Shankaraya Naik & Ors vs State Of Karnataka

Shankaraya Naik & Ors. ..............Appellants

Vs.

State of Karnataka ...............Respondent

JUDGMENT

HARJIT SINGH BEDI,J.

1. This appeal arises out of the following facts:

2. One B.K.Naik had two brothers - Rekhya Naik and

Ganga Naik PW 6. Balappa Naik, the deceased, PW3

Veeraya Naik, PW 7 Naga Naik and PW9 Shantamma are

the children of B.K.Naik and Jamballama, PW1.

Shankaramma PW24 was the wife of the deceased. The

accused are all sons of Rekhya Naik aforesaid whereas

PW.5, Moulasab is the son-in-law of PW6. All the

persons being closely related were residents of the 2

Janatha Colony falling within the jurisdiction of Yergera

Police Station, Raichur District. As per the prosecution

story, land measuring more than 5 acres belonging to

B.K.Naik had been mortgaged to Rekhya Naik, father of

the accused. The deceased Balappa Naik, who had

shifted to Bombay was able to save some money to

redeem a part of the land and was making efforts to

redeem the remaining portion of the property as well. As

the accused had enjoyed the usufruct of the property for

some time, they were not happy at this turn of events

which had led to ill will between the parties. On 25th

August 1995 at about 6.30 p.m., the deceased along with

some of the witnesses was sitting outside their houses

when all the accused armed with clubs and sickles came

there and assaulted Balappa Naik and when those sitting

there, that is, his mother, sister, brothers and uncle

intervened, they too were assaulted and caused various

injuries. Veeraya Naik PW3 lodged the first information

report at about 3 a.m. on 26th August 1995 and on its

basis, a case was registered under sections 143, 147, 3

148, 324, 323 and 504 read with Section 149 IPC. All

the injured including Ballappa Naik were sent to the

District Hospital and examined by Doctor Chandra Rao

PW8. As the condition of Balappa Naik was serious, he

was admitted to the hospital but later succumbed to the

injuries. As a result, a case under Section 302/149 IPC

was also added. The Doctor also noted specific injuries

on PW 1, 3, 5, 6, 7 and 12. All the eight accused were

arrested in due course and were charged for offences

punishable under Sections 147,148,302 read with

section 149, 326, read with 149, 324 read with 149, 323

read with 149 and 504 IPC and as they pleaded not

guilty, they were put to trial. The prosecution relied on

the evidence of the aforesaid witnesses, in addition to the

evidence relating to the recovery of weapons etc. The

accused denied the allegations leveled against them in

their statement made under Section 313 Cr.P.C. Ex.D1

was also marked on their request and taken into

evidence.

4

3. The trial court in its judgment dated 31st October 1997

held that though the assault on Balappa and the other

injured in the hands of the accused had been proved, the

prosecution had failed to establish the common object of

the unlawful assembly to cause the murder of Balappa or

causing an assault and injury on the injured witnesses

and in this view of the matter, the accused were liable to

be convicted for their individual acts. Applying this

principle, the trial court found that A1 Lachamappa

Naik, A7 Nagappa Naik and A8 Hanumantha Naik had

not committed any individual overt act pertaining to the

deceased or the injured and as such they were entitled to

the benefit of doubt and thus an acquittal. Accused No.4

Sriramulu Naik was held guilty for causing the death of

Balappa under Section 302 IPC. The court also opined

that accused No.5 Gopal Naik and accused No.6 Reddy

Naik were liable to be convicted under Sections 324 and

326 IPC in so far as the attack on Balappa was

concerned, whereas the other accused Nos. 2 to 6 were

found guilty of assault on the injured witnesses and were 5

convicted for offences punishable under Section 324 and

326 IPC. Accused No.4 Sriramulu Naik was accordingly

sentenced to undergo imprisonment for life and fine of

Rs.2000/- for the offence under Section 302 IPC with a

default sentence. Accused Nos. 2 to 6, who were found

guilty under Section 326 IPC were sentenced to undergo

R.I. for two years and a fine of Rs.1000/- each with a

default sentence and under Sections 324 IPC and were

sentenced to undergo R.I. for a period of one year and

fine of Rs.500/- each with default sentence.

4. Two appeals were thereafter filed before the High Court;

Accused Nos. 2 to 6 challenged their conviction in

Criminal Appeal No. 911/1997, whereas the State

preferred Criminal Appeal No. 45/1998 being aggrieved

by the order of acquittal of all the accused for the

offences under Section 302 read with 149 IPC as also the

outright acquittal of A1 Lachamappa Naik, A7 Nagappa

Naik and A8 Hanumantha Naik. The High Court re-

examined the evidence and observed that there were as

many as six injured witnesses, closely related to the 6

deceased, and in addition, PWs 11 and 12 who were

independent witnesses and neighbours of the deceased

who too had received injuries when they had tried to go

to the rescue of the deceased. The Court also observed

that the motive also stood proved as Balappa, the

deceased was trying to recover the remaining portion of

the land that had been mortgaged with the opposite

party, and this had led to ill will between them. The

Court noted that the accused, the prosecution witnesses

and the deceased, were all living in the same colony in

houses facing each other and the incident had taken

place in the open area between the two rows of houses.

The plea of the learned counsel for the accused

appellant, who challenged the location of the site of the

incident, was rejected on the basis of the sketch, Ex.P2

and the significant fact that the entire Janatha Colony of

10 houses had been constructed in a site of 80 feet by 12

feet which fixed the site of the incident with certainty.

The Court also opined that PW 24, the wife of the

deceased, had undoubtedly tried to wriggle out of her 7

earlier statements, but on cross-examination by the

Public Prosecutor, had again supported the prosecution

story in toto. The court also found that there was no

delay in the lodging of the FIR as by 3 a.m., all the

injured including Balappa, the deceased had reached the

Police Station and the FIR had thereupon been recorded.

The High Court then went on to examine the

participation of accused Nos 1, 7 and 8, who had been

acquitted by the Trial Court and concluded that a

lingering doubt as to their participation did exist which

did not justify any interference in the State appeal with

regard to their case. The court then examined the larger

question as to whether the remaining accused

constituted an unlawful assembly envisaged under

Section 141 of the IPC and therefore liable to be

convicted under Section 302/149 of the IPC as well. The

court observed that whether a case of common object

was made out or not was dependant on the facts of the

case and the facts of the present case clearly showed

that there was animosity between the parties and that 8

the accused had come to the place of incident armed

with lethal weapons and had caused severe injuries

leading to the death of one person and injuries to eight

others. The Court also relied upon several judgments of

this Court and concluded thus:

"Section 149 IPC covers two classes of acts. The two parts of the Section are quite distinct, though the same act may and frequently does fall under the both. The first class of acts is of the acts committed in prosecution of a common object of the assembly. The act may be that of one individual accused. But, if it is committed in furtherance of the end which all of them have in view, all the accused are liable for committing the same. The second class of acts is those acts which the accused knew to be likely to be committed in connection with carrying out of their end purpose. As we have found in the present case, the assembly of the accused, except accused 1, 7 and 8 was for the purpose of committing the offence as a retaliation for getting the land redeemed by the complainant party. They came to the scene armed with weapons like clubs and sickle and in pursuance of the same gave blows on the deceased and others. No doubt it was the act of one of the accused, viz. Accused-4, which resulted in the death of Balappa. But, because of the importation of the concept of vicarious liability as observed by the Apex Court each and every member of such unlawful assembly has to be held guilty. In our view, the trial 9

court committed an error in not appreciating this aspect. It went wrong and erroneously held that though all the accused came in group their act was individual and not as a member of an unlawful assembly. As such, we feel that the trial court was not justified in acquitting these accused, viz. Accused 2 to 6, of the offences under Section 147,148,302 with the aid of Section 149 IPC.

After giving our anxious consideration on this, in our view, Criminal Appeal No. 911 of 1997 filed by the accused is liable to be rejected. However, Criminal Appeal No. 45 of 1998 filed by the State is to be allowed against all the accused, except Accused 1, 7 and 8, are concerned. In reversal of the finding of the trial court, we hold Accused 2 to 6 guilty of the offence punishable under Sections 147, 148 and 302 IPC read with Section 149 IPC apart from Sections 323 and 324 both read with Section 149 IPC. For the offence under Section 302 IPC read with Section 149 IPC, accused 2 to 6 are sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- each and in default of payment of fine to undergo rigorous imprisonment for six months. If the fine amount is recovered, the same may be paid to the legal representatives of deceased Balappa Naik. The trial court is directed to take necessary steps to secure the presence of Accused 2, 3, 5 and 6 to undergo the sentence awarded by this Court.

In the result, Criminal Appeal No. 911 of 1997 fails and the same is dismissed. Criminal Appeal No. 45 of 10

1998 partially succeeds as noted above and it is accordingly allowed in part."

4. The present appeal at the instance of the accused has

been filed as a consequence of the order of the High Court.

5. We have heard the learned counsel for the parties and

gone through the record. Mr. Lingraja, the learned counsel for

the appellant has pointed out at the very outset that the High

Court was not justified in allowing the State appeal in the light

of the fact that the Trial Court had given good reasons for

holding that Section 149 of the IPC was not applicable. It has

also been urged by the learned counsel that the delay in the

lodging of the FIR had been utilized to create a false story as

the facts showed that the incident had happened at about

6.30 p.m. on 25th August 1995 and the FIR lodged at 3 a.m.

on 26th August 1995. The learned counsel for the State has

however pointed out that the prosecution story had been

proved by eight injured witnesses including PWs 11 and 12,

who were independent witnesses and the fact that the accused 11

had come to the place of incident duly armed with lethal

weapons and no injury had been suffered by any of them,

showed that the attack had been made after due preparation

which betrayed the common object of the unlawful assembly

to commit murder. He has also pointed out that the injured

witnesses and Balappa since deceased had reached the

hospital at about 8 p.m. and this could not be said to be

delayed inasmuch as some time would have taken for the

transport of the large number of persons who had suffered

injuries. He has also pointed out that in the light of the fact

that there were a large number of injured witnesses, some

minor discrepancies in the statements were but natural under

the circumstances.

6. We have considered the arguments advanced by the

learned counsel for the parties. It is true that the Trial Court

had observed that the common object of the unlawful

assembly was not to commit murder and had accordingly

acquitted the accused for the offence punishable under

Sections 302/149 of the IPC. We find, however, that the High

Court has dealt with the matter in extenso and we can see no 12

flaw in its reasoning of this aspect. It is clear from the record

that the accused had come to the place of incident duly armed

and had immediately proceeded with the attack on the

opposite party and had caused serious injuries to the

deceased and to as many as eight witnesses. It is also clear

from the facts preceding the attack that there was great

animosity between the parties and it must, therefore, be

inferred that when the accused had come armed with lethal

weapons, the chance that somebody might be killed was a real

possibility.

7. We are also of the opinion that there is absolutely no

delay in the lodging of the FIR in the facts of the case. The

incident had happened at 6.30 p.m. on 25th August, 1995, the

injured had reached the hospital by 8 p.m. and the FIR had

been lodged at the police station by an injured eye witness

eight hours later. Taking into account normal human conduct

and the fact that many persons had sustained injuries, one of

whom had subsequently died, a delay of eight hours can, by

no stretch of imagination, be dubbed as inordinate. 13

8. We, further, find that even assuming there was some

delay in the recording of the FIR, the fact that there were eight

injured witnesses, two completely independent, PWs.11 and

12, who have fully supported the prosecution story in all

particulars, the story stands proved. Some arguments were

raised by the learned counsel to that effect that there were

discrepancies in the statements of the witnesses not only with

regard to the time of the incident but also as to the manner of

its execution. We find that these statements have been

examined minutely by the High Court and it must also be, in

addition, borne in mind that some discrepancies are bound to

appear in the statements of witnesses recorded long after the

incident.

9. Mr. Lingraja, the learned counsel for the appellant has,

however, pointed out that one of the primary witnesses in this

case was PW24 Shankrama, the wife of the deceased Balappa

Naik, and her vacillating statement clearly showed that the

story projected by the prosecution was not the correct one.

We have considered this argument as well. We notice that in

her examination-in-chief, PW24 had resiled from her earlier 14

statement and was accordingly cross-examined by the Public

Prosecutor as a hostile witness and in this examination she

did a volte face and once again supported the prosecution

story in all material particulars. Even assuming however, that

she was an unreliable witness, there are many other injured

witnesses whose presence cannot be doubted. Any suspicion

with regard to the veracity of the evidence given by PW24 thus

becomes meaningless.

10. We thus find no merit in the appeal. It is accordingly

dismissed.

...............................J. (S.B.SINHA)

.................................J. (HARJIT SINGH BEDI) New Delhi, Dated: September 22, 2008