Karnataka High Court
Sri Suresh Kumar vs The State Of Karnataka on 20 August, 2018
Equivalent citations: AIRONLINE 2018 KAR 551
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.494/2013
BETWEEN:
Sri Suresh Kumar
S/o Krishnamurthy
Aged about 33 years
Resident of No.3/2, Geetha Colony,
Muniyappa's House,
Yalachenahalli,
Bangaluru.
... Appellant
(By Sri Chandrashekar R.P., Advocate)
Sri Mohammed Ibrahim, amicus curiae)
AND:
The State of Karnataka
by Kumarswamy Layout Police Station
Bangalore District.
... Respondent
(By Sri Vijayakumar Majage, Addl.SPP)
This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the
judgment and order dated 09/16.04.2013 passed
by the Presiding Officer, Fast Track Court-XV,
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Bangalore in S.C.No.662/2010 convicting the
appellant/accused for the offence punishable under
Section 302 of Indian Penal Code.
This Criminal Appeal having been heard and
reserved on 02.08.2018 coming on for
pronouncement of judgment this day, B.A.PATIL
J., delivered the following:-
JUDGMENT
This appeal is directed against the judgment and order of conviction and sentence passed by the Presiding Officer, Fast Track Court-XV, Bengaluru in SC.No.662/2010, dated 9/16.4.2013, whereunder accused Nos.1 and 3 were acquitted of the offence punishable under Section 498A of IPC r/w. Section 34 of IPC and accused No.3 is also acquitted of the offence punishable under Section 302 of IPC. Accused No.1-appellant herein was convicted for the offence punishable under Section 302 of IPC. In so far as accused No.2 is concerned, after filing of the charge sheet, the case as against him was abated as he died during the course of trial. -3-
2. Briefly stated, the case of the prosecution as per the complaint at Ex.P3 is that M.Mohan Kumar, brother of the deceased Shobha filed the complaint dated 25.1.2010, alleging that his sister Shobha was given in marriage to accused No.1- Sureshkumar, son of Krishnamurthy and Susheela of Mavalli, about six months' back. At the time of marriage, parents of accused No.1 demanded dowry of Rs.50,000/- and also insisted for gold ornaments to the bride and a neck gold chain, a ring and suit to the bridegroom. The parents of the complainant told that they are not going to pay any dowry, but they will give a wrist watch, a ring and neck chain and perform the marriage. Accordingly without giving any cash, they gave mangalya and two pairs of ear studs.
3. It is further case of the complainant that after the marriage, his sister Shobha went to the matrimonial house at Yelechanalli and by taking a -4- rented house, they were residing there. Accused No.1-Sureshkumar told that he has studied upto PUC and was working with TATA sky and made them to believe and got married, but he has only studied upto SSLC. His sister was working in customer care centre of NOKIA Company and was earning Rs.5,000/- per month. One month after the marriage, in-laws of the deceased Shobha along with accused No.1, started and ill-treating her by demanding of Rs.50,000/-. They also used to tell her to go and bring the said amount from her parents, otherwise they will not provide food for her and she used to tell the said fact to them. It is further alleged that accused No.1 also used to tell her to resign the job which she was doing and join somewhere to get more salary and maintain the family and thereby used to ill-treat and harass her. It is further alleged that in-laws of the deceased used to ill-treat her and instigate accused No.1 and the said fact used to be informed by his sister. It is -5- further alleged that in order to settle her life, panchayats were held for 10 times and in spite of the same, they used to threaten that if accused No.1 gets married another woman they will get more money. It is further alleged that when his sister become pregnant, they got aborted the child and though there was ill-treatment and harassment, the said family life may improve and settle, they remained silent.
4. It is further alleged that on 25.1.2010 when the complainant was in the house at about 4.30 a.m., police informed him over phone and asked whether any of his relative is residing in Geetha Colony at Yelechenahalli, as one person has died in the first floor of one house and asked him to come and see. Immediately, himself and his brother Sunil went there and they saw his sister lying dead in the kitchen. When they were searching around the said place, they find a chit on deewana. When -6- they read the said chit, it was found that accused No.1-Suresh Kumar has written the said letter to the police stating that with hundred dreams he got married with Shobha, but there was a disappointment for him as she was not having the female character and without just cause, she used to quarrel and when he went to assault her, she made hue and cry saying that she would be killed. As such, by saying that she should really die, he squeezed her neck and thereafter she died and he is responsible for the same and nobody else. It is further alleged that accused No.1 used to ill-treat and harass her and thinking that if she is murdered, accused No.1 may get married with another girl and get dowry, by squeezing her neck, for the purpose of dowry, accused persons committed the murder of the deceased and therefore the complainant requested that a legal action may be taken against them. On the basis of the said complaint, a case came to be registered in Crime No.35/2010 for the -7- offences punishable under Sections 302, 498A r/w. Section 34 of IPC.
5. After completion of investigation the charge sheet was filed against accused Nos.1 to 3. The committal Court committed the case to the Sessions Court. The Sessions Court took cognizance, prepared the charge, which was read over and explained to the accused. The accused pleaded not guilty and as they were intending to face the trial, the trial was fixed.
6. In order to prove its case, the prosecution has examined 18 witnesses and got marked 33 Exhibits and 13 Material Objects. Thereafter, accused came to be examined under Section 313 of Cr.P.C. by putting incriminating material as against them, which they denied. On behalf of them, accused No.1 was examined as DW.1. However, during the course of cross-examination, they got marked Exs.D1 to D4. After hearing the learned -8- Public Prosecutor and the learned counsel for the accused, considering the evidence produced by the prosecution and the documents, the trial Court passed the impugned judgment and order convicting accused No.1 for the offence punishable under Section 302 of IPC. As against the same, the appellant-accused No.1 is before this Court.
7. We heard the arguments of the learned counsel Sri Chadrashekar R.P. and Sri Mohammed Ibrahim, learned amicus curiae for the appellant and Sri Vijayakumar Majage, learned Additional SPP for the respondent-State.
8. It is the contention of the learned counsel for the appellant-accused No.1 that the entire case of the prosecution rests on circumstantial evidence. In order to bring home the guilt of the accused, all the circumstances on which the prosecution is relying upon have to be proved. He submitted that the substantive motive for the alleged incident to -9- turn the deceased to death is ill-treatment and harassment caused by the accused persons to bring the dowry. When the trial Court has acquitted the accused of the offence punishable under Section 498A of IPC, then under such circumstances, the trial Court ought to have acquitted accused No.1 for the offence punishable under Section 302 of IPC. He further submitted that as on the date of the alleged incident, accused No.1 was not in the station and he had been to Vishakapatna on official duty. The said aspect has not been considered and appreciated by the trial Court. He further submitted that the provisions of Section 106 of the Indian Evidence Act ('Act' for short) is not applicable to the facts of the present case as in the house, it is only accused No.1 and the deceased were not staying, but along with them, accused Nos.2 and 3 were also staying. In that light, it cannot be held that the death of the deceased was in the exclusive knowledge of accused No.1. He
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further submitted that he disputed the arrest of accused No.1. He submitted that police called him and apprehended. At that time, he also produced the bus tickets, but they have not considered the said aspect. It is also his submission that not proving of alibi will not give an adverse inference against the accused, but always the burden is upon the prosecution to establish its case beyond all reasonable doubt. He further submitted that the prosecution has to stand on its own strength and it will not take advantage of the weakness of the defence and based on the said aspect, the conviction cannot be held. He further submitted that the letter of accused No.1 at Ex.P1 will not amount to confession and the same is inadmissible under Sections 25 and 26 of the Act. At the most, the prosecution can use it only under Section 27 of the Act. He further submitted that though the handwriting expert has given his opinion by stating that the specimen handwriting has been tallied with
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the handwriting in Ex.P1 and the same has been written by the same person, as per his evidence itself, it shows that first handwriting sent was not suitable and as such again second time, the handwriting of accused No.1 has been sent and initial report of the handwriting expert, it has been suppressed by the prosecution and as such the second opinion is inconclusive and solely on the basis of the said report, accused cannot be convicted. It is further submitted that recovery of TVS vehicle is not an incriminating material as against the accused. So also, the recovery of the gold articles on the basis of the voluntary statement of the accused from of Nakod Jewelry shop is not admissible. The owner or proprietor of the said shop has not been examined by the prosecution. He further submitted that at the time of drawing the inquest mahazar and in the evidence of PW.1 he has deposed that the gold ornaments were found over the body of the deceased. When that being so,
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accused No.1 taking away the jewels after committing the murder and recovery thereafter at his instance, is not probable and natural. It is also his submission that there are two types of strangulations, ligature strangulation and mugging strangulation, but the prosecution has not produced ligature before the Court with which he strangulated. In the absence of the said material, the case of the prosecution utterly fails. He further submitted that the PM report is also not acceptable and reliable. When no ligature has been produced and no opinion has been obtained from the doctor who conducted the postmortem, then the said evidence is not worth believable. On these grounds, he prayed to allow the appeal and to acquit the accused.
9. Learned counsel for the appellant has alternatively submitted that Ex.P1, the letter clearly goes to show that there was exchange of
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words between of the deceased and accused No.1 and in a spur of moment, the said incident has taken place, without there being any premeditation or preplan to commit the murder of the deceased. In that light, he submitted that the appellant is entitled to be convicted for the lesser offence and not for the offence punishable under Section 302 of IPC.
10. The learned counsel for the appellant has also relied upon the following decisions in support of his arguments:-
1. (2015)7 SCC 178
2. Laws (SC) 2013 3 76
3. AIR 1981 SC 765
4. 2009(14) SCC 415
5. Laws (SC) 2006 2 3
6. 2012(4) SCC 124
7. AIR 1966 SC 119
8. 2006(4) SCC 265
9. 2013 (4) SCC 42
10. 2016(1) SCC 550
11. 1977(2) SCC 210
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11. The learned amicus curiae vehemently argued and submitted that recovery has not been proved and there were doubtful circumstances and no material has been seized with which a strangulation has been done. By supporting the arguments of Sri Chandrashekar R.P., the learned counsel for the appellant, he also submitted to take a lenient view and convict the appellant-accused No.1 for the lesser offence.
12. Per contra, the learned Additional SPP vehemently argued and contended that the evidence of the doctor who conducted the autopsy clearly goes to show that the death of the deceased is a homicidal death and nowhere during the course of cross-examination it has been brought on record to discard his evidence. He further submitted that the incident has taken place in the house of accused No.1 and Ex.P1 is in his handwriting and even the handwriting expert has also given his opinion that
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the handwriting found on Ex.P1 and the specimen handwriting are of the same person, which itself clearly goes to show that it is accused No.1 who has committed the alleged offence. Even Ex.P1 proves the presence of accused No.1 in the house where the alleged incident has taken place. He further submitted that accused No.1 has taken the plea of alibi and has not produced any documents to show that he had been to Vishakapatna and he has also not examined any witness except by examining himself. He further submitted that there is recovery at the instance of accused No.1 and he has taken up a false defence. After considering all the materials placed on record, the trial Court has rightly convicted the appellant-accused No.1. The appellant has not made out any good grounds to interfere with the judgment and order passed by the trial Court and the same deserves to be confirmed by dismissing the appeal. On these grounds, he prayed for dismissal of the appeal.
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13. It is an admitted fact that there are no eye witnesses to the alleged incident and the entire case stands on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well settled by catena of decisions of the Hon'ble Apex Court and according to the said decisions the standard of proof required in case of circumstantial evidence that the prosecution has to fully establish all the circumstances and chain of events and the said circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
14. In order to establish its case, the prosecution has relied upon that the death of the deceased Shobha is a homicidal death and accused has written a confessional letter as per Ex.P1. Motive for the alleged incident is demand of dowry of Rs.50,000/- and ill-treatment and harassment
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and recovery of the gold articles at the instance of accused No.1 so also recovery of the cash in possession of the person and also recovery of TVS vehicle at the instance of accused No.1. In order to prove the case of the prosecution that the death of the deceased is a homicidal death, the prosecution has relied upon the evidence of PW.3 who is a panch witness to Ex.P5-inquest mahazar and PW.7 the doctor who conducted autopsy over the body of the deceased. PW.3 has deposed that he has signed Ex.P5 in KIMS Hospital where the body of his elder sister Shobha was shown and there were no ornaments over the body of the deceased and there was a ligature mark on the neck. Along with him, one Riyaz and Bharathi were there and they wrote inquest mahazar. This witness has not been cross- examined by the defence.
15. The doctor-PW.7 has deposed that he has conducted the postmortem over the body of the
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deceased from 3.40 p.m. to 4.40 p.m. and he found 12 injuries as mentioned in the PM report. He has further deposed that all injuries are ante-mortem and fresh in nature. Death was 24 hours earlier to postmortem and he has opined that death was due to asphyxia as a result of strangulation. He has further deposed that he has issued the PM report as per Ex.10. He further deposed that the injuries found on the hand, leg, on neck and face might have happened when they tried to smother. During the course of cross-examination, nothing has been elicited to discard the evidence of this witness. During the course of arguments, the learned counsel for the appellant would submit that in case of strangulation there are two types, manual strangulation and ligature strangulation and in case of manual strangulation there is impossibility of ligature mark and the ligature has also not been produced before the Court. In order to substantiate what is ligature, the learned counsel took us to the
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dictionary meaning of 'ligature', which reads as under:-
"Ligature: 1. Anything used in binding or tying; a band, tie, etc.; a thread or cord used to tie up a bleeding artery, etc."
16. Even the learned counsel took us through the Medical Jurisprudence and Toxicology of Dr.K.S.Narayana Reddy. We have gone through the said material which is brought to our notice. But as could be seen from the evidence of the doctor-PW.7, in his opinion he has clearly stated that the death was due to asphyxia as a result of strangulation and the injuries found in the PM report at Ex.P10 might have happened during the quarrel and when the deceased was made to suffocate. Even it is mentioned at Ex.P10 that there was a injury with slightly oblique ligature mark around the neck, more right side, front of the neck, right lateral aspect, back and on left lateral
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aspect. This aspect has also not been denied during the course of cross-examination of this witness. Though the ligature has not been produced when the death of the deceased has not been disputed because of asphyxia as a result of strangulation in the circumstances, the contention of the learned counsel for the appellant is not acceptable.
17. In order to prove the next circumstances, the prosecution has relied upon the letter of accused No.1 at Ex.P1, which is said to have been left by accused No.1 immediately after the alleged incident. In order to substantiate the said fact, the prosecution got examined PW.14, the Scientific Officer who received the four articles along with Ex.P1 which is the questioned handwriting. She has opined that the questioned handwriting and the specimen handwriting when compared scientifically the both are written by a same person. Though
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during the course of arguments, the learned counsel for the appellant by taking us to the provisions of Sections 25, 26 and 27 of the Act, submitted that the said document is not admissible and even it is hit under Article 20 of the Constitution of India, the same is not a conclusive proof but it can be used for the purpose of corroboration of the prosecution evidence. The evidence of the Investigating Officer-PW.18 shows that accused No.1 was apprehended on 27.1.2010 at about 3.30 p.m. Even the records including Ex.P1 clearly go to show that when the complainant went to the place of incident, he found Ex.P1 on deewana and the same was seized at the time of drawing the mahazar in the house of the accused. To that effect all other witnesses have also supported the case of the prosecution. Even accused No.1 who came to be examined as DW.1 has also admitted that Ex.P1 is in his handwriting. Though the said document is not admissible as a
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confession for having committed the alleged offence, one fact is proved by the prosecution that immediately before the incident, accused No.1 was present in the house and he has written Ex.P1. When his presence at the place of incident is established, then under such circumstances, he has to explain as to under what circumstances the said document got written by him and even when police were not there at the place of incident.
18. In so far as motive is concerned, though the trial Court has come to the conclusion that there was no ill-treatment and harassment for demand of dowry, as per Ex.P1 it clearly goes to show that accused No.1 tried to kill the deceased by squeezing her neck and she made hue and cry that she is going to be killed and immediately thereafter he made her to really die. In this behalf, the motive for committing the murder and the same was within his knowledge.
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19. The next circumstance on which the prosecution has relied upon is recovery of gold articles at the instance of accused No.1. As could be seen from the evidence of PW.18, the Investigating Officer, it discloses that accused No.1 gave a voluntary statement and thereafter he went to Nakod jewelry shop and from there he got produced MO.Nos.1 to 3, 5 and 13 and the same were recovered by drawing a mahazar as per Ex.P33. In Ex.P33 it has been mentioned that the owner of the Nakod jewelry shop was known to the accused and he told that on 25.1.2010 in the morning hours, he brought the gold articles like thali gundu, lakshmi coin and a ring and took the amount. Even subsequently, the said amount has been also recovered as per Ex.P12. Though during the course of arguments, the learned counsel for the appellant would submit that in the evidence of PW.1 he has deposed that when he went and saw
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the dead body, he saw the gold articles, subsequently when the witness came to be examined on 24.3.2011 by the prosecution he has admitted the suggestion as true that when he saw the dead body, two lines of lakshmi coin chain, one gold thali, 5 thali gundu and gold ring were not there on the body of the deceased and because of the panic he told in the examination-in-chief that they were there on the body. Thereafter the said witness has not been cross-examined by the defence. Even PW.3 who is pancha to inquest mahazar Ex.P5 has deposed that when the inquest mahazar was drawn, no ornaments were found on the dead body, which itself substantiate the case of the prosecution that on the body of the deceased no gold articles were found and subsequently the same were recovered at the instance of accused No.1 in Nakod jewelery shop and part of the amount has also been recovered. In this behalf, the evidence produced is sufficient to prove that
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immediately after the incident accused No.1 took away the gold ornaments of the deceased and sold them. Though it is the contention of the appellant's counsel that the owner of the said jewelry shop has not been examined by the prosecution, when other evidence is available before the Court, non- examination of the owner does not take away the case of the prosecution.
20. Even as could be seen from the evidence, TVS vehicle has been recovered at the instance of accused No.1 at Alankara Plaza as per Ex.P6. The Investigating Officer-PW.18 has deposed about the seizure of TVS vehicle bearing No.KA-03-EF-5360, which was parked at Alankara Plaza and even the pancha-PW.5 has also admitted his signature on Ex.P6. PW.5 has deposed that accused No.1 who is present before the Court showed TVS vehicle of blue colour. This fact substantiates the case of the prosecution. Even as could be seen from the
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evidence of DW.1 who has deposed that he took TVS vehicle and kept at Alankara Plaza and from there he went to Vishakapatna. This recovery substantiates the case of the prosecution that immediately after committing the alleged offence, accused No.1 went to his known jewelry shop, i.e. Nakod jewelry shop and thereafter parked the vehicle in Alankara Plaza and went to Vishakapatna. This fact is also proved by the prosecution.
21. Even though it is the contention of the learned counsel for the appellant that the motive for the alleged offence is for demand of 50,000/- and due to ill-treatment and harassment on the deceased, when the prosecution has failed to prove the ill-treatment and harassment and the trial Court has acquitted the accused of the offence punishable under Section 498A of IPC, the substantive motive has not been proved. But usually the motive is known only to the perpetrator of the crime and may
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not be known to others. The prosecution is not going to prove the motive of any offence in a criminal case and if the motive is proved by the prosecution, the Court has to consider it to see whether it is adequate. In that light, if the entire evidence is perused, including the evidence of PW.9 who is said to be the neighbour of the deceased working as a woman Police Constable, she has deposed that there used to be galata between the deceased and accused No.1 and many a times they went and pacify the things and even on the date of the alleged incident also, the galata was going on and as she was in a hurry to go to attend to her duties, she went away. This fact establishes the motive for the alleged incident and the same is acceptable in law.
22. It is the specific case of the appellant that as on the date of the incident, he had been to Vishakapatna on official duty, which clearly goes to
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show that he has taken the plea of alibi. When he takes the said plea of alibi, the burden is on him to prove the same under Section 103 of the Act. For the purpose of brevity, we quote Section 103, which reads as under:-
"103. Burden of proof as to particular fact - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
23. When the prosecution has proved that the death of the deceased is a homicidal death and the death has taken place in the house of the accused, and even as per Ex.P1 the presence of the accused has been proved and it is a specific case of the appellant that his parents-accused Nos.2 and 3 were not there in the house, then under such circumstances, he has to explain as to under what circumstances the alleged incident has taken place.
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Even when he has taken up the plea of alibi, he has to establish that he was not there at the place of incident. In order to substantiate the said fact, he has not produced any evidence. Though in his evidence he has deposed that on 23.1.2010 his parents went to his sister's house; in the house himself and deceased were there and on 24.1.2010 in the morning he had breakfast along with his wife; he went to Vishakapatna at about 9.45 a.m. on his official duty and while going he took TVS vehicle and parked at Alankara Plaza; after purchasing some materials he went at 2.00 p.m. and the said information was also informed to his parents and at about 1.30 in the midnight, they came to his house and his mother informed about the incident. He has neither produced the train tickets nor examined any officer, which itself is not going to establish the fact that he had been to Vishakapatna. When accused No.1 has taken up the plea of alibi, the burden is on him to prove the
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same under Section 103 of the Act. This proposition of law has been laid down in the case of State of Haryana Vs. Sher Singh and others, reported in AIR 1981 SC 1021. When accused No.1 fails to prove the plea of alibi it will be one of the strong circumstances to point out towards his guilt. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Ramnaresh & others Vs. State of Chhattisgarh, reported in (2012)4 SCC 257.
24. Keeping in view the aforesaid facts and circumstances as discussed by us in detail, the circumstances which have been relied upon by the prosecution erringly point out the guilt of the appellant-accused No.1. When all the circumstances point out his guilt, then he is liable to be convicted for the alleged offence. Even the evidence produced proves the chain of all the events and the said evidence is complete and
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incapable of explanation of any other hypothesis than the guilt of the appellant-accused No.1.
25. We have gone through the decisions quoted by the learned counsel for the appellant cautiously and carefully including the principle laid down therein. But the said decisions are not applicable to the facts of the present case.
26. It is the alternative contention of the learned counsel for the appellant-accused No.1 that the alleged incident has taken place when galata took place between the deceased and accused No.1 accused No.1 was not having any premeditation or preplan to commit the murder of the deceased and it has taken place in a spur of moment.
27. As could be seen from Ex.P1 and even the cross-examination made to DW.1 it shows that accused No.1 tried to assault the deceased and at that time she made a hue and cry that she would
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be killed and at that time, he squeezed her neck and she died. Even the letter at Ex.P1 also indicates that the said incident has taken place in a spur of moment. In that light, if the entire evidence is re-assessed though the evidence produced by the prosecution establishes the guilt of the accused-appellant, at that time there was no intention to cause her death by him. In that light, the trial Court ought to have convicted accused No.1 for the offence punishable under Section 304 part II of IPC, instead of convicting him for the offence punishable under Section 302 of IPC. The submission made by the learned counsel for the appellant is having force and the same is acceptable. In that light, the appellant-accused No.1 is liable to be convicted for the offence punishable under Section 304 part II of IPC.
28. It is submitted by the learned amicus curiae that appellant-accused No.1 is in custody for
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a period of about 8 years 7 months from the date of his arrest. We feel that it is just and proper that if the accused is sentenced to undergo imprisonment for the period which he has already undergone and to pay the fine as imposed by the trial Court, it would meet the ends of justice. Accordingly, we pass the following:-
Appeal is partly allowed. Accused No.1- appellant herein is convicted for the offence punishable under Section 304 part II of IPC. He is sentenced to undergo imprisonment for the period which he has already undergone and to pay the fine as imposed by the trial Court. Impugned judgment and order of conviction and sentence dated 9/16.4.2013 passed by the Presiding Officer, Fast Track Court-XV, Bengaluru in SC.No.662/2010, is modified to the extent as indicated above.
We appreciate the valuable assistance rendered by Sri Mohammed Ibrahim, learned
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amicus curiae. Hence, Registry is directed to pay an amount of Rs.5,000/- (Rupees five thousand only) to the learned amicus curiae as honourarium.
Sd/-
JUDGE Sd/-
JUDGE *ck/-