GOLAPPA AVANA NAIK AND OTHERS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the judgment dated 31st of August 1967 by which Shri Jose Justinho Coelho, the Additional Sessions Judge at Margao, convicted all the five accused hauled up before him. He found the accused Gollappa guilty under Sections 148 and 304, Part II, of the Indian Penal Code and sentenced him to seven years' rigorous imprisonment. The remaining four accused were held guilty under Section 147 I. P.C. and Section 325 read with Section 34 of the same Code. The accused Dyamappa and Pundalikappa were sentenced to one years's rigorous imprisonment and a fine of Rs. 300/- each, or, in default, two months' rigorous imprisonment, while the other two accused, Irappa and Shivappa, were awarded six months' rigorous imprisonment and a fine of Rs. 150/-each, or, in default, one month's rigorous imprisonment. In this joint appeal by all the five accused the correctness of the convictions and the sentences is challenged.

(2.) The first information report was lodged with the Harbour police station at Marmagoa by Anvari Narcinva Murti on the morning of 27-10-1966. It was mentioned in this document (Exh. 18) that Murti had been told by Ningappa (PW 3) that at about 12 O'clock on the preceding night a quarrel took place between his uncle Badiger (whose proper name was Ramchondra) and Golappa (accused no. 1 of the case) when the latter gave a blow with a stick to the former and the victim dropped, unconscious on the ground, that first aid was administered to the injured though without result, and that it was necessary that the victim should be removed to some hospital. It was also stated in the document that Murti engaged a taxi and went to the hut of the injured at the jetty in the company of one Lingappa, that he (Murti) found that the injured was not in a position to speak, and that he consequently placed him in the taxi and took him to the Government hospital at Vasco. It was further stated that the injured was in grave condition, that there were signs of bleeding from his right ear, and that there was swelling on the head behind the ear. A case was registered on the basis of this report made by Murti. The doctor who examined Ramchondra at Vasco hospital adviced his removal to the bigger hospital at Margao as he believed that the condition of Ramchondra was grave. Consequently Ramchondra was removed to the hospital at Margao where he succumbed to the injuries sometime in the evening. The post mortem examination was done at Margao on 28-10-1966 and a copy of the report made is marked Exh. 26-A. Four external injuries were found on the person of the deceased. They are as under:

(3.) The prosecution story culminating in the death of Ramchondra lies within a short compass. The five accused, the deceased Ramchondra and the ocular witnesses examined at the trial are all labourers and they were putting up in the huts built on the jetty at Marmagoa. At about 10 p.m. on 26-10-1966 the five accused reached their residential huts from the bazaar after making some purchases. P. W. 2 Dondappa was sitting in his hut which was adjacent to the hut in which Ramchondra deceased was putting up. The accused Irappa enquired from his four companions if Dondappa was at his house. Having ascertained that Dondappa was at his house, all the five accused rushed for that place, Gollappa alone out of them being armed with a batten. Dondappa felt eerie and so took to heels in the direction of the sea-shore. Just then the accused Irappa and Shivappa told the other three accused not to allow Ramchondra to slip way. Ramchondra on hearing those words felt apprehensive and so got up. When he noticed that the accused were proceeding towards him, he fled from the place. However, he was secured by the accused Dyamappa and Pundalikappa. The accused Gollappa then gave him a blow with the batten on the back of his head. On getting the blow, he fell on the ground. The accused believed that Ramchondra had died and so they left the place. PWs. Ningappa and Sharnappa made for the place where Ramchondra lay prostrate and poured some water in his mouth, which he, however, could not swallow. They noticed some blood coming out of his nose and mouth and found him in an unconscious state. They shifted him to a place in front of his own hut where he remained throughout the night. It was early on the next morning that Ningappa reported the occurrence to Murti aforementioned. This Murti engaged a taxi and therein carried the injured to the hospital at Vasco. The doctor in charge of the hospital directed Murti to report the matter at the police station and Murti went to the Harbour Police Station and lodged the F.I.R. What happened thereafter has already been set out above.