Nagaraja vs State Of Karnataka

2. Appellant (Accused No.3) along with Suresh (Accused No.1) and Ranganatha (Accused No. 2) was charged with for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, `IPC') on the accusation that they had due to previous ill-will, in furtherance of their common intention, caused the death of one Venkatesh (`the deceased'). Accused No. 1 assaulted the deceased with an iron rod on his head and other parts of the body and accused Nos. 2 and 3 assaulted him 2 with fists and kicks and, thus, caused hurt and voluntarily caused his death and thereby committed an offence punishable under Section 302 read with Section 34 of the IPC.

3. A wine shop commonly known as `Nandi Wines' is situated at Nandi village behind Yoganandeshwara Temple. Appellant was an employee of the said shop. Accused No.2 was supplier of wine to the said shop and accused No. 1 was a customer thereof.

Deceased was an agriculturist. He ordinarily used to return home at 7:00 p.m. However, on the date of incident, i.e., on 13.10.2000, he did not return to his house.

P.W.1- Munegowda, the brother of the deceased, on being asked by his mother at about 8.30 p.m. went out to search for him and after finding him sitting in the `circle', returned home. But the deceased did not come back.

Again at about 10'O clock in the night, P.W. 1 went in search for him. When he reached near `Nandi wines', he found the accused persons were quarrelling with the deceased. Accused No. 1 assaulted the deceased with an iron rod on the back of his head; accused no. 3 - appellant herein, kicked him and accused no. 2 gave fist blows on his face. Deceased was 3 found to have sustained injuries. He was taken to Government Hospital of Chickballapur. The Doctor sent information thereabout to P.W.13 Thimarayappa, who was working as Head Constable and was the Station House Officer of Chikaballapur Rural Police Station, at the relevant time at 12.00 midnight on 13.10.2000. He immediately went to the Hospital and recorded the statement of P.W.1. He returned to the police station and registered the said complaint in Crime No. 230/2000, for the offence punishable under Sections 323, 324 and 307 of the IPC; he prepared FIR and sent the same to the jurisdictional court. Thereafter, as advised by the Doctor, deceased was taken to NIMHANS at Bangalore. He expired on the next day.

4. The First information Report was lodged by the P.W.1, the brother of the deceased. Another witness Munivenkategowda claiming to be an eyewitness, examined himself as P.W. 2. Manjunatha (P.W. 3) and K. Srinivas (P.W. 7) were also present at the time of the incident. A general allegation was made that there was some previous ill-will between the parties.

7. They preferred an appeal before the High Court. By reason of the impugned judgment, the same has been dismissed.

11. The High Court in its impugned judgment proceeded on the basis that all the accused persons were employees of Nandi Wine Stores. However, the prosecution itself in support of its case examined Bachegowda (P.W. 4), 6 the owner of Nandi Wine Stores, who in his deposition had stated that only appellant was working with him as a cashier, whereas accused No.1 was a customer and the accused No. 2 was a supplier.

23. For the aforementioned reasons, we are of the opinion that appellant cannot be held guilty for commission of offence punishable under Section 302 read with Section 34 of the IPC. The very fact that the appellant was unarmed and must be presumed to have been performing his duties at his place of employment, it cannot be said that he had formed any kind of common intention at the spot to murder the deceased. Some incident might have taken place and he might have formed a common intention to teach a lesson to the deceased. He might be guilty for commission of offence punishable under Section 323 of the IPC and not for commission of offence punishable under Section 302 read with Section 34 of the IPC. He is sentenced to the period already undergone.

The appeal is allowed accordingly. The appellant is on bail. The bail bonds shall stand discharged.

December 18, 2008