Channakeshava vs The State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred as ''accused'') was tried and convicted for an offence punishable u/s 307 IPC. Therefore, he is before this court. I have heard Sri H.C. Hanumaiah, learned counsel for accused and Sri B. Visweswaraiah, learned HCGP for State.

The accused was tried for an offence punishable u/s 307 IPC on the allegations that on 25.09.2006 at about 10 p.m., in land bearing survey No. 128/2 of Haralekere village, Koppa Hobli, Maddur Taluk, accused assaulted PW2-Nagaraju with a spade with such intention and knowledge by such act, if he had caused death of PW2, he would have been held guilty of an offence punishable u/s 302 IPC. The accused had assaulted PW2 as he did not concede to the demand of accused that he should be given preference in the matter of feeding water to their lands.

The case of prosecution rests upon eye-witness account of PW2-Nagaraju (injured), PW1-H.N. Puttaswamy, PW3-Shivaramegowda and PW4-Shivalingaiah. The accused and PW2 are from the same village. They are adjacent land owners. On 25.09.2006 at about 10 p.m., PW2-Nagaraju was feeding water to his land. The accused came there and asserted that he should be given priority to feed water to his land and thereafter, PW2 has to take his chance. It appears there was a quarrel between accused and PW2. The accused assaulted PW2 with a spade and caused a grievous injury to him (fracture of right radius). The injured (PW2) has given eye-witness account of incident and the reasons for assault.

During cross-examination, PW2-Nagaraju has reiterated the version given in examination-in-chief. During cross-examination of PW2, his relationship with other witnesses is elicited, which in my considered opinion has no bearing on the evidence given by PW2 in examination-in-chief. PW2 was again recalled for cross-examination on 18.12.2008.

During cross-examination of PW2 on 18.12.2008, it has been elicited from PW2 that there was pre-existing enmity between accused and PW2.

PW1-H.N. Puttaswamy is the cousin of PW2. PW1 has deposed; on 25.09.2006, PW1 & PW2 had gone to their lands to feed water to paddy crops; accused came there and demanded PW2 to allow the accused to feed water to his land at the first instance and thereafter take his chance; PW2 did not accede to the demand of accused; the accused became wild and assaulted on head and right fore arm of PW2 with a spade; PW1 and other witnesses shifted PW2 to General Hospital at Maddur and later to a major hospital at Bangalore.

During cross-examination, PW1 has deposed; lands of accused, PW2 & PW1 are adjacent to each other. PW1 has deposed that PW1 & PW2 had gone to their lands even before accused reached the place of incident.

PW1 had lodged first information at 9.30 a.m. on 26.09.2006. The contents of first information would lend substantial corroboration to evidence of PW1. From the evidence of PW1, we do not find that PW1 had any ill-will or enmity against accused to falsely implicate him.

PW3-Shivaramegowda and PW4-Shivalingaiah had also witnessed the incident of assault. They have consistently deposed that accused assaulted on head and right fore arm of PW2 with a spade and ran away from that place.

The presence of PW3 & PW4 near the place of incident has not been disputed. The evidence of these witnesses indicates that they were neither interested in PW2 nor inimical to accused. There are no reasons to suspect the evidence of PW3 & PW4.

The medical evidence given by PW9-Dr. K.V. Prakash would lend substantial corroboration to evidence of PW2 and eye witnesses.

At the relevant time, PW9-Dr. K.V. Prakash was working as Senior Specialist in General Hospital at Maddur. PW9 has deposed; during intervening night of 25/26.09.2006 at about 12.35 a.m., he examined PW2-Nagaraju, brought by his brother by name Devaraju with history of assault by a ''Guddali''; on examination, he found following injuries:-

I. A lacerated wound measuring 5 cms x 2 cms x 1/2 cm on right front of parietal region.

II. A lacerated wound measuring 10 cms x 5 cms x 4 cms on right leg on anterior aspect at middle.

III. Bleeding from right ear--perforation over right tympanic membrane (I noticed bleeding in right ear. In the OP slip pertaining to KIMS hospital, Bangalore, there was a mention that the timpanic membrane had perforation and accordingly, in the wound certificate, I have shown the same).

PW9 has deposed that PW2 had suffered fracture of right radius and he was treated for reduction of fracture in KIMS Hospital at Bangalore.

During cross-examination, it has been suggested to PW2 that spade is a cutting weapon, if a person is assaulted with a spade, he would suffer incise wounds.

It is needless to state that a spade is an agricultural implement. The position of the blade and its handle do not permit the use of sharp edge of weapon for assaulting a person. Therefore, this suggestion has no basis. Thus, we find that evidence of injured witness (PW2) is consistent and credible. PW2 being the injured witness would be least disposed to implicate the accused and spare the real assailant. PW1, PW3 & PW4, who were present near the place of incident have given consistent and credible evidence regarding assault on PW2 by accused. The evidence of injured (PW2) finds substantial corroboration from medical evidence of PW9. Therefore, the prosecution has proved that on 25.09.2006 at 10 p.m., accused assaulted on head and right fore arm of PW2 with a spade and caused fracture of right radius.

The next point for determination is:-

Whether the learned trial Judge was justified in holding the accused guilty of an offence punishable u/s 307 IPC?

It is established from evidence on record that accused and PW2 are adjacent land owners. At the time of incident, they had gone near their lands to feed water to their crops. Both of them were carrying spades to feed water to their lands. It appears in the matter of priority regarding feeding water to their lands, there was a quarrel between accused and PW2. The accused became wild and assaulted on head and right fore arm of PW2 with a spade. The incident of assault was not pre-meditated. The incident was a result of sudden quarrel. In the circumstances, it is not possible to hold that by such acts, if accused had caused death of PW2, he would have been held guilty of an offence punishable u/s 302 IPC.

The learned counsel for accused, relying on judgment of Delhi High Court, reported in Ashok Kumar Vs. State, would submit that doctor who had given opinion about fracture was not examined and even x-rays were not produced before trial court. The opinion of Radiologist was not made available to trial court. Therefore, it is not possible to hold that accused has caused a grievous injury to PW2. The accused cannot be held guilty of an offence punishable u/s 326 IPC.

The evidence of PW2 that he had suffered fracture of right radius has not been controverted. The evidence of PW9-Dr. K.V. Prakash that PW2 had suffered fracture of right radius has not been controverted. PW9 has deposed; when police came to collect wound certificate, they brought a report from KIMS at Bangalore, which disclosed fracture of right radius. However, there was delay in sending the report of KIMS Hospital to PW9. The Investigating Officer was lax in collecting the medical records. Therefore, it cannot be held that PW2 had not suffered grievous injury.

In the decision cited supra, there was serious controversy regarding nature of injuries suffered by the injured.

In the case on hand, PW2 had suffered fracture of right radius, the same has not been controverted by the accused. Therefore, what has been held in the aforestated decision is not applicable to the facts of the instant case.

The learned counsel for accused submits that accused is an agriculturist by occupation. He does not bear criminal antecedents. Therefore, a lenient view may be taken in the matter of sentence.

The learned HCGP would oppose the same.

It is true that accused does not bear criminal antecedents. It is equally true that incident of assault had taken place in a sudden quarrel and it was not premeditated. The accused had used a spade (an agricultural implement) as the weapon of offence. At the same time, it is relevant to notice that accused had assaulted PW2 without any rhyme or reason. The evidence on record does not reveal that PW2 was an aggressor. The accused had assaulted on head and right fore arm of PW2 with a spade, causing fracture of right radius. Therefore, having regarding to aggravating and mitigating circumstances, I deem it proper to sentence accused to undergo simple imprisonment for a period of two years and six months and pay fine of Rs. 25,000/-, in default to undergo simple imprisonment for six months for an offence punishable u/s 326 IPC.

In the result, I pass the following:-

ORDER

The appeal is accepted in part. The impugned judgment is modified. The accused is acquitted of an offence punishable u/s 307 IPC. The accused is convicted for an offence punishable u/s 326 IPC and the accused is sentenced to undergo simple imprisonment for a period of two years and six months and pay fine of Rs. 25,000/-, in default to undergo simple imprisonment for six months. Out of the fine amount, a sum of Rs. 15,000/- shall be paid as compensation to PW2-Nagaraju. The rest of the impugned judgment is confirmed. The period of detention undergone by accused during trial is given set off u/s 428 Cr.P.C.