Karnataka High Court

Kumbara Kotresha S/O. Eranna vs The State Of Karnataka on 11 June, 2025

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                                                                CRL.A No. 100166 of 2022


                              HC-KAR




                               IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                       DATED THIS THE 11TH DAY OF JUNE, 2025

                                                       PRESENT

                                         THE HON'BLE MR. JUSTICE R.NATARAJ

                                                          AND

                                        THE HON'BLE MR. JUSTICE RAJESH RAI K

                                       CRIMINAL APPEAL NO. 100166 OF 2022 (C)

                              BETWEEN:

                              KUMBARA KOTRESHA S/O. ERANNA,
                              AGE: 52 YEARS, OCC. LABOURER,
                              R/O. NANDIBANDI VILLAGE,
                              HOSAPETE TALUK, DIST. BALLARI.
                                                                              ...PETITIONER
                              (BY SRI. VIDYASHANKAR G. DALWAI, ADVOCATE)

                              AND:

                              THE STATE OF KARNATAKA
                              BY CPI, SANDUR CIRCLE,
           Digitally signed
           by
           YASHAVANT
           NARAYANKAR
                              MARIYAMMANAHALLI POLICE STATION,
YASHAVANT
           Location: HIGH
           COURT OF
           KARNATAKA
NARAYANKAR DHARWAD
                              NOW R/BY. ITS STATE PUBLIC PROSECUTOR,
           BENCH
           DHARWAD
           Date:
           2025.06.18
                              HIGH COURT OF KARNATAKA, DHARWAD.
                                                                            ...RESPONDENT
           11:53:14
           +0530



                              (BY SRI. A.M. GUNDAWADE, ADDITIONAL SPP)

                                    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
                              CR.P.C., SEEKING TO CALL FOR RECORDS AND SET ASIDE THE
                              JUDGMENT AND ORDER OF CONVICTION DATED 12.01.2021,
                              JUDGMENT PRONOUNCED DATED 13.01.2021, PASSED BY THE III
                              ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI, (SITTING
                              AT HOSAPETE) IN S.C. NO.5054/2017 FOR THE OFFENCES
                              PUNISHABLE UNDER SECTION 302 OF IPC AND ACQUIT THE
                              APPELLANT FROM THE CHARGES LEVELED AGAINST HIM.

                                   THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                              JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                          NC: 2025:KHC-D:7540-DB
                                       CRL.A No. 100166 of 2022


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CORAM:            THE HON'BLE MR. JUSTICE R.NATARAJ
                                 AND
                 THE HON'BLE MR. JUSTICE RAJESH RAI K

                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

This appeal by the convicted accused directed against the

judgment of conviction dated 12.01.2021 and order of sentence

dated 13.01.2021 passed in S.C.No.5054/2017 dated

12.01.2021 by the III Additional District and Sessions Judge at

Bellary (Sitting at Hosapete) (hereinafter called 'the learned

Sessions Judge) whereby the learned Sessions Judge convicted

accused-appellant for the offence punishable under Section 302

of IPC and sentenced him to undergo rigorous imprisonment

till his last breath and to pay a fine of Rs.25,000/-, in default of

payment fine, he shall undergo further imprisonment for six

month for the offence punishable under Section 302 of IPC.

2. The factual matrix of the prosecution case is that,

the deceased in the instant case one Eedigara Ramappa, was

residing along with his children at Nandi Bandi Village after

demise of his wife. About 3 to 4 years prior to June 2017, the

appellant/accused picked up a quarrel with deceased as he

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used to ogle the wife of the accused. The accused had

threatened the deceased that he will do away his life. When

things stood thus, on 30.06.2017 at about 12:30 p.m. when

deceased-Eedigara Ramappa was sitting beneath a peepal tree

chatting with the villagers, the accused all of a sudden went

behind the deceased and assaulted him with an axe on his

neck, resulting in the deceased-Eedigara Ramappa falling

down. The accused again assaulted with the same axe on his

neck and the deceased bled to death on the spot. Though PW.1

the son of the deceased and PWs.8 to 11 who were present

there attempted to rescue the deceased but by that time, the

deceased had succumbed to the injuries. Hence, the son of

deceased i.e., PW1-Complainant lodged a complaint before the

respondent-Police against the accused as per Ex.P1. On the

strength of Ex.P1, PW.10-the then Police Sub-Inspector of

respondent-Police registered FIR against the accused for the

offence punishable under Section 302 of IPC in Crime

No.108/2017 as per Ex.P17.

3. Subsequently, the Investigation Officer-PW.12

conducted the further investigation by drawing spot mahazar,

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inquest panchanama and later arrested the accused on

01.07.2017 and based on his voluntary statement, effected the

seizer and after recording the statement of material witnesses,

and obtaining documents from the concerned authorities, laid

charge sheet against the accused for the offence punishable

under Section 302 of IPC before the committal Court.

4. Post committal of case before the Session Court,

learned Sessions Judge framed charges against the accused for

the aforementioned offence and read over the same to him.

However, the accused denied the charges and claimed to be

tried.

5. To prove the charges leveled against the accused,

the prosecution in total examined 15 witnesses as PWs.1 to 15

and got marked 29 documents as Exs.P1 to P29 so also

identified 7 material objects as MOs.1 to 7.

6. After assessing the oral and documentary evidence,

the learned Sessions Judge convicted the accused for the

charges leveled against him and sentenced him as stated

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supra. The said judgment of conviction and order of sentence is

challenged in this appeal.

7. We have heard the learned counsel Sri.

Vidyashankar G. Dalwai for the appellant and learned Addl. SPP

Sri A.M.Gundawade for the respondent-State.

8. The primary contention of the learned counsel for

the appellant/accused is that, the learned Sessions Judge

grossly erred while convicting the appellant/accused without

appreciating the evidence in a right perspective. He further

contended that, the evidence of eyewitnesses-PWs.1, 5, 6 and

14, suffers from severe infirmities and the same cannot be

relied to prove the guilt of accused. He also contended that, the

prosecution utterly failed to prove the motive for the alleged

incident namely that, the deceased used to ogle at his wife. He

alternatively contended that, the incident was caused in a fit of

rage without any pre-meditation. In such circumstance, the act

of the accused squarely comes within the ambit of Exception 4

to Section 300 of IPC which is punishable under Section 304

part I of IPC. With these submissions, he prays to set-aside the

conviction or to modify the sentence.

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9. Per contra, learned Addl. SPP contended that

judgment under this appeal does not suffers from any

perversity or illegality, since the learned Sessions Judge after

meticulously examining the entire evidence on record, passed a

well reasoned judgment which does not call for any interference

at the hands of this Court. He further contended that, the

evidence of eyewitness-PWs.1, 5, 6 and 14 are consistent and

categorically establishes the guilt of the accused beyond all

reasonable doubt. He also contended that, the evidence of

PW.8 i.e., the wife of accused, clearly establishes the motive for

the alleged incident. Further, the prosecution also proved the

recovery of weapon-M.O.1 used for the commission of crime by

the accused at his instance. Accordingly, he prays to dismiss

the appeal.

10. Having heard for the learned counsel for the

respective parties and so also perusal of the entire evidence on

record, the points that arise for our consideration are:

1. Whether the judgment under this appeal suffers from any perversity or illegality?

2. Whether the learned Sessions Judge is justified in convicting the accused for the offence

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punishable under Section 302 of IPC and sentencing him for rigorous imprisonment till his life time?

11. In order to prove the homicidal death of the

deceased-Eedigara Ramappa, the prosecution predominantly

relied on the evidence of PW.13-Doctor who conducted the

autopsy on the body of the deceased and issued postmortem

report as per Ex.P26. The Doctor opined that the cause of

death is due to "hemorrhage and shock secondary to the injury

to major vessels-(RT)-internal carotid artery and others due to

injury caused assault by sharp weapon (axe)". PW.13-Doctor

also rendered his final opinion by confirming the cause of death

as per Ex.P27. Aside from that, he has stated that all the

injuries sustained by the deceased are ante-mortem in nature.

Further, the prosecution also relied on Ex.P19-inquest

panchanama conducted on the body of the deceased by PW.12.

PWs.2 and 7-the panch witnesses noticed two injuries on the

body of the deceased while conducting inquest panchanama.

On careful analysis of the evidence of these witnesses coupled

with Ex.P26, 27 and 19, we are of the view that the prosecution

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proved the homicidal death of deceased beyond reasonable

doubt.

12. To connect the accused to the homicidal death of

the deceased, the prosecution relied on the evidence of PW.1-

complainant i.e., son of the deceased and PWs.5, 6 and 14 the

villagers who are independent eyewitnesses to the incident. On

careful analysis of the evidence of these witnesses, PWs.5, 6

and 14 have unequivocally deposed that on the fateful day,

they and deceased-Eedigara Ramappa were chatting beneath a

peepal tree in their village and all of a sudden the accused

came to the spot holding an axe-M.O.1 and repeatedly

assaulted the deceased on his neck. As a result of the injuries,

the deceased succumbed on the spot. They further stated that

the accused committed the said incident as he suspected that

the deceased had an illicit affair with his wife. PW.1-the son of

the deceased is also an eyewitness to the incident. According to

him, on the date of incident he was walking to his field, and

saw his father and PWs.5, 6 and 14 were chatting beneath a

peepal tree and all of a sudden the accused appeared there and

assaulted his father with M.O.1-axe on his neck. Due to the

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injuries, his father succumbed on the spot. The evidence of

PWs.1, 5, 6 and 14 corroborates each other. Though these

witnesses were subjected to intense and extensive cross-

examination by the defence, yet their testimony could not be

shaken except pointing out to minor discrepancies. No material

contradictions are found in the evidence of PW.1 and his

complaint-Ex.P1 lodged at the earliest point of time.

Additionally, all these witnesses have identified the weapon-

M.O.1 used by the accused for commission of crime. In such

circumstances, there is no reason to disbelieve the testimony of

PWs.1, 5, 6 and 14.

13. It is equally important to note that PW.8-the wife of

the accused also visited the spot soon after the incident.

According to her, when she reached the spot, the deceased had

succumbed to the injuries and her husband was holding the

blood stained Axe-M.O.1. Later, he made a confession with the

people assembled there that he had committed the murder of

deceased as he attempted to outrage the modesty of his wife.

This evidence of PW.8 further corroborates the testimony of

PWs.1, 5, 6 and 14. Further, the oral testimony of these

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witnesses clearly corroborates the medical evidence i.e., the

evidence of PW.13-Doctor who conducted the autopsy on the

body of deceased and observed the injuries on the neck of the

deceased. The Investigation Officer-PW.12 recovered M.O.1-

axe used for the commission of crime at the instance of

accused under mahazar Ex.P8, PWs.3 and 4 are the witnesses

for the said mahazar. Further, PW.12 sent MO.1-axe for

chemical examination and FSL report-Ex.P28 reveals that the

same is stained with human blood group of 'A'. Hence, the oral

evidence led by the prosecution in this case corroborates to the

medical and scientific evidence.

14. The accused did not come up with any probable

defence either in the 313 statement or by any defence evidence

as to why he has been falsely implicated in the case.

Admittedly, there is no animosity between the accused and the

prosecution witnesses. Hence, on overall scrutiny of the entire

evidence on record, we are of the considered view that the trial

Court has rightly come to the conclusion that the accused alone

is the perpetrator of the crime. Hence, the conviction of the

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accused for the charged offence punishable under Section 302

of IPC is justified.

15. Insofar the sentence is concerned, the trial Court

has imposed a sentence directing the accused to undergo

rigorous imprisonment i.e., throughout his life. In our

considered view, the said sentence is not sustainable under

law. The Hon'ble Apex Court in the case of Union of India vs.

V. Sriharan Alias Murugan and others reported in 2016 (7)

SCC has held that awarding of said special category sentence,

in substitution of death sentence, that is, sentence barring

remission under Cr.P.C. for specified term beyond 14 years, or

life imprisonment barring remission for rest of life, held (per

majority), is valid - but power under Arts. 72 and 161, which is

not the same as the statutory power of remission, is not

affected - Award of non-remittable specified sentence or life

imprisonment barring remission for rest of life, held, not

violative of separation of powers. Such special sentence when

imposed under substantive provisions of IPC, does not overlap

procedural power under Cr.P.C. either considering crime

situation in India (particularly nexus between hardened

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criminals and ill-gotten wealth, and nature of heinous crimes on

the rise), delay in disposal of cases, and balancing interest of

victims with those of convicts, such special category sentence is

necessary. Further held (per majority), such special category

sentence can only be imposed by High Court or Supreme Court

and not by trial Court.

16. In such circumstances, the Sessions Court could not

have exercised power to impose imprisonment on the accused

to suffer imprisonment throughout life for the offence

punishable under Section 302 of IPC. Nevertheless, the Hon'ble

Apex Court in the case of Dharma Deo Yadav V/s State of

Uttara Pradesh reported in (2014) 5 SCC 509, laid down

three tests, namely, Crime test, Criminal test and rarest of rare

test. In the present both the crime and criminal tests have

been satisfied against the accused but, rarest of rare test is

concerned, the prosecution has failed to prove the same by

leading cogent evidence that the crime was committed in a

barbaric manner. Hence, the instant case would not fall under

the category of rarest of rare case. As such, the punishment

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awarded by the trial Court imposing imprisonment throughout

his life has to be modified to life imprisonment.

17. In that view of the matter, we answer the point

No.1 raised above in the negative and point No.2 in partly

affirmative and proceed to pass the following:

ORDER

i. Criminal Appeal filed by the accused is hereby allowed-in-part.

ii. The judgment of conviction passed in S.C.No.5054/2017 dated 12.01.2021 by the III Addl. District and Sessions Judge, Ballari, Sitting at Hosapete, convicting the accused for the offence punishable under Section 302 of IPC is confirmed.

iii. The sentence imposed against the accused to undergo rigorous imprisonment throughout life and to pay a fine of Rs.25,000/- for the offence under Section 302 of IPC, in default of payment of fine, directed to undergo simple imprisonment for a period of six months in addition to life imprisonment, is hereby modified.

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iv. Accused is sentenced to undergo rigorous imprisonment for life and shall pay fine of Rs.25,000/- and in default of payment of fine, he shall undergo simple imprisonment for one year.

v. Registry is directed to send back the trial Court records along with the copy of this order to the learned Sessions Judge, forthwith for necessary compliance.