Karnataka High Court
Sri. B A Narasimhamurthy vs State Of Karnataka on 13 March, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.1356 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL No.1356 OF 2018
BETWEEN:
1. SRI. B. A. NARASIMHAMURTHY,
S/O ANJINAPPA,
AGED ABOUT 37 YEARS,
R/AT BHADIMARALURU GRAMA,
BAICHAPURA POST,
GOWRIBIDANURU TALUK,
CHIKKABALLAPURA DISTRICT-561208.
BANGALORE.
(PRESENTLY UNDERGOING SENTENCE OF
IMPRISONMENT AT CENTRAL PRISON,
Digitally signed BANGALORE, CONVICT NO. 10308)
by MALATESH ...APPELLANT
KC
Location: High (BY SMT. PRIYANKA S. ANGADI, ADVOCATE)
Court of
Karnataka
AND:
1. STATE OF KARNATAKA,
BY DODDABALLAPURA RURAL POLICE STATION,
REPRESENTED BY
HIGH COURT PUBLIC PROSECUTOR,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
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CRL.A No.1356 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 26.03.2018 AND ORDER OF SENTENCE
DATED 06.04.2018, PASSED BY THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, DODDABALLAPURA IN S.C.No.10013/
2017, CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 498A AND 302 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused, who is none other than the husband of victim, has filed the present Criminal Appeal against the judgment of conviction dated 26.03.2018 and order of sentence dated 06.04.2018 passed in S.C.No.10013/2017 on the file of the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, convicting him for the offence punishable under Section 498A of the Indian Penal Code and sentencing him to undergo simple imprisonment for a period of one year with fine of `1,000/-, in default to undergo simple imprisonment for a period of three months, and convicting for the offence punishable under Section 302 of the Indian Penal Code and sentencing to undergo imprisonment for life with fine of `5,000/-, in default, to undergo simple imprisonment for one year.
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2. It is the case of prosecution that, P.W.3-Sanjeevamma lodged the complaint as per Ex.P.2 with Doddaballapura Rural Police Station stating that, about 20 years back, her daughter Ashwathamma was given in marriage to accused- Narasimhamurthy and out of the wed lock they have two children viz., Gajendra, aged 11 years and Simhadri aged 9 years and they were residing at Shantinagara, 7th Cross, Doddaballapura. Recently, accused was badly addicted to alcohol and used to assault his wife under the influence of alcohol, causing mental and physical torture and used to pay nothing to maintain the family. As usual, on 25.11.2016, the complainant and the deceased went to work in Ever Blue factory and returned at 7.00 pm in the factory bus and went to their respective houses. Around 8.15 pm, the neighbours of the deceased informed her that the accused assaulted her daughter with stone, hence PW.3 rushed to the house of the deceased and saw that her daughter was lying unconscious with bleeding injuries on the head. Complainant along with her son shifted the victim to Government Hospital, Doddaballapura and after First Aid, on the advise of the doctor, shifted her to NIMHANS, Bengaluru. Accordingly, lodged the complaint on -4- CRL.A No.1356 of 2018 28.11.2016 at 8.00 pm. It is further stated in the complaint that as she was engaged in shifting her daughter to the hospital to get treatment, there was delay in filing the complaint. Based on the said complaint, the police registered a case against the accused in Crime No.488/2016 for the offences punishable under Sections 498A and 307 of the Indian Penal Code.
3. It is further case of the prosecution that, when the victim was under treatment in NIMHANS Hospital, doctors informed the complainant about meager chances of recovery of the victim. Therefore, the complainant shifted her to Doddaballapura Hospital, where, the victim succumbed to the head injuries, on 01.01.2017 at about 6.35 am. Accordingly, intimation was sent to the police. The complainant filed another complaint as per Ex.P.7, on 01.01.2017. The police apprehended the accused. Upon death of the victim, offence was altered to one punishable under Section 302 of the Indian Penal Code. After investigation, the Investigating Officer filed the Charge Sheet against the accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code.
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4. Since the case was triable by the Sessions Court, the matter was Committed to the Court of Sessions. On 22.09.2017, the learned Sessions Judge framed the Charge against the accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code, read it over to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution, in all examined 21 witnesses as P.Ws.1 to 21, marked the documents Exs.P.1 to 32 and material objects M.Os.1 to 3. After completion of the evidence of prosecution witnesses, the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure was recorded. Accused denied all the incriminating circumstances adduced against him by the prosecution witnesses and did not chose to lead any defense evidence. However, the accused took the plea of alibi to question 71 and stated that on the date of the incident, he was not present in the village and he does not know anything and all the allegations made against him are false. -6- CRL.A No.1356 of 2018
6. Based on the aforesaid pleadings, the learned Sessions Judge, framed the following point points for consideration:
"(i) Whether the prosecution proves beyond all reasonable doubt that death of Smt.Ashwathamma, who is wife of the accused was took place on 01.01.2017 in government hospital Doddaballapura at about 6.35 am, is a homicidal death?
(ii) Whether the prosecution proves further all
reasonable doubt that deceased
Smt.Ashwathamma is wife of accused, accused married her 20 years back to the incident, very recently accused cultivated habit of drinking alcohol and subjecting his wife with physical mental torture and not at all maintaining the house, hence he had committed offence under Section 498A of IPC?
(iii) Whether the prosecution proves beyond all reasonable doubt that on 25.11.2016 at about 8.15 pm when Smt.Ashwathamma returned from the job then accused came to the house and picked up quarrel with his wife and assaulted on her, when she fell down he has crushed her head with the granite stone with intention to commit her murder, even though Smt.Ashwathamma was admitted in the hospital for treatment she was succumbed to the head injuries on 01.01.2017 at about 6.35 am, -7- CRL.A No.1356 of 2018 thereby the accused has committed murder of his wife, which is punishable under Section 302 of IPC?"
7. Considering both oral and documentary evidence on record, learned Sessions Judge recorded the finding that prosecution proved beyond reasonable doubt that, death of Smt.Ashwathamma, wife of the accused is a homicidal death. Accused married the victim 20 years back, and very recently accused cultivated habit of drinking alcohol and started to harass his wife physically and mentally and was not at all maintaining the house and thereby committed an offence punishable under Section 498A of IPC. Further, the prosecution proved beyond all reasonable doubt that on 25.11.2016 at about 8.15 pm when Smt.Ashwathamma returned home from the job, accused picked up quarrel and assaulted her, when she fell down, crushed her head with the granite stone with an intention to commit her murder. Even though Smt.Ashwathamma was admitted to the hospital for treatment, succumbed to the head injuries on 01.01.2017 at about 6.35 am, and thereby accused committed an offence punishable under Section 302 of the Indian Penal Code. Accordingly, -8- CRL.A No.1356 of 2018 convicted the accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code. Hence the present Criminal Appeal is filed.
8. We have heard learned counsel for the parties.
9. Smt.Priyanka S.Angadi, learned counsel for the appellant/ accused contended with vehemence that impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code is highly improper, unsustainable and liable to be set- aside. She further contended that there is delay in filing the complaint as per Ex.P.2, inspite of MLC sent to the jurisdictional police, as spoken to by P.W.12 and the prosecution has failed to explain the delay. The victim is said to have been taken in an auto and admitted to the hospital and thereafter, shifted to NIMHANS. Though the incident took place on 25.11.2016, complaint was lodged on 28.11.2016 and there was delay of three days in filing complaint. She further contended that, it is the case of the prosecution that marriage between the accused and deceased was solemnized 20 years back. The couple lead -9- CRL.A No.1356 of 2018 their marital life for 20 long years and have two children out of the wed lock. Though the prosecution has alleged that the accused was addicted to alcohol and used to ill treat, assault and harass the deceased mentally and physically, no complaint has been lodged to the police in this regard in 20 years of their marital life. No explanation is offered by the prosecution for not lodging the complaint for 20 years. She further contended that Ex.P.2-complaint is not in the hand writing of P.W.3 and P.W.3 is not an eye witness to the incident. Except the victim, no one was present in the house at the time of the incident. P.Ws.1 and 4 claiming to be eye witnesses have turned hostile. P.Ws.5 and 6 have not supported the case of the prosecution. P.W.18-Investigating Officer has not visited the hospital and finger print of the appellant was not taken. Though the accused and deceased have two children, their statement has not been recorded. The conviction is based only on suspicion, cannot be sustained.
10. Learned counsel further contended that P.W.3- complainant-mother of the deceased has admitted in her chief- examination that accused and deceased lived happily for 20 years. The unfortunate incident happened when the accused
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CRL.A No.1356 of 2018demanded money from the deceased, to drink alcohol. When she refused to give money, under sudden provocation assaulted her with M.O.1 and thereby, it is a clear case which falls under Section 304 Part I and not under Section 302 of the Indian Penal Code. Therefore, sought to allow the Criminal Appeal.
11. In support of her contentions, learned counsel for the complainant sought to rely on the following authorities.
(i) Criminal Appeal No.1314/2016 dated 06.05.2021 in the case of Lakshmi Javaraiah vs. the State of Karnataka, paragraph-44;
(ii) Gurmukh Sigh vs. State of Haryana reported in (2009)15 SCC 635, paragraph-
24;
(iii) Nizam and others vs. State of Rajasthan reported in AIR 2015 SC 3430, paragraph-8.
12. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence, contended that the evidence of P.Ws.3 and 4 clearly depicts that there was constant harassment to the deceased by the accused. Accused was not earning money and every day, accused used to
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CRL.A No.1356 of 2018demand money to consume alcohol. Deceased used to work in a factory, earn and maintain the family. Accused was not at all worried about the education of the children. Deceased used to look after the educational expenses and welfare of the children. When the deceased refused to give money to the accused to drink alcohol, he killed her by assaulting with M.O.1. The evidence of doctor who conducted the post mortem clearly depicts that death was due to shock and sepsis secondary to head injury. Therefore, the learned Sessions Judge is justified in convicting the accused. He further contended that the material on record clearly depicts that the accused used to harass the deceased constantly and therefore, sought to dismiss the Criminal Appeal.
13. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration are:
"(i) Whether the appellant/accused has made out a case to interfere with the impugned judgment ad order of the learned Sessions Judge convicting him for the offence punishable under Section 498A of the Indian Penal Code?
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CRL.A No.1356 of 2018
(ii) Whether the appellant/accused has made out a case to interfere with the impugned judgment ad order of the learned Sessions Judge convicting him for the offence punishable under Section 302 of the Indian Penal Code, in the facts and circumstances of the present case?"
14. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
15. This Court being the Appellate Court, in order to re- appreciate the entire material on record, it is necessary to consider the oral and documentary evidence adduced by prosecution witnesses.
(i) P.W.1-Nagarajaiah, owner of the house where accused and deceased were residing, deposed that he does not know how accused used to look after his wife. On the date of the incident, he informed the mother of the deceased regarding quarrel between accused and deceased. He acted as panch witness to seizure of M.O.1 and supported the case of prosecution.
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CRL.A No.1356 of 2018
(ii) P.W.2-R.Ravi, panch witness to Ex.P.1, identified M.Os.1 to 3 and partly supported the prosecution case.
(iii) P.W.3-Sanjeevamma-complaiant, mother of deceased and mother-in-law of accused lodged the complaint as per Ex.P.2 on 28.11.2016 and another complaint as per Ex.P.7 after death of her daughter on 01.01.2017. Marriage of accused and deceased was performed 30 years back and out of the wed lock two children were born. The accused used to assault and harass her daughter. The accused assaulted his daughter with M.O.1 and she was admitted to hospital. After 36 days, her daughter died in the hospital, and supported the prosecution case.
(iv) P.W.4-Rathnamma, neighbour of deceased and independent witness deposed that there was constant quarrel between accused and deceased and on the date of the incident she saw the quarrel. Ultimately, the witness turned hostile,
(v) P.W.5-Srinivas, P.W.6-Kiran, witness to inquest mahazar-Ex.P.9 supported the prosecution case.
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CRL.A No.1356 of 2018
(vi) P.W.7-K.C.Narayan, P.W.D. Engineer deposed that he prepared the sketch of the spot as per Ex.P.10 and deposed that Ex.P.11 is the requisition letter of the police sent to him for preparing the sketch, and supported the case of prosecution.
(vii) P.W.8-Ramaiah,Panchayath Development Officer deposed that on the request made by jurisdictional police he gave details of property of P.W.1 as per Ex.P.12 and supported the prosecution case.
(viii) P.W.9-Erra Hanumaiah, H.C.No.377, deposed that he arrested the accused on the instructions given by the Investigating Officer and submitted the report as per Ex.P.13 and supported the case of prosecution.
(ix) P.W.10-Dr.Santhosh Kumar, deposed that he treated the victim till 01.01.2017 and issued the death intimation as per Ex.P.14 to the Investigating Officer, and supported the prosecution case.
(x) P.W.11-Dr.Shanthkumar, deposed that he conducted post mortem as per Ex.P.15 on 01.01.2017 at 3.00 pm and opined that death
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CRL.A No.1356 of 2018was due to shock and sepsis secondary to head injury, and supported prosecution case.
(xi) P.W.12-Dr.Chowdaiah, deposed that the
victim was admitted to the hospital on
25.11.2018 at 10.00 pm and he issued MLC as per Ex.P.19 and supported prosecution case.
(xii) P.W.13-T.Venkata Chalaiah, H.C.No.816, deposed that he took PWD engineer to the spot who prepared the sketch and supported the prosecution case.
(xiii) P.W.14-Nasru Ulla, panch witness to mahazar as per Ex.P.30, supported the case of prosecution.
(xiv) P.W.15-C.Ramaiah, Assistant Sub Inspector, deposed that on the basis of the complaint given by P.W.3 as per Exs.P.2 ad 7 in Crime No.488/2016, he conducted the mahazar, seized M.Os.1 to 3 and supported prosecution case.
(xv) P.W.16-Dr.Sunil Malagi, working as Senior Assistant in NIMHANS, Bengaluru, supported the case of prosecution.
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CRL.A No.1356 of 2018(xvi) P.W.17-S.V.Kumar, H.C.No.779, deposed that he carried the items to the Forensic Science Laboratory and supported the case of prosecution.
(xvii) P.W.18-Raju M.S., Police Sub Inspector, deposed that he conducted investigation and handed over to P.W.19 and supported prosecution case.
(xviii) P.W.19-Shivakumar, CPI deposed that he conducted investigation, drawn mahazar and submitted charge sheet and supported the prosecution case.
(xix) P.W.20-Dr. Dhaval B. Shukla, Medical Officer, NIMHANS, issued the Discharge Summary and supported the prosecution case.
(xx) P.W.21-Radha S., Scientific Officer, FSL deposed that she issued the report as per Ex.P.31 and supported the case of prosecution.
Based on the aforesaid material on record, the learned Sessions Judge proceeded to convict the accused for the offences punishable under Sections 498A and 302 of the Indian Penal Code.
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16. A careful perusal of complaint-Ex.P.2 dated 28.11.2016 lodged by P.W.3-Sanjeevamma who is none other than the mother of victim, specifically stated that about 20 years back marriage was performed between accused and deceased and out of the wed lock two children were born. They were living happily. Recently, accused got addicted to alcohol and used to earn nothing to maintain the family. The deceased used to work in a factory along with complainant and used to take care of the family as well as the education of the children. The accused used to assault the deceased under the influence of alcohol. As usual, on 25.11.2016, the complainant and the deceased went to their work in Ever Blue factory and returned at 7.00 pm, in the factory bus, to their respective houses. Around 8.15 pm, the neighbours of the deceased informed her that the accused assaulted her daughter with M.O.1. When she rushed to the house of the deceased, saw that her daughter was lying unconscious with bleeding injuries on head. Complainant along with her son shifted the victim to Government Hospital, Doddaballapura and after First Aid, on the advise of the doctor, shifted her to NIMHANS, Bengaluru. Accordingly, lodged the complaint on 28.11.2016 at 8.00 pm.
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CRL.A No.1356 of 2018Complainant has further stated in the complaint that as she was engaged in shifting her daughter to the hospital to get treatment, there is delay in filing the complaint. Based on the said complaint, the police registered a case against the accused in Crime No.488/2016 for the offences punishable under Sections 498A and 307 of the Indian Penal Code. When the victim was under treatment in NIMHANS Hospital, doctors informed the complainant about meager chances of recovery of the victim. Therefore, complainant shifted the victim to Doddaballapura Hospital, where, she succumbed to the head injuries, on 01.01.2017 at about 6.35 am. Accordingly, complaint as per Ex.P.7 was lodged on the very same day i.e., on 01.01.2017. After the death of the victim, offence under Section 302 of the Indian Penal Code was registered.
17. Though learned counsel for the appellant/accused contended that there is delay in lodging the complaint, the fact remains that the unfortunate incident happened on 25.11.2016 at 8.00 pm and the accused is none other than the husband of the victim. P.W.3-mother of the victim has taken the victim to Government Hospital at Doddaballapura, later shifted her to NIMHANS, Bengaluru and when the doctors opined that there is
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CRL.A No.1356 of 2018meager chance of survival, being unable to bear the expenses, again shifted the victim to hospital at Doddaballapur. All along, the complainant being mother, has taken care of her daughter with a hope that she may survive. Unfortunately, the victim succumbed to the injuries on 01.01.2017. As such, there is delay in lodging the complaint. The said delay is not fatal to the case of prosecution, since the complainant being mother of the victim has given preference to get medical treatment to her daughter. Thereby, the contention of the learned counsel for appellant that there is delay in lodging the complaint does not hold any water.
18. It is not in dispute that on the date of the incident itself, MLC as per Ex.P.19 was sent to the police, as spoken to by the Doctor-P.W.12. Police ought to have taken immediate action, but in the absence of complaint, they kept quiet.
19. It is also not in dispute that the accused and deceased got married 20 years back and they were cordial. However, recently, accused developed the habit of consuming alcohol and got addicted. Thereby, started to harass his wife, as deposed by P.W.3. However, the fact remains that in 20 years of
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CRL.A No.1356 of 2018marriage, there is no incident of deceased lodging complaint against the accused alleging violence and no panchayath were conducted. However, the material on record clearly depicts that P.Ws.1 and 4 have specifically deposed that accused used to quarrel with his wife and used to demand money to drink alcohol. On the unfortunate day, when the victim refused to give him money, the incident has happened. Admittedly, there are no eye witnesses to the incident. Though it is stated that P.Ws.1 and 4 are eye witnesses, they have turned hostile. P.Ws.5 and 6 panch witnesses to Ex.P.9-inquest mahazar have not supported the case of prosecution.
20. It is also not in dispute that though the accused and deceased have two children, they have not been examined by the prosecution to elicit the fact that the accused and deceased used to quarrel constantly. The learned Sessions Judge proceeded to convict the accused mainly on the basis of evidence of P.Ws.1, 3, 4 and other official witnesses and the mahazar drawn. The fact remains that when the accused assaulted his wife with M.O.1 she fell down and became unconscious. She was admitted to hospital on the same day. Thereafter, she was shifted to NIMHANS, Bengaluru. On the
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CRL.A No.1356 of 2018advise of the doctors, she was discharged from NIMHANS and was admitted to local hospital. Ex.P.22-discharge summary issued by NIMHANS depicts that patient was admitted to the hospital on 26.11.2016 at 01.21.00 am and was discharged on 16.12.2016 at 9.20 am. The discussion made in Ex.P.22 depicts that, right frontal EVD was placed on 05.12.16 in view of increasing post traumatic HCP and tracheostomy was done on 06.12.16. Patient remained to be in M4 sensorium throughout the post OP hospital stay. The prognosis was explained to the patient party and they have requested for discharge as they want to shift her to another hospital for further care and management. Hence, patient was discharged in a stable condition to a general hospital. However, evidence of P.W.16-Dr.Sunil Malagi and P.W.20-Dr.Dhaval B. Shukla, depicts that the patient was discharged even though she had not fully recovered. There is inconsistency in the evidence of P.Ws.16, 20 and the discharge summary-Ex.P.22.
21. It is also not in dispute that victim died on 01.01.2017 in Government Hospital, Doddaballapur, after 36 days of the incident. Thereby, it is the negligence on the part of P.W.3 and to some extent on the part of the doctors who discharged the
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CRL.A No.1356 of 2018victim from the hospital. P.Ws.16 and 20 have deposed that P.W.3 expressed her inability to bear the medical expenses. Accordingly, the victim died after her discharge from NIMHANS. The post mortem report depicts that the death was due to shock and sepsis secondary to head injury. Admittedly, victim died 36 days after the incident and thereby, there cannot be any attribution to accused that due to the assault made by him on the head, victim died.
22. It is also not in dispute that the material on record clearly depicts that accused and deceased were married for 20 years and out of the wed lock, two children were born. There was no complaint of harassment meted out to the victim by the accused during marital life for 20 years. It is stated in the evidence of P.W.3 that recently accused started consuming alcohol. On the date of the incident, accused demanded money from the deceased to meet the expenses for consuming alcohol. When she refused to give money, he slapped on her cheek. At that time, she said that even if he kills her, she will not give money. In the altercation, accused lost self control and in heat of passion assaulted on the head of the victim with
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CRL.A No.1356 of 2018M.O.1. Thereby, the offence falls under Exception I Section 300 of the Indian Penal Code.
23. Exception I to Section 300 of the Indian Penal Code, reads as under:
"Culpable homicide is not murder if the offender, 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 death of any other person by mistake or accident."
24. A careful reading of the said provision makes it clear that culpable homicide is not murder if the offender, 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 death of any other person by mistake or accident.
25. As stated supra, when the deceased refused to give money to the accused to consume alcohol, in the spur of moment, accused assaulted the deceased with M.O.1. Accused and deceased had lead happy marital for 20 years and no complaint of harassment was lodged by the deceased against the accused. Thereby, it is a clear case of culpable homicide
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CRL.A No.1356 of 2018not amounting to murder. Thereby, conviction under Section 302 has to be modified and altered to conviction under Section 304 Part I of the Indian Penal Code.
26. Taking into consideration the age of accused having two children, and taking into consideration mitigating circumstances that incident happened due to sudden provocation, this is a fit case to modify the impugned judgment of conviction and order of sentence.
27. The Hon'ble Supreme Court has declared that the principles for sentencing and proportionality/balancing of aggravating and mitigating circumstances have to be taken into consideration while imposing imprisonment for life. In the case of State of M.P. -vs- Suresh reported in (2019)14 SCC 151, at paragraphs 13 and 14, it is held 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
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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 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.
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28. This Court, while considering the provisions of Section 302, 498A, 504 and 506 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961, in the case of Lakshmi Javaraiah vs. The State of Karnataka, passed in Criminal Appeal No.1314/2016 dated 06.05.2021, at paragraph-44, held as under:
"44. Further, from a perusal of entire prosecution evidence, there is absolutely no effort on the part of prosecution to establish the other motive, besides, prosecution failed to establish any planning by accused to commit murder. Neither the particulars from whom the accused purchased/secured the weapons used for murder are placed on record nor the persons who supplied/sold them to accused examined during trial. Hence, motive has to be held as not proved. However, mere absence of motive does not result in acquittal of accused. It is held above that prosecution established that accused caused death of his wife. But accused in this case has also taken up an alternative contention that the offence even if held proved would fall under Part-I of Section 304 of IPC. In this regard, the appellant has relied upon Sri. Murli @ Denny. His explanation for the same is grave and sudden provocation offered by deceased herself. In his voluntary statement-
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Ex.P.24, the accused has staled that when he returned home on 06.08.2013 at 11.30 a.m., the deceased was on the Dewan Cot watching TV. At that time, accused advised her not to speak to strangers on the phone. At that time deceased provoked him saying "if he were born to his father, he should murder her". Enraged by the same, accused hit her with a wooden repiece patti, which was in the house. When the deceased fell on the cot and was screaming, therefore he cut her throat with knife. From the above, it is evident that the incident occurred in spur of moment, when deceased offered grave and sudden provocation to accused. The same is not a premeditated murder. Therefore, conviction of accused for offence under Section 302 of IPC would not be justified. Accused would be liable for conviction under Part-I of Section 304 of IPC as the case falls within Exception-1 of Section 300 of IPC. Our view is supported by decision of Hon'ble Apex Court in Sri. Murli @ Denny relied upon by the counsel for appellant."
29. The Hon'ble Supreme Court, in the case of Gurmukh Sigh vs. State of Haryana reported in (2009)15 SCC 635, at paragraph-24, held as under:
24. These are some factors which are required to be taken into consideration before awarding
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appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
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(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of
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CRL.A No.1356 of 2018the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.
30. The Hon'ble Supreme Court, while considering the provisions of Section 302 of the Indian Penal Code, in the case of Nizam and others vs. State of Rajasthan reported in AIR 2015 SC 3430 at paragraph-8, held as under:
"8. The case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his evidence."
31. In the present case, though P.W.3-mother of the deceased lodged the complaint-Ex.P.2 and P.W.4-neighbour of the deceased deposed about the quarrel between accused and
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CRL.A No.1356 of 2018deceased, the fact remains that they are not eye witnesses to the incident. The material on record clearly depicts that the accused and deceased were married 20 years back, they have two children and neither panchayath was held to mend the behaviours of accused and deceased, nor police complaint was lodged alleging the harassment meted out to the deceased by the accused. Absolutely, there is no motive for the alleged incident and it is evident that the victim has died 36 days after the incident. Thereby, accused has made out a case to interfere with the impugned judgment of conviction and order of sentence.
32. The material on record, including the evidence of P.Ws.1, 3 and 4 depicts that there was quarrel between accused and deceased and accused used to harass the deceased demanding money to meet his expenses to consume alcohol and he never used to maintain the family, let alone the educational expenses of his children. Thereby, the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 498A of the Indian Penal Code. Accordingly, we answer point no.1 in the negative.
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33. Considering the entire material on record, it is clear that the learned Sessions Judge is not justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and accordingly, we answer point No.2, partly in the affirmative.
34. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and order of sentence dated 26.03.2018 passed in Sessions Case No.10013/2017 on the file of the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, convicting the accused for the offence punishable under Section 498A of the Indian Penal Code and sentencing him to undergo simple imprisonment for one year and to pay fine of `1,000/-, in default, to undergo simple imprisonment for three months, is hereby confirmed.
(iii) The impugned judgment of conviction and order of sentence convicting the accused for the offence
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punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of `5,000/-, in default, to undergo simple imprisonment for one year, is hereby modified.
(iv) The accused is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of `20,000/-, in default, to undergo simple imprisonment for two years.
(v) Both sentences shall run concurrently.
(vi) The accused is entitled to the benefit of Section 428 of the Code of Criminal Procedure.
(vii) On deposit of fine amount, in view of Section 357(3) of the code of Criminal Procedure, `10,000/- each shall be paid to Gajendra and Simhadri, two children of deceased, on proper identification.
Sd/-
JUDGE Sd/-
JUDGE kcm