Shanmukha vs State

N. Ananda, J.—The appellant (accused) was tried for offences punishable under Sections 326, 341, 307 and 506-II IPC. The learned Sessions Judge acquitted accused for offences punishable under Sections 307 and 506-II IPC and convicted the accused for offences punishable under Sections 326 and 341 IPC. Therefore, the accused is before this Court. It is the case of prosecution that on 05.08.2005 at about 7.30 a.m., near the coffee estate of one Thammegowda in Lakkunda village, Yeslur hobli, Sakaleshpura taluk, when PW-2 Manjunatha was proceeding towards his land, the accused wrongfully restrained him stating that he has no right to proceed on that pathway. When PW-2 had asserted that he has right to proceed on the pathway, accused assaulted PW-2 with a chopper and caused multiple injuries with such knowledge and intention, if he had caused the death of PW-2, he would have been held guilty of an offence punishable u/s 302 IPC.

I have heard Sri. R.B. Deshpande, learned counsel for the accused and learned SPP for the respondent-State.

Sri. R.B. Deshpande, learned counsel for the accused submits that the sister of PW-2 namely Kavitha had been examined to prove that she was an eyewitness but her name is not found in the first information. He submits that there was pre-existing enmity between the accused and PW-2. The evidence of PW 5 Dharmegowda is not free from reasonable doubts. In the circumstances, the learned Sessions Judge should not have convicted the accused on the basis of solitary evidence of PW-2 Manjunatha. The learned counsel would further submit that the learned Sessions Judge should not have held the accused guilty for an offence punishable u/s 326 IPC.

The learned SPP would submit that the State has not challenged acquittal of accused for offences punishable under Sections 307 and 506-II IPC. Therefore, the following points would arise for determination:--

(i) Whether the prosecution has proved that on 05.08.2005 at about 7.30 a.m., near the coffee estate of one Thammegowda in Lakkunda village, Yeslur hobli, the accused wrongfully restrained PW-2 Manjunatha and in the same course of transaction, accused assaulted PW-2 with a chopper and caused grievous injuries to him and thereby, committed offences punishable under Sections 341 and 326 IPC?

(ii) Whether the learned Sessions Judge has properly appreciated the evidence on record?

(iii) Whether the impugned judgment calls for interference?

(iv) To what order?

My findings on the above points and the reasons thereof, are as follows:--

(i) The evidence of the injured witness PW-2 Manjunatha would clearly reveal that on the date of incident, at about 7.30 a.m., when he was proceeding on the pathway, accused wrongfully restrained him and assaulted him repeatedly with a chopper. PW-2 had suffered injuries on his head, back and also on his nose. He was shifted and treated in S.C. Hospital, Hassan.

(ii) The medical evidence given by PW-1 Dr. Shyamala Devi and contents of wound certificate marked as Ex. P1 would reveal that PW-2 Manjunatha, had suffered following injuries:--

(i) Incised wound over the left intra scapular region measuring 10 cm x 2 cm;

(ii) Incised wound over the right shoulder at the tip of lateral end of clavicle measuring 5 cm x 12 cm;

(iii) Incised wound over the left frontal region extending to occipital region measuring 30 cm x 10 cm;

(iv) Incised wound over the right frontal region measuring 5 cm x 1/2 cm.

She has deposed that PW-2 had suffered fracture of nasal bone, which was grievous in nature and other injuries are simple in nature.

(iii) Thus, we find the evidence of injured witness finds substantial corroboration from the medical evidence. Apart from this, we have the evidence of PW-5 Dharmegowda who had witnessed the incident of assault.

(iv) The evidence of PW-5 Dharmegowda reveals that he is an independent witness. He had no grudge or grievance against the accused. He shifted the injured from the place of incident to the hospital. PW-5 has deposed, accused had wrongfully restrained PW-2 and assaulted him with a chopper and caused bleeding injuries. During cross-examination, it was suggested to PW-5 that there was enmity between the senior uncle of accused and PW-5. PW-5 has denied this suggestion.

(v) Thus, from the evidence of PW-5, we find that there was pre-existing enmity between PW-2 and accused. The accused had wrongfully restrained PW-2 by asserting that he had no right to proceed on the pathway. The accused has not produced any documentary evidence that he was the owner of the land, in which pathway is situate. The accused has assaulted PW-2 with a chopper and caused bleeding injuries.

(vi) The law is fairly well settled that the evidence of injured witness cannot be brush aside on mere surmises and conjectures for injured witness will be least disposed to spare the real assailants and substitute the accused. The evidence of injured witness finds corroboration from the medical evidence and also from the evidence of independent witness namely PW-5 Dharmegowda. PW-5 had handed over the incriminating articles such as chopper and blood stained clothes of PW-2 to the investigating officer. Therefore, the learned Sessions Judge has rightly held that accused on 05.08.2005 at 7.30 a.m., assaulted PW-2 Manjunatha with a chopper in the land of the complainant situated in Lakkunda village, Yeslur hobli, Sakaleshpura taluk.

Sri. R.B. Deshpande, learned counsel for the accused would submit that the description of injuries mentioned in wound certificate and the evidence of PW-1 Dr. Shyamala Devi are rather inconsistent. The learned counsel would refer to injury No. 3 which has been described as incised wound measuring 30 cm x 10 cm extending from posterior region to occipital region and PW-1 has described injury No. 3 as incised wound measuring 30 cm x 10 cm extending from posterior region to occipital region.

It is needless to state that the incised wound will have three dimensions i.e., length, breadth and depth. The Medical officer has not given depth of the injury. The breadth of the incised wound would be little more than the thickness of the blood of the weapon of assault. The breadth of injury would be much if there is gaping of injury. In the instant case, breadth of injury is shown as 10 cm as if there was gaping of injury after the assault. Obviously, there is an error in the description of the injury.

It is the case of prosecution that PW-2 was treated in S.C. Hospital, Hassan. The medical evidence does not reveal that he was an inpatient for over 21 days and he had been prevented from pursuing his normal activities of life. The prosecution for the reasons best known to it, has not produced the X-ray or report of X-rays to prove that PW-2 had suffered fracture of nasal bone. PW-2 has not deposed that he had suffered fracture of nasal bone. Therefore, I hold that the prosecution has failed to prove that PW-2 had suffered grievous injuries. The accused had voluntarily assaulted PW-2 with an instrument like chopper. Therefore, I hold the accused guilty of an offence punishable tinder Section 324 IPC.

The learned counsel for accused would submit that accused was aged about 22 years at the time of alleged incident and he was an agriculturist by occupation. He does not bear criminal antecedents. Therefore, he may be released by extending the provisions of Probation of Offenders Act.

I am not persuaded to accept this submission of learned counsel for accused.

The accused had assaulted PW-2 with a deadly weapon (chopper). The accused had wrongfully restrained PW-2 though when PW-2 was walking on his land. The accused was armed with a deadly weapon. The assault was premeditated. Therefore, the accused cannot be extended the benefit of provisions of Probation of Offenders Act. However, having regard to the age of accused and the circumstances, in which the offence is committed, I deem it. proper to sentence the accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 50,000/-, in default, to undergo simple imprisonment for a period of three months for an offence punishable u/s 324 IPC. The conviction and sentence imposed by the trial court for an offence punishable u/s 341 IPC does not call for interference. Therefore, 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 326 IPC. The accused is convicted for an offence punishable u/s 324 IPC. The accused is sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs. 50,000/-, in default, to undergo simple imprisonment for a period of three months. Out of fine imposed on the accused, a sum of Rs. 40,000/- shall be paid as compensation to PW-2 Manjunatha. The rest of the judgment is confirmed. The substantive sentence of imprisonment shall run concurrently.