IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. JUSTICE G. NARENDAR AND THE HON’BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.409/2016 BETWEEN:
MR.UMESHA S/O SHRI BABU @ KOOSU, AGED 27 YEARS, COOLIE BY AVOCATION, RESIDENT OF MALLANDUR VILLAGE, MALLANDUR POST, CHKKAMANGALURU TALUK, CHIKKAMANGALURU DISTRICT.
PIN : 577 130.
(BY SRI. D.NAGARAJA REDDY, ADVOCATE) AND:
STATE OF KARNATAKA BY BALEHONNUR POLICE, CHIKKAMAGALURU DISTRICT, THROUGH THE ...APPELLANT STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001.
…RESPONDENT (BY SRI.VIJAYA KUMAR MAJAGE, ADDL. SPP) THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER DATED 05.11.2015 AND SENTENCE DATED 07.11.2015 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN S.C.NO.12/2014 CONVICTING THE APPELLANT/ACCUSD FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, H.P. SANDESH J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed challenging the judgment of conviction dated 05.11.2015 passed in Sessions Case No.12/2014 on the file of First Additional District and Sessions Judge at Chikkamagaluru convicting the accused for the offence punishable under Section 302 of Indian Penal Code and sentencing him for life imprisonment and to pay a fine of Rs.3,000/-. In default to payment of fine, he has to further undergo simple imprisonment for three months.
2. The brief facts of the case.
It is the case of the prosecution that on 26.09.2013 at about 11 p.m. on the road leading to graveyard and Bhadra River in Bannur Kudige Village near pump house and in front of the gate of the coffee plantation of Nagesh Kamath when the accused was returning along with deceased Chinnegowda after inspecting the fish hook laid in Bhadra river, the deceased Chinnegowda is said to have teased the sister of the accused and being enraged by the same, accused snatched the sickle from the hand of the deceased and committed his murder by assaulting on his head, back and backside of the neck and thereby, he has committed the offence.
3. The police have registered the case and investigated the matter and filed chargesheet against the accused for the offence under Section 302 of Indian Penal Code.
4. The accused was secured and he did not plead guilty and claimed to be tried. The prosecution, in order to prove their case, examined P.Ws.1 to 21 and got marked Exs.P.1 to 35 and also MOs.1 to 12. The evidence of the accused under Section 313 was recorded and he had denied all the incriminating evidence. He did not choose to let in any evidence in defence. The Court below, after hearing the arguments of both sides, convicted the accused. Hence, the present appeal.
5. The appellant, in this appeal, has contended that the Court below has committed an error in convicting the accused in spite of the material contradictions in the evidence of prosecution. The Court below did not appreciate the same in its proper perspective and the Court below blindly believed the version of the prosecution of last seen theory, witness and also recovery witness to render the verdict of guilty. The Court below failed to consider the discrepancies found in the prosecution evidence and also appreciate the fact that there was no intention on the part of the accused to do away with the life of deceased and also failed to consider the factual aspects of the case and erroneously convicted the accused for the offence punishable under Section 302 of Indian Penal Code.
6. The learned counsel in support of the contention of the appellant, in his argument, vehemently contended that the Court below has committed an error in appreciating the evidence. That it has emerged in the evidence that both the deceased and the accused are friends and there was no enmity. The case rests upon the circumstantial evidence and circumstances do not warrant conviction of the accused as there was no link between each of the circumstances. Hence, it is a case for acquittal.
7. Per contra, the learned counsel appearing for State would contend that the prosecution witnesses have supported the case of the prosecution. The witnesses have spoken that on the previous night, the accused and the deceased were together and further contended that the weapon used for committing the murder was recovered at the instance of the accused so also blood stained clothes of the accused was also recovered. The medical evidence also supports the case of the prosecution. The Court below has rightly considered the evidence available on record and there are no grounds to interfere with the order of the trial Court.
8. In support of his contention, the learned counsel also relied upon the judgment reported in 2019 SCC ONLINE SC 178 in the case of SUKHPAL SINGH VS. STATE OF PUNJAB. The learned counsel refers to para No.15 of the said judgment and same is extracted below;
“15. It is undoubtedly true that the question of motive may assume significance in a prosecution case based on circumstantial evidence. But the question is whether in a case of circumstantial evidence inability on the part of the prosecution to establish a motive is fatal to the prosecution case. We would think that while it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence, but that is far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution. In such circumstances, on account of the circumstances which stand established by evidence as discussed above, we find no merit in the appeal and same shall stand dismissed.”
9. Having heard the arguments of learned counsel for appellant and also Sri.Vijayakumar Majage, Additional SPP for State.
10. The point that would arise for consideration of this Court is;
Whether the Court below has committed an error in convicting the accused for the offence punishable under Section 302 of Indian Penal Code?
11. The case of the prosecution is that the deceased Chinnegowda teased the sister of the accused and the accused being enraged by the same, snatched the sickle from the hands of the deceased and committed his murder. The prosecution, in order to prove the guilt of the accused, examined P.Ws.1 to 21 and also relied upon the documentary evidence so also material objects. P.Ws.1, 3 and 5 who are examined in order to prove that these witnesses have last seen the accused and the deceased together. It is the evidence of P.Ws.1 and 3 who are the brothers of the deceased and P.W.5 is the daughter of P.W.1 that they have last seen the accused and the deceased together on the date of incident at 9.00 p.m. The P.W.1 also gave the complaint in terms of Ex.P.1. P.W.1 also says that he found the towel and slipper of both the deceased and the accused at the spot and mahazar was drawn in terms of Ex.P.2. P.W.1 also identifies the photos Exs.P.2 to 7 and also identifies MOs.1 to 6. In the cross- examination of P.W.1, it is elicited that the body of the deceased was far away at a distance of 80 feet from the pump house. He suspected the role of the accused at the spot itself since accused came along with the deceased to his house and drunk water and both of them left together. He also admits that by seeing the slipper and towel, he suspected that the accused only committed the murder. If those slipper and towel were not found at the spot, he could not have suspected. He further admits that there was no any enmity between the accused and the deceased and in fact admits that they were close friends.
12. P.W.3 is also brother of the deceased. In his evidence, he says that he heard the barking sound of the Dog near the house of P.W.1. When he came out from the house, he found that P.W.1, deceased and accused were talking with each other. He also found the towel and slipper of the accused at the spot and police have seized the same. He found the accused, deceased and P.W.1 near the house of P.W.1. He also says that both accused and deceased were working together. Because both of them were together on the previous day, he suspected the role of the accused. In the cross-examination, it is suggested that the deceased was unmarried and hence, they have given lesser share to him and hence, there was an enmity between the brothers and the same was denied. It is also suggested that they were having enmity about the conduct of the deceased and the same was denied.
13. P.W.3 says that the accused was wearing the T-shirt on that day. He further says that when the accused came to the house of his brother, he has seen the towel and slipper. Hence, he suspected the role of the accused. It is suggested that accused did not come to the house of P.W.1 on that day and also he has not seen him and the said suggestion was denied.
14. P.W.5 is the daughter of P.W.1. In her evidence, she says that accused and her uncle came to their house on 27.09.2013 at around 7.00 p.m. P.W.5 also reiterates that she found the slipper and towel of the accused which he was wearing when the accused came to their house in the previous day and both of them went together, hence, he suspected the role of the accused. In the cross- examination, it is suggested that the deceased was not married and hence, given lesser share to him and the same was denied.
15. P.W.2 is the Mahazar Witness and witness to inquest. In his evidence, he says that the police came and conducted the spot mahazar. P.W.1 identifies the towel and slippers i.e., MOs.1 to 4 and also identified slippers and towel of the accused which are marked as MOs.5 and 6. He identifies the signature in the inquest as Ex.P.9(a). He also states that photos were taken at the spot in terms of Exs.P.2 to 7 and he identifies his photo in Ex.P.2. In the cross-examination, he admits that the police did not record his statement and accused was also not in the spot. He did not come to know about who has committed the murder.
16. P.W.4 who is the scribe of the complaint and witness to seizure of mahazar of sickle and dress of the accused i.e.Ex.P.11. He identifies MO.10 – sickle, MO.11- pant of the accused and MO.12 – shirt of the accused. In his evidence, he states that he wrote the complaint and also identifies the signature in the notes Ex.P.10(a). Accused was enquired and he told that if he has taken, he is going to produce sickle and also cloths, where he has concealed, which he was wearing on the date of the incident. On the same day at 4.00 p.m., the accused led the witness and the police and produced the sickle from the bush and he has signed the mahazar Ex.P.11(a). He also took the police and witness to the house of P.W.7 and produced the blood stained cloths i.e., pant and shirt and his signature was obtained to Ex.P.14 and he identifies the signature on Ex.P.14(a). He also identifies MOs.11 and 12.
17. In the cross-examination, it is suggested that brother-in-law of the accused was ill-treating his sister and witness says that he does not know about the same. It is suggested that there was a dispute between the accused and his brother-in-law and he says that he does not know about the same. He admits that he was having acquaintance with the accused. He also states that the Police Sniffer Dog called into service, went near the house of P.W.7 and he also followed the dog to the said house.
18. P.W.6 is the waterman, who found the body at the first instance at 6.00 a.m. and he informed to P.W.1. In the cross-examination, he says immediately, after seeing the body, he did not inform anybody that the body is that of Channegowda.
19. P.W.7 is the brother-in-law of the accused. He says that the accused was frequently visiting his house. On the previous day of murder, the accused was in his house till evening and thereafter, he left the house and around at 11.30 p.m. he came to his house and called his sister and his wife did not open the door. On the next day, when he saw him, he was sleeping in the courtyard with underwear. He asked the cloth and her sister gave the cloth. In the meantime, he came to know that Channegowda was murdered and he also went to spot and found the injuries on the body. He also found the slippers of the accused at the spot. The accused was also kept his stained cloths in the cattle shed. He also guessed that accused only committed the murder. He also identifies MOs.5 and 6. In the cross-examination, it is suggested that he was not cordial with his wife and the same was denied. It is further suggested that accused was asking him why he is harassing his sister and the same was denied. It is elicited that he did not know, where the accused was whole night and his wife did not ask what happened to the clothes of the accused.
20. P.W.8 is the witness who provided the arrack to accused and he states that accused asked him to get alcohol from the town and hence, he brought and gave the same to him. He also says that both deceased and accused consumed the alcohol behind his shop. In the cross- examination, he also admits that there was no any galata between the accused and the deceased. But, he says that he only gave Rs.300/- to the accused. It is suggested that both of them did not come near his shop and the same was denied.
21. P.W.9 is the Doctor, who gave the report on examination of the blood group of the deceased and states that it was “B-RH Positive” blood group. In the cross- examination, it is elicited that she is not a Lab Technician and they are having Private Nursing Home and she did not see whether there was a seal on the blood bottle. P.W.9 states that if blood is not clotted, she could able to conduct the analysis for blood grouping.
22. P.W.10 is the Doctor who conducted the Post Mortem and found six injuries on the body of the deceased and opined cause of death due to cardio respiratory secondary to hemorrhage and shock as a result of spinal card cut at the level of cervical region. Post Mortem Report is marked as Ex.P.19 and signature of Doctor is marked as Ex.P.19(a). P.W.10 also says that he only opined that the injuries which found on the dead body could be caused by sickle (MO.10) and gave report in terms of Ex.P.21. In the cross-examination, it is elicited that the death might have taken place before 24 hours of conducting of Post Mortem. He has collected the blood prior to conducting of Post Mortem. If the blood is in the liquid form, the blood group can be done.
23. P.W.11 is a witness, who deposes that after coming to know about the murder, he went to the spot. The police also called the Police Sniffer Dog. The Dog went near the slippers and towel and thereafter, went near the house of P.W.7. It is suggested that he is falsely deposing that Police Dog went near the house of P.W.7 and the same was denied.
24. P.W.12 is the sister of the accused and she also says that the accused came to her house after attending coolie work. Police came and enquired about the accused and she said that he is not in the house and again, Police Dog came near their house. Police Dog went and smelt in the house and cattle shed. Again, police asked about the accused and she replied that he was not in the house. It is also the evidence of P.W.12 that accused came in the night but she did not open the door and scolded him and found him in the morning and asked her to give cloths and she gave the cloth. He was only wearing his underwear and again, she says that the police brought him near their house and accused produced shirt and pant which were blood stained, which were kept in the cattle shed. The witness also identifies MOs.11 and 12. In the cross- examination, she says that she did not open the door, since he had consumed alcohol and she did not enquire the accused about why he was wearing underwear.
25. P.W.13 is the witness. He states that on the previous day, accused came and knocked the door and his wife opened the door. He gave Beedi and found the blood stain on his cloth. When he enquired about the blood stain, he did not give any reply and he found the accused on the next day. He only asked the P.W.8 to pay money and he paid Rs.180/- to the accused and he made extra judicial confession that he only committed the murder. In the cross-examination, it is suggested that while making the statement to the police, he did not mention that he came and asked Beedi and found the blood stain on his cloth and the same was denied.
26. P.W.14 is the Engineer, who prepared the sketch in terms of Ex.P.28. It is suggested that he did not prepare the sketch where the towel and slipper were lying.
27. P.W.15 is the person who took the Police Dog to the spot and he gave the paragon slipper and towel to the Dog and the Dog smelt it and went near the house of P.W.7. In the cross-examination, a suggestion was made that he did not show towel and slipper to the dog and the same was denied and also suggestion was made that the Dog did not go to the house of P.W.7 and the same was denied.
28. P.W.16 is the Police Constable. In his evidence, he says that he apprehended the accused and produced before the Investigating Officer. In the cross-examination, it is suggested that he did not see the accused prior to the arrest and he admits. But, says that they have given the photo.
29. P.W.17 is the Police Constable, who showed the spot to C.W.23.
30. P.W.18 is the Woman Police Constable, who is the Scribe of the Mahazar - Ex.P.17.
31. P.W.19 is the Head Constable, who typed the statement of the witnesses. It is suggested that he did not record the statement of witnesses and the same was denied.
32. P.W.20 is the Head Constable, who registered the FIR based on the complaint.
33. P.W.21 is the Investigating Officer, who conducted the investigation. In his evidence, he says that on information, he went to the spot at 9.30 a.m. and took over further investigation from C.W.41 and visited the spot and found the dead body. He began the investigation and conducted the inquest in terms of Ex.P.9 and also called the Police Dog and taken photos in terms of Exs.P.2 to 9. He prepared the rough sketch and also seized the articles at the spot and recorded the statement of witnesses and identifies MOs.1 to 6. It is also his evidence that accused was also produced before him and recorded the voluntary statement and accused led him and witnesses and produced the weapon and drawn the mahazar in terms of Ex.P.33 and also produced the cloth. In this regard, Ex.P.11 was also prepared. He identifies the MOs. He also says that accused led him to the house of his sister and produced the blood stained cloth. It is also his evidence that he has recorded the statement of witnesses and collected the Post Mortem Report and other documents. He was subjected to cross- examination. It is elicited that the deceased was unmarried. It is suggested that among brothers, there was an ill-will regarding the share and the same was denied. However, admits that the deceased was living separately. It is elicited that accused was staying at a distance of 25 to 30 kilometers at Malandur Village. He also says that one slipper was in the deceased leg and another slipper was far from dead body. It is elicited that there was no any ill-will between C.W.14 and accused. It is suggested that accused towel and slipper not lying at the spot and the same was denied. It is suggested that accused has not given any voluntary statement and led the team and produced the weapon and cloth and the same was denied.
34. Now, let us consider the evidence available before the Court. Admittedly, the case rests upon circumstantial evidence and there is no direct or ocular evidence. The prosecution in order to prove the last seen theory, relied upon the evidence of P.Ws.1, 3, 5 and 8. Before going to the evidence of these witnesses, we would like to see the contents of the complaint which is marked as Ex.P.1 given by P.W.1, specifically states that accused and deceased came to his house at around 9.00 p.m. Both of them, after drinking water, left the house. P.W.1 also in the complaint stated that he found the towel and slipper of the accused at the spot and hence, he suspected the role of the accused and given the complaint in terms of Ex.P.1. It is important to note that regarding the visit made to the house of P.W.1, nothing is elicited in the cross-examination of P.W.1, so also in the cross-examination of P.W.5. P.W.5 is the daughter of P.W.1. Both of them consistently deposed that both the accused and the deceased came to their house. Prosecution also examined the P.W.3, who is another brother of the deceased states that when he came outside the house, the deceased, accused and P.W.1 were talking with each other and he had seen the deceased and the accused together. It is pertinent to note that it is elicited in the cross-examination of P.W.3 that the accused was wearing T-shirt and hence, the evidence of P.W.3 cannot be accepted, since the accused was not wearing the T-shirt on that day. The Bloodstained shirt was seized. However, the evidence of P.W.8 is clear that both accused and deceased came near his shop and accused collected the arrack, which he brought from the town at the request of the accused. Thereafter, they went behind the shop and after consuming alcohol, both of them left the place at 8-8.30 p.m. Hence, it is clear that before going to the house of P.Ws.1 and 5, accused and deceased were seen by P.W.8. In the cross- examination of P.W.8 also, nothing is elicited except making the suggestion that both of them did not come near his shop and the said suggestion was also denied. It is only elicited that in between the deceased and accused no galata was taken place at that time. Hence, the prosecution has proved the last seen theory by relying upon the evidence of P.Ws.1, 5 and 8.
35. The other circumstance, which prosecution relies upon, is Police Sniffer Dog was called to the spot. P.W.15, in his evidence, he categorically states that the dog which he brought went near the house of P.W.7 after he got it to sniff the Paragon Slipper and also towel. Thereafter, Dog went near the house of P.Ws.7 and 12 and it is evident in the evidence of P.W.12 also that Dog came near the house of P.W.12 and the Dog went near the cattle shed and came and sat. Apart from that the prosecution relies upon the recovery of sickle and also blood stain cloth of the accused. In this regard, the prosecution relies upon the evidence of P.W.4 and he categorically says that mahazar was drawn in terms of Ex.P.11 and Ex.P.14. He also identifies his signature. He also identifies the photos – Exs.P.12, 13, 15 and 16 which were taken at the time of seizing of the sickle and the dress of the accused. MO.10 is the sickle. MOs.11 and 12 are the pant and shirt of the accused which were produced. Apart from that the Investigating Officer, who has been examined as P.W.21 reiterates that accused only produced the sickle and cloth. In the cross-examination of P.W.4, nothing is elicited to disbelieve the evidence regarding recovery of sickle and cloth of the deceased. It is also important to note that P.W.1 has categorically stated in his evidence also that the slipper and towel of the accused which the accused was wearing in the previous day was found at the spot and the same also seized. P.W.2 has spoken with regard to the seizure of the shirt of the deceased and pant of the deceased and underwear of the deceased and identified MOs.7 to 9. These witnesses have supported the case of the prosecution. P.Ws.7 and 12, who are husband and wife and brother-in-law of the accused and sister of the accused, have also supported the case of the prosecution regarding recovery of blood stained cloth of the accused. Nothing is elicited in the evidence of prosecution witness that P.Ws.7 and 12 and also panch witnesses regarding enmity between them and the accused. In support of the case of the defence, though an attempt is made that there was a difference between the husband and wife i.e., P.Ws.7 and 12 nothing is elicited. Both of them have denied the suggestion made in the cross-examination. Though the prosecution relies upon the evidence of P.W.13 regarding extra judicial confession and no doubt, it is a weak piece of evidence and the evidence of P.W.13 is not helpful to the case of the prosecution. The other material evidence regarding the evidence of P.Ws.2 and 4 regarding seizure of cloths of the deceased and also cloths of the accused is consistent.
36. Apart from that the evidence of the Doctor, who has been examined as P.W.10, supports the case of the prosecution. The Doctor specifically states that cause of death is due to cardio respiratory secondary to hemorrhage and shock as a result of spinal card cut at the level of cervical region. The Doctor also in terms of Ex.P.19 found the injury Nos.1 to 6 on the body of the deceased. Apart from that he has given the report in terms of Ex.P.21 that MO.10 could cause the injury found on the neck of the deceased. Hence, it is clear that the death is due to injuries inflicted on the neck of the deceased and nature of injuries also corresponds with the MO.10. The prosecution was able to prove even recovery at the instance of the accused i.e., weapon as well as the blood stained cloths and no explanation by the accused under Section 313 of Cr.P.C. The accused ought to have explained.
37. Now, the other material to prove the case of the prosecution is with regard to the FSL Report, which is marked as Ex.P.25 and the Report is clear that shirt of the accused and pant of the accused were stained with blood so also the shirt and pant of the deceased were also stained with blood. It contains B-RH Positive blood group that has been spoken by P.W.9 who conducted the grouping of the blood and the same is marked as Ex.P.18. Ex.P.25 also confirms that it was B-RH positive blood group and Serological Report – Ex.P.26 confirms that item Nos.1 to 4, 5, 6, 7, 8, 9 and are stained with B-RH group blood i.e., the blood group of the deceased.
38. Having considered the material available on record, it is clear that the accused only committed the murder of the deceased and all these circumstances goes against the accused including the last seen evidence and recoveries. No doubt, there was no any motive to commit the murder. The Apex Court also in the judgment reported in 2019 SCC ONLINE SC 178 in the case of SUKHPAL SINGH VS. STATE OF PUNJAB referred by the Public Prosecutor held that if other circumstances shows that the accused only committed the murder, the motive is not significant. Hence, all the material collected by the prosecution and placed before the Court, it would suffice to come to a conclusion that the accused only committed the murder of the deceased.
39. Now, the question before this Court is, whether this case comes within the purview of Section 302 or Section 304 Part-II . In the case on hand, it has to be noted that P.W.1 who is the brother of the deceased, in his evidence and also in the complaint, he has specifically stated that there was no ill-will between them and both of them are good friends and none of the witnesses have spoken to about there being any enmity between the deceased and the accused.
40. It is important to note that it is the case of the prosecution also that the deceased passed some lewd comments about the sister of the deceased. As a result, the accused got enraged and snatched the sickle from the hands of the deceased and inflicted the injuries. The very charge is also that accused being enraged by the comments made by the deceased about the sister of the accused, he inflicted the injuries and the Court below has lost its sight to this fact and erroneously convicted the accused for the offence punishable under Section 302 of IPC. It is pertinent to note that there were six injuries on the deceased and main injury is on the neck and except that, other injuries are not deep or fatal injuries as deposed by the Doctor – P.W.10. It is also important to note that both the deceased and the accused went to the shop of P.W.8 and accused collected the arrack brought by P.W.8 and both of them went together and consumed the same and again, they came to the house of P.W.1 and thereafter, left the house. It is the case of the prosecution that both of them went near the Badra river and verified the Fish hook and while returning altercation took place due to the comment that was made about the sister of the accused. There was no enmity or motive to commit the murder.
41. Having considered the circumstances and also material on record and though the Additional SPP would contend that there were six injuries and there was an intention to commit the murder, we do not find any such intention to commit the murder and it was a spur of the moment act as he was enraged on account of the comments made by the accused demanding to arrange for his sister to satisfy his lust and there was no pre- meditation. Having considered the same, this case comes within the purview of Section 304 Part II of Indian Penal Code since the intention to commit the murder is absent and there was no enmity and also he was under the influence of alcohol as per the case of the prosecution in terms of the evidence of P.W.8 and he inflicted the injuries. No doubt, when he inflicted the injuries with the sickle, it is likely to cause the death and there was a knowledge that the same was likely to cause death but we do not find any intention to take away the life.
42. Having considered the material on record, it is a fit case to be considered as one that falls within the purview of Section 304 Part II of Indian Penal Code. This Court has taken note of the cordial relationship between the deceased and the accused and the fact that they are friends and there was no enmity between them. Hence, an appropriate sentence has to be imposed confirming the conviction after bringing the same within the purview of Section 304 part II of Indian Penal Code instead of Section 302 of Indian Penal Code.
43. In view of the discussions made above, we pass the following;
ORDER i) The Appeal filed by the accused is allowed in part.
ii) The judgment dated 05.11.2015 passed in Sessions Case No.12/2014 on the file of First Additional District and Sessions Judge at Chikkamagaluru for convicting the accused for the offence punishable under Section 302 of Indian Penal Code is set aside.
iii) The judgment of the trial Court is modified and the accused is convicted for the offence punishable under Section 304 part II of Indian Penal Code. Accordingly, he is sentenced to undergo simple imprisonment for a period of 7 years and to pay fine of Rs.5,000/-. In default to pay fine, sentenced to undergo for further simple imprisonment for a period of six months.
iv) Needless to State that the accused was in custody throughout the period of trial and is in custody during this appeal, hence he is entitled for the benefit of set off under Section 428 of Cr.P.C.
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JUDGE JUDGE Nbm