Karnataka High Court
Narayanaswamy vs State Of Karnataka Batlahalli Police on 26 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 1698, 2020 (4) AKR 713
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.477/2015
C/W
CRIMINAL APPEAL No.300/2016
IN CRL.A. No.477/2015:
BETWEEN:
NARAYANASWAMY
SON OF SADHU NARASIMHAPPA,
AGED ABOUT 30 YEARS,
RESIDING AT GUDARLAHALLI VILLAGE,
CHINTAMANI-TALUK,
(JUDICIAL CUSTODY) ..APPELLANT
(BY SRI K.R. NAGARAJA, ADVOCATE)
AND:
STATE OF KARNATAKA,
BATLAHALLI POLICE,
REPRESENTED BY S.P.P.,
HIGH COURT BUILDING,
BANGALORE-560001. ..RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
SET ASIDE THE JUDGMENT DATED 18.02.2015, PASSED BY THE
SESSIONS JUDGE FTC-II, CHINTHAMANI, IN S.C. No.05/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
IN CRL.A. No.300/2016
BETWEEN:
STATE OF KARNATAKA,
BY BATLAHALLI POLICE,
REPRESENTED BY S.P.P.,
HIGH COURT BUILDING,
BANGALORE-560001.
...APPELLANT
(BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP)
AND:
NARAYANASWAMY
SON OF SADHU NARASIMHAPPA,
AGED ABOUT 30 YEARS,
RESIDING AT GUDARLAHALLI VILLAGE,
CHINTAMANI-TALUK,
(JUDICIAL CUSTODY)
...RESPONDENT
(BY SRI K.R. NAGARAJA, ADVOCATE)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
MODIFY THE JUDGMENT DATED 18.02.2015 AND ORDER DATED
26.2.2015 PASSED IN S.C. No.05/2013 ON THE FILE OF THE
COURT OF P.O., FTC-II, CHINTHAMANI, IN SO FAR AS IT
3
RELATES TO IMPOSING INADEQUATE SENTENCE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND TO
ENHANCE THE SENTENCE IMPOSED BY IMPOSING APPROPRIATE
SENTENCE IN ACCORDANCE WITH LAW.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT IS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, B.VEERAPPA, J,
DELIVERED THE FOLLOWING:
JUDGMENT
Learned counsel for the accused has argued the Criminal Appeals through Video Conference and agreed that quality of audio and video is proper. Sri Vijaya Kumar Majage, learned Addl. SPP argued the matter being present in the open Court.
2. Criminal Appeal No.477/2015 is filed by the appellant - accused against the Judgment & Order of conviction and sentence dated 18/26th February 2015 made in S.C. No.05/2013 on the file of the Fast Track Court-II, Chintamani, convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo simple imprisonment for ten years and to pay fine 4 of Rs.20,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months, with a prayer to set aside the said Judgment and order of conviction and sentence.
3. Criminal Appeal No.300/2016 is filed by the State to modify the Judgment & Order of conviction and sentence dated 18/26th February 2015 made in S.C. No.05/2013 in so far as it relates to imposing lesser sentence of ten years for the offence punishable under Section 302 of IPC, instead of death or imprisonment for life.
4. Since both the appeals are arising out of the common Judgment of conviction and sentence, they are taken up together for final disposal.
I Facts of the case
5. It is the case of the prosecution that the accused married the deceased Lakshmidevamma about 13 years 5 prior to the incident in question. Out of the wedlock, the deceased is having two male children aged about 11 years and 8 years. It is alleged that since 3 to 4 years prior to the incident, the accused had illicit relationship with CW.9 - Shivamma and he used to spend his earnings to consume alcohol and to maintain the said Shivamma, ignoring the maintenance of his family. Whenever it was questioned by his wife, the accused used to pick up quarrel. There used to be frequent quarrels between the accused and the deceased. On 17.5.2012 at about 7.00 p.m., when the accused returned home with bare hands, his wife questioned him as to why he has not brought any grocery items to the family and then the accused got angry and pushed her down by pressing her neck and thereafter brought kerosene from the kitchen and poured on her and lit the fire and restrained her from going out and then fled away. CWs.2 and 3 - Lakshminarasamma and Gangadhara, who are the sister-in-law and brother of the 6 accused respectively shifted the deceased to Chintamani Government Hospital and from there, she was shifted to Victoria Hospital, Bangalore, wherein she succumbed to burn injuries on 18.5.2012. Thereby, the accused committed the offence punishable under the provisions of Section 302 of IPC. A complaint came to be lodged by PW.3 (mother of the deceased) as per Ex.P3 before the jurisdictional Police. The jurisdictional police registered the crime against the accused for the offence punishable under Section 302 of IPC. As the offence was exclusively triable by the Sessions Court, the case was committed to the Sessions Court.
6. In order to prove the guilt of the accused, the prosecution has examined PWs.1 to 24 and got marked the documents - Ex.P1 to Ex.P16 and material object - MO.1.
7. After completion of evidence on behalf of the prosecution, the statement of the accused was recorded as contemplated under Section 313 of the Code of Criminal 7 Procedure. The accused denied all the incriminating circumstances appearing against him and also the case set up by the prosecution. The accused neither led the defence evidence nor got marked any documents.
8. The learned Sessions Judge considering both the oral and documentary evidence on record, has recorded a finding that the prosecution proved that on 17.5.2012 at about 7.00 p.m. the accused poured kerosene on his wife - deceased Lakshmidevamma and lit the fire at Gudarlahalli village when his wife questioned him as to why he has not brought anything to the house and due to which, she succumbed to burn injuries on 18.5.2012 in Victoria Hospital, Bangalore and thereby the accused has committed the offence punishable under the provisions of Section 302 of IPC. Accordingly, the trial Court by the impugned Judgment and order of conviction and sentence convicted the accused for the offence punishable under Section 302 of 8 IPC and sentenced him to undergo simple imprisonment for Ten years and to pay fine of Rs.20,000/-.
9. In view of the above, Criminal Appeal No. 477/2015 is filed by the convicted accused for setting aside the impugned Judgment & Order of conviction and sentence and Criminal Appeal No.300/2016 is filed by the State to modify the impugned Judgment & order, in so far as it relates to imposing lesser sentence of Ten years for the offence punishable under Section 302 of IPC, instead of death or life imprisonment, as the same is contrary to the said provisions.
10. We have heard the learned counsel for the accused as well as learned Addl. SPP for the State.
II Arguments advanced by the learned Counsel for the Accused
11. Sri K.R. Nagaraja, learned counsel for the accused contended that the impugned Judgment and order 9 of conviction passed by the Sessions Court convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo simple imprisonment for 10 years, is erroneous and contrary to the material on record and same is liable to be set aside. He further contended that admittedly the incident occurred on 17.5.2012 at about 7.00 p.m. and the deceased died on 18.5.2012 at 5 p.m. and the complaint lodged on 19.5.2012 at 9.30 a.m. and therefore, there was delay in filing the complaint. He also contended that the learned Sessions Judge proceeded to pass the impugned Judgment and order of conviction and sentence only on the basis of evidence of PWs.3,4,5,6 and 23, who are hearsay and interested witnesses and therefore, the same is liable to be set aside. He would further contend that the statements of sons of the 'accused and deceased' were recorded under Section 161 of the Code of Criminal Procedure on 2.7.2012 as per Ex.P1 and Ex.P2 after lapse of 45 days of the incident and further when they 10 were examined before the Court as PWs.1 and 2, they have turned hostile to the case of the prosecution.
12. He would further contend that the further statement of mother of the deceased (PW.3) who lodged the complaint, was recorded under Section 161 of the Code of Criminal Procedure on 26.9.2012 after lapse of four months, which clearly indicates that there is material improved version and the same is impermissible. He would further contend that PW.3 (mother of the deceased), PWs.4 and 5 (brothers of the deceased) and PW.6 (maternal uncle of the deceased) are all highly interested witnesses and close relatives of the deceased and they have made false allegations against the accused and their evidence is not corroborating with one another and further, there are material improvements at the time of trial. Such material omissions have been ignored by the Sessions Court and thereby erroneously convicted the accused in the absence of proper oral and documentary evidence to prove 11 that the accused involved in the alleged incident beyond all reasonable doubt.
13. He further contended that even though PWs.8 to 10, who are panchas to Ex.P5 and Ex.P6 clearly stated that they do not know the contents of the documents and they are unaware as to who are all present at the time of drawing Ex.P5 and Ex.P6 and not supported the prosecution case, still the Sessions Court misconceived their evidence and recorded that there is sufficient material against the accused and thereby proceeded to convict him erroneously. He would further contend that when the statements of PWs.4,5 and 6 were confronted to the official witnesses - PWs.13 and 20, they have clearly denied the said statements recorded under Section 161 of Cr.PC, thereby there are material omissions and contradictions in the evidence of the prosecution witnesses.
12
14. He would further contend that CW.9, who had illicit relationship with the accused, has not been examined by the prosecution. The said aspect of the matter has not been considered by the learned Sessions Judge and absolutely there is no material to implicate the accused in the alleged incident and the guilt of the accused must be proved by the prosecution beyond all reasonable doubt. Burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. He further contended that absolutely there are no eye witnesses to the alleged incident and the complaint filed after due deliberations and connivance with the Police and thereby the same is delayed. He further contended that the learned Sessions Judge proceeded to pass the impugned Judgment and order of conviction and sentence based on assumptions and presumptions and hence, the same cannot be sustained. Therefore, he sought to allow the appeal filed by the accused and set aside the impugned Judgment and 13 order of conviction and dismiss the appeal filed by the State for enhancement of punishment.
15. In support of his contentions, learned counsel for the appellant-accused relied upon the following judgments:
1. Yudhishtir -vs- The State of Madhya Pradesh {(1971)3 SCC 436} with regard to corroboration of the statement recorded under Section 161 of the Code of Criminal Procedure and subsequent improvements.
2. Laxman and others -vs- The State of Maharashtra {(1974)3 SCC 704} with regard to the provisions of Section 145 of the Evidence Act.
3. Harbeer Singh -vs- Sheeshpal and others {(2016)16 SCC 418} III Arguments advanced by the learned Addl. SPP
16. Per contra, Sri Vijaykumar Majage, learned Addl. SPP has contended that the categorical evidence of PWs.3,4,5,6 & 23 clearly proved that the accused involved 14 in the incident occurred on 17.5.2012 and he poured kerosene on his wife and lit the fire. Therefore, the accused is liable to be convicted for the offence punishable under the provisions of Section 302 of IPC and sentenced to undergo imprisonment for life. He would further contend that the categorical evidence of PWs.1 and 2 (sons of the accused and the deceased) clearly indicate the conduct of the accused and the presence of the accused was stated by PW.2. The accused has not discharged the initial burden under the provisions of Section 106 of the Evidence Act.
17. He would further contend that PW.3 in the categorical terms has stated on oath that the accused was present in the house when the incident occurred. Though a suggestion was made to PW.3 that the accused was absent in the house when the incident occurred, the same was denied. He further contended that PWs.3,4,5,6 and 23 have categorically stated that accused had illicit relationship with CW.9. He would further contend that the provisions of 15 Section 302 of IPC clearly depict that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. However, the learned Sessions Judge though convicted the accused for the offence punishable under the provisions of Section 302 of IPC, has erroneously imposed simple imprisonment for Ten years, which is impermissible and against the mandate of the provisions of Section 302 of IPC. The minimum sentence prescribed for the offence punishable section 302 of IPC is life imprisonment with fine and the Court has no option to impose lesser sentence. Hence, the impugned Judgment of conviction and order of sentence imposing punishment of Ten years simple imprisonment for the offence punishable under Section 302 of IPC, cannot be sustained and the sentence has to be enhanced. Therefore, he sought to allow the appeal filed by the State and dismiss the appeal filed by the accused.
16
IV Points for determination
18. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for consideration in the present appeals are:
1. Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under the provisions of Section 302 of IPC and sentencing him to undergo simple imprisonment for Ten years and to pay fine of Rs.20,000/-, in view of the specific complaint - Ex.P3 and the evidence of PWs.1,2 and 23, in the facts and circumstances of the case ?
2. Whether the impugned Judgment and order of conviction and sentence calls for modification?
19. 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.
17
IV Witnesses examined on behalf of the Prosecution
20. In order to re-appreciate the entire material on record including the oral and documentary evidence, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
21. PW.1 - G.N. Shivakumar, aged about 14 years, who is the younger son of the accused and the deceased and an eye-witness to the incident has deposed that since his father was not giving money, on the relevant day, his mother poured kerosene on herself and lit the fire and at that time, his father was not in the house and he had been to shop and therefore, he and his brother called the neighbours and they extinguished the fire by pouring water. He further deposed that at that time, he was studying in 7th Standard and the Police recorded his statement. He also deposed that his father did not go to the hospital, but one Military Seena took his mother to the Victoria hospital 18 in ambulance. In his cross-examination by the prosecution, he has denied giving statement before the Police as per Ex.P1, under which he has stated that his father having consumed alcohol, poured kerosene on his mother and lit the fire for having come barehanded to the house. In the cross-examination by the defence, he has admitted that his father was maintaining the family and was looking after his mother very well. He further admitted that his father has provided treatment to his mother in the Victoria Hospital. He was treated as hostile to the case of the prosecution.
22. PW.2 - G.N. Anil Kumar, aged about 16 years, who is the elder son of the accused and the deceased and an eye-witness to the incident has deposed that his mother poured kerosene on herself and lit the fire on the relevant day at about 7.30 p.m. in the kitchen by putting latches and he did not aware the reason for the same. When he & his brother screamed for help, the neighbours as well as his father, who was standing on the road, came and his father 19 tried to extinguish the fire with blanket. He further stated that his father himself called the ambulance and in the ambulance his paternal aunt Narayanamma and junior aunt Venkataravanamma took his mother to Chintamani Government Hospital and thereafter to Victoria Hospital, Bangalore. In the cross-examination by the prosecution, he denied the statement given before the Police as per Ex.P2 under which he has stated that his father has killed his mother. He further stated that his father was looking after them and their mother very well. PW.2 has not supported the case of the prosecution and he was treated as hostile.
23. PW.3 - Muninarayanamma, who is the mother of the deceased and mother-in-law of the accused is the complainant and she has lodged a complaint as per Ex.P3 on 19.5.2012 at 9.30 a.m. She has deposed that accused is her son-in-law and her daughter was having two male children. She further deposed that about two years prior 20 her evidence, the accused murdered her daughter by setting her ablaze by pouring kerosene, when her daughter questioned him about his illicit relationship with CW.9. She further deposed that her daughter was demanding money telling that the accused was not giving money to maintain the house and whenever her daughter questioned about illicit relationship, he used to hit her. She also denied of giving any statement before the Police.
24. PW.4 - Srinivas, who is younger brother of the deceased has deposed that the accused murdered his sister by setting her ablaze by pouring kerosene on her. He further deposed that the accused had illicit relationship with one lady and on the date of the incident, when his sister questioned about the same, the accused slapped her and pushed her and when she fell down, the accused set her ablaze by pouring kerosene on her. Though it was suggested to PW.4 that the accused was not responsible for the death of the deceased, the same is denied by him. 21
25. PW.5 - Narasimhamrthy, who is also the brother of the deceased has deposed that when his sister questioned the accused about his illicit relationship, the accused who has consumed alcohol on that fateful day, set his sister ablaze by pouring kerosene on her. He further stated that since the accused was spending his earnings to consume alcohol and also towards his kept mistress, his sister frequently visiting his house and demanding money. He also stated that his junior aunt's daughter who married the younger brother of the accused told him that his brother-in-law poured kerosene on his sister and lit the fire on the relevant day of the incident.
26. PW.6 - Venkatesh, who is the maternal uncle of the deceased has deposed regarding the illicit relationship of the accused and also that the accused was not providing groceries to the family. He further deposed that whenever the deceased questioned about the illicit relationship, the accused used to quarrel with the deceased. He also deposed 22 that his another sister's daughter told that on the fateful day, the accused poured kerosene on the deceased and lit the fire and thereby, he committed the murder.
27. PW.7 - B. Subbareddy, Assistant Executive Engineer, who draw the sketch of scene of incident as per Ex.P4, supported the case of the prosecution.
28. PW.8 - Venkatareddy, who is the panch to Ex.P5
- inquest report, partly supported the case of the prosecution.
29. PW.9 - Shiva and PW.10 - Naresh, who are the panch witnesses to Ex.P5 - inquest panchanama, have turned hostile to the case of the prosecution.
30. PW.11 - Ashwath Narayana, who is the panch to Ex.P7 - spot mahazar has deposed that he affixed his signature on the mahazar two days after the death of the 23 deceased near the shop of one Naresh. He partly supported the case of the prosecution.
31. PW.12 - Seenappa, who is an independent witness, has stated that his statement was recorded under Section 161 of the Code of Criminal Procedure as per Ex.P8. He turned hostile to the case of the prosecution.
32. PW.13 - Sriramaiah, ASI, who recorded the inquest proceedings as per Ex.P5, has supported the prosecution case.
33. PW.14 - M. Manjunatha, who is the Circle Inspector and the Investigating Officer has deposed that he has filed the charge sheet after investigation and recorded the voluntary statement of the accused as per Ex.P10 and also the further statement of PW.3 and produced Ex.P11 - Demand Register Extract. He supported the case of the prosecution.
24
34. PW.15 - Ramu, who is the brother of the accused and whose statement was recorded by the Police as per Ex.P12 on 26.9.2012, has turned hostile to the case of the prosecution.
35. PW.16 - Venkatesh, who is the brother-in-law of the accused and whose statement was recorded as per Ex.P13 also turned hostile to the case of the prosecution.
36. PW.17 - Narasimha and PW.18 - Ravi Kumar, who are panchas to Ex.P7 - spot mahazar also turned hostile to the case of the prosecution.
37. PW.19 - Venkatachalapathi, who is the Investigating Officer, investigated the crime in part and drawn Ex.P7 - spot mahazar and recovered MO.1 - kerosene can and collected Ex.P14 - post-mortem report and recorded the statement of PWs.1 and 2. He supported the case of the prosecution.
25
38. PW.20 - Narasimhamurthy, ASI, who registered the case on the basis of the complaint - Ex.P3 and filed FIR
- Ex.P15, supported the case of the prosecution.
39. PW.21 - Police Constable, who apprehended the accused on 25.9.2012 submitted report - Ex.P9 to the Investigating Officer - PW.14.
40. PW.22 - Dr. Venkataraghava, who conducted post-mortem examination and submitted PM report as per Ex.P14, supported the case of the prosecution.
41. PW.23 - Lakshminarasamma, sister of the accused partially supported the case of the prosecution and her statement was recorded by the Police on 19.5.2012 and his further statement was recorded by PW.19.
42. PW.24 is the brother of the accused and whose statement came to be recorded as per Ex.P15 and he turned hostile to the case of the prosecution. 26 VI Finding recorded by the learned Sessions Judge
43. Based on the aforesaid oral and documentary evidence, learned Sessions Judge recorded a finding that the prosecution proved that on 17.5.2012 at 7.00 p.m, the accused poured kerosene on his wife Lakshmidevamma and lit the fire at Gudarlahalli, when his wife questioned him as to why he has not brought anything to the house and due to which she succumbed to burn injuries on 18.5.2012 in the Victoria Hospital, Bangalore and thereby, the accused had committed the offence punishable under Section 302 of IPC.
44. Learned Sessions Judge convicted the accused for the offence under Section 302 of IPC. Very strangely while imposing the punishment, the learned Sessions Judge has erroneously sentenced the accused to undergo simple imprisonment for Ten years and to pay fine of Rs.20,000/- 27 and in default of payment of fine to undergo simple imprisonment for a period of six months.
VII Consideration
45. At this stage, it is relevant to consider the provisions of Section 302 of IPC, which reads as under:
"302. Punishment for murder:- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."
46. By careful perusal of the provisions of Section 302 IPC, it makes it clear that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. In the present case, since the accused is convicted for the offence punishable under the provisions of Section 302 of IPC, no option is left to the learned Sessions Judge to impose a sentence lesser than the life imprisonment. In other words, the minimum 28 sentence prescribed for the offence punishable under the provisions of Section 302 of IPC is life imprisonment with fine. While imposing punishment under the provisions of Section 302 of IPC, the learned Sessions Judge has erroneously imposed Simple Imprisonment for Ten years and the same is against the mandate of the said provisions.
47. In fact the Co-ordinate Bench of this Court by the order dated 18.2.2016 directed the Registrar General of this Court to initiate the disciplinary enquiry against the concerned Presiding Officer as per law. After seeking explanation from the Presiding Officer in pursuance of the direction issued by this Court, the Registrar General initiated proceedings in HVC NO.43/2016 and placed the matter before the Administrative Committee No.1. The Committee considering the office note, other relevant materials and the explanation submitted by the learned Presiding Officer, resolved to accept the explanation and to close the matter by the resolution dated 5.12.2016. The 29 Committee also directed the Registry to post the matter before the regular roster Division Bench on judicial side. The said resolution has reached finality. Accordingly, the matter is being posted before the Court.
48. Coming to the merits of the case, on meticulous reading of the complaint, oral evidence of PWs.1 to 24, material documents - Ex.P1 to Ex.P16 and Material Object
- MO.1, it clearly depicts that the accused Narayanaswamy and the deceased Lakshmidevamma are the husband and wife and they have married 13 years prior to the incident and they were blessed with two children (PWs.1 and 2), aged about 11 years and 8 years. This clearly indicates that there was no disharmony in the family and they were leading happy married life about 13 years. Only about 3-4 years prior to the incident, problem started in the family on the allegation that the accused has illicit relationship with CW.9 - Shivamma and spending his earnings to consume alcohol and to his kept mistress and he was not maintaining 30 his family. The deceased being a dutiful wife, naturally questioned the conduct of the accused. Whenever it is questioned by the deceased with regard to his conduct, the accused used to pick up quarrel. Thus, there used to be frequent quarrels between the husband and wife. Admittedly, CW.9 - Shivamma has not been examined by the prosecution to prove whether there was illicit relationship with the accused or not.
49. At this juncture, it is relevant to go through the evidence of certain important witnesses and the complaint - Ex.P3.
50. PW.1 - G.N. Shivakumar (younger son of the deceased and the accused) stated on oath that her mother poured kerosene on herself and lit the fire and during the relevant point of time, his father had been to shop. He further stated in his chief-examination that one Military Seena had taken his mother to the Victoria Hospital and his 31 father did not accompany them to the hospital. He also stated in his cross-examination by the defence that his father was providing all grocery items and taking care of well being of the family and his father has also provided treatment to his mother in the Victoria hospital.
51. PW.2 - G.L. Anil Kumar (elder son of the deceased and the accused) has also stated in his evidence that on the relevant day, his mother poured kerosene on herself and lit the fire. When he and his brother screamed for help, the neighbours as well as his father, who was standing on the road, came and his father tried to extinguish the fire with blanket. He stated in the cross- examination that his father was looking after his mother and the family very well.
52. Ex.P3 - complaint filed by mother of the deceased (PW.3) clearly depicts that the deceased and accused married about 13 years prior to the incident and 32 they have two male children (PWs.1 and 2), aged about 8 years and 11 years as on the date of the incident and there was frequent quarrel between the deceased and the accused and the accused used to assault the deceased and sometimes, the deceased used to come to the house of PW.3 asking for money. It is also stated in the complaint that the accused has illicit relationship with CW.9 - Shivamma and accused is not providing grocery items to the family and not looking after the well being of the family.
53. PW.23 - sister of the accused has specifically stated on oath that the accused and the deceased used to quarrel frequently and prior to the death of the deceased, the accused had illicit relationship with CW.9. She also deposed that prior to the illicit relationship, the accused was taking care of his family and on the date of the incident when PWs.1 and 2 screamed, she went to the spot and at that time, the accused was also present in the house. Thereafter, she and her husband had taken the deceased to 33 the Government Hospital at Chintamani and subsequently to Victoria Hospital, Bengalure, where she succumbed to the injuries. The jurisdictional Police drawn the spot mahazar as per Ex.P7. Though a suggestion was made by the defence to PW.23 that the deceased has no illicit relationship and he was taking care of his family, the same was denied.
54. PW.3 (mother of the deceased), PW.4 (younger brother of the deceased), PW.5 (brother of the deceased, PW.6 (maternal uncle of the deceased) clearly stated on oath that the deceased and the accused married about 13 years prior to the incident and there were frequent quarrels between them and on the fateful day, the accused poured kerosene on the deceased and lit the fire, thereby he has committed the murder of the deceased.
55. Admittedly, the entire case revolves around the circumstantial evidence as the eye witnesses - PWs.1 and 2 34 (sons of the deceased and the accused) have turned hostile and not supported the case of the prosecution. PWs.1 and 2 have stated on oath that their mother poured kerosene on herself and lit the fire. As per the version of PWs.1 and 2, at that time, father was near the shop. As per the evidence of PW.23, on screaming of PWs.1 and 2, when she visited the spot, the accused was in the house. The accused has not discharged his initial burden under Section 106 of the Evidence Act. The frequent quarrel between the husband and the wife i.e., the accused and the deceased started prior to three years of the incident on the allegation that accused has illicit relationship with CW.9.
56. It is well settled proposition of law 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, 35 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.
57. Having considered the submissions made by the learned counsel for the parties and having carefully considered the oral evidence of the prosecution witnesses and the material documents, the occurrence of offence undoubtedly has taken place at the spur of moment, when there was quarrel between the accused and the deceased (husband and wife) in connection with the accused has illicit relationship with CW.9 and further on the ground that the accused was not providing grocery items to the family. On 36 re-appreciation of the oral and documentary evidence, it clearly indicates that the incident happened without premeditation and it cannot be said that the accused had any intention to kill his wife or knowledge that death was likely to cause as they married 13 years prior to the incident and blessed with two children - PWs.1 and 2, aged abut 8 years and 11 years. Accused had only intended to vent his ire against the deceased wife as accused had illicit relationship with CW.9 and there was no intention on his part to kill his wife.
58. Taking into consideration the mitigating circumstances and the quarrel between the accused and the deceased, the fire incident occurred has to be attributed to the accused. The absence of any intention makes him individually answerable. In the circumstances, the conviction has to be made under the provisions of Section 304 Part-II of IPC.
37
59. The provisions of Exception (4) to Section 300 would attract to the facts and circumstances of the present case, which reads as under:
"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 having taken undue advantage or acted in a cruel or unusual manner."
60. A careful reading of the aforesaid provision makes it clear that to invoke said provision, four requisites must be satisfied, namely;
i) it was a sudden fight;
ii) there was no premeditation;
iii) the act was committed in a heat of passion and
iv) the assailant has not taken any undue advantage or acted in a cruel manner.
61. Admittedly, in the present case, it was a sudden fight between the husband and wife (i.e., the accused and the deceased) with regard to non-supply of grocery items to 38 the house and on the allegation that the accused had illicit relationship with CW.9. The mitigating circumstances clearly indicate that there was no premeditation on the part of accused and the act committed by accused was in the heat of passion upon a sudden quarrel and he has not taken undue advantage or acted in a cruel or unusual manner in causing the death of deceased. In the aforesaid circumstances, the present case cannot be said to be a case punishable for the offence under the provisions of Section 302 of IPC, but, a case falling under Exception 4 to Section 300 of IPC and the act of accused is punishable under the provisions of Section 304 Part-II of IPC with imprisonment for Ten years and fine etc.,
62. At this juncture, it is relevant to refer the dictum of Hon'ble Supreme Court in the case of AHMED SHAH AND ANOTHER -VS- STATE OF RAJASTHAN, reported in (2015) 3 SCC 93, wherein at paragraph 21 it is held as under: 39
"21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. 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, the 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 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, the act of the appellant-accused is punishable under Section 304 Part I IPC."
63. The Hon'ble Supreme Court while considering the provisions of Section 302 r/w 34, Section 394 r/w 34 of IPC and Section 27 of Evidence Act in the case of DIGAMBER 40 VAISHNAV AND ANOTHER -VS- STATE OF CHATTISGARH, reported in (2019) 4 SCC 522, held at paragraphs 18, 19, 40, 41 and 42 as under:
18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal 41 proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, 42 trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would 43 certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased.
But it is settled law that the only
circumstance of last seen will not
44
complete the chain of circumstances to
record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-
explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant"45
64. At this stage, it is relevant to state that principles for sentencing and proportionality/Balancing of Aggravating and Mitigating circumstances have to be taken into consideration while imposing the punishment of imprisonment for life. The Hon'ble Supreme Court while considering the said principles in the case of State of M.P.
-vs- Suresh reported in (2019)14 SCC 151, held at paragraphs 13 and 14 as under:
13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In 46 the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of.
65. The evidence on record clearly depicts that the accused and the deceased are husband and wife and they 47 married about 13 years prior to the incident and they were blessed with two male children, aged about 11 years and 8 years, which clearly indicates that there was no disharmony in the family. However, prior to 3-4 years of the incident, unhappiness started between the accused and the deceased on account of illicit relationship of the accused with CW.9 and also on the ground that the accused was not providing grocery items to the family and not looking after the well being of the family properly. In other words, the cause for unhappiness was the failure of the accused in understanding the feelings of his wife and not showing love and affection for which she was yearning as well as incompatibility of their likes and dislikes. It is said that there is no greater disparity in marriage than unsuitability of mind and purpose. The marriage appears to have broken down between the deceased and the accused prior to 3-4 years of the incident as the accused had illicit relationship with CW.9, thereby the deceased did not see 48 any possibility of retrieving it. Thus, there was quarrel between the accused and the deceased (husband and wife) which lead to unfortunate incident on 17.5.2012.
66. PWs.1 and 2, who are sons born out of the wedlock of the accused and the deceased, have not supported the case of the prosecution. The incident occurred in the family nearly 13 years after the marriage of the accused with the deceased on the allegation that the accused has not provided groceries to the family and he had illicit relationship with CW.9. However, the prosecution has not examined CW.9. Admittedly both PWs.1 and 2 (sons of the deceased and the accused) have deposed that the accused was taking care of well being of the family.
67. Taking into consideration the age of the accused and also that PWs.1 and 2 (sons of the deceased and the accused) were aged about 8 years and 11 years as on the date of the incident and also taking into consideration the 49 mitigating circumstances and the oral and documentary evidence, it is clear that there was no premeditation and the incident occurred in a sudden provocation. In the circumstances, the impugned judgment convicting the accused for the offence punishable under the provisions of Section 302 of IPC has to be modified and converted into one under Section 304 Part II of IPC. Taking into consideration the gravity of the offence and the overall facts and circumstances of the case, it is appropriate to sentence the accused to undergo imprisonment for Ten years with fine of Rs.10,000/-. Accordingly, the impugned Judgment and order of conviction and sentence has to be modified.
68. At this juncture, it has to be stated that the learned Sessions Judge has convicted the accused for the offence punishable under the provisions of Section 302 of IPC and sentenced him to undergo imprisonment for Ten years, which is against the mandate of the provisions of 50 Section 302 of IPC. Section 302 of IPC clearly depicts that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. The trial Court without applying its mind in the proper perspective and without following the mandate of the provisions of Section 302 of IPC, very strangely has imposed punishment of Ten years after convicting the accused for the offence punishable under Section 302 of IPC. Therefore, the State has filed Criminal Appeal No.300/2016 challenging the imposition of inadequate sentence of 10 years for the offence punishable under Section 302 of IPC.
69. On re-appreciation of the oral and documentary evidence on record, we are of the considered view that the impugned judgment and order of conviction has to be modified as stated supra and the accused has to be convicted for the offence punishable under the provisions of 51 Section 304 Part II of IPC and sentenced to undergo imprisonment for ten years and to pay fine of Rs.10,000/-.
70. In the circumstances, the Criminal Appeal No.300/16 filed by the State has to be disposed off with an observation that whenever a person is convicted for the offence punishable under Section 302 of IPC, he shall be punished with death, or imprisonment for life with a fine as per the mandate of the said provisions. In other words, the Court has no option to impose a sentence lesser than death or life imprisonment for the offence punishable under Section 302 of IPC.
VIII Conclusion
71. For the reasons stated above, the 1st point raised in these Criminal Appeals is answered in the negative holding that the learned Sessions Judge is not justified in convicting the accused for the offence punishable under the provisions of Section 302 of IPC, in view of the specific 52 complaint - Ex.P3 and the evidence of PWs.1,2 and 23, in the facts and circumstances of the case. The 2nd point raised in these Criminal Appeals is answered in the affirmative holding that the impugned Judgment and order of conviction and sentence calls for modification and the impugned Judgment convicting the accused for the offence punishable under Section 302 of IPC has to be modified and converted into one under Section 304 Part II of IPC and accused shall be sentenced to undergo imprisonment for Ten years with fine of Rs.10,000/- and in default of payment of fine to undergo further imprisonment for two years.
IX Result
72. In view of the above, we pass the following:
ORDER
1. Criminal Appeal No.477/2015 filed by the convicted accused is allowed in part.53
2. The impugned Judgment and order of conviction and sentence passed by the Sessions Court convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for Ten years and to pay fine of Rs.20,000/-, is hereby modified and the accused is convicted for the offence punishable under Section 304 Part II of IPC and sentenced to undergo Rigorous Imprisonment for TEN years and to pay fine of Rs.10,000/- (Rupees ten thousand only).
In default of payment of fine, the accused shall undergo further Simple Imprisonment for two years.
3. The accused is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
4. Criminal Appeal No.300/2016 filed by the State is disposed off with an observation that whenever an accused person is convicted for the offence punishable under 54 Section 302 of IPC, he shall be punished with death, or imprisonment for life, with a fine as per the mandate of the said provisions and the Court has no option to impose a sentence lesser than the life imprisonment for the offence punishable under the provisions of Section 302 of IPC. Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE Gss/-