Karnataka High Court
Syed Vaseem vs State Of Karnataka on 14 June, 2022
Bench: K.Somashekar, Shivashankar Amarannavar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE Mr. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1315/2016
BETWEEN :
--------------
Syed Vaseem
S/o. Syed Imthiyaz
Aged about 30 years
Occ. Autorickshaw Driver
Bilavaradahalli
Bannerghatta Road
Jigani Hobli, Anekal Taluk
Bengaluru Rural District. ... APPELLANT
(By Sri. M.R. Nanjunda Gowda, Advocate)
AND :
-------
State of Karnataka
By Thalaghattapura Police
Bangalore
Represented by:
The State Public Prosecutor
2
High Court of Karnataka
Bengaluru - 560 001. ... RESPONDENT
(By Smt. Rashmi Jadhav, HCGP)
---
This Crl.A. is filed under Section 374(2) Cr.P.C. with a
prayer to set aside the judgment and order of sentence
dated 27.05.2016 passed by the Principal Sessions Judge,
Bengaluru Rural District, Bengaluru, in S.C. No.253/2014
and etc.
This Crl.A. having been heard and reserved for orders,
this day, SHIVASHANKAR AMARANNAVAR J, delivered
the following;
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 27.05.2016 passed in S.C. No. 253/2014 by the Principal Sessions Judge, Bengaluru Rural District, Bengaluru, whereunder the appellant/accused has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- 3 and in default of payment of fine to undergo rigorous imprisonment for two years.
2. The factual matrix of the prosecution case is that the first information has been lodged by the accused himself. The appellant/accused was running an Autorikshaw at the material point of time. He knew P.W.2 - Babu a person from his village. Since the appellant/accused had some financial problem he approached P.W.2 with a request to get him loan. Accordingly about three months prior to the registration of this case P.W.2 introduced the deceased
- Smt. Fareeda Beebi, who lent the appellant a sum of Rs.20,000/-. On that occasion the deceased obtained the signature of the accused on a blank paper. P.W.2 also affixed his signature as a witness. Subsequently, the deceased showed a document to the accused saying that it was 'nikhanama'. She had forged such a document by making use of the blank paper on which the signature of 4 the appellant/accused had been taken. She told the appellant/accused that he had married her and should not leave her and in case he were to do so she would engage rowdies and break his legs and arms. Being afraid of it, the appellant/accused went to Thurahalli and slept in the house of the deceased. On 16.04.2014 the deceased called him over phone and asked him to come to Harinagar and take her. On 17.04.2014 he called her over phone but she did not respond. On the same day around 12.30 pm the appellant/accused had gone to Bilawaradahalli to cast vote. The deceased called him over phone and asked him to take her. He went to Harinagar to pick her up by taking an autorickshaw of a person known to him. The deceased asked him to come near a temple in Thurahalli and accordingly he went there. There the deceased forced him to take her to his house and threatened him. Thereafter both the appellant/accused and the deceased went to the house of P.W.5 - Lakshmi. There when the 5 appellant/accused and deceased were alone in the house, the deceased threatened to break his limbs and get his wife raped through rowdies and at that time the appellant/accused slapped on her cheeks and throttled her, neck, as a result of which she died and it was 11.00 pm. Thinking that what he had done was a mistake, he surrendered before the Thalaghatapura Police by 03.45 am on the night intervening 17.04.2014 and 18.04.2014. He gave a statement before the Police on the basis of which a case was registered by C.W.16 - B.C. Harish - Sub- Inspector of Police of Thalaghattapura Police Station in Crime No. 217/2014 for the offence punishable under Section 302 of IPC. After completing investigation the Investigating Officer has filed a charge sheet against the appellant/accused for the said offence. The trial Court framed a charge against the appellant/accused for the offence punishable under Section 302 IPC and the appellant/accused pleaded not guilty. During trial eight 6 witnesses have been examined on behalf of the prosecution and Ex.P.1 to Ex.P.7 are got marked. The appellant/accused in the statement under Section 313 of Cr.P.C. has denied the incriminating evidence against him and gave answers to other questions. The appellant/accused has filed written statement. Thereafter the appellant/accused did not lead any defence evidence.
3. After hearing both the sides the learned Sessions Judge by judgment dated 27.05.2016 has convicted the appellant/accused for the offence under Section 302 of I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for two years. The appellant/accused has challenged the said judgment of conviction and order of sentence in the present appeal. 7
4. Heard Sri. M.R. Nanjunda Gowda, learned counsel appearing for the appellant/accused and Smt. Rashmi Jadhav, learned HCGP appearing for the respondent - State.
5. Learned counsel for the appellant during the course of arguments made submissions that looking to the entire prosecution material, there is no material to show the involvement of the appellant/accused except for the confession of the accused under Section 164 Cr.P.C. said to have been recorded before the learned JMFC, Anekal. It is his submission that firstly, the recording of statement under Section 164 Cr.P.C. itself is not in accordance with the said provision and there are so many glaring irregularities committed regarding the procedural aspects. Therefore, the learned counsel made submission that the said statement cannot be looked into by this Court, which aspect is totally ignored by the learned Sessions Judge while passing the 8 impugned judgment. In this connection learned counsel drew the attention to statement recorded under Section 164 of Cr.P.C. and also relied upon the judgments of the Hon'ble Apex Court in that regard and submitted that the confession statement cannot be relied upon and because of the said irregularity the whole proceedings under Section 164 of Cr.P.C. are vitiated and cannot be looked into by the Court of law. It is his further submission that even if for the sake of arguments the confession statement recorded under Section 164 of Cr.P.C. is considered to be valid and legal, it requires corroboration and in the present case there is no corroboration. On that point, he placed reliance on a decision of the Apex Court. It is his further submission that the learned Sessions Judge wrongly read the evidence and wrongly convicted the appellant/accused. Hence he prays to allow the appeal by setting aside the judgment of conviction and order of sentence passed by the Court below and acquit the appellant/accused. In support of his contention the 9 learned counsel for the appellant has placed reliance on the following judgments:
i. Devaraja @ Raja Vs. State of Karnataka by Belur Police (Crl.A. No. 1423/2012 decided on 05.04.2018) ii. Shivappa Vs. State of Karnataka, AIR 1995 SC 980 iii. Moida Ramana Vs. State of Andhra Pradesh, 2002 (1) Crimes 411 iv. Paramananda Pegu Vs. State of Assam, AIR 2004 SC 4197 v. Shankaria Vs. State of Rajasthan, 1978 Crl.L.J. 1251 : AIR 1978 SC 1248
6. Per contra, Smt. Rashmi Jadhav, learned High Court Government Pleader, during the course of her arguments made submission that the confession statement made by the appellant/accused is in accordance with law. It 10 is her submission that the learned JMFC, Anekal, while recording the confession statement - Ex.P.7 has followed all procedural aspects enunciated under Section 164 Cr.P.C. It is her further submission that the other material on record corroborates the said confession statement Ex.P.7 made by the appellant/accused. It is her further submission that the entire material, both oral and documentary, have been properly considered by the learned Sessions Judge in coming to the said conclusion and there is no merit in the said contention and prays to dismiss the appeal and confirm the judgment of conviction and order of sentence passed by the learned Sessions Judge.
7. We have carefully perused the grounds urged in the memorandum appeal, judgment of conviction and order of sentence passed by the trial Court, oral evidence of the prosecution witnesses P.W.1 to P.W.8 and documents Ex.P.1 to Ex.P.7. We have also considered the submissions 11 made by the learned counsel on both the sides at the bar and perused the judgments and principles enunciated in the judgments which are referred above.
8. The first information has been recorded by C.W.16
- PSI. First information has been given by the appellant/accused himself. The first information has not been marked since C.W.16 - PSI has not been examined.
In the first information itself there is a confession by the appellant/accused of killing the deceased by slapping on her cheek and pressing her neck. The said confessional statement is made before a Police Officer and therefore it is inadmissible in evidence as per the provisions contained under Section 25 of the Indian Evidence Act, 1872.
9. The confession of the appellant/accused has been recorded by P.W.8 - Sri. Eshwar, learned JMFC, Anekal as per Ex.P.7. Confessions are considered to be reliable 12 because no rational person would make admissions against his interest unless prompted by his consignees to tell the truth. A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. A statement made by the accused person is `confession' within the meaning of that term as used in the Indian Evidence Act only if the statement in terms admits the commission of a crime or of the facts which constitute a crime, by himself.
10. Recording of confession and statements is provided under Section 164 Cr.P.C. Section 164 of Cr.P.C. reads thus:
"Section 164 Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any 13 time afterwards before the commencement of the inquiry or trial:
Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-"14
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A.B. Magistrate (5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(5A)(a) In cases punishable under section 354, section 354A, section 354Bm section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, [section 376A, section 376AB, section 376B, section376C, section 376D, section 376DA, section 376DB] section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-
section(5), as soon as the commission of the offence is brought to the notice of the police: 15
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that is the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed;
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-
chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried."
11. The Hon'ble Apex Court in the case of Rabindra Kumar Pal alias Dara Singh Vs. Republic of India, AIR 2011 SC 1436 has considered the recording of confession 16 statement under Section 164 Cr.P.C. and enumerated 11 principles which reads thus:
"29. The following principles emerge with regard to Section 154 Cr.P.C:-
(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.
(ii) Before proceeding to record the
confessional statement, a searching enquiry
must be made from the accused as to the
custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.17
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance of Section 164 Cr.P.C.
goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is 18 not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) confession of a co-accused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement."
12. The above said principles are referred to in the judgment relied upon by the learned counsel for the appellant/accused in the case of Devaraja @ Raja Vs. State of Karnataka by Belur Police (supra).
13. The confession statement of the appellant/accused has been recorded by P.W.8 - Eshwar who was working as 19 Additional Civil Judge and JMFC, Anekal. The said confession statement is at Ex.P.7. P.W.8 in his evidence has stated that Thalaghattapura Police had requisitioned for recording the statement of accused under Section 164 Cr.P.C. on 03.05.2014 which reached him on 19.05.2014 and on the same day he gave instructions to the Investigating Officer to produce the accused before him on 22.05.2014. On 22.05.2014 at 03.20 pm the accused was produced before him and he asked the advocates and litigants who were in the Court hall to go out and told the accused that there was no pressure on him to make a confession statement and he should make the statement voluntarily. He also gave time for reflection to the accused and instructed the Investigating Officer to produce him by 04.00 pm on the next day, i.e., on 23.05.2014. On 23.05.2014 at 04.00 pm the accused was produced before him and he asked the advocates, litigants and Police to go out. Again he told the accused that he was not obliged to 20 make a statement and that there was no pressure or force on him to do so. The appellant/accused told him that he would make his statement voluntarily. The Magistrate also told the appellant/accused that if he were to make a confession the same would be used against him. Thereafter, the Magistrate recorded the statement of the accused and it is at Ex.P.7.
14. The accused has stated before P.W.8 that about three months prior to the incident he came to Hosur and started staying there and subsequently he shifted to Bengaluru. He became acquainted with P.W.2 - Babu. He told P.W.2 that he wanted a sum of Rs.20,000/- and he should borrow the same from some one. Accordingly, P.W.2 got it from the deceased. The deceased took his signature and that of P.W.2 on a blank paper saying that she was taking it as a surety. Making use of it, she prepared a document as though he had married her in accordance with 21 Muslim customary rights for about two months prior to the incident. She was harassing him and was forcing him to marry her. On 17.04.2014 around 10.00 am she called him over phone. Around 12.00 noon he went to a temple on the main road of Uttarahalli. Near the temple she asked him to take her to his house and give divorce to his wife. She threatened him saying that if he did not do so she would send rowdies to his house and get the household articles thrown out. He sought three days time to think. She told him that she wanted to go to Lakshmipura and accordingly he took her in his autorickshaw to Lakshmipura. Then she told him that she wanted to cast vote and therefore he took her in his autorickshaw. After that she took him to the house of P.W.5 and again asked him to marry her and told him that she was liking him. He told her that it was not possible for him to leave his wife. Around 09.00 pm she called some one over phone and told him that he should commit rape on the wife of the accused in his presence and 22 also break the legs and arms of the accused. Till 11.00 pm he was requesting her not to do any of those things. She however persisted. Then he became angry and slapped on her left cheek by his right hand. Since he was very much angry he could not realize as to what he was doing. At the time of this incident P.W.5 was sleeping in the house of her neighbour by name Sumitra Bai. At that time he and the deceased were alone in the house. When he woke her up he found her dead. Around 11.30 pm he came out of the room and went near a temple and thought over as to what he had done. It occurred to him that he had done a mistake. Therefore he immediately went to Subramanyapura Police Station which was nearby and told the police everything what had happened. The Subramanyapura Police told him that the jurisdictional Police station was Thalaghattapura Police Station and accordingly around 03.00 am he was taken to Thalaghattapura Polikce Station. From there he 23 was taken by the Police to the spot. An ambulance was secured and the dead body was shifted from that place.
15. The appellant/accused, before P.W.8, did not state that he throttled the deceased. But he has stated that he slapped on her cheek and to this extent there is corroboration. The prosecution case has this genesis in the first information lodged by the appellant/accused himself which was recorded by C.W.16 - PSI who registered a case. Therefore, there is corroboration to that extent that the accused went to the Police Station and disclosed the fact that he assaulted the deceased.
16. In Shivappa Vs. State of Karnataka, (Supra) the Hon'ble Apex Court has observed thus :
"5. The only piece of evidence relied upon against the appellant is the confessional statement recorded by PW 17 on 22-7-1986. A 24 confession, if voluntary and truthfully made is an "efficacious proof of guilt". It is an important piece of evidence and therefore it would be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy. The statutory provisions dealing with the recording of confessions and statements by the Metropolitan Magistrate and Judicial Magistrates are contained in Section 164 CrPC and the rules framed by the High Court containing guidelines for recording of confessions. Unless the Court is satisfied that the confession is voluntary in nature, it cannot be acted upon and no further enquiry as to whether it is true and trustworthy need be made.
8. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the 25 confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: "I have not stated to the accused that I am a Magistrate" and further admitted: "I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement." The Magistrate, PW 17 also admitted that "at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court'.'. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further revealed that the Magistrate did, not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same 26 premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that the was out of the zone of influence by the police keeping in view the location of the sub- jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as, to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The, failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 Cr.P.C was voluntary. The cryptic manner of holding the 27 enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant. Under these circumstances, the confessional statement was required to be ruled out of consideration to determine the guilt of the appellant. Both the trial court and the High Court, which convicted the appellant only on the basis of the so-called confessional statement of the appellant, fell in complete error in placing reliance upon that statement and convicting the appellant on the basis thereof. Since, the confessional statement of the appellant is the only piece of evidence relied upon by the prosecution to connect the appellant with the crime, his conviction cannot be sustained."
17. In the case on hand P.W.8 is the Magistrate who recorded the confession statement in the open Court and he sent out the lawyers, public and others and made enquiry 28 with the appellant/accused and gave time of more than 24 hours for reflection.
18. In Shankaria Vs. State of Rajasthan, the Hon'ble Apex Court has observed thus :
"49. Another circumstance which reinforces the conclusion about the confession being voluntary is that it was not retracted at the earliest opportunity. The confession was recorded on June 14, 1974. The trial of the accused commenced on January 10, 1975 when charges were framed and read over and explained to the appellant by the Sessions Judge. At the trial, he was defended by Shri Ganpat Ram, who, as already observed, was an experienced lawyer. The trial dragged on for several months, because witnesses were examined piece- meal on different dates. The prosecution evidence was closed on June 14, 1975 and the accused was then examined under Section 313 Cr. P.C. It was during such examination, the appellant for the first time 29 retracted the confession and took up the plea that he had made it under duress of the police."
"85. To sum up, it was cogently established that the confession (Ex. P-27) was voluntarily made and it is true. Further, it receives assurance in several material particulars from reliable independent evidence, mainly of a circumstantial character. The confession. Ex. 27, coupled with the other evidence on the record, had unerringly and indubitably brought home the charges to the appellant."
19. The accused retracted the said confession statement Ex.P.7 during the course of recording his statement under Section 313 Cr.P.C. stating that it is at the instance of the Police he confessed commission of the crime. The Investigating Officer has been examined as P.W.7 and there is no suggestion in the cross-examination that the Police have forced the accused to give confession statement before the jurisdictional Magistrate. Therefore, 30 the said retraction said to have been made by the accused while recording the statement under Section 313 Cr.P.C. is an after thought and only to escape from the clutches of law.
20. P.W.8 has stated that he gave time to the accused for reflection till 23.05.2014 i.e., for more than 24 hours and the same has been admitted by the appellant/accused while he gave answer in recording of his statement and also with regard to ensuring P.W.8 that advocates, litigants and Police were not in the Court hall and recording no compulsion for him to make confession of what he said and that he would give voluntarily. Therefore, considering all these aspects we are of the opinion that the learned Magistrate has complied with all the principles which are required for recording the statement of the accused under Section 164 Cr.P.C.
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21. The learned counsel for the appellant/accused argued that sole reliance cannot be placed on the confession statement of the appellant/accused and it requires corroboration and on that point he has placed reliance on the decision of the Shankaria Vs. State of Rajasthan (supra),
22. The following is the evidence which corroborates with the confession made by the appellant/accused in Ex.P.7. The appellant/accused borrowed hand loan of Rs.20,000/- from the deceased through common friend P.W.2 - Babu. The said evidence of P.W.2 has been admitted by the appellant/accused in his written statement. The accused in his statement in writing has stated that he and the deceased started liking each other and were meeting regularly. They decided that they should meet on 17.04.2014 and accordingly he picked her from Harinagar and went to the house of Lakshmi (P.W.5). It was around 32 08.00 pm and they wanted to spend that night together in the house of P.W.5, who agreed to go to the house of Sumitra Bai. It is the evidence of P.W.5 that the deceased and the appellant/accused came to her house around 09.00 pm on that day and they wanted to talk confidentially and therefore she came out of the house and went to the house of Sumitra Bai and slept there. The said P.W.5 - Lakshmi has last seen the deceased and the appellant/accused together in her house at around 09.00 pm on the date of the incident. P.W.5 in her cross-examination has stated that the accused went to bring food and it was 08.00 pm and she was not in the house when he brought food and she did not know whether the appellant/accused brought the food or not and the hotel was at a distance of 02 KMs from her house and the appellant/accused had not brought any vehicle on that day. The learned counsel for the appellant/accused, relying on this evidence of P.W.5 stated that the appellant/accused was not in the house of 33 deceased at the time of incident and when he returned back to the house of the deceased he saw her dead body and at that time he had brought the food. As per the evidence of P.W.5 and the written statement of the appellant/accused the deceased and the appellant/accused together went to her house at about 08.00 pm wanting to spend the night together.
23. The Doctor (P.W.6) who conducted the postmortem examination on the dead body of the deceased has stated that the stomach of the deceased contained 150 ml partially digested rice meal. The deceased and the accused came to the house of P.W.5 at around 08.00 pm and there is no evidence that she had consumed any food before the appellant/accused left the house to bring food. The stomach of the deceased contained 150 ml partially digested rice meal and this shows that the accused might have brought the food and both of them might have 34 consumed the rice meal and after some time the incident might have occurred. The said aspect negatives the contention of the learned counsel for the appellant/accused that the accused was not present in the house of P.W.5 at the time of incident. The same corroborates the confessional statement - Ex.P.7 that he was very much present in the house of P.W.5 along with the deceased. The very aspect of the appellant/accused immediately after the incident going to the Police station and intimating the Police of his committing the death of the deceased on the basis of which C.W.16 recorded the FIR itself corroborates the confessional statement even though the said first information is not admissible in evidence as it is hit by Section 25 of the Indian Evidence Act, 1872.
24. The Hon'ble Apex Court in the case of Paramananda Pegu Vs. State of Assam, (supra) has observed thus:
35
"18. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the Court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the Court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true."
25. The Apex Court in the case of Tamilnadu Vs. Kutty alia Lakshmi Narasimhan, AIR 2001 SC 2778 has observed thus:
"13. It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract 36 from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard.
26. Therefore for the aforesaid reasons, the trial Court has rightly appreciated the oral and documentary evidence in proper perspective and rightly held that the accused has caused the death of the deceased.
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27. Moreover, cause of the death of the deceased by the appellant/accused is a murder or culpable homicide not amounting to murder attracting Section 304 part (I) or (II) has to be ascertained based on the evidence on record. Death of the deceased is a culpable homicide as defined under Section 299 of IPC. As per the written statement of the accused after he availed hand loan of Rs.20,000/- from the deceased they started liking each other and used to meet regularly. On 17.04.2014 they decided to meet each other and went to the house of Smt. Lakshmi (P.W.5) and they stayed in her house on that night. As per Ex.P.7 the deceased took the appellant/accused to the house of Lakshmi (P.W.5) and there she insisted the accused to marry her and told him that she is liking him and at that time the appellant/accused told that he cannot lead life without his wife. At about 09.00 pm, after securing liquor and consuming it, at 09.30 pm she telephoned to one person and told him to commit rape on the wife of the 38 appellant/accused and to break the limbs of the accused and till 11.00 pm he requested not to do so. She insisted that she will do the same and therefore he got angry and assaulted her on her left side of cheek with hand. At that time as he was more angry he did not know what he did. The very aspect goes to show that the accused on a grave and sudden provocation by the deceased slapped on the cheek, throttled and killed her. This comes under Exception 1 of Section 300 IPC. The act of the accused was not premeditated. The accused had the intent and knowledge that his act will cause death of the deceased. Therefore, the act of the accused attracts part (I) of Section 304 of IPC and not Section 302 of IPC. It is relevant to refer to the decision of the Apex Court in the case of Ongale Ravikanth Vs. State of A.P. reported in AIR 2009 SC 2129 wherein the wife poured kerosene on herself and the husband lit match stick, the incident took place all of a sudden without any intention, then the act of the accused is 39 found to be punishable under Section 304 part (I) of IPC and affirmed the judgment of conviction passed by the High Court. The learned Sessions Judge has not considered this aspect of the matter. Therefore, the conviction of the appellant/accused requires to be altered from Section 302 of IPC to Section 304 part (I) of IPC. Therefore the sentence imposed on the appellant/accused requires to be modified. The appellant/accused is having wife and children. The punishment for the offence under Section 304 part (I) of IPC is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and so also will be liable for fine. The accused is in custody for a period of 7 years 6 months and 16 days. Looking to the facts and circumstances, in our considered view, the said period already undergone by the accused in custody is sufficient sentence. For the aforesaid reasons, we deem it proper to partly allow the appeal .
28. Accordingly, we pass the following;
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ORDER
i. Appeal is allowed in part.
ii. The conviction of the appellant in S.C. No.
253/2014 dated 27.05.2016 by the Principal Sessions Judge, Bengaluru Rural District, Bengaluru, under Section 302 of IPC is modified to offence punishable under Section 304 part (I) of IPC.
iii. We hereby hold that the total period of sentence served by the appellant / accused, i.e., 7 years 6 months and 16 days shall be treated as service of sentence, which would meet the ends of justice. The appellant/accused shall also pay a fine of Rs.10,000/- and in default of payment of fine amount, to undergo simple imprisonment for a period of two years.
iv. The appellant / accused shall be released forthwith, if he is not required in any other case. 41 v. Office is directed to intimate the operative portion of the order to the concerned jail authorities, for compliance.
Sd/-
JUDGE Sd/-
JUDGE.
LRS.