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2023. KHC:20954-DB CRL.A No.762 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF JUNE, 2023 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL APPEAL No.762 OF2017BETWEEN: VEDA @ VEDAPRASAD S/O LATE CHENNAKESHAVA OCC: LORRY DRIVER AGED ABOUT42YEARS R/O KUPPALLI VILLAGE KASABA HOBLI, HASSAN TALUK HASSAN DISTRICT - 573 201. …APPELLANT (BY SRI. H. S. SURESH - ADVOCATE) AND: THE STATE OF KARNATAKA BY HASSAN RURAL POLICE STATION HASSAN DISTRICT - 573 201 REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU - 560 001. …RESPONDENT (BY SRI. H S SHANKAR - HCGP) THIS CRL.A. FILED U/S3742) OF CR.P.C PRAYING TO SET-ASIDE THE
JUDGMENTAND
ORDEROF CONVICTION AND SENTENCE DATED0102.03.2017 PASSED BY THE II-ADDL. DIST. AND S.J., HASSAN IN S.C.NO.228/2014 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S448 323, 341, 302 OF IPC.-. 2 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 THIS CRIMINAL APPEAL, COMING ON FOR DICTATING
JUDGMENT, THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING:
JUDGMENTThis filed by the convicted accused, is directed against the Judgment of conviction and order of sentence dated 01/02.03.2017 passed by the II Addl. District & Sessions Judge, Hassan, in S.C.No.228/2014 convicting him for the offences punishable under Sections 448, 323, 341 and 302 of IPC and sentencing him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.500/- for the offences punishable under Section 448 IPC; further to undergo simple imprisonment for a period of one year and to pay a fine of Rs.500/- for the offence punishable under Section 323 of the IPC; further to undergo simple imprisonment for a period of 15 days and to pay a fine of Rs.200/- for the offence punishable under Section 341 of the IPC and to undergo simple imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 302 of the IPC. All the sentences were to run concurrently.-. 3 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 2. The brief facts of the prosecution case is that the appellant / accused is related to the deceased Ratnamma. It is stated that prior to 18 years, the said Ratnamma was given in marriage to one Manjunatha of Chatranahalli village and after their marriage, they are said to have lived at Kuppalli. Prior to seven years of the alleged incident, her husband Manjunatha died and deceased Ratnamma started living along with her minor daughter in a rented house belonging to one Channegowda / PW-14. During this time, Ratnamma is said to have developed intimacy with one Rafiq /PW-13 and they were in a live-in relationship. Appellant / accused being enraged by their relationship, is said to have advised Ratnamma not to continue such relationship. In spite of his advise, Ratnamma is said to have continued her relationship with Rafiq. Being annoyed with the same, the appellant / accused, as on 06.04.2014 at about 1.00 p.m., is said to have entered into Ratnamma’s house unlawfully and had quarreled with her and had assaulted her with his hands and legs. Though she had tried to run away in order to - 4 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 escape from his clutches, appellant / accused is said to have chased her by holding a sickle and near one Venkatesha’s house / PW-4, the appellant had obstructed her and murdered her by throttling her neck. Hence, a complaint was lodged by Chandregowda / PW-1 and based on the said complaint, an FIR was registered by the respondent / police. Subsequently, after investigating the matter, and after collecting necessary documents and other evidence, the respondent / police laid the charge- sheet against the accused for offences punishable under Sections 448, 323, 341 and 302 of IPC.
3. On committal of the case to the Court of Sessions, the learned Sessions Court framed charges against the accused for the aforesaid offences. However, the accused denied the charges leveled against him and claimed to be tried. In order to bring home the guilt of the accused for the charges leveled against him, the prosecution examined in total 22 witnesses as PW-1 to PW-22 and so also marked 20 documents as Exhibits P1 to P20. The prosecution also marked 5 material objects as MO-1 to - 5 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 MO-5. However, the accused neither examined any witnesses in his favour nor marked any documents. The defence of the accused was one of total denial and that of false implication. Subsequently, incriminating statement was recorded under Section 313 Cr.P.C. and the accused has denied the truth of the evidence of the prosecution adduced so far. He did not come forward to adduce any defence evidence.
4. After hearing the learned counsel appearing on both sides and on an assessment of the oral as well as documentary evidence placed before the Trial Court, the learned Sessions Judge convicted the accused for the offences leveled against him. Being aggrieved by the said Judgment of conviction and order of sentence, the accused is in appeal before this Court.
5. We have heard the learned counsel Shri H.S. Suresh for the appellant and Shri H.S. Shankar, learned HCGP for the respondent / State and perused the Trial Court Records.-. 6 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 6. Learned counsel for the appellant contended that the judgment under appeal suffers from perversity and illegality in as much as the learned Sessions Judge has failed to notice that the entire case of the prosecution depended wholly on the evidence of PW-2 / Preethi, the daughter of the deceased who was a child witness to the incident. Even without appreciating the fact that there is an unexplained delay in recording the statement of PW-2 who could have been tutored easily, it is contended that the conviction which is based on such evidence, is unsustainable. The further contention of the learned counsel is that the admission given by PW-2 / Devamma and PW-3 / Preethi would show that they were not present at the alleged time of incident and also the improvement in their evidence is for the first time before Court, which clearly reveals that PW-2 is a tutored witness. It is contended that both their evidence is inconsistent with the contents of the complaint. The learned counsel further contended that the Sessions Judge committed a serious error in relying on the evidence of PW-2 / Preethi and PW- - 7 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 11 / Vittal and other prosecution witnesses as regards the allegation of illicit relationship of deceased with PW-10 / Rafiq. Both PW-10 / Rafiq and PW-3 / Devamma having not supported the case of the prosecution fully, the overall appreciation of evidence by the Trial Court on presumptions and assumptions, has led to perversity. It is also contended that the omissions or improvements in the evidence of PW-2 and PW-3 being the close relatives of deceased Ratnamma, goes to the root of the case and the same has been proved through the evidence of PWs 1, 4 and 5 who were the alleged eye-witnesses, since they have not supported the case of the prosecution. Though the Trial Judge had held that the death of Ratnamma is caused as per prosecution case, but the medical evidence does not corroborate the said fact. In that, the evidence of the Doctor PW-16 has revealed that Ratnamma’s death was not caused with MO-1 / sickle. Further, the evidence of the Investigating Officer / PW-22 reveals that the death was caused with MO-1, which is also contrary to the evidence of the Doctor / PW-16. There being serious - 8 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 infirmities and discrepancies in the evidence of the witnesses including the Investigating Officer, learned counsel contends that benefit of doubt ought to be extended to the appellant in this appeal.
7. Learned counsel for the appellant contends that though the prosecution proved the homicidal death of the deceased Ratnamma, but totally failed to place sufficient evidence to connect the accused for the same. Therefore, he sought for allowing the appeal and to acquit the appellant / accused for the alleged offences.
8. Per contra, Shri H.S. Shankar, learned HCGP sought to justify the judgment under appeal and contended that the judgment does not suffer from any perversity or illegality, since the learned Sessions Judge, on a proper appreciation of the oral and documentary evidence, has recorded the findings which are sound and reasonable having regard to the evidence on record. Therefore, he contends that the same does not call for interference by this Court. He further contended that on a perusal of the evidence adduced by the prosecution, it is - 9 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 revealed that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Merely because the conviction was based on the evidence of a child witness, the case of the prosecution cannot be doubted. As such, the circumstance of the accused having gone to Ratnamma’s house at 1.00 p.m. afternoon unlawfully and having quarreled with her and assaulting her with his hands and legs, cannot be doubted. Further, when she ran away from his clutches, the appellant having chased her and near Venkatesha’s / PW-4 house the accused having throttled her neck and committing her murder, also cannot be doubted in view of the evidence on record. Hence, the learned HCGP contends that the Trail Court is fully justified in convicting the appellant. Therefore, he sought for dismissal of the appeal.
9. We have bestowed our anxious consideration to the submission made by the learned counsel appearing on both sides and so also the evidence available on record.-. 10 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 10. Having heard the learned counsel for the appellant and the State, the point that would arise for our consideration is, “i. Whether the impugned judgment challenged herein suffers from any perversity or illegality warranting interference by this Court?. ii. Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 448, 323, 341 and 302 of IPC?.
11. This Court being the Appellate Court, is very much required to re-appreciate the entire evidence available on record. a) On going through the evidence adduced before the Trial Court, it is seen that PW-1 / Chandregowda who was the neighbour of deceased Ratnamma, is an eye-witness to the incident and so also, he is the spot mahazar witness to Exhibit P1. b) PW-2 / Preethi is the daughter of the deceased Ratnamma and is an eye-witness to the incident. In her - 11 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 evidence, she has deposed that the accused illegally entered into their house and thereafter quarreled with her mother and chased her mother and committed her murder by throttling the neck of her mother. However, during cross-examination, the said witness deposed that her mother had an illicit affair with PW-10 / Rafiq. c) PW-3 / Devamma is none other than the mother of the deceased and she is a hearsay witness to the prosecution case. d) PW-4 / Venkatesh is an eye-witness to the incident. However, this witness has turned hostile to the prosecution case. e) PW-5 / Ashoka is one more eye-witness to the incident. However, this witness also has turned hostile to the prosecution case. f) PW-6 / Ramegowda is a witness to the spot mahazar at Exhibit P1. However, this witness has also been treated hostile by the prosecution.-. 12 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 g) PW-7 / Padma is the elder sister of the deceased Ratnamma and she is a witness to the Inquest Mahazar / Exhibit P6. h) PW-8 / Rangaiah is the husband of PW-7 / Padma and also the brother-in-law of the deceased Ratnamma. He is a witness to the Inquest Panchanamas at Exhibits P6 and P7 wherein MOs 2 to 5 were seized. This witness has supported the case of the prosecution and he has identified his signature at Exhibits P6 and P7 as per Exhibits P6(a) and P7(a) respectively. i) PW-9 / Kariyaiah (mistakenly mentioned in the judgment as Jayaram), is the brother of PW-3 / Devamma and the father in-law of deceased Ratnamma. He is also a witness to the seizure mahazar at Exhibit P7 and he is also a hearsay witness to the incident. However, he has not supported the case of the prosecution. j) PW-10 / Rafiq is a hearsay witness and according to the prosecution, he had an illicit affair with the deceased Ratnamma. However, this witness has been - 13 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 treated hostile and has not supported the prosecution case. k) PW-11 / Vittal is the owner of the house where the deceased was residing. However, this witness has not supported the case of the prosecution. l) PW-12 / Nagaraja is the Village Panchayath Officer and Tax Collector. He is said to have issued the khata of the house which is marked as Exhibit P10. m) PW-13 / Dinesh is the witness for the seizure mahazar / Exhibit P11 as regards seizure of chopper. However, this witness has not supported the case of the prosecution. n) PW-14 / Chennegowda is the Engineer who had prepared the spot sketch Exhibit P12. o) PW-15 / Niranjanamurthy is also a witness to the seizure mahazar / Exhibit P11 as regards seizure of weapon, i.e., the chopper said to have been used by accused for commission of the crime. However, this witness is also treated hostile to the prosecution case.-. 14 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 p) PW-16 / Dr. Inamdar is the Doctor who conducted autopsy over the dead body of deceased Ratnamma as per Exhibit P14. q) PW-17 / Rukmini is the then Woman Constable who escorted the dead body of Ratnamma and produced the clothes of the deceased before the eye-witness. r) PW-18 / Yathisha is the then PC and he is the carrier of the FIR to the Court. s) PW-19 / Jagadeesh is the then PSI who assisted to arrest the accused. t) PW-20 / Pramod Kumar is the then PSI who received the complaint and arrested the accused and produced before the I.O. u) PW-21 / Rajanna is the Station House Officer who registered the FIR as per Exhibit P17. v) PW-22 / Veerendra Prasad is the Investigating Officer who investigated the case and laid the charge- sheet against the accused for the afore-mentioned offences.-. 15 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 12. On a careful perusal of the evidence and the material placed by the prosecution, it could be seen that the death of the deceased Ratnamma is a homicidal one. To that effect, the evidence of the Doctor / PW-16 who conducted autopsy over the dead body and his report at Exhibit P14 coupled with the Inquest mahazar at Exhibit P6 and the evidence of the witnesses to that effect, namely PW-7 / Padma and PWs 2 and 3, it can be easily concluded that the death of the deceased was a homicidal one. The learned counsel for the appellant also has seriously disputed that aspect. Once homicidal death of the deceased is proved, the next question arises as to whether the accused is responsible for the same.
13. On a careful examination of the evidence of the witnesses examined before this Court, particularly the evidence of PW-2 / Preethi who is none other than the daughter of the deceased Ratnamma and being a child witness, she has categorically deposed in her evidence that on the relevant date, that is on 06.04.2014 at about 1.00 p.m. when herself and her mother, that is deceased - 16 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 Ratnamma were in their house, the accused entered their house and quarreled with her mother and assaulted her by hand and when the deceased made an attempt to escape from his clutches, he chased her by holding a sickle in his hand and thereafter committed the murder of her mother near Venkatesha’s / PW-4 house, by throttling her neck. Thereafter, he escaped from the said spot. This evidence of PW-2 corroborates the evidence of the Doctor who conducted autopsy over the dead body and issued the report as per Exhibit P14 opining that the death of the deceased was due to strangulation. Though the defence counsel cross-examined PW-2, nothing has been elicited from her mouth to disbelieve her version. Moreover, she being a child witness, her version has to be believed to some extent, since there are other evidence available on record. The evidence of PW-1 / Chandregowda, that is the complainant also categorically stated that the accused being the relative of the deceased, had an ill-will and he used to quarrel with the deceased for the reason that she had an illicit affair with PW-10 / Rafiq. As such on the - 17 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 fateful day, the accused entered into the house of the deceased and chased her and committed her murder. Though PW-1 is a hearsay witness to the incident, the evidence of PW-1 corroborates the version of PW-2, the child witness. Nevertheless, PW-3 / Devamma being the mother of the deceased had also deposed before the Court that the accused had an ill-will with the deceased for the reason that she had an illicit affair with PW-10 / Rafiq and she also identified her signature at Exhibit P3, the complaint and also in the spot mahazar at Exhibit P1.
14. On a perusal of the cross-examination of PW-3, nothing is elicited from her mouth to disbelieve her version. PW-4 / Venkatesh, an eye-witness to the incident though partly turned hostile to the prosecution case, however, in his Chief examination, he has categorically admitted about the incident, that is the death of the deceased on the fateful day, in front of his house. Hence, on a perusal of the evidence of PW-2 / Preethi coupled with the evidence of PWs 1, 3 and 4, the act of accused, that is the commission of murder of the deceased, cannot - 18 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 be ruled out. PW-2, child witness being an eye-witness, has categorically deposed about the incident, the motive for the commission of the crime, which will not play a vital part since the case based on the evidence of eye-witness as regards which evidentiary value cannot be attached.
15. Further, the Investigating Officer / PW-22 has categorically deposed about the death of the deceased and also the investigation carried out by him by conducting the spot mahazar and recovery of MO-1, that is the chopper said to be used by accused for the commission of the crime. Though the mahazar witness as per Exhibit P7 had turned hostile, the evidence of the Investigating Officer cannot be brushed aside. Hence, the prosecution also proved the important circumstance of recovery of MO-1 / chopper, at the instance of the accused based on his voluntary statement. As discussed supra, as per the motive is concerned, the evidence of PW-2, the child witness coupled with the evidence of PW-1 and PW-3, the family members, they have clearly deposed that the accused had an ill-will towards the deceased for the reason - 19 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 that she had an illicit affair with PW-10 / Rafiq. Though the said PW-10 / Rafiq was examined, he turned hostile to the prosecution case. The learned Trial Judge rightly came to the conclusion that the conduct of the said PW-10 itself shows that he had an illicit affair with the deceased. Hence, considering the said circumstances, the prosecution also proved motive for the alleged incident though the case vests on the evidence of direct eye- witness PW-2.
16. Learned counsel alternatively contended that though the prosecution proved the homicidal death of the deceased and also the act committed by the accused, the same occurred in a spur of moment without any preparation or intention. Hence, the said act would come under the provisions of Section 300 Exception (1) of IPC, which is punishable under Section 304 Part II IPC. As such, the sentence requires to be modified by convicting the accused for the said offence.
17. On a careful perusal of the evidence on record, we are of the considered opinion that there is force in the - 20 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 submission of the learned counsel for the appellant. On a perusal of the evidence, the occurrence undoubtedly has taken place at the spur of the moment when there was a quarrel between the accused and the deceased in respect of illicit affair of the deceased with PW-10 / Rafiq. On a re-appreciation of the oral as well as the documentary evidence, it clearly indicates that the incident happened without premeditation and it cannot be said that the accused had any intention to kill the deceased with knowledge that death was likely to be caused.
18. Taking into consideration the mitigating circumstances and the sudden quarrel between the accused and the deceased, it is seen that the incident was caused in the absence of any intention. In the circumstances, the conviction has to be made under the provisions of Section 300 Exception (1) IPC, which is punishable under Section 304 Part II of IPC. The provisions of Exception (4) to Section 300, would attract the facts and circumstances of the present case, which reads thus: - 21 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 ”Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” A careful reading of the aforesaid provisions makes it clear that to invoke the said provision, four requisites must be satisfied namely, (i) it was a sudden fight; (ii) there was no premeditation; iii) act was done in a heat of passion; and iv) the assailant had not taken any undue advantage or acted in a cruel manner.
19. Admittedly, in the present case, the learned counsel for the appellant vehemently contended that the deceased was suffering from some heart ailments and initially, the Doctor has failed to give any opinion in the PM report and he gave his final opinion as per Exhibit P15. Hence, this Court has also perused the photo of the - 22 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 deceased, which clearly depicts that there are no injuries found on the body of the deceased Ratnamma. Admittedly as per the final opinion of the Doctor, the death of the deceased was due to strangulation. It is the specific case of the prosecution that the deceased was holding a sickle in his hand and chased the deceased and thereafter committed her murder. However, he committed her murder by strangulating her neck. Hence, it can be easily concluded that the accused had no such intention to commit the murder of the deceased. The entire incident occurred in the spur of the moment. At this juncture, it is relevant to refer to the dictum of the Hon’ble Supreme Court in the case of AHMED SHAH AND ANOTHER VS. STATE OF RAJASTHAN (2015)(3) SCC93 At paragraph 21, it is held as under 21. As elaborated earlier, complainant party went to the field and Sabbir Shah was armed with gun. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no - 23 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 premeditation and that the incident was the result of sudden fight. In the scuffle, other accused inflicted injuries on Rakhu Shah and PW-8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death and the act of the accused- appellants is punishable under Section 304 Part I IPC.
20. The Hon’ble Supreme Court, while considering the provision of Section 302 read with Section 34 and Section 394 read with Section 34 of the IPC and also Section 27 of the Indian Evidence Act in the case of (DIGAMBER VAISHNAV AND ANOTHER VS. STATE OF CHHATTISGARH (2019)(4) SCC522), held at Paragraphs nos.18 and 19 thus:
18. In Sujit Biswas v. State of Assam (2013) 12 SCC406 this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: - 24 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".-. 25 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh (1973) 2 SCC808.
21. The learned counsel for the appellant also vehemently contended that PW-2 / Preethi being a child witness, as held by the Apex Court in the case of DIGAMBER VAISHNAV (supra), the evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon.
22. Nevertheless, the Hon’ble Apex Court in a catena of judgments, held that the Courts should adopt a sensitive approach in dealing with the evidence of child witnesses. Hence, considering that aspect also, while - 26 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 balancing the aggravating and mitigating circumstances, the case has to be taken into consideration while imposing punishment for the accused. The Hon’ble Supreme Court in the case of STATE OF MADHYA PRADESH VS. SURESH ((2019) 14 SCC151) has held at paragraphs 13 and 14, thus: “13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the Court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.-. 27 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of.
23. The case of the prosecution entirely revolves around the evidence of PW-2 / Preethi, who is none other than the daughter of the deceased Ratnamma and she being a child witness, the evidence of the child witness has to be assessed cautiously and may require some corroboration. In case the deposition of the child witness inspires confidence in the mind of the Court and there is no improvement made therein, the Court may rely upon the same only if there is evidence on record that the said child has not been tutored. The Court has a rule of prudence to consider such evidence on close scrutiny and - 28 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 only on being convinced thereof. However, in the instant case, PW-2 who is the daughter of the deceased Ratnamma, that is Preethi, was also residing with her mother. But Ratnamma had illicit relationship with PW-10 / Rafiq but he has not supported the case of the prosecution to any extent. PWs 2 and 3 are close relatives. They are relatives and their cross-examination goes to the root of the case. Same has been proved through the evidence of PWs 4 and 5 but they have not supported the case of the prosecution. Thus the Trial Court has rendered a conviction judgment on such major discrepancy. Therefore, in this appeal, it requires intervention in respect of the offence made out by the prosecution under Section 302 IPC, and to modify the same under the provisions of Section 300 Exception (1) IPC which is punishable under Section 304 Part II IPC. If not interfered, it would result in a miscarriage of justice.
24. In the instant case, it is relevant to refer to the provision of Section 300 of the IPC and so also 299 of IPC relating to homicidal death not amounting to murder.-. 29 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 There is distinction between the two provisions of law. Section 299 relates to causing death by doing an act with the intention of causing death or with the intention of causing bodily injury as is likely to cause death. The accused had compressed Ratnamma’s neck with means of hand. Though he was holding a sickle, but he did not use that sickle to commit the murder. The same is seen from the evidence of the prosecution. It indicates that instead of Section 302 IPC for which the accused was convicted, the sentence must be reduced to Section 304 Part II of the IPC.
25. Post mortem held by the Doctor who issued the report at Exhibit P14 indicates the cause of death, which is his opinion. Keeping in view the medical evidence also, the appellant / accused cannot be convicted under Section 302 of the IPC and the offence comes under the purview of Section 304 Part II IPC only.
26. The learned counsel for the appellant submitted that the accused is having aged parents and his mother is - 30 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 suffering from paralytic attack. Further, the appellant / accused is in judicial custody since 6 years 5 months and 13 days. Taking into consideration the above mitigating circumstances and also the fact that the accused is in incarceration for a period of 6 years 5 months and 13 days and moreover, on a perusal of the oral and documentary evidence, there was no such intention or premeditation to commit the murder of the deceased and the incident occurred in view of certain provocation. In the circumstances, the impugned judgment convicting the accused for the offences punishable under the provisions of Section 302 IPC has to be modified and converted into one under Section 304 Part II IPC. Taking into consideration the gravity of the offences and the overall facts and circumstances of the case, it is appropriate to sentence the accused for the period that he has already undergone sentence, that is for a period of 6 years 5 months and 13 days, in respect of all the offences. The period of imprisonment undergone by the appellant / - 31 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 accused for all offences shall be termed as service of sentence, which would meet the ends of justice.
27. However, the sentence to pay a fine of Rs.1,00,000/- imposed by the Trial Court being exorbitant, the same is reduced to Rs.50,000/-. It is made clear that the accused shall undergo imprisonment for a period of 6 years 5 months and 13 days under Section 304 Part II IPC and sentenced to pay a fine of Rs.50,000/-. The fine amount of Rs.50,000/- shall be paid to PW-3 / Devamma, on due identification.
28. Thus, the second point raised for consideration in this appeal is answered in the negative holding that the Sessions Judge is not justified in convicting the accused for the offence punishable under Section 302 of the IPC. In view of the above, we proceed to pass the following:
29. In view of the aforesaid reasons and findings, we proceed to pass the following:
ORDERThe appeal preferred by the appellant under Section 378 of the Cr.P.C. is hereby allowed in part. Consequent - 32 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 upon allowing this appeal, the judgment of conviction and order of sentence dated 01/02.03.2017 rendered by the Court of the II Addl. District & Sessions Judge, Hassan, in S.C.No.228/2014 is hereby modified to the extent that the appellant / accused is convicted for offences punishable under Section 304 Part-II IPC instead of Section 302 IPC. In so far as conviction and sentence held against the appellant / accused as regards other offences are concerned, namely Sections 448, 323, 341 IPC, they shall be intact. However, the fine amount of Rs.1,00,000/- imposed by the Trial Court being exorbitant, the said fine amount is reduced to Rs.50,000/-. The appellant / accused shall pay the fine amount of Rs.50,000/- by way of compensation to PW-3 / Devamma who is the mother of Rathnamma. The accused is said to be in incarceration for a period of 6 years 5 months and 13 days. The said period of 6 years 5 months and 13 days for which appellant was in incarceration shall be termed a service of sentence, to - 33 - NC:
2023. KHC:20954-DB CRL.A No.762 of 2017 meet the ends of justice. As a consequence, the appellant / accused shall be released forthwith. Registry of this Court is directed to forward a copy of the operative portion of the judgment to the Superintendent of Central Jail, Mysuru where accused / Veda @ Vedaprasad is housed, with a direction to set him at liberty forthwith, if he is not required in any other case. Ordered accordingly. Sd/- JUDGE Sd/- JUDGE KS