matter was committed to the Sessions Court. Accused nos.1,2 and 6 to 9 stood trial in SC 18/2000 and Accused nos.3, 4 and 11 stood trial in SC 130/2000. Both the sessions cases were clubbed and tried together and accused nos.1 to 4, 6 to 9 and 11 were acquitted on 21.8.2001. When several non-bailable warrants issued against accused no.5 and 10 were returned unexecuted, the Committal Court issued a proclamation against them. Accused no.5 and 10 having filed Criminal Miscellaneous Cases seeking anticipatory bail, the same were allowed and accused nos.5 and 10 appeared before the Committal Court and sought for bail, which was granted. The Magistrate being satisfied that the offences against accused nos.5 and 10 were exclusively triable by a Court of sessions, committed the case to the Court of Sessions for trial. The Sessions Court, having framed charges and the accused having pleaded not guilty, the prosecution has then examined 18 witnesses and had marked several exhibits and material objects, which were the very same documents and exhibits marked in the trial against accused nos.1,2 and 6 to 9 and Accused nos.3, 4 and 11 and the only difference being that the judge trying the case was different from the one who had acquitted other accused. The Court below proceeded to form an opinion and has arrived at findings adverse to the present appellants and has accordingly convicted. It is in this background that the present appeal is filed.

(3.) The learned counsel for the appellants would point out that insofar as the acquittal of the other accused are concerned, the same had been tested in appeal before this court before a Division Bench, which has affirmed the judgment of the trial court and has acquitted all the accused except accused nos.1 and 3 are concerned. Since the allegations of assault against the present appellants were similar in respect of the accused who were acquitted, the trial court was not justified in arriving at inconsistent findings contrary to the findings that had been arrived at earlier, which has also been affirmed by a Division Bench of this court. The learned counsel would submit that in keeping with the consistency that is warranted in courts rendering judgments in connected cases on similar facts and circumstances, it would be incongruous, when on the same set of allegations and evidence, the other accused have been acquitted, to hold that a different case is made out against the present appellants and would seek that on token of parity, the present appellants also should be acquitted on the very same reasoning as applied to other accused, who have been acquitted and which acquittal has been affirmed by a Division Bench of this court.