ISHWARA NAIK Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE facts of this case present a rather sad state of affairs in so far as the two accused are the young sons of the deceased Putta naik who was aged about 70 years at the time of his death. It is alleged that on the morning of 16-8-1993 at about 10. 30 a. m. the deceased had gone up the hillock and that his daughter-in-law p. W. 2-Sujatha and his wife who is D. W. 1 heard him shouting, that he is being beaten by his sons. On rushing to the spot, they found that the two accused who had the handle of pickaxe and a short weapon used for plucking arecanut in their hands, they had just assaulted their deceased father and pushed him over. The deceased had. sustained severe injuries on his head, neck, arms etc. , and was carried by P. W. 5 and others to the house. He died before they reached the house and ultimately, the son P. W. 1 who returned only in the afternoon made his way to the Vittal police Station where he lodged a complaint late in the evening. In the complaint, he has pointed out that the accused who are his brothers had been insisting that the property be partitioned but that the deceased father was adamant about the fact that he was against it during his lifetime and that this could be done after his death. According to him, the accused had assaulted the deceased for this very reason a few minutes earlier but the deceased father had objected to the matter being reported to the police as it wa's a family dispute. The accused came to be arrested, they were charge-sheeted and put up on trial. The learned Trial Judge accepted the prosecution evidence and convicted the two accused of the offence of murder and awarded them a sentence of R. I. for life. The present appeal is directed against that conviction and sentence.

(2.) MR. Deshpande, learned Counsel who appears on behalf of the appellants' has taken us through the entire record. He submits that P. W. 1 who is the son has only secondary knowledge of the incident as according to him, he came to know of what had happened on enquiries with his mother. The learned counsel submitted that it is therefore necessary to look to the evidence of the mother who has been examined as D. W. 1. She has very clearly stated in her evidence that the deceased had fallen down and had sustained some injuries on his person and when she asked him as to how this had happened, he told her that he had fallen from a tree. Learned Counsel submits that if the deceased had sustained such a fall, having regard to his age and physical condition that these injuries could have been caused and that possibly he was trying to make his way to the house when he was found. Secondly, Mr. Deshpande heavily relies on the categorical statement of Gangu, the mother when she states that there was never any dispute between the sons over the property. In addition to that, what the learned Counsel points out to us is that the property in question stood in the name of the mother and not in the name of the father. His submission therefore is that it is very clear that because P. W. 1 was unhappy over the fact that the accused had secured places to build their houses that he has invented the whole theory of the assault in order to falsely implicate his brothers. The learned trial Judge has totally discredited the theory about the fall from a tree and in our considered view, it is impossible to accept that a 70 year old person would have climbed so high up on the tree as to sustain such serious injuries "and if at all that had happened, he could never have moved from the spot. The record indicates that there were no other injuries and therefore it is very clear that Gangu in her anxiety to save her own two sons who were the accused, has tried to put forward this theory for purposes of assisting the defence.

(3.) ON the other hand, we have the positive evidence of P. W. 2 who has very clearly indicated that she is as good as an eye witness in so far as she arrived on the spot within seconds of the incident having been completed. She has seen the accused who are her husband's brothers. The incident took place in broad daylight. She has also described the weapons used by them and more importantly, her evidence is absolutely unshaken in the cross-examination. Significantly enough, she has stated that she heard the deceased shouting out that his sons were beating him. This evidence coupled with the other supportive evidence including the medical evidence has been heavily relied upon by the learned Trial Judge. Mr. Deshpande did make a valiant attempt to get over this material when he submitted that there is a variation with regard to the description of the weapons which were originally stated to be clubs and he points out that sujatha has changed her version to bring her evidence in consonance with the type of injuries sustained by the deceased. Secondly, Mr. Deshpande points out that Sujatha is an interested person in so far as she is the wife of P. W. 1 and that obviously she is hostile to the two accused because of the property dispute. He also points out that the deceased was living with P. Ws. 1 and 2 and that it is quite obvious that they form one group which was not on the best of terms with the other sons. We are unable to discredit Sujatha's evidence merely because of these few very minor and insignificant infirmities because it is absolutely reliable and inspires confidence but more importantly because it is also corroborated by the rest of the evidence on record particularly the medical evidence. Consequently, we virtually see no ground on which the finding of the Trial Court that the two accused were the persons involved in the incident, can be disturbed.