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 ,. aim-