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Judgment
N. Ananda, J.—The appellants (hereinafter referred to as ''accused 1 to 4'') were tried for offences punishable under sections 447 & 307 r/w 34 IPC and they were convicted for offences punishable under sections 447 & 326 r/w 34 IPC. Therefore, they are before this court. I have heard Sri Dinesh, learned counsel for accused and Sri B. Visweswaraiah, learned HCGP for State.
Accused 1 to 4 were tried for following charges:-
That on 12th day of March 2006 at 2.00 p.m., in the land bearing Sy. No. 20/1 of Basapur belonging to complainant Prakash Rao you trespassed into the said land in furtherance of your common intention to do away with the life of Prakash Rao and you thereby committed an offence punishable U/S. 447 r/w sec. 34 IPC and within my cognizance.
That you on the above said day, time and place, in furtherance of your above common intention, you A2 to A4 caught hold of complainant Prakash Rao, whereas you A1 Gopi S/o Hayath snatched pickaxe held by complainant and assaulted complainant on his right calf and left forehead with pickaxe with such an intention, under such circumstances that if by that act, you had caused the death of Prakash Rao you would have been guilty of the offence of murder and you thereby committed an offence punishable U/S. 307 IPC r/w S. 34 IPC, and within my cognizance.
That on 12th day of March 2006 at 2.00 p.m., in the land bearing Sy. No. 20/1 of Basapur belonging to complainant Prakash Rao you trespassed over the said land to do away with the life of Prakash Rao and you thereby committed an offence punishable U/S. 447 IPC and within my cognizance.
That on the above said day, time and place, you A2 to A4 caught hold of complainant Prakash Rao, whereas you A1 Gopi S/o Hayath snatched pickaxe held by complainant and assaulted complainant on his right calf and left forehead with pickaxe with such an intention, under such circumstances that if by that act, you had caused the death of Prakash Rao you would have been guilty of the offence of murder and you thereby committed an offence punishable U/S. 307 IPC, and within my cognizance.
It is seen from records that accused No. 1-Gopi s/o. Hayat is the son of accused No. 4-Lakshmamma. Accused No. 2-Gopi S/o. Mallanna and accused No. 3-Naga @ Nagaraj are friends of accused No. 1. PW 2-Prakash Rao is the elder brother of PW 4-Rajesha. PW 3-Suresha was working as an agricultural labourer with PW 2.
It is not in dispute that there was a civil dispute between accused No. 1 and PW 2. PW 2 had purchased certain extent of land from one Sadashivappa. Accused No. 1 was the owner of adjoining land and he had encroached certain extent of land. At the instance of PW 2, survey was conducted. It was found that accused No. 1 had encroached 17 guntas of land, which was purchased by PW 2. Accused No. 1 delivered the possession of encroached land to PW 2. Therefore, accused No. 1 had grudge against PW 2.
PW 2-Prakash Rao has deposed; on the date of incident viz 12.03.2006 at about 2 p.m. when PW 2 to PW 4 were working in land of PW 2, accused 1 to 4 came there; accused No. 1 picked up a quarrel with PW 2; accused No. 1 snatched a spade from PW 2; accused 2 to 4 caught hold of PW 2; accused No. 1 assaulted on head and below right knee of PW 2 with a spade; PW 2 suffered a fracture and injuries to head; PW 2 fell down, he was shifted and he was treated by PW 1-Dr. S. Ramesh in Government District Mc. Gann Hospital at Shimoga. On the same day, at about 8.30 p.m., jurisdictional police visited hospital and recorded statement of PW 2, on the basis of which crime was registered against accused 1 to 4 for aforestated offences.
PW 3-Suresha and PW 4-Rajesha have deposed about incident of assault. PW 3 & PW 4 were also working on western portion of same land. They had reached place of incident after hearing hue and cry of PW 2. Their presence near place of incident cannot be suspected. PW 3 & PW 4 had shifted PW 2 to hospital. The first information given by PW 2 would reveal that he was assaulted by accused No. 1 with a spade.
The evidence of PW 1-Dr. S. Ramesh would reveal that on 12.03.2006 (date of incident) at about 3 p.m., he examined PW 2-Prakash Rao and found following injuries:-
a) A lacerated wound measuring 3 cms x � cm present on left side of forehead skin deep;
b) A contusion wound measuring 6 cms x 4 cms present on middle 1/3rd of right leg.
X-ray taken. X-ray revealed fracture of middle 1/3rd of right tibia.
From evidence of PW 1 it is proved that PW 2 had suffered injuries due to assault with a spade and he had suffered grievous injuries. Therefore, evidence of injured (PW 2) finds substantial corroboration from medical evidence given by PW 1.
The contents of first information and immediate post-occurrence evidence given by PW 3 & PW 4 would lend corroboration to evidence of PW 2. As already stated, there was pre-existing enmity between accused No. 1 and PW 2. In the circumstances, there are no reasons to suspect evidence of PW 2.
It is the case of prosecution that accused 2 to 4 were holding PW 2 when accused No. 1 assaulted PW 2 with a spade.
From evidence of PW 2 and nature of injuries suffered by him, we find accused No. 1 had assaulted on head and right lower limb of PW 2 with a spade. In the circumstances, it looks improbable that accused 2 to 4 were surrounding and they were holding PW 2. If accused 2 to 4 were holding PW 2 when he was assaulted by accused No. 1 with a spade, blows dealt by accused No. 1 with a spade would have landed on accused 2 to 4. It is difficult to conceive that accused 2 to 4 were holding PW 2 and he had remained static to receive blows dealt by accused No. 1 with reverse end of handle of spade. Added to this, during cross-examination, PW 3 has admitted that he does not know who assaulted PW 2 and who had caught hold of PW 2.
At this juncture, it is relevant to state that PW 3 was not declared as a hostile witness. Therefore, evidence of PW 3 that he does not know who assaulted PW 2 and who caught hold of PW 2 has remained uncontroverted.
Similarly, PW 2 has deposed that he cannot specify which part of his body was held by each of accused 2 to 4. Above all, accused 2 & 3 were not connected with dispute between accused No. 1 and PW 2. Accused No. 4 is the mother of accused No. 1. Accused No. 4 was aged about 45 years at the time of incident. Therefore, evidence of PW 2 that accused No. 4 had also caught hold of him looks improbable.
As already stated, there was enmity between PW 2 and accused No. 1. It looks probable that PW 2 by taking advantage of injuries suffered by him due to assault by accused No. 1 had also implicated accused 2 to 4. As already stated, accused 2 & 3 were friends of accused No. 1. Accused No. 4 is the mother of accused No. 1. The evidence on record does not disclose that accused 1 to 4 had shared common intention.
As could be seen from evidence of PW 2, incident of assault was not pre-meditated. Accused No. 1 had snatched a spade from hands of PW 2 and assaulted PW 2 on his head and right lower limb. Accused 1 to 4 had not reached place of incident by carrying weapons. It appears there was a brief quarrel between PW 2 and accused No. 1 before incident of assault. Accused No. 1 had snatched a spade from hands of PW 2 and assaulted on head and right lower limb of PW 2. Accused 2 to 4 who were working in land of accused No. 1 had gone to place of incident. PW 2 had falsely implicated accused 2 to 4. The learned trial Judge without noticing background of offence and pre-existing enmity between parties has erroneously held accused 2 to 4 guilty of an offence punishable u/s 326 r/w 34 IPC.
PW 2 has deposed that incident of assault took place in his land and accused 2 to 4 had trespassed into his land. Even if accused 2 to 4 had gone to place of incident (land of PW 2), it is not possible to hold that they had trespassed into land of PW 2 to commit an offence. Therefore, conviction of accused Nos. 2 to 4 for an offence punishable u/s 447 r/w 34 IPC cannot be sustained. In the result, I pass the following:-
ORDER
The appeal is accepted in part. The impugned judgment is modified. The conviction of accused No. 1 for offences punishable under sections 447 & 326 IPC and sentence imposed thereon are confirmed. Accused Nos. 2 to 4 are acquitted of offences punishable under sections 447 & 326 r/w 34 IPC. The bail bonds executed by accused 2 to 4 stand cancelled. If accused 2 to 4 have deposited fine amount in terms of the impugned judgment, the same shall be refunded to them. The period of detention if any undergone by accused No. 1 during trial is given set off as provided u/s 428 Cr.P.C.