Karnataka High Court
Sri Uday vs State Of Karnataka By on 22 November, 2023
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CRL.A No. 391 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 391 OF 2018
Between:
Sri. Uday
S/o. Late Ayyappa
Aged about 25 years
R/at Masthenahalli Village
Srinivaspur Taluk
Kolar District-563135.
...Appellant
(By Sri M.R.Nanjunda Gowda, Advocate)
And:
Digitally
signed by State of Karnataka by
SRIDEVI S Srinivaspur Police,
Location: Kolar District
HIGH
COURT OF Represented by
KARNATAKA State Public Prosecutor
High Court Buildings
Bengaluru-560001.
...Respondent
(By Sri. Diwakar Maddur, HCGP)
This Criminal Appeal is filed under section 374(2) CR.P.C.
praying to set aside the judgment of conviction and order of
sentence dated 02.02.2018 passed by the II Additional
Sessions Judge, Kolar in S.C.No.19/2016 - convicting the
appellant/accused for the offence p/u/s 448 and 302 of IPC.
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CRL.A No. 391 of 2018
This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The accused having been found guilty of the offences
punishable under sections 302 and 448 of IPC and
sentenced to imprisonment for life with fine of Rs.10,000/-
in relation to offence under section 302 of IPC and simple
imprisonment for a period of six months for the offence
under section 448 of IPC, has preferred this appeal.
2. The case projected by the prosecution in the
charge sheet was that on 17.10.2015 at about 5.00 p.m.,
the accused having come to know that the deceased viz.,
Nalini was alone in the house, trespassed into her house
and killed her by cutting her throat with a knife. The
motive projected was that the accused was pestering the
deceased to marry him. The deceased declined his
proposal in the beginning and then started having contact
with him. Sometime later, the deceased was found being
in contact with another boy viz., PW6 - Naveen. The
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accused came to know of the relationship between the
deceased and PW6, however he insisted on her to marry
him. As the deceased refused, he resorted to killing her.
3. FIR was registered at the instance of PW8 -
Gopalakrishna, the brother of the deceased. PW1 is the
mother of the deceased. Relying on the testimonies of
PW1, 2, 3, 4 and 10 the trial court recorded conviction
against the accused.
4. We have heard the arguments of Sri. M.R.
Nanjunda Gowda, learned counsel for the accused and Sri.
Diwakar Maddur, learned High Court Government Pleader
for the State.
5. Before referring to the points of arguments, we
may briefly refer to the evidence of the main witnesses
whose evidence has been relied upon by the trial court to
hold the accused guilty of the offences. In the testimony
of PW1, it is found that her daughter Nalini was
commuting to Kolar everyday to attend computer classes.
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She learnt from her daughter that the accused was behind
her daughter and pestering her to marry him or otherwise
he would die. PW1 told her daughter that she would
advise the accused. One day i.e., prior to date of the
incident, the deceased told that she would not attend
computer classes because of continued trouble by the
accused. On 17.10.2015, at about 4.00 p.m., PW1 went
to her fields and the deceased was alone in the house.
When she returned home at 5.00 p.m., she found the gate
being closed and she called her daughter. She heard a
feeble screaming voice of her daughter. By the time she
opened the door and entered the house, she saw the
accused inside the house. Seeing PW1, the accused closed
the door. She peeped through the crevice in the door and
saw the accused knocking down her daughter and cutting
her neck. The deceased somehow escaped from the clasp
of the accused and opened the door. There was profuse
bleeding from the neck. She raised cries. Hearing her
crying voice, PW10 - Bhagyamma came there. She too
shouted and hearing this shouting, Chowdappa, Nagaraju
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and Srinivasappa came there. They all went inside the
house. Accused was inside the kitchen. He was caught
and tied to a stone pillar with a rope. Information was
passed on to the police. They came there and PW1
narrated the entire incident to the police. If the evidence
of PW10 is seen, she too has stated that after hearing the
yelling voice of PW1 she went near the house of PW1 and
learnt from her that somebody inside the house was
cutting the neck of Nalini. PW10 also shouted. Nalini
opened the door. Accused was inside the house. PW3 -
Nagaraja and PW4 Ram Prasad took Nalini to Jalappa
Hospital. PW10 stated that Nalini suffered injury on her
neck and there was bleeding. People of the village
brought the accused from inside the house. She herself
gave a rope for tying the accused to a stone pillar in front
of the house of PW1.
6. PW2 is a child witness. Her evidence discloses
that she and her brother returned home at 4.00 p.m. from
the school. There was no TV display in their house and
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therefore her father i.e., PW3 asked her to go to the house
of PW1 and see whether there was TV display in the house
of PW1. As she came near the house of PW1 she saw the
latter crying loudly. PW2 returned home and told his
father as to what was happening. Immediately PW3, her
father went near the house of PW1 and took Nalini in a car
to the hospital. She has stated that at the time she saw
the accused being in front of the house of PW1. PW3 has
stated that he had sent his daughter to the house of PW1
to see whether there was TV display in the house of PW1.
Immediately his daughter returned and told him that PW1
was crying while knocking at the door of her house. His
wife asked him to go and see as to what was happening.
He went there and saw Nalini coming out of the house by
opening the door. There was an injury on her neck.
There was severe bleeding on her neck. Therefore he
brought Nalini to the front of his house and covered the
injury with a towel. He asked her as to what happened and
at that time she said that the accused inflicted injury on
her neck. His further evidence is that when he was taking
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Nalini to hospital in a car, she died on the way. PW4 -
Ramprasad has stated that he saw PW3 - Nagaraj bringing
Nalini from inside the house. There was bleeding injury on
the neck of Nalini. Accused was also brought out from the
house. He too joined with PW3 while taking Nalini to
hospital. PW8 - Gopalakrishna is the brother of the
deceased. He had come over to Hoskote in connection
with his work. As he was about to return to his village, at
about 5.30 p.m. on 17.10.2015, he received a phone call
from his neighbour viz., Chowdappa and came to know
that Nalini had been brought to Jalappa Hospital.
Immediately he came to that place. He went to police
station along with his mother and gave a report of the
incident to the police. He came to now from his mother
that the accused had fallen in love with the deceased and
he was insisting her to marry him or otherwise he would
die.
7. We may not refer to inquest and spot mahazar
and it is not disputed. We refer to the evidence of PW6,
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who has stated that the deceased had spoken to him three
or four times over the phone, but had never said that she
was loving him. On the date of incident he had been to
his agricultural land. When he returned home he came to
know about the incident. He came near the house of the
deceased and saw the accused being caught. The purpose
of examining PW6 was that the deceased was in contact
with him and the accused having come to know that the
deceased and PW6 were in touch, the accused asked him
not to contact the deceased. Having found that deceased
and PW6 were in touch continuously, the accused entered
the house of the deceased and cut her neck with a knife.
The prosecution also wanted to prove that after learning
this incident, he became disgusted and tried to commit
suicide by consuming poison. Because he did not speak
with regard to these aspects he was treated hostile and
cross examined by the Public Prosecutor. But he denied
having given statements before the police in this manner.
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8. PW11 conducted post-mortem examination and
gave a report as per Ex.P.14 indicating that there were
four cut injuries on the neck portion of the deceased.
9. If the entire evidence of these witnesses is
subjected to analysis, we find that the testimony of PW1
finds corroboration from the testimony of PW10 -
Bhagyamma. PW2 and 3 also support the version of PW1
and PW10. But it was the argument of Sri. Nanjunda
Gowda that the evidence given by these witnesses is
difficult to be believed because according to PW1, the
deceased was made to fall down and then accused sat on
her chest. If this were to be the case, it is highly
impossible that the deceased would have got up and
opened the door hearing the screaming voice of her
mother and PW10. He also argued that all the witnesses
have stated that the accused was inside the house and
then some of the villagers entered into the house, brought
him out and tied to a stone pillar. That means, the
accused was very much present at that place till the
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arrival of police. But PW21 has stated that the accused
was arrested near Government Hospital, Srinivasapura. If
the evidence given by PW21 is to be believed, what PW1,
2, 3 and 10 have stated becomes unbelievable. This gives
room to suspect their evidence. If the accused was
arrested near Government Hospital, Srinivasapura, it is
highly impossible to believe the evidence of PW1, 2, 3 and
10 that accused was tied to a stone pillar and this doubt
has not been explained away by the prosecution. It is
found in the evidence of PW1 that she noticed an injury on
the neck of the accused. But when the accused was
subjected to medical examination, PW15 - doctor did not
notice any injury mark on the person of the accused. In
that event, the testimony of PW1 becomes unbelievable.
His another point of argument is that except PW1, the
other witnesses did not say anything about having noticed
injury sustained by the accused. Therefore the presence
of the accused at the spot becomes doubtful.
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10. Sri. Diwakar Maddur, learned HCGP for
respondent countered his argument that the testimonies of
PW.1,2,3 and 10 cannot be discarded at all because they
have not been discredited in the cross examination and
their evidence is very consistent that all of them saw the
accused being inside the house of the deceased with a
knife in his hand. The knife was seized at the spot and
the FSL report shows the presence of blood stains on the
knife. He also submitted that the shirt worn by the
accused was also stained with blood and FSL report is to
the effect that blood stains were detected in the T-shirt
said to be belonging to the accused.
11. Though the argument of Sri. M.R. Nanjunda
Gowda that the deceased could not have opened the door
if she really had been knocked down by the accused and
he had sat on her chest appears to be plausible, the
consistent evidence of the witnesses that the deceased
herself opened the door cannot be rejected out rightly.
These witnesses have not been assailed or impeached in
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the cross examination. What PW1 has stated is when she
shouted loudly and asked her daughter to open the door
somehow, she escaped from the clutches of the accused
and opened the door. PW10 has also stated that she saw
Nalini opening the door and coming out of the house. In
this view, the testimonies of the witnesses that the
deceased herself opened the door cannot be disbelieved.
It is true that PW1 is said to have noticed an injury mark
on the neck of the accused and that the other witnesses
have not spoken about it. But we will deal with it later. It
has come consistently in the evidence that the villagers
gathered and caught hold of the accused, and then tied
him to a stone pillar. PW10 has stated that she herself
brought a rope for tying the accused. Sri. Nanjunda
Gowda argued that the rope was not seized. It is a fact
that rope was not seized. Merely for this reason the
testimonies of the witnesses that accused was tied to a
stone pillar cannot be discarded. As he was found inside
the house of PW1 and many villagers gathered hearing the
scream of PW1 and PW10 it was quite possible that
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accused might have been caught and tied to a stone pillar.
Because of his arrest near the Government Hospital,
Srinivaspura, Sri. Nanjunda Gowda argued that accused
was not present in the house and his involvement in the
incident is therefore doubtful. But what the evidence
discloses is that after the police came to the spot, he was
taken by them. In this connection we find it pertinent to
refer to the evidence of PW15 and PW21. It was on
19.10.2015 that the accused was examined by PW15 on
the request of the police. His evidence shows that he
examined the accused and gave a report as per Ex.P.25.
He also collected the clothes of the accused viz., a T-shirt
and a jeans pants marked MO9 and MO10 respectively and
gave them to the police. PW21 has stated that on
19.10.2015, the CPI of Srinivasapura asked him and head
constable Sri.Narayanaswamy to arrest the accused.
Accordingly at 10.30 a.m. they arrested the accused at
Government Hospital, Srinivaspura. Certainly if the
evidence of PW15 and PW21 is considered, we find a
discrepancy. If on 17.10.2015 itself the accused was
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taken to police station, there should have been an
explanation as to why he was not arrested immediately,
and in this view his arrest on 19.10.2015 becomes
doubtful. In this regard we may state that this
discrepancy alone does not shake the consistent
testimonies of the main witnesses whose evidence we
have already referred to. What we find is that on
17.10.2015 itself the accused was caught and taken to the
police station. Therefore the arrest of the accused on
19.10.2015 as stated by PW21 is not so material. That
does not shake the case of the prosecution at the root to
disbelieve the testimonies of the main witnesses. The
involvement of the accused in the incident is very much
forthcoming.
12. Though the evidence shows that it was the
accused who caused the death of Nalini, in our opinion he
cannot be convicted for the offence under section 302 IPC.
The case of the prosecution is that accused was behind the
deceased with a love proposal which was not accepted by
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the latter in the beginning and it appears that she started
having contact with the accused later. It is also the case
of the prosecution that the deceased developed contact
with PW6 - Naveen, which the accused came to know and
therefore asked PW6 to desist from the company of the
deceased. PW6 may have denied this. However we find
a material to this effect. We may refer to the evidence of
PW7 in this context. Though PW7 turned hostile, while
cross-examining him the Public Prosecutor brought to his
notice his previous statement which is marked as Ex.P12
which states that the deceased was having contact with
PW6 and on coming to know of this the accused resorted
to killing her. PW7 has denied this suggestion, but the
case of the prosecution is actually forthcoming in the
suggestion given to him. Then from the evidence of PW12
it is forthcoming that when the accused was searched by
the police, a black colour purse was found in the jeans
pants of the accused. On opening the purse, the police
found eight colour photos and one letter. In the letter it
was written by the accused himself that he was loving the
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deceased for the last two years and for the last fifteen
days she was found calling another number. When he
asked her as to with whom she was in contact, she used to
tell that she was speaking to her uncle or brother. She
was giving false answers and he came to know that she
was loving somebody else and therefore that made him
suffer a lot mentally. This made him to kill Nalini and kill
himself. Though PW12 turned hostile with regard to the
seizure of the purse and the mahazar drawn in this regard
as per Ex.P17, the actual case of the prosecution comes
out from the suggestion given to PW12 in the cross-
examination. Therefore the inference that could be drawn
from the evidence of PW7 and PW12 is that probably the
accused might have become frustrated having seen the
deceased being in love with PW6 and for this reason he
might have taken a decision to kill Nalini first and to kill
himself later. In this view, what we find is that if PW1
stated that she noticed an injury mark on the neck of the
accused, probably for the reason that he wanted to kill
himself as is evident from the suggestions given to PW7
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and 12, he might have inflicted injury to himself. All these
circumstances put together indicate that the accused
having been frustrated and losing control over himself
might have resorted to inflicting injury which resulted in
the death of Nalini. Because of the fact that accused
brought a knife with him though it can be said that he had
a clear intention to kill her, the entire incident can be
brought within exception No.1 to section 300 of IPC. What
we notice in the circumstance is sustained provocation
that the accused developed after coming to know that the
deceased was in love with PW6 and this might have
resulted in his taking a decision to end the life of the
deceased. Thus seen though the death of deceased was
homicidal, it does not amount to murder and the accused
can only be punished for the offence under section 304 -
Part I of IPC.
13. Entering the house of the deceased with an
intention to kill the deceased amounts to trespass, which
is punishable under section 448 of IPC. Therefore the
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finding recorded by the trial court to hold the accused
guilty of the offence under section 302 of IPC cannot be
sustained, instead the accused can only be punished for
the offence under section 304 - Part I of IPC maintaining
the conviction for the offence under section 448 of IPC.
The accused has been in custody for eight years, one
month and three days. Sri. Nanjunda Gowda submits
that the accused has realized his mistake and has
reformed himself. The period already spent in jail can be
set off to meet the ends of justice. Considering the fact
that at the time of incident the age of the accused is 23
years and he is still young, we are of the opinion that the
period he has already spent in jail may be set off as the
sentencing structure under section 304 - Part I of IPC
provides for imprisonment extendable up to ten years or
for life. In this view, the following :
ORDER
i. Appeal is partly allowed.
ii. The judgment of II Addl. District and Sessions
Judge, Kolar in S.C.No.19/2016 is modified.
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The accused is held guilty of the offence under
section 304 - Part I of IPC instead of section
302 of IPC. He is convicted for imprisonment
for the period he has already spent in jail. We
retain the fine imposed on him by the trial
court. We also retain the sentence imposed on
him under section 448 IPC.
iii. Since the accused is in jail, he shall be set free
forthwith if his presence is not required in any
other case.
iv. This order shall be intimated to the concerned
jail authority.
Sd/-
JUDGE
Sd/-
JUDGE
SD
