Deenadayal @ Deena @ Swamy vs State By Channammanakere ...
2022 Latest Caselaw 3110 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

             THE HON'BLE MRS. JUSTICE M.G. UMA

              CRIMINAL APPEAL NO.263/2018


BETWEEN:

DEENADAYAL @ DEENA @ SWAMY,
S/O LATE NARAYANASWAMY,
AGED 51 YEARS, NO.25/B,
6TH CROSS,
RAMACHANDRAPURA,
AGS LAYOUT,
BANGALORE - 560 085
(NOW IN JUDICIAL CUSTODY,
PARAPPANA AGRAHARA,
BENGALURU - 560 100)
                                                 ... APPELLANT

(BY SRI. G. JAIRAJ, ADVOCATE)


AND:

STATE BY CHANNAMMANAKERE
ACHUKATTU POLICE STATION,
BANGALORE CITY,
REPRESENTED BY ITS SPP,
HIGH COURT BUILDING,
HIGH COURT,
BANGALORE - 560 001
                                             ... RESPONDENT

(BY SRI. K. NAGESHWARAPPA, HCGP FOR STATE)
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     THIS CRIMINAL APPEAL        IS FILED UNDER SECTION 374(2)

CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED PRAYING

THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE

ORDER DATED 09.01.2018 AND SENTENCE DATED 10.01.2018

PASSED BY THE LXIX ADDITIONAL CITY CIVIL AND SESSIONS

JUDGE, BENGALURU IN        S.C.NO.74/2013 -       CONVICTING THE

APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER

SECTION 302 OF IPC.



     THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO

RIGOROUS IMPRISONMENT FOR LIFE AND TO PAY FINE OF

RS.10,000/-   IN DEFAULT    OF    PAYMENT    OF     FINE   HE SHALL

UNDERGO RIGOROUS IMPRISONMENT FOR 3 MONTHS FOR THE

OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.



     AND      THE   APPELLANT/ACCUSED       PRAYS     THAT   HE   BE

ACQUITTED.



     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING

THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
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                              JUDGMENT

The appellant-accused, who is the friend of the

deceased, has filed the criminal appeal against the impugned

judgment of conviction dated 09.01.2018 and order of

sentence dated 10.01.2018 made in S.C.No.74/2013 on the

file of the learned LXIX Additional City Civil and Sessions

Judge, Bengaluru (hereinafter referred to as 'trial Court'),

convicting him for the offence punishable under Section 302

of IPC and sentencing to undergo imprisonment for life and to

pay fine of Rs.10,000/- and in default to pay fine, to undergo

rigorous imprisonment for further period of three months.

2. On the basis of Ex.P7-the statement of the

deceased dated 21.08.2012, the jurisdictional police

registered Cr.No.275/2012 for the offence punishable under

Section 307 of IPC. After the death of the deceased on

18.09.2012, his wife lodged the first information-Ex.P10 on

18.09.2012 and the case was registered in the same

Cr.No.275/2012 under the provisions of Section 302 of IPC.

3. It is the case of the prosecution that on

21.08.2012, at about 5.00-5.30 p.m., near V.B.B. Bakery

Auto Stand, on Ittamadu main road, in front of Sridevi

Condiments, the accused-Deena @ Swamy picked up quarrel

with the deceased-S.Keshava stating that Keshava has

damaged indicator of his autorickshaw and then he pushed

Keshava and when he fell down on the ground, poured the

petrol which was brought in a plastic bottle, covered in a

plastic cover and kept in his auto, and set fire. Thereafter he

fled from the spot in his autorickshaw. 29 days after the

incident, deceased-Keshava succumbed to the injuries in the

hospital. The jurisdictional police firstly on the basis of Ex.P7-

statement of the deceased, registered the case under the

provisions of Section 307 of IPC and subsequently based on

the dying declaration of the deceased and after his death, the

first information by PW.5-wife of the deceased, registered the

case under the provisions of Section 302 of IPC. After

investigation, the jurisdictional police filed the charge sheet

against the accused for the offence punishable under Section

302 of IPC.

4. After committal of the matter to the learned

Sessions Judge, he took cognizance of the offence, secured

the presence of the accused, framed charges and read over to

the accused in the language known to him. The accused

pleaded not guilty for the charges leveled against him for the

above said offence and claimed to be tried.

5. In order to prove the case of the prosecution, the

prosecution examined in all 21 witnesses as PWs.1 to 21 and

got marked Exs.P1 to P40 and material objects MO.1 and

MO.2. After completion of the evidence of prosecution

witnesses, the statement of the accused as contemplated

under Section 313 of Cr.P.C., was recorded, where accused

denied all the incriminating materials adduced against him by

the prosecution witnesses but has not chosen to lead any

evidence in support of his defense. However, during cross-

examination of prosecution witnesses, the defense counsel

has got marked two documents on behalf of the accused i.e.,

Ex.D1 - Statement of PW.9 and Ex.D2 - MLC register of the

injured-Keshava issued by PW.11.

6. Based on the aforesaid pleadings, the learned

Sessions Judge framed point for consideration. Considering

both the oral and documentary evidence on record, the

learned Sessions Judge answered the points in affirmative,

holding that the prosecution proved beyond reasonable doubt

that on 21.08.2012, at about 5.00 p.m., near V.B.B. Bakery

Auto Stand, on Ittamadu main road, in front of Sridevi

Condiments, the accused-Deena @ Swamy picked up quarrel

with the deceased-Keshava stating that Keshava has

damaged indicator of his autorickshaw and then he pushed

Keshava and when he fell down on the ground, he poured the

petrol which was brought in a plastic bottle, covered in a

plastic cover and kept in his auto and set ablaze. Thereby

committed murder by causing homicidal death of the

deceased punishable under Section 302 of IPC. Accordingly,

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.

7. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the trial court, the

accused is before this Court.

8. We have heard the learned counsel for the

parties.

9. Sri. G.Jairaj, learned counsel for the appellant-

accused contended with vehemence that 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 and sentencing to undergo

imprisonment for life and to pay fine of Rs.10,000/- and in

default to pay fine, to undergo rigorous imprisonment for

further period of three months, is erroneous and contrary to

the materials placed on record, cannot be sustained and liable

to be set aside. It is further contended that absolutely there

was no corroboration in the evidence of prosecution witnesses

to prove the involvement of the accused in the homicidal

death of the deceased. Exs.D1 and D2 clearly indicate that

the prosecution has created the story for the purpose of false

implication of the accused. Further, it is contended that the

trial Court has not assessed the contents of the dying

declaration and the evidence of prosecution witnesses, who

differed their stand contrary to the contents of dying

declaration and their original statements.

10. He would further contend that the trial Court has

not considered the evidence of PW.5, the wife of the

deceased, who stated in examination chief that she was

informed by PW-4-Manjunatha that her husband met with an

accident, immediately she went to the hospital where her

husband got admitted for treatment but given a goby during

cross-examination. In para-61 of the impugned judgment, it

is observed that the recovery of MO.1 and MO.2 i.e., green

colour bottle and plastic cover is not denied by the accused

but he has denied his involvement in the incident. He would

further contend that Ex.P7-statement of the deceased and

Ex.P10-complaint made by PW.5 and the evidence of PW.1

and PW.9 clearly depicts that the unfortunate incident

occurred on 21.08.2012 was due to sudden provocation and

quarrel between the accused and deceased, which resulted in

unfortunate incident and it was not with any intention.

Therefore, the present case falls under Section 304 Part-I of

IPC and not under Section 302 of IPC. He would further

contend that admittedly, the incident occurred on 21.08.2012

and the deceased succumbed to the injuries after 29 days i.e.,

on 18.09.2012. Thereby, the entire materials on record clearly

depicts that it is the case of sudden provocation. Therefore,

the learned Sessions Judge is not justified in convicting the

accused for the offence punishable under Section 302 of IPC.

He sought to allow the criminal appeal.

11. Per contra, Sri. K.Nageshwarappa, learned High

Court Government Pleader while justifying the impugned

judgment of conviction and order of sentence passed by the

trial Court, contended that the statement of the deceased-

Ex.P7, subsequently has become dying declaration and

Ex.P10-complaint made by PW.5-wife of the deceased, clearly

depicts the involvement of the accused in the homicidal death

of the deceased. He would further contend that PW.1 who is

the eye-witness to the incident is also a friend of the accused

and deceased and has stated on oath about the quarrel

occurred between the accused and deceased on the

unfortunate day and also regarding pouring of kerosene.

PW.9, the Sridevi condiments shop owner and also

eye-witness to the incident has supported the case of the

prosecution. Thereby, the prosecution has proved beyond

reasonable doubt the involvement of the accused in the

homicidal death of the deceased. PW.14 who recorded the

statement of the deceased in the presence of PW.12 and

PW.15 and the same is certified by the Doctor. When the

deceased made a statement before the Doctor and Police,

there is no reason as to why such dying declaration is to be

ignored. Therefore, the trial Court is justified in convicting the

accused for the offence punishable under Section 302 of IPC.

He would further contend that the trial Court considering the

entire materials on record in a proper manner, rightly

convicted the accused and he has not made out any ground

for interference by this Court under the provisions of Section

374(2) of Cr.P.C. Therefore, he sought to dismiss the criminal

appeal.

12. In view of the aforesaid rival contentions urged by

learned counsel for the parties, the only point that would arise

for our consideration in this appeal is:

"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting the 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.10,000/- and whether the accused has made out a case to modify the same into the provisions of Section 304 Part-I of IPC, in the facts and circumstances of the case?"

13. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire materials including original records

carefully.

14. This Court being the Appellate Court, in order to

re-appreciate the entire materials on record, it is relevant to

consider the evidence of the prosecution witnesses and the

documents relied upon.

(i) PW.1 - S.Mohan, who is the friend of the accused and deceased and also an eye-

witness to the incident, has deposed on oath that he was present when appellant fought with the deceased and poured petrol and set fire to deceased for the reason that the deceased has broken the indicator of his autorickshaw. This witness has identified inquest notice Ex.P1, inquest mahazar Ex.P2 and identified the photos of the deceased at Ex.P3 to Ex.P6, MO.1-

green bottle and MO.2- plastic cover. He supported the case of the prosecution.

        (ii)    PW.2 - Shivalingaiah, the father of the
                deceased     has   deposed       that   deceased-

Keshava narrated the incident to him while they were on the way to Victoria Hospital. After deceased underwent 3 days treatment in Victoria Hospital, he was shifted to POPULAR Hospital, wherein he took 6 days treatment, then he was again taken to PULSE Hospital where the deceased died on

18/09/2012 after taking treatment for 20 days in the said hospital. Witness further deposed that he received the acknowledgment as per Ex.P8. He supported the case of the prosecution.

(iii) PW.3 - Mayamma, the mother of the deceased has deposed on par with PW.2, her husband. Thereby, supported the case of the prosecution.

(iv) PW.4 - Manjunatha, brother-in-law of the deceased has deposed that he was in the ambulance along with his father-in-law, when the deceased narrated the incident while they were on the way to Victoria Hospital. He has identified MO.1 and witness to Ex.P9. Thereby, supported the case of the prosecution.

(v) PW.5 - Veena, the wife of the deceased turned hostile.

(vi) PW.6 - M.L.Chandrashekar is the witness to seizure and spot mahazar-Ex.P9 along with PW.4. He supported the case of the prosecution.

(vii) PW.7 - Raju, who is the relative of the deceased was present during the inquest

proceedings. He supported the case of the prosecution.

(viii) PW.8 - Dr. Murulilingam has deposed that he treated deceased from 23.08.2012 to 29.08.2012 after he was brought from Victoria hospital and observed that the deceased was not able to breath properly and thought it was due to A.R.D.S. Then referred for further treatment in ICU. For the above period, he gave discharge Summary as per Ex.P14. He identified police requisition at Ex.P12 and case sheet of injured Keshava as per Ex.P13. He supported the case of the prosecution.

(ix) PW.9 - Ravindra, another eye-witness to the incident, has deposed that when he was in his shop (Sridevi Condiments), he saw the incident and he had provided jugs of water to put off the fire and also stated that appellant had ran away from the scene of occurrence by the time he came again with another jug of water. He supported the case of the prosecution.

(x) PW.10 - Prashanth is the witness to the seizure of autorickshaw under Ex.P16 and spot mahazar of petrol bunk where the accused purchased the petrol as per

Ex.P17. He supported the case of the prosecution.

(xi) PW.11 - Dr. Priyadarshini.N, who got admitted the deceased for treatment at Victoria Hospital, burns ward and sent MLC Memo of the injured Keshava as per Ex.P15 to the police. She supported the case of the prosecution.

(xii) PW.12 - Dr. Ramesh has deposed that he received requisition from the police for recording the statement of deceased and he certified that the deceased was fit to make a statement and he has signed Ex.P7 (1a) and (1b). He supported the case of the prosecution.

(xiii) PW.13 - Prakash.B.Navi, the police constable deposed that he was appointed to look after the dead body of the deceased, which was in the KIMS hospital. Witness further stated that on instructions of the concerned police inspector, after completion of the post mortem examination of the dead body, the same was handed over to the father of the deceased and for receiving the dead body, acknowledgment was also received and the same was produced before the police inspector. He has identified

Ex.P18-acknowledgement issued by FSL for receiving the articles for chemical examination and Ex.P19-report given by him for handing over the articles to the FSL. He supported the case of the prosecution.

(xiv) PW.14 - Dollaiah, the head constable has deposed that he has recorded the statement of the deceased as per Ex.P7 on dictation of PW.15. He supported the case of the prosecution.

(xv) PW.15 - H.A.Vijayendra, ASI, has deposed that he gave requisition to PW.12 and after obtaining permission, recorded the statement of deceased as per Ex.P7 and registered FIR at Ex.P20 for the offence punishable under Section 307 of IPC in Cr.No.275/2012 and prepared the sketch as per Ex.P21, requested the Medical Officer of the Victoria hospital to certify and produce the case sheet of the injured-keshava, through a letter which is marked as Ex.P22. He supported the case of the prosecution.

(xvi) PW.16 - Dr. Suresh.V has deposed that he treated the deceased from 29.08.2012 to 18.09.2012 and issued Ex.P25 - case sheet of the deceased. Further in wound

certificate he has opined that the injuries sustained by the deceased were noticed as infected first and second degree burns over left side of face, neck, left upper limb, front of chest, front of abdomen and both lower limbs (45% extent), the wound certificate is marked at Ex.P26. He supported the case of the prosecution.

(xvii) PW.17 - Dr. Naveen Kumar.T, who conducted the post mortem examination of the deceased and issued the post mortem report as per Ex.P31 on the requisition made by the concerned police at Ex.P30 and has opined that the death was due to SEPTICAEMIC SHOCK consequent upon BURNS sustained (Antemortem burns - 45-

      50%).      He    supported       the    case    of    the
      prosecution.

(xviii)    PW.18 - Dr. Peddi Manjunath, has
      given      treatment        to     deceased          from

21.08.2012 to 23.08.2012 and the parents of the deceased got the deceased discharged from the hospital against medical advice (DAMA) as per Ex.P24. He supported the case of the prosecution.

(xix) PW.19 - Dr. Vani.N is the Scientific Officer, FSL Madiwala, Bengaluru, she examined the

green colour plastic bottle - MO.1 and petrol/kerosene was detected as per the report-Ex.P32. She supported the case of the prosecution.

(xx) PW.20 - S.K.Malthish, Investigating Officer, who speaks about the investigation and arrest of the appellant on 27.09.2012 and filing of the charge sheet for the offence punishable under Section 302 of IPC. He supported the case of the prosecution.

(xxi) PW.21 - Aravind who is the owner of the autorickshaw, which was given to the accused. He has identified the photo of the autorickshaw as per Ex.P40. He supported the case of the prosecution.

Based on the aforesaid oral and documentary evidence

on record, the learned Sessions Judge has proceeded to

convict and sentence the accused for the offence punishable

under Section 302 of IPC.

15. Ex.P7 - the statement was given by the deceased

when he was in the Victoria hospital. The same was certified

by PW.12-Doctor that he is medically fit to make a statement.

Then PW.14 recorded the declaration of the deceased on

dictation given by PW.15 in the presence of PW.12-Doctor. It

is also not in dispute that PW.14 recorded the declaration on

dictation made by PW.15. The statement given by the

deceased as per Ex.P7, subsequently after his death, has

become dying declaration, where he has clearly stated that

himself and accused are the drivers of the autorickshaw and

on 21.08.2012 at about 5.00 - 5.30 p.m., near V.B.B. Bakery

auto stand he was waiting for passengers and the accused

was also there with his auto, at that time, the accused started

abusing him saying that somebody has damaged the indicator

of his autorickshaw. Therefore, the deceased replied to the

accused why you are abusing and blaming me, go and ask

those who have damaged the indicator and tried to go to

home from there. At that time, the accused again started

abusing the deceased and assaulted him. During the assault,

when the accused pushed the deceased, he fell on the road

and at that time, the accused poured petrol/kerosene on the

deceased. Thereby, the deceased sustained grievous injuries.

Ex.P7-the statement of the deceased clearly indicates that the

quarrel between the accused and deceased was due to sudden

provocation.

16. PW.1 - S.Mohan, who is none other than the

friend of the accused and deceased has stated on oath that

himself, accused and deceased are the drivers of the

autorickshaw. On the date of the unfortunate incident

occurred on 21.08.2012 at about 5.00 - 5.30 p.m., when he

was having tea in the Sridevi Condiments, at that time, he

has seen that both the accused and deceased were quarreling

near the said Condiments, by seeing that he thought that it is

a usual fight between them as earlier to the incident also they

both would quarrel frequently and used to continue their

friendship. Therefore, he did not intervene in the said quarrel.

Further, he noticed that the accused pushed the deceased on

the ground and when he fell down, he poured the

petrol/kerosene on him and set fire. After that, he ran away

from the spot. Thereafter, PW.1 went near the deceased and

shifted him to the hospital. PW.9 who is the owner of Sridevi

Condiments also stated on oath that at about 5.00 - 5.30

p.m., both accused and deceased were standing near

Condiment's shop and there was quarrel between them.

Thereby, the accused poured the kerosene on the deceased.

He further stated that by seeing fire on the deceased he

poured a jug of water on him. The evidence of PWs.1 and 9

and the dying declaration of the deceased clearly depicts that

it was a sudden quarrel between the accused and deceased

and the accused had no intention to kill the deceased. As

spoken to by PW.1, the accused, deceased and himself are all

the drivers of the autorickshaw and friends too and the

unfortunate incident occurred due to sudden provocation. The

said material evidence is not considered by the learned

Sessions Judge while convicting the accused under Section

302 of IPC.

17. PWs.2 and 3 are none other than the father and

mother of the deceased who have deposed about the incident

and the death of the deceased occurred on 18.09.2012 and

they are not the eye-witnesses to the incident though

supported the case of the prosecution. PW.17 - Dr. Naveen

Kumar on the requisition made by the jurisdictional police,

conducted post mortem examination of the deceased from

2.05 - 3.30 p.m., on 18.09.2012 and issued Ex.P31 - post

mortem report and specifically stated the injuries as first and

second degree (Dermo-epidermal) burns infected with sloughs

and foul smelling discharge present over left side of the face

including left side of the neck, shoulder and left upper limb,

front of the chest and abdomen and front of both lower limbs,

excluding soles of the feet, granulation tissue present within

the burnt area and has opined that the death was due to

SEPTICAEMIC SHOCK consequent upon BURNS sustained. It

is also relevant to note at this stage that Ex.P24-case sheet of

injured-Keshava issued by the Victoria hospital clearly depicts

that patient gives history of alcohol binge at around

1:30 p.m., after which he got into an argument with Dheena

while drinking - following which they departed uneventfully.

18. The material on record clearly depicts that PW.1,

deceased and the accused are autorickshaw drivers and are

also friends. As stated by PW.1 that the accused and

deceased used to quarrel frequently and again used to be

friendly. The entire material on record clearly depicts that

there was no enmity between the accused and deceased. The

motive for murder was only a sudden provocation, when the

autorickshaw indicator of the accused was damaged by

somebody, the accused started scolding in a filthy language.

At that time, the deceased replied to the accused saying that

go and ask those who have damaged your autorickshaw.

Thereby, there was a sudden quarrel between the accused

and deceased as stated in Ex.P7 and as also spoken to by

PWs.1 and 9. The said material evidence clearly depicts that

it is a case which falls clearly under Exception (1) of Section

300 of the Indian Penal Code, which reads thus:

"Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self- control 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."

Hence, the offence clearly falls under the provisions of

Section 304 Part-I of the Indian Penal Code and not under

Section 302 of the Indian Penal Code.

19. By careful reading of the above provision, which

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 the death of the person who

gave the provocation or causes the death of any other person

by mistake or accident. Admittedly, in the present case, the

accused and deceased are common friends of PW.1 and also

by profession they are all autorickshaw drivers and a sudden

quarrel took place between the accused and deceased only on

the ground that somebody damaged the indicator of the

autorickshaw of the accused, in that regard he started

abusing in a filthy language, at that time, the deceased

intervened and opposed abusing. Due to the provocation, the

accused lost self-control, poured petrol/kerosene on

deceased, which was kept in his auto and caused the death of

the deceased. Therefore, it is a clear case which falls under

Section 304 Part-I of IPC and not under Section 302 of IPC.

The said material facts have not been considered by the

learned Sessions Judge.

20. The material on record also indicates that the

incident occurred on 21.08.2012 is due to sudden provocation

and the deceased was shifted to the hospital by PW.1, who is

none other than the common friend of accused and deceased

and deceased succumbed to the injuries in the hospital after

29 days on 18.09.2012 though the unfortunate incident

occurred due to sudden provocation between the parties.

PW.17-Doctor has issued Ex.P31-Post Mortem Report, where

he has opined that the death was due to SEPTICAEMIC

SHOCK consequent upon BURNS sustained (Antemortem

burns - 45-50%). The medical evidence clearly depicts that

the death was only after 29 days in the hospital due to

SEPTICAEMIC SHOCK consequent upon BURNS sustained.

Thereby, a trivial quarrel with regard to the damage caused to

the autorickshaw indicator, ended in an unfortunate homicidal

death of the deceased on account of the accused pouring

petrol and setting fire on the deceased by losing his self-

control. Therefore, this amounts to an offence which falls

under Section 304 Part-I of IPC and not Section 302 of IPC.

21. On a careful perusal of the entire material on

record and due to the peculiar facts and circumstances of the

present case, we are of the opinion that it is not a case to

award extreme punishment of imprisonment of life, as the

offence under Section 302 of IPC is not attracted.

22. For the reasons stated above, the accused-

appellant has made out a case to interfere with the impugned

judgment and order of sentence. Hence, the point raised in

the present appeal is answered partly in the affirmative

holding that the appellant-accused has made out a case to

interfere with the impugned judgment of conviction and order

of sentence under Section 302 of IPC and to modify into that

of Section 304 Part-I of IPC and accused is liable to be

convicted for a period of TEN years under the provisions of

Section 304 Part-I of IPC and to pay a fine of Rs.50,000/- and

in default to pay fine, the accused shall undergo simple

imprisonment for further period of two years.

23. For the reasons stated above, we pass the

following:

ORDER

(i) The Criminal Appeal is allowed in part.

(ii) The impugned judgment of conviction dated 09.01.2018 and order of sentence dated 10.01.2018 made in S.C.No.74/2013 on the file of the learned LXIX Additional City Civil and Sessions Judge, Bengaluru, insofar as convicting and sentencing the accused for offence punishable under Section 302 of Indian Penal Code is hereby modified and altered into one under Section 304 Part-I of the Indian Penal Code.

(iii) The accused is convicted under section 304 Part-I of IPC and sentenced to undergo imprisonment for a period of 10 (TEN) years and

to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of two years.

(iv) The accused is entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure.

(v) In exercise of the powers under Section 357(3) of the Code of Criminal Procedure, out of the fine of Rs.50,000/- (Rupees Fifty Thousand only) payable by accused, Rs.25,000/- each shall be paid to PW.2-Father and PW.3-Mother of the deceased.

Sd/-

JUDGE

Sd/-

JUDGE

SMJ