Karnataka High Court
Nagaraja vs State Of Karnataka on 14 October, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.585 OF 2015
BETWEEN:
NAGARAJA
S/O. PUTTALINGAIAH,
AGED ABOUT 31 YEARS,
RESIDING AT NO.36/1, 5TH MAIN,
7TH CROSS, DASAPPA GARDEN,
D.C. STREET,
BENGALURU - 560 018.
... APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL,
ALONG WITH SRI KALEEM SABIR)
AND:
STATE OF KARNATAKA
BY JNANABHARATHI POLICE,
BENGALURU CITY - 560 030,
REPRESENTED BY LEARNED
STATED PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI V.M. SHEELAVANT, S.P.P-I, ALONG WITH
SRI VIJAYAKUMAR MAJAGE, ADDL.S.P.P.)
***
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER ON SENTENCE
DATED 28-3-2015 PASSED IN S.C. NO.852 OF 2013 ON THE
FILE OF THE LI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, CONVICTING THE APPELLANT-
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 498A, 302 AND 201 OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FINAL
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-accused against the judgment of conviction and order on sentence dated 28-3-2015 made in Sessions Case No.852 of 2013 on the file of the LI Additional City Civil and Sessions Judge, Bengaluru, convicting and sentencing the accused to undergo imprisonment for life with fine of Rs.10,000/- for the offence punishable under Section 302 of the Indian Penal Code (for short, 'the IPC') and further sentenced to 3 undergo imprisonment for three years with fine of Rs.2,000/- for the offences punishable under Sections 498A and 201 of the IPC.
2. It is the case of the prosecution that the accused, being the husband of the deceased, was harassing the deceased both mentally and physically by suspecting that the deceased has illicit relationship with Prakash. On 22-2-2013 at about 3:00 p.m., the accused took the deceased towards N.G.E.F. Layout situate inside Bangalore University campus, behind Gandhi Bhavan, Yoga Centre, under the guise of discussing regarding divorce, the accused attacked on the chest, neck, stomach and other parts of the body of the deceased with a newly purchased knife with an intention to eliminate the deceased and the accused eliminated the deceased by cutting her neck and attacked her on other parts 4 of the body. It is alleged that the accused tried to destroy the evidence against him by hiding the knife in the forest. After the said act, the accused surrendered before P.W.18-P.S.I of Jnanabharathi Police Station at about 5:45 p.m. After confirmation of the incident, P.W.18-P.S.I obtained a complaint from P.W.1-brother of the deceased and registered a case for the offences punishable under Sections 498A, 302 and 201 of the IPC and charge-sheet came to be filed for the offences punishable under Sections 498A, 302 and 201 of the IPC.
3. The case was committed to the Sessions Court by the IX A.C.M.M. Court. The learned Sessions Judge framed the charges on 27-7-2013 for the offences punishable under Sections 498A and 302 of the IPC. The same was read over and 5 explained to the accused, he pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution examined twenty-seven witnesses as P.W.1 to P.W.27, marked fifty documents as Exs.P.1 to P.50 and material objects as M.O.1 to M.O.22. After completion of the prosecution witnesses, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating evidence adduced against him and submitted that himself and his wife were in cordial relationship, but he lodged a complaint against his wife as she had illicit relationship with someone and the Police have advised them, but later, he does not know why the Police have arrested him and submitted no defence evidence.
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5. The learned Sessions Judge considering the material on record framed four points for consideration. After considering the entire oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved the case beyond reasonable doubt that the death of the deceased is homicidal one. The learned Sessions Judge further recorded a finding that the prosecution proved that on 22-2-2013 at about 3:00 p.m. in the mud road, leading to N.G.E.F. Layout, situate behind Yoga Centre, near Gandhi Bhavan, Bangalore University campus, the accused under the guise of discussing with regard to divorce, brought the deceased and murdered her by assaulting on the neck, chest, stomach and other parts of the body with a knife and thereby, committed the offence punishable 7 under Section 302 of the IPC. The learned Sessions Judge further recorded a finding that the prosecution proved that in order to destroy the evidence, the accused hide the knife in the forest and thereby, committed the offence punishable under Section 201 of the IPC. The learned Sessions Judge further recorded a finding that the accused, being the husband of the deceased, subjected the deceased to cruelty and thereby, committed the offence punishable under Section 498A of the IPC. Accordingly, the learned Sessions Judge by impugned judgment, convicted the accused for the aforesaid offences. Hence, the present appeal.
6. We have heard the arguments of learned counsel for the appellant-accused and the learned State Public Prosecutor for the respondent-State. 8
7. Sri Hashmath Pasha, learned senior counsel appearing for the appellant-accused, has contended that the impugned judgment of conviction and order on sentence for the offences under Sections 498A, 302 and 201 of the IPC is liable to be set aside as there is no reliable evidence to connect the accused for the alleged offences. He further contended that there is no charge framed by the learned Sessions Judge for the offence under Section 201 of the IPC that after commission of the offence, the knife used was concealed in a bush would not arise. On that ground, the impugned judgment of conviction cannot be sustained. He further contended that the prosecution relies on circumstances to connect the accused for the alleged offences, but the evidence adduced by the prosecution are not reliable and the circumstances relied are in the nature of conjecture and surmises 9 and they do not reach the standard of proof beyond reasonable doubt.
8. The learned senior counsel further contended that the deceased was given in marriage to the accused on 22-2-2010 and it was inter-caste marriage. The deceased belonged to Scheduled Caste and the accused belongs to Vokkaliga Community and since they were in love with each other, both family agreed and performed the marriage. After marriage, both lived happily for few months and thereafter, there was no understanding in between them and used to quarrel stating that the deceased had developed illicit relationship with Prakash and the accused had seen both together in his house having locked from inside. Further, the deceased lent Rs.50,000/- to 60,000/- to Prakash by pledging gold ornaments and when the accused 10 asked, she challenged the accused what if she has lent. In spite of advice by the husband and in spite of the complaint lodged before the Police, she never changed her attitude and continued her relationship with Prakash and thereby, the accused was provoked.
9. The learned senior counsel further contended that on 22-2-2013, the deceased alone left the house stating that her husband made a phone call to her to discuss regarding divorce and she went alone and the accused did not pick her from her parents house as deposed by P.Ws.1, 3 and 5. It is proved by the statement of these witnesses that the deceased left the house alone and there is no last seen circumstance against the accused. He further contended that the deceased left her parents house on 22-2-2013 at 10:30 a.m, 11 and thereafter, where she went and her whereabouts were not known and there is no evidence regarding this. Further, there is no proof of the accused calling through mobile to the deceased to talk regarding divorce. Ex.P.35-call details of the accused marked is not proved as required under Section 65B of the Indian Evidence Act and it is inadmissible in evidence.
10. The learned senior counsel further contended that as per the evidence of P.W.18- Imtiyaz Patel, P.S.I. of Jnanabharathi Police Station that on 22-2-2013 at 5:45 p.m., while he was in Police Station, P.W.19-Raju, Advocate and the accused came to Police Station and informed about the incident, but P.W.18-P.S.I has not recorded the first version of the accused and P.W.19. The fact of their arrival and informing this information was not 12 noted and no official act is performed thereby, the earliest version lodged in Police Station is suppressed and no F.I.R. was registered. Therefore, the evidence of P.W.18 about arrival of the accused along with P.W.19 to Police Station cannot be considered. In fact, P.W.19 has denied the fact that he has gone to Police Station with the accused and there is no truth in allegation made by the prosecution. He further contended that based upon the voluntary statement of the accused, he cannot be convicted.
11. The learned senior counsel further contended that the entire act of the accused in the homicidal death of the deceased is due to the sudden provocation and there is no premeditation and it happened on the spur of moment when they were discussing with regard to divorce. Due to 13 verbal exchange of words, he was provoked and the incident happened. Therefore, he sought to allow the appeal.
12. In support of his contention, the learned senior counsel has relied upon the dictum of the Hon'ble Supreme Court in the case of SHRI MURLI ALIAS DENNY v. STATE OF RAJASTHAN reported in AIR 1994 SC 610 to the effect that murder on sudden provocation falls under Exception I to Section 300 of the IPC and thereby, the Hon'ble Supreme Court proceeded to convict the accused under Section 304 (Part I) of the IPC and sentenced him to undergo imprisonment for a period of ten years.
13. Per contra, Mr. V.M. Sheelavant, learned State Public Prosecutor-I, along with Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment 14 of conviction and order on sentence contended that the material on record clearly depicts that it was a preplanned murder by the accused as the deceased had illicit relationship with Prakash and she had lent Rs.50,000/- to 60,000/- by pledging ornaments and in spite of complaint filed before the Police, she has not changed her attitude. Therefore, it was not sudden quarrel between the husband and the wife, it was deliberate act on the part of the accused to eliminate the deceased as she was demanding Rs.3,00,000/- cash and auto-rickshaw for mutual consent of divorce.
14. The learned State Public Prosecutor-I further contended that in the evidence of P.Ws.1, 3, 4 and 5, it was suggested to the prosecution witnesses that she had illicit relationship with a person, which clearly indicates that he was in 15 personal vengeance against the deceased and he hatched a plan and took her near N.G.E.F. Layout, situate behind Yoga Centre, near Gandhi Bhavan, Bangalore University campus, and eliminated her. Therefore, it is clear case of murder. He further contended that it is clear from the evidence of P.W.12-Dr. Dilip Kumar that the cause of death is due to cut throat injury. He further contended that Ex.P.25-Post-Mortem report clearly depicts that there was totally 24 injuries on the dead body of the deceased, which proves that the accused had clear mind set to eliminate the deceased. Therefore, the impugned judgment of conviction and order on sentence for the alleged offences is just and proper and this Court cannot show any lenience and sought to dismiss the appeal.
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15. In view of the rival contentions urged by the learned counsel for the appellant-accused and the learned State Public Prosecutor-I for the respondent-State, the points that arise for our consideration in this appeal are;
i. Whether the accused has made out a case to interfere with the impugned judgment of conviction and order on sentence under Section 302 of the IPC for imprisonment for life?
ii. Whether the accused has made out a case to set aside the impugned judgment of conviction in so far as punishment imposed under Sections 498A and 201 of the IPC in the absence of any charge framed against the accused under Section 201 of the IPC?
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16. We have given our anxious consideration to the arguments advanced by the learned counsel for the accused as well the learned State Public Prosecutor-I and perused the entire material including original record carefully.
17. In order to re-appreciate the evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon;
(a) P.W.1-Nagaraj is the elder brother of the deceased, who lodged the complaint before the Police. He has stated that the marriage of the accused and the deceased was performed in the year 2010 and they were happy for one year. Later, there was no cordial relationship, there used to be quarrel between them and the accused was demanding for divorce. On 22-2-2013 morning, the accused took 18 the deceased stating that he needs to talk to her regarding divorce. Around 5:30 p.m., he received information from Jnanabharathi Police Station that her sister has been murdered. After identifying the dead body of the deceased, he lodged a complaint as per Ex.P.1. He has identified Exs.P.2 to P.5- photographs of the deceased taken at the spot. He has identified M.Os.1 to 9 are the belongings of the deceased and has supported the case of the prosecution.
(b) P.W.2-Nithin, Assistant Engineer, who prepared the sketch as per Ex.P.8. He has supported the case of the prosecution.
(c) P.W.3-Mahadevamma is the mother of the deceased. She has stated on par with P.W.1. She has stated that she saw the dead body of the deceased at Victoria Hospital. Even she has 19 identified M.Os.1 to 9 are the belongings of the deceased and has supported the case of the prosecution.
(d) P.W.4-Vijaya is the elder sister of the deceased. She has stated on par with P.Ws.1 and 3. She has stated that there was no understanding between the deceased and the accused and the accused used to suspect the fidelity of the deceased. On 22-2-2013 at 10:00 a.m., she gave a call to the deceased and learnt from her that she is going along with her husband to Advocate Office to discuss regarding divorce. At 6:30 p.m., she got the information from the wife of P.W.1 that the accused has murdered the deceased. She has supported the case of the prosecution.
(e) P.W.5-Siddaraju is another brother of the deceased. He has stated that the marriage of the 20 deceased and the accused was performed in the year 2010. He has stated that the accused was earlier working as Mechanic and later, he was driving auto- rickshaw. The deceased and the accused were happy for one year and later, there was quarrel between them. He received a phone call from P.W.1 that his sister has been murdered, so he went to the Police Station. He has supported the case of the prosecution.
(f) P.W.6-Varadaraj is panch witness to the seizure mahazar-Ex.P.10. He has deposed that the Police summoned him to the Police Station, wherein the accused was in custody and the Police have seized blood stained shirt and pant from the possession of the accused and the same is identified by him as M.Os.10 and 11 respectively. He has further stated that on the next day of conducting 21 Ex.P.10, the Police along with the accused took him near Bangalore University, wherein the accused stopped the vehicle on the main road, walked for a distance of 20-30 feet from the main road and took out a knife from the bush, which was blood stained and same is seized through Ex.P.11 and the same is identified by him as M.O.12. He has further stated that he has witnessed an auto-rickshaw in the Police Station and the same is seized through Ex.P.12. He has identified the said auto-rickshaw through photographs-Exs.P.13 and P.14.
(g) P.W.7-Saroja is the mother of the accused. She has stated that she has given an application for purchasing sim-card of the mobile and has turned hostile.
(h) P.W.8-Sharath Kumar is panch witness to the seizure mahazar-Ex.P.10. He has deposed that 22 the Police summoned him to the Police Station, wherein the accused was in custody and the Police have seized blood stained shirt and pant from the possession of the accused and the same is identified by him as M.Os.10 and 11 respectively. He has further stated that on the next day of conducting Ex.P.10, the Police along with the accused took him near Bangalore University, wherein the accused stopped the vehicle on the main road, walked for a distance of 20-30 feet from the main road and took out a knife from the bush, which was blood stained and same is seized through Ex.P.11 and the same is identified by him as M.O.12. He has further stated that he has witnessed an auto-rickshaw in the Police Station, there was a vanity bag in the auto- rickshaw and in the said vanity bag, marriage photographs of the accused and the deceased, marriage invitation card, two debit cards and two 23 mobile phones were seized through Ex.P.12. He has identified the auto-rickshaw through photographs- Exs.P.13 and P.14. He has identified M.O.7-one samsung mobile, M.O.8-one noika mobile, M.O.9- vanity bag, M.O.13-water bottle, M.Os.14 & 15-two debit cards, Exs.P.15 to P.18-photos of seizure of accused clothes, Exs.P.19 & P.20-photos of seizure of knife from the bush and Exs.P.21 and P.22- photos of seizing auto-rickshaw. He has supported the case of the prosecution.
(j) P.W.9-Prabhu is the panch witness to inquest mahazar-Ex.P.23. He has supported the case of the prosecution.
(k) P.W.10-Narasimha Murthy, Head Constable, who carried Ex.P.24-F.I.R. to the house of the IX A.C.M.M. He has supported the case of the prosecution.
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(l) P.W.11-Masila Mani, Head Constable, who carried 17 sealed articles to the F.S.L. He has supported the case of the prosecution.
(m) P.W.12-Dr. Dilip Kumar, on 23-2-2013, conducted Post-Mortem on the dead body of the deceased on the requisition made by the Police and issued Ex.P.25-Post-Mortem report and opined that the cause of the death is due to cut throat injury. He has given opinion on the weapon as per Ex.P.26. He has supported the case of the prosecution.
(n) P.W.13-Chandrashekar, photographer, has identified Exs.P.2 to P.5 are the photographs of the deceased taken at the spot.
(o) P.W.14-Dr. Shivakumar, Medical Officer, Primary Health Centre, Kengeri, examined the accused on 25-2-2013 at 11:30 a.m. and noticed the 25 injury of abrasion over the left fore-finger and issued Wound Certificate as per Ex.P.28.
(p) P.W.15-Rangappa, Tahsildar, who conducted inquest mahazar on the dead body of the deceased on the requisition made by the jurisdictional Police on 23-2-2013 in the mortuary of the Victoria Hospital as per Ex.P.23.
(q) P.W.16-Nanjaiah, Assistant Sub-Inspector of Police, on instructions from his superior Officer, took the seized auto-rickshaw and collected the blood stains in the said auto-rickshaw to the F.S.L. for examination and submitted the report as per Ex.P.29. He has supported the case of the prosecution.
(r) P.W.17-Shankar Lal, owner of the shop where the accused purchased a knife. He has 26 stated that many customers purchase the said item. He has identified M.O.12-knife.
(s) P.W.18-Imtiyaz Patel, P.S.I., has stated that on 22-2-2013 at 5:45 p.m., the accused and his Advocate-Raju came to the Police Station and stated that around 3:00 p.m., the accused has committed the murder of his wife in the premises of Bangalore University. He visited the spot and confirming the incident, he informed the same to P.W.1-brother of the deceased. He along with P.W.1 again visited the spot and later, P.W.1 lodged the complaint and he registered the case. He has supported the case of the prosecution.
(t) P.W.19-Raju, Advocate, has stated that when he was in Court premises, the accused called him and informed regarding the incident and in 27 turn, he asked the accused to take his wife to the Hospital.
(u) P.W.20-Puttaswamy Gowda, Head Constable, was deputed to watch the dead body of the deceased and after Post-Mortem examination, he has handed over the dead body of the deceased to her legal heirs. He has supported the case of the prosecution.
(v) P.W.21-Srinivasa is the witness to the spot mahazar drawn by the Police as per Ex.P.32. He has identified M.O.16-blood stain mud and M.O.17- sample mud.
(w) P.W.22-Channappa is the witness to the spot mahazar drawn by the Police as per Ex.P.32. He has turned hostile.
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(x) P.W.23-Balaraju, Police Inspector, has stated that he received the investigation papers from P.W.18-P.S.I and completed the investigation and filed final report. He has supported the case of the prosecution.
(y) P.W.24-Ravi Narona, Head Nodal and Regulatory Tata Tele Services Limited, who furnished the call details of mobile No.8123305439 on 28-4-2014 to the Police under Ex.P.39.
(z) P.W.25-Huchappa, Assistant Sub-Inspector of Police, has stated that on 5-8-2012, the accused had given complaint against his wife and on 6-8-2012, he called the wife of the deceased and recorded her statement-Ex.P.49 and issued endorsement-Ex.P.50. He has supported the case of the prosecution.
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(aa) P.W.26-Stanley, Nodal Officer, Bharathi Airtel Limited, who furnished the call details of mobile Nos.9880703396 and 9980079582 on 10-4-2014 to the Police under Exs.P.43 to P.47.
(ab) P.W.27-Ravish, Police Inspector, who collected the call details of the deceased and the accused from the Nodal Officers of the Airtel and Docomo as per Ex.P.39 to P.48.
18. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved the case beyond reasonable doubt that the accused is involved in the homicidal death of the deceased and used to constantly harass the deceased, thereby, Sections 302 and 498A of the IPC attracts. The accused tried to destroy the knife 30 used for the commission of the offence and thereby, committed the offence under Section 201 of the IPC.
19. On re-appreciation of the material placed on record both oral and documentary and the contention raised by the learned counsel for the accused clearly depict that there is no dispute with regard to marriage between the deceased and the accused and it was inter-caste. The material also depicts that about one year after marriage, they were very cordial and there was no issue out of the wedlock. It is further case of the prosecution that the accused used to suspect the fidelity of the deceased and on that, there used to be altercation between the deceased and the accused and the same is evident from the evidence of P.Ws.1 & 4-brothers of the deceased, P.W.3-mother of the deceased and P.W.4-sister of the deceased. The material on record 31 clearly depicts that the accused used to suspect the deceased stating that she has illicit relationship with Prakash. Accordingly, he lodged a complaint before the jurisdictional Police on 5-8-2012 as per Ex.P.35. In the said complaint, it is specifically stated by the accused that his wife has illicit relationship with Prakash and after pledging ornaments, she has paid Rs.50,000/- to 60,000/- to him. The deceased was summoned by the Police and her statement was also recorded by the Police on 6-8-2012 as per Ex.P.49. She has not disputed the fact that she has lent Rs.50,000/- to 60,000/- to Prakash and stated that she will not continue any financial transaction with Prakash. It is also not in dispute that while recording the statement of the accused under Section 313 of the Code of Criminal Procedure, he has disclosed the said fact about lodging of the complaint regarding the deceased having illicit 32 relationship with Prakash and the Police have advised her.
20. The oral and documentary evidence on record clearly depicts that the accused has seen the deceased with Prakash inside his house. Though the Police advised the couple, but the deceased continued illicit relationship with Prakash. Therefore, he sought divorce from the deceased. It is not in dispute that the deceased agreed for divorce from the accused for Rs.3,00,000/- cash and auto- rickshaw. Accordingly, on 22-2-2013 at about 3:00 p.m., when the accused and the deceased were discussing with regard to divorce, verbal exchange of words took place between them with regard to payment of alimony and in those circumstances, he might have involved in the homicidal death of the deceased. It is also not in dispute that after 33 unfortunate incident happened, the accused along with P.W.19-Advocate approached P.W.18-P.S.I. and surrendered on 22-2-2013 at 5:45 p.m. and confessed that when himself and his wife were discussing with regard to divorce, there was verbal exchange of words and suddenly by provocation, he has eliminated his wife. On the statement made by the accused to the jurisdictional Police, P.W.18- P.S.I. after confirmation, registered the case.
21. It is also not in dispute that according to the prosecution, the accused has called P.W.19- Advocate at 3:15 P.M., when he was in the Court premises and stated that during discussion with regard to divorce, he assaulted his wife and P.W.19 advised him to take her to the Hospital. During discussion between the deceased and the accused, quarrel would have taken place and on sudden 34 provocation, the accused has caused the homicidal death of the deceased. It is also not in dispute that it was inter-caste marriage between them and there was no issue. It is also not in dispute that though the accused has seen the deceased with Prakash inside his house, he did not react and take action and the deceased lent Rs.50,000/- to 60,000/- by pledging ornaments to Prakash and the accused lodged the complaint. It is also not in dispute that after such incident happened, the deceased and the accused agreed for divorce, but the deceased has put specific condition that subject to payment of alimony of Rs.3,00,000/- and auto-ricksaw. During discussion with regard to divorce, he might have provoked, lost self control and due to heat of passion in a sudden quarrel, murdered the deceased is not premeditated and it falls under the provisions of Exception-I of 300 of the IPC and it is not a case 35 which falls under Section 302 of the IPC as held by the learned Sessions Judge and the accused is liable to be convicted under the provisions of Section 304 (Part I) of the IPC.
22. The prosecution relied upon the testimony of P.W.19-Advocate, who deposed before the Court that the accused called him on 22-2-2013 at 3:15 p.m, when he was in Court premises and informed him that one of his clients has given his contact number to him. The accused kept on ringing repeatedly and he was asked to come to his office. The accused further informed him that while discussing with regard to divorce, quarrel took place between them and when his wife came to assault him, he has assaulted his wife and he advised him to take her to the Hospital and to come to the office in the evening.
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23. The evidence of P.Ws.1 and 5-brothers of the deceased, P.W.3-mother of the deceased, P.W.4- sister of the deceased, P.W.18-P.S.I and P.W.19- Advocate clearly depict that there was frequent quarrel between the husband and the wife with regard to divorce. The material on record clearly depicts that on the fateful day, while coming to Advocate Office for discussion with regard to divorce, there was verbal exchange between the deceased and the accused and when the deceased tried to assault the accused, he reacted and assaulted the deceased, thereby involved in the homicidal death of the deceased. It is also not in dispute that the prosecution seized the knife, used by the accused for commission of the offence, under Ex.P.11. P.Ws.6 and 8 are the panch witnesses to the seizure mahazar-Ex.P.10. On the next day of 37 conducting Ex.P.10, the Police along with the accused took them near Bangalore University, where the accused stopped the vehicle on the main road, walked for a distance of 20-30 feet from the main road and took out a knife from the bush, which was blood stained and same is seized under Ex.P.11 and the same is identified by them as M.O.12. The relationship between the deceased and the accused as husband and wife is not in dispute. The homicidal death is also not in dispute and there is no eyewitness to the incident and the entire case rests upon the circumstantial evidence. The circumstantial evidence clearly proved that it is the homicidal death of the deceased caused by the accused due to sudden provocation and there was no premeditation. Therefore, the case would fall under Exception-I of 300 of the IPC and not under Section 302 of the IPC as stated supra. 38
24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of SHRI MURLI ALIAS DENNY v. STATE OF RAJASTHAN reported in AIR 1994 SC 610 which reads as under:
"5. Having examined the circumstances on record, we are satisfied that it was the accused who inflicted injuries on the deceased person, as a result of which he died. But the learned senior counsel, Shri Sibal submits that there are any number of circumstances indicating that the accused acted on a grave and sudden provocation and, therefore, exception No.1 to S.300 is attracted. We find considerable force in this submission. To start with, the prosecution evidence itself indicates that the deceased was a man of violent nature and had no regard for law and was creating terror and fear in the minds of common people. In such an aggressive mood, he must have gone to 39 the shop of the accused. As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the accused and showered virulent abuses. It may be mentioned here that we are not using the statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under exception No.1 to S.300, IPC, particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place. Having carefully considered the entire material, we are of the view that Exception No.1 to S.300 is 40 attracted in this case. The Exception lays down:-
"Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident".
This Exception is no doubt subject to certain limitations. In the instant case, the provocation is not sought or provoked by the accused. The medical evidence also shows that most of the injuries were found on the hips and the possibility of having received injuries by the deceased during grappling cannot be ruled out. In such cases, it cannot be said that the accused caused the injuries by way of an excuse for killing the deceased.41
Accordingly, we set aside the conviction of the appellant Under Section 302, Indian Penal Code and imprisonment for life awarded thereunder and, instead, we convict him under Section 304, Part I, Indian Penal Code and sentence him to undergo Rigorous Imprisonment for 10 years."
25. The material on record clearly depicts that the marriage between the deceased and the accused is out of love and both belong to separate communities and there was no issues out of the wedlock. From the evidence of P.Ws.1 and 3 to 5, it is clear that there was no constant harassment and ill-treatment for demand of dowry. Admittedly, it was love marriage and demand of dowry would not arise at all. Further, there is no material evidence on record that there was a cruelty or harassment by the accused to the deceased either mentally or 42 physically. In the absence of any material, the very charge framed by the learned Sessions Judge under Section 498A of the IPC would not arise. Absolutely, there is no material placed on record for the harassment. However, the learned Sessions Judge proceeded to hold that the deceased lent of Rs.50,000/- to 60,000/- to Prakash and on that, the accused used to harass the deceased cannot be accepted. As a fact, without permission or consent from the accused, who is the husband of the deceased, she has pledged the ornaments and lent Rs.50,000/- to 60,000/- to an unknown person. Therefore, questioning the same by the husband cannot be treated as harassment. It is also not in dispute that while framing charge on 27-7-2013, the charge was only in respect of Sections 498A and 302 of the IPC and there was no charge framed for the offence punishable under Section 201 of the IPC. 43 Absolutely, in the absence of framing of charge under Section 201 of the IPC, the points for consideration would not arise at all. Even otherwise, in the present case, on 22-2-2013 at 3:00 p.m., the accused, along with P.W.19-Advocate, voluntarily surrendered before P.W.18-P.S.I at 5:45 p.m. and confessed the crime. Question of destroying and causing disappearance of the evidence would not arise. The punishment imposed under Sections 498A and 201 of the IPC would not arise. Therefore, the impugned judgment of conviction is liable to be set aside for the offences under Sections 498A and 201 of the IPC.
26. As already stated above, the material on record clearly depicts that the homicidal death of the deceased on 22-2-2013 was due to sudden provocation while discussing with regard to divorce 44 and there was no premeditation, hence, it clearly falls under Exception-I of 300 of the IPC. Therefore, the offence would not fall under Section 302 of the IPC and would fall under Section 304 (Part-I) of the IPC. Therefore, the impugned judgment of conviction and sentence of imprisonment for life with fine of Rs.10,000/- requires modification.
27. In view of the above, point No.1 with regard to Section 302 of the IPC is answered partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment. Therefore, the impugned judgment of conviction in convicting the accused for the offence punishable under Section 302 of the IPC and sentencing him to undergo imprisonment for life is modified and converted into one under Section 304 Part-I of the IPC. Point No.2 is answered in the negative holding 45 that the learned Sessions Judge is not justified imposing the punishment under Sections 498A and 201 of the IPC.
28. For the reasons stated above, we pass the following:
ORDER i. The appeal is allowed-in-part;
ii. The impugned judgment of conviction and order on sentence dated 28-3-2015 made in Sessions Case No.852 of 2013 on the file of the LI Additional City Civil and Sessions Judge, Bengaluru, convicting the accused for the offence punishable under Section 302 of the IPC and sentencing him to undergo imprisonment for life is modified.
The accused is hereby convicted for the 46 offence punishable under Section 304 Part-I of the IPC and sentence to undergo imprisonment for TEN years with fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine, to undergo further imprisonment for two years; iii. The impugned judgment of conviction and order on sentence in so far as Sections 498A and 201 of the IPC are hereby set aside and the accused is acquitted for the said offences; and iv. The accused is entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973. 47 Sincere efforts made by the learned counsel for the accused and the learned State Public Prosecutor- I to arrive to this conclusion is appreciated and the same is placed on record.
Sd/-
JUDGE Sd/-
JUDGE kvk