Karnataka High Court
Revanna vs State Of Karnataka on 6 April, 2022
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL No.1793 OF 2018
BETWEEN:
Revanna,
S/o Late Kalashetty,
Now aged about 58 years,
R/o C/o Vasu,
Government School Road,
Belavadi Village, Yelwala Hobli,
Mysuru-570001.
Presently at Central Prison
(convict No.19165)
Mysuru-570001. ... Appellant
(By Dr. J.S. Halashetti, Advocate (PH))
AND:
State of Karnataka,
Rep. by Vijayanagara Town Police,
Now Rep. by State Public Prosecutor,
High Court Building,
Bengaluru-560 001. ...Respondent
(By Sri.Vijaykumar Majage, Addl. SPP (PH))
2
This criminal appeal is filed under Section 374(2)
CR.P.C. praying to set aside the Judgment and Order of
conviction dated: 16.08.2017 and sentence dated:
18.08.2017 passed by IV Additional Sessions Judge,
Mysuru in S.C.No.42/2014 convicting the
appellant/accused for the offence punishable under
Section 302 of IPC and etc.
This criminal appeal, coming on for hearing this
day, B.VEERAPPA.,J delivered the following:
,l
JUDGMENT
The accused, who is the paramour of the deceased filed the present appeal against the impugned judgment of conviction and order of sentence dated 16.08.2017 made in S.C.No.42/2014 on the file of the IV Addl. Sessions Judge, Mysuru convicting the accused under the provisions of Section 302 of IPC for imprisonment of life with a fine of Rs.5,000/-.
2. It is the case of the prosecution that the deceased Devamma was married to Puttabuddi and out of wedlock two female children were born. The first daughter - Jayalakshmi was given in a marriage and the 3 second daughter - Sinchana, aged about 12 years was with the deceased. Thereafter the deceased left her husband and was residing with her father. About six years prior to the incident she came in contact with Revanna of Hinkal village, who promised her to give life. The same was not accepted by her father and due to her adamant behaviour, father of the deceased sent her out of their house. Thereafter she went along with the accused - Revanna and got a house for rent in Koorgahalli and he used to come to the house to see her once in a week and she was also doing some petty works in a factory and was leading life. Whenever accused used to come to the house of the deceased, he used to come with the influence of alcohol and used to quarrel with the accused. As the accused was not able to pay the rents at Koorgahalli, one person Malleshappa who is known to her, permitted her to live in the shed constructed in the site. On 12.08.2013 at about 12.00 noon, the accused came to the shed of the deceased with 4 the influence of alcohol and asked for a glass of water and there was a quarrel between the deceased and the accused, the accused scolded the deceased that his life is spoiled because of illicit relationship with her and went away from there. Thereafter at about 4.00 p.m. when the deceased was preparing food, the accused came and took up a quarrel by suspecting her fidelity and picked up a size stone (MO-1) and thrown it on the stove (MO-2), poured kerosene on the deceased and lit the fire. On her screaming, the neighbours came and put off the fire and she was admitted to K.R.Hospital, Mysuru. Based on the intimation, the Head Constable of Vijayanagar Police Station visited the hospital and recorded the statement of the deceased on 12.08.2013 as per Ex.P11. Based on the aforesaid statement/subsequent Dying declaration, after her death, the jurisdictional police registered a case on 13.08.2013 at about 1.00 p.m. in the K.R.Hospital in Crime No.229/2013 under the provisions of Section 307 of IPC. Thereafter, on the next day, on the request of 5 the investigating officer, the Executive Magistrate/Tahasildar recorded the second statement of the deceased on 13.08.2013 as per Ex.P1 and she died in the hospital on 25.08.2013. The accused was arrested and remanded to judicial custody. The investigating officer, after investigation, filed the charge sheet against the accused under the provisions of Section 302 of IPC.
3. After committal of the matter, the learned Sessions Judge secured the presence of the accused and framed the charges under the provisions of Section 302 of IPC, read over to the accused in the language known to him, who pleaded not guilty and claims to be tried.
4. In order to prove the guilt of the accused, the prosecution examined in all 19 witnesses as PWs. 1 to 19 and materials documents Exs. P1 to P15 and marked material objects MOs. 1 to 3. After consideration of the evidence of the prosecution witnesses, the statement of the accused as contemplated under Section 313 Cr.P.C., by giving an opportunity to him to explain all the 6 incriminating circumstances. The accused denied all the incriminating circumstances and he has not chosen to adduce any defence evidence but denied the incriminating circumstances in toto.
5. Based on the aforesaid pleadings the learned Sessions Judge framed the points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge answered the points in the affirmative holding that the prosecution has proved beyond reasonable doubt that in the shed of PW9 - Malleshappa when the deceased Devamma was preparing food, the accused put up a quarrel doubting her fidelity with an intention to commit murder, took a size stone and threw the stone on the stove and poured kerosene on the deceased and lit the fire, as a result of which she sustained severe burn injuries. Without responding to the treatment she died on 25.08.2013 in the hospital. Thereby, the accused has committed the offence of murder punishable under Section 302 of IPC. 7 Accordingly, the learned Sessions Judge by the impugned judgment convicted the accused for imprisonment of life and to pay a fine of Rs.5,000/- with default clause. Hence, the present criminal appeal is filed.
6. We have heard the learned counsel for the parties.
7. Sri J.S.Halashetti, learned counsel for the appellant contended with vehemence that the impugned judgment of conviction and order of sentence passed under the provisions of Section 302 of IPC is erroneous and contrary to the materials on record and cannot be sustained and liable to be set aside. He further contended that the accused has been wrongly convicted on the evidence of PW-2 - Sinchana who is the second daughter of the deceased. As she was residing in the hostel at the time of the alleged incident she cannot be an eyewitness to the incident. Admittedly, upon her screaming the neighbours came and shifted the deceased to the hospital. The presence of PW-2 - Sinchana was 8 not at all mentioned either in the complaint/victim statement as per Ex.P11 or P1 thereby the very statement of the deceased subsequently after her death on 25.03.2018 become dying declarations are doubtful.
8. He would further contend that all the eyewitnesses including PW-9 - owner of the shed have turned hostile. The other witnesses being relatives of the deceased and the case of the prosecution is doubtful. He further contended that as his evidence brought materials on record, the deceased Devamma left her first husband - Puttabuddi after having two female children and admittedly she started residing with the accused and she had already performed the marriage of her first daughter Jayalakshmi and she was residing with her second daughter - PW2 - Sinchana. Exs.P11 and P1 are the statements recorded by PW-15 in the presence of the doctor PW-16 and PW-1 in the presence of the doctor PW-12 which clearly depicts that there was a quarrel 9 between the accused and the deceased, thereby the unfortunate incident has occurred, and the quarrel was due to provocation made by the deceased to the accused due to his couple between the deceased and the accused, thereby the unfortunate incident occurred thereby it is a case which falls under Section 304 Part II of IPC and not under Section 302 of IPC.
9. The learned counsel would further contend that PW-2 Sinchana second daughter of the deceased also deposed about the quarrel on the date of the incident though Exs. P11 and P1 dying declarations do not depict her presence, therefore, he sought for allowing the appeal.
10. Per contra, Sri Vijayakmar Majage, learned Addl. SPP would justify the impugned judgment passed by the trial court and has contended that the statement as per Ex.P11 was recorded by PW-15 in the presence of the doctor who certified that the patient was conscious 10 and oriented throughout the procedure while recording Ex.P11. PW15 also stated to the above effect and he further contended that the second statement as per Ex.P1 recorded by the Taluka Magistrate in the presence of the doctor PW12 also has a similar effect, thereby the statement of the deceased/dying declaration cannot be ignored and in the absence of any other witnesses, the accused can be convicted based on the sole statement of dying declaration as held by this Court and also Supreme Court time and again apart from the dying declaration as per Exs. P1 and P11, PW-2 who is the daughter of the deceased has also suffered the case of the prosecution and other prosecution witnesses have suffered the case of the prosecution thereby the trial court considered both oral and documentary evidence has rightly convicted the accused. Therefore, sought for dismissal of the appeal.
11. In view of the aforesaid rival contentions, the points that would arise for consideration in the present appeal are, 11
(i) Whether the trial court is justified in convicting the accused under the provisions of Section 302 of IPC with imprisonment for life and fine of Rs.5,000/-.
(ii) Whether the accused has made out a case to modify the impugned judgment of conviction and order of sentence into Section 304 Part II of IPC in the peculiar facts and circumstances of the present case?
12. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials available on record including the original records, carefully. This Court being the appellate court in order to re-appreciate the entire materials on record, it is relevant to consider the evidence of the prosecution witnesses and the other documents.
(i) PW-1 Smt.B.Girija is the Taluka Executive Magistrate who recorded the statement of the deceased on 13.08.2013 in the K.R.Hospital as per Ex.P1. She has 12 deposed that the deceased was conscious and state of sound mind and can be given the statement. She suffered the case of the prosecution.
(ii) PW-2 - Kum.Sinchana who is the second daughter of the deceased deposed that during the year 2013 she was studying in 6th standard at Hinakal Government School. At that time she and her mother were residing in Koorgahalli and the accused used to come to their house and quarreling with the deceased and used to beat her and her mother. It was further deposed that on 12.08.2013 at about 6.00 p.m. the accused came to the house and started quarrelling with the accused. He took a stone and threw it on the stove. Then he poured the kerosene on the deceased and lit fire. When her mother started screaming, she came out. At that time the neighbours also came and put on the fire. Thereafter, police came and took her mother to the hospital and she identified the accused and suffered the case of the prosecution.
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(iii) PW-3 - Ramegowda is the spot mahazar witness to Ex.P2. He deposed that he does not know the contents of Ex.P2 and he has not suffered the case of the prosecution.
(iv) PW-4 - Rekha is the neighbour of the deceased. She denied the statement made as per Ex.P3 and she has also stated that she does not know about the accused and also how Devamma died and thereby she has not suffered the case of the prosecution.
(v) PW-5 - Manchanayaka is also a neighbour who does not support the case of the prosecution and he has denied the statement made as per Ex.P6 and thereby he has not suffered the case of the prosecution.
(vi) PW-6 - Prakash who reiterated the statements made by PW-5 and PW-6 and he denied the statements as per Exs.P7 and P8. He has not suffered the case of the prosecution.
(vii) PW-7 - Marichuchhamma is the mother of the deceased. She has deposed that the deceased was 14 married to one Puttabuddi and out of the wedlock she had two daughters. Thereafter the deceased left her husband Puttabuddi and the family members got her in marriage to one Raghu. Thereafter she left Raghu also and was living with her parents along with the second daughter - Sinchana and the first daughter - Jayalakshmi was got in marriage. Thereafter she left their house, she does not know, with whom the deceased was residing. Thereafter she came to know that her daughter - deceased and her grand daughter - Sinchana were living with the accused in Koorgalli. About two years back she came to know that due to burn injuries her daughter was admitted to the hospital. When she went to the hospital she saw that her daughter had sustained burn injuries all over the body. On enquiry she deposed that the accused with the alcohol influence quarreled with her and put a stone on the stove and thereafter poured kerosene on the deceased and lit fire. 15
But in the cross-examination she admitted that there was no divorce between her daughter - deceased and Puttabuddi. As the parents of Puttabuddi performed one more marriage to him she left Puttabuddi and got a second marriage with Raghu. The same was performed by PW-8 and her family members. Thereafter the deceased also left Raghu and she does not know where the deceased was residing and nothing has been elicited to disbelieve her version in the examination-in-chief. PW-7 suffered the case of the prosecution.
(viii) PW-8 - Nagarajak, who is the brother of the deceased has reiterated the statement made by PW-7, who is the mother and suffered the case of the prosecution.
(ix) PW-9 - Malleshappa is the owner of the shed where the deceased and her daughter were residing. He deposed that the accused used to come to the house of the deceased and used to quarrel with the deceased. He further deposed that he came to know that the deceased 16 was admitted in the hospital with burn injuries and he went and met her in the hospital. The deceased has stated that the accused poured kerosene and lit fire. He has suffered the case of the prosecution.
(x) PW-10 - Srinivasa is the witness to the inquest mahazar - Ex.P9 and he has suffered the case of the prosecution.
(xi) PW-11 - Dr.Ravi is the doctor who conducted the postmortem on the body of the deceased on 25.08.2013 at about 4.00 p.m. Ex.P10 is the postmortem report. He has deposed that at the request made by the Taluka Tahasildar, he conducted the postmortem of the deceased and the deceased has sustained 35% to 40% burn injuries. He has suffered the case of the prosecution.
(xii) PW-12 - Dr.Sreevatsa Mertheke is the Medical Officer at K.R.Hospital, Mysuru. He has deposed that on 13.08.2013 at about 11.00 a.m. on the request made by the Tahasildar to record the statement of the deceased 17 he examined the deceased and stated that she is in a fit condition to give a posthumous declaration. He also deposed that in his presence the Tahasildar has recorded the statement of the deceased and he made endorsement on the said declaration. He has suffered the case of the prosecution.
(xiii) PW-13 - Preetham Naslapura is the Special Land Acquisition Officer who conducted the inquest mahazar of the body of the deceased as per Ex.P9 on 25.08.2013. He has suffered the case of the prosecution.
(xiv) PW-14 - Rajashekar is the police officer who received the information on 12.08.2013 at about 6.30 p.m. from the public that a woman sustained burn injuries, he went to the spot and admitted her in the hospital. He has suffered the case of the prosecution.
(xv) PW-15 - Ganesh is the Head Constable who went to the hospital on 12.08.2013 at about 12.00 a.m. and recorded the statement of the deceased as per Ex.P11 in the presence of Dr.Chandrashekhar - PW-15. 18 He deposed that after recording the statement of the deceased he came back to the police station and registered FIR as per Ex.P12. He has suffered the case of the prosecution.
(xvi) PW-16 - Dr.S.Chandrashekar is the doctor who deposes that on 12.08.2013 on the request of the police officer he examined the deceased and stated that the deceased was in a fit condition to give her statement and in his presence police have recorded the statement as per Ex.P11. He suffered the case of the prosecution.
(xvii) PW-17 - Lingappa is the Dy.S.P. and the investigating officer. He has deposed that on 25.08.2013 he received the file from CW-24 for further investigation of the matter. He sent a request to register the case for the offence punishable under Section 302 from Section 307 of IPC. Thereafter he recorded the statement of PWs-5 to 8 as per Exs.P4, P5 and P8. He has handed over the same for further investigation to CW-26. He suffered the case of the prosecution.
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(xviii) PW-18 - C.V.Ravi is the investigation officer. He deposed that he received the file for further investigation from CW-25 on 29.09.2013 and on 07.11.2013 he filed the charge sheet. He suffered the case of the prosecution.
(xix) PW-19 - Kumara is the PSI. He deposed that on 13.08.2013 he took the charge of investigation from CW-20. He deposed that he enquired the deceased and took her statement and appointed CWs.17 and 18 to take the accused to the custody and accordingly produced the accused. He recorded the statement of the accused as per Ex.P15. He further deposed that he conducted the spot mahazar as per Ex.P2 and collected material objects as per MOs. 1 to 3 and took statement of CWs. 5, 6 and 7 as per Exs.P3, P5 and P7, took the statement of CWs. 17 to 23. After the death of the deceased, handed over the case to CW-25. He suffered the case of the prosecution.
20
Based on the aforesaid materials on record, the learned Sessions Judge proceed to convict the accused for the offence punishable under Section 302 of IPC.
13. The gist of the prosecution is that the deceased Devamma was the daughter of PW-7 - Munihuchchamma and sister of PW-9 - Nagaraj. She was married to one Puttabuddi of Ilavala villager. Out of the wedlock she got two daughters. The first daughter namely Jayalakshmi was given in marriage about four years back. Thereafter she left the first husband and deceased was married second time with one Raghu. Thereafter she left Raghu also and she was residing with her parents at Hinkal village. The accused Revanna who was known to the deceased has promised to give life to her and he will ensure that he will take care of her and her daughter. For that, the father, mother - PW-7 and other family members of the deceased opposed and thereby she left the village and started residing at Koorgalli in a rented house taken by Revanna, the accused and she used to go 21 to small petty works in a factory to lead her life. The accused used to come once in a week with influence of alcohol and used to quarrel with her. As she could not pay the rents at Koorgalli she left the village and started residing in a shed of Malleshappa - PW-9 who is known to her. On the date of the unfortunate incident on 12.08.2013 at about 12.00 noon, the accused has come with the influence of alcohol and asked for a cup of water. In that regard there was a quarrel between the accused and the deceased. The accused blamed the deceased that because of illicit relationship with her his life was spoiled. Thereafter at about 4.00 p.m. he came back when the deceased was preparing food. The accused abused the deceased stating that she had illicit relationship with some other person, thereby there was a quarrel between the accused and the deceased. In the quarrel the accused threw MO1 - Stone on MO2 - stove, thereafter he poured kerosene on her and lit the fire. 22
14. Ex.P11 the statement of the victim becomes the dying declaration when she died in the K.R.Hospital on 25.08.2013. In the said dying declaration while reiterating the averments made in the complaint she has not disclosed that she has married second time to one Raghu as stated by PW-7 - mother of the deceased and brother PW-8 - Nagaraja. She has not stated about the presence of PW-2 - daughter of the deceased in Ex.P11 - dying declaration. Though PW-2 stated in her evidence that she was present when the incident occurred, in the dying declaration recorded by PW-1 before the doctor PW-12, the deceased except stating that the accused is unmarried has not stated about the presence of PW-2. Both the dying declarations clearly depicts that there was a quarrel on the unfortunate day for a glass of water and subsequently the accused suspected the fidelity of the deceased that she was having some illicit relationship with some other person, thereby there was a quarrel between the accused and the deceased. In that quarrel 23 the accused due to sudden provocation threw MO1 - stone on MO2 - stove, thereafter poured kerosene on the deceased and lit fire and the unfortunate incident occurred. Admittedly, the accused is not her husband, but in her first statement as per Ex.P11 she stated that she is the wife of one Puttabuddi and in the second statement she stated that she is the wife of Revanna, the accused and in both the dying declarations there is no whisper about the presence of PW-2 - Sinchana daughter of the deceased. PW-2 also stated in her evidence that whenever accused came to the house he used to quarrel and on the day of unfortunate incident when she was studying and her mother was preparing food, accused came and quarreled and thereafter thrown stone - MO1 on stove - MO2, poured kerosene on her mother and lit fire. But she is not the complainant, she has not stated the same before the police in her statement recorded on 26.07.2016. Thereby, it indicates that the unfortunate incident occurred due to sudden provocation and the 24 same has not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence.
15. On careful re-appreciation of the evidence of the prosecution witnesses, in particular PW-2, the second daughter of the deceased and Ex.P1 the first dying declaration recorded by PW-15 on 12.08.2013 and second dying declaration dated 13.08.2013 recorded by the Taluka Magistrate - PW1 in the presence of the doctor PW-12, the case clearly falls under the exception (4) to Section 300 of IPC, which reads as hereinbelow:
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."25
A careful reading of the aforesaid provision makes it clear that in view of the said provision four requisites must be satisfied, namely,
(a) if it was a sudden fight,
(b) there was no premeditation,
(c) act was committed in the passion upon a sudden quarrel and
(d) assailant has not taken undue advantage or acted in a cruel or unusual manner.
16. Admittedly, in the present case, the deceased left her first husband after having two female children and as on the date of the incident the first daughter Jayalakshmi was married and she got second marriage with one Raghu as deposed by PWs. 7 and 8 - mother and brother of the deceased. Again she left said Raghu and had an illicit relationship with the present accused even though the parents of the deceased opposed. Initially they were in Koorgahalli in a rented house taken by the accused and since they could not pay the rents 26 they left the rented house and the deceased and her daughter - Sinchana started residing in a shed belonging to PW-9. On the date of the unfortunate incident when the accused came to the shed, he suspected the fidelity of the accused and blamed the deceased that she had illicit relationship with some other person, thereby sudden quarrel started between the accused and the deceased. The materials on record clearly depicts that there was no premeditation on the part of the accused and the act committed by the accused in a heat of passion and MO-1 - stone thrown on MO-2 - stove and thereafter poured kerosene without any premeditation and he has not taken any undue advantage or acted in a criminal manner causing death of the deceased, thereby he has inflicted to pour kerosene without any intention to cause the death. The act of the accused is punishable under the provisions of Section 304 Part II of IPC with imprisonment for a period of 9 (nine) years and with a fine.
27
17. It is well settled proposition that, one of the fundamental principles of criminal jurisprudence is undoubtedly the burden of proof squarely rests on the prosecution and general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity or defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
18. In the present case, though the investigating officer, after investigation has filed charge sheet against the accused under Section 302 of IPC, while recording 28 the statement under Section 313 Cr.P.C. the accused except denying all incriminating circumstances against him in toto, he has not offered any explanation how she died when he was present on the day as stated by the victim in two dying declarations as per Exs. P11 and P1 and the evidence of PW-2. In the absence of an explanation offered, an adverse inference has to be drawn against the accused. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of PRAHLAD vs. STATE OF RAJASTAN reported in (2019) 14 SCC 438, at para 11 has held as hereinbelow:
"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, 29 leads to an adverse inference against the accused."
19. Having considered the materials available on record and the original records, the unfortunate incident undoubtedly has taken place at the spur of the moment without premeditation and it cannot be said that the accused had any intention to kill or knowledge that death was likely to ensure. Accused being a paramour has intend to went to rage against the deceased suspecting her fidelity that she has illicit relationship with other person. Admittedly they are not husband and wife and they are paramour and there was no occasion for him to kill the deceased as admittedly she came along with him on the promise made by him that he will give life to her and he will take care of her and her daughter - PW-2. She mercilessly left two husbands and her parents ignoring their advise. Taking into consideration the mitigating circumstances and the quarrel took place between the paramours, the burn injuries also to the 30 accused. In the absence of any intention makes him answerable. Therefore conviction has to be passed under Section 304 Part II of IPC.
20. Our view is fortified by dictum of the Hon'ble Supreme court in the case of AHMED SHAH & ANOTHER vs. STATE OF RAJASTAN reported in (2015) 3 SCC 93. Paragraph 21 of the said judgment is extracted hereinbelow:
"21. As elaborated earlier, complainant party went to the field and Sabbir Shah was armed with gun. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, other accused inflicted injuries on Rakhu Shah and PW-8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case 31 falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death and the act of the accused- appellants is punishable under Section 304 Part I IPC."
21. PW-16 in whose presence PW-15 has recorded Ex.P11 statement has deposed that on 12.08.2013 the deceased Devamma admitted in the hospital with the history of burn injuries. Accordingly, on the request made by the jurisdictional police examined her and gave certificate that she was in a fit state of mind and accordingly, the police recorded the statement of the deceased in his presence and issued Ex.P11 - posthumous declaration. PW-12 the doctor in whose presence PW1 recorded the second posthumous declaration has deposed to the same effect. Postmortem report as per ExP10 issued by PW-11 clearly depicts that the cause of death was due to septic shock as a result of burns sustained to the extent of 35% to 40%. 32
22. Considering the entire materials available on record, we are of the considered opinion that the trial court is not justified in convicting the accused under the provisions of Section 302 of IPC. Accordingly, we answer point No.1 partly in the negative and point No.2 partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for life with a fine of Rs.5,000/- and made out a case to modify the same into the provisions of Section 304 Part II of IPC.
23. It is brought to the notice of this Court that in terms of the order passed by the trial court, the Legal Services Authority, on 21.11.2018 has paid the victim compensation to Kum.Sinchana - PW-2 through her grandmother - PW-7 - Marihuchchamma.
24. In view of the above, we pass the following: 33
ORDER
(i) Criminal Appeal No.1793/2018 filed by the accused is hereby allowed in part.
(ii) The impugned judgment of conviction and order of sentence passed by the IV Additional Sessions Judge, Mysuru in S.C.No.42/2014 dated 16.08.2017 convicting the accused under the provisions of Section 302 of IPC with imprisonment for life and to pay a fine of Rs.5,000/-
is hereby modified.
(iii) The accused is hereby convicted for the offence punishable under Section 304 Part II and sentenced to undergo Rigorous Imprisonment (RI) for a period of 9 (nine) years with a fine of Rs.25,000/-.
(iv) The accused is entitled to set-off as contemplated under the provisions of Section 428 of Cr.P.C. The accused shall be released after completion of sentence imposed by this Court and after payment of the fine imposed, if he is not required in any other case. 34
(v) The operative portion of this order shall be sent to the concerned Jail authorities.
In view of disposal of the main appeal, IA No.1/2022 does not survive for consideration.
Sd/-
JUDGE Sd/-
JUDGE Cm/-