IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. JUSTICE B.A. PATIL AND THE HON’BLE MR.JUSTICE S.G.PANDIT CRIMINAL APPEAL NO.1162/2016 BETWEEN:
1. Sushanth Gowda S/o Bijuva Gowda Aged about 25 years R/at Harakana Halli, Belagodu Hobli, Sakaleshapura Taluk, Hassan District-573 134.
Native of Salvapalli Village Alasugumma Post, Jagannath Prasad Hobli, Buguda Taluk-561 118, Ganjam District, Orissa State.
2. Narayana Gowda S/o late Panu Gowda Aged about 58 years R/at Harakana Halli Belagodu Hobli, Sakaleshapura Taluk, Hassan District-573 134.
Native of Oruduvudi, Banjar Village, Kummandi Post, Jagannath Prasad Hobli Buguda Taluk-761 118, Ganjam District, Orissa State.
3. Rankonidi S/o Natabardas Aged about 45 years R/at Harakana Halli Belagodu Hobli, Sakaleshapura Taluk, Hassan District-573 134, Native of Alasugumma, Buguda Taluk-761 118, Ganjam District, Orissa State.
(By Sri P.D.Subrahmanya, Advocate) AND:
The State of Karnataka by Station House Officer Sakaleshapura Village Police Station Sakaleshapura Taluk-573 134 Hassan District Represented by State Public Prosecutor High Court of Karnataka Building Bengaluru-560 001.
… Appellants … Respondent (By Sri I.S.Pramodchandra, SPP-II) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order of conviction dated 29.01.2016 passed by the II Additional District and Sessions Judge, Hassan, in S.C.No.208/2013, convicting the appellants/accused for the offences punishable under Sections 302, 201, 120(B) r/w. Section 34 of Indian Penal Code and etc., This Criminal Appeal coming on for hearing this day, B.A.PATIL J. delivered the following:-
J U D G M E N T This appeal arises against the judgment and order of conviction and sentence passed by the II Additional District and Sessions Judge, Hassan in SC.No.208/2013 dated 29.1/1.2.2016.
2. We have heard Sri P.D.Subrahmanya, learned counsel for the appellants-accused No.2 to 4 and Sri I.S.Pramodchandra, learned SPP-II appearing for the respondent-State.
3. The gist of the case of the prosecution is that accused, deceased and PW.1 were engaged for coolie work in Coffee Plantation belonging to PW.3- Sandesh R.S. PW.1-complainant, deceased and accused Nos.3 and 4 were residing in the residential lane in the said Coffee Estate at Sakaleshpura. It is further case of the prosecution that the deceased Pradeep Pradhan, son of the complainant-PW.1 was teasing the daughters of accused Nos.3 and 4. It is further case of the prosecution that accused Nos.3 and 4 called accused No.2 and they hatched a conspiracy with an intention to eliminate the son of the complainant Pradeep Pradhan and they offered money to accused No.1 for the said act. In that light on 22.3.2013 at about 7.00 p.m. when the deceased was in his house, accused Nos.1 and 4 pretending to go towards Halekeri Village, took him near Chotahalla adjacent to the land belonging to PW.3 with a common intention to take away the life of the deceased Pradeep Pradhan, accused No.1 caught hold of the deceased, accused No.4 kicked him, accused No.3 assaulted with chopper on the leg of the deceased, accused No.2 caused cut wounds on the backside of the neck and thereafter accused No.1 took the same chopper and caused cut injuries and slit the throat and thereafter they destroyed the evidence. It is further case of the prosecution that on that day, the deceased did not return to home even after 9.00 p.m. When the complainant asked the accused persons about his son, they did not give proper answers. They searched for the deceased and on 23.3.2013 at about 11.00 a.m., they found the dead body of the deceased Pradeep Pradhan with injuries and thereafter the complainant filed the complaint as per Ex.P1. On the basis of the said complaint, a case came to be registered in Crime No.56/2013 for the offences punishable under Sections 302, 201 r/w. Section 34 of IPC. After completion of investigation, chargesheet has been filed as against the accused. Accused No.1 is absconding till today. After following the procedure the Sessions Court took cognizance and secured the presence of accused Nos.2 to 4. Thereafter the charge was prepared. Accused Nos.2 to 4 denied the contents of the charge and claimed to be tried as such the trial was fixed.
4. In order to prove its case, the prosecution in all has examined 19 witnesses as PWs.1 to 19 and got marked the documents as per Exs.P1 to P25 and also 8 Material Objects MO.Nos.1 to 8. After closure of the case of the prosecution, accused-appellants were examined under Section 313 of Cr.P.C. and they denied the incriminating material. However, they did not lead any evidence on their behalf and no documents were marked. After hearing the learned Public Prosecutor and the learned counsel appearing for the accused- appellants, the impugned judgment and order of conviction and sentence came to be passed. Challenging the legality and correctness of the same, accused Nos.2 to 4 are before this Court.
5. It is the submission of the learned counsel for the appellants-accused Nos.2 to 4 that the entire case rests on circumstantial evidence and there are no strong circumstances so as to bring home the guilt of the accused beyond all reasonable doubt. It is his further contention that the last seen theory put forth by the prosecution is shaky and cannot be believed and on the basis of the same, no inference can be drawn as against the accused persons. He further submitted that the recovery pancha PW.12 has not supported the case of the prosecution and the prosecution has failed to prove the recovery at the instance of accused No.3. Even the motive for the commission of offence is not so strong. It is further contended that though accused Nos.2 and 3 were confined on suspicion, they were provided food and they were even allowed to attend nature call. The said aspect has not been properly considered and appreciated by the trial Court. When the police came, accused Nos.2 and 3 were there in the house of accused No.3 and other witnesses have not stated about their presence that itself creates doubt in the case of the prosecution. Under such circumstances, he submitted that accused Nos.2 and 3 are entitled to benefit of doubt. It is his further submission that accused No.2 used to stay in Chennai and was not a resident of the said lane and therefore the question of his inclusion for the offence punishable under Section 120B of IPC is not justifiable. He further submitted that there are so many contradictions and omissions in the evidence of the prosecution witnesses. If the said contradictions and omissions are looked into properly, the appellants-accused are entitled to be acquitted of the offences levelled against them. On these grounds, he prayed to allow the appeal and acquit the appellants-accused Nos.2 to 4 by setting aside the impugned judgment and order of conviction and sentence passed by the trial Court.
6. Per contra, the learned SPP-II has fairly submitted that there are some minor improvements in the evidence of the prosecution, but the said improvements have not been properly rebutted by confronting the same to the witnesses as well as the Investigating Officer as contemplated under Section 145 of the Indian Evidence Act. It is his further submission that prior to the incident in question, the accused have conspired and the said aspect has also seen by PW.1, who has clearly stated that accused Nos.1 and 4 came and took the deceased with them. It is his further submission that when the deceased was last seen with the accused persons and in the absence of their explanation as to when they departed the company of the deceased when he was alive, then under such circumstances, the only presumption that can be drawn is that it is the accused persons who have committed alleged offence. It is his further submission that there is a strong motive that prior to the incident in question, the deceased used to tease the daughters of accused Nos.3 and 4 and the daughter to accused No.3 was intending to be given in marriage to accused No.2 and in that light, accused No.2 who was residing in Chennai had come to the place of incident at the request of accused Nos.3 and 4. All of them have hatched a plan with an intention to eliminate the deceased. There are strong circumstances and evidence produced in this regard has remained intact and it has not been shaken during the course of cross- examination. Looking from any angle, the accused have not made out any case, so as to interfere with the impugned judgment and order of the trial Court. On these grounds, he prayed to dismissed the appeal.
7. We have carefully and cautiously gone through the submission of the learned counsel appearing for the parties and perused the LCRs which have been secured including the impugned judgment and order passed by the trial Court.
8. On perusal of the evidence of PWs.1 to 19, PW.1 is the father of the deceased who has deposed that they were residing in the residential lane in the Coffee Estate of PW.3. Accused No.4 is having a daughter by name Babby. He further deposed that about one year eight months’ back accused Nos.1 and 4 came and took his son Pradeep Pradhan. Thereafter his son Pradeep Pradhan did not come back. But only accused persons came back to the lane house and when he questioned them as to why his son has not come back, they told that they were not aware. The complainant searched for his son, but they could not find him. On the next day, i.e., on 23.3.2013, when the complainant gone to search his son, the accused persons were not there in the lane house. Thereafter, the dead body of the deceased was found with injuries. Thereafter he has filed the complaint as per Ex.P1.
9. During the course of cross-examination, surprisingly it is suggested to PW1 that, on that day accused Nos.2 to 4 have taken the deceased along with them and thereafter, accused No.2 to 4 came back and the deceased did not come back. Even the said statement is also been given before the Police. The other suggestions made have been denied by this witness.
10. P.W.2 is Mestri who is working in the same Coffee Estate and he has deposed that the complainant and the accused persons were working in the Coffee estate as coolies and they were staying in the residential lane. Accused No.3 was having a daughter by name Bobby and she was suffering with mental ill-health and the deceased was teasing her. In this behalf, P.W.3 and others have advised the deceased. Accused No.4 was having three daughters and one daughter by name Junu and the deceased has also teased her and used to tell her that he loves her and he is intending to marry her. In this behalf also he was warned. During the course of cross-examination it was brought that all the four persons were consuming alcohol and thereafter they went away and only accused Nos.1 and 4 came back.
11. P.W.3 is the owner of the Coffee estate.
He has also reiterated the evidence of P.W.2. He has further deposed that on 22.03.2013 at about 10.00 p.m., P.W.2 came and told that the deceased Pradeep Pradhan is not seen and accused persons and the deceased were consuming alcohol and thereafter they went away from that place and after search they did not find the deceased Pradeep Pradhan. He has further deposed that there was some galata in respect of daughters of accused Nos.3 and 4 and he has also advised the accused in this behalf. During the course of cross- examination, nothing has been elicited to discard the evidence of this witness. He has further deposed that he is the witness to Ex.P5/inquest mahazar over the body of the deceased.
12. P.W.4 is the inquest mahazar panch to Ex.P5. He has also supported the case of the prosecution and he is also a Panch witness to the seizure mahazar at Ex.P6 whereunder clothes of the deceased were seized.
13. P.W.5 is also another panch witness to inquest mahazar at Ex.P5. He deposed that he came to know that deceased was teasing the daughters of accused and the accused persons have committed murder.
14. P.W.6 is the spot mahazar panch to Ex.P2 and seizure mahazar panch whereunder the M.Os.7 to 9 have been seized.
15. P.W.7 is the person who has seen the dead body on 23.03.2013. He has not supported the case of the prosecution and he has been treated as hostile. Even for recovery of the machchu he has not supported the case of the prosecution.
16. P.W.8 is the spot mahazar panch and seizure mahazar panch to Ex.P2 and he has also not supported the case of the prosecution and he has been treated as hostile.
17. P.W.9 is the doctor who conducted autopsy over the dead body of the deceased and issued Post Mortem report as per Ex.P10. In his evidence, he has opined that the cause of death is due to shock and hemorrhage as a result of injuries sustained on vital structure of neck.
18. P.W.10 is the Assistant Engineer who prepared the sketch of scene of offence.
19. P.W.11 is the Police Constable. After the post mortem, he also produced the clothes of the deceased before the Investigating Officer as per M.Os.3, 4, 5, 6 and 7.
20. P.W.12 is also a worker in the coffee estate, who has lastly seen the accused and the deceased together. He has deposed that P.W.2 is working as Mestri and accused Nos.3 and 4 also residing in the same estate and accused Nos.1, 3 and 4 are originally from the State of Orissa and they have come to the estate for work. The deceased is son of P.W.1 who was also working in the same estate. He has further deposed that on 22.03.2013 at about 7.00 p.m., he saw the deceased and accused Nos.1 and 4 were there together and he has seen them together. They told that they would wander and come back. During the course of cross-examination, nothing has been elicited from the mouth of this witness to discard his evidence.
21. P.W.13 is the seizure mahazar panch to Ex.P6 and Ex.P7.
22. P.W.14 is the wife of P.W.1. She has also reiterated the evidence of P.W.1 and she has also deposed that at 8.00 p.m., she saw accused Nos.1, 3 and 4 were talking with the deceased and thereafter she went inside the house and thereafter they went away, but she does not know where they went. She further deposed that at 9.00 p.m. accused Nos.1, 3 and 4 came back to the lane. During the course of cross-examination, nothing has been elicited so as to discard her evidence.
23. P.W.15 is a Police Constable who deposed that P.W.2 translated the statement of the accused No.2 and 3 from Odia to Hindi in turn he translated the same to Kannada.
24. P.W.16 is also a Head Constable who carried the seized articles to RFSL, Mysuru and given report as per Ex.P13.
25. P.W.17 is the PSI who registered and investigated the case in part.
26. P.W.18 is the Scientific Officer working in the FSL Department, Mysuru and she has given her report as per Ex.P15 and Ex.P16 for having scientifically examined the articles sent by the Investigating Officer.
27. P.W.19 is the Police Inspector who continued the investigation and filed the charge sheet as against the accused.
28. On the basis of the evidence, Prosecution is intending to prove the guilt of the accused. It is not in dispute that the prosecution is relying upon the circumstances like motive, last seen theory and accused alone came back and stayed in the lane; recovery of machchu and conduct of the accused after the incident. It is well proposed proposition of law that in a circumstantial evidence, prosecution has to establish the circumstances leading to one and only conclusion towards guilt of the accused. Evidence must be complete and capable of explanation of any other hypothesis than that of the guilt of the accused as held in the case of RUKIA BEGUM v/s STATE OF KARNATAKA reported in AIR 2011 SC 1585. Keeping in view the above said proposition of law, on close scrutiny of the evidence of the prosecution, in order to prove the case of prosecution there was strong motive for the commission of the offence, the prosecution got examined father of the deceased as P.W.1, owner of the estate as P.W.3 and mother of the deceased as P.W.14.
29. It is the case of the prosecution that earlier to the incident, the deceased used to tease the daughter of accused No.3 by name Bobby and daughter of accused No.4 by name Junu. P.W.3 has also deposed that he has advised the deceased Pradeep Pradan and thereafter also the deceased made a proposal to the daughter of accused No.4. The said evidence is also corroborated with the evidence of P.W.1 and P.W.14 wherein they have also substantiated the said fact. During cross- examination nothing has been elicited so as to discard the said evidence. This fact clearly establishes that the deceased was teasing the daughters of accused Nos.3 and 4 and in that light they were grinding the axe against the deceased and with the common intention they hatched a plan to eliminate the deceased. It has come on record that accused No.4 was intending to give his daughter in marriage to accused No.2 and they secured presence of accused No.2 from Chennai and hatched a plan. All these materials clearly go to show that the accused persons were having strong motive to eliminate the deceased. Hence they conspired each other and hatched a plan and took the deceased away from the house and finished him.
30. In that light, if the last seen theory is considered, P.W.12, P.W.13 and P.W.14 they have categorically deposed before the Court that at 7.00 p.m., accused Nos.1 and 4 came and took the deceased along with them and even P.W.14 has stated clearly in her evidence that she saw the deceased and accused talking together and thereafter they went from that place and she also went inside. She further deposed that at about 9.00 p.m., accused Nos.1, 3 and 4 alone came back and deceased did not return. When the prosecution has established the fact that the accused and deceased were seen lastly together and they were moving together. Under such circumstances, heavy burden lies upon the accused persons to explain as to under what circumstances and where they left the company of the deceased. Even it further strengthen the case that thereafter, Accused Nos.1, 3 and 4 alone came back and they did not give proper reply. Even during the course of cross- examination or in the statement recorded under Section 313 Cr.P.C., they have not explained where exactly they went and left the deceased alive and left the company of deceased. In the absence of any such material and on strong evidence of the prosecution to the effect that they have last seen together, it can be inferred that it is the accused alone who have committed the alleged offence. Immediately after leaving the company of the accused, deceased was found dead that too he was murdered brutally by slitting the neck with the chopper. Under such circumstances, it can be safely held that the prosecution has clearly established the last seen theory, motive and even other circumstances which are supporting the case of the prosecution.
31. It is also seen that immediately after the incident, accused Nos.1 and 4 were absconding from next day. In this behalf, conduct of accused Nos.1 and 4 if looked into, it is not going to substantiate their case. Though it is contended that accused Nos.2 and 3 were confined in the house, they were provided food and they were allowed to attend nature call and they were in the custody of the said locality, no explanation is forthcoming as to for what best reasons they have been confined in the house. If really they were confined for the said offence, which they have committed or on suspicion, they could have stated when they were produced before the Magistrate or in the statement recorded under Section 313 Cr.P.C. The said aspect has also not been brought on record. Best material and evidence within the knowledge of the accused has been suppressed. In that light an adverse inference can be drawn as against the accused. Even the relatives and other persons of accused No.2 and 3 who were residing in the same lane have not filed any complaint for wrongful detention of accused Nos.2 and 3. Under such circumstances, the said explanation which has been made by the accused is not acceptable, in this behalf.
32. During the course of argument, learned counsel for the appellants submitted that there are so many contradictions and omissions in the evidence of the prosecution and as such benefit of doubt may be given to the accused.
33. We are conscious of the fact that if the major contradictions and omissions which go to the root of the matter that can be considered, provided that if they have been brought on record as contemplated under Section 145 of the Evidence Act by confronting the same to the witness and thereafter it has to be brought on record by confronting to the Investigating Officer. If no such exercise has been done, the said evidence is not acceptable in law and the same has to be rejected. In this behalf, the Hon’ble Apex Court in the case of V.K.MISHRA AND ANOTHER v/s STATE OF UTTARAKHAND AND ANOTHER reported in (2015) 9 SCC 588 at paragraphs 14 to 19 has observed as under:-
“14. Mr.K.T.S. Tulsi, learned Senior Counsel for the appellants submitted that FIR contains only allegations of torture and cruel behaviour on the part of the appellants towards the deceased and in his statement recorded by the police under Section 161 CrPC, PW 1 had not stated anything about the alleged dowry demand whereas in his statement recorded by the police PW 1 had only stated about many restrictions imposed on his daughter due to which Archana felt suffocated. Contending that there were no allegations of cruelty in connection with dowry demand or any such conduct of the appellants which could have driven Archana to commit suicide either in the FIR or in the statement of PW 1 recorded on the next day by the investigating officer, the learned Senior Counsel urged and tried to persuade us to look into the statement of PW 1 recorded under Section 161 CrPC.
15. Section 161 CrPC titled “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 CrPC can be used at any trial are indicated in Section 162 CrPC. Section 162 CrPC reads as under:
‘162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement if duly proved may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation .-An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.’ 16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The Statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary.
17. The Court cannot suo moto make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
‘145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.’ 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.”
34. Keeping in view the ratio laid down in the above said decision, the said contention is not acceptable.
35. During the course of arguments, learned counsel for the accused/appellants submitted that the recovery of machchu has not been proved since P.W.12 who is the recovery mahazar panch has not supported the case of prosecution. Even if the said evidence is accepted, merely because the said evidence has not been proved, the case of the prosecution is not going to be distracted where clinching and direct evidence is acceptable before the Court to the effect that the accused and the deceased were having motive, last seen together and thereafter immediately on the next day the deceased was found dead. Under such circumstances, the said contention of the learned counsel for the appellants/accused is not acceptable, in view of the decision of the Hon’ble Apex Court reported in (2011) 3 SCC (Crl.) 647 in the case of STATE OF RAJASTHAN v/s ARJUN SINGH AND OTHERS.
36. When the entire evidence is complete and capable of explanation of any other hypothesis and if pointed out to the guilt of the accused and accused alone, then this Court is not having any other alternative only to accept the evidence of the prosecution and hold that the prosecution has proved the guilt of the accused beyond all reasonable doubt. It is well established principle of law that, if a case rests on circumstantial evidence all the circumstances are to be linked with one another and the Court will be in a position to see the chain of events and if the chain of events and important links have been established by the prosecution, then it is said to have been proved. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of SHAIKH ABDUL HAMEED AND ANOTHER v/s STATE OF MADHYA PRADESH reported in AIR 1998 SC 942.
37. Keeping in view the above said facts and circumstances, we are of the considered opinion that though there are some contradictions, which are minor and not helpful to the accused and they are considered to be minor contradictions and they will not go to the root of the case so as to give benefit of doubt. When all the major links point out towards the guilt of the accused and accused alone, there are no two views brought on record. It is well settled proposition of law that if there are two possible views, one beneficial to the accused which has to be taken into consideration and then benefit of doubt has to be given to the accused. But there are no such circumstances, so as to give benefit of doubt to the accused. In that light, we are of the considered opinion that there are no good grounds to interfere with the judgment and order of conviction and sentence. However, while passing the impugned order, the trial Court has not given the benefit of set off under Section 428 of Cr.P.C.. In that light the contention of the learned counsel appears to be correct.
38. As could be seen from the judgment of the Trial Court, while convicting the accused, they have been not extended the benefit under Section 428 of Cr.P.C. While considering the sentence, the period which has already undergone by the accused has to be given set off. In that light, the accused are entitled to benefit under Section 428 of Cr.P.C. i.e., for set off of the period of imprisonment which they have already undergone.
39. We have carefully and cautiously gone through the judgment of the Trial Court. The said judgment is a reasoned order and there are no perversity and illegalities however, the Trial Court while sentencing the accused ought to have given the benefit of set off under section 428 of Cr.P.C. In that light, to the extent of giving benefit under Section 428 of Cr.P.C. it is to be modified.
Accordingly, appeal is partly allowed. The judgment of conviction passed by the Trial Court convicting the accused-appellants for the offences punishable under Sections 302, 201, 120B r/w. Section 34 of IPC is confirmed. The order of sentence is confirmed, however the accused-
appellants are given the benefit of set off under Section 428 of Cr.P.C. for the period which they have already undergone.
We place on record the valuable assistance and arguments advanced by the learned counsel Sri.P.D.Subramanya for the accused.
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