Karnataka High Court
Praveen K V vs The State Of Karnataka on 6 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1438 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
CRIMINAL APPEAL NO. 1438 OF 2017
BETWEEN:
1. PRAVEEN K. V.,
S/O. VITTALA THINGALAIAH,
AGED ABOUT 25 YEARS,
R/AT PAVANAGANGA,
KUMBASHIMANE,
KUMBASHI VILLAGE,
KUNDAPURA TALUK,
UDUPI DIST 532120.
...APPELLANT
(BY SRI N.R. KRISHNAPPA, ADVOCATE)
Digitally signed by AND:
GAVRIBIDANUR
SUBRAMANYA 1. THE STATE OF KARNATAKA,
GUPTA SREENATH
Location: High REP BY THE STATION HOUSE OFFICER,
Court of Karnataka KOTA POLICE STATION,
BRAHMAVARA CIRCLE,
UDUPI DISTRICT,
PIN CODE 532120.
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU 560001.
...RESPONDENT
(BY SRI K.S. ABHIJITH, HCGP)
*****
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CRL.A No. 1438 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 19.07.2017 AND ORDER OF SENTENCE
DATED 20.07.2017 PASSED BY THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPUR) IN
S.C.NO.2/2015 - CONVICTING THE APPELLANT/ACCUSED NO.1
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND
392 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused No.1 has filed the present criminal appeal against the judgment of conviction and order of sentence dated 19/20-07.2017 made in S.C. No.2/2015 on the file of the Addl. District & Sessions Judge, Udupi, Sitting at Kundapura, convicting and sentencing him for the offences punishable under the provisions of Sections 302 and 392 of IPC.
2. It is the case of the prosecution that on 21.8.2014 at about 12.00 noon, one Radhakrishna Urala (PW.1) approached the respondent Police and lodged a written complaint alleging that the deceased Girija Urala is the aunt of his wife and she is aged about 84 years and residing alone in her house situated at Manooru Pete in Manooru village, Udupi taluk and on the intervening night of 20.8.2014 and 21.8.2014 -3- CRL.A No. 1438 of 2017 (i.e., in between 9.30 p.m. and 6.40 a.m.), some unknown persons have illegally trespassed into the house of the deceased Girija Urala and have committed her murder and robbed gold articles belonging to her. On the basis of the said complaint, the respondent/Police have registered a case in Crime No.182/2104 for the offence punishable under Section 302 of IPC. After investigation, the jurisdictional Police filed the charge sheet against the Accused Nos.1 and 2 for the offences punishable under Sections 302 and 392 of IPC. The matter was committed to the learned Sessions Judge. The learned Sessions Judge secured the presence of Accused Nos.1 and 2 and framed the charge on 12.3.2015 under the provisions of Sections 302 and 392 of IPC and the additional charge came to be filed on 16.6.2016 against both Accused Nos.1 and 2 for the offence punishable under Section 120B of IPC. The substance of the charge was read over to the accused Nos.1 and 2 in the language known to them, who pleaded not guilty and claimed to be tried.
3. In order to prove the guilt of the accused, the prosecution examined in all 24 witnesses as PWs.1 to 24 and -4- CRL.A No. 1438 of 2017 got marked the material documents as per Ex.P1 to Ex.P39 and the material objects as per Mos.1 to 13.
4. After completion of evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances that were found against them in the evidence of the prosecution witnesses and did not choose to offer any explanation nor lead any evidence.
5. Based on the material on record, the learned Sessions Judge has formulated following points for consideration:
"1. ¢£ÁAPÀB20-8-2014 gÀAzÀÄ gÁwæ ¸ÀĪÀiÁgÀÄ 11 UÀAmÉUÉ GqÀĦ vÁ®ÆQ£À ªÀÄtÆgÀÄ UÁæªÀÄzÀ ªÀÄtÆgÀÄ ¥ÉÃmÉAiÀÄ°è EgÀĪÀ ªÀÄÈvÀ VjeÁ GgÁ¼ÀgÀªÀgÀ ªÀÄ£ÉAiÀÄ §½UÉ DgÉÄÁæ 1£ÉÃAiÀĪÀgÀÄ PÁ£ÀÆ£ÀÄ ¸ÀÀAWÀµÀðPÉÌ M¼ÀUÁzÀ ¨Á®PÀ£Æ É A¢UÉ §Á®PÀ£À vÀAzÉAiÀiÁzÀ ¸ÁQë 19£ÉÀÃAiÀĪÀgÀ §Á§ÄÛ PÉJ.20.FJ¥sïB4870£Éà »ÃgÉÆà ¸Éà÷èAqÀgï ªÉÆÃmÁgï ¸ÀÉȨ̂ PÀ¯ï£ÀÀ°è §AzÀÄ DgÉÆæ 2£ÉÃAiÀĪÀgÀ£ÀÄß -5- CRL.A No. 1438 of 2017 C°èUÉ PÀgɹPÉÆAqÀÄ DgÉÄÁæ 2£Éà AiÀĪÀgÀÄ VjeÁ GgÁ¼ÀgÀ ªÀÄ£ÉAiÀÄ §½ d£À ºÁUÀÆ ªÁºÀ£À §AzÀ°è ¸ÀÆZÀÀ£É ¤ÃqÀ®Ä ¤AvÀÄ DgÉÆæ 1 ªÀÄvÀÄÛ PÁ£ÀÆ£ÀÄ ¸ÀAWÀµÀðPÉÌ M¼ÀUÁzÀ §Á®PÀ VjeÁ GgÁ¼ÀgÀªÀgÀ ªÀÄ£ÉAiÀÄ §½ ªÀÄ£ÉAiÀÄ ¸ÀÄÀ vÀÛ 2-3 §Áj wgÀÄUÁr AiÀiÁgÀÆ D PÀqÉ §gÀĪÀÅ¢®è JAzÀÄ SÁwæ ªÀiÁrPÉÆAqÀÄ, £ÀAvÀgÀ DgÉÆæ 1£ÉÃAiÀĪÀgÄÀ QnQAiÀÄ ªÀÄÆ®PÀ ªÀÄ£ÉAiÀÄ ªÀiÁrUÉ ºÀwÛ ºÀAZÀÄ vÉUÉzÀÄ ªÀÄ£ÉAiÀÄ M¼ÀUÉ ºÉÆÃV GjAiÀÄÄwÛzÝÀ M¼ÀV£À ®ÉÊl£ÀÄß D¥sï ªÀiÁr, JzÀÄj£À §ÁV®Ä vÉgÉzÀÄ, PÁ£ÀÆ£ÀÄ ¸ÀAWÀµÀðPÉÌ M¼ÀUÁzÀ §Á®PÀ ªÀÄ£ÉAiÀÆ É ¼ÀUÉ ºÉÆÃV ªÀÄ£ÉAiÉƼÀUÉ ºÁ¹UÉAiÀÄ ªÉÄïÉÉ PÀĽvÀÄPÉÆArzÀÝ VjeÁ GgÁ¼ÀgÀªÀgÄÀ DgÉÆæUÀ¼À£ÀÄß £ÉÆÃr PÀÆUÀ®Ä ¥ÀæAiÀÄwß¹zÁUÀ DgÉÆæ 1£ÉÃAiÀĪÀgÀÄ CªÀgÀ §Á¬ÄAiÀÄ£ÀÄß PÉʬÄAzÀ MwÛ PÁ£ÀÆ£ÀÄ ¸ÀÀAWÀµÀðPÉÌ M¼ÀUÁzÀ §Á®PÀ£ÄÀ JgÀqÀÆ PÉÊAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ C°èAiÉÄà EzÀÝ §mÉÖAiÀÄ£ÀÄß DPÉAiÀÄ §Á¬ÄUÉ vÀÄgÀÄQ¹ MwÛ »rzÀÄ G¹gÀÄ UÀnÖ¹ PÉƯÉÉ ªÀiÁr ªÀÄÈvÀ VjeÁ GgÁ¼À gÀªÀgÀ ªÉÄÊAiÀÄ°èzÀÝ a£ÁߨsÀsgÀtUÀ¼À£ÀÄß zÉÆÃazÀ PÁgÀt, DgÉÆævÀgÀÄ ¨sÁ.zÀA.¸ÀA»vÉ PÀ®A 392 gÀrAiÀÄ°è C¥ÀgÁzÀsªÀ£ÀÄß J¸ÀÀVzÁÝgÉÀAzÀÄ AiÀiÁªÀÅzÉà ¸ÀÀA±ÀAiÀi E®èzÉ -6- CRL.A No. 1438 of 2017 ¸Á©üÃvÀÄ¥Àr¸À®Ä C©üAiÉÆÃd£É PÀqÉAiÀĪÀgÀÄ ¸ÀÀ¥Às®gÁVzÁÝgÉAiÉÄÃ?
2. ªÀÄvÀÄÛ CzÉà ¢£À, CzÉà ¸ÀÀªÄÀ AiÀÄ CzÀÉà eÁUÀzÀ°è D jÃw ªÀÄÈvÀ VjeÁ GgÁ¼ÀgÀªÀjUÉ ¸ÀA§AzÀs¥ÀlÖ gÀÆ.72,000.00zÀ a£ÁߨsÀgÀtUÀ¼À£ÄÀ ß zÉÆÃZÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è DPÉAiÀÄ §Á¬ÄUÉ §mÉÖAiÀÄ£ÀÄß vÀÄgÀÄQ¹ MwÛ »rzÀÄ, G¹gÀÄUÀnÖ¹, D jÃw §mÉÖ vÀÄgÀÄQ¹zÀgÉ G¹gÀÄUÀnÖ ¸ÁAiÀÄÄvÁÛgÉA§ JA§ «ZÁgÀ DgÉiÁævÀjUÉ UÉÆwÛzÀÝgÀÆ ¸ÀÀºÀ D §UÉÎ 1£Éà DgÉÆæAiÀÄÄ DPÉAiÀÄ §Á¬ÄAiÀÄ£ÀÄß PÉʬÄAzÀ MwÛ PÁ£ÀÆ£ÀÄ ¸ÀÀAWÀµÀðPÉÌ M¼ÀUÁzÀ §Á®PÀ£ÄÀ JgÀqÀÆ PÉÊAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ C°èAiÉÄà EzÀÝ §mÉÖAiÀÄ£ÀÄß DPÉAiÀÄ §Á¬ÄUÉ vÀÄgÀÄQ¹ MwÛ »rzÀÄ G¹gÀÄUÀnÖ¹ PÉÆ¯É ªÀiÁrzÀ PÁgÀt DgÉÆævÀgÄÀ ¨sÁ.zÀA. ¸ÀA»vÉ PÀ®A 302 gÀrAiÀÄ°è C¥ÀgÁzÀsªÀ£ÄÀ ß J¸ÀÀVzÁÝgÀÉA§ §UÉÎ ¸ÀA±ÀAiÀiÁwÃvÀªÁV ¸Á©ÃvÀÄ ¥Àr¸ÀÀ®Ä C©üAiÉÆÃd£É PÀqÉAiÀĪÀgÄÀ ¸À¥sÀ®gÁVzÁÝgÉAiÉÄÃ?"
6. Considering both the oral and documentary evidence on record, the learned Sessions Judge has proceeded to hold that that on 20.8.2014 at about 11.00 p.m. Accused Nos.1 and 2 along with juvenile entered the house of the -7- CRL.A No. 1438 of 2017 deceased by removing the roof tiles and switched off the light and committed theft of gold ornaments worth Rs.72,000/- and while committing the said theft and carrying away the said articles, voluntarily caused the death of said Smt. Girija Urala by pressing her mouth with the help of cloth. The deceased died due to asphyxia secondary to obstruction of airways consistent with features of smothering, however viscera have been sent for chemical analysis. The cause of death remained unaltered as per Ex.P17/post-mortem report and Ex.P18/final opinion of doctor. Ultimately, the trial Court convicted the Accused No.1 for the offences punishable under Sections 302 and 392 of IPC and sentenced him to undergo Rigorous Imprisonment for 10 years for the offence punishable under Section 392 of IPC and imprisonment for life for the offence punishable under Section 302 of IPC, both with fine and default clauses and acquitted Accused No.2 for the said offences. Hence, the present appeal is filed by the appellant/Accused No.1.
7. Sri N.R. Krishnappa, learned counsel for the appellant/accused No.1 contended with vehemence that the impugned judgment of conviction and order of sentence passed -8- CRL.A No. 1438 of 2017 by the learned Sessions Judge convicting and sentencing the appellant/Accused No.1 for the offences punishable under Sections 302 and 392 of IPC, is without any basis, contrary to the material on record, cannot be sustained and liable to be set aside. He would further contend that the learned Sessions Judge convicted the accused No.1 for the offence punishable under Section 392 of IPC only on the basis of the confession statement of Accused No.2 and admittedly, the Accused No.2 has been acquitted for the offences punishable under Sections 302 and 392 of IPC. When the common charge was framed against both the accused and Accused No.2 has been acquitted by the trial Court, Accused No.1 is also ought to have been acquitted. He would further contend that the learned Sessions Judge has only considered the partial evidence of PW.1 and not considered the evidence of other witnesses, thereby erroneously proceeded to convict the accused No.1. He would further contend that the recovery of material objects in this case is false one and material objects are planted material objects. He would further contend that PWs.23 and 24 are mahazar witnesses for recovery of MO.1 on 26.9.2014 between 1.00 and 1.45 p.m. in the house of the accused as per -9- CRL.A No. 1438 of 2017 Ex.P14 and recovery of Mo.2 on 26.8.2014 between 3.10 p.m. and 4.00 p.m. as per Ex.P34 from the Koteshwara S.K. Goldsmith Industrial Cooperative Society where the Accused No.1 pledged the ornaments, but the mahazar witnesses have turned hostile. He would further contend that no independent witnesses examined to prove that Mos.1 to 4 were pledged. He would further contend that the learned Sessions Judge though proceeded to frame the common charge against Accused Nos.1 and 2 on 12.3.2015 for the offences punishable under Sections 392 and 302 of IPC and additional common charge on 16.6.2016 against both Accused Nos.1 and 2 for the offence punishable under Section 120B of IPC, except convicting the accused No.1 for the offences punishable under Sections 302 and 392 of IPC based on the confession statement of Accused No.2, absolutely there is no finding or any order/sentence passed by the learned Sessions Judge in respect of the offence punishable under Section 120B of IPC against Accused Nos.1 and 2. In the absence of any conspiracy, question of involvement of the accused No.1 in the homicidal death of the deceased and robbery as contended in the complaint would not arise. He would further contend that
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CRL.A No. 1438 of 2017the learned Sessions Judge convicted the accused mainly on the basis of the evidence with regard to recovery of articles/ Mos.1 to 4. When the prosecution failed to prove that the transaction of murder and robbery happened simultaneously, mere recovery of certain ornaments from the Accused No.1 cannot be a ground to convict the Accused NO.1 under Section 302 of IPC. In the circumstances, the learned Sessions Judge is not justified in convicting the appellant/accused No.1 for the offences punishable under Sections 302 and 392 of IPC and therefore sought to set aside the impugned judgment of conviction and order of sentence.
8. Per contra, Sri K.S. Abhijith, learned HCGP while justifying the impugned judgment of conviction and order of sentence passed by the trial Court convicting and sentencing the appellant/accused No.1 for the offences punishable under Sections 302 and 392 of IPC, would contend that Mo.5/blouse of the deceased recovered in the house of the deceased at the instance of the Accused No.1. He would further contend that the voluntary statement made by Accused Nos.1 and 2 clearly depict the involvement of the accused in the homicidal death of the deceased and also robbery as contemplated under the
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CRL.A No. 1438 of 2017provisions of Section 302 and 392 of IPC. He would further contend that recovery of Mos.1,2,3 and 4/ornaments of the deceased is proved by the evidence of the Investigating Officer and other prosecution witnesses including PWs.1 and 8, thereby based on the recovery of the ornaments/Mos.1 to 4 , the learned Sessions Judge rightly proceeded to convict the accused. Therefore, he sought to dismiss the appeal filed by the appellant/accused No.1.
9. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present criminal appeal are:
i) Whether the appellant/accused No.1 has made out a case to interfere with the impugned judgment of conviction and order of sentence insofar as convicting and sentencing him for the offence punishable under Section 302 of IPC in the facts and circumstances of the case?
ii) Whether the appellant/accused No.1 has made out a case to interfere with the impugned judgment of conviction and order of sentence insofar as convicting and sentencing him for
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the offence punishable under Section 392 of IPC in the facts and circumstances of the case?
10. This Court being the appellate Court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
(i) PW.1/Radhakrishna Urala, who is the complainant has deposed that the deceased Girija Urala was his wife's aunt and she was not having children and residing alone at Malurupete. He deposed that on 21.8.2014, his brother-in-law informed that Girija expired in the house and accordingly, he immediately reached the house of the deceased at 7.05 a.m. and noticed the injuries sustained by the deceased. He further deposed that at that time, gold jewels were not there on the body of the deceased and roof tiles have been removed in the bathroom and it appears somebody have trespassed into the house with an intention to commit robbery and killed the deceased. Accordingly, he has given
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the complaint as per Ex.P1. In the cross- examination, he admitted that he was not aware as to how many items of gold the deceased was having. He supported the case of the prosecution.
(ii) PW.2/Gayathri, who was residing at Mahalakshmi Nilaya, Manur village has deposed that she is running small grocery shop and the deceased Girija, who was aged about 84 years was residing in a house, which was adjacent to her house and the deceased has no issues. She further deposed that everyday at 6.45 a.m and at 4.30 p.m., she used to supply milk to the deceased. About one year back in the morning in August-2014, she has taken milk to the house of the deceased, but there was no response and she went inside the house since the door was not locked. She saw the deceased Girija lying with injuries and when she tried to wake her up, there was no response. She informed the same to the neighbour and the relatives. Thereafter, the local doctor on examination has stated the Smt. Girija died. She further deposed that roof tiles have
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CRL.A No. 1438 of 2017been removed in the bathroom and it appears somebody have trespassed into the house and robbed the gold ornaments of the deceased and killed her. She further stated that Police have not summoned her to the Police Station and she has not identified any of the accused persons and the material objects. She turned hostile to the case of the prosecution.
(iii) PW.3/Maxim Dias has deposed that he was doing Lathe machine business in the shop of deceased. He deposed that he knows the deceased Girija, aged about 84 years and she was residing alone and has no children. He deposed that in the month of August-2014, he came to know with regard to death of the deceased and when he went to the house of the deceased, he noticed that roof tiles have been removed and it appears somebody have trespassed into the house and robbed the gold ornaments of the deceased and killed her. After 4 days from the incident, the Police have not obtained his statement with regard to identification of the accused and the
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CRL.A No. 1438 of 2017ornaments of the deceased. He turned hostile to the case of the prosecution.
(iv) PW.4 /Lakshmana Poojary, who is the Mason by profession has deposed that in August-2014 he had been to the house of one Hebbara in Manuru village in connection with repair work in the of bathroom. After finishing the said work, he proceeded to Saligrama village and again came back to Manur village and at that time, he came to know that somebody killed the deceased Girija and robbed her gold ornaments. He is personally not aware of the deceased. He has stated that he has not gone to the house of the deceased on the next day of the incident and saw the deceased and removal of roof tiles in the bathroom. He has turned hostile to the case of the prosecution.
(v) PW.5/Sathyabhama, who is a distant relative of deceased Girija has deposed that the deceased Girija was residing adjacent to the house of PW.2. She further deposed that the deceased was a
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CRL.A No. 1438 of 2017resident of the same village and the deceased has no children and in August-2014, P.W.-2 informed her through telephone that someone robbed the ornaments of the deceased and killed the deceased. Thereafter, the Police called her to the Police Station and shown the photographs and Mos.1 to 4 and she has not identified the same. She turned hostile to the case of the prosecution.
(vi) P.W.6/Chandra K deposed that he knows accused No.1 for the last two years as they were in the habit of having tea together. On 23.08.2014, the 1st accused enquired him as to whether he has any Saving Bank Account in a bank and when he asked what for, he told that loan has to be taken in a bank by mortgaging the ornaments belonging to his mother. Accordingly, he has taken the accused No.1 to Kundapura Maniuram Finance Company. At that time, one Mr.Sanketha was there. Accused No.1 has given two pairs of gold ornaments (matis) to him and he (PW.6) has pledged them in Manipuram Finance Company in his name and obtained
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CRL.A No. 1438 of 2017Rs.8,000/- and given it to Accused NO.1. Out of Rs.8,000/-, Accused NO.1 gave him Rs.1,000/- towards mobile purchase charges and remaining amount taken by himself and one Mr. Sanketa. On 26.8.2014, Kota Police asked him to come to Manipuram Finance. Accordingly, he went to Manipuram Finance at 2.30 p.m. At that time, accused and Sanketha and the Police were there. The Police informed him that the ornaments that were pledged by him earlier were infact robbed by the accused from the deceased after killing her and requested to get release of the said ornaments. Accordingly, he got released the said items - Mos.1,3 and 4 from the Finance Company and given to the Police and he is witness to mahazar/Ex.P11. He supported the case of the prosecution with regard to seizure of ornaments.
(vii) PW.7/Susheela deposed that the deceased is a distant relative to her. On hearing the news of death of the deceased, she came to the house of the deceased on 28.8.2014 and saw the dead body of
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CRL.A No. 1438 of 2017the deceased with injury on the left hand, but no ornaments were found on the body. Accordingly, the Police prepared the panchanama as per Ex.P12 and she has signed at Ex.P12(a) and she has also identified the photographs of the deceased as per Ex.P9 and Ex.P10. She is also a witness to the spot sketch Ex.P13 and her signature is at Ex.P13(a). She further stated that it appears somebody killed the deceased for gain and robbed the ornaments. Nothing worth is elicited to discredit her testimony. She supported the case of the prosecution.
(viii) PW.8/Ganesh Acharya, who was a goldsmith and resident of Giliyur village, Udupi, has deposed that he knows the incident of death of the deceased and in connection with the same, the Police arrested certain persons. On 26.8.2014, the Police called him to the Police Station and taken him in a Police Jeep to a house in Kundapur and shown two bangles and he certified that they are gold ornaments and he is a witness to mahazar/Ex.P14 and Ex.P14(a) is his signature. Thereafter, the Police taken him to
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CRL.A No. 1438 of 2017Manipur Gold Finance and seized gold ornaments (matis) that were pledged there earlier and drawn the mahazar as per Ex.P15 and Ex.P15(a) is his signature. He identified the photograph/Ex.P2 as that of Mos.1,3 and 4. He supported the case of the prosecution. Nothing worth is elicited to disbelieve his testimony.
(ix) PW.9/Ganesh Shetty who is a photographer by profession has deposed that he is having photo studio at Manuru village. He came to know that the incident of murder of the Girija is for gain. The Police taken him along with the accused in a jeep to Manipur Finance and seized 4 gold ornaments (matis) as per Ex.P11 and Ex.P11(a) is his signature. He supported the case of the prosecution.
(x) PW.10/Vasudeva Shetty has deposed that he is working in the Manipuram Finance since 2-3 years prior to his evidence. He deposed that on 26.8.2014, the Bhrammavara Police came along with Accused No.1 and PW.6 to their office and
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CRL.A No. 1438 of 2017asked to produce the ornaments (4 matis weighing about 4.2 grams) that were mortgaged by PW.6 on 23.8.2014 and accordingly the said ornaments were produced and he is a witness to the mahazar/Ex.P11 prepared in this regard. He identified Ex.P2 as that of MOs.3 and 4 and also identified Ex.P16 subject to objection. He supported the case of the prosecution.
(xi) PW.11/Dr.Anitha has deposed that she has been working as Assistant Professor in KMC Hospital in the Department of FSL since 2 years 2 months. On 21.8.2014 on the request made by the Police to conduct post-mortem of the deceased Girijai, aged about 84 years, she conducted post-mortem examination on the dead body of the deceased Girija from 3.40 to 5.00 p.m. and Ex.P17 is the PM report. She has specifically stated that the following external injuries were present over the dead body of the deceased:
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"1. Contusion, bluish in colour, measuring 5 x 3.5 cm was present over entire surface of the right ear.
2. Contusion, bluish in colour, measuring 3.5 x 2.2 cm was present over the right side of the face, situated 1.8 cm below the right tragus.
3. Multiple contusions, bluish in colour, over an area of 3 x 1.5 cm were present over inner aspect of the lower lip on right side, varying in sizes from 0.5 x 0.3 cm to 1 x 1 cm, starting from the angle of the mouth associated with multiple superficial lacerations, over an area of 2.2 x 0.6 cm, varying in sizes from 0.4 x 0.1 cm to 0.5 x 0.1 cm.
4. Contusion, bluish in colour, measuring 2 x 1 cm was present over the inner aspect of the upper lip on left side, starting from the angle of mouth on left side.
5. Two contusions, reddish blue in colour, measuring 1.2 x 1 cm and 1.8 x 1 cm, were present over the back of the right hand, situated 0.8 cm apart and one
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above the other, starting at a point 2 cm below the right wrist.
6. Laceration (tear), measuring 0.3 x 0.2 cm was present over the left ala of the nose, situated 2 cm from the outer border of ala and at the defect of the nose stud.
7. Laceration (tear), measuring 0.3 x 0.2 cm was present over the left ear lobule, situated on the outer aspect of defect of the ear stud lying 2.8 cm below and 1 cm away from the tragus.
All the aforementioned injuries were antemortem nature."
She supported the case of the prosecution.
xii) P.W. 12 - Sri Narayana Gudigar, who is the Carpenter and resident of Vakwadi village, Kundapura Taluk, has deposed that he is the owner of two wheeler vehicle bearing registration No. KA 20 EF 4870 which was seized by the Bramhavara Police and he got it released from the Court on 18.11.2011 as per receipt and his
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CRL.A No. 1438 of 2017signature marked as Ex.P.20 and Ex.P.20(a) respectively and that the juvenile offender is his son. He has supported the case of the prosecution;
xiii) P.W.13 - Sri Vasudeva Holla, a Private Doctor and resident of Talluru has deposed that his neighbour Radhakrisha Urala had called him over phone on 21.8.2014 at about 7 a.m. and asked him to come near the house of Girija Urala. When he went there, Girija Urala was sleeping in the hut. He was informed that she was not breathing and struggling, so he went and examined her, but she was no more. Nothing has been elicited in his cross-examination to disbelieve his statement and he has partly supported the case of the prosecution;
xiv) P.W.14 - Smt. Geethalakshmi, Scientific Officer of Regional Forensic Science Laboratory, Mangalore, has deposed that she was working in the Mangalore RFSL since 2012. After analyzing item Nos.1 to 6, she issued the report marked as Ex.P.22 and Serology report marked as Ex.P.23. Her signatures
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CRL.A No. 1438 of 2017are marked as Exs.P.22(a) and 23(a). She identified the material objects M.Os.6 to 9. Though she has supported the case of the prosecution, has not been cross-examined;
xv) P.W.15 - Sri N.R. Nayak, Deputy Director of Regional Forensic Science Laboratory, Mangalore, has deposed that he has been working in the said office between 12.9.2014 and 11.12.2014. P.W.14 had sent three bottles for examination, one bottle contained stomach and a portion of small intestine, second bottle contained a portion of liver and kidney and third bottle contained saturated solution of sodium chloride as preservative and he has issued the report marked as per Ex.P.24. Accordingly, he has supported the case of the prosecution;
xvi) P.W.16 - Sri Subhash, Panchayath Development Officer of Kota Grama Panchayath, Kota, has deposed that on the request of the investigating officer of Bhrammavara Police, he gave the
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CRL.A No. 1438 of 2017documents of the house property of the deceased Girija Urala and the same are marked as Ex.P.25 and his signature as Ex.P.25(a). He has supported the case of the prosecution, but has not been cross- examined;
xvii) P.W.17 - Sri Harish, Assistant Engineer Public Works Port and Inland Water Transport Department Sub Division, Udupi, has deposed that on the request made by the concerned Investigating Officer of Bhrammavar Police Station, he visited the spot and prepared the sketch as per Ex.P.26 and his signature is marked as Ex.P.26(a). He has supported the case of the prosecution;
xviii) P.W.18 - Sri Kamalakara Naika, Inspector of Police, Malpe has deposed that on 21.8.2014 at 12 noon P.W.1 - Sri Radhakrishna Urala appeared and lodged a written complaint marked as Ex.P.1 . He sent the FIR marked as Ex.P.27 and later, on the direction of the Investigating Officer, on 26.8.2014 at 6.45 a.m. apprehended accused No.1 at Kumbashi and
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CRL.A No. 1438 of 2017produced him before the Court as per the report Ex.P.28;
xix) P.W.19 - Sri Sudhesh Shetty, Head Constable No.1772 of Hirehadka Police Station, has deposed he has been working there since 2012 tol June, 2015 and as per the direction of C.W.17, he and P.Ws.28 to 30 apprehended accused No.2 at 3.45 a.m. and produced him before the Court and his report and signature are marked as Exs.P.29 and 29(a) respectively;
xx) P.W.20 - Sri Shivananda, Police Constable 1619 in the Office of the District Superintendent of Police, Udupi, has deposed that he collected the Call Details Register of accused No.2 relating to Crime No.182/2014 from the Department and supported the case of the prosecution;
xxi) P.W.21 - Sri Arun B. Nayak, Circle Inspector of Bhramhavara Police Station has deposed that on 22.8.2014, he took charge of the investigation from C.W.36 Gopala Nayaka and recorded the statements
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CRL.A No. 1438 of 2017of C.Ws.5 to 6, visited the spot and constituted a team to arrest the accused. On 26.8.2014 at 3.45 a.m., the police arrested accused No.2 and produced before him as per Ex.P.31 and his voluntary statement is marked as Ex.P.32 and his signatures are marked as Exs.P.31(a) and 32(a) and that of accused as Ex.P.32(b);
xxii) P.W.22 - Sri Gopal Nayak - the Investigating Officer has deposed that he has been working in Manipal Police Station from 8.8.2014 till 9.5.2015. He was placed in-charge of the Bhrammhavar Circle from 21.8.2014. He took charge of the investigation in Crime No.182/2014 and visited the spot at 12 noon, conducted inquest mahazar as per Ex.P.12 and also prepared the spot panchanama as per Ex.P.13 and got the photographs. Thereafter, the same were handed over to P.W.21 xxiii) P.W.23 - Sri Nithyananda Prabhu, Businessman of Manuru Village of Kundapura has deposed that he came to know about the murder of the deceased,
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CRL.A No. 1438 of 2017due to which, the accused were arrested. The police had called him to the Police Station and when he went there, he found accused No.1 and juvenile offender. He drew mahazars for arresting accused Nos.1 and 2 marked as Exs.P.32 and 33; and xxiv) P.W.24 - Sri Umesh Shetty, Businessman of Manuru Police Station has deposed that he came to know that Girija Ulal of his village was dead and in that regard, the Police had arrested accused No.1 and also accused No.2. About two to three years back, the police had called him to the Police Station and had taken his signatures to Exs.P.14, 15, 31 to 35 which are marked as Exs.P.14(d), 15(c), 31(c), 32(d), 33(b), 34(b) and 35(b). Even the clothes of the deceased were seized, as per the seizure mahazar marked as Ex.P.38 and his signature is marked as Ex.P.38(a). He admits that he witnessed seizure of clothes or material objects M.Os.1 to 8 and also he does not know what is written in Exs.P.31 to 35. He has turned hostile to the case of the prosecution.
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CRL.A No. 1438 of 2017Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict accused No.1 for the offences punishable under the provisions of Sections 302 and 393 of IPC and acquitted accused No.2 for the said offences and admittedly, no finding was recorded by the learned Sessions Judge against the accused with regard to additional charge framed for the offence punishable under Section 120B of IPC.
11. It is not in dispute that the learned Sessions Judge while framing charges and additional charge against the accused for the offences punishable under Sections 302, 392 and 120B of IPC., has not recorded any finding for the offences punishable under Sections 120B and 392 of IPC against any of the accused and the State has not filed any appeal against the order of acquittal of accused No.2 by the learned Sessions Judge which has reached finality.
12. The gist of the prosecution is that as per Ex.P.1, P.W.1 aged about 72 years was residing with his family, but the deceased Girija Urala was residing alone at Malurupete and was not having any children. On 21.8.2014, in the morning, his
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CRL.A No. 1438 of 2017brother-in-law/Krishna Murthy called him and informed that Girija has died in the house of Manuru Pete. So he immediately went to her house at 7.05 a.m. and saw her laying, blood was oozing from her ears, left ear was cut due to snatching of stud, no jewel was found on her and inside the bathroom, three tiles were removed and on seeing the scene of offence, it appeared that it was a murder for gain. He immediately informed the police and lodged a complaint as per Ex.P.1, who registered a case in Crime No.182/2014 against an unknown person under the provisions of Section 302 of IPC. The conviction of the accused for the offences punishable under Sections 302 and 392 of IPC., by the learned Sessions Judge was mainly on the ground that at the instance of accused certain gold articles - M.Os.1 and 2 were recovered on 26.8.2014 as per Exs.P.14 and 34, from the Manipuram Gold Finance Company at Kundapur where accused No.1 had pledged the gold articles at the instance of P.W.6, whose version is that accused No.1 had come to him with certain gold ornaments stating that they belonged to his mother and he wanted to pledge the same for money as he wanted to open a bank account. Accordingly, at his instance, gold ornaments were pledged and in turn they
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CRL.A No. 1438 of 2017gave a sum of Rs.8,000/-, out of which, he was given a sum of Rs.1,000/- towards purchase of mobile phone and remaining amount was given to accused No.1. The evidence on record clearly depicts that except the witnesses - C.Ws.1, 6, 7 and 8, none of the prosecution witnesses have deposed about recovery of gold ornaments or involvement of accused No.1 in the homicidal death of the deceased.
13. It is also not in dispute that common charges were framed against accused Nos.1 and 2 on 12th March, 2015 for the offences punishable under the provisions of Sections 302 and 392 of IPC., and additional common charge on 16th June, 2016 for the offence punishable under Section 120-B of IPC. On the basis of the evidence adduced by the prosecution witnesses, out of whom, some have turned hostile, the learned Sessions Judge by framing common charges against the accused, though acquitted accused No.2 for the offence punishable under Section 302 of IPC, convicted accused No.1 for the said offence. Admittedly, the acquittal of accused No.2 for the said offence is not challenged by the State by filing any appeal.
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CRL.A No. 1438 of 2017
14. It is relevant to state at this stage, that when a common charge was framed against the accused for the offence punishable under Section 120-B of IPC., neither the learned Sessions Judge recorded any finding on the common charge framed for the offence punishable under Section 120-B of IPC., nor the State has filed any appeal for non recording of findings when the charge was framed for the said offence. According to the prosecution, no charge was framed against the accused for having committed the murder of the deceased with common intention for personal gain and robbing material objects - M.Os.1 and 2 from the deceased and thereby an offence punishable under Section 302 of IPC., was committed by the accused.
15. On meticulous examination of the evidence on record particularly the evidence of P.Ws.1, 6 to 18 and the official witnesses, it clearly depicts that accused No.1 requested P.W.6 to pledge the ornaments - M.Os.3 and 4 belonging to the deceased and P.W.6 had taken the accused to Manipuram Gold Finance Company at Kundapur where accused No.1 had pledged the gold articles for a sum of Rs.8,000/- as per Ex.P.16, dated 23rd August, 2014, but the incident has occurred
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CRL.A No. 1438 of 2017on 28th August, 2014 at about 11.30 p.m. If the accused has not pledged the ornament, how was receipt for the said transaction was found in the house of accused No.1 as per Ex.P.14 - seizure mahazar conducted on 26.9.2014 between 1.00 and 1.45 p.m. and the material objects on 26.8.2014 between 15.10 to 16.00 hours from the S.K. Goldsmith Industrial Co-operative Society Limited where the accused had pledged the gold ornaments as per Exs.P.23 and 24 to which accused Nos.3 and 4 have turned hostile. The evidence of the police officer and the material objects recovered from accused No.1 corroborate with the evidence of P.W.6, who had pledged the gold ornaments at the instance of accused. Even the evidence of the doctor P.W.11 and his opinion are not in dispute.
16. Though the unfortunate incident occurred on 20th August, 2014 and the evidence of the prosecution witnesses is recorded in the year 2015 after one year, there are many omissions and contradictions in the evidence of the prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police
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CRL.A No. 1438 of 2017statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. "It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent."
17. The material on record clearly proves that the death of the deceased was homicidal in nature; recovery of material objects - M.Os.1 to 4 i.e., gold ornaments and cash of Rs.8,000/- by the investigating officer as per Exs.P.14 and 34;
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CRL.A No. 1438 of 2017the evidence of P.W.6 and voluntary statement of the accused clearly depicts that the prosecution has been able to prove the recovery of ornaments belonging to the deceased at the instance of accused No.1 and thereby, the provisions of Section 392 of IPC., has been proved beyond reasonable doubt.
18. As rightly contended by the learned Counsel for the accused that the learned Sessions Judge has proceeded to convict accused No.1 only on the basis of the confession statement of accused No.2, which cannot be a ground to convict the accused for the offences punishable under the provisions of Section 302 of IPC. Since the prosecution has failed to prove beyond reasonable doubt the circumstances must conclusively point the involvement of the accused persons in the commission of offence under the provisions of Section 302 of IPC. The chain leading to the sole conclusion that it is the accused persons and nobody else have committed the crime is not established. Based on the recovery of ornaments, it was presumed that accused No.1 might have been involved in the homicidal death of the deceased. Since the prosecution has failed to prove the circumstances beyond reasonable doubt, the case rests either on the oral dying declaration or the
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CRL.A No. 1438 of 2017circumstantial evidence. In case, where the evidence is of circumstantial in nature, the circumstances from which the conclusion of the guilt is to be drawn in the first instance should be fully established and all the facts should be consistent only with the hypothesis of the guilt of the accused. Again the circumstance should be of a conclusive nature and tendency, and they should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete that there should not be any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. As the prosecution has failed to prove the murder and recovery as they are simultaneously done for the same transaction and there was no other person except the accused, and as the accused has not offered any explanation in his defence as to why these witnesses have falsely implicated him, in the absence of any discrepancy or material contradiction or omission from the prosecution witnesses about involvement of accused No.1 in the homicidal death of the deceased seems to be on the basis of the recovery of some
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CRL.A No. 1438 of 2017ornaments belonging to the deceased, and as such, he has been convicted under the provisions of Section 302 of IPC.
19. In the facts and circumstances of the case, the prosecution has established its case that it is the accused and nobody else has committed the alleged offence. Firstly, on the date of the incident, the presence of the accused at the spot is not proved and secondly, the ornaments belonging to the deceased were in possession of the accused persons and the same are recovered from the S.K. Goldsmith Industrial Co- operative Society Limited where the accused had pledged as per Exs.P.23 and 24 and the receipt of the same was with accused No.1 which was recovered during the course of investigation, cannot be a ground for conviction and as such, he is entitled for acquittal. As the circumstances show that they have not been recovered and the murder has taken place in the same transaction, accused No.1 ought not to have been convicted for the offence punishable under Section 302 of IPC., as has been done in the present case.
20. Admittedly, in the present case, though the prosecution has not proved its case beyond reasonable doubt,
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CRL.A No. 1438 of 2017the learned Sessions Judge has proceeded to convict the accused under the provisions of Section 302 of IPC., mainly on the basis of the recovery of ornaments and absolutely, there is no material to implicate the accused in the homicidal death of the deceased and even the investigating officer has not collected any material to prove that accused No.1 was involved in the said offence except recovery of gold ornaments. Mere recovery of the gold jewellery and cash at the instance of the accused persons based on their voluntary statements, cannot be a ground to convict the accused and absolutely no material is produced by the prosecution to show that the robbery and murder form part and parcel of the same transaction. The presumption that the accused committed murder cannot be drawn merely based on the recovery and the entire case of the prosecution against the accused No.1 is based on the recovery of material objects, Mos.1 to 4 - gold ornaments and cash. Absolutely there is no material to prove that the accused persons have committed the murder of the deceased so as to attract the provisions of Section 302 of IPC.
21. The provisions of Section 27 of the Indian Evidence Act, 1872 reads as under:
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"27. How much information received from accused may be proved - Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved:
A careful perusal of the said provision, makes it clear that the said section based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly, can be safely allowed to be given in evidence.
But where the facts are such as indicating reasonable doubt as regards the guilt of the accused, benefit of the same must be availed by him.
22. The provisions of Section 392 of IPC provides for punishment for robbery, which reads as under:
"392. Punishment for robbery - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to
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fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
A careful reading of the said provisions makes it clear that the essential ingredients of Section - 392 of IPC are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
It is to be noted that Section 392 of IPC., provides punishment for robbery which is the punishment imposed for the offence defined in Section 390 of IPC. If the offence is committed on a highway and between sunset and sunrise, the punishment is higher. Section 390 of IPC., defines "robbery" as follows:
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"390. Robbery.--In all robbery there is either theft or extortion -
When theft is robbery: Theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery: Extortion is 'robbery' if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation: The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
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CRL.A No. 1438 of 2017The said provision makes it clear that robbery is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in the course of theft and not subsequently. It is not necessary that violence actually should be committed, but even an attempt to commit is enough.
23. On careful perusal of the material on record clearly depicts that the learned Sessions Judge has proceeded to convict the accused mainly on the basis of the recovery of material objects - gold articles and cash and in the absence of proof the accused have committed the murder for gain and it is not plausible to come to the conclusion that accused No.1 has committed the murder. The entire case of the prosecution is that Ex.P.1 - complaint is lodged by P.W.1 against unknown person and it rests on circumstantial evidence.
24. Where circumstances are susceptible of two equally possible inferences, the Courts should accept that inference
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CRL.A No. 1438 of 2017which favours the accused rather than an inference which goes in favour of the prosecution. The five principles must be satisfied by the Court before accepting the circumstantial evidence. The following are the tests that must be satisfied :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved"
as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :
1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
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CRL.A No. 1438 of 2017(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
25. The material on record clearly depicts that though there are ingredients in the charge framed by the Sessions Court with regard to theft for personal gain and homicidal death of the deceased, to attract the provisions of Sections 392 and 302 of IPC., there must be strong evidence. In the absence of prosecution proving that the murder had taken place on the same transaction and the link in the chain of circumstances with regard to involvement of the accused in the homicidal
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CRL.A No. 1438 of 2017death of the deceased, the accused cannot be held guilty of the offence punishable under the provisions of Section 302 of IPC.
26. It is also not in dispute that though common charges were framed against accused Nos.1 and 2 under the provisions of Sections 302, 392 and 120B of IPC, on the same set of evidence, the learned Sessions Judge has come to the conclusion that the prosecution has not established its case beyond reasonable doubt against accused No.2, and hence acquitted accused No.2 for the offences punishable under Sections 302 and 392 of IPC. Admittedly, no evidence is recorded either against accused No.1 or accused No.2 for the offence punishable under the provisions of Section 120 of IPC., and the entire judgment is based on presumption and assumption. As such, the learned Sessions Judge was not justified in convicting the accused for the offence punishable under Section 302 of IPC.
27. In view of the fact that the material on record establish beyond reasonable doubt that the accused is involved in the offence punishable under Section 392 of IPC., through the evidence of P.Ws.1, 6 and 8 and the official witnesses and
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CRL.A No. 1438 of 2017recovery of gold ornaments i.e., M.Os.1 to 4 as per Exs.P.14 and 34, the learned Sessions Judge was justified in convicting accused No.1 and acquitting accused No.2 for the offence punishable under Section 392 of IPC.
28. For the reasons stated above and in the facts and circumstances of the present case, the first point raised in this criminal appeal is answered partly in the affirmative holding that accused No.1 has made out a case to interfere with the impugned Judgment of conviction and order of sentence passed by the learned Sessions Judge convicting accused No.1 for the offence punishable under the provisions of Section 302 of IPC., and accordingly, second point is answered in the negative holding that accused No.1 has not made out any ground for interference with the impugned judgment of conviction and order of sentence in far as his conviction under the provisions of Section 392 of IPC., and sentencing him to undergo Rigorous Imprisonment for a period of Ten Years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, to undergo further Simple Imprisonment for a period of two years is hereby confirmed.
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CRL.A No. 1438 of 2017
29. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal filed by accused No.1 is allowed in-part;
(ii) The impugned judgment of conviction, dated 19.7.2017 and order of sentence, dated 20.7.2017 convicting accused No.1 for the offence punishable under Section 302 of IPC., and sentencing him to undergo imprisonment for life and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine to undergo further two years Simple Imprisonment is hereby set aside;
(iii) The appellant - accused No.1 is acquitted for the offence punishable under Section 302 of IPC;
(iv) The conviction of appellant - accused No.1 for the offence punishable under Section 392 of IPC and sentencing him to undergo Rigorous Imprisonment for a period of Ten Years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) and in
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CRL.A No. 1438 of 2017default of payment of fine, to undergo further Simple Imprisonment for a period of two years is hereby confirmed;
(v) The period of sentence already undergone by appellant - accused No.1 shall be given set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure; and
(vi) Office is directed to remit the Trial Court records forthwith.
Sd/-
JUDGE Sd/-
JUDGE Page Nos. 1 to 22 ...GSS* 23 to end ...Nsu/-