Karnataka High Court
Nagananda Kolar vs The State Of Karnataka By on 14 February, 2024
-1-
NC: 2024:KHC:6352-DB
CRL.A No.102/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.102/2016 (C)
BETWEEN:
NAGANANDA KOLAR
S/O LATE KASTURI RANGAN
AGED ABOUT 35 YEARS
OCC: ENGINEER
R/AT NO.305, 1ST FLOOR
2ND C MAIN, 8TH BLOCK
KORAMANGALA
BANGALORE CITY-560 034 ...APPELLANT
(BY SRI M.SHARASS CHANDRA, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
SAGAR TOWN POLICE STATION
Digitally signed SHIVAMOGGA DISTRICT-577 401
by PRABHU REP. BY STATE PUBLIC PROSECUTOR
KUMARA
NAIKA HIGH COURT BUILDING
Location: High BANGALORE - 560 001 ...RESPONDENT
Court of
Karnataka
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 18.11.2015 AND ORDER OF SENTENCE
DATED 20.11.2015 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR IN
S.C.NO.188/2014 CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC:6352-DB
CRL.A No.102/2016
JUDGMENT
Challenging the judgment and order of conviction and sentence passed against him, the accused in S.C.No.188/2014 on the file of the V Additional District and Sessions Judge, Shivamogga sitting at Sagar has preferred this appeal.
2. The appellant was tried in S.C.No.188/2014 by the trial Court for the offences punishable under Sections 302 and 307 of IPC on the basis of charge sheet filed by Sagar Town Police in Crime No.288/2013.
3. The appellant was the sole accused before the Trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. The accused is the son of PW.8 Rama Rangan and deceased Kasturi Rangan. PW.9 was the wife of the accused.
4. The case of prosecution is as follows:
(i) The marriage of the accused with PW.9 was inter-
caste marriage. As PW.9 was consuming non-vegetarian food and entering the kitchen and pooja room, there used to be quarrels between the parents and wife of the accused. Thinking that his parents are ill-treating his wife, the accused planned to eliminate them.
-3-
NC: 2024:KHC:6352-DB CRL.A No.102/2016
(ii) On 28.10.2013, he took his parents in the guise of going to Sagar and lodged them in Room No.301 of Varadashree Lodge in Sagar. During the intervening night of 28/29.10.2013, the accused pretended to have consumed petrol for committing suicide. Panicked by that, his father also consumed petrol. When his father did not die, the accused smothered him with pillow and committed his murder. Thereafter, he slit PW8 on her neck and attempted to commit her murder.
5. The trial Court on hearing the parties framed the charges against the accused. The accused denied the charges. Therefore, trial was conducted. In support of its case, the prosecution examined PWs.1 to 21 and got marked Exs.P1 to P28 and MOs.1 to 19. The accused neither filed defence statement nor lead defence evidence. However, the requisition issued by the Investigating Officer to PW.18-Taluk Executive Magistrate to record dying declaration of PW.8 was marked as Ex.D1.
6. The trial Court on hearing the parties, by impugned judgment and order convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to life imprisonment i.e. imprisonment till his death and -4- NC: 2024:KHC:6352-DB CRL.A No.102/2016 fine of Rs.20,000/-. The trial Court further directed that in default to pay fine amount, the accused shall undergo simple imprisonment for six months.
7. Sri M.Sharass Chandra, learned Counsel for the appellant reiterating the grounds of appeal, submits that the trial Court is not competent to impose sentence of imprisonment for the rest of natural life of the accused. He further submits that the trial Court has conducted trial in arbitrary manner and even examination under Section 313 of Cr.P.C. was not recorded as required under the said provision. Thus, he seeks reversal of the impugned judgment.
8. Per contra, Sri Vijayakumar Majage, learned SPP-II for the State submits that the trial Court on judicious appreciation of the evidence on record has convicted the accused. He further submits that the accused did not raise his little finger about any irregularity in recording the statement under Section 313 of Cr.P.C. Moreover, the same has not caused any prejudice to him. Therefore, the judgment and order of trial Court does not warrant interference of this Court. However, he concedes to the legal position that the Sessions Court is not competent to impose -5- NC: 2024:KHC:6352-DB CRL.A No.102/2016 imprisonment for rest of natural life of the accused. He submits that since the matter is in appeal, this Court can consider that aspect having regard to the nature of offence.
Analysis
9. Article 21 of the Constitution of India requires that no person shall be deprived of his life and liberty unless in accordance with the procedure established by law. In the present case, the defence of the accused was that, though the prosecution contended that the accused designedly committed murder of his father and attempted to commit murder of his mother, as per the prosecution document Ex.P10, parents as well as son together had decided to commit suicide due to financial set back suffered by them and his father consumed petrol. Still he did not die and at his request the accused smothered him with the pillow. However, PW.8 did not support that version during her evidence and did not speak anything incriminating against the accused.
10. The first grievance of the accused is that in his examination under Section 313 of Cr.P.C., the explanation given by him was not recorded and the trial Court without noting the same, has convicted and sentenced him. As -6- NC: 2024:KHC:6352-DB CRL.A No.102/2016 already stated, no person can be deprived of his life or personal liberty without following the procedure established by law.
11. The Code of Criminal Procedure prescribes the procedure for trial of a person for the offences, to deprive his life or liberty. In the present case, the offence under Sections 302 and 307 of IPC are exclusively triable by the Sessions Court. Therefore, for trial of said case, Sections 225 to 235 of Chapter XVIII of the Cr.P.C. and Sections 300 to 327 of Chapter XXIV of Cr.P.C. prescribe the procedure.
12. Section 232 of Cr.P.C. requires the Sessions Court to examine the accused after taking evidence of the Prosecution. Section 233 of Cr.P.C. deals with the right of the accused to adduce defence evidence. Section 313 of Cr.P.C. deals with the examination of the accused before calling upon him to lead defence evidence. Section 313(1)(b) and 313(4) of Cr.P.C., which are relevant for the purpose of the present case read as follows:
"313. Power to examine the accused.-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court --7-
NC: 2024:KHC:6352-DB CRL.A No.102/2016
(a) ............................................................................
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) ........................................................................... (3) ........................................................................... (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."
13. Reading of the above provisions go to show that the answer given by the accused in his examination shall be taken into consideration in the inquiry or trial.
14. In the present case, the trial Court claims to have examined the accused under Section 313 of Cr.P.C. on 10.06.2015. The said examination runs into 14 pages. In that answers given by the accused only to first and last two questions are recorded. The answers of rest of the questions are not recorded, though the said statement bears signatures of the accused as well as the Judge who alleged to have -8- NC: 2024:KHC:6352-DB CRL.A No.102/2016 recorded the said statement. The trial Court in the order sheet dated 10.06.2015 regarding examination of the accused has recorded as follows:
"Accused is present.
Statement of accused U/Sec. 313 of Cr.P.C. is recorded and explained to the accused in the language known to him for which he denied the entire case of the prosecution. But he did not choose to adduce any oral or documentary evidence on his behalf.
For arguments, Call on 26.06.2015."
(Emphasis supplied)
15. The above order goes to show that the trial Court claims that it recorded the statement of the accused. But virtually except for the first and last 2 questions, the trial Court has not recorded answers of the accused for remaining questions which are very material and incriminating against him. It is no doubt true that before the trial Court, the accused has not taken that ground.
16. The Hon'ble Supreme Court in Nababuddin @ Mallu @ Abhimanyu v. State of Haryana1 held that the appellant may not have earlier raised the issue regarding the 1 2023 INSC 1020 (NR) -9- NC: 2024:KHC:6352-DB CRL.A No.102/2016 inadequacy of examination under Section 313 of Cr.P.C., still if the omission goes to the root of the matter so far as the accused is concerned, that amounts to material illegality committed by the trial Court. The word record itself indicates that whatever the accused has stated should be written/ entered in the said statement. That basic aspect itself is not complied by the trial Court.
17. Learned Single Judge of this Court in Meenakshi v. State of Karnataka2 on noticing the blatant irregularities committed by the trial Courts in recording the statements of the accused under Section 313 of Cr.P.C. in a mechanical way, issued certain guidelines for the trial Courts. This Court even directed for circulation of the same to all the trial Courts. Guideline No.4 in the said Guidelines which is relevant for the purpose of this Court clearly states that the answers given by the accused must be recorded separately.
18. Another glaring irregularity committed by the trial Court is imposing sentence of life imprisonment till the end of natural life of the accused. Section 28(2) of Cr.P.C. states that a Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but the sentence of death 2 Crl.P.No..2170/2021 DD 21.09.2021
- 10 -
NC: 2024:KHC:6352-DB CRL.A No.102/2016 passed by such Judge shall be subject to confirmation by the High Court.
19. There is no dispute that the offence under Section 302 of IPC is triable by the Sessions Court. The punishment prescribed for the offence under Section 302 IPC is death or imprisonment for life and fine. The Hon'ble Supreme Court has held that power to impose sentence of imprisonment upto natural life of the accused is vested only with the High Court and not with the Sessions Court. Imposition of sentence of imprisonment up to the end of natural life of the accused is contrary to the judgment of Constitutional Bench of the Hon'ble Supreme Court in Union of India v. V.Sriharan3. The Hon'ble Supreme Court in paragraphs 105 and 106 of the said judgment has held as follows:
"105. We, therefore, reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other Court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be 3 (2016) 7 SCC 1
- 11 -
NC: 2024:KHC:6352-DB CRL.A No.102/2016 exercised only by the High Court and Supreme Court and not by any other inferior Court.
106. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (2) v. State of Karnataka, [(2008) 13 SCC 767] that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet v. State of Haryana [(2013) 2 SCC 452] that the deprival of remission power of the appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same."
(Emphasis supplied)
20. The above facts and circumstances go to show that the trial Court not only conducted the trial in arbitrary manner, but also imposed the punishment arbitrarily contrary to the established principles of law. Reg: IA No.1/2024
21. The accused has filed I.A.No.1/2024 seeking bail. But he failed to appear before the Court, which resulted delay in hearing the matter. He did not even comply the directions of this Court for surrendering before the trial Court. Once the benefit of suspension of sentence was
- 12 -
NC: 2024:KHC:6352-DB CRL.A No.102/2016 granted to him, he jumped the condition of that order. Considering the same, he is not entitled for further indulgence. Therefore, I.A.No.1/2024 is liable to be rejected. Conclusions:
22. Records show that the offence took place on 28.10.2013. The proceedings against the accused commenced before the Sessions Court in the year 2014. Except not recording the examination of the accused under Section 313 of Cr.P.C., no other irregularity is found in the trial. Therefore, it would be appropriate to direct the trial Court to record the statement of the accused under Section 313 of Cr.P.C., give him opportunity to lead defence evidence, if any, and reconsider the matter afresh in accordance with law. The appeal deserves to be allowed accordingly. Hence the following:
ORDER The appeal is allowed.
The impugned judgment and order of conviction and sentence passed in S.C.No.188/2014 by the V Additional District and Sessions Judge, Shivamogga, Sitting at Sagar are hereby set aside.
- 13 -
NC: 2024:KHC:6352-DB CRL.A No.102/2016 The matter is remanded to the trial Court in the light of the observations made above.
The trial Court shall examine the accused and record the defence evidence, if any, and hear the parties and dispose of the matter in accordance with law.
The accused shall be produced before the trial Court on 11.03.2024. On such production, the trial Court shall record his examination under Section 313 of Cr.P.C. and thereafter dispose of the matter as expeditiously as possible, at any rate within two months from the date of such production of the accused.
Registry shall communicate copy of this order to the trial Court and the concerned Prison forthwith.
Transmit the records to the trial Court expeditiously.
Sd/-
JUDGE Sd/-
JUDGE MPK List No.: 1 Sl No.: 7