IN THE HEGH COURT OF KARNATAKA AT BANG»'~\LOR__.E DATED THIS THE 14" DAY OF JULY 2009 PRESENT THE HON'BLE MR. JUSTICE K. SR~E.E[)H'AR'V"'R;§j,QE" AND THE HON'BLE MR. JUSTICE C.R.i'KUTfY3AJRA;ESV§};$.'i§'i§? CRIMINAL ARREALEVI_\ro,31/'20:05_ E BETWEEN: V E Krishna Shetty I - S/o Kasturi Shetty, V ' Méjor, R/at Ka|asuT5Jai'Iivage;.:' _ H.D. Kote Taluk, H _ " Mysore District,::" . T R. Convict No.1401:,, E H ~ APPELLANT (By Sri Haréésifi Curiae) AND: V Ete-A of V" rrra taka """ " bywgs State Pubi«i.c""v Prose-.Cut;0r; E' ~ High Court Bu'::~;:ij:;ng, "¥3anga1or'<2, _ RA~.B_ee£_henahaHrgPoiice 4"_'Sté-ti_Dn,,H.DV;~Kote, District. RESPONDENT
E V’V:E”(L’E?a”_V:SriE?i3.i\/1. Nawaz, Acidl. SPP)
Q
This Criminaf Appeal is filed under section 374(2) of
Cr,PC by the advocate for the appellant/accused agaivnstthe
Judgment dated 26.4.2005 passed by the Presiding”Offi”ce”r<,u
Fast Track Court-H, Mysore in SC. No.53/2004_con.y_icting
the appellant/accused for the offence punishatiier-u"ndeIf''_'n '
section–302 {PC and sentencing him to_–~un.d:ergo glifei V
imprisonment and to pay fine of Rs.:7,"O(3'O,/j land _in«_dei'auit"'.
to undergo S.I. for three years.
This Criminaf appeai comingifip for fina«iigVh_ea~–r:i’n’g this ”
day, C.R. KUMARASWAMY .J., deEiy’evred.Vt»he fC!..i§Wing§.
3uoeMt&jTii
This CriminaI..Vs’eetion 374(2) of
Cr.PC against passed by
the Presiding”‘Gfticfetf:i§Va*sfi:fi,;ic’i<A"_'C'oLJ§rt–II, Mysore in so
No.53/2004in".convVictViVVVng':_nrV:V_th.e:'~-::a–i3pe||ant/accused for the
offence ptinishatiieV_:'uVnicE–er"v.sé'ction-302 IPC and sentencing
hii'nci""toV"ii.hdenrg0»~.g_*ife'Véviyrnpirisonment and to pay fine of
Rs.72;G(3t}_/;VAia.n'd._:iiivhideifault to undergo S.I. for three years.
"brief facts of the prosecution case are as
i"?tundehs" ' i"
The marriage of Mangalamma D/o CW-8 with the
accused was performed about two years prior to the dajte.of
incident at Sogalamma temple in Sogaili
iived together cordiaily for one year. Therea~fteji’~..ac.cu.sed”
started suspecting the fidelity of his i;«iife:-‘an7d«’th.’e.re’-
be quarrei between them. lrlewas also pEa’nni§ng.,,to.5kill
her. That on 4.12.2003 at took
his wife to land beari”ng’_.*i belonging to
Chowdabaik. There.–t;he_ by means of
a chopper on
(3) The Shetty. He has
stated in 34.12.2003 at about 7 p.m.
when h6,§’nd..hi’sV the house, his son Krishna
caine panic situation and he totd that at about 3
p.m.:”on….that7″‘_d0ay~;”he assaulted his wife by means of a
Vlfichopper her. He also showed his clothes which
«:.*iwe.?:ei.biood stained. Thereafter compiainant informed the
W,
villagers. ~l”hen Sreenivasshetty, Venkataramana Shetty,
Jayaram, K. Srinivas and Shivappa came to the houserand
enquired his son Krishna Shetty and in their pre_s’encei__:’t~lie’
accused stated that he killed his wife
assaulting her by means of chopper=».:’oni:-A-herunec.l-rtjday was no
bus facility duriritj They produced
him on the7next- On the complaint
lodged on the Police registered
the case..«in CrimeaN–o:.VVQ_3/:f2OO3 for the offence punishable
under;Sectioyn’~3’O:2″vof IPC and accused was remanded to
Z”i..,_9¥*Stod’&’ii. ‘V ‘A
Police investigated the case and laid the
‘ ‘V:i”ch.l;ji?gelt%sheet against the accused for the offence punishable
if?
under section-3G2 of IPC. The iearned Sessions Judge has
framed the charge for the offence punishable under section-
302 of IPC. Charge was read over and plea
and the trial was fixed. The prosecution ijHas:”-~exa_lfi1i4neld’5
PWs.1 to 19 and marked E-x.P1 to léilc):::$l’iijd'”;M’C)5;:i’–tQV: “IV}_.Vi’
Statement of the accused was recorde’d_.7 Heyha.s: denied
most of the questions put to him. he ‘a!_so “states that
he did not suspect the fide.l_i:t’y_o_f At the Police
Station, the clothes were sei;>_”e»dj:by’~th»e
(5) Court are as under:
The accused” wfas..s–us’pec’ting the fidelity of his wife and
tiiilere’fo’re:~h’eéhadii..anger”a’g’ainst her which itseif is sufficient
even’i–i.f;n_e’Visestablished. It is also established that
l”It’he_accus«ed ,.__ar:d«:”~”the deceased together left the house of
thatsthe accused was armed with M0,: machchu.
‘_’_i’:&f_'”also”‘estabiished that MO.1 was recovered at the
ac’
{‘1
instance of the accused and that he pointed out the place
where the dead body was lying. The trial Court hevlVdi’:t’i*.at
the circumstantial evidence piaced on record is S’U:3:flCl’>e’rl~.t’;{_l3″‘
hold that the accused has committed the
wife. The trial Court convicted the aicycusedi’for_lt’he’
punishable under section 302 IP:f__v’a~hd he-vivas_ selnltiencedi to
undergo life imprisonment and toVAp.ayVfin”eg’of .Rs’.-100:3/~.
(6) Feeling aggrieved b’y*il’t~he~ conviction of
the Court below, th.e4.a’cvc_use’d appeal.
(7) We learned counsel for the
appellant as vveli__as_ tVf’ie””lea~r:h”edVcounsei for the respondent
an_«:l_we have also per’uSye_§l_Athe trial Court records.
VL&earhe’dVfjclounsel for the appellant submits as
f._uh’der:
‘*:lfFr.oin’~~_.the case of the prosecution, it is very ciear that
‘ V’t’li-e’yl:acc§used used to suspect the fidelity of his wife and
2/
therefore it is aileged that accused committed the murder
of his wife. The learned counsei for the appeiiant
that the offence may not fall under section–302
he suspected the fidelity of his wife””an.d_
suppressed rage, the accused was c4onstrzainecl_*v_i’t”o~ do*:.4″t’hel”~.
above act. In this backgroun’d;”i»the the
appellant prays to alter the. Court Voelow of
convicting the accused frorriV_vse.ct.ioVn}3{)’2.’ the lesser
offence.
(9) respondent submits as
Under: . . . , . . .
The _a_ccus’ed_:’ has the wife in the guise of
forest. He has taken the sickle
alonllgvvithuVl”ii..g§jri–.,.,%,,if finding recorded by the trial Court is
lv[‘re’asonab-ie a_vi*i’cl.V’i1there is no ground to interfere with the
jucigment of conviction. Motive is also
in this case.
{J
(10) In order to test the soundness of the decision
recorded by the Court below, we have carefully exam-i..ned
the evidence of the prosecution witnesses. V.
father of the accused and .he is the complainant:
and 3 are the inquest panchas.
deceased. PW-S is the witnessfor seiziur-e’..of«’
which is kadukathi. PW~6 is the of :PW–7 is
the member of Mahila s.peiai<ls about motive.
PWs.9 and 10 speak about_!~a»st_ jfseen:w.circ'unfi'st'a'nce. PW~11
has turnedT__ prosecution relies on his
evidence in re«s'pect_of' e.§<it'ra::j'udiciaI confession. PW–13 is
the_Junio.r§1:Engineer"i«.n:_;i_lla Panchayath who has prepared
the'_sketchV o.Vfu'th'eA:"svcene of offence. PW-14 is the panch.
speak'si'aboc"t*;_t'i*ie seizure of blood stained mud, grass,
_ip_i'_e'ce$ of PW–15 is the panch witness. PW~16 is
of Mahiia Samaj and she speaks about motive.
it 17, 18 and 19 are the police officials.
€/
9
(11) The material witnesses in this case are PWs.4..__6,9
and 10. Now we shall examine their evidence.
(12) PW-4 is the mother of the deceasedy.
that deceased Mangalamma was, given».gin-._margriagAe’ to ‘–the V’
accused. For about two months’l».:afte_r the the
accused looked after the;::y_’dece’e.s’§§jt*:’:.yye’l’l~.andvxthvereafter
suspecting her fidelity, he used_ fie was also
assaulting her of their family.
take the deceased also for
coolie work. he was not going out.
Decegasedelone was coolie work.
states one day about a year and five
i.’v»._rrionths–:”t§a’cl§V,’AR.l:’heg’i:=.accused took the deceased from his
fihgoéuse saying°’VA.Vthat they would bring fire wood. He also
him machhu. Both of them did not return to
if
the house on that day. She searched for them. Then___ she
thought that they might have gone to Kalastir, the
the accused. On the next day morning, she
moving about saying that the hustfiarid-.éof~’_4’Ma’n’ig.a_ia’
taken by the Police. She also fol|ow_ed_V_A’theoeople
were so saying, to the place wVh’evre~the.deadi.Vt3.od’*,t’v’VofSher
daughter was lying, That’::’wAas in the
land of one Chowdaiah. There’ the neck of
her daughter. there. The
Kadukatti which on that day was in
their house She further states
that the accused where he had thrown
to thieVPeolice.”‘ iirwals very near to the place where
theiaeea lying. Though this witness was cross»
17*.,_Agevxami’.n~eAci;~” n.o’t’h”ijng.::hVi’s elicited to désbeiieve her evidence.
‘{ifa(i_4)”~..:PW-6 is the brother of PW~–~4. Accused is the
l’ V–‘sio..;*iV’4″in-li:aw of PW~4. He states in his evidence that about a
if
year and five months back, PW-4’5 daughter died, On the
day of the incident, the accused and the deceased
towards a street. The accused carried with
Kadukatti. They did not return that night. T~i*:*ev-yi:~searChVed:it
for them and thought that they mightthaxgea..go4é’ae1to”‘K’a’ias_u’iri::sva_it
Next clay morning peopie were teiitgzg thatithe ia:c’cvu’3.eq had
kiiied the deceased.
(15) During his;’cvrossfVeV$§’a_njin:at’i’o.n,”h’aVv’Vstates that no
panchayath wascfispute between the
accused and the is true that a week or a
month earlier t’o__the én’cider1-tifnoiquarrei took piace between
the accusegdiv and thatadeceiiased. When the people were
tai’Ki_ng:Va.bVQu.tA_ ‘t.he,A:V”m_urder of the deceased by the accused,
_he came to i<n'o–w-. about it.
“ff'(t6)”*~!?W–9 has stated in his evidence that he knew the
it V–“de_cVe’ased Mangaiamma. She was the wife of the accused.
£2′
He further states in his evidence that one day about a year
back, when he was in front of his house, the accusvedjand
the deceased were coming and when he asked
as to where they were going, be toldmhim t.h’a’t~-jtjhvegiriwereié
going for bringing fire wood. He had w’,i’th:’him_.’ a
a macho MO.1. They were”iV_g”oi,ng itowa.rds.,:’Ai¥i§Q5anq.3iaA,
The time then was 10 a.rn_,._.. Next_..dVa’y_ “rn..ornin”g’–,h,e,,c§ame to
know that Mangaiamma He went to
Kempegowdana “body was iying
under a banni treieij–.:Th’ere’-.wa’s- “injury on the neck and
chin of the d_ead-bociy–;.._flThisvwitréess was cross»e><amined_,
but nothing is "elicited inAghisiicrossrexaminatéon to discredit
his testi
(i7)'*riPW%iV–Vi3;_ isthe sister of the deceased. She states
_kji..n_,"rie_r evide=2nc§_evthat her sister died about a year and five
'back. On 4.12.2003, she prepared the breakfast
V' the same to PW–4, the accused and the deceased.
examined by the defence counsel, nothing worthwh_i__l_e is
elicited to discredit her testimony.
(19) The trial Court mainiy reEie”c”|” on the
PW-4 and other witnesses and has c’orr’ie’ to
that accused is guilty of the orrerirjeor trial
Court has aiso carefully
and 10. The evidence ofth_e’s.etyyitnessves.I’._’u._n~~erringly point
out the guilt é;sVpVe’a-.E<:fabout East seen
circumstance" the incident to his
mother. El/en '.AiAnVV'jt'i}e.._ii:vif{';:..V»_i':t'~….i_s-iridicated that the accused
expiained by means of a chopper
and gcaus.in¥gVvri~er ____
point that arises for our consideration
whether culpable homicide not amounting to
_m._;nu'rder aundithe" offence faiis under section 304 Part} of
the case of the prosecution that the accused
' isusjpecfting the fidelity of his wife and also in the heat of
(2
£2'
3 5
passion and rage took his wife to the iand beionging to
Nayak and assaulted her. PW–19 is the Police Inspector
who has conducted the investigation of this case. _…___i-ie
states in his evidence that the doctor has given
per Ex.P16(a). The iearned counsel for
submits that in this case, the doctor has no«tg_i:i.ee.n
and therefore opinion given by the dovcto:r..cann.ot 're1'ied,'"
It is the contention of the Ieaiflaed c'o.u'nse| the
respondent that under sec;:tiei.n the
genuineness of any_ docunngenVt.v'V._Vis:g n0t.',i'i.'d.isputed, such
document m_ay_beVVt'ii<eVad:"réin"e'vid__ence in any inquiry, triai or
other proceeciingii vLIn'de"r.:'t.h:e*-ttfode without proof of the
signature«.of' the person to: whom it purports to be signed.
Rei;/_VingV'"enV t.h_i'ss.ecti_on 294(3), the iearned counsei for the
I-W,_respon'd.e'nt svuiorniitiswivthat there is no infirmity even if the
Tcdoctor has not been examined. As stated eariier, it is the
'1._'v*e.'rsion.VVtof. the prosecution that accused suspected the
V' sfideiityttgiof his wife and due to anger and passion, he
fix'
ORDER
1)The2 conviction of accused under section–3{32_;’_’o’f”–f£_F?’C:_V’7
altered to section–304 Part I of {PC
2) Sentence of life imprisonment impo.,sed”or:1
reduced to sentence of im’,o_r’i3onme-nt to”..vttvi«e~~¢:1e~riod=i’
already undergone. L
3)The appellant/accused’§”sV:A’_.s-eittffitiv he is not
required in any ottj:er’ca.<5'e'.fl':1: V i it
4) and it shall be
paid by 1;” 4′ it A’ 1
5)The oper”ayti’v.e’ Judgment shall be
commUf’yiCateid”‘t.:O~:theAi”v.tr’i’a1i Court and concerned Jail
Sd/-
H»’aH-mfl= jUDGE
Sd/-«
JUDGE