Karnataka High Court
Hitlar Alias Pittu Ruzaria Fernandes vs State Of Karnataka on 25 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:10589-DB
CRL.A No. 100367 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.100367 OF 2023
BETWEEN:
HITLAR @ PITTU RUZARIA FERNANDES
AGE: 56 YEARS, OCC: NILL,
R/O. CENTRAL PRISON, BELGAVI.
...APPELLANT
(BY SMT. CHETANA S. BIRAJ, ADVOCATE)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHARWAD
THROUGH C.P.I. JOIDA
UTTARA KANNADA DISTRICT
Digitally signed
by YASHAVANT
...RESPONDENT
NARAYANKAR
Location: HIGH
COURT OF (BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
KARNATAKA
DHARWAD
BENCH
Date: 2024.07.27
11:37:55 +0530 THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS OF THE CASE PERTAINING TO
S.C.NO.70/2001, ON THE FILE OF THE SESSIONS JUDGE, UTTARA
KANNADA KARWAR AND ALLOW THE APPEAL SETTING ASIDE
JUDGMENT OF CONVICTION DATED 11.10.2004 AND ORDER OF
SENTENCE DATED 12.10.2004 PASSED IN SESSIONS CASE
NO.70/2001 BY SESSIONS JUDGE, U.K. FOR OFFENCE PUNISHABLE
U/S 302, 201 R/W SECTION 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION, THIS
DAY, MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:10589-DB
CRL.A No. 100367 of 2023
JUDGMENT
Accused No.1 in Sessions case No.70/2001 on the file of the Court of the Sessions Judge, Uttara Kannada has challenged the judgment and order dated 11/12.10.2004, whereby he has been convicted along with accused Nos.2 and 3.
2. Learned Sessions Judge vide impugned judgment has convicted accused No.1 for the offences punishable under Sections 302 and 201 R/W 34 of IPC and accused Nos.2 and 3 for the offence punishable under Section 201 R/W 34 of IPC.
3. Initially, accused Nos.1 to 3 preferred Crl.A. No.100193/2019 before this Court, challenging their conviction and sentence passed by the trial Court. During the pendency of the said appeal, accused Nos.2 and 3 died. Further, accused No.1 filed a memo seeking withdrawal of his appeal intending to seek remission from the State for a pre-mature release on good conduct. The Division Bench, vide judgment dated 22.09.2020 placing reliance on the -3- NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 order passed by a co-ordinate bench of this Court in Crl.A.No.100200/2015 disposed on 21.03.2017 dismissed the appeal preferred by accused No.1 as withdrawn. The appeal against accused Nos.2 and 3 stood abated.
4. Accused No.1 has once again approached this Court in Crl.A.No.100367/2023 praying to set aside the judgment and order of conviction and sentence passed against him by the trial court. There is a delay of 6714 days in preferring the appeal. IA No.2/2024 is filed for condoning the said delay.
5. It is submitted by the learned counsel Smt.Chetana S. Biraj, appearing for the appellant that after disposal of Crl.A.No.100193/2019, since the State Government did not consider the request of accused No.1 for pre-mature release on good conduct, he was constrained to file the present appeal as he has been sentenced to life imprisonment. She has filed IA No.1/2024 for recalling the order dated 22.09.2020 passed in Crl.A.No.100193/2019. -4-
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6. We are well aware of the fact that earlier appeal i.e. Crl.A.No.100397/2024 was not considered on merits. Said appeal was dismissed as withdrawn on a request made by accused No.1, who with a hope of getting a pre-mature release, filed the memo seeking withdrawal of the appeal. Considering that the appellant has been sentenced to life imprisonment and he is in custody, we deem it fit to hear the appeal on merits. Hence, in the interest of justice, the delay in preferring the appeal is condoned and IA No.2/2024 is allowed.
7. We have heard the learned counsel Smt.Chetana S. Biraj appearing for appellant/accused No.1 and learned Addl. SPP for the respondent-State and perused the entire evidence and material on record.
8. In brief, case of the prosecution is that on 14.03.2001, at about 4 p.m. at Bharamkod village, accused Nos.1 to 3 with a common intention tress passed into the house of the deceased Nirmala and assaulted on her head by means of a stick and committed her murder. -5-
NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 Thereafter, to cause disappearance of the evidence, they attempted to shift the dead body in a gunny bag to the nearby forest and thereby committed the offence punishable under Section 448, 302 and 201 r/w 34 of IPC.
9. The learned Sessions Judge after appreciating the oral and documentary evidence on record, proceeded to convict accused No.1 for the offence punishable under Section 302 and 201 r/w Section 34 of IPC and accused Nos.2 and 3 for the offence punishable under section 201 r/w 34 of IPC.
10. This appeal is confined to the conviction and sentence passed against accused No.1 for the offence punishable under Sections 302, 201 r/w 34 of IPC.
11. The law was set into motion by the daughter of the deceased examined as PW.1. The complaint is marked as Ex.P1. As per the complaint averments, deceased along with her three daughters i.e. PW1, PW7 and one Vandhana were living at Bharalkod village. Her husband was no -6- NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 more. Two of her daughters were married and living separately. She had about 15 acres of land and in the said land, she was living along with her three daughters in a house. Accused No.2, mother of accused Nos.1 and 3 was selling fish to them and she was thus acquainted with the deceased. Since, she had requested the deceased to give some place to live; deceased had permitted her to put up a hut near her house. Accused No.2 and her daughter accused No.3 were selling fish and her son accused No.1 was doing carpentry work.
12. It is further stated in Ex.P1 that the character of accused No.1 was not good and he used to make advances to the complainant but she was not responding. On 12.03.2001, under the influence of alcohol, he abused them. On 13.03.2001 at about 3 p.m. once again accused No.1 came to their house and tried to molest the complainant by pulling her maxi. At that time, her mother reprimanded him and even the complainant shouted at him. When he started quarreling with them, complainant -7- NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 went and informed the matter to one Khatal-PW.13 and brought him to their house and seeing him, accused No.1 fled away. Thereafter, they dismantled the hut belonging to the accused as he was causing nuisance. Again on 14.03.2001 at about 12 noon when the complainant and her sister were returning to their house for lunch, they saw accused persons quarreling with complainant's mother taking objection for destroying their hut. Thereafter, the complainant and her sister went back to work and when they returned to their house in the evening at 5 p.m., they saw all the three accused carrying a gunny bag and on seeing them, the accused left the gunny bag at the spot and ran away. They saw the dead body of their mother inside the gunny bag with bleeding injuries on the head. Immediately, they informed the matter to the villagers namely, Shankar, Sadananda, Narayana, Khathal and Meenappa who came to their house and noticed blood stains inside the house and a blood stained stick. -8-
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13. PW.1 went to the police station and lodged the complaint. Oral complaint of PW.1 was reduced into writing; a case was registered by PW.17-PSI against accused Nos.1 to 3. He forwarded the FIR-Ex.P18 to the jurisdictional Court and thereafter went to the spot and conducted inquest panchanama; he seized M.O.1-gunny bag and also seized blood stains from the place where the gunny bag with dead body was found as well from inside the house. Further, he seized blood stained stick-M.O.2. Further, at a distance of 200 feet away from the place where the dead body was found, he seized a blood stained shirt-M.O.7 under Ex.P7. Postmortem was conducted. The blood stained clothes of the deceased were also collected. The seized articles were sent for FSL examination. Thereafter, PW.17 handed over the investigation to PW.18, who continued the investigation and arrested the accused persons. On completion of investigation, he filed the charge sheet.
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14. The learned counsel appearing for the appellant would contend that there are no eye witness to the incident. The entire case is based on circumstantial evidence. Prosecution has not proved all the circumstances which it has relied and the circumstance on which the prosecution has relied does not form a complete chain. She contended that there are material discrepancies in the evidence of PWs.1 and 7. The alleged blood stained shirt- M.O.7 was not recovered at the instance of the accused and further, blood stained stick-M.O.2 was also not recovered at his instance. She contended that the incident as narrated by PW.1 implicating the accused is doubtful and according to her she along with her sister-PW.7 was going to manganese work at a place which is situated one kilometer away from the house. Both PWs.1 and 7 have admitted that they leave their house at 6 a.m. and return home at 5.30 p.m. in the evening. Therefore, the evidence of the said witnesses that they have seen the accused persons carrying the dead body of their mother in a gunny bag at 5 p.m. cannot be believed. She further contended
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 that according to PW.1, when the accused quarreled with them on 13.03.2001, she informed the matter to one Khatala i.e. PW.13. Whereas, on the next day when they saw accused quarreling with their mother, she has not complained or informed the same to anyone. Hence, contended that the presence of PW.1 and PW.7 on 14.03.2001 at 12:00 noon is doubtful. She contended that the claim of PWs.1 and 7 that they returned to the house on 14.03.2001 at 12 noon and saw the accused persons quarreling with her mother and at 5:00 pm saw them carrying the dead body of their mother in a gunny bag cannot be believed.
15. The learned counsel for the appellant has further contended that there is variation in the timing mentioned by PW.1 and PW.7. PW.1 says, accused came to the house and tried to misbehave with her at about 3:00pm whereas PW.7 has stated that he came at 11:00am. Further, PWs.1 and 7 being the daughters of the deceased did not stay back at home when they saw the accused quarreling with
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 their mother, on the other hand, they have gone back to work without informing the matter to anyone. Hence, she contended that the conduct of both the witnesses is unnatural and therefore, their evidence cannot be believed.
16. The learned counsel has further contended that the trial Court has not properly appreciated the above aspects and with an erroneous consideration and appreciation of the evidence adduced by the prosecution has convicted the appellant. She therefore sought to allow the appeal and acquit the accused.
17. Per contra, learned Additional State Public Prosecutor has contended that in Ex.P-1 itself, PW.1 has clearly narrated the entire incident including the quarrel which took place a day prior to the date of incident. He contended that appellant/accused No.1 was in the habit of teasing PW.1 and on the previous day, he tried to molest her by pulling her maxi and therefore, the hut where the accused were staying was demolished by the deceased, PWs.1 and 7. Hence, the accused were nursing an ill-will
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 against them. He contended that with that motive and with an intention to takeaway her life, accused persons came to the house of the deceased when no one was present and committed the murder by assaulting on her head with a wooden stick and then tried to shift the dead body in a gunny bag to the nearby forest and in the meantime, both the daughters-PWs.1 and 7 saw them. On seeing them, they left the gunny bag and fled away.
18. The learned Additional State Public Prosecutor contended that both PWs.1 and 7 are natural witnesses since they had returned to their house after the work and they have immediately informed the matter to the villagers namely PWs.8 to 12. He contended that the said witnesses have supported the case of prosecution and corroborated the version of PWs.1 and 7. He further contended that though the wooden stick and shirt were not seized at the instance of the accused, but both the articles were stained with blood which matched the blood group found on the clothes of the deceased. He contended that PW.1 has
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 identified the shirt as the shirt of the accused, since accused No.1 was known to her, who was living nearby. He would further contend that minor discrepancy if any in the evidence of PWs.1 and 7 will not erode the evidence of PWs.1 and 7. He therefore contended that the trial court has properly appreciated the evidence on record and rightly convicted the appellant for the charged offences.
19. We have perused the evidence of PWs.1 and 7, the material witnesses in this case. PW.1 has corroborated the averments in the complaint-Ex.P-1. She has narrated the incident which occurred a day prior to the murder of her mother, wherein she has stated that the accused came to her house at about 3:00pm and misbehaved wither by pulling her maxi, for which her mother scolded him and since accused No.1 started quarreling, she went and called one Khatal(PW.13) and brought him to the house. On seeing him accused No.1 ran away. Thereafter herself and her mother demolished the hut belonging to the accused, so that they will not come again and trouble them. On
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 14.03.2001, she went for manganese work with her sister at 6:00am and at that time her mother was alone in her house. When they returned for lunch at 12:00 noon, they saw all the accused quarrelling with her mother for demolishing their hut. Thereafter, they went back to their work. When they returned to their house after the work at 5:00pm they saw the accused persons carrying a gunny bag and on seeing them, they left the gunny bag and ran away. When they opened the gunny bag, saw the face of their mother. Her mother was dead and they also saw blood stains inside their house and also found a blood stained stick.
20. The said part of the evidence of PW.1 has remained intact and demolished by the defence in the cross- examination. PW.1 has stated that the place of her work is about 1½ kilometer from her house and she used to work at the said place from 6:00am to 1:00pm and she require 30 to 35 minutes to cover the distance. She has stated
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 that in the afternoon she would go for work at 2:00 or 3:00pm and the work usually gets over by 5:00pm.
21. Relying on the evidence of PW.7, another daughter of the deceased who has corroborated the evidence of PW.1 with regard to the two incidents which took place on 13.03.2001 and 14.03.2001, the counsel for the appellant has tried to contend that insofar as the incident which took place on 13.03.2001, wherein accused No.1 is alleged to have pulled the maxi and tried to outrage the modesty of PW.1 is concerned, there is discrepancy in mentioning the timing. She contended that the said incident took place at 3:00pm according to PW.1, whereas PW.7 has stated that the said incident took place at 11:00am. We do find that there is some discrepancy in mentioning the time insofar as the incident which took place on 13.03.2001. However, both the said witnesses have categorically stated that the said incident has occurred and they went and informed the matter to one Khatal and brought him to the house and on seeing him, the accused ran away. Both PWs.1 and 7 have
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 stated that after the said incident, they pulled down the hut in which the accused were staying. The said evidence of PWs.1 and 7 has not been disputed or denied in the cross-examination by the defence. Hence, from the evidence of PWs.1 and 7, it is clear that a day prior to the commission of the murder, accused No.1 had tried to misbehave with PW.1, for which PW.1 as well as her deceased mother had objected and then complained the same to one Khatal. After the said incident, they demolished the hut of the accused. Hence, the prosecution has proved the motive for the accused to commit the offence.
22. The defence taken by the accused is that the house of the deceased had steps and therefore, the possibility of deceased falling down while climbing the steps and sustaining injuries on her head is not ruled out. Both PWs.1 and 7 have denied that their mother died due to fall. It is pertinent to mention that the blood stains were found, as per the spot mahazar, inside the house and no blood stains
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 were noticed on the steps of the house. The learned counsel for the appellant contends that after falling from the steps, the deceased dashed against the barrel and sustained injuries.
23. We have perused the cross-examination of the doctor who conducted postmortem examination. He has denied that said injuries could be caused by dashing against the barrel.
24. We have noticed the external injures sustained by the deceased as mentioned in the postmortem report which are as under:
1. Rt ear lobe is cut at its middle obliquely extending from above down wards, cut into two pieces bleeding present.
2. Lacerated wound over the back of Rt ear at mastoid region measuring 3X2 cms.
3. Abrassion over the lP maxillary are measuring 5X3 cms.
4. Abrasion over the Lt temporal region measuring 3X2 cms.
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023
5. Abrasion over the Rt sided buttock measuring 22X12 cms. Both dermis and epidermis is abrased.
6. Abrasion over the back of Rt leg measuring 5X3 cms at calf region.
7. Another abrasion over the Rt scapula measuring 10X8 cms
8. contused swelling of Rt eye.
Further, deceased has sustained
1. Fracture of Rt patella
2. Fracture of mandible at its neck of Rt side and at its middle of chin level.
Mandibular bone is cut into three pieces.
25. Firstly, the deceased would not have sustained so many injuries including fractures if she had fallen from the steps and dashed against the barrel. Secondly, the dead body was not found anywhere near the steps or barrel on the other hand, the dead body was inside a gunny bag, which was about 100 feet away from the house. Both PWs.1 and 7 have categorically stated that the accused were trying to dispose of the dead body by shifting it in a gunny bag to a nearby forest and on seeing them, they ran
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 away. Hence, after committing the murder, the accused were trying to cause disappearance of the evidence by dumping the dead body in a gunny bag and attempting to shift it to the nearby forest. However, in the meantime, on seeing both PWs.1 and 7, they have left the gunny bag at the spot, which was 100 feet away from the house and fled away.
26. After conducting the inquest and spot mahazar, the police while searching near the place of dead body, found a blood stained shirt M.O.7 which was seized under Ex.P-7. The learned counsel for the appellant has pointed out from the cross-examination of PW.1 that according to her after the blood stained shirt was found, she took it to her house. Hence, it is contended that the claim of the prosecution that the police have seized the said shirt from the said spot under Ex.P-7 cannot be believed.
27. In this case, the prosecution is not claiming that the blood stained shirt was recovered at the instance of the accused. PW.1 has sated that when they went in search of
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 the accused along with the villagers, noticed the blood stained shirt in the forest and she brought it back. Whereas, PW.17-PSI has stated that after conducting the inquest mahazar and the spot mahazar, he conducted a search with panchas and at a distance of 200 feet from the dead body, he found one blood stained shirt near Salakki tree. If the evidence of PW.1 is to be believed that even before lodging the complaint she found the blood stained shirt and took it to her house, then the evidence of PW.17 that the said blood stained shirt was seized at the spot which was about 200 feet away from the place where the dead body was found, cannot be believed. However, the fact remains that the blood stained shirt was not recovered at the instance of the accused and therefore the said discrepancy is not fatal to he prosecution.
28. Accused No.1 is a known person to PW.1. In fact she has identified the said shirt-M.O.7 as belonging to accused No.1. As per FSL report, the blood stains found on the wooden stick-M.O.2, shirt-M.O.7 and the clothes of the
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 deceased were all stained with human blood of 'A' group origin.
29. Postmortem report-Ex.P-17 and the evidence of the Doctor-PW-14 clearly establishes that the deceased died a homicidal death. PWs.1 and 7 have clearly deposed about the incident which took place a day prior to the commission of murder and also spoken about accused quarrelling with their mother in the afternoon of the date of incident. Both the said witnesses have stated that they would come back to the house for lunch and go back to their work and return to their house at 5:00pm. Their evidence that they saw the accused carrying the gunny bag in which the dead body was found, is believable and there is no reason for discarding the said evidence. The said circumstance is a very strong circumstance against the accused persons to hold that the deceased was murdered inside the house by means of M.O.2-Wooden stick and thereafter, the accused tried to cause disappearance of the evidence by shifting the dead body to a nearby forest.
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30. We also find corroboration to the evidence of PWs.1 and 7 from the evidence of PWs.8 to 12. All the said witnesses have stated that PWs.1 and 7 informed them about the incident at 5:30pm itself and on coming to know about the same, they all came near the spot where the dead body was found. Their evidence that PWs.1 and 7 informed about the incident soon thereafter, assumes importance.
31. It is relevant to extract paras 49 and 50 of the judgment of the Hon'ble Apex Court in Balu Sudam Khalde and another v. State of Maharashtra (AIR 2023 Supreme Court 1736) "49. The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence.
50. Section 6 and 7 resply of the Act 1872 in the facts and circumstances of the case, in so far as, the admissibility
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 of a statement of the PW 3 Nasir Rajjak Khan coming to know about incident, immediately from the PW 1 Asgar Shaikh that Abbas Baig had been seriously assaulted and that Asgar Sheikh had also suffered injuries and admitted by the PW 1 Asgar Shaikh in his evidence would be attracted with all its rigour."
32. Even in the present case, immediately on seeing the accused persons carrying the gunny bag and running away after seeing PWs.1 and 7 and noticing the dead body of their mother in the gunny bag, PWs.1 and 7 went and informed the matter to PWs.8 to 12. The said witnesses have stated that at about 5:30pm itself, both PWs.1 and 7 came and informed them and they spontaneously rushed to the spot and saw a gunny bag in which the dead body of the deceased was found. The said evidence of PWs.8 to 12 is so connected with the fact in issue as to form part of the same transaction and relevant by itself.
33. The contention of the learned counsel for the appellant that if PWs.1 and 7 have actually seen accused No.1 quarrelling with the deceased on the date of the incident at 12:00 noon they would have complained the
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 same to the villagers as they have done on the previous day and therefore they were not present and seen the accused quarreling with the deceased etc, cannot be accepted.
34. Insofar as the incident which took place on the previous day is concerned, accused No.1 pulled the maxi of PW.1 and tried to misbehave with her and therefore they went and complained to one Khatal-(PW.13). However, as per PWs.1 and 7, on the date of incident the accused were quarrelling with their mother for dismantling their hut. However, since they had to return to their work, after lunch they have gone back for work. Both the witnesses have stated that since the quarrel was routine, they did not complain about the same to the villagers. Probably, both PWs.1 and 7 did not expect that the matter would have become serious and accused would have ventured to commit the murder of their mother, otherwise they would have certainly informed the matter to the villagers.
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35. Having re-appreciated the entire evidence on record, we find that the prosecution has established the guilt of the appellant/accused No.1 for the charges leveled against him under Section 302 of IPC and 201 read with Section 34 of IPC.
36. We have noticed that though charge was also framed under Section 448 of IPC and the trial Court formed point for consideration and answered the said point in the affirmative, did not convict or pass any sentence for the said offence. Since the accused has been sentenced to undergo life imprisonment for a major offence, even if he was convicted and sentenced for the offence punishable under Section 448 of IPC, the sentence imposed for the said offence would merge with the life imprisonment.
37. For the foregoing reasons, we pass the following ORDER Appeal is dismissed. Consequently, I.A.1/2024 filed in Criminal Appeal 100193/2019 is dismissed.
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NC: 2024:KHC-D:10589-DB CRL.A No. 100367 of 2023 The trial court has ordered that both the sentences imposed against the accused shall run concurrently and also given the benefit of set off under Section 428 of Cr.P.C. The same is not disturbed.
Sd/-
JUDGE Sd/-
JUDGE HMB-upto para-13 KMV- para 14 to end List No.: 1 Sl No.: 23