Karnataka High Court
Mahantesh @ Mallappa vs The State Of Karnataka, on 28 January, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28 T H DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.100133 OF 2016 (C)
BETWEEN :
MAHANTESH @ MALLAPPA
S/O. SHARANAPPA HOSAMANI,
AGE : 28 YEARS, OCC : BUSINESS,
R/O.BALAKUNDI,
NOW RESIDING AT ILKAL,
TQ : HUNGUND, DIST : BAGALKOT.
........ APPELLANT
(BY SRI J.S.SHETTY, ADVOCATE)
AND :
THE STATE OF KARNATAKA,
BY ILKAL POLICE STATION AUTHORITY,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA.
...... RESPONDENT
(BY SRI V.M.BANAKAR, ADDITIONAL S.P.P.)
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THIS APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. AND PRAYED TO ORDER OF
CONVICTION AND SENTENCE DATED 29.04.2016
PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT IN S.C.NO.32 OF
2014 MAY KINDLY BE SET ASIDE, BY ALLOWING
THIS APPEAL, WITH COST THROUGH OUT, IN THE
ENDS OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, K.N.PHANEENDRA, J., DELIVERED THE
FOLLOWING :
JUDGMENT
This appeal is preferred against the Judgment of conviction and sentence passed by the Principal District and Sessions Judge, Bagalkot in Sessions Case No.32 of 2014 vide Judgment dated 29.04.2016 convicting the appellant for the offence under Section 302 of Indian Penal Code (for short 'the IPC') and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- for the said offence and awarding the said amount of compensation to the victim-Ankita daughter of the deceased.
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2. The brief facts of the case on hand are that accused is no other than the husband of the deceased. Deceased is the daughter of P.W.1 Mr.Basawaraj. After the marriage between accused and the deceased, they were blessed with a child by name Ankita and when the deceased Rajeshwari came for the delivery of the child, the accused also came to the house of P.W.1 and started residing in the house of his father-in-law and infact he was working in the hotel run by sister of the accused near a Hospital in Ilkal village. It is the case of the prosecution that P.W-8 who is the neighbour has developed the intimacy with the deceased and this has come to the knowledge of the accused and infact he advised deceased-Rajeshwari to leave that intimacy and they go away from the said village to live happily together, she did not heed to the said request. In this context, it is alleged that on :4: 29.12.2013 at about 1.30 p.m. in the afternoon, the accused came to the house for lunch, then he found P.W-8 was also inside the house further P.W.8 and deceased were in a compromising position. After seeing them, the accused again started quarrelling with his wife and again requested her not to continue the said relationship with P.W-8 and to go along with accused away from the said village to live happily at least. Thereafter, P.W-8, according to the case of prosecution, ran away from the place. As the deceased did not heed to the request of the accused, he being the frustrated assaulted the deceased with an axe on various parts of the body, due to which, she sustained sever injuries, having assaulted his wife, he also wanted to die, as such with the help of sickle he caused self injuries with an intention to die. The accused and deceased having sustained injuries, were shifted to the hospital. The accused :5: survived, but the deceased died due to the injuries sustained by her. On the basis of the complaint lodged by P.W-1 as per Ex.P.2, narrated the about such factual aspects. Police have registered the case in Crime No.223 of 2013 and investigated the matter. After investigation, they found that the accused is the person who committed the murder of his wife and attempted to commit suicide by himself. Therefore police laid a charge sheet for the above said offences against the accused. The accused was also arrested very next day of the incident on 30.12.2013 and produced before the Court, since then he has been in Judicial Custody. After committal proceedings, the trial Court secured the presence of the accused and framed charges against him for the above said offences. Accused pleaded not guilty and claimed to be tried. The accused was tried by the trial Court. The prosecution in order to prove :6: the case against the accused examined as many as 19 witnesses and got marked Ex.P.1 to Ex.P.30 and Ex.D-1 to Ex.D-5 were also marked during the course of defence from the evidence of the P.W.5, 6 and the portion of the statement in Ex.P.1 and also P.W-7 and also material objects M.Os.1 to 6 were marked. After examination of the prosecution witnesses, the Court also examined accused under Section 313 of Criminal Procedure Code, who has denied the total case of the prosecution. On the other hand, he has taken a defence that he does not know what happened in the house and how his wife sustained injuries. But after receiving the information that his wife has sustained injuries, while proceeding towards his house on a bicycle, he fell down from the bicycle and sustained some injuries. He pleaded that a false implication has been made by the prosecution witnesses and he has :7: not committed any offence. Hence, he pleaded for the acquittal before the trial Court. After examining the oral and documentary evidence on record and appreciating the same, the trial Court has arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt, therefore the Judgment of conviction and sentence has been passed against the accused, as noted supra.
3. The learned counsel for the appellant/ accused Sri.J.S.Shetty, strenuously contends before this Court that almost all the witnesses who have supported the case of the prosecution are relatives to the deceased and they are interested witnesses and their version is pool of contradictions and omissions. Even with reference to the presence of the accused and the presence of the witnesses particularly, P.W-1, is doubtful and if their evidence is meticulously read. There is no explanation by the :8: prosecution as to the presence of P.W.8 in the house of the deceased on that particular day. As the said witness has not supported the case of the prosecution, apart from the alleged extra judicial confession of the accused before the interested prosecution witnesses, no other material collected by the prosecution in order to prove the motive particularly with reference to the alleged illicit intimacy between the deceased and as well as P.W-8. There are no eyewitnesses to the incident. The circumstantial evidence pleaded against the accused is only that the other witnesses after the incident went inside the house and found both the accused and the deceased injured and they shifted them to the hospitals and the deceased died in the hospital. Except this, no other circumstance is available against the accused. Therefore, the prosecution infact has not proved its case beyond reasonable :9: doubt. The trial Court has also not properly appreciated the evidence with reference to the contradictions and omissions. The learned counsel also submitted that even if the prosecution case is accepted as it is including the extra judicial confession of the accused, it clearly establishes that the accused must have done some act on that particular day, as the allegation in the charge sheet is that the deceased and P.W-8 were found in compromising position when the accused came to the house for lunch in the afternoon. Perhaps that act of the deceased and P.W.-8 provoked the accused and due to such sudden provocation, he must have lost his mental balance and inflicted not only injuries to the deceased but also inflicted injury to himself. Therefore, the offence could not fall under Section 300 of the IPC and it may fall under Section 304(I) of the IPC which is not compulsorily : 10 : punishable with imprisonment for life. As the accused has been in judicial custody for more than 6 years. The period undergone by him in Jail may be treated as punishment to him, therefore he requests the Court to modify the Judgment of the trial Court, alternatively.
4. Per Contra, the learned S.P.P. contends before this Court that, of course there are some contradictions and omissions in the evidence of P.W- 1, 3, 4 and 6 in this regard, but the core of the prosecution case is that they found the deceased and the accused inside the house who were injured and shifted them to the hospital and the accused disclosing before them that he has assaulted his wife and he also inflicted himself is not disturbed during the course of cross-examination. Therefore, the core of the prosecution case with reference to the strong circumstances establish against the accused which : 11 : virtually shifts the onus on the accused as to what happened inside house on that particular day, but the accused has not given any explanation as to how the deceased sustained injuries and why he was shifted to the hospital etc., Therefore, it would act additional link to the prosecution case when strong circumstances have been made out to establish the presence of the accused in the scene of offence. In the absence of the explanation by the accused, Court can draw inference in favour of the prosecution that the accused must be the person who has committed the alleged offences. He further contended that the accused has not only inflicted single injury to the deceased, but in the postmortem examination it shows that multiple injuries have been sustained by the deceased. Therefore, the intention of the accused is very much clear that he had an intention to kill his wife. There was no material to show that there : 12 : was any provocation by the deceased so as to draw inference that the offence would fall into any of the exceptions under Section 300 of IPC or under Section 304 II of IPC, therefore he pleaded for dismissal of the appeal.
5. Having heard the arguments of the learned counsel as noted above before adverting to the material evidence available on record, let us have the cursorily look at the evidence of the prosecution witnesses in order to eliminate the formal witnesses to be discussed.
6. P.W.1 is the father of the deceased who lodged complaint as per Ex.P.2, he identified material object M.O.1 an axe, M.O.2 jute bag, M.O.3 blood stained white pant and M.O.4 blood stained soil, M.O.5 sickle, M.O.6 Green Sari. The evidence of PW1 has not supported with reference to the motive. PW2 is the panch witness to Ex.P7, M.O.Nos.1 to 5 : 13 : were seized by the police and also M.O.No.6 under Ex.P8, which is a saree belonging to the deceased. PW3 is no other than the mother of the deceased that is wife of PW1, she also partially supported the case of the prosecution. PW4-brother of the deceased, PW6-brother of PW1 and PW7-cousin brother of PW1 have supported the case of the prosecution with reference to the factum that the accused and the deceased were found injured in the house and they all shifted the injured and the deceased to the hospital. PW5 is a scribe to Ex.P2, who is a hearsay witness so far as the other aspects are concerned. PW8 is alleged paramour of the deceased who has not supported the case of the prosecution. Ex.P11 is the contradictory portion in his statement. PW9 is a formal witness, who apprehended the accused on 30.12.2013. There is no cross examination as such there is no dispute so far : 14 : as this aspect is concerned. PW10, 11 and 12 are the Doctors who have treated the deceased. PW11 has also treated the accused. Particularly, PW10 is the Doctor who conducted the post mortem examination of the deceased and he gave his opinion as per Ex.P17 and also Ex.P17 is the post mortem report, Ex.P18 is the opinion with reference to the material object M.O.No.1 and he has given opinion that the said injuries on the deceased could be caused with the help of the axe M.O.No.1. Ex.P13 is the post- mortem report and Ex.P16 is the opinion regarding axe. PW11 is the Doctor initially who treated the deceased (injured the then) and gave the certificate as per Ex.P17 and he has also treated the accused who has also sustained injuries and the Wound Certificate is marked at Ex.P18. PW12 is also another Doctor at Kerodi who treated the deceased later at 4.00 p.m. on the same day. The evidence of : 15 : these witnesses in fact is not so disturbed in the course of cross-examination. As could be seen from the statement of the accused himself, he never stated that his wife did not sustain any injury. On the other hand in 313 statement, he has categorically admitted that after receiving the information that his wife has sustained injuries, he was proceeding to his house and he fell down while moving on a bicycle and he also sustained injuries. Therefore, sustaining of the injury by the wife and by himself are not at all in dispute. How they sustained injury is the question that has to be examined by the Court from the other evidence on record.
7. PW13 is the Tahsildar, who has conducted the inquest on the dead body of the deceased and inquest mahazar Ex.P21. He has also recorded the statement of the PW1 during the course of inquest : 16 : and Exs.D1 and D2 were marked during the course of the evidence.
8. PW14 is the panch witness to Ex.P21.
There is no dispute so far as the drawing up of the inquest mahazar and also the death of the deceased, who died from homicidal death. Therefore, the further examination of these two witnesses except for consideration of Exs.D1 and D2 does not arise. PW14 who carried M.O.Nos.1 to 6 to FSL and PW15 is the person who registered a case on the basis of Ex.P2 and dispatched the FIR to the Court as per Ex.P24.
9. PW17 is the Police Inspector, who investigated the matter and laid the charge sheet. PW18 is the Police Constable, who guarded the dead body and handed over the dead body for post mortem examination and after examination, handed over the same to the relatives. PW19 is the Assistant : 17 : Engineer, who has prepared the sketch of scene of offence as per Ex.P28. There is no dispute with regard to the above said facts, with regard to the post mortem examination of the dead body and drawing up of the sketch of the scene of the offence by PW19.
10. In the wake of the above said evidence in our opinion, the evidence of PWs.1, 3, 4, 5, 6, 7 and 8 are important witnesses, who have implicated the accused in the crime. Their evidence has to be evaluated by the Court.
11. Of course, PW1 in his examination-in-chief reiterated the contents of Ex.P2 and he stated that on the date of incident at about 12.30 p.m. he was near his house along with granddaughter Ankita. At about 12.15 in the afternoon, the accused came to the house and thereafter 10 to 15 minutes later, this witness heard some quarrel between the wife and : 18 : husband. Thereafter, he went inside and saw the accused was lying on the ground with bleeding injuries and in fact his daughter Rajeshwari also sustained severe injuries on her neck and chest and stomach portion and on the head. He also observed one sickle and knife was lying on the ground. Immediately the father of the accused also came and all of them shifted the injured persons i.e. accused and deceased to the hospital. He has also identified the axe, knife and also the sickle and white pant lying on the spot and also deposed that the police only informed him about the motive that PW8 had some illicit intimacy with the deceased. Therefore, the accused has committed such an offence, but he pleads his ignorance about such motive. Of course, during the course of cross-examination specifically Exs.D1 and D2 have been marked, wherein under Exs.D1 and D2, he has categorically stated that at : 19 : the time of the incident he was in the tea shop of the accused and at that time, the father of the accused was also present and after some time, the accused went to the house and he telephoned to his father and behind him, he also went to the house and all of them i.e. himself PW3, PW4, PW6 have seen the deceased and the accused sustaining injury and they all shifted the accused and the deceased to the hospital. Even in the course of cross-examination, he has not supported the case with reference to the motive. Some contradiction is there with regard to the existence of a white pant on the spot, the prosecution has also not established that sufficient evidence with reference to this white pant, which belonged to whom. Though some contradictions and omissions are there in the evidence of this witness with reference to the motive and going to the house at a different time and he being present in the tea : 20 : shop of the accused, but his evidence so far as it relates to him after entering into the house, he saw the accused and the deceased in pool of blood sustaining the injury and shifting the accused and the deceased to the hospital is not so disturbed. Even the evidence of other witnesses also corroborates this particular aspect of the matter. PW3-mother, PW4-another brother and PW6 another brother of PW1 have also stated similarly in the same fashion that after coming to know about the deceased sustaining injury, they all went to the said house and saw the deceased and injured in the house. But PW3-mother of the deceased, stated that she did not go to the house, but after receiving the information, she went to the hospital and saw the injured daughter and also the accused in the hospital. But she also turned hostile so far as this motive factor is concerned. In the course of cross- : 21 : examination also some suggestions have been made with reference to the motive, but these two witnesses PW1 as well as PW3 have not supported the case with regard to this motive factor. In this background, the evidence of PW4, the brother of the deceased and PW6-brother of PW1 played a dominant rule. They have categorically stated that on the day of the incident, the deceased Rajeshwari and PW1 were there in the house and PW3 had been to coolie work. This PW4 came to the house at about 1.30 and he saw the accused lying by the side of the door inside having sustained injuries to his left hand, head and other parts of the body. But, he did not see what happen to his sister, immediately himself and PW6 have shifted the injured accused to the hospital. These two witnesses have categorically stated that after they admitted the accused to the hospital, the accused himself has disclosed that the : 22 : deceased had developed intimacy with PW8. On that particular day, he saw PW8 inside the house with the deceased in a compromising position, then he requested the deceased not to continue the said relationship and to accompany the accused to some other village to live happily with each other. As she did not heed for his request, he assaulted the deceased with an axe and after assaulting her, he also got self-inflicted with the help of sickle and knife. On hearing the accused, immediately these two witnesses rushed back to the house and saw the deceased Rajeshwari also had sustained some injuries immediately they also shifted her to the hospital. In the course of cross-examination of these witnesses of course again some contradictions with reference to the time, they went to the house and the presence of PW1 at that time, contradicted with each other, but again the core of the prosecution that : 23 : they found the accused sustaining injury in the house and also deceased having sustained injuries and those two persons were shifted to the hospital is not totally disturbed. These witnesses though they are interested witnesses, have not supported the case of the prosecution very promptly with regard to the illicit intimacy between the deceased and the PW8. As rightly submitted by the learned counsel for the appellant that no witnesses have spoken about the illicit intimacy between deceased and PW8. Therefore, the accused telling before them with reference to such intimacy they promptly repeated the same before the Court. Though they pleaded their personal knowledge about the said intimacy otherwise in order to implicate the accused, they would have improved their version and stated about the intimacy between the deceased and PW8. Therefore, though some contradictions and : 24 : omissions are there with reference to finding of some white pant on the spot and PW1 going to the house in a different time and these witnesses going inside the house and only shifted the injured first to the hospital and thereafter shifted the deceased to the hospital though some contradictions are there, but in our opinion those contradictions are not sufficient to completely throw out the story of the prosecution. As though these witnesses are shown to be relatives but they promptly and truthfully stated before the Court what actually they knew about the case unmindful of whether their evidence to implicate the accused or favours the accused. Therefore, the evidence of these witnesses cannot be out rightly rejected by the Court.
12. Of course, PW8, who is said to be the paramount of the prosecution case, has not supported the case of the prosecution. : 25 :
13. PW10, the Doctor, who conducted post mortem examination as per Ex.P13. If the said document is seen, the deceased had sustained severe injuries to her head, neck, stomach and other parts of the body and the Doctor has opined that those injuries are the root cause for the death of the deceased. Though some questions have been put during the course of cross-examination that some of the injuries might not be caused by axe, the said suggestions have been denied by the Doctor. Very peculiarly enough the accused was also examined by the Doctor-PW11 before him the accused has not divulged how he sustained injuries. Though he made an improvement before the Court in 313 statement that he sustained injuries due to the fall from the bicycle. He has stated before the Doctor that, those injuries were self-inflicted injuries. Therefore, the evidence of PW11, who has actually treated the : 26 : deceased at the earliest point of time, corroborates the evidence of PW10, who has also narrated the injuries on the deceased while conducting the post mortem examination. Therefore, the accused in fact has not properly disclosed about the injuries sustained by him before the Doctor for the reasons best known to him.
14. PW12 is also a Doctor, who treated the deceased at the earliest point of time when she was alive. The consistency in the evidence of these three witnesses, PWs.12, 11 and 10 which shows that the injury sustained by the deceased are categorically stated by these three witnesses and there is no inconsistency in their statement.
15. PW13, the Tahsildar who conducted the inquest proceedings, has categorically admitted that PW1 has stated before him as per Exs.D1 and D2. As we have already discussed as per Exs.D1 and D2 : 27 : according to PW1, the father of the accused was in tea shop and PW1 was also in the tea shop and accused had been to the house on the afternoon for the purpose of having lunch and thereafter the father of the accused received phone call and immediately the father of the accused suspecting some sound play inside the house, went to the house and immediately PW1 also went to the house and all of them saw the accused, and the accused sustaining injury inside the house and also the deceased having sustained injuries and they shifted them to the hospital. So even considering this contradictory portion Exs.D1 and D2, again we are of the opinion that the core of the prosecution that these witnesses going to the house, seen the accused and the deceased sustaining injuries and shifting them to the hospital is not disturbed at all. Therefore, we are of the opinion the prosecution has : 28 : established a strong circumstances the presence of the accused and the deceased inside the house at the relevant point of time on that particular day. Both of them have sustained injuries, both of them were shifted to the hospital deceased succumbed to the injuries, but the accused survive. Even though the other contradictions and omissions are considered, the core of the prosecution case so far as this factum is concerned, has been proved beyond reasonable doubt. Even accepting the contradictions and omissions in our opinion with reference to timings as to the PW1 entering the house or other witnesses going to the house and shifted the accused alone to the hospital, all those things in our opinion will not go to the root of the prosecution case in order to totally topple the case of the prosecution. Therefore, we are of the opinion that the prosecution has proved the presence of the accused inside the : 29 : house on that particular day. Therefore, once the circumstance of the presence of the accused and the deceased together inside the house and sustaining of the injuries by them, it becomes responsibility on the part of the accused to explain how his wife sustained injury and how he sustained injury. In the absence of such elucidation of fact by the accused during the course of cross-examination of the witnesses or during the course of his 313 statement, we are of the opinion that the prosecution has proved such circumstance before the Court. Therefore, it goes without saying that the extra judicial confession made by the accused has got some relevancy in connection with the same. Almost all the witnesses, as we have discussed though they have turned hostile so far as the motive factum is concerned, but their evidence is consistent with regard to receiving of the information from the : 30 : accused with reference to the motive factum i.e. the accused told before them in the hospital that when he entered the house at the relevant point of time he saw the deceased and PW8 inside the house and he requested the deceased not to continue the said relationship and thereafter as she refused for the same, he assaulted her and he also inflicted injuries on himself. If at all the witnesses are so interested, they would have implicated accused by supporting the case of the prosecution even to the extent of motive is concerned. Therefore, such extra judicial confession cannot be simply ignored by the Court. Therefore, if that portion of the evidence is accepted by the Court, it is stringent case of the prosecution, perhaps due to that reason of illicit intimacy between the deceased and PW8, the accused must have committed such an offence on that particular day. Therefore, we are of the opinion that the Trial : 31 : Court has rightly appreciated the evidence on record in order to give finding with reference to the above said circumstances.
16. Now, coming to the alternative arguments addressed by the learned counsel with reference to the offence may not fall under Section 302 of Indian Penal Code. We agree with the submissions made by the learned counsel, because of the surrounding circumstance in this case. It is worth to refer here the exceptions to Section 300, which deals with culpable homicide not amounting to murder. The learned counsel mainly relied upon the exception 1 and 4 to Section 300, which reads as follows:
Exception 1. - When culpable homicide is not murder.-
Culpable homicide is not murder if the off ender, whilst deprived of the power of self -control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the : 32 : death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First. - That the provocation is not sought or voluntarily provoked by the off ender as an excuse f or killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawf ul exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawf ul exercise of the right of private defence.
Explanation. - Whether the provocation was grave and sudden enough to prevent the off ence f rom amounting to murder is a question of f act.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden f ight in the heat of passion upon a sudden quarrel and : 33 : without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party off ers the provocation or commits the f irst assault.
17. Of course, if these two provisions are meticulously read, indicate that if a person who is deprived of power of self-control due to grave and sudden provocation on the basis of the circumstances prevailing at that particular point of time where such provocation was given by anybody, particularly the deceased or even the circumstances if the accused causes the death of a person who gave such provocation or causes the death of person by mistake or accident then it would fall under Exception 1 of Section 300 of Indian Penal Code. Even Exception 4 says that, if the death is caused without premeditation, but in a sudden fight in the : 34 : heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner, then also it will fall under the category of culpable homicide not amounting to murder. If the above said provisions are read in consonance with each other applying the same to the facts of this particular case, it is clear from the evidence of the prosecution witnesses that the accused had suspected the conduct of the deceased even much earlier to the incident and he has advised his wife not to continue the said relationship. It appears in spite of that, the said relationship has continued according to the accused. But on the relevant day even according to the prosecution witnesses with reference to the extra judicial confession alleged to have been made by the accused, the accused went to the house in the afternoon at lunch and he saw the deceased in a : 35 : compromising position with PW8 and there also some conversion taken place between the deceased and the accused. When again the accused has requested the deceased not to continue the said relationship, so that they can go away from the said village to have a new life with each other, but the deceased had not conceded for the same. Therefore, perhaps being frustrated due to the reply given by the deceased and being enraged, due to the circumstance after seeing the deceased with the third person in a compromising position, he might have lost balance of his mind and has committed the murder of his wife by assaulting her with an axe. Having committed such act, he also inflicted himself some injuries with sickle and knife. That also shows the love and affection, he had with his wife. Therefore, he might have felt that once the wife is dead, nothing remains in the world to continue : 36 : himself. Therefore, with that intention, he might have also attempted to commit suicide. Therefore, it cannot be said that at any stretch of imagination, that the accused has taken undue advantage or acted in a cruel manner or unusual manner under the circumstances.
18. The Court has to visualize the surrounding circumstances of the case and the Court has to analyze and test the conduct of the accused with reference to the surrounding circumstances that has to be applied, is that of the effect of provocation at a reasonable manner and in applying test, it is of particular importance to consider whether there was any sufficient interval to the accused to cool down and thereafter think about what should be done. If there is sufficient gap between the accused witnessing the deceased and some third person in compromise position and the incident in such an : 37 : eventuality, the Court may draw an inference that the accused had real intention to commit the murder of his wife, but there is no gap or the gap is so small or little and only after seeing the incident of illicit intimacy of his wife with third person. If it is sudden act of the accused committing such an act, in our opinion, definitely the Court can draw an inference that due to sudden provocation of that particular circumstances the accused lost his mental balance and committed such an offence. Therefore, for the above said reasons, we are of the opinion that the offence would not fall under Section 302 of Indian Penal Code, but it would fall under Section 304 Part- I of the Indian Penal Code.
19. Now coming to the provision of Section 304 Part-I, that the accused had intention to kill his wife, but if the act of the accused falls under any of the exception to Section 300 in such an eventuality : 38 : the accused has to be punished under Section 304 Part-I. The offence is not punishable compulsorily with imprisonment for life. If the offence is culpable homicide not amounting to murder, the accused may be sentenced to undergo imprisonment for life or imprisonment for either description for a term which may extend to 10 years and shall also be liable to fine. If the act by which the death is caused is done with an intention of causing death or of causing such bodily injury as is likely to cause a death. But here, the accused has not inflicted only one injury on the deceased. It shows that he has inflicted several injuries on the head, neck, stomach and back of the deceased. The Injury Certificate issued by the Doctor and post mortem examination report amplifies this particular aspect. Therefore, the act of the accused though with sudden provocation, but his intention was to do away with the life of his wife. : 39 : Therefore, as we have already noted that it will fall under exception to Section 300, but not under Section 304 Part-I of Indian Penal Code.
20. Having come to such conclusion what would be the punishment that can be imposed upon the accused is the another question that arises for consideration. Section 304 Part-I though does not prescribe punishment to sentence the accused for life, but it also gives discretion to the Court by imposing punishment less than even 10 years. The discretion given to the Court has to be exercised depending upon the facts and circumstances of each case. In this particular case, the facts are so clear that the husband and wife are living together happily and they were blessed with a child. All other family members including the related witnesses to the prosecution were not having any grievance against the accused at any point of time and they : 40 : were all working together in a tea shop, there is absolutely no previous antecedents against the accused at any point of time and further the only problem with the accused and the deceased was the alleged illicit intimacy between the deceased and the third person. Therefore, when there is absolutely no bad antecedents, no unpleasant situation occurred in the life of the accused and particularly due to sudden and grave provocation, he lost the balance of his mind and committed such an offence. In our opinion, inflicting the punishment for life or 10 years would be very harsh. Therefore, we are of the opinion that the accused has already undergone more than six years of punishment in jail and also imposed fine of Rs.50,000/- and in default to undergo simple imprisonment for a period of one year that punishment would meet the ends of justice and we are of the opinion that the period already : 41 : undergone by him in the jail can be converted into the sentence under Section 304 Part-I of Indian Penal Code. With these observations, we proceed to pass the following:
ORDER The appeal is partly allowed. Consequently, the judgment of conviction and sentence passed by the learned Principal District and Sessions Judge, Bagalkot, dated 29 t h day of April, 2016 in S.C.No.32/2014 for the offence under Section 302 of IPC is hereby set aside. However, the appellant is convicted for the offence under Section 304 Part-I of I.P.C. and sentenced to undergo imprisonment for a period of six years and to pay fine of Rs.50,000/- in default to undergo further simple imprisonment for a period of one year. The order passed by the Trial Court awarding amount of Rs.50,000/- as compensation in favour of the daughter of the deceased is not disturbed.: 42 :
The accused is entitled for the benefit u/s 428 of Cr.P.C.
Registry is directed to communicate the operative portion of the judgment to the concerned jail authority for release of accused, if he has already undergone the said punishment and if fine is already deposited and he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE Ckk/CLK