Nagappa Fakirappa Goundar Vs. State of Karnataka [1994] INSC 37 (18 January 1994)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 AIR 953 1994 SCC Supl. (1) 716 JT 1994 (1) 99 1994 SCALE (1)102

ACT:

HEAD NOTE:

The Judgment of the court was delivered by JAYACHANDRA REDDY, J.- Original accused 1 to 6 are the appellants. They were tried for offences punishable under Sections 148 and 302/149 IPC and were convicted and sentenced to two years' RI and life imprisonment respectively. The appeal preferred by them was dismissed by the High Court. Hence the present appeal.

2.The appellants, the deceased one Basavannappa son of Channabasappa and the material witnesses belong to Village Aralikatti, District Dharwad. PW 7 Shivanandappa is the younger brother of the deceased. Their another younger brother used to look after the kirana shop situated in the village. The family had also agricultural lands and a garden. There were ill-feelings between the accused persons and the deceased in view of the earlier instances. A day prior to the present occurrence there was also an altercation between the deceased and A-6 in the house of PW 8 who was a Sub-Postmaster in the said village. The younger brother of the deceased used to wake up early, go to the garden land, take bath and then attend to the business in the shop. Channabasappa and the deceased used to look after the agricultural establishments and they had a jeep also.

On July 28, 1979 just prior to 8 a.m. the deceased proceeded towards the garden land to see whether the pump was working properly. PW 1, Kariappa, a resident of the village at that time had gone to a tea shop. The deceased asked PW 1 to accompany him to the garden land. On the way they met Channabasappa and PW 7. However, PW 1 and the deceased proceeded to the garden land and there they eased themselves. After the supervision of the land, PW 1 and the deceased proceeded towards the village. When they were near a milky bush, A-1, A-3, A-4 and A-5 emerged from behind the bush and A-2 and +From the Judgment and Order dated June 8, 1981 of the Karnataka High Court in Crl. A. No. 209 of 1980 717 A-6 came from another direction. A-1, A-3 and A-5 had clubs, A-2 had an axe, A-4 had a sickle and A-6 had a chopper. All of them surrounded the deceased and assaulted him. PW 1 tried to intervene but he was threatened. PW 1 ran up to the house of the deceased and informed Channabasappa and also PW 7 who was there. At that time PWs 6 and 10 had gone to the house of PW 7 for some financial aid to spend for Nagapanchami festival the next day.

Hearing the cries of PW 1, PWs 6, 7 and 10 and others went to the spot which was not far away from the village and when they reached the spot, they saw that all the accused had surrounded the deceased who had fallen down and A-2 dealt a blow with an axe on the neck of the deceased. On seeing the witnesses the accused ran away. PW 7 brought his jeep and he along with PWs 1, 6 and 10 and others took the injured in the jeep and proceeded towards the Primary Health Unit. On the way they had to pass in front of the Police Station Haunsbhavi. There they found PW 14 Narayan Devi singh, PSI standing. PW 14 stopped the jeep and saw the injured person who was unconscious. He also accompanied them in the jeep to PW 2 Dr Sham, Assistant Medical Officer who after examination opined that the condition of the injured was serious and that at that time he could give only some life- saving medicines and he advised them to take the injured to the Cottage Hospital at Haveri. PW 2 also accompanied them in the jeep. On the way they also consulted another Doctor at Byadagi who examined the deceased and pronounced him to be dead. The body was kept in the mortuary. PW 14 sent a wireless message to the police station and a case was registered and the FIR was issued. Inquest was held and the dead body was sent for postmortem. PW 3, the Medical Officer, who conducted the post-mortem, found a number of incised and lacerated injuries. On internal examination he found that right occipital, parietal and temporal bones were fractured and occipital, parietal and temporal lobes of the brain were lacerated. Thorax was also injured and he opined that the death was due to shock and hemorrhage as a result of tile multiple injuries. The accused were arrested and after completion of tile investigation, the charge-sheet was laid. The prosecution relied on the evidence of the eyewitnesses PWs 1, 6, 7 and 10. The accused denied the offence and pleaded not guilty and stated that they were falsely implicated due to enmity.

3.Learned counsel for the appellants submitted that there was delay in giving the report and that father of the deceased was an influential person and after due consultations the earliest report was brought into existence implicating these accused. His next submission is that other material witnesses like father and younger son of the deceased, the driver and the mechanic have not been examined. It is also his submission that a specific overt act is attributed only to A-2 and in respect of others the allegation is omnibus. It is also his further submission that PW 1 who is one of the principal witnesses was cross- examined by the prosecution and since he being the author of Ex. P-1 and when his evidence becomes untrustworthy, the evidence of other witnesses cannot be relied upon. Yet another submission is that PW 14, the Sub-Inspector conducted himself as though he was a member of the family of the deceased and the investigation carried on by such an officer cannot be given any weight.

4. Both the courts below have relied on the evidence of PWs 6, 7 and 10 as well as on the evidence of PW 1. PW 1 was not in fact treated hostile but since he prevaricated in respect of certain particulars, the public prosecutor sought 718 permission to put some leading questions. We have carefully gone through the evidence of PW 1 but in all material particulars he has confirmed the version given by him in Ex. P-1 regarding the place and time of occurrence and also the number of persons who assaulted the deceased. Only in mentioning the names of the accused he omitted to mention the names of A-1, A-3 and A-5. He, however, affirmed that six persons surrounded and assaulted the deceased. No doubt, in the cross-examination by the accused he stated that he gave the names of the accused as mentioned by the deceased but again at a later stage he deposed that six persons who assaulted the deceased are A-1 to A-6 and that he had mentioned the names of these six accused in the complaint as he had actually seen all of them assaulting the deceased. Further, apart from the evidence of PW 1, there is evidence of PWs 6, 7 and 10. All these three eyewitnesses have consistently deposed that the six accused surrounded the deceased and inflicted the injuries on him.

They also described the respective weapons in their hands.

5.So far as the delay aspect in giving the FIR is concerned, it must be remembered that the anxiety of every one at that stage was to save the life of the deceased.

That was why they put the injured in a jeep and rushed to the hospitals. If on the way PW 14, the Sub-Inspector also followed them, there is nothing unusual. After the death of the deceased the report was given and we do not think that there is any undue delay. Both the courts below have accepted the evidence of these eyewitnesses after duly considering the same.

6.It is true that these witnesses have stated that all the six persons surrounded the deceased and inflicted the injuries. Merely because they could not describe the part played by each of the accused in detail, that does not in any manner affect the prosecution version in a case of this nature. The doctors have found a number of injuries on the deceased and the witnesses at any rate have clearly described the respective weapons in the hands of each of the accused. The evidence of the eyewitnesses is overwhelming and both the courts below have rightly accepted their evidence. We do not find any infirmity in the judgments of the courts below. Accordingly the appeal is dismissed.

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