State vs Varun A. Devadiga

N. Ananda, J.—The respondents were arrayed as accused No. 2 to 4 in S.C. No. 698/2006. They were tried along with accused No. 1. Accused No. 1 B.K. Naveen Kumar jumped bail and he was absconding. Therefore, case against him was separated.

We have heard Sri Vijaykumar Majage, learned Government Pleader for the State.

In brief, the case of prosecution is as follows:-

On 07.05.2006, the deceased Murugan and his friends namely Rajan (PW. 7), Edwin (PW. 8) and Raju (PW. 9) had gone to attend the marriage of one Santhosh in Sai Kalyana Mantapa situated at ''D'' Block, Rajajinagar, Bangalore. After completing the marriage, all of them had gone to Navarang Deluxe Bar and Restaurant and had drinks of their choice. After they came out of the Bar, they were passing through a park near Navarang Talkies. At that time, two persons were holding two boys and assaulting them saying that those two boys had committed theft of computer disc. The deceased Murugan interfered and asked those persons to leave the boys. There was a quarrel between those persons and the deceased. The deceased assaulted one of them. One of the accused made a phone call and secured 4-5 persons. One amongst them tried to assault the boys. When the deceased tried to interfere, that person banged his head against the head of deceased Murugan and stabbed on the chest of deceased with a knife.

It is obvious from the above narration that accused No. 1-B.K. Naveenkumar against whom a case was separated had caused the death of Murugan by stabbing on his chest with a knife. The respondents herein (accused Nos. 2 to 4) are alleged to have shared a common intention with accused No. 1. Therefore, they were charged for an offence punishable under Section 302 r/w Section 34 IPC. In the circumstances, crucial point for consideration is whether accused Nos. 2 to 4 (respondents herein) had shared common intention with accused No. 1 and in furtherance of such common intention accused No. 1 stabbed on the chest of deceased-Murugan and caused his death.

At this stage, it is necessary to state that homicidal death of Murugan due to stab injury sustained in afternoon on 07.05.2006 near Navarang Park has not been controverted. PW. 11 Dr. Kiran has deposed that at the relevant point of time, he was working as Medical Officer in Spandana Nursing Home. On 07.05.2006 during afternoon a person by name Murugan was brought to hospital and he was dead. PW 16-P.K. Devadas conducted post mortem examination on the dead body of deceased-Murugan and noticed the following injuries:-

i) Stab injury measuring 4 cm x 2 cm x chest cavity deep oblique situated 2 cm outer to the midline 6 cm downwards and inwards to the left nipple. Edges are clean cut. Upper out end is blunt. Lower inner end is sharp.

ii) Abrasion measuring 2 cm x 0.2 cm present on the left side of chin.

PW. 16-P.K. Devadas has opined that death was due to shock and hemorrhage as a result of stab injury sustained to the chest. The defence has not controverted homicidal death of Murugan and cause of death.

PW. 1-Saravana had lodged first information. In the first information he has not stated that accused Nos. 2 to 4 were holding deceased-Murugan when accused No. 1 stabbed on the chest of deceased. PW. 1 has deposed that one of the accused informed accused No. 1, he came to the place. Accused Nos. 2 to 4 held deceased-Murugan and accused No. 1 banged his head against the head of Murugan and stabbed on the chest of deceased with a knife. The evidence of PW. 1 that accused Nos. 2 to 4 were holding deceased and accused No. 1 stabbed on the chest of deceased does not find corroboration from the contents of first information. The first information was registered against 6-7 unknown persons.

PW. 2 to PW. 6 have not supported the case of prosecution.

PW. 7-Rajan has deposed that after taking food, they were coming near Navarang park. At that time some persons were quarrelling and when deceased enquired those persons regarding cause for quarrel those persons told him that two of them stolen computer disc. The deceased-Murugan tried to pacify those persons that they had got back the stolen computer disc therefore why they should continue their quarrel. At that time, accused Nos. 3 and 4 told deceased - Murugan that he had no business to interfere. The deceased got angry and slapped on accused No. 4. Accused No. 4 made a phone call and got some persons. At that time accused No. 1 came there. They pointed out deceased to accused No. 1. When PW. 7 and other prosecution witnesses went to pacify quarrel, accused Nos. 2 to 4 held the deceased and accused No. 1 banged his head against the head of deceased and stabbed on the chest of deceased with a knife. Thereafter, accused Nos. 1 to 4 ran away from that place.

During cross-examination, PW. 7 has admitted that they had gone to a bar before the incident took place. During cross-examination he has admitted that at the time of incident 6 to 7 persons joined together and committed murder of deceased. The evidence of PW. 7 contradicts his statement recorded under Section 161 Cr.P.C. and it is marked as Ex. D2. Thus, evidence of PW. 7 that accused Nos. 2 to 4 were holding deceased and accused No. 1 stabbed deceased cannot be accepted.

PW. 8-Edwin has given evidence reiterating the events that had taken place before incident of assault took place near Navarang Park. PW. 8 had deposed that accused No. 1-B.K. Naveen Kumar banged his head against the head of deceased and three persons holding the deceased and thereafter accused No. 1 stabbed on the chest of deceased and all the accused left the place. During the cross-examination, PW. 8 has admitted that on the date of incident during afternoon they had consumed liquor in a bar. When the deceased was assaulted PW. 8 was holding deceased. His "evidence before the Court that accused Nos. 2 to 4 were holing deceased and thereafter accused No. 1 stabbed on the chest of deceased is contradictory to his statement recorded under 161 Cr.P.C. wherein he has stated that about 6-7 persons joined together and committed murder of deceased.

PW. 9-Raju has deposed that when they wee coming near Navarang park there was a quarrel. The deceased wanted to pacify the quarrel. Accused Nos. 3 and 4 abused deceased for interfering with their matter. Therefore, deceased got angry and slapped on accused No. 4. Accused No. 4 got accused Nos. 1 and 2 to the place of incident. They also enquired about theft of computer disc by two boys and accused Nos. 1 and 2 assaulted boys as they had suspecting that they had stolen computer disc. When deceased interfere, accused No. 1 banged his head against the head of deceased and stabbed on the chest of deceased with a knife. Thus we find PW. 9 has given a different version.

The evidence of prosecution witnesses that accused Nos. 2 to 4 were holding deceased when accused No. 1 stabbed him looks improbable. It is clear from the evidence that accused Nos. 2 to 4 were not known to PW. 7 to PW. 9. The evidence on record does not disclose that there was previous enemity between accused Nos. 2 to 4 and deceased. The medical evidence reveals that deceased had suffered a stab injury on the chest. In the circumstances, it looks improbable that accused Nos. 2 to 4 were holding deceased and they were surrounding de-ceased. If accused Nos. 2 to 4 were surrounding and holding deceased, the knife dealt by accused No. 1 would have landed on one amongst accused Nos. 2 to 4. In our considered opinion, prosecution has come out with a improvised version that accused Nos. 2 to 4 were holding deceased to invoke Section 34 I.P.C. against accused Nos. 2 to 4. The learned Sessions Judge on proper appreciation of evidence has acquitted accused Nos. 2 to 4 of an offence punishable under Section 302 r/w Section 34 I.P.C. We do not find any reasons to interfere with the impugned judgment. The appeal is dismissed.