Ningaraju vs State

N. Ananda, J.—The appellant in Criminal Appeal No. 795/2009 (hereinafter referred as ''accused No. 2'') and appellants in Criminal Appeal No. 233/2010 (hereinafter referred as ''accused 1 & 3'') were tried in S.C. No. 26/2008. Accused No. 2 was tried for an offence punishable u/s 114 IPC and accused 1 & 3 were tried for an offence punishable u/s 307 r/w 34 IPC and accused 1 to 3 were tried for an offence punishable u/s 341 r/w 34 IPC. The learned trial Judge acquitted accused 1 & 3 of an offence punishable u/s 307 r/w 34 IPC and convicted accused 1 & 3 for offences punishable under sections 341 & 324 r/w 34 IPC and convicted accused No. 2 for an offence punishable u/s 114 IPC. Therefore, they are before this court.

I have heard Sri A. Ravishankar, learned counsel for accused No. 2, Sri H.J. Ananda, learned counsel for accused 1 & 3 and Sri B. Visweswaraiah, learned HCGP for State.

Accused 1 to 3 were tried for aforestated offences on the allegations that on 10.06.2007 at 7 p.m., in Chiganahalli Village, within the limits of Sakaleshapura Rural Police Station, accused 1 to 3 shared a common intention and wrongfully restrained PW6-Nanjaiah. In the same course of transaction, accused No. 2 instigated accused 1 & 3 to commit assault on PW6 and in furtherance of such instigation, accused No. 1 assaulted on back side of neck of PW6 with a chopper and accused No. 3 assaulted on back of PW6 with a stone with such intention and knowledge by such acts, if they had caused death of PW6, they would have been held guilty of an offence punishable u/s 302 IPC, thereby committed an offence punishable u/s 307 r/w 34 IPC.

The prosecution has relied on the evidence of injured witness namely PW6-Nanjaiah, evidence of eye-witnesses namely PW5-Yashoda (wife of PW6), PW7-Sunil (son of PW6) and evidence of independent witness namely PW8-Umesh V.H. @ Umeshgowda and also medical evidence of PW2-Dr. B.H. Ganesh.

PW6 has deposed; accused 1 to 3 had borrowed a sum of Rs. 500/- from him and he had demanded money from them; on the date of incident, PW6, his wife (PW5) and his son (PW7) were returning from work to their house; when they were proceeding in village near the house of one Ningaraj, accused 1 to 3 confronted them; accused No. 2 gave a chopper to accused No. 1 and asked him to finish PW6; accused No. 1 assaulted on hind portion of neck of PW6 with a chopper and caused injuries to him; accused No. 3 assaulted on back of PW6 with a stone; PW5 (the wife of PW6) and PW7 (the son of PW6) shifted PW6 to Crafford Hospital at Sakaleshpur; thereafter, PW6 was shifted to District Hospital at Hassan, wherein he was treated for a period of 8 days.

During cross-examination, PW6 has reiterated the version of incident. PW6 has deposed that he had reached Crafford Hospital in Sakaleshpura at 12 a.m., (midnight). PW6 has admitted that after the incident, he was arrayed as accused in the murder case of the father of accused No. 3-Manjunatha and he was in judicial custody.

There is some discrepancy in the evidence of PW6 regarding the amount lent to accused 1 to 3, but the fact remains there was pre-existing enmity between accused 1 to 3 and PW6. The evidence of PW6 that accused No. 1 assaulted him with a chopper on his hind side of head finds substantial corroboration from medical evidence of PW2-Dr. B.H. Ganesh and also from the contents of wound certificate marked as Ex. P.2.

The wife and son of PW6 namely PW5-Yashoda and PW7-Sunil have given eye-witness account of the incident. PW5 & PW7 have deposed that accused No. 1 assaulted on bid portion of head of PW6 with a chopper.

PW7-Sunil (son of PW5 & PW6) was aged about 12 years when he was examined before trial court. Therefore, evidence of PW7 that accused No. 1 assaulted on hind portion of head of PW6 with a chopper cannot be suspected.

PW8-Umesh V.H. @ Umeshgowda is an independent witness. PW8 has supported the case of prosecution. PW8 has deposed; accused No. 1 assaulted on hind portion of head of PW6 with a chopper. There are no reasons to suspect the evidence of PW6.

The injured (PW6) and aforestated witnesses have deposed that accused No. 3 assaulted on back of PW6 with a stone.

PW2-Dr. B.H. Ganesh has categorically admitted that apart from injury on hind portion of head i.e., nape of neck, PW6 had not suffered any other injuries. The wound certificates marked as Ex. P.2 & Ex. P.7 do not reveal that PW6 had suffered injury on his back. Therefore, evidence of injured and other prosecution witnesses that accused No. 3 had assaulted on back of PW6 with a stone is not free from reasonable doubt.

Accused No. 2 is alleged to have instigated accused No. 1 to assault PW6 with a chopper. In view of pre-existing enmity between accused 1 to 3 and PW6, it is necessary to carefully scrutinise abetment attributed to accused No. 2.

PW6-Nanjaiah has deposed that accused No. 2 gave a chopper to accused No. 1 and asked accused No. 1 to finish him; accused No. 1 with chopper which he had received from accused No. 2 assaulted on hind portion of head of PW6.

PW5-Yashoda (the wife of PW6) has deposed; at the time of incident, accused No. 2 scolded PW6 and directed accused 1 & 3 to finish him; thereafter, accused No. 1 assaulted on hind portion of head of PW6 with a chopper; PW5 has not deposed that accused No. 2 handed over a chopper to accused No. 1 and asked him to finish PW6.

PW7-Sunil (the son of PW6) has deposed; his father (PW6) demanded money from accused; therefore, accused No. 2 was annoyed and he told accused 1 & 3 to finish PW6.

The version given by PW7 and motive attributed to accused No. 2 is not free from reasonable doubt.

PW8-Umesh V.H. @ Umeshgowda has deposed; accused No. 1 assaulted on hind portion of head of PW6 with a chopper; thereafter, accused No. 2 instigated accused 1 & 3 to assault PW6.

The evidence of PW8 that after accused No. 1 assaulted PW6 with a chopper, accused No. 2 instigated accused 1 & 3 to assault PW6 looks improbable. Therefore, evidence of PW5 to PW8 that accused No. 2 had instigated or abetted accused 1 & 3 to assault PW6 with a chopper is not free from reasonable doubt.

The learned trial Judge without noticing these material discrepancies in the evidence of PW5 to PW8 has erroneously held accused No. 2 guilty of an offence punishable u/s 114 IPC. The evidence of PW5 to PW8 does not reveal that accused 1 to 3 had wrongfully restrained PW6. It is natural, whenever criminal force is involved, there will be an element of restraint, which cannot be termed as "wrongful restraint" u/s 341 IPC. Therefore, the impugned judgment as it relates to conviction of accused No. 2 for an offence punishable u/s 114 IPC and conviction of accused 1 to 3 for an offence punishable u/s 341 IPC cannot be sustained.

In the result, I pass the following:-

ORDER

Criminal Appeal No. 795/2009 is accepted. Criminal Appeal No. 233/2010 is accepted in part. The impugned judgment is modified. Accused 1 & 3 are acquitted of offences punishable under sections 341 and 324 IPC. Accused No. 2 is acquitted of an offence punishable u/s 114 IPC. Accused No. 1 is convicted for an offence punishable u/s 324 IPC. The sentence imposed on accused No. 1 by trial court for an offence punishable u/s 324 IPC is reduced from one and half years to one year and accused No. 1 is sentenced to pay fine of Rs. 30,000/-, in default to undergo simple imprisonment for a period of three months. Out of the fine amount to be deposited by accused No. 1, a sum of Rs. 25,000/(Rupees Twenty Five Thousand only) shall be paid to PW6-Nanjaiah.