Karnataka High Court
Kemparaju vs The State Of Karnataka on 7 January, 2013
Bench: K.L.Manjunath, L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF JANUARY 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
CRIMINAL APPEAL NO.519 OF 2008 (C)
Between:
Kemparaju
S/o Late Basavaiah
Aged about 35 years
R/o Shivakalli Village
Yelandur Taluk
Chamarajanagar District
...Appellant
(by Mrs. N. Rajarajeshwari, Advocate)
And:
The State of Karnataka
Through the Mumballi Police
Yelandur Taluk
District: Chamarajanagar
Represented by the
State Public Prosecutor
Office of the Advocate General
High Court Building
Bangalore - 560 001
...Respondent
(by Sri Sampangiramaiah, HCGP)
2
This appeal is filed under Section 374(2) of Cr.PC praying
to set aside the judgment and order of conviction and sentence
dated 13/14.11.2007 in SC NO.80 of 2006 on the file of the
Sessions Judge and Presiding Officer, Fast Track Court,
Chamarajanagar convicting the appellant for the offence
punishable under 498-A, 304B and 302 of IPC and Sections 3
and 4 of the Dowry Prohibition Act and sentencing him to
undergo rigorous imprisonment for a period of six years for
offence p/u/s 304B IPC and further sentencing him to rigorous
imprisonment for life and also liable to pay fine of Rs.10,000/-
and in default to undergo simple imprisonment for one year for
the offence p/u/s 302 IPC and further sentencing him to undergo
rigorous imprisonment for six months and also liable to pay file
of Rs.5,000/- in default to pay the fine shall undergo simple
imprisonment for three months for the offence p/7u/s 3 of
Dowry Prohibition Act and further sentencing him to undego
rigorous imprisonment for six months and also liable to pay fine
of Rs.10,000/- in default to pay fine he shall further undergo
simple imprisonment for 3 months for the offence p/u/s 4 of
Dowry Prohibition Act; and etc.
This appeal coming on for hearing, this day, K.L.
Manjunath J., delivered the following:
JUDGMENT
The appellant is questioning the legality and correctness of the judgment of conviction and order of sentence dated 13th November 2007 passed by the Sessions Judge and Presiding Officer Fast Track Court, Chamarajanagar in SC No.80 of 2006, whereunder he has been convicted for the offences punishable under Section 304B and 302 of the Indian Penal code and Sections 3 and 4 of the Dowry Prohibition Act and he has been 3 sentenced to undergo rigorous imprisonment for six years for the offence punishable under Section 304-B of the Indian Penal Code; to undergo rigorous imprisonment of life and to pay a fine of Rs.10,000/- under Section 302 of the Indian Penal Code, in default to pay the fine, to undergo simple imprisonment for a period of one year; to undergo rigorous imprisonment for six months and to pay fine of Rs.5,000/-, in default to pay fine he shall further undergo simple imprisonment for three months for the offence punishable under section 3 of the Dowry Prohibition Act; further to undergo rigorous imprisonment for six months and to pay fine of Rs.10,000/-, in default to pay the fine, to undergo simple imprisonment for three months for the offence punishable under Section 4 of the Dowry Prohibition Act.
2. Accused No.1-the appellant herein, along with his mother-Puttamadamma Accused No.2, were tried for offences punishable under Section 498-A, 302 304B and 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, pursuant to a complaint lodged by PW7-Girimallaiah, the father of the deceased Parvathi. Case was registered by PW18- 4 D.Somanna, PSI of Yelandur Police Station in Crime No.22 of 2006; First Information Report was sent by him as per Exhibit P20 to JMFC Yelandur; and the case was investigated by Corps of Detectives through PW21-K.B.Swamy Kumar since the deceased died within seven years from the date of her marriage. It is the case of the prosecution that PW7-Girimalliah is having four daughters and deceased Paravati, was his third daughter, and was given in marriage to the Accused No.1-Kemparaju of Shivakalli village three years prior to the date of the incident. According to him, before Parvathi was given in marriage to the accused No.1, he had already marriage and had three children through his first wife and the marriage of his daughter was solmenised with the accused No.1 three months after the death of the first wife. At the time of marriage, there was a demand of dowry and the same was satisfied in part. The deceased and accused No.1 lived together happily for a period of three years and at the time of marriage a sum of Rs.5,000/- was given in cash apart from a gold ring and a pair of clothes. He had agreed to pay the balance dowry of Rs.20,000/-. Few months after the marriage accused No.1 started demanding the deceased Parvathi 5 to get the balance dowry of Rs.20,000/-. As he could not satisfy the demand made by accused No.1, at about 9.30p.m on 8th May 2006, accused No.1 and her mother-accused No.2, with a common intention to commit the murder of Parvathi, assaulted her with MO2-steel pot and thereafter caused her death due to smothering by using MO1-pillow. The death of Parvathi was intimated to PW7-Girimallaiah by his elder daughter PW10- Geetha and thereafter he came to the village of accused No.1 and approached Station House Officer, Mamballi Police. Accordingly, the complaint was lodged by him at about 10.45 a.m. on 9th May 2006. Pursuant to the complaint lodged by PW7-Girimalliah, case was registered in Crime No.22 of 2006, spot mahazar was conducted as per Exhibit-P9 by Tahsildar, Yelandur and post-mortem was conducted by PW1-Dr. Kasthuri M.R. as per Exhibit-P1 and after the post-mortem the dead body was handed over to the parents of the deceased. MO1-pillow and MO2-steel pot were seized along with the clothes of the deceased and were sent to Forensic Science Laboratory for chemical examination and report of the Forensic Science 6 Laboratory was secured as per Exhibits P29 and P30 and Serology report Exhibit P31.
3. Accused No.1 was arrested and was in judicial custody till the date of judgment and now serving the sentence. Accused No.2-Puttamadamma was acquitted and she was on bail. The accused denied the charges leveled against them and claim to be tried. To prove the case of the prosecution, the prosecution relied upon the evidence of PWs.1-21 and Exhibits P1-32, MOs.1
-8. Statement was recorded under Section 313 and both the accused denied the incriminating evidence let in by the prosecution. Since there was no defence evidence, the learned Sessions Judge, after considering the arguments advised by both the parties, formulated the following points for his consideration:
1) Whether the prosecution proves beyond all reasonable doubt that accused No.1 Kemparaju being the husband of the deceased, accused No.2 Puttamadamma being the mother-in-law of the deceased Parvathi @ Saraswathi, A1 having married her 3 years prior to the date of her death at Elepillari temple. At the time of marriage they demanded Rs.25,000/- and received Rs.5,000/- being the part of the dowry, after the marriage she started residing at Shivakalli village, Yalandur Taluk. Accused No.1 being the husband of the deceased and accused No.2 being the mother-in-law of the deceased with a view to coercing her or any personnel related to her to meet the unlawful 7 demand and subjected the said Parvathi @ Saraswathi to the cruclty and thereby committed the offence punishable U/S 498-A IPC?
2) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 being the husband and accused No.2 being the mother in law of the deceased Parvathi harassed her, coerced her to bring dowry and when she failed to bring the dowry the accused in furtherance of common intention on 9-5-2006 at about 7.00 p.m. killed her. The death of said Parvathi is caused by any bodily injury or occurred otherwise than normal circumstances within 7 years of her marriage and it is shown that soon before her death she was subjected to cruclty or harassment by accused in connection with the demand of dowry and thereby both the accused have committed the offence punishable U/S 304-B r/w 34 IPC?
3) Whether the prosecution further proves beyond all reasonable doubt that accused in furtherance of their common intention on 9-5-2006 at 7.00 p.m. at Shivakalli village in the house of accused No.1 committed the murder intentionally and caused the death of said Parvathi and thereby committed an offence punishable U/S 302 r/w 34 IPC?
4) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 being the husband and accused No.2 being the mother-in-law of the deceased at the time of marriage demanded the dowry of Rs.25,000/- case and gold ring and accepted Rs.5,000/- from her parents as dowry and thereby committed an offence punishable U/S 3 of the Dowry Prohibition Act?
5) Whether the prosecution further proves beyond all reasonable doubt that accused No.1 being the husband and accused No.2 being the mother-in-law of the deceased, after the marriage forced the deceased and her parents to bring remaining amount of Rs.20,000/- and 8 harassed the deceased and thereby committed an offence punishable U/S 4 of the Dowry Prohibition Act?
6) What Order?
4. After hearing the arguments of the learned Public Prosecutor and the defence counsel and considering the entire evidence let in by the prosecution, held point No.1 in the affirmative and points No.2 to 5 against accused No.1 and accused No.1 was convicted and sentenced as aforesaid and accused No.2 was acquitted. Aggrieved by the Judgement of conviction and order of sentence, the present appeal is by accused No.1.
5. We have heard Smt. Rajarajeshwari the learned counsel for the appellant and Sri Sampangiramaiah, the learned High Court Government Pleader for the State.
6. It is the specific case of the appellant that the Trial Court did not appreciate the evidence let in by the prosecution and without considering the evidence let in by the prosecution properly the Trial Court has wrongly convicted the appellant. According to her, the prosecution has failed to prove that there 9 was a demand by the appellant for payment of dowry either at the time of his marriage or after the marriage. According to her, without considering the evidence of PW7-Girimallaiah, the complainant-father of the deceased, PW8-Shivamallamma the mother of the deceased and PW9-Mahadevamma grandmother of the deceased who celebrated the marriage, and PW10- Geetha, the elder sister of the deceased, has wrongly come to the conclusion that there was a demand made by the accused to pay the dowry. According to her, PWs.7-10 have categorically admitted, as to what was paid at the time of marriage was only a customary gift like a gold ring, pair of clothes and what were given to the deceased was only a saree, ear-stud, along with hanging and a gold chain. The learned counsel further contends that PW7-Girimallaiah has admitted that he is doing a coolie work having four daughters and that he was unable to meet the marriage expenses and therefore the marriage of the deceased was celebrated by PW9-Mahadevamma the maternal grandmother of the deceased in a temple. According to PW7- Girimallaiah, the appellant is having irrigated lands and was living with deceased happily and therefore she contends that 10 even though the prosecution has failed to prove the ingredients of Sections 3 and 4 of the Dowry Prohibition Act, the Sessions Judge has wrongly convicted the appellant. She further contends that even though there is no corroboration in the evidence let in by the prosecution, the Trial Court has wrongly convicted the appellant for the offence punishable under Sections 304-B and 302 IPC. According to her, it is the case of the prosecution that at the first instance the appellant assaulted the deceased with MO2-steel pot and thereafter with MO1-pillow he smothered the deceased as a result of which the deceased died due to asphyxia. Though PW1-Dr. Kasthuri M.R. has stated that the deceased died due to smothering, evidence of PWs.11- 14 is contrary to the medical evidence. She submits that PWs.11-14 are the residents of the same village. At about 9.30 p.m. they heard a sound from the house of the appellant and the deceased Parvathi was crying requesting the appellant not to assault her. When they entered the house of the appellant, the appellant was not at home and accused No.2 was present alongwith Basamma the elder sister of the appellant. The elder sister of the appellant was holding the child of the deceased in 11 her hand, Parvathi was lying on the floor of the house and blood was oozing out from her ear and nose and she was alive. Later water was given to her and the elder brother of the appellant Lingaraju was making an attempt to get a car to shift Parvathi to hospital for treatment and in the meanwhile she died. If this piece of evidence is accepted, the medical evidence of PW1-Dr. Kasthuri M.R. has to be negatived because the Doctor, in her evidence has clearly admitted that in case of smothering, blood will come out of the mouth and if MO1-pillow had been used for smothering blood stain of the deceased shall found on MO1- pillow. But there was no blood stain on MO1-pillow. The Doctor has also deposed that in case of smothering, normally, deceased would have passed urine and stools. In the instant case, there was no discharge of urine or stools by the deceased. The Doctor, in her cross-examination, further stated that at the time of post-mortem MO1-pillow was lying next to the body of the deceased and MO2-steel pot was not found therein and there was no difficulty for PW1-Dr. Kasthuri M.R. to state in the report that the deceased died due to smothering by using MO1-pillow. She has also admitted in the cross-examination that if an assault 12 is made on the deceased through MO2-steel pot, there is no possibility of causing death out of such injury. Therefore, the learned counsel for the appellant submits that there is conflict between the medical evidence and the evidence of PWs.11-14, who have deposed before the Court that when they rushed into the house of the appellant, the deceased had sustained injuries to her face and blood was oozing from her ear and mouth and that she was alive and they gave water to her. According to PW1-Dr. Kasthuri M.R., if it is the case of smothering, she would have died immediately. This would falsify the medical evidence in view of the direct evidence of PWs.11-14. She further submits that PW7-Girimallaiah has admitted in his cross- examination that he received the telephone message from PW10-Geetha his elder daughter about the death of deceased on the morning of 9th May 2006 at about 7.30 a.m. and thereafter he rushed to Shivakalli and went to the house of appellant and saw the dead body of his daughter lying as per photograph Exhibit P23 and Accused No.2 was present by that time the police were at the spot. But, PW18-D.Somanna, PSI attached to Mamballi Police Station has deposed that he received a 13 complaint from PW7-Girimallaiah as per Exhibit P7 at about 10.45 a.m. on 9th May 2006 at Mamballi Police Station and after receipt of written complaint from PW7-Girimallaiah Exhibit P7, case was registered and then he proceeded to the spot. If the evidence of PW18-D.Somanna is accepted, then the evidence of PW7-Girimallaiah that when he went to the spot on the morning of 9th May 2006 at Shivkalli, the police had already arrived cannot be believed. Therefore, it gives doubt as to why the police did not take cognizance even before PW7-Girimallaiah lodged complaint as per Exhibit P7 when police were at the spot before PW7 reached.
7. The learned counsel for the appellant relying upon the judgment in the case of SHIVAPPA AND OTHERS v. STATE OF KARNATAKA reported in ILR 1979 KAR 2358 and contends that Exhibit P7 is hit by Section 162 of Code of Criminal Procedure and the same cannot be treated as First Information Report. Lastly, she contends that even if the case of the prosecution is accepted that the appellant had assaulted the deceased using MO2-steel pot, by looking into the evidence of PWs.11-14 that at 14 the time of the incident the appellant had consumed liquor and when the appellant's mother questioned why he came home late at 9.30, there was verbal exchange between him and his mother and he demanded his wife deceased Parvathi to get a glass of water and MO2-steel pot was brought by her. In a provocation the appellant assaulted the deceased not with any intention to commit murder of the deceased and neither there was preparation to commit murder nor intention and in such circumstances, if on account of the injuries sustained by the deceased and on account of which if she dies, the same cannot be treated as an offence punishable under Section 302 IPC and at best it could be considered as an offence under 304 Part-1 IPC. Accordingly, she requests the Court to allow the appeal or to reduce the sentence by bringing the offence from 302 to 304 Part-1 IPC.
8. Shri Sampangiramaiah, the learned High Court Government Pleader, contends that the Sessions Judge has scrutinized the evidence and based on proper appreciation of evidence let in by the prosecution, has rightly come to the 15 conclusion that the prosecution has proved its case beyond all reasonable doubt and that the appeal filed by the appellant has to be dismissed. According to him, the evidence of PWs.11-14 clearly prove that the prosecution has proved its case since the evidence of PWs.11-14 is not challenged seriously. According to him, even if it is held that there was no demand for dowry by the appellant, the appellant cannot be permitted to contend that he did not commit murder of his wife by using MO1-pillow and MO2- steel pot. Therefore, he requests this Court to dismiss the appeal.
9. Having heard the learned counsel for the parties, the following questions would arise for consideration in this appeal:
1. Whether the appreciation of evidence by the Sessions Court is just and proper?
2. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt? and
3. Whether the judgment of conviction and order of sentence has to be set aside or modified?16
10. It is not disputed by the learned counsel for the appellant that the death of Parvathi is homicidal one. It is proved by the prosecution that the death of Paravathi is homicidal one. But the only question is whether the prosecution has proved that it is the appellant who had committed the murder of his wife being not satisfied by non-payment of balance dowry of Rs.20,000/- or not; and whether the appellant can be connected with the murder of his wife. The prosecution has registered the case based on the complaint lodged on PW7- Girimallaiah, Exhibit P8. Complaint-Exhibit P8 is lodged by PW7- Girimallaiah at about 10.45 a.m. on 9th May 2006. It is registered by PW18-D.Domanna, PSI of Mamballi Police Station. According to Exhibit P8, the complainant's third daughter Parvathi was given in marriage to the appellant three years prior to the date of the incident and the marriage was celebrated at the cost of PW8-Shivamallamma, the mother-in-law of the complainant and the grand-mother of the deceased. Prior to the marriage, a sum of Rs.5,000/- was paid in cash a gold ring and one pair of cloth was given to the appellant. According to him, there was a demand of Rs.25,000/- one gold ring and one pair of 17 cloth and they agreed to give balance amount of Rs.20,000/- after marriage. The marriage was celebrated at Ele-Pillari temple and thereafter the appellant was demanding for the balance amount of Rs.20,000/- and that he was sending the deceased to her parents house to bring the balance dowry. It is also stated that prior to the marriage of his daughter, the appellant had married earlier and out of that marriage he had three children and that his first wife had died and out of the marriage with the deceased, she has a daughter and that he received the message at about 7.00 a.m. about the death of his daughter Paravthi, through his second daughter Geetha. Therefore, he lodged a complaint stating that the appellant committed murder of his daughter on account of non-fulfillment of dowry of Rs.20,000/-. To prove the case of the prosecution, the prosecution has mainly relied upon the evidence of PW7- Girimallaiah, the complainant. The Complainant, in his cross- examination has admitted that he had not lodged the complaint earlier about the alleged demand of dowry. According to PW7- Girimallaiah, his daughter used to inform him about the demand made by her husband for the balance dowry through phone. But 18 in the cross-examination, he has admitted that either in the house of the appellant or in his house, there is no phone facility. He has further admitted that he is only a coolie. In paragraph 37 of the cross-examination, he has admitted that he came to the house of the appellant at Shivakalli at about 9.10 a.m. on 9th May 2006 and by that time the Mamballi Police were already there. He has further stated that he does not know whether the villagers had already lodged a complaint with the police. In paragraph 38 of the cross-examination, he has stated that he lodged the complaint as per Exhibit P8, and that when he went to Mamballi Police it was 12.00 noon. He has also admitted that he is having four children and he is a very poor man and therefore the marriages of all the daughters were c celebrated by PW8-Shivamallamma his mother-in-law. From the above evidence it is clear that at the first instance before he could reach the place of the incident at about 9.10 a.m. on the morning of 9th May 2006, Mamballi Police were already there. When Mamballi Police had already arrived to the scene of occurrence before PW7-Girimallaiah had arrived, it was for the police to take cognizance of the offence and register an FIR 19 based on the information they collected. But unfortunately in the present case, the police have not taken cognizance, of which, all the investigation has proceeded based on Exhibit P8, which is said to have been registered at about 10.45 a.m. on 9th May 2006. Therefore, Exhibit P8 cannot be treated as an FIR. This Court had occasion to consider the effect of such complaint in the case of SHIVAPPA AND OTHERS (supra), wherein it is stated that it is hit under Section 162 CrPC. If Exhibit P8 cannot be considered as FIR, any investigation pursuant thereon, cannot be treated as a proper investigation and cannot be considered as complaint. At best it can be considered as statement to be recorded under Section 161 CrPC.
11. Be that as it may, it is for us to consider the evidence let in by the prosecution in detail, either to confirm the order of conviction or reverse the same. PW8-Shivamallamma is the mother-in-law of PW7-Girimallaiah and the grandmother of the deceased. In paragraph 26 of her evidence, she has stated that at the time of marriage, it is customary in their caste to give gift and cloth. She has further stated that on their own, the same 20 were given to the appellant as it has been given in marriage to other children of PW7-Girimallaiah. She has also stated that even the marriage invitation cards were not printed because the appellant insisted that there is no necessity to print invitation cards and he would be satisfied if the deceased is given in marriage to him. Accordingly, the marriage was celebrated at Ele-Pillari temple. In paragraph 37, she has further stated that she does not know how his grand-daughter Parvathi died and one Mariswamy informed that she has been murdered. PW9- Mahadevamma is the mother of the deceased. She has also stated that after the marriage, his daughter deceased Parvathi lived separately for a period of three months with the appellant. In her cross-examination, she has admitted that before the marriage, the appellant had disclosed about the death of his first wife and he having three children and she has further admitted that because of their poverty, her daughter was given in marriage to the appellant. She has also admitted that the appellant requested them not to print marriage invitation cards and not to spend much money on the marriage and that he would be satisfied if the marriage is celebrated in a temple and 21 accordingly, marriage was celebrated in the temple. PW10- Geetha is the elder sister of the deceased. She has deposed that the appellant and deceased were living cordially and for the first time she has deposed that the appellant was suspecting the fidelity of the deceased. But it is not the case of the prosecution that the appellant was ill-treating the deceased by doubting the conduct and character of the deceased. It is the PW10-Geetha, who has only stated as if the appellant was suspecting the fidelity of the deceased. She has admitted in her cross- examination that she does not know personally with regard to dowry demand by the appellant. She has admitted that the appellant is having irrigated lands. When she visited the scene of occurrence, the dead body of her sister was lying in the hall and even the mat was also blood-stained. The remaining witnesses are the villagers of Shivakalli, PW.11 is one Lakshmamma. She has not supported the case of prosecution. She has admitted that when she went to the house of the appellant she saw that Parvathi was alive and that her eyes, nose and mouth were bleeding. She has stated that she has not seen the incident personally. Her house and house of the 22 appellant are in different street and she cannot be treated as neighbour. She has also admitted that she has not given any statement before the Police. PW12 is one Rangaswamy. He is the neighbour of the appellant. According to him, he heard a sound from the house of the appellant. Therefore, he rushed to the house of the appellant and by that time the people were there, Parvathi was lying on the floor and her nose and mouth was bleeding and immediately he gave water to the deceased and informed the same to the appellant's elder brother-Nanjunda and when he went there Parvathi was alive and Nanjunda made efforts to shift her to hospital in a car and in the meanwhile she died. PW13 is one Lingaraju, who is a social-worker from the same village. Though he was eye-witness, he has not supported the case of the prosecution. PW14-Nanjaiah, who is also a resident of Shivakalli is not an eye-witness. When he to the scene of occurrence the incident had already taken place. PW15 is Mahadevaiah, has deposed before the Court stating that he went to the scene of occurrence along with PW12-Rangaswamy and Narayana and Nanjunda and when he went to the house of the appellant, Parvathi was lying on the floor of the hall and she 23 was bleeding through her mouth and the second accused, the mother of the appellant-Puttamadamma was sitting near the head of the deceased and even the floor was blood stained. Fifteen minutes thereafter Parvathi died. According to him, he heard the people saying that the appellant assaulted and committed murder. In the cross-examination he has admitted that he has not stated before the police about the floor of the appellant's house was blood-stained and he further admitted that he does not know how Parvathi died.
12. Apart from these witnesses, we have the evidence of PW1-Dr.Kasthuri M.R., who conducted autopsy of the deceased. The appellant's counsel, in detail, has brought to the notice of the court about the deposition of PW1-Dr.Kasthuri M.R. In the cross-examination, she has clearly admitted that incase of smothering, there shall be discharge of urine and stools, but such a thing is not found in the autopsy report. She has also admitted in the cross-examination that the reasoning for her to come to the conclusion that the deceased died due to smothering and asphyxia, was because of the nature of injuries 24 found on the face of the deceased. In paragraph 11 of the cross-examination, she has admitted that in case of smothering a person would die immediately. She has also deposed in the cross-examination that MO1-pillow was lying next to the dead body and MO2-steel pot was not found. If it is the case of smothering, the blood stains shall be found on MO1-pillow, but no such blood stains were there on MO1-pillow. She has further deposed that there was no difficulty for her to state in autopsy report that by using MO1-pillow, Parvathi was murdered. In paragraph 19 of the cross-examination, she has also stated that had the deceased been assaulted with MO2-steel pot, there was possibility of tearing of skin of the jaw. But no such injuries were found. From the above evidence it is clear that medical evidence is contrary to the evidence of PW12-Rangaswamy, PW11-Lakshmamma and others, because PW12-Rangaswamy has deposed that the deceased was alive when he went to the spot and water was given to her by him and fifteen minutes later she died and that accused No.1 was not present. If this piece of evidence is accepted, we cannot accept the post-mortem report and medical evidence and it is not possible for the Court to 25 accept that the deceased died due to smothering and asphyxia, because of eye-witness of PWs.11-14.
13. Though such contradictions are there in the evidence let in by the prosecution, in spite of there being no corroboration in the deposition of the witnesses of the prosecution, the learned Sessions Judge without examining these points has come to the conclusion that the deceased died due to smothering and asphyxia and connected the accused with the death of the deceased, which according to us, the appreciation of evidence by the learned Sessions Judge is erroneous and perverse and liable to be set aside and reversed.
14. The fact remains that the prosecution evidence show the presence of Accused No.1 and Accused No.2 when the incident took place. The prosecution has also proved that the deceased had sustained injuries on her face and that she was bleeding through her ears, nose and mouth and this could be possible because of the assault made by using MO2-steel pot. When presence of accused No.2 is not in dispute, there was no difficulty for accused No.2 to explain as to how Parvathi died 26 while giving 313 statement. For the reasons best known to the appellant and his mother, who is arraigned as accused No.2, have not explained the reasons while recording statement under Section 313 CrPC and the defence of the appellant and his mother is total denial. In view of the categorical evidence of the neighbours when they have deposed that the deceased had received injuries and she was lying on the floor of the hall in the presence of Basamma-elder sister of appellant, who was holding the child of the deceased in her hand and accused No.2 was sitting near the head of the deceased, it is for them to explain the cause of death of the deceased.
15. When we scrutinized the evidence of all the neighbours, it is clear that there was a quarrel between accused No.2 and accused No.1. Accused No.2 had questioned accused No.1 why he was late and accused No.1, who was under the influence of liquor, told his mother that it is not her concern as to what he has to do and when he has to come home. When the deceased brought water in a steel pot for the appellant to wash his face, he has assaulted her with MO2-steel pot, which resulted in 27 causing bleeding injuries to nose, mouth, ear and eyes. This would only prove that he had no intention to commit murder and in a sudden provocation and on account of consumption of liquor, he might have assaulted his wife deceased Parvathi and on account of the injuries sustained by her she died. Therefore, we are of the view that it is not the case where we can bring the case of the prosecution under Section 302 IPC though it is not the case of homicidal death and it is a culpable act, not intending to murder. We are of the view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt in regard to provisions of Section 304 and 302 IPC. The prosecution has proved its case to bring the offence under Section 304 Part-1 IPC. Accordingly, we answer the points.
16. Considering the provisions of Section 304 Part-1 IPC and also considering the nature of offence committed by the appellant, we are of the view that sentence has to be reduced from life to ten years, as required under Section 304 Part-1 IPC and the judgment of conviction and order of sentence passed by the Sessions Court has to be modified by setting aside the 28 offence falling under Sections 302 and 304-B IPC and treating it as the offence falling under Section 304 Part-1 IPC.
17. Accordingly, the appeal is allowed in part. The judgment of conviction and order of sentence dated 13th November 2007 passed by Sessions Court, Chamarajanagar in SC No.80 of 2006 is hereby set aside and in modification of the same, we convict the appellant-accused No.1 for the offence punishable under Section 304 Part-1 IPC and sentence him to undergo rigorous imprisonment for ten years and to pay fine of Rs.10,000/-. In default to pay the fine, to undergo further simple imprisonment for three months. It is needless to state the sentence served by the appellant-accused No.1 during the course of the trial and thereafter shall be given set-off under Section 428 Cr.PC.
Sd/-
JUDGE Sd/-
JUDGE lnn