Karnataka High Court
Nagananda Kolar vs The State Of Karnataka By on 14 February, 2024
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CRL.A No.102/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.102/2016 (C)
BETWEEN:
NAGANANDA KOLAR
S/O LATE KASTURI RANGAN
AGED ABOUT 35 YEARS
OCC: ENGINEER
R/AT NO.305, 1ST FLOOR
2ND C MAIN, 8TH BLOCK
KORAMANGALA
BANGALORE CITY-560 034 ...APPELLANT
(BY SRI M.SHARASS CHANDRA, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
SAGAR TOWN POLICE STATION
Digitally signed SHIVAMOGGA DISTRICT-577 401
by PRABHU REP. BY STATE PUBLIC PROSECUTOR
KUMARA
NAIKA HIGH COURT BUILDING
Location: High BANGALORE - 560 001 ...RESPONDENT
Court of
Karnataka
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 18.11.2015 AND ORDER OF SENTENCE
DATED 20.11.2015 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR IN
S.C.NO.188/2014 CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:
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CRL.A No.102/2016
JUDGMENT
Challenging the judgment and order of conviction and
sentence passed against him, the accused in
S.C.No.188/2014 on the file of the V Additional District and
Sessions Judge, Shivamogga sitting at Sagar has preferred
this appeal.
2. The appellant was tried in S.C.No.188/2014 by
the trial Court for the offences punishable under Sections 302
and 307 of IPC on the basis of charge sheet filed by Sagar
Town Police in Crime No.288/2013.
3. The appellant was the sole accused before the
Trial Court. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the trial
Court. The accused is the son of PW.8 Rama Rangan and
deceased Kasturi Rangan. PW.9 was the wife of the accused.
4. The case of prosecution is as follows:
(i) The marriage of the accused with PW.9 was inter-
caste marriage. As PW.9 was consuming non-vegetarian food
and entering the kitchen and pooja room, there used to be
quarrels between the parents and wife of the accused.
Thinking that his parents are ill-treating his wife, the accused
planned to eliminate them.
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(ii) On 28.10.2013, he took his parents in the guise
of going to Sagar and lodged them in Room No.301 of
Varadashree Lodge in Sagar. During the intervening night of
28/29.10.2013, the accused pretended to have consumed
petrol for committing suicide. Panicked by that, his father
also consumed petrol. When his father did not die, the
accused smothered him with pillow and committed his
murder. Thereafter, he slit PW8 on her neck and attempted
to commit her murder.
5. The trial Court on hearing the parties framed the
charges against the accused. The accused denied the
charges. Therefore, trial was conducted. In support of its
case, the prosecution examined PWs.1 to 21 and got marked
Exs.P1 to P28 and MOs.1 to 19. The accused neither filed
defence statement nor lead defence evidence. However, the
requisition issued by the Investigating Officer to PW.18-Taluk
Executive Magistrate to record dying declaration of PW.8 was
marked as Ex.D1.
6. The trial Court on hearing the parties, by
impugned judgment and order convicted the accused for the
offence punishable under Section 302 of IPC and sentenced
him to life imprisonment i.e. imprisonment till his death and
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fine of Rs.20,000/-. The trial Court further directed that in
default to pay fine amount, the accused shall undergo simple
imprisonment for six months.
7. Sri M.Sharass Chandra, learned Counsel for the
appellant reiterating the grounds of appeal, submits that the
trial Court is not competent to impose sentence of
imprisonment for the rest of natural life of the accused. He
further submits that the trial Court has conducted trial in
arbitrary manner and even examination under Section 313 of
Cr.P.C. was not recorded as required under the said
provision. Thus, he seeks reversal of the impugned
judgment.
8. Per contra, Sri Vijayakumar Majage, learned
SPP-II for the State submits that the trial Court on judicious
appreciation of the evidence on record has convicted the
accused. He further submits that the accused did not raise
his little finger about any irregularity in recording the
statement under Section 313 of Cr.P.C. Moreover, the same
has not caused any prejudice to him. Therefore, the
judgment and order of trial Court does not warrant
interference of this Court. However, he concedes to the legal
position that the Sessions Court is not competent to impose
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imprisonment for rest of natural life of the accused. He
submits that since the matter is in appeal, this Court can
consider that aspect having regard to the nature of offence.
Analysis
9. Article 21 of the Constitution of India requires
that no person shall be deprived of his life and liberty unless
in accordance with the procedure established by law. In the
present case, the defence of the accused was that, though
the prosecution contended that the accused designedly
committed murder of his father and attempted to commit
murder of his mother, as per the prosecution document
Ex.P10, parents as well as son together had decided to
commit suicide due to financial set back suffered by them and
his father consumed petrol. Still he did not die and at his
request the accused smothered him with the pillow.
However, PW.8 did not support that version during her
evidence and did not speak anything incriminating against
the accused.
10. The first grievance of the accused is that in his
examination under Section 313 of Cr.P.C., the explanation
given by him was not recorded and the trial Court without
noting the same, has convicted and sentenced him. As
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already stated, no person can be deprived of his life or
personal liberty without following the procedure established
by law.
11. The Code of Criminal Procedure prescribes the
procedure for trial of a person for the offences, to deprive his
life or liberty. In the present case, the offence under
Sections 302 and 307 of IPC are exclusively triable by the
Sessions Court. Therefore, for trial of said case, Sections 225
to 235 of Chapter XVIII of the Cr.P.C. and Sections 300 to
327 of Chapter XXIV of Cr.P.C. prescribe the procedure.
12. Section 232 of Cr.P.C. requires the Sessions Court
to examine the accused after taking evidence of the
Prosecution. Section 233 of Cr.P.C. deals with the right of
the accused to adduce defence evidence. Section 313 of
Cr.P.C. deals with the examination of the accused before
calling upon him to lead defence evidence. Section 313(1)(b)
and 313(4) of Cr.P.C., which are relevant for the purpose of
the present case read as follows:
"313. Power to examine the accused.-(1) In
every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances
appearing in the evidence against him, the Court -
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(a) ............................................................................
(b) shall, after the witnesses for the prosecution
have been examined and before he is called
on for his defence, question him generally on
the case:
Provided that in a summons-case, where the Court
has dispensed with the personal attendance of the
accused, it may also dispense with his examination
under clause (b).
(2) ...........................................................................
(3) ...........................................................................
(4) The answers given by the accused may be
taken into consideration in such inquiry or
trial, and put in evidence for or against him
in any other inquiry into, or trial for, any
other offence which such answers may tend
to show he has committed."
13. Reading of the above provisions go to show that
the answer given by the accused in his examination shall be
taken into consideration in the inquiry or trial.
14. In the present case, the trial Court claims to have
examined the accused under Section 313 of Cr.P.C. on
10.06.2015. The said examination runs into 14 pages. In that
answers given by the accused only to first and last two
questions are recorded. The answers of rest of the questions
are not recorded, though the said statement bears signatures
of the accused as well as the Judge who alleged to have
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recorded the said statement. The trial Court in the order
sheet dated 10.06.2015 regarding examination of the
accused has recorded as follows:
"Accused is present.
Statement of accused U/Sec. 313 of Cr.P.C. is
recorded and explained to the accused in the
language known to him for which he denied the entire
case of the prosecution. But he did not choose to
adduce any oral or documentary evidence on his
behalf.
For arguments,
Call on 26.06.2015."
(Emphasis supplied)
15. The above order goes to show that the trial Court
claims that it recorded the statement of the accused. But
virtually except for the first and last 2 questions, the trial
Court has not recorded answers of the accused for remaining
questions which are very material and incriminating against
him. It is no doubt true that before the trial Court, the
accused has not taken that ground.
16. The Hon'ble Supreme Court in Nababuddin @
Mallu @ Abhimanyu v. State of Haryana1 held that the
appellant may not have earlier raised the issue regarding the
2023 INSC 1020 (NR)
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inadequacy of examination under Section 313 of Cr.P.C., still
if the omission goes to the root of the matter so far as the
accused is concerned, that amounts to material illegality
committed by the trial Court. The word record itself indicates
that whatever the accused has stated should be written/
entered in the said statement. That basic aspect itself is not
complied by the trial Court.
17. Learned Single Judge of this Court in Meenakshi
v. State of Karnataka2 on noticing the blatant irregularities
committed by the trial Courts in recording the statements of
the accused under Section 313 of Cr.P.C. in a mechanical
way, issued certain guidelines for the trial Courts. This Court
even directed for circulation of the same to all the trial
Courts. Guideline No.4 in the said Guidelines which is
relevant for the purpose of this Court clearly states that the
answers given by the accused must be recorded separately.
18. Another glaring irregularity committed by the trial
Court is imposing sentence of life imprisonment till the end of
natural life of the accused. Section 28(2) of Cr.P.C. states
that a Sessions Judge or Additional Sessions Judge may pass
any sentence authorized by law; but the sentence of death
Crl.P.No..2170/2021 DD 21.09.2021
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passed by such Judge shall be subject to confirmation by the
High Court.
19. There is no dispute that the offence under Section
302 of IPC is triable by the Sessions Court. The punishment
prescribed for the offence under Section 302 IPC is death or
imprisonment for life and fine. The Hon'ble Supreme Court
has held that power to impose sentence of imprisonment
upto natural life of the accused is vested only with the High
Court and not with the Sessions Court. Imposition of
sentence of imprisonment up to the end of natural life of the
accused is contrary to the judgment of Constitutional Bench
of the Hon'ble Supreme Court in Union of India v.
V.Sriharan3. The Hon'ble Supreme Court in paragraphs 105
and 106 of the said judgment has held as follows:
"105. We, therefore, reiterate that the power
derived from the Penal Code for any modified
punishment within the punishment provided for in the
Penal Code for such specified offences can only be
exercised by the High Court and in the event of further
appeal only by the Supreme Court and not by any
other Court in this country. To put it differently, the
power to impose a modified punishment providing for
any specific term of incarceration or till the end of the
convict's life as an alternate to death penalty, can be
(2016) 7 SCC 1
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exercised only by the High Court and Supreme Court
and not by any other inferior Court.
106. Viewed in that respect, we state that the
ratio laid down in Swamy Shraddananda (2) v. State of
Karnataka, [(2008) 13 SCC 767] that a special
category of sentence; instead of death; for a term
exceeding 14 years and put that category beyond
application of remission is well founded and we answer
the said question in the affirmative. We are, therefore,
not in agreement with the opinion expressed by this
Court in Sangeet v. State of Haryana [(2013) 2 SCC
452] that the deprival of remission power of the
appropriate Government by awarding sentences of 20
or 25 years or without any remission as not permissible
is not in consonance with the law and we specifically
overrule the same."
(Emphasis supplied)
20. The above facts and circumstances go to show
that the trial Court not only conducted the trial in arbitrary
manner, but also imposed the punishment arbitrarily
contrary to the established principles of law.
21. The accused has filed I.A.No.1/2024 seeking bail.
But he failed to appear before the Court, which resulted
delay in hearing the matter. He did not even comply the
directions of this Court for surrendering before the trial
Court. Once the benefit of suspension of sentence was
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granted to him, he jumped the condition of that order.
Considering the same, he is not entitled for further
indulgence. Therefore, I.A.No.1/2024 is liable to be rejected.
Conclusions:
22. Records show that the offence took place on
28.10.2013. The proceedings against the accused
commenced before the Sessions Court in the year 2014.
Except not recording the examination of the accused under
Section 313 of Cr.P.C., no other irregularity is found in the
trial. Therefore, it would be appropriate to direct the trial
Court to record the statement of the accused under Section
313 of Cr.P.C., give him opportunity to lead defence
evidence, if any, and reconsider the matter afresh in
accordance with law. The appeal deserves to be allowed
accordingly. Hence the following:
ORDER
The appeal is allowed.
The impugned judgment and order of conviction and
sentence passed in S.C.No.188/2014 by the V Additional
District and Sessions Judge, Shivamogga, Sitting at Sagar
are hereby set aside.
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The matter is remanded to the trial Court in the light of
the observations made above.
The trial Court shall examine the accused and record
the defence evidence, if any, and hear the parties and
dispose of the matter in accordance with law.
The accused shall be produced before the trial Court on
11.03.2024. On such production, the trial Court shall record
his examination under Section 313 of Cr.P.C. and thereafter
dispose of the matter as expeditiously as possible, at any
rate within two months from the date of such production of
the accused.
Registry shall communicate copy of this order to the
trial Court and the concerned Prison forthwith.
Transmit the records to the trial Court expeditiously.
Sd/-
JUDGE
Sd/-
JUDGE
MPK
