High Court Karnataka High Court

Prakasha Naik @ Prakash Kumar vs The State Of Karnataka on 26 August, 2010

Karnataka High Court
Prakasha Naik @ Prakash Kumar vs The State Of Karnataka on 26 August, 2010
Author: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF' Aucusjij .
BEFORE 0 0 0 0
THE HONBLE MR.JUST'ItC''L?.«I\f.2:1NI!§c'\TIV§A' 0:} I  
CRIMINAL APPEAL M11825/2003 - = 0'  
BETWEEN: A  '0 V' 
Prakasha Naik @ Prakash  
S/o.Govindanaik " _   v  
Aged about 39 years V V
Occ:Agricu}ture.   --   
R/ 0.Sadashivap_1i_'ra T':anda~' "

Shikafipura. ~  _    .
Shimoga   .     ...APPELLANT

[By s;~I0eI;-Ia-4543:',   £oI--jsrI fEt:IV3"II')eshpa1'1de, Adv.)
AND: V  0 'T 0

The State at I5_{0am.ata1<a'."': ...RESPONDEN'I'

 V'  . 0S1-iiJ'Vijay Kuniafdit/iaj age, HCGP)

 "K(;'r.Ig;+3I is flied under Section 374(2) Cr.P.C
against the judgment dated 28.11.2003 passed by the

P.O.,__, Fast) Track Court, Shimoga in S.C.No.89/98
convicting the appellantwaccused for the offence

--« 1e under Section 304(2) IPC and sentencing
 A ..fi.hirn«.._to undergo R1 for 4 years and to pay fine of
 _ ' --Rs..]..0,000/- I.D., to undergo R.I. for 6 months.

This appeal coming on for hearing this day, the

04 " I . "Court deiivered the following:



... 2 ...
JUDGMENT

The appellant–accused was tried for an offence
punishable under Section 304 Part II of
S.C.No.89/1998 on the file of the Fast
Shimoga and he was convicted “for Tl”

Therefore, he is before this Court; A it

2. I have heard Sri leai<3'ie'd:.VCot1:risel for
accused and learned'~~..Go\%err1hie§:1ti'-Advocatedn for the

State.

The of the prosecution are as
follows:

PTyV– Basavaraja Naik, deceased Hanumatha Naik

Naik are direct brothers and they

of one Govinda Naik. PW–6 I-Ialibaj was the

ofdiieceased. They are natives of Sadashivapura

A Shikaripura Taluk. They had; divided their joint

Q

VT ..,_fdmily properties. They were living in different portions

V of the same house. In one of the joint family properties.

accused and deceased had dug a borewell under Ganga

d\)- mw-<£\r .

_ 3 _
Kalyana Yojane. There was a clear understanding that

they should equally share water from the borewe-11g to

irrigate their lands. » , ” ..

4. On 25.7.1998, at about 9.30 p.m-;;._

Hanumantha Naik had returned; from S-hVik’a.ripui’a§_’ if

that time, accused was

The deceased told accused_V:'”tQ_ leave water”‘:..from'” the ” if

borewell to enable him to ism, dkccused

refused and therefore; ‘t¥.”1ere__was “afj quarrel. Accused

‘~went inside v.._house:f’a.11(j*«…bIQugi;1t’V a sickle and

assauit.ed*–“deceased. Deceased fell down

and there wast’ from his neck. Deceased

suec-iumbed to”injL1_1fi.es, when he was being shifted to

The first information relating to occurrence was

I_1odged PW-1 Basavaraj Naik. The Investigating

if held inquest and subjected the body to Post

i Mortem examination. The Post Mortem Examination

was conducted by Dr.PW~’15 Rajashekar, who opined

that deceased had suffered a stab injury below the left

wt CLJ\z”-‘1’/’-‘\”:£«\,

clavicle and left sub clavicle artery was cut. There was

accumulation of 200 ml of dark fluid blood in

cavity. PW– 15 opined that death was due _

result of hemorrhage due to inju_:y..t_o leftHstibiiclavicalarp ll”

artery and upper lobe of left cavity. A ‘ll

6. The Investigating recorded svtatements of ” V L’

witnesses, arrested accused..-a-.n.d–.seized sicitlefrom the
place of occurrence. aOr_:” cofi:1§,letion.VVlofV investigation,

charge sheet was s_ubi_nitted. again-s_t accused.

PWs.1 to 15 were
examined! ‘arld as per Ex.P1 to 21 Were

marked In-aterial objects were marked as

1?””tOl” lrimorder to bring home the gum; of

I t~–acct1sed’,”«»the V”pr’osecution relied on the direct evidence of

pvlv~—.1 eeasagzafag Naik. PW-3 Somla Naik, PW–4 Shankar

Pris Halibai and PW-7 Nagaraj Naik and medical

evidelnce of PW~15 Drflajashekar.

The Wife of deceased and other Witnesses have
consistently deposed motive for the occurrence. The

accused and deceased had jointly sunk a borewell with

.. 5 _
an understanding that they should equally share the
water from borewell on turnwise basis. Howeverfthere

were some disputes between accused and_…._giecea;;s.ed.p

regarding payment of electricity charges_..V__%1’h.e’ _

had not allowed deceased to] Water’

borewell.

8. PW–l Basavaraj Nai”l:..’:W–as the

occurrence. He lodged first”inforrfration.”Hoxyever, he
has not whole–heartedly”V case of the

prosecution. on the date of

occurrence deceased was lying in

injured cc.ndi,tion in ” of his house and he was

‘_ thelnlhospitai in a bullock cart. PW–1 and PW-

‘and otlrteiztfillagers had gone to lodge first information.

He was dc”cla§’ed as hostile witness and cross examined

by Public Prosecutor.

V Vb”-..pDuring cross examination, he has stuck to his

‘ Version. PW–1 is the younger brother of deceased and

.4 elder brother of accused. It appears, he was interested

in saving deceased. Therefore, he has resailed from

,w£a-a~~4.

V 5 M
contents of first information lodged by him. Yet, the
evidence of PW–1 Basavaraj Naik to the extent thatp he

had seen deceased in injured condition

shifted to hospital after the occurrence_.””vsf:ou1d

support to the case of the

had been assaulted at thepoVp1ace”ai1’d time7′-puvtforthtbyl”g

prosecution.

9. PW~3 Somla”V-._Na_iAl.<W_ a resident of
Sadashivapura 'VI'anda.__ that on the
date of deceased had gone to
Shikaripu-ra — returned to their village at

about they came near the house of

acc»u'sedA,' there '*w,a_s_»a quarrel between accused arid

'c1:eceas-eVd~r regarding sharing of borewell water. The

accusedibi-ecaine Wild, brought a sickle from his house

and assaulted on the neck of deceased. PW–3 has

A '~:tf"iden'tified the weapon of assault. At the time of

occurrence, street iamp was burning. PW3 has deposed

that one Hanurnantha Naik, Rama Naik, Jaya Naik,

Karibasayya Naik and Shankar Naik were present near

the place of occurrence. PVV3 has deposed that PW–1

am).

‘T7 7 ‘T7
snatched sickle from the hands of accused. Accused

fied away from that place. They shifted deceased

Hanumantha Naik in a bullock cart. On

hospital, he succumbed to injuries.

During cross examinatiori; had’ _rei.tevrated.

the version given in exarn_in~ation¥’in~chief. *PVv’3 “has ” V

deposed that occurrence ‘preeeded”‘o},r. all quarrel
between accused and deposed that
accused dealt solitary deceased with
a sickle. tia..g1nn1;:~.”:3;il’._the’instance of Halibai,

he hasgiven false ‘ ‘

, -1.03 iirisna is an independent witness.

‘He”was?not’t’enmicalto accused nor he was a close friend

had no reasons to falsely implicate

accused; ‘ evidence that accused dealt a blow on the

J’11.ec1< of-'deceased finds corroboration from the medical

evidence. Therefore, there are no reasons to suspect the

-“evidence of PW–3.

ll. PW–4 Shankar Naik has given evidence, which

is more or less similar to the evidence of PW–3. PW–4

ALJ\ 8 lL4\
has deposed that the occurrence was preceded by a

brief quarrel between accused and deceased. The
accused was demanding deceased to give him

Rs. 1,000/– which he spent for digging a bore’vv–ell4,:lT:’ ~

the quarre} was going on, accused wentVl4″itn.side.the.. 2

house and brought a sickle
of deceased. After the ‘lwas ”
snatched from the hands bv’P’» 7- 1;} When
accused assaulted saw the

occurrence in lamp. They

shiftedV’lVldeceas;3(1« cart. On the way, he
succunibed’ to ” -. ” =

, During cross”e2ta_nii.nation, PW4 has admitted that

. lll”thC””tlutiie*re’igstarteldw’between accused and deceased.

a sickle from his house. But PWs.3

v§.f*e’1’eA«:’~not able to prevent the accused. Accused

Jdealet aslolitary blow on the neck of deceased with a

Thereafter, he ran away from that place. PW–4

-has deposed that he was cordial with deceased, so also

he was cordial with accused. PW–4~ is an independent

witness. He had no reasons to give false evidence

N w(i–ML.

against accused. His evidence lends corroboration to

the evidence of PW~3.

12. The evidence given V jay P.’£’v”>’5«:’1]_Mala’tesh’ *

M.Kuribar relates to the land jointly ..1i1elc1_1

and deceased.

13. PW–6 Halibaj is jgotgnldeceased. Jhhe has
deposed that accused sunk a
borewell had agreed
to use water’ “:£§v’h’el accused had spent
the and in that regard, a
panchagfatfih’ was decided that deceased

shall give a Rsl;4;.0.00/– to accused. The deceased

‘l V. ciofv-J gaxfelllaccused a sum of Rs.-4,000/-. But
not satisfied. He was again demanding

_ deceased’ ‘to:’give a sum of Rs.I,500/~. On the date of
H.”44”–d_occu.rrer1’ce, deceased had gone to Shikaripura and
g’..’_é’retu;”ried home at about 9.00 pm. At that time,

ll “accused started abusing deceased. There was a quarrel

A between accused and deceased. The accused Went

inside his house and brought a sickle and assaulted on

‘V7 6 -9-x -«~01-A

A A
the neck of deceased, as a result. deceased fell down.

PWs.1 and 6 and other witnesses shifted deceased in a

buliock cart. On the way, deceased succumhedi~.,to

injuries.

During cross~examination,___PW_–6 has””dfexiied”.th»e ll”

suggestion that her husband was.AaI:_’_’aleoholi’e.:l’

denied the suggestion that’l.d”er,:ease’d was l’coA1’itii*:L1ously’~.l’

abusing accused. She has….de»po’s_ed thafioccurrence
took place in the clo;dimo..r_1_ of houses of
accused and deiceasecild that when the

accused brouginfapl ‘sick-1e'”‘fro1’n his house, the witnesses

did not iIVi’te.1’v’enle{.l’Sliedias deposed that the Witnesses

p_ did»’i1ot__xanticip’at€Ilflat accused would assault deceased

7 ‘ wi’t’h. a .” .._

2 the wife of deceased. Her presence near

thehllplaeel of: occurrence cannot be suspected. Being the

of deceased, she would be least disposed to

Aiijxiplicate accused, leaving aside the real assailant.

ml’i’herefore, her evidence does not suffer from any

discrepancy. “J . ,\_ _g/L ~,..¢g,._Q

._ ._

14. PW–7 Nagaraja Naik was the son of deceased.

At the time of occurrence he was studying S.S.L.C. PW-

?’ had given evidence which is similar to the evider:ic.e’~Vof

PW–6. During cross examination, PW–7

that accused was abusing deceased. ‘to.4_”:th€.V nu

occurrence, he was cordial with .’
demanded the accused to ”
water, but the accused._refuVsed;”_:=I?le_admitted that
in the quarrel, deceased.”liadfttold: that if he

does not allo__w–him would see to

him. brought a sickle and

assau1ted”deceascd’V away from the place. When

deceased WasV’lb’ein_g__’shifted to hospital, he succumbed

2 to V injeu Fives. ‘ i “* ..

H * Vlb.’V%§’heA’o:ettidence of PW~8 relates to the seizure of

blood clothes from the place of occurrence.

PW–9 Gajendra, was the Tahsildar of

‘ Slgikafipur. At that time, he is alleged to have recorded

confessional statement of accused. PW-9 was neither a

Metropolitan Magistrate or Magistrate to record the

{vi Q'””””d’\

VIIII 12 VVVVV
confessional statement under Section 164 Cr.P.C.
Therefore, his evidence is not of any assistaniee’i~.to

prosecution.

17. PW–lO Krishna Naik has given–‘ev-idience “=

regard to borewell sunk by

adjustment between accused and deceasedgw

18. T he evidence.__ of “-.to 1?}}ll’irelates to
investigation of the case. A it

19. In the’discus_sio21:.V~inadetsupra, I have referred
to Dr Rajashekar, the medical

evidence lgiven regarding injury found on

. g_ deceased’ and caus,e__o.f death has not been controverted.

from the overall appreciation of

evidence; that the prosecution has proved beyond

Jiears_ona-‘ole doubt that on 25.7.1998, at about 9.30

” , lp,_ln1-.,-F there was a quarrel between accused and

~deceased regarding sharing of water from the borewell

” jointly sunk by them. Accused brought a sickle and

assaulted on the neck of deceased. Accused had

N. «i: w- Q.

reasons to believe that injury inflicted by him was likely

to cause death.

21. The learned trial Judge,_….,o_:n.Vv’:»A.proper”

appreciation of evidence and also

background of occurrence, -.___solita1jy” blow’V’%’

accused on the vital part of hasliheldlfaccused
guilty of an offence Iittot” ZPC and
sentenced him for a
period of Rs.10,000/– in
default, “to rpivsjorous imprisonment.

252; ‘Sri Counsel for accused

wou1d..sub1n’itt_:that* the initial provocation came from the

‘op,/,’dec’eased. v”mTherefore, the sentence imposed on

A =.the- accuse

” ‘ is V too severe.

‘The learned Government Advocate would

A X1″ the sentence. An offence under Section 304 Part

‘ of IPC is punishable with imprisonment of either

description for a term which may extend up to 10 years

or with fine or with both. At the time of occurrence,

deceased was aged about 38 years. His wife Halibai

p’\- – “‘”4’£f\’

59. z::

{PW–6) was aged about 83 years. She became a widow

due to the acts committed by accused. The.

deceased had lost the love and affection and ~

his father.

24. in the circumstances, fivdddo 1]Q~f.

extenuating factors to reduceu”th’e years
imposed by the trial do hotuyffind any
grounds to int,e1ffere:y.with. judgment.

Therefore,    V  if 

 yyyy       ,.  

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