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2010 DIGILAW 589 (KAR)

Mahendra Naika v. State of Karnataka

2010-04-23

B.V.PINTO

body2010
Judgment : Being aggrieved by the judgment dated 31-7-2004 passed by the first Fast Track Court, Shimoga in S.C.No.46 of 2006 convicting the appellant for the offence punishable under Section 304, Part II of the Indian Penal Code, 1860 and sentencing him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month, the appellant has filed this appeal. 2. The facts of the case are: That the appellant is charge-sheeted for the offence under Sections 302 and 324 of the IPC alleging that on 1-11-1998 with all preparation and pre-mediation, the accused had put up a small hut in the property, which is disputed between himself and the complainant, which property is situated adjacent to each other in Survey No.36 of Honagala Bylu Village, Thirthahalli Taluk of Shimoga District. It is charged against the appellant that on 2-11-1998 at about 11.00 a.m. when the complainant Kadappa came to his land bearing Survey No.36 to remove the weeds in the garden, the appellant started abusing the complainant and his men for entering the land of the appellant and attempted to assault the deceased Gundanaika with the sickle who was accompanying the complainant which caused grievous injuries on the left thigh of the deceased, just below the private part. The deceased succumbed to the injuries thereby the appellant has been charged for having committed offence under Section 302 of the IPC. It is further stated that the appellant in the said place and time assaulted complainant Kodappa, Shivappanaika and Gangadharanaika with knife, thereby he is alleged to have committed offence under Section 324 of the IPC. 3. In order to prove the case, the prosecution in all examined 18 witnesses and got marked Exs. P.1 to P.16. The defence got marked Exs. D.1 to D.19. The prosecution also produced material objects M.Os. 1 to 8 prove its case. After perusal of the materials on the record the learned Session Judge came to the conclusion that the prosecution has been successful in establishing the case under Section 304, Part II of the IPC against the appellant, while acquitting him of the charge under Section 324 of the IPC and accordingly sentence aforesaid has been imposed. Being aggrieved by the said order of conviction and sentence the appellant has come before this Court. 4. Being aggrieved by the said order of conviction and sentence the appellant has come before this Court. 4. Heard Sri A.H. Bhagavan, learned Advocate for appellant and Smt. A.R. Sharadamba, learned Additional Government Advocate for the state and carefully perused the materials on record. 5. Sri A.H. Bhagavan, learned Counsel for the appellant, submitted that insofar as finding of fact is concerned, he will not urge and he is only concerned with the quantum of sentence imposed on the appellant. Under the facts and circumstances of this case, he submits that the said sentence deserves to be reduced on the following grounds.- i. That the injury on the deceased is only on the left side thigh of the deceased which is non-vital part of the body. The post-mortem report states that the death is due to shock as a result of haemorrhage due to a injury to the left femoral artery and vein. ii. There is a single blow dealt by appellant on the deceased. iii. P.W.6-the doctor who conducted the post-mortem has stated that if the haemorrhage of the blood was taken care of or stopped immediately, patient would have survived. iv. That the weapon used is a knife, commonly used for agricultural purpose in villages. v. That there was a property dispute between the witnesses and the deceased and the accused party has put up a shed in Survey No. 36 which the complainant party challenged regarding the ownership. vi. That there was a counter case in S.C.No.100 of 2001 against the witnesses. vii. That the witnesses in this case have caused injury on the accused, which is evidenced by wound certificate at Ex.P.15. On perusal of Ex.P.15 it is seen that there are as many as six injuries on the accused/appellant out of which two injuries are fracture of lower 3” x 1” of middle phalym of right little finger on the left side. The doctor has opined that this injury is grievous in nature. viii. That the history given to Doctor Venkateshachar-P.W.17 is to the effect that this accused was assaulted by Kadappa, Ganesha, Srinivasa and Others with knife and wooden sticks at 10.00 a.m. on 2-11-1998. The doctor has opined that this injury is grievous in nature. viii. That the history given to Doctor Venkateshachar-P.W.17 is to the effect that this accused was assaulted by Kadappa, Ganesha, Srinivasa and Others with knife and wooden sticks at 10.00 a.m. on 2-11-1998. It is submitted that in the fact of this case and also on the fact that the shed has been destroyed by the complainant it is a fit case to reduce the sentence to the period already undergone by appellant. 6. Smt. A.R. Sharadamba, Additional Government Advocate submits that by the act of the accused person a valuable life is lost and the nature of the weapon used by the accused would have caused death in the ordinary course of event. Secondly, the very intention of the accused to cause murder is established by the fact that the accused has assaulted on the thigh of the deceased, which caused profused bleeding which resulted in death. 7. The learned Additional Government Advocate further submits that under the circumstances, it is supported by various decisions of the Apex court and our High Court that the minimum sentence under Section 304, Part II may be not less than 3 years and that the learned Sessions Judge has imposed the minimum sentence of imprisonment under law. Hence, she submits no interference in sentence is necessary in this case. 8. I have gone through the evidence of all the witnesses and the materials placed on record. From the said materials it is clear that the appellant has caused the grievous hurt to deceased and the death is homicidal. Hence, the finding of fact by the Sessions Judge that the act of the appellant is responsible for the death of deceased cannot be found fault with and hence, the same is confirmed. 9. Now, so far as the sentence is concerned; after hearing the submission of either side, it is observed that the incident has taken place 12 years back., i.e., in the year 1998. The appeal pertains to the year 2004. So far as the complainant side is concerned they are also charge-sheeted and tried for an offence before the Sessions Court and the injuries mentioned on either side are grievous in nature. The appeal pertains to the year 2004. So far as the complainant side is concerned they are also charge-sheeted and tried for an offence before the Sessions Court and the injuries mentioned on either side are grievous in nature. It appears that the dispute is only in respect of property arising out of putting up of shed and it is for Civil Court to decide regarding ownership of the said property. The situation of both the parties at the time when the offence is committed would have been to protect the interest in the property an against each other and the outcome of such claim over the property is the incident at hand. Both parties were armed with weapons and have caused grievous injury on the other side. 10. It is seen from the records that the appellant was arrested on 5-11-1998 and released on bail on 29-4-1999 that is he was in custody for five months twenty-four days. However, Sri A.H. Bhagavan, learned Advocate’s prayer for sentencing the appellant for the period already undergone would not meet the ends of justice only because the appellant had put up a construction on disputed land and was waiting for an opportunity to do some criminal acts. Under the circumstances, under trail period is too short an hence, I am of the opinion that a sentence of one year rigorous imprisonment and fine of Rs.10,000/- would meet the ends of justice. Accordingly, I pass the following: ORDER Appeal is partly allowed. The findings of the learned Session Judge, insofar as the offence under Section 304, Part II is concerned, is hereby confirmed. However, sentence is modified, in that the appellant shall undergo rigorous imprisonment for a period of one year and shall pay a fine of Rs.10,000/- in default he shall undergo further rigorous imprisonment for 6 months for the offence under Section 304, Part II of the IPC. The acquittal of appellant for offence under Section 324 of the IPC is hereby confirmed. The appellant shall surrender to serve the remaining sentence imposed on him.