Sri Siddanaika vs State By Mandi Police Station
2022 Latest Caselaw 3996 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
          DATED THIS THE 09TH DAY OF MARCH, 2022
                         PRESENT
            THE HON'BLE MR. JUSTICE B. VEERAPPA
                            AND
            THE HON'BLE MR. JUSTICE S. RACHAIAH
               CRIMINAL APPEAL No. 1153/2021
BETWEEN:
SRI SIDDANAIKA,
S/O LATE DODDASWAMYNAIKA,
AGED ABOUT 54 YEARS,
R/AT HOSUR, GUNDLUPET TALUK.
                                                ... APPELLANT
(BY SRI SAMMITH S., ADVOCATE)

AND:
STATE BY MANDI POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
                                               ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 03.09.2005 AND SENTENCE DATED 05.09.2005 PASSED BY
THE III ADDITIONAL SESSIONS JUDGE, MYSORE IN S.C.NO.38/2003,
CONVICTING    THE   APPELLANT/ACCUSED  FOR    THE   OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC. THE ACCUSED IS
SENTENCED TO UNDERGO R.I FOR LIFE AND TO PAY FINE OF
RS.5000/- WITH DEFAULT SENTENCE OF S.I FOR THREE MONTHS.
APPELLANT PRAYS THAT HE BE ACQUITTED.


     THIS APPEAL COMING ON FOR HEARING,           THIS   DAY,
B.VEERAPPA J, DELIVERED THE FOLLOWING:-
                                    2




                         JUDGMENT

The accused, an Under Trial Prisoner, Central Jail, Mysuru

has filed the present criminal appeal against the impugned

judgment of conviction dated 03.09.2005 and order of sentence

dated 05.09.2005 made in S.C.No.38/2003 on the file of the III

Additional Sessions Judge, Mysuru, convicting the accused under

the provisions of section 302 of IPC for rigorous imprisonment

for life with fine of Rs.5,000/- with default clause.

2. The complaint was lodged by PW.1, who is the Jail

Superintendent. PW.4 (C.W.11) was the Jailer C.W.14 was the

Head Warder of Central Jail, Mysore. Accused Siddanaika and

deceased Chinnaraju were the Under Trial Prisoners during the

year 2002. On 30-7-2002, accused and deceased Chinnaraju

were in Barrack No.4 along with 39-40 other Under Trial

Prisoners. On the said date, during night, reformed prisoners

PW.11 (C.W.2) Shivamurthy and C.W.3-Thirtheshwara were

patrolling the barracks in the prison. C.W.11 (PW.4)-

Krishnamurthy was the Jailer and C.W.14-Nanjaiah was the Head

Warder on duty. At about 12.00 mid night, accused went to the

toilet, on his way back noticed Chinnaraju sleeping across his

way and annoyed by the same, hit with Iron Bucket - MO.1 on

the head of Chinnaraju who was asleep. On seeing the same,

C.W.2-Shivamurthy who patrolling the barrack, called his

companion Watcher C.W.3-Thirtheshwara and they together

called Head Warder-C.W.14-Nanjaiah. On receiving information,

Jailer-P.W.4 rushed to barrack No.4, secured key of said barrack

from the staff at the main gate and informed P.W.1-

Superintendent and Assistant Superintendent about the incident

of assault in barrack No.4. On receiving information, P.W.1-

Superintendent, Assistant Superintendent and their staff rushed

to barrack No.4, entered the barrack by opening the gate and

noticed Chinnaraju lying unconscious with bleeding head injury

and 3-4 Under Trial Prisoners holding Under Trial Prisoner

Siddanaika / accused. P.W.1-Superintendent immediately sent

Chinnaraju to K.R. Hospital with escort of prison staff and

instructed Assistant Superintendent to lodge complaint against

Under Trial Prisoner - Siddanaika.

3. Accordingly, PW.13 / Station House Officer, Mandi

Police Station registered complaint-Ex.P1 on 31-7-2002 against

the accused for offence punishable under section 307 I.P.C. and

submitted the same to the Court along with FIR-Ex.P22. In the

meantime, as per the advice of the Medical Officer, K R Hospital,

Mysore, P.W.1-Superintendent sent injured Under Trial Prisoner

Chinnaraju to NIMHANS, Bengaluru with escort of Jailer Sunder

and Prison staff. On the same day, i.e. on 31-7-2002, P.W.10-

PSI, Mandi P.S. took up investigation and after investigation,

filed the charge sheet against the accused. By that time

Chinnaraju died, thereby the original provision under section 307

IPC was converted into section 302 IPC.

4. On the matter being committed to the learned

Sessions Judge, learned Sessions Judge secured the presence of

the accused and framed the charge, explained to him in the

language known to him, who pleaded not guilty and claimed to

be tried. In order to prove the case of the prosecution, the

prosecution examined P.Ws.1 to 17 and got marked material

documents Ex.P1 to Ex.P27 and material objects M.Os.1 to 3.

After the completion of the evidence of the prosecution

witnesses, the statement of the accused was recorded as

contemplated under Section 313 Cr.P.C. Accused denied the

incriminatory evidence adduced by the prosecution witnesses

and not adduced any evidence.

5. Based on the aforesaid pleadings, learned Sessions

Judge framed two points for consideration, which read as under:

1) Whether prosecution proves homicidal death of U.T.P. Chinnaraju beyond reasonable doubt?

2) Whether prosecution proves that on 30-7-

2002 at about 12.00 mid night, accused U.T.P. with intention to cause death or head injury sufficient to cause death in the ordinary course hit Iron Bucket to the head of U.T.P. Chinnaraju who was asleep and caused the death?

6. Considering both the oral and documentary evidence

on record, learned Sessions Judge answered both the points in

the affirmative, holding that the prosecution has proved beyond

reasonable doubt that Under Trial Prisoner Chinnaraju's death is

homicidal death. Further held that, on 30-7-2002, at about

12.00 midnight, accused - Under Trial Prisoner, with the

intention to cause death, hit with iron bucket - MO.1 to the head

of deceased Under Trial Prisoner Chinnaraju, thereby committed

an offence punishable under section 302 of IPC and accordingly,

learned Sessions Judge, by the impugned judgment of conviction

and order of sentence, convicted the accused to undergo

rigorous imprisonment for life with fine of Rs.5,000/-, with

default sentence of simple imprisonment for three months.

Hence, the present appeal is filed by the accused.

7. We have heard learned counsel for the parties to the

lis.

8. Sri.Sammith.S, learned counsel for accused,

contended with vehemence that impugned judgment of

conviction and order of sentence convicting the accused to

undergo rigorous imprisonment for life with fine for the offence

under section 302 IPC is erroneous, contrary to the material on

record and cannot be sustained. He would further contend that

the learned Sessions Judge has not appreciated the

contradictions in the evidence of the prosecution witnesses,

especially the non-consideration of two main material witnesses

PW.2 and PW.3 who stated on oath that there was a quarrel

between the accused and deceased and thereby the unfortunate

incident occurred and the same has not been considered by the

learned Sessions Judge. He would further contend that the

learned Sessions Judge proceeded to consider the statement of

PW.11 - Shivamurthy where he has deposed that on

30.07.2002, at about 12.00 midnight, all Under Trial Prisoners

were sleeping and accused who woke up, went to toilet and on

his way back noticed Chinnaraju sleeping across his way and

annoyed by the same, hit with Iron Bucket - MO.1 to the head of

Chinnaraju. Immediately, he called his companion Watcher

C.W.3-Thirtheshwara and they together called Head Warder-

C.W.14-Nanjaiah. Trial Court has not considered the fact that

Shivamurthy - PW.11 was 30 feet away when the incident took

place, which is admitted by himself, which creates suspicion

about the credibility of evidence of PW.11 and there are full

contradictions and omissions and the same cannot be relied

upon.

9. He would further contend that the Expert Witness

PW.17 was considered as clinching witness and Trial Court

proceeded to convict the accused erroneously despite lack of any

other clinching evidence and lack of eyewitness. He would

further contend that the prosecution has not produced any

material, oral and documentary evidence, to prove the motive.

In the absence of any material and in the absence of eyewitness

to the incident, as admitted by PW.2, 3 and 11, the unfortunate

incident had occurred due to the sudden quarrel between the

accused and deceased, thereby it is a clear case falls under the

provisions of exception (4) to section 300 of IPC and thereby,

section 304 Part II of IPC attracts and not section 302 of IPC.

Therefore, he sought to allow the appeal.

10. Per contra, Sri.Vijayakumar Majage, learned Addl.

SPP, while justifying the impugned judgment of conviction and

order of sentence passed by the Trial Court, contended that

when the unfortunate incident occurred in the midnight at about

12.00 a.m. on 30.07.2002, in barrack No.4, not only accused

and deceased Chinnaraju, there were 39-40 other Under Trial

Prisoners. When the accused on his way noticed Chinnaraju

sleeping across his way, annoyed by the same, hit on his head

with the iron bucket, thereby it is a clear case of murder,

attracting the provisions of section 302 IPC. Further evidence of

PW.2, PW.3, PW.11 and PW.17 clearly depicts that accused had

developed animosity against deceased, thereby with an intention

to murder him hit on his head with iron bucket MO.1. Therefore,

the Trial Court considering both the oral and documentary

evidence, was justified in convicting the accused for the offences

punishable under the provisions of section 302 of IPC.

Therefore, he sought to dismiss the appeal.

11. In view of the aforesaid rival contentions urged by

the learned counsel for the parties, the only point that arises for

our consideration, in the present 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 Trial Court

convicting the accused for imprisonment of life

under the provisions of section 302 of IPC, and

whether he has made out a case to modify the

impugned judgment of conviction and order of

sentence passed by the Trial Court, in the peculiar

facts and circumstances of the present case?"

12. 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.

13. It is an undisputed fact that the unfortunate incident

occurred on 30.07.2002 at about 12.00 midnight at barrack No.4

in Central Prison, Mysuru where the deceased, accused and

other 39-40 Under Trial Prisoners were stationed. The incident

happened within the jail prison and it is not in dispute that there

was a quarrel between the accused and the deceased, as spoken

to by PW.1, PW.2, PW.3 and PW.11, and unfortunately, the

incident occurred and thereby the evidence of the Doctor PW.17

and postmortem report Ex.P24 clearly depicts that it was

homicidal death of the deceased in the prison.

14. This Court being the appellate court, in order to

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

consider the evidence of prosecution witnesses and material

documents relied upon:-

a) PW.1 - M.C.Vishwanathaiah, Superintendent,

Central Jail, Mysuru, who was the complainant,

deposed that on 30.07.2002, he was at his

residence within the premises of the Central

Jail. At around midnight 12.10 a.m., the

person who was appointed as a Sentry namely

Kempegowda informed him that the accused

Siddanaika was beating one Chinnaraju,

another prisoner in the same barrack i.e.,

barrack No.4. Along with the Jailor and the

Assistant Superintendent, he rushed to the

spot and noticed that Chinnaraju was lying

unconscious and there was a head injury and

he was bleeding. On enquiry, the Watchman

Shivamurthy and Theertheshwara stated that

when the accused Siddanaika got up and

wanted to go to the toilet, he saw that

Chinnaraju was sleeping on his way and took

the iron bucket and hit Chinnaraju on the

head. Chinnaraju was immediately sent to

K.R.Hospital and a case was registered under

section 307 IPC against the accused.

Thereafter Chinnaraju was shifted to

NIMHANS, Bengaluru and after two days, he

was admitted to Victoria Hospital, Bengaluru,

where he died on 02.08.2002. He supported

the case of the prosecution.

b) PW.2- Lakshmana, another Under Trial

Prisoner, who deposed that he was a prisoner

under trial for a complaint registered by the

Forest Department for illegal acquisition of

sandalwood logs and oil and he was kept in

barrack No.4 along with the accused, the

deceased and few other prisoners. On the

unfortunate midnight, there was some noise

(galata) and he woke up immediately and saw

the accused holding the iron bucket and

Chinnaraju was lying unconsciously and was

bleeding. The pillow he had slept on was full

of blood. He further deposes that he did not

know how Chinnaraju was injured and he has

not seen the accused hit Chinnaraju with the

iron bucket.

In the cross-examination, he admitted

that he was in custody about 15 - 20 days

prior to the incident.

c) PW.3 - Suresh - another Under Trial Prisoner

deposes that he was under trial for a complaint

registered by Kuvempunagar Police, Mysuru for

torture and demand for dowry and was kept in

barrack no.4 along with the accused and the

deceased and a few other prisoners.

Chinnaraju was injured, around midnight, he

heard some noises and woke up. Chinnaraju

was lying unconsciously in the same place

where he was sleeping. The pillow and the bed

were soaked in his blood which had bled from

his head. He did not know who hit the injured.

In the cross-examination, he has denied the

police statement according to which he had

stated that, on the day of the incident, he had

not slept and was just lying and thinking about

something; around midnight, the accused got

up and saw that Chinnaraju was sleeping

across and went to the toilet angrily, even

after he came out, he saw that Chinnaraju was

sleeping in the same position and the accused

warned him and took the iron bucket and hit

Chinnaraju on the head and he started

bleeding. He denied the further statement

made before the police.

d) PW.11 - Shivamurthy, Prisoner, Central Jail,

Mysore, who deposed that, he was a prisoner

serving his punishment and was posted for

night duty as a guard. Along with him,

Theertheshwara, another prisoner, was also

posted as a guard. In barrack No.4, there

were 40 prisoners including the accused and

the deceased Chinnaraju. In the month of July

2002, one night around 12.30 a.m., while

Theertheshwara and himself were guarding,

some noise (quarrel) happened in barrack

No.4. Before the quarrel, all prisoners in the

room were sleeping. The accused got up and

went to use the toilet. On his way back from

the toilet, the accused hit the sleeping

Chinnaraju on his head with the iron bucket -

MO.1. He did not know why the accused hit

Chinnaraju's head.

In the cross-examination, he has

deposed that when he was guarding near

barrack No.4, he was the one who witnessed

the incident first and called Theertheshwar. It

may be around 12.30 midnight. Later, he

shouted and called for Head Warden Nanjappa.

The accused hit Chinnaraju's head with the

bucket only once. The bucket was kept to use

to go to toilet. The bucket is an old one. The

bucket is about 1 - 1.5 feet tall. All the

members in barrack No.4 were sleeping.

Barrack No.4 is about 30 feet far from the

place he was. He further denied that the

police did not come to the place of crime nor

conducted panchanama. He did not know what

is written in the panchanama and he has not

read it and it is not true to suggest that he has

come under the influence of the jail authorities

and is lying.

e) PW.17 - Dr.K.W.D.Ravichandar, Retired

Professor and Head of Forensic Science

Department, Mysore, who deposed that, in the

year 2002, when he was working as the Head

of the Forensic Science Department in the

Medical Mahavidyalaya, on receiving the

request sent by the Madivala Sub-Divisional

Officer on 03.08.2002, he examined the dead

body of Chinnaraju, aged 43 years, from 3.20

p.m. to 4.20 p.m. in the afternoon at Victoria

Hospital's mortuary. He has noted down the

marks found on the dead body during the

examination. He further deposed that, above

the right ear, there is a 'U' shaped suture of 21

cms. On removing the suture, the muscle

beneath the skin was brown (blood clot) and

was torn. The skull below the muscles was

cracked here and there. He further deposed

that he has explained in detail about the injury

suffered by the brain. The right part of the

skull and the portion attached to it, which is

the front part of the skull, was injured

sufficiently and that portion of the bone was

broken at several parts. He further deposed

that he has sent his opinion under Ex.P25and

he has explained the details of Chinnaraju's

dead body in Ex.P24.

In the cross-examination, he has denied that it

is not true that the postmortem report

submitted at Ex.P24 is not the report of

Chinnaraju's dead body.

(f) The other witnesses are police witnesses and

the officers of the jail. They have supported

the case of the prosecution.

15. A careful perusal of complaint at Ex.P1 dated

30/31.07.2002 by PW.1 - Superintendent, Central Jail, Mysuru

depicts that the accused UTP No.16231, the deceased UTP

No.12432 and other 37 Under Trial Prisoners were in barrack

No.4. According to eyewitnesses, when the accused went to

toilet, the deceased Chinnaraju was sleeping across on the way

of the accused, thereby there was a quarrel in barrack No.4 and

after receiving information, he lodged the complaint against the

accused who hit the deceased Chinnaraju with MO.1 - iron

bucket. The jurisdictional police, at the inception, registered the

case under the provisions of section 307 IPC, subsequently after

the death of the deceased in NIMHANS, Bengaluru, the same

was converted into section 302 IPC.

16. On perusal of both the oral and documentary

evidence on record clearly depicts that the deceased and the

accused were Under Trial Prisoners. On the date when the

unfortunate incident occurred, at about 12.00 a.m. midnight, the

accused went to toilet, on his way back, he saw Chinnaraju

sleeping across his way and according to the other inmates of

the jail, there was quarrel between the accused and the

deceased and thereby the accused hit the deceased with iron

bucket -MO.1 to the head of Chinnaraju who was sleeping.

Admittedly, it is not the case of the prosecution that there was

any motive for the accused to cause death of deceased

Chinnaraju. Both were Under Trial Prisoners.

17. As stated by PW.2 - Sri.Lakshmana, both in

examination-in-chief and cross-examination, that about 12.00

a.m. in midnight, there was a quarrel and therefore, he woke up.

By that time, he noticed the accused holding the iron bucket and

Chinnaraju was lying unconsciously and blood was oozing from

his head and how the injury was caused to the deceased is not

known. He denied in his cross-examination the statement made

by him as per Ex.P13 is false. PW.3 - Sri.Suresh who also

stated on par with PW.2 that at about 12.00 a.m., when he was

sleeping, there was a quarrel, thereby he woke up and saw the

deceased in unconscious position and blood was oozing from his

head and he was not aware who hit Chinnaraju and how he was

injured. He further deposes that on the date, the deceased

Chinnaraju and himself were sleeping together and he further

denied the statement made before the police as per Ex.P14.

PW.4 - Sri.V.Krishnamurthy also deposed that there was some

quarrel in barrack No.4. PW.5 - Sri.M.H.Rajashekara, Chief

Watcher, Central Prison, Mysuru, who came to know that there

was a quarrel in barrack No.4 and the accused hit the head of

the deceased Chinnaraju. PW.17 - Dr.K.W.D.Ravichander who

examined the body of the deceased and issued postmortem

report Ex.P24, who stated on oath the external injuries as

under:-

"External injuries

1. Inverted 'U' shaped surgically sutured wound of 21 cm is present over right temporo parietal scalp over the upper margins of temporalis muscle. On removal of the sutures the underlying temporalis muscle shows contused laceration and squamo temporal bone shows fessunid fractures."

PW.17 has opined that the death was due to 'COMA' as a result

of head injury, by hard and blunt force impact to the right side of

the head, during an assault.

18. The above material clearly depicts that there was a

quarrel in barrack No.4 between the accused and the deceased.

When the deceased was sleeping across the way of the accused,

and the accused warned the deceased about it, but the deceased

refused to clear the way thereby the accused after coming from

the toilet, hit on the head of the deceased with MO.1 - iron

bucket, thereby the unfortunate incident has occurred due to

sudden provocation between the parties, as spoken to by PWs.1,

2, 3, 11 and other witnesses, but the same has not been

considered by the learned Sessions Judge. Though learned

Sessions Judge has specifically recorded a finding at para 14

that, "It may be that accused had no intention to kill Chinnaraju.

But it cannot be said that accused had no knowledge that he

may cause death by hitting Iron Bucket forcibly to the head of

sleeping Chinnaraju. At any rate, sudden provocation of accused

without any justification for the same does not come under

Exceptions 1 to 5 to murder defined under section 300 IPC.", the

material on record clearly depicts that this is a clear case falls

under Exception 1 to section 300 IPC, which reads as under:-

"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."

A careful reading of the said provision makes it clear that the

culpable homicide is not murder when an offender while 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.

19. In the present case, as already stated supra, the

accused suddenly attacked the deceased, when deceased had

not cleared the way to go to toilet and hit the deceased with iron

bucket - MO.1, thereby caused head injury, resulting in culpable

homicide not amounting to murder. Therefore, conviction of the

accused under the provisions of section 302 IPC has to be

modified and altered into section 304 Part I IPC. The said aspect

of the matter has not at all been considered by the learned

Sessions Judge.

20. It is also not in dispute that the evidence on record

clearly establishes that the deceased, accused and other 39-40

prisoners were stationed as Under Trial Prisoners in barrack

No.4. The material on record also depicts that there was no

enmity between the accused and the deceased, otherwise, the

jail authorities would not have stationed the accused and the

deceased in one barrack. None of the witnesses examined on

behalf of the prosecution have whispered anything about the

motive or enmity between the accused and the deceased. As

admitted by PW.2, 3 and 11, the accused, the deceased and

another Under Trial Prisoner PW.3 - Suresh were sleeping

adjacently. Taking into consideration the material on record, it

is a fit case to convert into section 304 Part I of IPC to meet the

ends of justice and not under section 302 IPC.

21. Our view is fortified by the dictum of the Hon'ble

Supreme Court in the case of NANAK RAM vs. STATE OF

RAJASTHAN reported in 2014 Criminal Law Journal 1843 at

para Nos.17, 18 and 19.

17. A fight suddenly takes place for which both parties are more or less to be blamed and it is a combat whether with or without weapons. It may be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. Heat of passion requires that there must be no time for the passions to cool down and in this case

the parties have worked themselves into a fury on account of the verbal altercation in the beginning. Out of the 9 injuries, only injury No.1 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The assaults were made at random. Even the previous altercations were verbal and not physical. The earlier disputes over land do not appear to have assumed the characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel the accused persons had caused injuries on the deceased. That being so the Exception 4 to Section 300, IPC is applicable. The fact situation bears great similarity to that in Ghapoo Yadav & Ors. v. State of M.P.(2003) 2 SCC 528: (AIR 2003 SC 1620).

18. Looking at the nature of injuries sustained by the deceased and the circumstances as enumerated above the conclusion is irresistible that the death was caused by the acts of the accused done with the intention of causing such bodily injury as is likely to cause death and therefore the offence would squarely come within the first part of Section 304, IPC and the appellants would be liable to be convicted for the said offence. The conviction of the appellants/accused under Section 304, Part II read with Section 149, IPC by the High Court is liable to be set aside.

19. We are of the considered view that imposition of 7 years rigorous imprisonment on each of the appellants for the conviction under Section 304, Part I, IPC would meet the ends of justice. We sustain the other conviction and sentences imposed on the appellants. We are also of the view that the appellants are not entitled for release on probation."

22. On re-appreciation of the entire material on record

which clearly depicts that on 30.07.2002 at about 12.00

midnight, an unfortunate incident occurred in barrack No.4,

Central Prison, Mysuru, when accused, deceased and other

Under Trial Prisoners were sleeping. When accused went to the

toilet, on the way, he noticed that the deceased was sleeping

across on his way, thereby there was a quarrel between the

accused and the deceased and due to sudden provocation,

provoked by the deceased, the accused hit on the head of the

deceased with Iron bucket - MO.1 and the same was due to

sudden provocation where the accused lost self-control. So it is

a fit case falling under section 304 Part I of IPC.

23. For the reasons stated above, the point raised in the

present appeal has to be answered partly in affirmative, holding

that the accused has made out a case to interfere with the

impugned judgment of conviction and order of sentence passed

by the Trial Court, convicting the accused for rigorous

imprisonment of life under the provisions of section 302 of IPC

and has made out a case to modify into section 304 Part I of

IPC.

24. In view of the above, we pass the following:-

ORDER

i) The criminal appeal filed by the appellant-Siddanaika

is allowed-in-part.

ii) The impugned judgment and order of conviction

dated 03.09.2005 and order of sentence dated

05.09.2005 passed by the III Additional Sessions

Judge, Mysore in S.C.No.38 of 2003 in convicting the

appellant/accused for the offence punishable under

Section 302 of IPC and sentencing him to undergo

rigorous imprisonment for life with fine of Rs.5,000/-

with default sentence of simple imprisonment for

three months is modified.

iii) The appellant is convicted under the provisions of

Section 304 Part I of IPC and sentenced to undergo

rigorous imprisonment for ten years with fine

amount of Rs.10,000/- (Rupees Ten Thousand only),

in default of payment of fine, he shall undergo

imprisonment for a period of two years.

iv) The appellant is entitled for a set off as contemplated

under Section 428 of Cr.P.C.

v) As we have modified the impugned judgment of

conviction and order of sentence stated supra and

since the accused is already in judicial custody for

more than 21 years, which is more than the

punishment imposed by us, the Jail Authorities are

directed to release the accused forthwith on deposit

of fine amount, if he is not required in any other

case.

Sd/-

JUDGE

Sd/-

JUDGE

Bss