Karnataka High Court
Yankappa vs The State Through on 10 July, 2024
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CRL.A No. 200007 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200007 OF 2020 (374)
BETWEEN:
YANKAPPA
S/O NAGAPPA GOLLAR,
AGE: 33 YEARS, OCC: COOLIE,
R/O KUDAGI, TQ. BASAVAN BAGEWADI,
DISTRICT: VIJAYAPUR - 586 101.
...APPELLANT
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
Digitally signed by
BASALINGAPPA
SHIVARAJ THE STATE THROUGH
DHUTTARGAON
VIJAYAPURA RURAL POLICE STATION,
Location: HIGH
COURT OF NOW REPRESENTED BY
KARNATAKA
ADDL. SPP HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH- 585 103.
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C, PRAYING
TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE
LEARNED I ADDL. SESSIONS JUDGE, VIJAYAPUR FOR
CONVICTING THE APPELLANT BY IT JUDGMENT DATED
29.01.2018 PASSED IN S.C.NO.122/2015, IN THE INTEREST OF
JUSTICE AND EQUITY.
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CRL.A No. 200007 of 2020
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the convicted accused directed against the judgment of conviction and order of sentence dated 29.01.2018 passed in S.C.No.122/2015 by the I Additional Sessions Judge, Vijayapura, wherein the learned Sessions Judge convicted the appellant/accused for the offences punishable under Sections 302 and 506 Part-II of IPC and sentenced him to undergo rigorous imprisonment for life till his life i.e., rest of his life and to pay fine of Rs.1,00,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine, he shall undergo simple imprisonment for a period of 6 months. The accused also directed to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.10,000/- for the offence punishable under Section 506 Part-II of IPC and in default of payment of fine, he shall undergo simple imprisonment for period of one month. It is also directed that both the sentence shall run -3- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 concurrently. However, the accused is acquitted for the offence punishable under Section 504 of IPC.
2. The factual matrix of the prosecution case in brief is that:
The accused is the husband of deceased Yallawwa and was always suspecting her fidelity and abusing her in filthy language on that point and he used to consume liquor and quarrel with her by abusing and assaulting her at Kudagi Village. Hence, a panchayat was held in the presence of elder members of the Village and they advised deceased Yallawwa to reside at her parental house for some time. Accordingly, the deceased Yallawwa was residing at Kolhar. However, the accused used to visit the house of deceased and at that time also, he used to insist her parents to send her back to his house. However, the parents of the deceased informed him that he has to mend his ways and thereafter, they will sent her back to his house. Enraged by the same, on 29.05.2015 at about 8.00 a.m., when Yallawwa was washing clothes in front of the -4- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 house of Bhimappa Gollar on cement road, the accused with an intention to commit her murder came to her house by holding butcher's knife (Sattura) and axe. Thereby, he assaulted on her face, neck and shoulder and caused grievous injuries. Due to the same, the deceased succumbed on the spot itself. The said incident was witnessed by PW.2-Shantawwa Gollar i.e., the sister of the deceased. Accordingly, she lodged the complaint before the respondent-police on 29.05.2015 as per Ex.P1 against the accused. Based on the said complaint, FIR came to be registered against the accused for the offences punishable under Sections 302, 504, 506 r/w Section 34 of IPC in Crime No.64/2015 dated 29.05.2015 by the respondent-
police. Subsequently on 30.05.2015, the respondent-police arrested the accused and based on his confessional statement, they recovered the clothes of the accused which worn at the time of the alleged incident in a mahazar under Ex.P8 as per MO.8 and MO.9.
Subsequently, PW.13-the Investigation Officer conducted the investigation and laid charge sheet against the -5- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 accused for the afore-mentioned offences before the committal Court.
3. After committal of the case before the Sessions Court, the learned Sessions Judge framed the charges against the accused for the offences punishable under Sections 302, 504, 506 Part-II of IPC and read over the same to the accused. However, the accused denied the charges and claims to be tried. In order to prove the charges levelled against the accused, the prosecution in total examined 13 witnesses as PW.1 to PW.13 so also got marked 11 documents as Exs.P1 to P11 and identified 9 material objects as MO.1 to MO.9.
4. After conclusion of the prosecution evidence, learned Sessions Judge read over the incriminating portion of the evidence of material witnesses as per the provision of Section 313 Cr.P.C. to the accused. However, the accused denied the same. The defence of the accused is of total denial and that of false implication. In order to prove -6- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 his case, he examined one witness on his behalf as DW.1, however, did not got marked any documents.
5. After assessment of the oral and documentary evidence, learned Sessions Judge convicted the accused for the offences punishable under Sections 302, 504 and 506 Part-II of IPC and sentenced him as stated supra. The said judgment is challenged under this appeal.
6. We have heard learned Amicus Curiae Sri B.C. Jaka for the appellant so also the learned Additional SPP Sri Siddaling P. Patil for the respondent-State.
7. It is the primary contention of the learned counsel for the appellant that the judgment under this appeal suffers from perversity and illegality and learned Sessions Judge failed to appreciate the evidence of material witnesses in a right perspective which caused great miscarriage to the accused. He would contend that learned Sessions Judge relied on the evidence of PWs.2, 3, 7, 8 and 9, who are the eye witnesses to the incident. On -7- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 perusal of their evidence, there are material contradictions and omissions which go to the root of the prosecution case. As such, their evidence cannot be relied to prove the charges levelled against the accused. Learned counsel would further contend that among the above witnesses, PW.2 is none other than the sister of the deceased, PW.3 is the brother-in-law of deceased and PW.6 & PW.7 are the close relatives of PW.2. As such, they are interested/partisan witnesses and without such corroborative evidence of independent witness, their evidence cannot be considered as held by this Court and the Hon'ble Apex Court in the catena of judgments. He would further contend that the prosecution also failed to prove the recovery of the material objects i.e. MO.1 and MO.2 i.e., the weapons said to have been used for commission of the crime, since the said recovery was not effected as per the law laid down by the Hon'ble Apex Court. He would further contend that the prosecution also failed to prove the motive for the alleged incident. In such circumstance, according to the learned counsel for the -8- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 appellant, the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt. Hence, the impugned judgment passed by learned Sessions Judge is liable to be set aside. Accordingly, he prays to allow the appeal.
8. Per contra, learned Additional SPP would vehemently contends that the judgment under this appeal does not suffers from any perversity or illegality and learned Sessions Judge, after meticulously examining the evidence available on record so also considering the documents placed by the prosecution, convicted the accused for the charges levelled against him in a well reasoned judgment, which does not call for any interference by this Court. He would further contend that the evidence of PW.2 i.e., the sister of the deceased, PW.3, 8 to 10, who are the eye witnesses to the incident corroborates each other and all those witnesses have categorically deposed before the Court about the assault made by the accused on the deceased with MO.1 and -9- NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 MO.2. Further, their evidence also corroborates with the medical evidence i.e., the evidence of PW.11-Doctor and the post mortem report as per Ex.P9. In such circumstance, learned Sessions Judge has rightly convicted the accused. He would further contend that as far as the motive for the commission of the incident is concerned, PWs.2, 3, 6 and 7 have deposed that the accused was addicted to bad vices and as such, he used to demand money from his wife i.e., deceased Yallawwa and for the said reason, he used to quarrel with her and harass both physically and mentally. As such, after panchayat, she used to reside at her parental house. Hence, enraged by the same, the accused committed the murder of the deceased. Further, the material witnesses have identified MO.1 and MO.2 before the Court. As such, the prosecution proved the charges levelled against the accused beyond all reasonable doubt and learned Sessions Judge has rightly convicted the accused for the charges levelled against him. Accordingly, he prays to dismiss the appeal by confirming the conviction judgment.
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9. Having heard the learned counsel for respective parties so also having perused the documents made available before us, the points that would arise for our consideration are:
(i) "Whether the judgment of conviction and order of sentence challenged under this appeal suffers from perversity and illegality? and
(ii) Whether the learned Sessions Judge is justified in convicting the appellant for the offences punishable under Sections 302 and 506 Part-II of IPC?"
10. This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the entire prosecution witnesses and the documents relied upon.
(i) PW.1-Davalasab Janesab is the then ASI of Kolhar Police Station and registered FIR in Crime No.64/2015 on 29.05.2015 against the accused for the offences punishable under Sections 302, 504, 506 Part-II
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 of IPC as per Ex.P2 based on the complaint lodged by PW.2 as per Ex.P1.
(ii) PW.2-Shantawwa Gollar, is the sister of deceased Yallawwa, lodged the complaint as per Ex.P1 against the accused. She reiterated the averments made in the complaint in her evidence and stated that, the accused is the husband of deceased Yallawwa and he was addicted to bad vices and thereby, he used to quarrel with the deceased. Later, the Panchayat was held by the village elders and they sent the deceased Yallawwa to her house and thereafter, the deceased Yallawwa staying at her house. Prior to four days from the date of incident, the accused came to their house and insisted her mother to send his wife i.e. the deceased to her matrimonial house. However, their mother advised the accused to mend his behaviour and thereafter, they will send her. Accordingly, he went away. On the date of incident, at about 8.00 a.m., when the deceased was washing clothes in front of their house in a cement road, the accused came by holding
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 Sattura-MO.1 and axe-MO.2 and started quarrel with the deceased and assaulted on her right cheek, neck and so also on her back portion. Due to the said assault, the deceased succumbed to the injuries. At that time, PW.2 cried for help and since neighbours came to the spot, the accused fled away from the spot by throwing the axe and Sattura on the spot. Subsequently, she lodged the complaint before the respondent-police as per Ex.P1. She identified MOs.1 and 2 so also the photographs of the dead body of the deceased.
(iii) PW.3-Laxman Bhimappa Gollar is the brother- in-law of the deceased Yallawwa. He also deposed about the motive for the incident as stated by PW.2. According to him, the accused used to suspect the fidelity of his wife deceased Yallawwa and for his bad vices, he used to demand money from her. Thereafter, the deceased Yallawwa was residing in the house of PW.2 and her mother. On the date of incident, at about 8.00 a.m., the accused came to the house of PW.2 and assaulted the
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 deceased with MO.1 and MO.2 and fled away from the spot. Since he is an eye witness to the incident, he also identified MO.1 and MO.2.
(iv) PW.4-Ramappa Mallappa Uppaldinni is the witness for the spot mahazar drawn as per Ex.P5 and the seizure of MO.1 to MO.4 from the spot. He is also witness for Ex.P6 i.e., the inquest Panchanama drawn on the dead body of the deceased and he identified the clothes of the deceased seized at the time of inquest Panchanama.
(v) PW.5-Chandrashekharayya Shivalingayya Hiremath is the witness for the seizure mahazar as per Ex.P7 i.e., the clothes of deceased Yallawwa at the Police Station as per MO.5 to MO.7. He is also a witness for Ex.P8 i.e., the seizure of the clothes of the deceased worn at the time of the incident in the Police Station as per MO.8 and MO.9.
(vi) PW.6-Ramappa Govindappa Gollar deposed about the strained relationship between the deceased and
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 the accused that the accused was addicted for bad vices and used to harass the deceased for money. He also stated that after the incident, he came to know that the accused murdered his wife i.e., the deceased Yallawwa.
(vii) PW.7-Parasappa Govindappa Gollar is circumstantial witness and the neighbour of the deceased. However, this witness turned hostile to the prosecution case.
(viii) PW.8-Bheemavva is another circumstantial witness, who deposed that the accused used to suspect the fidelity of his wife deceased Yallawwa and used to assault her. As such, the deceased started to reside at her parental house. On the date of incident, at about 8.00 a.m., she heard hue and cry of PW.2 and as such, she came out from the house and saw the accused assaulting twice on the neck of the deceased with Sattura i.e., MO.1. She saw the accused on the spot holding MO.1 and MO.2.
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(ix) PW.9-Gangavva is the mother of the deceased. She deposed that at the time of the incident, she was preparing food and upon hearing the hue and cry of PW.2, she came out of her house and saw that the accused was holding Sattura in his right hand and axe in his left hand and thereby, assaulted Yallawwa on right side of the neck and right shoulder and due to the same, the deceased Yallawwa succumbed to the injuries.
(x) PW.10-Gurubai is also an eyewitness to the incident. She deposed about the strained relationship of the accused and the deceased and that the deceased was staying in the house of PW.2. On the date of incident, by hearing hue and cry of PW.2, she came out from the house and at that time, the accused was assaulting the deceased with axe and Sattura 3 to 4 times. Due to the same, the deceased died on the spot.
(xi) PW.11-the Medical Officer conducted the autopsy over the dead body of the deceased and issued post- mortem report as per Ex.P9.
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(xii) PW.12-Bhimanagowda Biradar is an Assistant Engineer, PWD, who drawn the spot sketch as per Ex.P10.
(xiii) PW.13-Chandrakanth Nandareddy is CPI of Bagewadi Circle, who conducted investigation in this case and laid charge sheet against the accused before the committal Court.
(xiv) DW.1-Bheemawwa Nagappa Gollara is the mother of accused in this case. According to her, after the marriage of the accused with the deceased Yallawwa, they both are residing very cordially and they never used to quarrel with each other. On the date of incident, the accused was along with her at Kudagi.
11. On careful perusal of the above evidence adduced by the prosecution, in order to prove the homicidal death of the deceased, the prosecution relied on the evidence of PW.11-the Doctor, who conducted autopsy over the dead body and the post-mortem report issued by him as per Ex.P9. Nevertheless, the prosecution also relied
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 on the inquest panchanama drawn on the dead body by the Investigation Officer as per Ex.P6. PW.4 is the witness for Ex.P6. On perusal of Ex.P9, PW.11-the Doctor opined that the death was caused due to 'hemorrhagic & neurological shock' as a result of neck injuries sustained'. The postmortem report also depicts that the deceased sustained injuries on her head and neck. Ex.P6-inquest panchanama also reveals those injuries sustained by the deceased. Hence, a conjoint reading of Ex.P11-the post mortem report and Ex.P4-the inquest panchanama together with the evidence of PW.11, PW.4 and PW.13- Investigation Officer, we are of the considered view that the prosecution has proved the homicidal death of deceased Yallawwa. Nevertheless, the accused also not seriously disputed the homicidal death of deceased Yallawwa.
12. In order to connect the accused to the homicidal death of the deceased, the prosecution relied on the evidence of PW.2, PW.3, PW.8, PW.9 and PW.10. On
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 careful perusal of the evidence of these witnesses, PW.2 and PW.10 are own sisters of the deceased Yallawwa. PW.9 is the mother of deceased Yallawwa. The evidence of PW.2 clearly corroborates with the complaint lodged by her, soon after the incident as per Ex.P2. PW.2 and PW.3 categorically deposed before the Court that the accused, after his marriage with the deceased, used to ill-treat the deceased and used to suspect her fidelity. Due to his bad vices, he used to demand money from her. Hence, the panchayat was held and with the intervention of the elders of the village in the said panchayat, the deceased was sent to the house of PW.2. Thereafter, she started to reside at her parental house. Four days prior to the incident, the accused visited her house and insisted PW.2 and her mother to send the deceased to his house. However, they advised him properly and sent back. Thereafter, on the date of incident, the accused came by holding Sattura and axe and assaulted the deceased while she was washing clothes in front of her house in cement road and
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 committed the murder of the deceased. Both these witnesses have identified MO.1 and MO.2 before the Court.
13. Learned counsel for the accused vehemently contends that there are contradictions in the evidence of PW.2 and PW.3, who are the eyewitnesses to the incident and as such, their version cannot be believable. The Hon'ble Apex Court in the case of Mallikarjuna and Others vs. State of Karnataka reported in 2019 (8) SCC 359 held that, while appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the Court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eyewitness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness.
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14. While applying the findings of the Hon'ble Apex Court in the above case to evaluate the evidence of PW.2 and PW.3, we find no such major discrepancy in their evidence to discard their evidence. Per contra, they both consistently deposed that the accused assaulted the deceased with M.Os.1 and 2 and committed her murder. Hence, the evidence of PWs.2 and 3 are trustworthy to believe.
15. The learned counsel for the accused also contend that PWs.2 and 3 are the family members as such they are the partisan witness and their evidence cannot be relied. On careful perusal of their evidence, they clearly deposed about the assault made by the accused on the deceased as per the contents of Ex.P1. The Hon'ble Apex Court in the case of Ravasahebgouda Alias Ravasahebgouda v. State of Karnataka reported in (2023) 5 SCC 391, held that the evidence of sole related eyewitness can be basis for conviction, particularly when there is no vagueness in his/her testimony with respect to
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 the act committed by the accused. The Hon'ble Apex Court in Para No.17 of the said judgment held as under:
"17. It is clear that it is the quality and not the quantity of the witnesses that matters. Further in Paragraph No.25 of the said judgment, it is stated that "a witness being a close relative is not a ground enough to reject his/her testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of the general applications".
16. Hence, applying the principle laid down by the Hon'ble Apex Court in the above judgment to the evidence of PW.2 and PW.3, we find no good reason to discard their testimony.
17. Nevertheless, the evidence of PW.2 and PW.3 corroborates with the evidence of PW.8, 9 and 10. Among these 3 witnesses, PW.10 is the eyewitness to the incident. She deposed that she being the neighbour of PW.2 residing in front of her house, on the date of incident at about 8.00 a.m., after hearing hue and cry of PW.2, she
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 came out from her house and at that time, she saw the accused assaulting the deceased with axe and Sattura. At that time, PW.2 was making an attempt to rescue the deceased. However, the accused also threatened her with dire consequence that he would also finish her and thereafter, the accused fled away from the spot by throwing MO.1 and MO.2 on the spot. Due to the same, the deceased succumbed to the injuries. This evidence of PW.10 once again corroborates with the evidence of PW.2 and PW.3.
18. Further, on perusal of the evidence of PW.8, who is the neighbour and PW.9, who is the mother of the deceased, they deposed that based on the hue and cry of PW.2, they visited the spot and at that time, the accused was already committed the murder of deceased by assaulting with MO.1 and MO.2 and he was standing in the spot by holding MO.1 and MO.2 on both his hands. PW.2 informed them about the incident that the accused has committed the murder of his wife. Hence, though these
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 two witnesses were not an eyewitnesses to the actual incident, but they visited the spot immediately after the incident and saw the accused in the seen of occurrence by holding weapons which were used for the commission of crime. Their evidence has to be attached evidentiary value as that of eyewitness and they have to be treated as res gestae witnesses as per the law laid down by the Hon'ble Apex Court in the case of Balu Sudam Khalde and Another v. State of Maharashtra reported in 2023 SCC OnLine SC 355 in Paragraph Nos.47, 48 and 49 held as under:
"47. The reason for referring to the aforesaid a piece of evidence is that the PW 3 Nasir Rajjak Khan (Exh. 10) could be termed as a res gestae witness. This principle of res gestae is embodied in Section 6 of the Act 1872:
"6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place."
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48. In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507, this Court noticed the position of law with regard to Sections 6 & 7 resply of the Act 1872 thus:--
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus:--
"Under the present exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued."
7. Sarkar on Evidence (Fifteenth Edition) summaries the law relating to applicability of Section 6 of the Act 1872 thus:--
"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot, the declarations of all concerned in the common object are admissible.
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4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."
49. The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence".
19. Hence, a conjoint reading of the evidence of PW.2, PW.3 and PW.10, who are the eyewitness to the incident, with the evidence of PW.8 and PW.9, who are res gestae witnesses, there is no reason to disbelieve their testimonies. All these witnesses have categorically deposed that the accused is the perpetrator of the crime. All of them identified MO.1 and MO.2 before the Court. Their evidence also corroborates with the evidence of PW.11-the Medical Officer, who conducted the post- mortem as stated supra. He stated that the death is due
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 to 'hemorrhagic & neurological shock as a result of neck injuries sustained'. The post-mortem report also depicts the injuries on the neck of the deceased. He also opined that the injuries found on the dead body of the deceased could be caused if assault made by MO.1 and MO.2. In such circumstance, the oral testimony of PW.2, PW.3 and PW.10 corroborates with the medical evidence of PW.11 and the post-mortem report as per Ex.P9. The prosecution also proved the recovery of MO.1 and MO.2 seized under Ex.P5-Spot Mahazar. PW.4, who is the witness, deposed that he was present at the time of seizure of MO.1 to MO.4 by PW.13 under Ex.P5. In such circumstance, the prosecution also proved the recovery of weapons used for the commission of the crime by the accused.
20. This case is based on the evidence of direct eyewitness and the motive does not play vital role to prove the guilt of the accused. Nevertheless, the prosecution also proved the motive for the commission of the crime by the evidence of PW.2 to PW.7. All these
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 witnesses have categorically deposed about the strained relationship of the accused and the deceased. They have stated that the accused used to suspect the fidelity of the deceased and thereby, used to assault her and due to the same, she used to reside at her parental house and enraged by the same, the accused committed this incident. Hence, the prosecution also proved the motive for the commission of the crime. Though the accused examined DW.1 to by pleading a defence of alibi, however he miserably failed to prove the same by placing any cogent evidence except the oral say of DW.1.
21. On overall examination of the evidence of the above witnesses, we are of the considered view that the learned Sessions Judge, after meticulously examining the evidence available on record, passed the judgment of conviction and sentence, which does not call for any interference by this Court.
22. In this case, the Sessions Court imposed the sentence to the accused for the offence punishable under
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 Section 302 of IPC imprisonment till the rest of the life of the accused.
23. The Hon'ble Apex Court in the case of Shiva Kumar v. State of Karnataka reported in (2023) 9 SCC 817 held in Paragraph Nos.10 and 11 are as under:
"10. While answering the question, the Constitution Bench (majority view) in V. Sriharan [Union of India v. V. Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695] held that imprisonment for life in terms of Section 53 read with Section 45IPC means imprisonment for the rest of the life of the convict. In such a case, right to claim remission, commutation, etc. in accordance with law will always be available. Thereafter, in para 105, the Constitution Bench held thus : (V. Sriharan case [Union of India v. V. Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695] , SCC p. 102) "105. We, therefore, reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court."
11. What is held by the Constitution Bench in V. Sriharan [Union of India v. V. Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695] , cannot be construed in a narrow perspective. The Constitution Bench has held that there is a power which can be derived from IPC to impose a fixed-term sentence or modified punishment which can only be exercised by the High Court or in the event of any further appeal, by the Supreme Court and not by any other court in this country. In addition, the Constitution Bench held that power to impose a modified punishment of providing any specific term of incarceration or till the end of convict's life as an alternative to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court".
24. Hence, the sentence imposed by the trial Court requires to be modified for the offence punishable under Section 302 of IPC.
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020
25. In that view of the matter, we answer point No.1 in the negative and point No.2 in the partly affirmative and proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The judgment of conviction dated 29.01.2018 passed by the I Addl.
Sessions Court, Vijayapura in S.C.No.122/2015 is confirmed, however, the sentence imposed by the Sessions Court for the offence punishable under Section 302 of IPC is modified.
iii. The appellant is hereby directed to undergo life imprisonment and to pay fine of Rs.1,00,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine, the appellant shall undergo simple imprisonment for a further period of six months instead rigorous imprisonment till his life as sentenced by the learned Sessions Judge.
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NC: 2024:KHC-K:4861-DB CRL.A No. 200007 of 2020 iv. Further, the appellant is directed to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/- for the offence punishable under Section 506 Part-II of IPC and in default of payment of fine, the appellant shall undergo simple imprisonment for a further period of one month.
v. Both the substantive sentence shall run concurrently.
vi. The High Court Legal Services Authority is directed to pay a sum of Rs.25,000/- to the learned counsel Sri.B.C.Jaka, who was appointed as Amicus Curiae for appellant in this appeal vide order dated 26.09.2022.
Sd/-
JUDGE Sd/-
JUDGE HKV List No.: 1 Sl No.: 1 CT;BN