NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 512/2001

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

Vs.

State of Karnataka ……………Respondent

J U D G M E N T

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

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,

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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.   

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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