Partly allowed

Senthil v. State of Karnataka

Karnataka HC1 Feb 2022CRL.A/549/2018

Case brief

AI extract

What is this about?

In an appeal against a murder conviction, the High Court held that the killing resulted from sudden provocation due to suspected infidelity, lacking premeditation. The offence was reduced from murder (IPC 302) to culpable homicide not amounting to murder (IPC 304 Part-I), and the life sentence was commuted to ten years rigorous imprisonment.

What did the court decide?

The impugned judgment convicting for murder (IPC 302) was modified to culpable homicide not amounting to murder (IPC 304 Part-I). The sentence was reduced from life imprisonment to ten years rigorous

Senthil Vs State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF FEBRUARY, 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 M.G. UMA

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CRIMINAL APPEAL No.549/2018

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BETWEEN:

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SENTHIL, S/O LATE A. P. MOHAN, AGED 37 YEARS, OCCUPATION: MASON, R/O NO. 48, 1^ST MAIN ROAD, SANJEEVAPPA COLONY, BENGALURU CITY, BENGALURU DISTRICT - 560 094. (NOW IN JUDICIAL CUSTODY CENTRAL PRISON, BENGALURU)

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...APPELLANT

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(BY SRI KRISHNAPPA N. R., ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY SANJAYANAGAR POLICE, BENGALURU, REPRESENTED BY SPP, HIGH COURT BUILDING, HIGH COURT, BANGALORE - 560 001. ...RESPONDENT (BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER SENTENCE DATED 29.01.2018 PASSED BY THE LEARNED PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN S.C.NO.1436/2013CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS CRIMINAL APPEAL COMING ON FOR 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 criminal appeal against the impugned judgment of conviction and order of sentence dated 29.01.2018 on file of the learned Principal City Civil and Sessions Judge, Bangalore in S.C.No.1436/2013 convicting the appellant/accused for the offence punishable under section 302 of IPC., and sentencing him to undergo imprisonment for life and to pay a fine of Rs.25,000/- with default clause.

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It is the case of the prosecution that complainant's brother's daughter deceased Rani was married to the accused Senthil and out of their wedlock, one male child was born. The accused-husband was doing mason work and the deceased had come back to her home one week back after finishing her Teacher's

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Training. From then onwards, the accused-husband of the deceased used to suspect his wife and after the deceased returned from her native place after finishing her training, the suspicion of the accused grew stronger and keeping this in mind, the accused used to quarrel with the deceased. When the things stood thus, on 31.7.2013, between 4.30 to 5.00 p.m., the complainant received a phone call from her brother Bhasker from Thirupattor stating that the accused had telephoned him saying that he had murdered Rani and asked him to go near the house and to verify and immediately, the complainant rushed to the house of the accused where the door was slightly opened and when she entered the house and saw, the deceased was lying dead on the cot and blood was oozing from her head and there was a brick piece on the cot. The blood was found on the wall and on the side of the cot and she came out of the house screaming and thereafter, they informed the police and based on the complaint lodged by P.W.6 - Radha, a case in Crime No.219/2013 came to be registered by P.W.15-Prabhu Shankar, who was the Police Inspector of Sanjaynagar Police Station for the offence punishable under Section 302 of IPC. After investigation,

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the jurisdictional Police Officer filed the charge sheet against the accused for the said offence.

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After committal of the case by the learned Magistrate, the learned Session Judge secured the presence of the accused, framed the charge and explained to him in the language known to him, who pleaded not guilty and claimed to be tried.

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In order of establish its case, the prosecution in all excamined P.Ws.1 to 16 and got marked the documents Exs.P.1 to 26 and material objects M.Os.1 to 13 and on completion of the recording of the evidence of the prosecution witnesses, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstances appearing against him, but did not choose to lead any evidence on his behalf.

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Considering the above pleadings on record, the learned Sessions framed the two points for consideration and on consideration of both oral and documentary evidence on record, answered both the points in the affirmative holding that the

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prosecution has proved the death of the deceased Smt. Rani was homicidal in nature and further that it was the accused, who committed the murder of his wife Smt. Rani on 31.7.2013 at about 3.30 p.m. in the house bearing No.46, 1^st Main Road, Sanjeevappa

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Colony, Bengaluru on suspecting her fidelity intentionally or knowingly causing her death by assaulting with brick and smothering her with curtain M.O.1 and thereby committed an offence punishable under Section 302 of IPC. Accordingly, by the impugned judgment of conviction and order of sentence punished the accused to undergo imprisonment for life and fine of Rs.25,000/- for the said offence with default clause. Hence, the present appeal is filed.

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We have heard the learned Counsel for the parties.

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Sri N.R. Krishnappa, learned Counsel for the

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accused/appellant contended with vehemence that since the impugned judgment of conviction and order of sentence passed by the trial Court convicting the accused for the offence punishable under Section 302 of IPC is erroneous and contrary to the material on record, it cannot be sustained. He would further contend that

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admittedly as there is neither any eye witness to the incident nor admissible evidence adduced by the prosecution to prove its case and the prosecution has not proved the presence of the the appellant-accused on the date of the incident, the impugned judgment of conviction and order of sentence is liable to be set aside. As P.Ws.1 and 2 are highly interested witnesses as they are relatives of the deceased, their evidence has to be discarded. The prosecution has also failed to examine C.W.7 as well as the neighbours of the deceased with regard to his statement that the deceased was crying at the time of attack by the accused. Though there are certain discrepancies in the evidence of the prosecution witnesses - P.Ws.2 and 6, the learned Sessions Judge has erroneously convicted the accused for the offence punishable under Section 302 of IPC. He therefore, contended that the trial Court has passed the impugned judgment of conviction and order of sentence based on presumption and assumption, which cannot be sustained.

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8. In the alternative, he contended that the deceased used

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to ignore her husband and her child after coming from training, she

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never used to cook and would always be on the phone chatting with someone. Therefore, the accused suspecting her fidelity, on the day of the incident while the deceased was sleeping on the cot and watching T.V., he lost his self control and assaulted her with M.O.1 as admitted by him in his voluntary statement as per Ex.P.21 and thereby it is a case which clearly falls under the provisions of Section 304 Part-II of IPC and not under Section 302 of IPC. Therefore, he sought to allow the criminal appeal.

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Per contra, Vijaykumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence contended that there is no dispute with regard to the relationship between the accused and deceasedhusband and wife and out of their wedlock, a male child was born. It is the evidence of the prosecution witnesses that the accused was suspecting the fidelity and thereby has intentionally assaulted the deceased with M.O.1 on the date of the incident and had informed P.W.14-father of the deceased about his assault on the deceased, who in turn had informed P.W.6. Thereby a complaint came to be lodged by P.W.6 and the jurisdictional police after conducting

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investigation filed the charge sheet. He would further contend that the oral evidence of P.Ws.1 and 2 as well as the medical evidence clearly depicts that the accused was involved in the homicidal death of the deceased. Even the postmortem report Ex.P.5 also discloses that there were six external injuries and the death was due to combined effect of head injury and smothering which is corroborated by the evidence of the doctor, who conducted the postmortem examination on the deceased. He would further contend that the father of the deceased P.W.14 also has supported the case of the prosecution, who has spoken to, that the accused was suspecting the fidelity of his wife and as such, the prosecution has proved beyond all reasonable doubt the involvement of the accused in the homicidal death of the deceased and therefore, he sought to dismiss the criminal 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 impugned judgment of

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conviction and order of sentence convicting and sentencing him to undergo life imprisonment with a fine of Rs.25,000/- for the offence punishable under Section 302 of IPC?

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and

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ii) Whether the accused has made out a case for reduction of sentence in the facts and circumstances of the present case?

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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 material 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 K. Babu, Carpenter, has deposed that he knew both accused and deceased. On 31.7.2013 at about 3.30 p.m. he, C.W.10-Jayaram and P.W.2 Raghu were talking in the Church in the limits of Sanjeevappa Colony and at that time, the accused had been to the

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house at about 3.30 p.m. for lunch and had closed the door and came out from the house at about 4.30 p.m. by closing the door from outside. The accused went out from the house in an anger without speaking to them. The accused and deceased were quarreling each other frequently. On the same day after sometime, P.W.6 - Radha being the relative of the deceased had come to the house and started screaming inside the house. As such, he went inside the house and saw the blood stains and brick pieces lying inside the house. On receipt of phone message from the accused, P.W.6 - Radha had come to the house of the accused. The deceased Rani had sustained injuries on her head parts and the blood stains were found on the wall. He has supported the case of the prosecution and nothing has been elicited in her cross-examination to disbelieve his evidence with regard to the presence of the accused with his wife on the date of the incident.

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ii) P.W.2 - Sri Raghu, Salesman of Lifestyle Pvt. Company has also deposed on par with P.W.1. Nothing has been elicited in his cross-examination to disbelieve his evidence with regard to the presence of the accused with his wife on the date of the incident and has supported the case of the prosecution.

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iii) P.W.3 - Sri Madhu @ Maadhu, Taxi Driver and an witness to Ex.P.1 - Spot mahazar has deposed in his cross-examination that he cannot read and writ in Kannada language. He was well acquainted with the accused and deceased since 3 to 4 years. He has supported the case of the prosecution.

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iv) P.W.4 - Sri Armugam, another witness to seizure mahazar Ex.P.2 identified M.Os.1 and 6 - brick pieces seized at the instance of the accused along with M.Os.7 and 8 and nothing has been elicited in his crossexamination to disbelieve his evidence.

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v) P.W.5 - Sri Armugam, owner of the house where the accused was residing has deposed that he had been to

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the temple at the time of offence and after returning the house, he came to know the incident and supported the case of the prosecution.

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vi) P.W.6 - Smt. Radha is none other than the sister of the father of the deceased Rani. She has deposed that her brother P.W.14-Bhaskar informed that the accused had killed his daughter and as such, he went to the house of the accused situated at Sanjeevappa colony in Mathikere, Bengaluru. When she went to the house of the accused the door was partially opened, and when she went inside, she found that the deceased Rani lying on the cot by protruding her tongue and also there were bloodstains on her head and on the wall. The cot was lying nearby the window in the scene of crime. As such, she went to the Police station and gave complaint as per Ex.P.3. She further deposed that subsequent to filing of complaint, the police had come to the scene of occurrence and shifted the dead body to the M.S. Ramaiah Hospital,

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Bengaluru and she had also accompanied the police to the hospital. She attested the seizure mahazar for seizing the blood stained clothes of the deceased and brick pieces - M.Os.1 to 3. In her cross-examination, she has deposed that the police prepared Ex.P.3 and she does not know the contents of it. She has denied the suggestion that she has filed a false complaint. She identified her signature in the complaint Ex.P.3 marked as Ex.P.3(a). Nothing has been elicited in her cross-examination to disbelieve her evidence.

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vii) P.W.7 - Sri Rajesh, the brother of the deceased Rani deposed that the marriage between the accused and deceased was solemnised on 8.6.2005 and out of their wedlock a male child was born. He further deposed that there were altercations between each other, but he does not know the reason for the same. He does not know how they were residing after the deceased was brought to her husband's house. On 31.7.2013 at about 4.30p.m CW.4 Ranjini had given telephonic

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information to him about the death of deceased Rani. Subsequently, he called accused Sendil, the husband of the deceased to make an enquiry about her death and he went to M.S.Ramaiah hospital to see the dead body of his sister deceased Rani. He further admitted in his cross-examination that accused Sendhil used to go out of his house for several days for work. Though there were several quarrels between them, but no complaint was lodged earlier against the accused and no panchayaths were held. He further admitted the suggestion that P.W.6 had not told him about the harassment meted out to Rani by Sendhil-accused and denied the suggestion that he giving any statement to police.

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viii) P.W.8 - Sri S. Velu, Mechanic in railway department at Madras and deceased mother's brother has deposed that after the marriage of deceased Rani and accused Sendil, they were residing in Bengaluru. The accused was suspecting the fidelity of his wife

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Rani and used to quarrel with her. The deceased Rani informed him telephonically that her husband Sendil was making altercations with her. She used to come to her parents' house frequently. Two years prior to the death of Rani, she had come to Tirupattur for teacher’s training and was staying in her parental house. While the deceased Rani was residing in her parental house for teacher’s training, there also the accused used to pick up quarrel with her. He further deposed that on 31.7.2013, on the information given by Radha-P.W.6 telephonically that the deceased Rani had died, he had come to Bengaluru, but in the meanwhile the dead body was taken to hospital. He found injuries on face and head of the deceased. He supported the case of the prosecution and nothing has been elicited to disbelieve his statement.

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ix) P.W.9 - Sri K. Srinivas, mahazar witness, has deposed

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that he knew the deceased Rani. On 1.8.2013, he had

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been to M.S.Ramaiah hospital to see the dead body of Rani. The police verified the dead body of Rani and conducted Inquest Mahazar and he attested his signature on the same marked as Ex.P.4 and his signature as Ex.P.4(a). He supported the case of the prosecution.

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x) P.W.10 - Dr. Basappa S Hoogar, Associate Professor, Department of Forensic Medicine, M.S.Ramaiah, Medical college, Bengaluru, deposed that he had worked at M.S.Ramaiah Medical college and Hospital for the past 11 years and on 1.8.2013, he received a requisition from the Police Inspector of Sanjaynagar Police station at 12.05 p.m. requesting to conduct post-mortem on the dead body of one Rani, aged 28 years. Accordingly, he conducted the post-mortem examination on the dead body of Rani on the same day between 12.15 p.m. and 1.45 p.m. The body was kept in cold storage. He found the following clothes and articles on the body:

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"(1) one red coloured nightie with black coloured designs with dried blood stains at places over the back;

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(2) one brown coloured petticoat;

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(3) one white coloured bra with dried blood stains at places; and

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(4) one green coloured underwear."

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After the examination, the above mentioned clothes were packed, labelled, sealed and was handed over to concerned police along with sample seal. The said articles were marked as M.O-9 to M.O-12. He gave his opinion that the cause of death was due to head injury and smothering. Accordingly, he issued the postmortem report, marked as Ex.P-5 and his signature marked as Ex.P-5(a).

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xi) P.W.11 - Sri C. Lakshmaiah, A.S.I, Gangammanagudi Police Station, Bengaluru, deposed that on 31.7.2013, he and Chandraiah were on duty in Hoysala-68 Vehicle and on receiving an information about accused coming

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that side, at about 6.50 p.m. they traced the accused and on enquiry they came to know his name as Sendhil at Sanjeevappa colony. They apprehended him and brought in Hoysala-68 Vehicle and produced him before the Police Inspector along with report marked as Ex.P.6 and his signature marked as Ex.P6(a).He identified the photographs Exs.P.7 and 8 shown to him as well as the accused in the photos. Nothing has been elicited in his cross-examination to disbelieve his statement.

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xii) P.W.12 - Sri H.R.Srinivas, Head Constable - 6510, deposed that he and Woman Police Constable Smt. Gangambike took the dead body of one Rani to M.S.Ramaiah Hospital and handed over to M.S. Ramaiah Hospital. He also has supported the prosecution case.

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xiii) PW-13 - Sri Mubarak, Police Constable 10578, who was on duty on 31.7.2013 at about 5.30/5.45 P.M, the Police Inspector of his Police Station gave him a digital

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camera and asked him to accompany him. He took him to a house in Sanjeevappa colony where he saw dead body of woman. The Police Inspector asked him to take photos of the dead body and scene of occurrence. Accordingly, he took photos marked as Ex.P-12 to P-19 and supported the case of the prosecution.

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xiv) PW-14 - Sri Bhaskar, Signal operator in Railway Department, father of the deceased Rani deposed about the marriage solemnised between accused and deceased in the year 2005 and after the marriage both were residing at Bengaluru. Sendhil was a Mason. Sendhil and Rani had one son by name Abhishek. They were quarrelling frequently. When Rani used to dress and go out, accused was suspecting her. This fact was told to him over phone. He used to pacify Rani and was asking her to be cordial with her husband and child. She had studied up to 12^th Standard and thereafter, had completed

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Teacher’s Training. After completion of Teacher’s training, his wife had accompanied Rani to Bengaluru and left her in her house. At that time also Sendhil used to consume alcohol and quarrel with Rani. On 31.7.2013 himself, his wife and his 2^nd daughter Ranjini had been to Murugan Temple and at about 4.30 p.m., Sendhil telephoned him and told him that he had killed Rani and asked him to take her body. Then he telephoned to his sister (CW-1), who was residing in the same area where Sendhil and Rani were residing and asked his sister (CW-1) to go to the house of Sendhil. He did not know whether Sendhil had telephoned to others. When his sister (CW-1) went to his house, she saw the dead body of Rani and again replied him back. Then himself, his wife and his 2^nd daughter Ranjini came to Bengaluru by train and reached the house of Sendhil and there was no one in the house. Body of Rani had been taken to Ramaiah Hospital. Then they went to Ramaiah Hospital, saw the dead body of Rani and found injuries on her face, head

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and other parts of body. Nothing has been elicited in his cross-examination to disbelieve his evidence.

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xv) P.W.15 - Sri M.Prabhushankar, Deputy Superintendent of Police, Chikkaballapura, deposed that he was working as Police Inspector in Sanjaynagar Police Station, Bengaluru between 16.6.2012 and 20.4.2013 and on 31.7.2013 at about 3.30 p.m., when he was in the Police Station, he received an information that a woman was murdered within the limits of his Police Station. He along with his staff rushed to the spot i.e., the house of the accused and found the dead body of Smt.Rani, the wife of the accused, in the hall of the house. The blood was oozing from her head and a piece of brick was lying there. He secured the photographer and took the photos of the scene of offence. When he visited to the spot, nobody was in the house. He made efforts to ascertain the relatives of the deceased. The neighbours of the accused informed him that they had received a call from the

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parents of the deceased stating that the accused had informed that he had murdered their daughter and asked them to come and take away the dead body. PW-6, who is the relative of the deceased, came and saw the dead body. He went to the Police Station along with PW-6 and she lodged the complaint and based on the same, he registered a case and submitted the FIR to the Court. The said complaint was marked as Ex.P-3 and identified signature as marked as Ex.P-3(b). The FIR was marked as Ex.P-20 and signature as Ex.P-20(a). He went to the spot and secured P.W.3 and C.W.13 as panchas and prepared the Mahazar as per Ex.P-1. He put his signature as Ex.P-1(b). He seized the blood stained piece of brick, blood stained bed sheet, blood stained curtain and collected the blood stains, which were spilled on the wall. He scratched the wall and took its powder as sample. There was a T.V remote in the hand of the deceased which was also seized. He shifted the dead body to M.S Ramaiah Hospital and deputed his staff to

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apprehend the accused. On the same day at about 9.00 p.m., accused was produced before him along with the report. The said report was marked as Ex.P6. He arrested the accused, interrogated him and recorded his voluntary statement as per Ex.P-21. On 1.8.2013, he went to the Hospital and conducted the Inquest Mahazar of the dead body as per Ex.P-4. He put his signature marked as Ex.P-4(b). He recorded the statements of PW-14, CW-3, CW-4 and CW-7 and subjected the dead body for postmortem. The accused led them to his house, where he secured PW-4 & CW15, prepared the Spot Mahazar of the place shown by the accused as per Ex.P-2 and put his signature marked as Ex.P-2(b). Another piece of brick was lying beneath the cot and the accused produced the said piece of brick and two cell phones of the deceased which were seized and marked as M.O-6, M.O-7 and M.O-8. Thereafter, he recorded the further statement

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of the accused informing that he had pressed her mouth and nose with the cloth and suffocated her,

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which was produced by the accused before the Court. He supported the case of the prosecution and nothing has been elicited in his cross-examination to disbelieve his statement.

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xvi) P.W.16 - Smt. Malathi D., Scientific Officer, Forensic Science Laboratory, Bengaluru, deposed that on 26.9.2013, her Office received 11 sealed articles pertaining to this case which were entrusted to her for examination. She found the seal intact and she unsealed, examined all the 11 articles, again she sealed and sent back the same with their sample seal. She gave her report as per Ex.P.25, the sample seal marked as Ex.P-26, her signatures as Ex.P.25(a) and Ex.P-26(a). She gave her opinion to the effect presence of blood detected in article Nos.2 to 4 and 7 to 10 and not on in article Nos.1, 5 and 6. Item Nos.2 to 4 and 7 to 10 were stained with human blood. Blood in item No.11 was disintegrated and hence, its origin could not be determined. Item Nos.2 to 4 and 7

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to 10 were stained with ‘A’ blood group. She identified the material objects - M.Os.1 to 4, 6 and 9 to 13. Nothing has been elicited in her cross-examination to disbelieve her statement.

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Based on the aforesaid material, the learned Sessions Judge by the impugned judgment of conviction and order of sentence convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/- with default clause.

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On careful reading of the evidence of P.Ws.1, 2, 6 and 14, it clearly depicts that on the date of the incident, the accused was present at the scene of offence. The same is also not disputed by the accused in his voluntary statement as per Ex.P.21. The evidence of the prosecution witnesses depict that the accused was uneducated and the deceased had studied up to II PUC as well as completed Teachers Training Course at the instance of the accused. After the training, the accused used to suspect the fidelity of the deceased Rani on the ground that she had developed intimacy with some other person and on the unfortunate day of the incident i.e.,

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on 31.7.2013, when he had been to mason work at 9.30 a.m., he was unable to work as his mind was disturbed. Thereafter, at about 3.30 p.m. he returned to the house. The deceased Rani served the lunch, but he could not have it. So he came out of the house and listened to the conversation of his wife with her paramour over the mobile through voice recording and hence, he got enraged and decided to finish her. Therefore, at 4.20 p.m., he came back to the house and at that time, his wife deceased Rani was sleeping on the cot watching television. He again went outside the house and brought the bricks M.Os.1 to 6 lying in front of the house and hit her forehead by force with the said bricks, due to which blood started coming out and the deceased cried 'Amma Amma'. Brick pieces fell on the cot. She tried to turn to the side and leaned on the wall. Again he picked the brick piece and assaulted on the head of the deceased. She fell on the cot without any movement. He called P.W.14-father of the deceased Rani and P.W.7 Rajeshbrother of the deceased and informed that he had killed his wife as he was enraged. There is also evidence on record that for some time, the couple were leading happy marital life and as a result, they had an issue from the marriage which clearly supposes that

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there was no motive for the accused to take away the life of the deceased. At the spur of the moment and in a fit of anger, the accused had taken the bricks which were lying in front of the house and assaulted the deceased with sufficient force causing injuries on the body of the deceased. Accordingly, action attributable to the accused cannot be treated as one of murder in the absence of any pre-meditation or sufficient preparation to commit the act. Therefore, we are of the considered opinion, that extreme punishment of life imprisonment cannot be imposed on the accused holding that his action as 'murder'. Therefore, the offence alleged against the accused needs to be altered from Section 302 into 304 Part I of IPC., in view of the ingredients of the exception-I of the Section 300 of IPC., which reads as under:

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“ Section 300 : Murder:

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xxx xxx

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xxx xxx

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Exception I – When culpable homicide is not murder.— Culpable homicide is not murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the

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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, when the accused had come to the house for lunch, the deceased Rani-wife of the accused was watching television lying on the cot and on hearing the conversation between the deceased and her paramour, the accused lost his self control and thereby assaulted the deceased with M.Os.1 and 6 - bricks. Therefore, it is a clear case which falls under Exception 1 to Section 300 IPC since the provocation was not only grave but sudden as well. Therefore, the accused is liable to be convicted for the offence punishable under the provisions of Section 304 Part-I of IPC and not under Section 302 of IPC., which material aspect has been ignored by the learned Sessions Judge while convicting the accused.

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On meticulous reading of the evidence of P.Ws.1, 2, 6, 14, coupled with the evidence of the Doctors - P.Ws. 10 and the postmortem report Ex.P.5 clearly establishes that the death of the deceased was homicidal in nature and it is the accused, who

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assaulted his wife with bricks - M.Os.1 and 6 and the cause of death was due to combined effect of head injury and smothering as per Ex.P.5 the post mortem report issued by the doctor P.W.10. Even the evidence of P.W.16 the Forensic Science Laboratory Officer also establishes the detection of presence of blood in Article Nos.2, 3, 4, 7 to 10; Item Nos.2 to 4 and 7 to 10 i.e., one Bed sheet, Piece of cloth, Blood Scrapings, One nighty, one Petticoat, One Bra, One underwear were stained with human blood that too of 'A' blood Group. Apart from voluntary statement of the accused as per Ex.P.21, who is none other than the husband of the deceased, there are sufficient material on record i.e., Ex.P.3 - seizure mahazar for recovery of bricks M.Os.1 and 6 and Mobile phones - M.Os.7 and 8, all containing bloods stains, corroborates with the oral and medical evidence on record and establish the involvement of the accused in the homicidal death of the deceased.

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Taking into consideration the mitigating circumstances that the accused and deceased were married and was having a child and at the instance of the accused, the deceased Rani was allowed to continue her further studies and she had completed her Teachers

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Training Course and the specific case of the complainant as well as the prosecution witnesses that the accused was suspecting the fidelity of the deceased, after she returned back on completion of the Teachers Training Course, because of the reason that he had heard the conversation between of his wife and her paramour and thereby he lost self control and assaulted her with the bricks lying in front of his house, and there was no pre-plan or motive or intention for the accused to commit the murder of his wife-the deceased as well as considering the totality of the facts and circumstances of the case, we are of the considered opinion that conviction of the accused for the offence punishable under Section 304 Part I of IPC would meet the ends of justice.

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The provisions of section 25 of the Evidence Act in consonance with the voluntary statement 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

¶122

¶123

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.

¶124

In other words, where the accused stated that he killed his wife on provocation, 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. Thereby voluntary statement made by him as per Ex.P.21 is supported by other corroborative evidence. Therefore, it is a clear case falling under Section 304 Part-I of IPC and not under Section 302 of IPC. As such, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judges against the accused is liable to be modified.

¶125

On re-appreciation of the entire oral and documentary evidence on record, we answer the point raised in the present criminal appeal partly in the affirmative holding that the impugned judgment of conviction and order of sentence passed by the trial Court calls for interference and the impugned Judgment convicting the appellant/accused for the offence punishable under

¶126

¶127

Section 302 of IPC has to be modified and altered into one under Section 304 Part I of IPC and the appellant/accused shall be sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS with a fine of Rs.25,000/- and in default of payment of fine to undergo Simple Imprisonment for two years, in the facts and circumstances of the present case.

¶128

In view of the above, we pass the following:

¶129

ORDER

¶130

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

¶131

ii) The impugned Judgment of conviction and order of sentence dated 29.01.2018 made in S.C. No.1436/2013 on the file of the Principal City Civil and Sessions Judge, Bengaluru, convicting the appellant - accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine and default sentence is hereby modified.

¶132

iii) The appellant/accused is convicted for the

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¶134

offence punishable under Section 304 Part I of IPC and sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS and to pay a fine of Rs.25,000/- (Rupees Twenty Five thousand only) and in default of payment of fine, to undergo Simple Imprisonment for a period of two years;

¶135

iv) The appellant - accused is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure;

¶136

v) Out of the fine amount of Rs.25,000/(Rupees Forty Five thousand only), a sum of Rs.20,000/- shall be kept in fixed deposit in any Nationalised Bank in the name of minor son of the accused, till he attains majority. The remaining amount of Rs.5,000/(Rupees five thousand only) shall vest with the State towards defraying expenses;

¶137

vi) The learned Sessions Judge shall ensure prompt payment of the compensation amount to the child of the accused, on

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¶139

proper identification;

¶140

vii) Registry is directed to return the Trial Court Records, forthwith.

Ordered accordingly.

Sd/Judge

Sd/Judge

Nsu/-

Senthil v. State of Karnataka

Case brief

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Senthil v. State of Karnataka

Case brief

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