State Of Karnataka vs Shri.Irappa Parappa Mindolli
2022 Latest Caselaw 11 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 3rd DAY OF JANUARY, 2022

                        PRESENT

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
                      AND
      THE HON'BLE MR. JUSTICE S. RACHAIAH

           CRIMINAL APPEAL NO.100104/2019


BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
KITTUR POLICE STATION,
DIST: BELAGAVI, THROUGH
THE ADDITIONAL STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                     ... APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP.)

AND:

SHRI. IRAPPA PARAPPA MINDOLLI
AGE 70 YEARS, OCC: NIL,
R/O KALABHAVI, TQ. BAILHONGAL,
DIST. BELAGAVI.
                                        .. RESPONDENT
(BY SRI. S.C. BHUTI, AMICUS CURIAE, ADVOCATE.)


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377(1)
(B) OF CR.P.C. PRAYING TO CALL FOR RECORDS IN SESSIONS
CASE NO.264/2015 DATED 19.11.2018 ON THE FILE OF XI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI TO
                                2           Crl.A. No.100104/2019




MODIFY THE JUDGMENT AND ORDER IN S.C. NO.264/2015 DATED
19.11.2018 AND 24.11.2018 ON THE FILE OF XI ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI AND IMPOSE FINE AS
PROVIDED UNDER SECTION 302 OF IPC AND TO GRANT
COMPENSATION TO THE VICTIM PW-5 SON OF THE DECEASED AS
PROVIDED UNDER SECTION 357 OF CR.PC. OR DIRECT THE
VICTIMS TO APPROACH THE DISTRICT LEGAL SERVICE
AUTHORITY BELAGAVI FOR SEEKING COMPENSATION AS
PROVIDED UNDER SECTION 357-A OF CR.P.C.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING
THIS DAY,  Dr.H.B.PRABHAKARA SASTRY, DELIVERED THE
FOLLOWING:


                         JUDGMENT

The State has filed this appeal under Section 377(1)(b)

of the Code of Criminal Procedure, 1973 (hereinafter for

brevity referred to as 'Cr.P.C.') seeking modification of the

judgment of conviction and order of sentence dated

19.11.2018 and 24.11.2018 respectively passed by the

learned XI Additional District and Sessions Judge, Belagavi,

(hereinafter for brevity referred to as the 'Sessions Judge

Court') in S.C.No.264/2015, by imposing fine as provided

under Section 302 of the Indian Penal Code (hereinafter for

brevity referred to as 'IPC') and also to grant compensation

to the victim PW-5, who is stated to be the son of deceased

or directing the victim to approach the District Legal Services

Authority, Belagavi, for seeking compensation as provided

under Section 357-A of Cr.P.C.

2. In view of the fact that, in spite of service of

notice, the respondent/accused has remained absent, this

Court by its order dated 11.10.2019 appointed learned

counsel Sri. S.C.Bhuti as Amicus Curiae to represent the

respondent.

The trial Court records were called for and same are

placed before this Court.

3. Perused the memorandum of appeal, impugned

judgment and order on sentence and the materials placed

before this Court.

4. Heard arguments from the learned Additional

State Public Prosecutor and the learned Amicus Curiae.

5. The learned Additional State Public Prosecutor and

the learned Amicus Curiae submit that the respondent

herein, who has been convicted for the offence punishable

under Section 302 of IPC by the learned Sessions Judge

Court, has not preferred any appeal challenging the

judgment of his conviction and order on sentence.

At the direction of the Court, the Registry has also,

after verification, orally submitted that no appeal has been

preferred by the accused/present respondent challenging the

impugned judgment. Hence, considering that no other

appeal is filed challenging the impugned judgment, we are

proceeding further in this matter.

6. In view of the above, the point that arises for our

consideration is:

                "Whether    the    impugned       order   of
      sentence         warrants    any   modification     as
      prayed for by the appellant?"

7. The summary of the charge levelled against the

accused is that with respect to the demand for partition said

to have been made by his son and his daughter-in-law, the

present respondent, who is the accused, committed the

murder of his daughter-in-law Smt. Mallavva on 31.05.2015

at 2:30 p.m. by assaulting her with an iron axe while she

was sleeping in her house at a village called Kalabhavi in

Bailhongal taluk, Belagavi district.

8. In order to prove the alleged guilt against the

accused, the prosecution got examined twentyfour witnesses

from PW-1 to PW-24 and got marked fiftyseven documents

from Ex.P-1 to Ex.P-57 and material objects MOs.1 to 10 and

closed its side. On behalf of the accused, neither any witness

was examined nor any documents or material objects are

marked as exhibits and material objects respectively.

After hearing both side, the learned Sessions Judge by

her impugned judgment dated 19.11.2018 held the accused

guilty of the offence punishable under Section 302 of IPC.

The learned Sessions Judge, in her order on sentence dated

24.11.2018, sentenced the accused to undergo simple

imprisonment for life for the proven guilt for the offence

punishable under Section 302 of IPC.

9. Learned Additional State Public Prosecutor in his

brief arguments submitted that when imposition of fine in

addition to the sentence of imprisonment is mandatory under

Section 302 of IPC, the learned Sessions Judge ought to have

imposed fine also, as such, modification in the impugned

judgment is warranted.

10. Learned Amicus Curiae for the respondent, though

conceded that Section 302 of IPC mandates imposition of fine

also which is in addition to the sentence of imprisonment,

however, submitted that the convict is a poor agriculturist

and aged more than 75 years as on date, as such, due to his

financial condition, he is unable to pay any fine amount.

11. Section 302 of IPC which prescribes the sentence

for the offence of murder, reads as below:

" 302. Punishment for murder.-Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."

12. A reading of said section shows that for a convict

who has been held guilty for the offence punishable under

Section 302 of IPC, the sentencing court apart from

sentencing him for imprisonment is also empowered to

impose fine upon him as the words used are 'shall impose

fine'. However, in the instant case, a perusal of the order of

the learned Sessions Judge on the sentence would go to

show that no where the learned Sessions Judge has

discussed or stated the reasons as to why she is not

imposing fine in addition to the sentence of imprisonment.

The learned Sessions Judge has only stated that considering

the circumstances of the case and mitigating fact, she is

proceeding to pronounce the order of sentence which is an

order of simple imprisonment for life for the offence

punishable under Section 302 of IPC.

13. In the instant case, no doubt, the accused is

shown to be 70 years as on the date of pronouncement of

judgment, which is in the year 2018, and by this time three

more years is required to be added to his age, as such, he

must be of the age of 73 years plus as on date. Further,

there is nothing on record to show that he is financially in a

weak position and is unable to pay fine.

14. A glance of the evidence and the impugned

judgment would go to show that with respect to the claim for

partition stated to have been made by the husband of the

victim/deceased, who is stated to be the elder son of the

accused, a panchayat is said to have been taken place in the

matter wherein it is stated to have shown that the

panchayatdars have suggested for payment of a sum of

`85,000/- by the husband of the deceased to his father, in

turn, the father to give a share in the property to his elder

son. However, the accused's contention is that the said

panchayat was not held and still it is arbitrary. The said

aspect reveals that, when the son of accused has claimed

partition of the properties said to have been held by the

accused, it cannot be accepted that the accused is

economically in such a weaker position making him unable

even to pay a reasonable fine.

15. As such, we are of the view that since the

impugned order of sentence does not whisper about

imposition of fine, interference by this Court is warranted in

modifying the order of sentence by way of imposing fine

amount.

So far as the payment of compensation to PW-5 who is

said to be the son of the victim is concerned, we are of the

view that liberty be reserved to him to approach the

appropriate Legal Services Authority of the District under

Section 357-A of Cr.P.C.

While imposing quantum of sentence, we also bear in

mind that the sentence that is going to be imposed must be

proportionate to the gravity of the proven guilt. It must be

neither for name sake nor exorbitant. However, considering

the facts and circumstances of the case, we proceed to pass

the following order.

ORDER

The appeal is allowed in part. The order of sentence

dated 24.11.2018 passed by the learned XI Additional

District and Sessions Judge, Belagavi in SC No.264/2015 is

modified to the extent that, in addition to the sentence of

simple imprisonment for life ordered against the present

respondent/accused, we impose the sentence of fine of a

sum of `10,000/- (Rupees ten thousand only) payable by the

accused to the State and in default, to undergo six more

months simple imprisonment. Liberty is reserved to PW-5,

who is said to be the son of the deceased, to approach the

appropriate District Legal Services Authority for his

entitlement of compensation, if any, under Section 357-A of

Cr.P.C.

We place on record the assistance extended by the

learned Amicus Curiae in this matter and direct the Registry

to pay a honorarium of not less than a sum of `4,000/-

(Rupees four thousand only) to the learned Amicus Curiae

without delay.

Registry to transmit a copy of this judgment to the

Superintendent of Jail where the accused/convict is said to

be serving the sentence of imprisonment for their

information and needful in the matter.

Registry to transmit a copy of this judgment to the

concerned Sessions Judge Court without delay.

Sd/-

JUDGE

Sd/-

JUDGE

kmv