Partly allowed

K. S. Kuttaiah @ Harish @ Ravikumar v. the State of Karnataka

Karnataka HC28 Nov 2022CRL.A/175/2019

Case brief

AI extract

What is this about?

Strangulation following disclosure of the deceased's prior marriage was held to constitute culpable homicide under grave and sudden provocation. The court substituted conviction under Section 304 Part-I IPC and ten years' rigorous imprisonment for murder and life imprisonment, while confirming the Section 201 conviction and sentence. Sentences were directed to run concurrently.

What did the court decide?

Murder conviction altered to Section 304 Part-I IPC with ten years' rigorous imprisonment and fine; concurrent sentences and set-off allowed; compensation directed from fine upon payment.

K. S. Kuttaiah @ Harish @ Ravikumar Vs the… — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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CRIMINAL APPEAL No.175/2019

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BETWEEN:

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K. S. KUTTAIAH @ HARISH @ RAVIKUMAR S/O. LATE SOMAIAH, AGED ABOUT 46 YEARS, WORKING IN MTR FOOD PRODUCTS R/AT BESIDE NERALURU GRAMA PANCHAYATH OFFICE, C/O. YELLAPPA, CHANDAPURA CIRCLE, ATTIBELE HOBLI, HOSURU ROAD, ANEKAL TALUK, BANGALORE NATIVE OF B. SHETTIGERI VILLAGE, VIRAJPET – 571 218. ... APPELLANT

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(BY SRI SACHIN B.S., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH CIRCLE POLICE INSPECTOR, VIRAJPET CIRCLE, KODAGU REPRESENTED BY THE STATE PUBLIC PROSECUTOR,

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HIGH COURT BUILDINGS, BENGALURU – 560 001.

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... RESPONDENT

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(BY SRI H.S. SHANKAR, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED 30.10.2018 AND ORDER OF SENTENCE DATED 17.11.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU - MADIKERI, SITTING AT VIRAJPET IN S.C.NO.108/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND 201 OF IPC.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-

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J U D G M E N T

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The accused has filed the present appeal against the impugned judgment of conviction dated 30.10.2018 and order of sentence dated 17.11.2018 passed in S.C.No.108/2012 on the file of the II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet sentencing the accused to undergo imprisonment for life and to pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for two years for the offence punishable under Section 302 of Indian Penal Code and also sentencing the accused to undergo simple imprisonment for three years and to pay fine of

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Rs.5,000/- and in default, to undergo simple imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code.

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It is the case of the prosecution that, P.W.1, who is Manager of Sangeetha Lodge, situated at Boregowda Complex, Virajpet lodged a complaint stating that on 16.06.2012 at about 6.45 p.m. one Ravikumar-accused aged about 40 years, along with a woman, aged about 30 years, came to the lodge asking for a room on rent. At that time, the complainant, who is in charge of Sangeetha Lodge, asked the accused to pay rent of Rs.728/- with an advance of Rs.1,000/-. However, Ravikumar-accused responded that he only had Rs.800/-, accordingly he paid Rs.800/- and wrote in his own handwriting in the register maintained by the Lodge, stating his name was Ravikumar and he was residing at No. 10, 7^th Cross, 15^th Main, Kuvempu Nagar, Mysuru, and the mobile number as 9242560874. After completion of the time to check out, the complainant tried to contact the accused through the intercom, but there was no response. Thereafter, after waiting for sometime, at about 11.15 p.m., complainant along with the room boy-P.W.2,

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used the master key maintained by the owner to open the lock, it was found that the body was covered with a bed sheet/blanket, when he removed the same, he found the dead body of a woman without the cloths and her neck was strangulated with plastic wire and Ravikumar, who booked the room, was not there. Thereby, Ravikumar might have killed the woman by destroying the evidence and escaping from the place. Accordingly, P.W.1 lodged a complaint before the jurisdictional police on 17.06.2012 and received the complaint in VTPS on 18.06.2012 at about 12.15 a.m. and registered a case in crime No.40/2012 against the accused for the offence punishable under the provisions of Sections 302 and 201 of the Indian Penal code.

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After investigation, the jurisdictional police filed the charge-sheet against the accused. Since the offence was exclusively triable by the Sessions Court, the matter was committed to the Sessions Court, Kodagu in SC No.108/2012.

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After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charge,

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read over the charge to the accused in the language known to him, who pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, the prosecution examined 34 witnesses as P.Ws.1 to 34 and marked the documents at Exs.P.1 to P.95 and Material Objects at M.Os.1 to 25. After completion of the evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstances adduced by the prosecution witnesses against him and submitted that he has a defence and stated that as on the date of the incident, he was not in Virajpet.

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Based on the aforesaid pleadings, the learned Sessions

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Judge framed the following three points for consideration:

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“1) Whether the prosecution has proved that death of deceased Geetha is a homicidal one?

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1. Whether the prosecution has proved that on 18-62012 at about 11.30 p.m. the accused has committed murder of deceased Geetha by

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strangulating her neck with a parcel plastic tag in room No.106 of Sangeetha Lodge, Virajpet and thereby committed an offence punishable under Section 302 of IPC?

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1. Whether the prosecution has proved that on the above said date, time and place accused attempted to destroy evidence against him by carrying the clothes worn by the deceased and the clothes brought by the deceased in a bag and threw it in a forest area near KSRTC Bus Stand Virajpet and also by taking Mobile Phone in possession of the deceased and thereby committed an offence punishable under Section 201 of IPC?”

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After considering both oral and documentary evidence

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on record, the learned Sessions Judge, recorded a finding that the death of the deceased was a homicidal death and the prosecution has proved beyond all reasonable doubt that on 16.06.2012 at about 11.30 p.m. the accused has committed the murder of the deceased by strangulating her neck with the plastic wire at room No.106 of Sangeetha Lodge and to destroy the evidence, accused has taken away the clothes worn by the deceased and clothes which

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deceased has brought in a bag and threw the same in a forest situated by the side of KSRTC Bus Stand from Virajpet Town and has left the place by taking mobile phone in possession of the deceased. Thereby, committed the offence punishable under the provisions of Sections 302 and 201 of the Indian Penal Code and accordingly, the learned Sessions Judge convicted the accused and sentenced him to undergo imprisonment for life and to pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for two years for the offence punishable under Section 302 of Indian Penal Code and also sentencing the accused to undergo simple imprisonment for three years and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code. Hence the present appeal is filed by the accused/appellant.

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We have heard the learned counsel for the parties to

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the lis .

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Sri. B.S. Sachin, learned counsel for the appellant contended with vehemence that Ex.P.1-complaint depicts that deceased was murdered by strangulating the neck through plastic

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wire. However, P.W.1 in his evidence deposed that he found the rope around the neck of the deceased. He would further contend that the complaint was received by Virajpet Police station on 18.06.2012 at about 12.15 a.m. In the examination-in-chief, the complainant-P.W.1 deposed that he went to the police station to lodge the complaint. However in the cross-examination, he deposed that complaint was given in counter and handed over to the police. Thereby, there is inconsistency in the evidence of P.W.1, who partially turned hostile. Thereby, his evidence fetters the case of the prosecution. He would further contend that the seizure of key of room No.106 at the instance of accused is not proved by the evidence of P.W.3-brother of the owner of the lodge, who stated in the cross-examination that at the time Ravikumar-accused went from the room, left first key in the door itself and from that key itself the police have unlocked the door and on that day, the police have not taken anything in writing, but only taken photos.

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P.W.15-Yellappa, owner admitted in the crossexamination that the police after coming to ground floor took the signature on Ex.P.15-seizure mahazar. However, he does not know

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whether the accused produced or seized the key that was produced by the police and also denied the mahazar. Thereby supported the case.

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P.W.14–Basavaraj admitted in the cross-examination that he does not know how the key came into the possession of the police. Police asked P.W.14 to put signature on Ex.P.35-Seizure Mahazar and therefore, he signed it and he has not seen any other person signing the said mahazar.

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P.W.10-Panduranga neighbor of the deceased father, witness to the Seizure Mahazar as per Exs.P.13, 16, 35 and 36 has turned hostile.

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The lodge bill at Ex.P.2 produced by the prosecution

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depicts that the check-in date was on 16.06.2012 at about 6.47 p.m. and the check-out date was on 18.06.2012 at about 12.38 p.m. and there was an entry with regard to shifting of room No.101 in Ex.P.2, which creates doubt as to which room the accused stayed. Ex.P.2-Lodge Bill shows that the accused has checked-out of room No.106 on 18.06.2012 by paying two days rent. Therefore,

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the case of the prosecution that Ravikumar-accused has paid only Rs.800/-, left the room locked by taking away the key without checking out, is a false story.

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He further contended that seizure of the bag of the deceased as per Ex.P.16 at the instance of the accused is not proved by the evidence of P.Ws.7, 10 and 11.

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P.W.7-Ravi, the brother of the accused stated that after

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four to five days from the date of lodging the complaint, the police summoned him to the police station and shown the photographs of the deceased and produced the ankle chain and garments of the deceased, which was identified by him as it belongs to the deceased and he affixed signature on Ex.P.16- Mahazar. He further contended that P.W.7 does not know the contents and the details of Ex.P.16. Thereby, the mahazar cannot be accepted and thereby, P.W.7 has not supported the case of prosecution and turned hostile.

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P.W.10-Panduranga admitted in the evidence that he does not remember anything.

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P.W.11-Siddhu stated that police have not seized anything nor conducted mahazar in his presence and thereby turned hostile.

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He would further contend that the circumstance of the deceased proceeding to Virajpet from her father’s house a day prior to her death and she found missing is not proved by the evidence of P.Ws.6 and 7. He would further contend that the parcel rope tag was used for strangulating neck of the deceased is the tag used by MTR Food Products Company in which the accused works, is not proved by the evidence of P.Ws.10 and 17.

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P.W.17–Chinnappa in his cross-examination admitted

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that he reached the accused rented house at 4.30 p.m. But mahazar at Ex.P.36 recovery of similar plastic tag was done in Bommasandra.

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P.W.10 - Panduranga deposed that he does not know anything about the seizure made at Ex.P.36.

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He would further contend that motive behind murdering the deceased is not proved, slender motive under which prosecution

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suggested is only in charge which is without there being any evidence. In the absence of evidence, it is highly improbable to believe the story of the prosecution that accused murdered the deceased with motive as per averments stated in charge.

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He further contended that the evidence of P.W.1 and 2 does not inspire the confidence of the Court who partially turned hostile and not supported the case of the prosecution. Thereby, the entire case of the prosecution is a story and falsely implicated the present appellant, who is innocent. Thereby sought to allow the appeal.

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In support of his contention, learned counsel relied upon the following dictum:

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Babu Vs. State of Kerala reported in (2010) 9 SCC 189 (paragraph Nos.22, 23 and 35)

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Pannayar Vs. State of Tamilnadu by Inspector of Police reported in (2009) 9 SCC 152 (paragraph No.4.13)

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Bavuddin S/o Kajesab Patel Vs. The State of Karnataka reported in (2020) 0 Supreme (Kar) 1853 (paragraph Nos.33 and 34)

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Shailendra Rajdev Rasvan and Others Vs. State of Gujarat reported in (2020) 0 AIR (SC) 180 Paragraph Nos.12, 13, 14 and 16)

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Chandrapal Vs. State of Chattisgarh reported in (2022) 0 Supreme (SC) 508 (paragraph Nos.7 and 31)

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Anand Ramachandra Chougule Vs. Sidarai

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Laxman Chougala reported in AIR 2009 SC 3871 (Paragraph Nos.9 and 10).

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Per contra, Sri. H. Shankar, learned HCGP while

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justifying the impugned judgment of conviction and order of sentence would contend that Ex.P.1-complaint lodged by P.W.1 against the accused and Ex.P.2-receipt/bills signed by the accused on 16.06.2012 was not disputed by the accused. The accused went to Sangeetha Lodge along with the deceased is not in dispute. He further contended that while recording the statement under Section 313 of Code of the Criminal Procedure, the accused denied in toto and stated that he has a defence and stated that he has not come

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to Virajpet as on the date of incident. Once the prosecution proves the initial burden, the burden shifts upon the accused, who has to prove that he was not present on the day of the incident along with the deceased in Sangeetha Lodge, in view of the provisions of Section 103 of the Evidence Act as held by the Hon’ble Supreme Court in the case of State of Haryana Vs. Sher Singh and Others reported in AIR 1981 SC 1021 at paragraph No.4.

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He would further contend that the recovery of the garments, mobile phone of the deceased and key of Room No.106 of Sangeetha Lodge at the instance of the accused, has been proved by the prosecution as per Ex.P.35 and the witness to the Mahazar supported the case of the prosecution. He further contended that the voluntary statement of the accused as per Ex.P.90 corroborates with the other evidence regarding the involvement of the accused in the homicidal death of the deceased. He would further contend that the evidence of P.Ws.1, 2, 18 and 20 and post mortem report as per Ex.P.54 clearly proved the homicidal death of the deceased and the entire material on record clearly depicts that there is no third party involvement except the

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involvement of accused in the homicidal death of the deceased. Thereby, the learned Sessions judge is right in convicting the accused. Thereby, he sought to dismiss the appeal.

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In view of the rival contentions urged by learned Counsel for the parties, the points that would arise for our consideration in the present appeal are:

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"i) Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and the order of sentence convicting him for the offence punishable under the provisions of Section 302 of the IPC and sentencing him to undergo life imprisonment with fine of Rs.50,000/- with default clause in the facts and circumstances of the present case?

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and

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ii) Whether the accused has made out a case to interfere with the impugned judgment of conviction and the order of sentence convicting him for the offence punishable under the provisions of Section 201 of the IPC and sentencing him to undergo simple imprisonment for 3 years with fine of Rs.5,000/- with default clause?"

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We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials including the original records carefully.

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This Court being the Appellate Court, in order to reappreciate the entire materials on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:

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i) P.W.1 - Sri B. Surya, Manager of Sangeetha Lodge, Kadanga Marooru Village, Virajpet has deposed that according to him, on 16.6.2012 at about 6.45 p.m. the accused and one woman aged about 30 years came to his lodge and asked a room for rent. So he told that one room was available and the rent was Rs.728/- per day and the accused agreed and when he demanded an advance amount of Rs.1,000/- to be paid and the accused replied that he had only Rs.800/- in his pocket and paid the same to him. Thereafter, he gave the ledger book of the lodge to the accused and the accused wrote his name as Ravikumar, Kuvempunagar,

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Mysuru. They had a computer at the reception with web camera attached to the said computer where the photograph of the accused along with the lady, who accompanied him was obtained through the web camera as per Sl.No.2387. He allotted Room No.106 to the said person and took both of them to the said room. The key of the said room was handed over to Ravikumar @ Harish. Both the occupants of the room did not demand any room service on that day and even on the next day also i.e., on 17.6.2012. On the next day at the time of arrival i.e., by 6.45 p.m. the occupants of Room No.106 neither checked out the room nor vacated it. Thereby by using the intercom facility, he made an attempt to contact the occupants, but there was no response from either of the occupants of the room at about 8.00 p.m. on 17.6.2012. He waited for some time thinking that the occupants may come back to the lodge. Thus he waited till 11 p.m. on that day and made an attempt to contact through mobile number of the said Ravikumar, which was

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written in the ledger, but it was switched off. Thus, he was unable to contact him over phone. Suspecting doubt in this regard, by using master key which they generally were having for all the rooms, he opened room No.106 along with C.W.2 around 11.15 p.m. on 17.6.2012 and found a body in the sleeping posture along with a blanket over her on the cot, they made an attempt to wake by saying 'Hello, Hello' and also rang the door bell, but there was no response. So the blanket over the face was removed partially and then, they came to know that the lady was dead and was completely nude. They found a rope around her neck and therefore, they had a doubt that Ravikumar @ Harish, who had accompanied her might have killed her by using the said rope. Thereafter, he went to the police station and lodged a complaint as per Ex.P.1 and identified his signature in the complaint as Ex.P.1(a);

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P.W.1 has further deposed that Ravikumar was given

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Room No.106 but by mistake it was entered as room

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No. 101 in the computer and immediately, he had corrected the said mistake and as such, in Ex.P.2, it has been written as shifted from Room No.101 and to that extent, he has turned hostile to the case of the prosecution;

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ii) P.W.2 - Sri R. Sunil who was serving as room boy to the Sangeetha Lodge, has deposed on par with P.W.1 stating that P.W.1 was the Manager of the said lodge. On 16.6.2012 at about 6.45 p.m. a person by the name - Kuttaiah came to their lodge along with a woman and sought for a room. He is a witness to the seizure mahazar Exs.P.13 to 16. He has partly supported and partly turned hostile to the case supported the case of the prosecution;

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iii) P.W.3 - Sri K.B. Prathap, who is the brother of the owner of Sangeetha Lodge has deposed on par with P.W.1 stating that on 16.6.2012, when he was in his house, at about 11.30 p.m., P.W.1 telephoned to him and informed that one Ravikumar had arrived to the

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lodge along with his wife and the said occupants have not come out of the room and therefore, P.W.1 made an attempt to contact him over phone, but the same is not working. Therefore, he called him to come to the lodge. After his arrival, with the help of a master key they were possessing, opened the door of the room and noticed a dead body of the woman at about 11.45 p.m. Immediately, P.W.1 lodged a complaint. He has partly supported the case of the prosecution;

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iv) P.W.4 - Musthaq, who is a witness to inquest mahazar Ex.P.27 identified his signature as Ex.P.27(a) and turned hostile to the case of the prosecution;

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v) P.W.5 - Sri Mukkunda, who is an Ambulance Driver, Virajpet and witness to inquest mahazar Ex.P.27 identified his signature as Ex.P.27(b) and supported the case of the prosecution, but he has not been crossexamined by the defence;

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vi) P.W.6 - Sri Guruva, a coolie and father of the deceased,

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who deposed that his daughter had informed him that

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she would go to Virajpet first and thereafter,would proceed to Bengaluru, has not supported the case of the prosecution.

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vii) P.W.7 - B.G. Ravi, a Coolie and brother of the deceased has deposed on par with his father-P.W.6 stating his father P.W.6 never informed him about the place where Geetha had gone on that day and has not revealed any particulars of the phone call. On that day, P.W.6 informed him that since deceased is a tailor has left to Tamil Nadu on her tailoring work. He does not known what are the details stated by him in the statement that was rendered by him in Ex.P.16-mahazar and on the request of the learned Public Prosecutor, he has been treated as hostile;

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viii) P.W.8 - Sri P.J. Thomas, neighbour of the deceased father has deposed about the marriage solemnized between Geetha and Ramesh and the deceased Geetha had come back to the village and was residing along with her father as her husband Ramesh was not looking

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after her properly. Thereafter, she went to Coimbatoor for doing the tailoring work and again she came back from Coimbatoor and was residing with her father by doing tailoring work. He has supported the case of the prosecution.

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ix) P.W.9 - Sri P.K. Hariharan, owner of Seethalakshmi Lodge has deposed that Sangeetha Lodge is beside his lodge and came to know about the murdering of a woman in the Sangeetha Lodge and he has partly supported the case of the prosecution.

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x) P.W.10 - Sri A.K. Panduranga, an agriculturist of Thora Village and neighbour of Guruva - P.W.6, father of the deceased, has deposed that he is the witness to seizure mahazars Exs.P.13, 35, 36 and identified his signatures at Exs.P.13(b), 35(a) and 36(a). He has supported the case of the prosecution;

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xi) P.W.11 - Sri Siddu, working in the Bakery at the Boregowda Complex has deposed that Virajpet Police

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had summoned him to the police station and at that time, the accused was there. His signature was taken and then he saw a bag. The police have neither seized any articles in his presence nor had taken him to anywhere but his signature was taken in the police station. The police have not drawn any mahazar in his presence. He has identified his signatures at the seizure mahazars as Exs.P.13(c), 14(c) 15(b), 16(d) 17(b) to 26(b) and partly supported the case of the prosecution;

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xii) P.W.12 - Sri H.C. Ravi, working in a Bakery and a witness to the seizure mahazar has deposed that the police have not seized any material in his presence and thereby, he has been treated as hostile;

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xiii) P.W.13 - Sri Rangaswamy, Assistant Engineer, has deposed that he prepared the sketch of the spot on the request of the investigating officer marked as Ex.P.43 has supported the case of the prosecution;

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xiv) P.W.14 - Sri K.P. Basavaraj, Bill Collector and witness to Ex.P.35 - seizure mahazar has deposed supporting the case of the prosecution;

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xv) P.W.15 - Sri N.M. Yellappa, owner of the house where the accused was residing for rent and witness to Ex.P.35 - seizure mahazar has not supported the case of the prosecution;

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xvi) P.W.16 - Sri Sridhar Hiremath, employee of MTR Food Products Ltd., and witness to seizure mahazar - Ex.P.36 has deposed that the accused was working along with him in the MTR Food Products and he had obtained a sim card for the accused. He has not supported the case of the prosecution;

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xvii) P.W.17 - Sri C.A. Chinnappa, a relative of the deceased

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and witness to the seizure mahazar Ex.P.36 has supported the case of the prosecution;

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xviii) P.W.18 - Sri Prabhakar T., employee of MTR Food Products Limited working as HRIR has supported the case of the prosecution;

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ix) P.W.19 - Sri Radhakishna - Printing Operator in MTR Food Products Limited has also supported the case of the prosecution;

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xx) P.W.20 - Sri Dr. Srinivasa Murthy, Orthopedic Surgeon, Government Hospital, Virajpet has deposed that on 18.6.2012, a unknown female dead body was sent by the Virajpet Town Police through WPC No.42 with a requisition to conduct postmortem. Hence, he conducted the postmortem on the 30 years old female dead body. After two days, he came to know that the said dead body belonged to one Smt. Geetha and on examination, he found that the dead body was 5 feet 2 inches in length,

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i) presence of ligature mark measuring 11 inches seen in front of the neck running through and through from left to right ear; dry and scaly; partumant like appearance;

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ii) ligature mark seen over both wrist and ankle;

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iii) superficial abrasions seen over left arm;

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iv) No other external injuries seen anywhere in the body. Post mortem stain and rigor mortis present;

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He further deposed that there was fracture of hyoid bone left horn present, Signs of Asphyxia present, Ligature corresponding to ligature tag seen, ligature mark seen on both wrist and ankle, the tag was there while he conducted the post mortem. He had given temporary opinion that the death was due to cardio respiratory failure secondary to Asphyxia due to Homicidal Strangulation. After receiving the FSL report on 3.7.2012, he verified the same and confirmed the cause of death as he had given in his earlier opinion, issued the post mortem report as per Ex.P.54 and supported the case of the prosecution.

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xxi) P.W.21 - Sri M.M. Kushappa, Police Constable of Virajpet Rural Police Station has deposed that he submitted the FIR issued by the Sub-Inspector of Police to the

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jurisdictional Court, Virajpet, as per Ex.P.55 and supported the case of the prosecution;

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xxii) P.W.22 - Sri Sharada Subramanya, Woman Police Constable in the Office of the Dy.S.P., Virajpet, has deposed that she was deputed on patrol duty of Sangeetha Lodge of Room No.106 and supported the case of the prosecution;

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xxiii) P.W.23 - Smt. Asha S.D., Police Constable who had worked in Virajpet Police Station has deposed that as per the direction of the Circle Inspector, she handed over one plastic container containing two things i.e., Vaginal Swab and one underwear to Regional Forensic Science Laboratory, Mysuru and obtained the receipt and supported the case of the prosecution;

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xxiv) P.W.24 - Sri Siril M.C., Police Constable of Virajpet Police Station, deposed that he was deputed to apprehend the accused and after apprehending the

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accused, produced him before the Investigating Officer and supported the case of the prosecution;

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xxv) P.W.25 - Smt. Krithika N., Scientifc Officer of the Regional Forensic Science Laboratory, Mysuru has deposed that four sealed covers were received for examination from the Office of the Dy.S.P. of Virajpet along with P.C.No.453 and accordingly, she issued the FSL report as per Ex.P.68 and supported the case of the prosecution;

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xxvi) P.W.26 - Sri Yogesh N., Panchayath Development Officer of the Soolikere Grama Panchayath, Kengeri Hobli, deposed that he produced the agreement between the owner Yellappa and accused as per Ex.P.69 and supported the case of the prosecution.

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xxvii) P.W.27 - Sri Shashi, auto driver and witness to Ex.P.40

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seizure mahazar has not supported the case of the prosecution and as such, he has been treated as hostile witness.

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xxviii) P.W.28 - Sri B.E. Venu, Police Constable of Virajpet Police Station has deposed that he brought totally five items of Viscera collected by the Medical Officer of the Virajpet Government Hospital and produced them before the Circle Inspector of Police of Virajpet Police Station which was marked as Ex.P.72 and identified his signature as Ex.P.72(a).

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xxix) P.W.29 - Sri Ramesh, Chief Officer of Virajpet Panchayat, Madikeri has issued the Certificate to the effect that the Sangeetha Lodge is standing in the name of K.B. Shanthappa marked as Ex.P.72 and identified his signature as Ex.P.72(a). He has supported the case of the prosecution;

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xxx) P.W.30 - Dr. Chaya Kumari, Scientific Officer of the Regional Forensic Science Laboratory, Mysuru, has deposed after receiving of four items, she issued the FSL report as per Ex.P.74 and supported the case of the prosecution;

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xxxi) P.W.31 - Sri Anup Madappa, Sub-Inspector of Police,

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Virajpet Town Police Station, deposed that after receiving the complaint from P.W.1, registered a case in Crime No. 40/2012 for the offences punishable under Sections 302, 201 of IPC.

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xxxii)P.W.32 - Sri Manjunath T.P., Head Constable has deposed that he was working as Constable at Virajpet Town Police Station and he along with others apprehended the accused and supported the case of the prosecution;

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xxxiii)P.W.33 Sri S.E. Gangadharswamy, Dy.S.P., of Chamarajnagar has deposed that he was the investigating officer of the said case. He inspected the spot, recorded the statement of the accused and other witnesses and after completion of the investigation, filed the charge sheet against the accused;

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xxxiv)P.W.34 - Sri K.R. Prasad, Inspector of Police, Malleswaram Police Station, Bengaluru has deposed

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that on 7.5.2014 he received the DNA report marked as Ex.P.95 which was forwarded to Court along with additional charge sheet and list of witnesses.

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Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused for the offences as alleged in the charge sheet.

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On careful perusal of the complaint - Ex.P.1 lodged by P.W.1, the evidence of P.W.1 has deposed that on 16.6.2012 at about 6.45 p.m. the accused along with one woman aged about 30 years came to his lodge - Sangeetha Lodge, Virajpet where he was working as Manager and asked for a room for rent. So he told that one room is available for the rent at Rs.728/- per day and the accused agreed and when he demanded an advance amount of Rs.1,000/- to be paid, the accused replying that he has got only Rs.800/- in his pocket, paid the same to him. Thereafter, he gave the ledger book of his lodge to the accused and the accused wrote his name as Ravikumar, Kuvempunagar, Mysuru. They had a computer at the reception with web camera attached to the said computer. The photograph of the accused along with the lady, who

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accompanied him was obtained through the web camera as per Sl.No.2387. He allotted Room No.106 to the said person and took both of them to the said room. But in the cross-examination, he has specifically stated that the photograph of the accused is reflected, but as the lady was standing behind him, she is not reflected in the photo.

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On going through the complaint and the evidence of P.W.1 they are almost consistent except minor discrepancies which naturally fade to some extent due to passage of time, and as such, witness does deviates from earlier statements as his memory fades to some extent as the incident is of the year 2012 and the evidence of P.W.1 was recorded in the year 2016, four years after the incident. If we peruse the evidence of P.W.1, he has categorically stated that Room No.106 was allotted to the accused and both the accused and the lady had been to the said room and both the occupants had not demanded any room service on that day and also on the next day at about 6.45 p.m., neither the occupants of Room No.106 checked out nor the room was vacated. Thereby, he tried his best to contact the accused who was in Room No.106, but

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there was no response from the occupants at 8.00 p.m. on 17.6.2012. He also made an attempt to contact the accused over mobile phone number which was written in the ledger and Ex.P.2 the bill/receipt given to accused-Ravi Kumar, but it was switched off. He waited for some time, thinking that the occupants of the room may come back to the lodge, and after the owner came to the lodge on his information, he opened the said room. On the basis of the aforesaid complaint, the jurisdictional police registered a case in Crime No.40/2012 for the offences punishable under Sections 302 and 201 of IPC on 18.6.2012 at 12.30 in the night.

¶171

The evidence of the doctor - P.W.20 clearly depicts that he was working as Orthopedic Surgeon, Government Hospital, Virajpet since 2010 and on the request made by the jurisdictional police on 18.6.2012, he conducted post mortem examination on the dead body and found four injuries including presence of ligature marks. Ex.P.54 is the postmortem report opining that the cause of death was due to Asphyxia due to Homicidal Strangulation. If we consider the evidence of P.Ws.1, 2 and 3, they corroborate with each other that the accused - Ravi Kumar along with one woman

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had been to Sangeetha Lodge on 16.6.2012 at about 6.45 p.m. and took a room for rent and Ex.P.2 - the receipt is signed by the accused which proves that the accused along with woman had gone to Sangeetha Lodge and taken a room on rent. With regard to homicidal death of the deceased, the evidence of P.Ws.1, 2, 18 and 20 and Ex.P.54 prove that the deceased has been murdered. Initially, the accused in toto has denied all the incriminating circumstances appearing against him while recording his statement under the provisions of Sections 313 Cr.P.C., but thereafter, he has taken a plea of alibi that as on the date of the unfortunate incident, he had not gone to Virajpet at all. Once the prosecution has proved the initial burden, then it is for the accused to explain the circumstances as to when himself and woman had been to Sangeetha Lodge on 16.6.2012 at 6.45 p.m., what happened in the room when a woman who had accompanied him was found dead. It is for the accused to prove that he was not accompanying the deceased at the time when the incident occurred as he has taken a plea of alibi and the burden shifts on him to prove under Section 103 of the Evidence Act.

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While recording the statement of the accused under Section 313 of the Code of Criminal Procedure, though he denied the incriminating evidence adduced by the prosecution witnesses, has not claimed to adduce any defence evidence or has offered any explanation with regard to the incriminating evidence adduced by the prosecution witnesses, but very strangely has filed his statement under Section 313(5) Cr.P.C. Though he has specifically taken the plea of alibi, in view of the provisions of Section 103 of the Evidence Act, the burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person as held by the Hon’ble Supreme Court in the case of State Of Haryana –vs- Sher Singh & Others reported in AIR 1981 SC 1021 at paragraph-4 as under:

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“4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

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"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its

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existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

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It is also not in dispute that while recording the statement of the accused under Section 313 Cr.P.C., he has not offered any explanation as to homicidal death of the woman in the Sangeetha Lodge, when both had gone on 16.6.2012 at 6.45 p.m. and were together inside the room that too when it is evident from Ex.P.2 the receipt signed by him and also in view of the corroborative evidence of P.Ws.1 to 3. In the absence of any explanation by the accused with regard to the circumstance how she died, an adverse inference has to be drawn against the accused, in view of the dictum of the Hon’ble Supreme Court in the case of Prahlad –vs- State of Rajasthan reported in (2019) 14 SCC 438 particularly at paragraph-11 wherein it is held as under:

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“11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the

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victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.”

¶184

Though the learned Counsel for the accused contended that most of the prosecution witnesses have turned hostile, except the official witnesses, the fact remains that the accused had been to the Sangeetha Lodge along with a woman i.e., deceased and taken Room No.106 and signed the receipt - Ex.P.2 marked as Ex.P.2(a) which clearly proves that both had been to the Sangeetha Lodge on the date of the incident. Once the presence of the accused in the company of the deceased is proved which is corroborated by the evidence of P.Ws.1 to 3 and Ex.P.2- receipt/lodge bill and the accused failing to offer any plausible, cogent explanation as to what happened to the deceased on the date and time of the incident, then the onus shifts on the accused under the provisions of Section 106 of the Evidence Act.

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When the theory of “last seen together” is established by the prosecution, the accused was expected to some offer explanation as to under which circumstances, he had parted the

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company of the victim. It hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts which are proved to be within his special knowledge in view of Section 106 of the Evidence Act, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or nonfurnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the accused.

¶188

Taking into consideration the entire case of the prosecution that some of the prosecution witnesses have turned hostile, the fact that the accused was last seen in the company of the deceased in Room No.106 of Sangeetha Lodge on the day of

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the unfortunate incident, the material documents - Ex.P.1/the complaint, Ex.P.2/lodge bill/receipt, Ex.P.12/lodge ledger all corroborating with the evidence of the prosecution witnesses P.Ws.1 to 3, a presumption arises that that it is the accused and accused alone, who has committed the offence as alleged by the prosecution.

¶191

It is also not in dispute that based on the voluntary statement of the accused Ex.P. 90 that he has studied upto PUC and thereafter, he intended to join the Army or Police Department and since he did not get that opportunity, he was working in small factory and thereafter he was working in MTR Food Products. About six months back, he had received missed calls from the deceased Geetha and thereafter, through the phone, they contacted each other and were in touch. Casually while talking, Geetha had told him that she is searching for a boy and in turn, the accused also told that he is also searching for a girl. Then they started to love each other and decided to marry each other. Since he was aged about 40 years, no one was willing to marry him and as such, thinking that if the deceased Geetha also refused, with an intention

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to murder her, had brought the packing bag of his Company. He took a room in Sangeetha Lodge and also brought one brandy bottle of one quarter M.C. Brand. He gave that drink to Geetha and thereafter had the dinner, they had sexual intercourse once and they were talking to each other. At that time, the deceased disclosed that she was already married and was having a male child. Now that child is no more and as such, she has deserted her husband. Thereby, the accused got enraged and took the wire packed in the bag, tied around her neck and killed her at about 11.30 p.m. On the next day i.e., on 17.6.2012 morning, in order destroy the recognition of Geetha, he removed all the clothes worn by her, put them in her bag and her mobile in his pocket came out of the room at 8.00 a.m. Ascertaining that no one is seen outside the room, he locked the room, kept the key in his pocket and came to the KSRTC Bus Stand along with bag. On the way to KSRTC Bus Stand, he took the way to Clock Tower and threw the bag in the midst of the forest and retaining the mobile phone of the deceased, lodge key and T-shirt worn by him on that day and came to Bengaluru by the bus.

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On perusal of the evidence of the prosecution witnesses

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both oral and documentary evidence, Ex.P.68, 74, 76 - FSL report Ex.P.19 - DNA report, Ex.P.87 and 89 call records between the accused and the deceased, all point towards the guilt of the accused in the homicidal death of the deceased. As stated supra, as the accused was aged about 40 years, none of the parents of the girls were willing to give their daughter in the marriage of the deceased. When the deceased was introduced to him, they became friends and she had disclosed that she was searching for a boy to marry and he also disclosed to her that he is also looking for a girl to marry and he was under the impression that she would marry him. When they went to the Sangeetha Lodge on the unfortunate day after having sexual intercourse, then she disclosed that she is already married and was having a male child and that child is no more. As such, she has left her husband and is living with her father due to which, he lost his self control and committed the murder.

¶197

On careful perusal of the voluntary statement of the accused clearly depicts that when the deceased had disclosed for

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the first time that she is already married and a male child was no more and now she has left her husband, the accused was provoked by the said words and hence, in a spur of moment and in a fit of anger strangulated her. In the circumstances, it is proved that the accused is involved in the offence of homicidal death of the deceased and therefore, the case falls under Exception 1 of Section 300 of IPC., which reads as under:

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"Section 300- Murder:

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xxx xxx xxx

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Exception 1- When culpable homicide is not

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murder- Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol 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.

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On 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

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the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

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In the present case, as stated supra, he proceeded to the Sangeetha Lodge with the deceased as they had become friends and both wanted to marry each other. After they had sexual intercourse, the deceased disclosed that she was already married and a male child born to her was dead and she has left her husband, the accused, who was aged about 40 years and was under the impression that the deceased would marry him as she was also aged, he was provoked by the said fact and lost self control and in a fit of anger committed the homicidal death of the deceased by strangulating her which is nothing but an offence of culpable homicide not amounting to murder. Therefore, the offence clearly falls under Part I Section 304 of the IPC., and not under Section 302 of the IPC., which aspect is not considered by the learned Sessions Judge while convicting the accused.

¶208

While the evidence of the prosecution witnesses and material documents, no doubt clearly depict involvement of the accused in the homicidal death of the deceased, the fact remains

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that the deceased had made accused to believe that she was searching for a alliance and therefore, he strongly believed that she would marry him, but when she disclosed that she was already married and had left her husband and the male child born to them has dead, the accused naturally got provoked. The provisions of section 25 of the Evidence Act in consonance with the voluntary statement of the accused has to be considered that “ no confession made to a Police Officer under Section 161 of the Code of Criminal Procedure shall be proved as against the person of accused of any offence ”. It is pertinent note that the said provision does not prohibit the use of it in favour of the accused. In the majority of the cases, the confessions are sought to be used only against the accused. The cases in which such confessions would or can be used in favour of the accused will be very few and there will be exceptions to the general rule.

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In other words, where the accused has given his statement that he killed the deceased Geetha as he was provoked while the deceased disclosed the fact that she was already married and she had left her husband due to the death of her male child

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which she had and that the facts relating to provocation can be used in his favour as this section only prohibits use of confession ‘against’ an accused and does not prohibit its use in favour of the accused. Applying the aforesaid principles to the facts and circumstances of the present case, the voluntary statement given by the accused before the Police Officer as per Ex.P.90, can be used in favour of the accused for reducing the order of sentence imposed on the accused. When the deceased had made the accused to believe that she was searching for an alliance as if she was not married at all and as the accused was searching for a girl as all the girls were refusing to marry him because of his age, and when the deceased disclosed the fact that she was already married and had deserted her husband since the male child born had died, the accused got provoked by the said facts and committed the said offence on the deceased Geetha which aspect of the matter has not all been considered by the learned Sessions Judge while passing the impugned judgment and order, convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and the same is liable to be modified.

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It is also not in dispute that before commission of the

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said offence, both the accused and the deceased had consumed alcohol. The same is evident from the voluntary statement of the accused; report of the Regional Forensic Science Laboratory - Ex.P.68 issued by P.W.25 opining the presence of alcohol in article Nos.1, 2 and 3 i.e., Stomach, Small Intestine, Liver, Spleen, Kidney, Heart and Lung and Blood; Another Regional Forensic Science Laboratory - Ex.P.74 issued by Dr. Chaya Kumari, Scientific Officer, Biology Section - P.W.30 opining the presence of few blood stains of 1 to 5 cms., here and there in article No.3-One bed sheet which were of human blood with 'O' Group and so also presence of Seminal Stains in item No.1 - One Kacha. The accused after commission of homicidal death of the deceased leaving her naked, went away along with clothes and mobile of the deceased and key of the lodge; the evidence of the investigating officer - P.W.33, the mahazar witnesses, and the recovery of clothes, mobile and key of the lodge room at the instance of the accused all go to prove that the accused with an intention to destroy the evidence of commission of offence by him, had taken those articles along with him and thereby, the prosecution has proved beyond reasonable

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doubt the involvement of the accused in homicidal death of the deceased Geetha and also tried to destroy the evidence which attracts the provisions of Section 201 of IPC.

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Though the learned Counsel for the accused contended that the prosecution has failed to prove the case with regard to motive of the accused in commission of the homicidal death of the deceased, when he had gone to Sangeetha Lodge at Virajpet along a woman and ultimately, the woman was lying dead in the room where the accused had taken a room for rent. Thereby, the motive is a thing which is primarily known to the accused himself and it is not possible for the prosecution to explain what actually promoted or excited him to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence, but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a

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particular crime, they cannot be convicted, if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive, but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.

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In the present case, though the motive is neither disclosed by the accused nor proved by the prosecution, the very direct evidence of P.Ws.1 and 2, the material documents - Exs.P.2 - receipt/bill of the Sangeetha Lodge and Ex.P.12 - lodge ledger and Ex.P.12(a) Entry part in the ledger, clearly depict that the accused and the deceased had been to the Sangeetha Lodge on the unfortunate day, booked a room for rent and after 24 hours, since the room had to be vacated, P.W.1 by using the intercom facility made an attempt to contact the occupants, but as there was no response from either of the occupants of the room at about 8.00 p.m. on 17.6.2012, he waited for some time thinking that the occupants may come back to the lodge and thus he waited till 11 p.m. on that day and made an attempt to contact the accused over the mobile number of the said Ravikumar, which was written in the

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ledger, but it was also switched off. Thus, he was unable to contact him over phone. Suspecting doubt in this regard, he called P.W.3, brother of the owner, who came to the lodge with the master keys of the rooms which they would be having and by using said master key, he opened the door and tried his best to wake up the deceased and even then also, there was no response. They made an attempt to wake her by saying 'Hello, Hello' as well as rang the door bell, but there was no response. Since they received no reply, the blanket over the face was removed partially and then, they came to know that the lady was dead and she was completely nude. They found a rope around the neck of the said lady. Thereby, the prosecution has proved the presence of the accused along with woman on the day, when the accused and deceased had been to the Sangeetha lodge and had taken a room bearing No.106 and the woman was found dead in the said room. Hence, the motive cannot stand in the way of conviction. As already stated supra, the learned Sessions Judge has not considered the peculiar facts and circumstances as to why the accused committed the offence of homicidal death of the deceased and it is only when the deceased disclosed to him that she was already married and had a male child,

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who was no more and now she has deserted her husband, the accused lost his self control and in a fit of anger, committed the said offence. As such, this case which falls under Exception I of Section 300 of IPC as stated supra and the accused is liable to be punished under the provisions of Section 304 Part-I of IPC.

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Though the learned Counsel for the accused relied upon the dictum of the Hon'ble Supreme Court in the case of Babu -vsState of Kerala reported in (2010) 9 SCC 189 to the effect that the absence of any motive in a case depending on the circumstantial evidence is a factor that weights in favour of the accused. The motive must be established atleast upto certain extent. The case on hand does not depend entirely on the circumstantial evidence, but on the direct evidence of P.W.1 - Manager of Sangeetha Lodge, who lodged the complaint - Ex.P.1. Thus the prosecution has proved the direct evidence of the eye witness available against the accused. Thus the said judgment relied upon has no application to the present case. Even paragraph-35 of the said judgment, clearly depicts that motive must be established atleast upto certain extent, but in the present case, the motive is to the extent that on hearing

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that the deceased was already married, had a child, who has died, she had deserted her husband and was living with her father, which fact was not at all disclosed to the accused when they were loving each other and as such, the accused lost self control and committed the offence amounting to culpable homicide. Thereby both oral evidence of P.Ws.1 and 2 and documentary evidence - Ex.P.1 and medical and scientific evidence of the doctors establish to a certain extent the involvement of accused in the commission of offence of homicidal death of the deceased. Thereby the said judgment has no application to the facts and circumstances of the present case.

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Another judgment relied upon by the learned Counsel for the accused is Pannayar -vs- State of Tamil Nadu reported in (2009)9 SCC 152 with regard to absence of motive in a case which depended on circumstantial evidence is more favourable to the defence. It is a case where in the robbery of ornaments, though the accused was convicted for the offences punishable under Sections 302 and 392 r/w Section 397 of IPC, he was acquitted of all the said offences in view of absence of motive which depended on circumstantial evidence as it was more favourable to defence.

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This Court and the Hon'ble Supreme Court time and again held that the robbery and murder have to be proved simultaneously and thereby the said judgment has no application to the facts and circumstances of the present case.

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With regard to another judgment relied upon by the learned Counsel for the accused in the case of Bavuddin S/o Kajesab Patel -vs- State of Karnataka reported in (2020) 0 Supreme (Kar) 1853 (Full Bench) , where the prosecution case is entirely based on circumstantial evidence and there were no eye witnesses, it is made incumbent upon the Court to appreciate the circumstantial evidence, the factor 'motive' plays pivotal role. Where direct evidences are available, the aspect 'motive' may not be so important. But when the case is entirely based on circumstantial evidence, the Court has to ascertain what was the motive for the accused to commit the offence alleged. Admittedly, in the present case, when the case is not entirely based on circumstantial evidence and there are eye witnesses to the last seen theory and recovery of dead body, clothes, key and mobile

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phone of the deceased, the said judgment has no application to the facts and circumstances of the present case.

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In another judgment relied upon by the learned Counsel for the accused in the case of Shailendra Rajdev Pasvan and

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Others -vs- State of Gujarat and Other reported in (2020)0 AIR (SC) 180 particularly paragraph-12, it was also a case where the entire case of the prosecution rests on the circumstantial evidence as there were no eye witness to the alleged incident. As such, the said case has no application to the facts and circumstances of the present case.

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It is not in dispute that if the case of the prosecution is based on circumstantial evidence and there are no eye witnesses, then the principle enuncitated in the case of Sharad Birdichand Sharda -vs- State of Maharashtra reported in (1984)4 SCC 116 , would apply, but the case on hand is not based on circumstantial evidence, and rather it is a case of direct evidence. Therefore, the said judgment has no application to the present case.

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Another judgment relied upon by the learned Counsel

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for the accused in the case of Anand Ramachandra Chougule v. Sidarai Laxman Chougala reported in AIR 2009 SC 3871 particularly paragraphs-9 and 10 wherein relying upon the provisions of Section 105 of the Evidence Act, the Hon'ble Supreme Court held that the prosecution has to prove its case beyond reasonable doubt and the accused on the other hand has only to create a doubt about the prosecution case and the probably of its defence. Mere taking of no defence under the provisions of Section 313 Cr.P.C., it does not absolve the prosecution in proving its case beyond reasonable doubt. We have no quarrel with the law laid down by the Hon'ble Supreme Court in the above said case. Admittedly, in the present case, the prosecution is not dependent only on the statement of the accused recorded under Section 313 Cr.P.C. It is well settled that based on the defence taken by the accused, there cannot be any conviction and it is always the burden on the prosecution to prove beyond reasonable doubt the guilty of the accused. Once the initial burden is proved by the prosecution, then the burden shifts on the accused. In the case on hand, the initial burden of the prosecution that the accused and the deceased

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were last seen together at Sangeetha Lodge, Virajpet on 16.6.2012 at 6.45 p.m. where they had taken a room bearing No.106 for which the accused has signed the ledger book are not in dispute. Thereafter what happened in the room is known only to the accused. The voluntary statement of the accused discloses that he has committed the offence as he was provoked by the information given by the deceased that she was already married and had a male child which was not disclosed to the accused earlier. Taking into consideration all the said facts, it is clear that the prosecution has proved its case that it is the accused and accused alone, who has committed the offence.

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The recovery of clothes of the deceased and the room

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key of the lodge at the instance of the accused, go to prove the initial burden of the prosecution, but the accused has denied the entire case of the prosecution in the statement recorded under Section 313 Cr.P.C. Thereby an adverse inference has to be drawn against the accused as stated supra. When once the accused has taken a plea of alibi that he had not come to Virajpet, the burden shifts on him to prove the said fact in view of the provisions of

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Section 103 of the Indian Evidence Act as stated supra and thereby, the said judgment has no application to the facts and circumstances of the present case.

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The fact that the evidence on record establishes the socio-economic condition of the appellant that he was working in the MTR Food Products and below the poverty line, aged about 40 years and was not married. Al these factors frustrated the accused which can be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors. Thus, when the deceased approached him, they had become good friends, loved each other and when deceased had expressed her willingness to marry him, he was very much happy. However, on the date of the incident, after spending some good time with each other, in usual course, the deceased disclosed the fact that she was already married but, she has left her husband and the male child born to them is also no more, the accused got enraged as she had not revealed this fact earlier and in a fit of anger killed her. Taking into consideration the peculiar facts and circumstances of the present case, the age of the accused, and there was no enmity on any

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previous quarrels and the mitigating factor, we are of the considered opinion that the accused is guilty of commission of offence of homicidal death of the deceased and thereby ends of justice would be met, if he is convicted for the offence punishable under Section 304 Part-I of IPC and sentenced to undergo rigorous imprisonment for a period of 10 years with fine.

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Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Mohd. Rafiq vs. State of Madhya Pradesh reported in (2021) 10 SCC 706 wherein paragraphs-14, 15 and 16 read as under:

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"14. Coming back to the facts of this case, as observed earlier, there can be no serious dispute that the prosecution established the main elements of its factual allegations : the receipt of information of the breaking of the forest barrier; positioning of the deceased SI Tiwari, with a posse of policemen on the road; the identification of the appellant, as one who drove the truck; gesturing by the deceased to the appellant to stop the truck; the latter slowing down the vehicle; attempt by the SI to board the vehicle, and his being shaken off the truck, on account of the

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driver refusing to stop, and, on the other hand, speeding the vehicle. Even if the prosecution version that the appellant having threatened to kill the deceased were to be accepted, one cannot set much store by it, because no motive or no animus against the deceased was proved. A general expression of the extreme threat, (without any real intention of carrying it, since the truck was not laden with any contraband [ In fact the owner of the truck deposed during the trial.] or was not used for any illegal or suspect activity), cannot be given too much weight. What is of consequence, is that upon the deceased falling off the truck, the appellant drove on. Here, the prosecution established that the truck was driven, without heed; however, it did not establish the intention of the driver (i.e. the appellant) to run over the deceased. This point, though fine, is not without significance, because it goes to the root of the nature of the intention. Did the appellant intend to kill SI Tiwari? We think not. Clearly, he knew that SI Tiwari had fallen off; he proceeded to drive on. However, whether the deceased fell in the direction of the rear tyre, of the truck, or whether he fell clear of the vehicle, has not been proved; equally it is not clear from

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the evidence, that the appellant knew that he did. What was established, however was that he did fall off the truck, which continued its movement, perhaps with greater rapidity. This does not prove that the appellant, with deliberate intent, drove over the deceased and he knew that the deceased would have fallen inside, so that the truck's rear tyre would have gone over him. In these circumstances, it can however be inferred that the appellant intended to cause such bodily injury as was likely to cause SI Tiwari's death.

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15. All the essential elements show that the appellant did not have any previous quarrel with the deceased; there was lack of animus. The act resulting in SI Tiwari's death was not premeditated. Though it cannot be said that there was a quarrel, caused by sudden provocation, if one considers that the deceased tried to board the truck, and was perhaps in plain clothes, the instinctive reaction of the appellant was to resist; he disproportionately reacted, which resulted in the deceased being thrown off the vehicle. Such act of throwing off the deceased and driving on without pausing, appears to have been in the heat of passion, or rage. Therefore, it is held that the

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appellant's conviction under Section 302 IPC was not appropriate.

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16. Section 304 IPC [ “ 304. Punishment for culpable homicide not amounting to murder .—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; orwith imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”] provides punishment for culpable homicide not amounting to murder (under Section 299 IPC). In the facts of the present case, this Court is of the opinion that the appellants should be convicted for the offence punishable under the first part of Section 304 IPC, as he had the intention of causing such bodily harm, to the deceased, as was likely to result in

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his death, as it did. Having regard to these circumstances, the conviction recorded by the courts below, is altered to one under Section 304 Part I IPC. The sentence too is therefore modified — instead of rigorous imprisonment (“RI”) for life, the appellant is hereby sentenced to 10 years' RI. The direction to pay fine, is however, left undisturbed."

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On re-appreciation of the entire material and documentary evidence on record and in the light of the principles enunciated by the Hon’ble Supreme Court in the judgments stated supra, we answer point No.1 raised in the present criminal appeal partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offence punishable under the provisions of Section 302 of the IPC., and sentencing him to undergo imprisonment for life with a fine of Rs.50,000/- with default clause requires modification and the said conviction is altered to one under Section 304 Part-I of IPC., and he is sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs.1,00,000/- (Rupees One Lakh Only) and in default of payment

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of fine, he shall undergo two years simple imprisonment. Point No.2 is answered in the negative holding that the accused has not made out any case to interfere with the impugned judgment of conviction and the order of sentence convicting him for the offence punishable under Section 201 of the IPC., and sentencing him to undergo simple imprisonment for a period of three years with a fine of Rs.5,000/- with default clause.

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In view of the above, we pass the following:

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ORDER

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i) Criminal Appeal filed by the appellant/accused is allowed in part;

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ii) The impugned judgment of conviction dated 30.10.2018 and order of sentence dated 17.11.2018 made in S.C.No.108/2012 by the Learned II Additional District and Sessions Judge, Kodagu-Madikeri, sitting at Virajpet in so far as convicting accused for the offence punishable under the provisions of Section 302

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of the IPC., is hereby modified and is altered

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to one under Section 304 Part-I of IPC;

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iii) The accused is convicted for the offence punishable under the provisions of Section 304 Part I of the IPC., and sentenced to undergo rigorous imprisonment for a period of Ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only), in default of payment of fine, to undergo simple imprisonment for a further period of Two years;

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iv) In so far as impugned judgment of conviction and order of sentence convicting the accused under the provisions of Section 201 of the IPC., and sentencing him to undergo imprisonment for a period of three years with fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of 6 months is hereby confirmed;

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*iv(a)) The Sentences shall run concurrently .

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Correction carried out vide Court order dated 22.05.2023.

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v) On such payment of fine amount of Rs.1,00,000/- (Rupees One Lakh only) by the accused imposed by this Court, in view of the provisions of Section 357(3) of the Code of Criminal Procedure, an amount of Rs.95,000/shall be paid to the father of the deceased i.e., Sri K. Guruva/P.W.6, and in case of the death of Sri K. Guruva/P.W.6, the same shall be kept in fixed deposit in the name of the mother of the deceased in any of the Nationalised Bank for a period of three years with liberty to her to withdraw the periodical interest as and when it accrues and the balance fine amount of Rs.5,000/- (Rupees Five Thousand only) shall vest with the State Government towards defraying expenses;

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vi) The accused is entitled to the benefit of set-off under the provisions of Section 428 of the Code of Criminal Procedure; and

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vii) Registry is directed to return the Trial Court

Records, forthwith.

Sd/Judge

Sd/Judge