Karnataka High Court
Jagguru Nagaraj @ Nagaraj @ Jagguru ... vs State Of Karnataka on 31 October, 2022
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 118 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
CRIMINAL APPEAL NO. 118 OF 2017
BETWEEN:
1. JAGGURU NAGARAJ @ NAGARAJ,
@ JAGGURU NAGARAJ,
S/O. JAGGURU BHARAMAPPA,
AGED ABOUT 39 YEARS,
OCC FARMER,
R/AT VILLAGE GOWTHAMAPURA,
TALUKA SAGAR,
DISTRICT SHIVAMOGGA,
PERMANENT DURGAMBA COLONY,
GOWTHAMAPURA TALUK,
SAGAR-577401.
...APPELLANT
(BY SRI ADINARAYAN, ADVOCATE, FOR
SRI D. S. MALIPATIL., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
Digitally signed by BY SHO SAGAR RURAL POLICE STATION,
USHA SHIVAMOGGA DISTRICT.
NAGENAHALLI REPRESENTED BY SPP,
SHANMUKHAPPA
Location: High
HIGH COURT OF KARNATAKA,
Court of Karnataka AT BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)
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CRL.A No. 118 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION DATED 05.10.2016 AND ORDER
OF SENTENCE DATED 14.10.2016 PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA
SITTING AT SAGAR, IN S.C.NO.10012/2016 AND
SENTENCEING HIM TO UNDERGO IMPRISONMENT FOR LIFE
i.e., TO REMAIN IN PRISON UNTIL HIS DEATH AND TO PAY
FINE OF RS.50,000/- IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO RIGOROUS IMPRISONMENT FOR 1 YEAR FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC., AND TO
UNDERGO SIMPLE IMPRISONMENT FOR THREE YEARS AND TO
PAY A FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF FINE
TO UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS
AND BOTH THE SENTENCES TO RUN CONCURRENTLY
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present criminal appeal is filed by the convicted accused in S.C.No. 10012/2016 against the impugned judgment of conviction, dated 5th October, 2016 and order of sentence, dated 14.10.2016 passed by the learned V Additional District and Sessions Judge, Shivamogga, sitting at Sagar convicting him for the offences punishable under Sections 302 and 201 of the Indian Penal Code (IPC) and sentencing him to undergo imprisonment for life i.e., to remain in prison until his death and to pay a fine of Rs.50,000/- for the offence -3- CRL.A No. 118 of 2017 punishable under Section 302 of IPC., in default of payment of fine to undergo rigorous imprisonment for one year; and to undergo simple imprisonment for three years and to pay a fine of Rs.10,000/- for the offence punishable under Section 201 of IPC., and in default of payment of fine to undergo simple imprisonment for three months and both the sentences to run concurrently.
2. It is the case of the prosecution that the complainant is the father of the deceased Savita and resident of Nadakalasi, Kasaba Hobli, Saagar Taluk. He had five daughters and his second daughter - Savita had been given to the accused in the month of June, 2009 and out of their wedlock, one male and one female children were born. They led a smooth marital life for six months and accused suspecting her character used to ill-treat her and was not allowing her to speak with anyone. As he was harassing her regularly, she was living under threat. Many times, the complainant and his sons- in-law, Manjappa and Nagaraj advised the accused to look after his wife Savita well, but the accused continued his harassment towards her by abusing and assaulting. On 19.11.2015 at -4- CRL.A No. 118 of 2017 about 6.30 p.m., the accused called the eldest son-in-law of the complainant on phone and informed that he is going to kill the deceased Savitha before morning and asked him to bring rice and coconut. On 20.11.2015 in the morning, said Manjappa, complainant's daughter Geeta and complainant went to Gowtamapur and enquired the accused regarding whereabouts of Savita for which, the accused told that he had killed her by assaulting with pipe/rod on her head and dumped her into the pond in their land. Then they went and saw into the agricultural pond in their land at about 11.30 a.m. and informed the police. On 19.11.2015 during the night hours, the accused had assaulted the deceased Savita with iron pipe/rod on her face and head and committed her murder and thrown her body into the agricultural pond situated behind their residence in their land.
3. Based on the aforesaid complaint, the jurisdictional police registered a case in Crime No.391/2015 on 20.11.2015 at about 6.00 p.m. for the offences punishable under Sections 302 and 201 of IPC. The investigating officer after conducting -5- CRL.A No. 118 of 2017 investigation, filed the charge sheet against the accused in respect of the said offences.
4. The jurisdictional Magistrate committed the case to the Court of Sessions and the Committal Court after taking cognizance of the offences punishable under Sections 302 and 201 of IPC., framed the following charges against the accused on 13th May, 2016:
"That on 19.11.2015 at about 6.00 p.m. in your house at Durgamba colony of village Gowthamapura coming within the limits of Sagar Rural police Station, you accused being the husband of victim Savita suspecting her fidelity picked up a quarrel with her and assaulted on her head with a pipe shown at column No.11 of charge sheet and when she fell unconscious you accused with an intention to kill her lifter her up carried her to the well situated in your land and dumped her into it and thereby caused her death and thereby committed culpable homicide amounting to murder punishable under section 302 of IPC and within my cognizance.
That on the above said date, time and place, you accused with an intention to -6- CRL.A No. 118 of 2017 destroy the evidence of offence and so as to make it appear like a case of suicide dumped her into the well when she was unconscious and thereby committed an offence punishable under section 201 of IPC and within my cognizance.
Further the learned Sessions Judge read over and explained the charges framed to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution in all examined 17 witnesses as P.Ws. 1 to 17 and got marked the documents - Exs.P.1 to 20 and material object-plastic pipe as M.O.1. After completion of the evidence of the prosecution witnesses, statement of the accused as contemplated under the provisions of Section 313 Cr.P.C., was recorded. Though accused denied all the incriminating evidence adduced by the prosecution witnesses, did not lead any defence evidence.
6. Based on the aforesaid pleadings, the learned Sessions Judge formulated two points for determination and considering both oral and documentary evidence on record, recorded a finding that the prosecution has proved beyond -7- CRL.A No. 118 of 2017 reasonable doubt that on 19.11.2015 at about 6.00 p.m. in the house of the accused at Durgamba Colony of village Gowthamapura coming within the limits of Sagar Rural Police Station, the accused being the husband of victim Savita, suspecting her fidelity picked up a quarrel with her and assaulted on her head with a pipe and when she fell unconscious, the accused with an intention to kill her, lifted her up, carried to the well situated in his land and dumped her into it and caused her death and thereby, committed an offence of culpable homicide amounting to murder punishable under Section 302 of IPC. It was further recorded that the that the prosecution has proved that the accused with an intention to destroy the evidence of offence and to make it appear like a case of suicide dumped her into the well, when she was unconscious, and thereby committed an offence punishable under Section 201 of IPC. Accordingly, by the impugned judgment of conviction and order of sentence convicted the accused for the aforesaid offences as alleged in the charge sheet. Hence, the present criminal appeal is filed by the accused.
7. We have heard the learned Counsel for the parties. -8- CRL.A No. 118 of 2017
8. Sri Adinarayan for Sri D.S. Malipatil, learned Counsel for the accused contended that the impugned judgment of conviction and order of sentence passed by the Sessions Court convicting the accused for imprisonment for life and simple imprisonment for three years with default sentences for the offences punishable under Sections 302 and 201 of IPC is erroneous and contrary to the material on record and hence, the same cannot be sustained. He would further contend that Court below observing that according to the doctor, the death of Smt. Savita was due to drowning in the water, has proceeded to convict the accused on presumption and assumption, which cannot be sustained. He would further contend that when the accused has called his co-brother over phone that he is going to kill his wife Savita and asked him to bring rice and Coconut, Manjappa instead of going to the house of the accused went in search of the complainant. Even as per the post mortem report, no injuries were found on the dead body of Savitha, but the inquest panchanama clearly states that there were injuries as it is possible to sustain such injuries while taking the dead body out of the water, and therefore, he contended that it is possible to sustain injuries while taking the -9- CRL.A No. 118 of 2017 body out of water and as such, the impugned judgment of conviction and order of sentence is illegal. When the motive to commit the murder of the deceased Savita due sudden provocation and the nature of the accused in suspecting the deceased is not proved and as per the spot mahazar, as no blood stains were forthcoming in the doors of the accused, the impugned judgment of conviction and order of sentence cannot be sustained. He would further contend that admittedly, when the mahazar witnesses - P.Ws.4 to 8 have not supported the case of the prosecution, the learned Sessions Judge ought to have given benefit of doubt to the accused and acquitted him.
9. The learned Counsel for the appellant-accused would further contend that as per the medical report, the death was due to asphyxia and there is no material contradiction in the evidence of the prosecution witnesses and as such, in the absence of any eye witness to the case of the prosecution, the conviction of the accused cannot be sustained and the prosecution ought to have proved beyond reasonable doubt whether the accused had the intention or knowledge of committing the homicidal death of the deceased when
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admittedly, the postmortem report-Ex.P.10 depicts that the death was due to asphyxia and there are no external injuries found on the body of the deceased Savita as per the postmortem report. In the absence of the same, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge on the accused for imprisonment of life is illegal and contrary to the evidence on record.
10. In the alternative, it is contended the learned Counsel for the appellant contended that on the unfortunate day, when the accused was in the house and as the deceased came late, the accused being the husband, has questioned her as to where she had gone till that time. So she replying that why does he want, starting quarrelling with him and as such, he got enraged and took the plastic pipe which was lying there and hit two to three times on her head and as a result, she fell unconscious. Therefore, this is not a fit case to convict the accused under the provisions of Sections 302 and 201 of the Indian Penal Code. He further contended that of course due to provocation and at the spur of the moment, the accused- husband of the deceased Savita, might have committed an
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offence and thereby, the offence falls under the provisions of Section 304 Part II of IPC. Therefore, he sought to allow the criminal appeal.
11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the State, while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge contended that the evidence of P.Ws.1 to 3 clearly depicts that the accused used to quarrel with his wife suspecting her fidelity. He further contended that as per the inquest mahazar, Ex.P.9, the blood was oozing from the nose and ear of the deceased Savita due external injuries on her body; recovery of M.O.1 - plastic pipe at the instance of the accused by the investigating officer and the evidence of the P.W.11- Nagappa, mahazar witnesses for spot mahazar Ex.P.11 supported the case of the prosecution. He would further contend that as on the date of the unfortunate incident, though the accused was very much present in the house, he neither lodged any complaint nor stated anything while recording his voluntary statement under Section 313 of the Code of Criminal Procedure, except denial of the entire case
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of the prosecution in toto. Therefore, when once the prosecution has proved its initial burden, onus automatically shifts on the accused-husband to disclose what happened to his wife in view of the provisions of Section 106 of the Evidence Act and hence, sought to dismiss the criminal appeal filed by the accused.
12. In view of the rival contentions urged by the learned Counsel for the parties, the only point that would arise for our consideration in the present criminal appeal is:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting and sentencing him for the offences punishable under Sections 302 and 201 of IPC., and sentencing him to undergo imprisonment for life and simple imprisonment for three years with fine and default clauses respectively and requires any modification in the peculiar facts and circumstances of the present case?
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13. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record including the original records carefully.
14. 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 material documents relied upon:
i) P.W.1 - Sri Durgappa, who is the complainant and father of the deceased Savita has deposed on par with the complaint stating that after one year of the marriage, the accused was harassing his daughter Savita by suspecting her fidelity and was not sending her anywhere.
Whenever, he used to visit his daughter's house, she used to cry and tell him about the ill-treatment meted out to her by the accused accused. He was insisting her to lodge a complaint, but she was telling that not to lodge the complaint as accused would harass her
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CRL.A No. 118 of 2017more. Further, about 6 to 7 months back, the accused had called his elder son- in- law Manjappa over phone and informed him that he is going to kill Savita and asked him to bring fruits and coconuts. When they all went to the house of accused, at that time, the public were searching for the body in the agricultural pond behind residential house of the accused as the accused had killed his daughter and thrown her body into the agricultural pond and he does not know what had happened on the previous day. Nothing has been elicited in his cross-examination to disbelieve his evidence.
ii) P.W.2 - S r i Manjappa, who is the elder son- in-law of the complainant has deposed on par with P.W.1-the complainant that about one and a half year of the marriage, the accused suspecting her character was ill-treating his wife Savita by a s s a u l t i n g her and was
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CRL.A No. 118 of 2017not sending her anywhere and a s s u c h , they had advised the accused. On 19-11- 2015 at about 6-30 p.m., the accused called him over phone and asked him to bring fruits and coconut since he is going to kill Savita, for which, he had advised him not to do so, but the accused told that he is going to finish her even though he is sent to Jail. He has further deposed that his father-in-law instead of taking it seriously, has gone to the village of the accused on the next day morning and on enquiry with the mother of the accused - Smt. Nagamma, she replied that Savita was quarrelling in the evening at 5.30 p.m. with the accused and she was in the kitchen and when she went outside to see Savita, she was not seen. Soon he went to the backside of the house and near the land, but there also he could not find her. Immediately, he went to the villagers and told the matter. Thereafter, with the help of 7 to 8 people of the village
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CRL.A No. 118 of 2017searched and found her dead body floating in the well with an height of about 30 to 40 feet. Again he informed his father-in-law, who in turn informed the police. Then the Police came there and with the help of a stick of 30 feet height lifted the dead body and found that it was the dead body of Savita. An injury was found at the backside of her head. Blood was oozing from the ears and nose. After inquest mahazar, the police officials sent the dead body to the hospital for postmortem. Then it was found that the accused had hit the deceased Savita with the help of plastic pipe on her head and thrown her into the well. Nothing has been elicited in his cross- examination to disbelieve his evidence and he has supported the case of the prosecution;
iii) P.W.3 - Sri Manjunath, who is a villager of the complainant's village also has deposed that the accused was harassing and assaulting the
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CRL.A No. 118 of 2017deceased Savita by suspecting her character and was not sending her anywhere and she used to tell this to him by crying whenever she used to come to her parental house and on 19- 11-2015 at about 7-00 to 7-30 p.m, C.W.5 came to Nadakalasi and told him about the phone call of the accused that the accused is going to kill Savita and had asked him to bring coconut and fruits and on next day, he came to know that the death of Savita was due to assault with pipe and dumping her body in the well by the accused. He has supported the case of the prosecution;
iv) P.W.4 - Sri Ananda, P.W.5 - Sri Takappa, P.W.6 - Sri Gilalgundi Jagannath,, P.W.7 - Sri Neeragundi Manjappa and P.W.8-Neeragundi Nagappa have not supported the case of the prosecution and as such, they are treated as hostile witnesses;
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CRL.A No. 118 of 2017
v) P.W.9 - Smt. Yashoda, who is a mahazar witness to the inquest panchanama Ex.P.9 has deposed that in her presence the inquest was conducted by the Tahsildar and an inquest mahazar was drawn as per Ex.P.9. Her signature is at Ex.P.9(a). She has supported the case of the prosecution;
vi) P.W.10- Dr. Jayalakshmi, Senior Medical Officer of the Government Hospital, Sagar, has deposed about she conducting the postmortem examination on the dead body of the deceased and issuance of postmortem report as per Ex.P.10 opining that the death was due to Asphyxia secondary to ante-mortem drowning;
vii)P.W.11 - Sri Nagappa, a resident of the same village and Branch Post Master of the Post Office, Gauthamapura, Sagar Taluk, has deposed with regard to the drawing of mahazar near the well as per Ex.P.11 and his attestation to the spot mahazar Ex.P.11. The
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CRL.A No. 118 of 2017accused then took them to his house where he gave one plastic pipe to the police used for the offence which was recovered at his instance and marked as M.O.1. He supported the prosecution case.
viii)P.W.12 - Sri Darmoji Rao, Tahsildar, has deposed about he conducting the inquest regarding drawing up of inquest mahazar as per Ex.P.9.
ix) P.W.13 - Sri Thimmaiah, P.W.15 - Sri Rangappa Archachar, P.W.16 - Sri Madappa, and P.W.17- Sri Dinesh Patil who are Police Officers have deposed about their role in the conducting the investigation.
x) P.W.14 - Sri G.K.Ganapathi, has deposed about drawing up of mahazar by the police when the body was taken out from the pond behind the residential house of the accused land as per Ex.P.16 and his signature is found
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CRL.A No. 118 of 2017
at Ex.P.16(b). He has supported the
prosecution case.
Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused for the offences punishable under the provisions of Sections 302 and 201 of IPC.
15. On careful perusal of the complaint-Ex.P.1 lodged by P.W.1, who is none other than the father of the deceased Savita, clearly depicts that he had five daughters, out of whom, 2nd daughter-Savita was married to Jagguru Nagaraj s/o Jaggur Bharmappa, resident of Gowthamapura Village, Taluk Sagar in the year 2009 and she was having two children. Their marital relationship was very cordial for a period of 6 months and thereafter, the accused started suspecting her fidelity. He was not letting her to talk to anybody and if she was found talking to someone else, he used to doubt her character, ill-treat and was not looking after her properly. As such, she was frightened about him. Himself, his elder son-in-law Mallapura Manjappa and another son-in-law/Kalasi Nagaraj advised the accused for several times in his house and some panchayaths were also
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CRL.A No. 118 of 2017conducted. He has further stated that on 19.11.2015 in the evening at 6.30 p.m., the accused called his elder son-in- law/Manjappa over phone and informed him that he would kill his wife/deceased Savita before morning and asked him to bring rice and coconut.
16. On the next day morning, his elder son-in- law/Manjappa, his daughter Geeta and himself came to the house of his son-in-law at Gowthamapura and when enquired the accused about the whereabouts of his daughter Savita, he replied that in the night itself, he had assaulted her with a rod and murdered and he had thrown her in the agricultural pond in the field and asked them to go and see. Then they three, on suspicion, went to the agricultural pond in the field situated at the backside of the house and saw the dead body of Savita in the pond.
17. In support of the said complaint, P.W.1, who is none other than the father of the deceased, P.W.2-elder son-in-law of P.W.1 and brother in law of the deceased, P.W.3 - villager of the complainant's village have supported the case of the prosecution. All the witnesses have specifically deposed about
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CRL.A No. 118 of 2017the constant harassment meted out to the deceased by the accused in suspicion of the fidelity of the deceased. Ex.P.9 the inquest report, issued by the Tahsildar, who conducted the inquest on the dead body clearly depicts that the deceased Savita had sustained injury on the top of the head, upper lip was eaten by the acquatic animals, blood oozing from the nose and ears, and the skin below the right eye had come out and Smt. Yashoda - P.W.9 is the panch witness to the said inquest panchanama. P.W.10 - Dr. Jayalakshmi, who conducted the postmortem examination has issued the postmortem report marked as per Ex.P.10 which clearly states that on dissection, no injuries are found on the head and even there are no external injuries seen on the head and body. Froth at nose and mouth was present.
18. The material on record clearly depicts that it is not in dispute that out of their wedlock, two children i.e., one female and one male were born, whose age, on the date of the incident was five years and three years respectively as per the voluntary statement given by the accused marked as Ex.P.19.
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19. Though the material on record clearly depicts that no proper investigation was conducted by the Investigating Officer and the doctor has not adduced proper evidence, the fact remains that the prosecution has neither seized the mobile phone used by the accused to inform the elder son-in-law of P.W.1/husband of elder sister of deceased nor examined the parents of the accused or minor children of the deceased. The cause for commission of offence as is evidenced from the facts and circumstances of the present case is that, on the date of the incident, when the accused questioned his wife - the deceased Savitha as to why she has come late, she replied 'why does he want' and started quarrelling with him. So he got enraged and took a plastic pipe lying there and hit her on the head with force about 2 to 3 times and, she fell down crying and became unconscious. The accused thinking that if the deceased regains consciousness, she would tell to others and again would start quarreling with him. Therefore, in order to avoid further consequences, he decided to dump her body in the agricultural pond. As such, the unfortunate incident has occurred.
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20. Taking into consideration the mitigating circumstances, the fact that there was serious lapse on the part of investigating officer in not conducting the investigation properly, the accused failing to disprove the evidence of P.Ws.1 to 3, inquest mahazar Ex.P.9, spot mahazar Ex.P.11 and non- offering of any explanation by the accused as contemplated under the provisions of Section 106 of the Evidence Act, the case clearly falls under the provisions of Exception I of Section 300 of IPC., which reads as under:
"Section 300.xxx xxx xxx Exception I: Culpable homicide is not murder if the offender whilst deprived 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."
21. On careful reading of the said provision, makes it is clear that Culpable homicide is not murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the death of the person, who gave the provocation or
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CRL.A No. 118 of 2017causes the death of any other person by mistake or accident. In the present case, on the unfortunate day, when the deceased Savita came late to the house, the accused, who was in the house, questioned her about late coming and she instead of disclosing the reason, immediately replied that "why does he want" and started quarrelling with him and the accused by grave and sudden provocation, took the plastic pipe - M.O.1 lying there and hit on the head of the deceased about two to three times with force. As such, the deceased Savita by crying fell on the ground unconscious. The accused lifted her up, carried to the agricultural pond situated in his land and dumped her into it and caused her death and thereby committed an offence of culpable homicide not amounting to murder. Therefore, the offence clearly false under Section 304 Part I and not under Section 302 of the Indian Penal Code.
22. Though there are some discrepancies in the evidence of the prosecution witnesses, due to passage of time, witnesses do deviate from their earlier statements as their memory fades to some extent, but the fact remains that the accused has assaulted his wife Savita with M.O.1 plastic pipe when he was
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CRL.A No. 118 of 2017provoked by her. The accused has not stated anything in his statement recorded under Section 313 Cr.P.C., as he was suspecting the character of his wife, due to which, when she replied carelessly, he got enraged and lost control of his mind and hence, hit on her head for about 2 to 3 times with M.O.1/plastic pipe, and thereby she fell on the ground unconscious. He had no intention to kill her. In all fairness, he would have taken her to the nearby hospital.
23. The evidence on record clearly depicts that when the father of the accused had come to the house of the accused, the accused noticed some injuries on the head of his father and immediately he has taken his father to the hospital and after getting the treatment, he came back at about 10.00 p.m. and after having dinner, he slept and thereafter, he ran away from the house. When the accused has taken his father to the hospital for treatment, he ought to have taken his wife also. Even though the accused lost the self control due to sudden provocation and hit the deceased on her head with a plastic pipe - M.O.1 and in order to destroy the evidence of offence, he would not have thrown her into an agricultural pond situated in
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CRL.A No. 118 of 2017their land behind their house. As such, the prosecution has established the link in the chain of circumstances. Hence, in the absence of accused establishing any case for acquittal in toto and non-explanation of injuries found on the deceased Savita when he was in the house, it has to be held that the accused has committed an offence which squarely falls under Exception 1 to Section 300 of the IPC., and hence we hold that the offence committed by accused does not amount to murder but of lesser degree i.e., culpable homicide not amount to murder punishable under Section 304 Part I of the IPC. Without considering the said aspect, the learned Sessions Judge proceeded to convict the accused for the offence punishable under the provisions of Section 302 of the Indian Penal Code.
24. In the facts and circumstances stated supra, the point raised in the present criminal appeal is answered partly in the affirmative holding that that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offence punishable under the provisions of Section 302 of IPC and sentencing him
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CRL.A No. 118 of 2017to undergo imprisonment for life i.e., to remain in prison until his death and to pay a fine of Rs.50,000/- and the same is altered to one under Section 304 Part-I of the IPC. So far as the conviction of the accused for the offence punishable under Section 201 of the IPC., is concerned, the same stands undisturbed.
25. In view of the above, we pass the following:
ORDER
i) Criminal Appeal filed by the accused is allowed in part;
ii) The impugned judgment of conviction dated 5th October, 2016 and order of sentence dated 14.10.2016 made in S.C.No.10012/2016 passed by the V Additional District and Sessions Judge, Shivamogga, sitting at Sagar, in so far as convicting accused for the offence punishable under Section 302 of IPC is hereby modified;
iii) The accused is convicted for the offence punishable under the provisions of Section 304
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CRL.A No. 118 of 2017Part I of IPC and sentenced to undergo rigorous imprisonment for a period of Seven years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default of payment of fine, to undergo rigorous imprisonment for a further period of One year;
iv) On such deposit of fine amount of Rs.1,00,000/-
(rupees One lakh) imposed by this Court by the accused, in view of the provisions of Section 357(3) of the Code of Criminal Procedure, an amount of Rs.50,000/- shall be kept in fixed deposit in any of the Nationalised Bank in the name of each of the minor children of the accused and deceased Savita, till they attain majority;
v) The impugned judgment of conviction and order of sentence to undergo simple imprisonment for a period of three years and fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of three
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CRL.A No. 118 of 2017months for the offence punishable under Section 201 of IPC is hereby confirmed;
vi) Both the sentences shall run concurrently;
vii) The appellant/ accused is entitled to the benefit of set off under the provision of Section 428 of the Code of Criminal Procedure;
viii) The learned Sessions Judge is directed to secure the presence of the accused forthwith, who shall undergo remaining period of sentence imposed by this Court stated supra; and
ix) Registry is directed to return the Trial Court Records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-