- 1 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL No.1137 OF 2012 (C) BETWEEN: MANJUNATHA S/O LATE RAMAPPA AGED 38 YEARS, R/AT THANGEDIMITTA VILLAGE, KAMASAMUDRAM HOBLI, BANGARAPET TALUK, KOLAR DISTRICT …APPELLANT (BY SRI B.V.MOHAN ADEKAR, ADVOCATE) AND: 1. STATE OF KARNATAKA REPRESENTED BY THE PSI KAMASAMUDRAM POLICE STATION. …RESPONDENT (BY SRI CHANNAPPA ERAPPA, HCGP) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, KGF., IN S.C. No.182/2011 DATED 22/09/2012. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 ORAL JUDGMENT Heard Sri B.V.Mohan Adekar, learned counsel for the appellant and Sri Channappa Erappa, learned High Court Government Pleader for the respondent. 2. Appeal by the accused who has been convicted for the offence punishable under Section 304 Part II of the Indian Penal Code in S.C.No.182/2011 dated 22.09.2012 on the file of the Presiding Officer, Fast Track Court, K.G.F. and sentenced to undergo imprisonment for five years and to pay fine of Rs.2,000/-, in default, to undergo simple imprisonment for three months, is the appellant. 3. Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under: A complaint came to be lodged with Kamasamudram Police, in respect of an incident that occurred on 08.02.2011 at about 7.00 am in the kitchen of the house of the accused wherein, deceased was questioned by the accused as to why the household articles have been scattered in the kitchen and there was altercation and quarrel resulting in accused - 3 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 assaulting his wife/deceased with an iron serving spoon/ladle (PÀ©âtzÀ ¸ËlÄ) and she lost her life. 4. Based on the complaint, police registered a case for the offence punishable under Section 302 of the Indian Penal Code and after detailed investigation, filed the charge sheet. 5. Learned Trial Magistrate took cognizance of the offence and committed the matter to the Sessions Court as the offence alleged against the accused was exclusively triable by the Sessions Judge. 6. On committal, learned Sessions Judge secured the presence of the accused and after completing the requirements of Section 207 of the Code of Criminal Procedure, framed the charge. Accused pleaded not guilty and therefore, trial was held. 7. In order to establish the case of the prosecution, 17 witnesses were examined as P.Ws.1 to 17 and 17 documents were placed on record which were exhibited and marked as P.Ws.1 to 17. - 4 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 8. The prosecution placed on record eight material objects which were marked as M.Os.1 to 8 comprising of iron spoon/ladle, turkey towel, sample soil, blood mixed soil, blouse, saree, petty coat and sweater. 9. The detailed cross-examination prosecution witnesses did not yield any positive material so as to disbelieve the case of the prosecution in order to hold that the incident as alleged by the prosecution did not take place at all. 10. Thereafter, accused statement was recorded by the learned Sessions Judge wherein incriminatory circumstances were put to the accused and explanation was called for by the accused. Accused failed to offer any proper explanation to the incriminatory circumstances, except denying the same. 11. Accused did not chose to furnish any written submission as is contemplated under Section 313(4) of the Code of Criminal Procedure nor placed any defence evidence. 12. Thereafter, learned Sessions Judge heard the parties and noting the chronology of the events and keeping in mind the principles of law enunciated in the case of Mahendra Singh v. - 5 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 State of Madhya Pradesh, Ramashray Yadav and others vs. State of Bihar and such other matters, scaled down the offence alleged against the accused from Section 302 to 304 Part II of the Indian Penal Code and sentenced as referred to supra. 13. Being aggrieved by the same, accused is before this Court in this Criminal Appeal. 14. Sri B.V.Mohan Adekar, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal, vehemently contended that the prosecution evidence is not sufficient enough to establish the offence alleged against accused and not sufficient for attracting the offence punishable under Section 304 Part II of the Indian Penal Code and thus sought for allowing the appeal. 15. He also pointed out that the material evidence on record is suffering from serious contradictions among the prosecution witnesses and the motive for the incident is unbelievable inasmuch as accused was not happy with the birth of fourth baby girl and was insisting the deceased to abandon the child cannot be even imagined inasmuch as, he had already got a - 6 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 son. Therefore, the motive having not been established, there is no necessary for alleged altercation and thus, sought for allowing the appeal. 16. Alternatively, he contended that in the event of this Court upholding the Order of conviction, the Court may consider the fact that accused is having two unmarried children to be reared by his vegetable vending business and after the death of the wife of the accused, he has looked after the children with all love and affection and thus, sought for setting aside the sentence of imprisonment. 17. Per contra, Sri Channappa Erappa, learned High Court Government Pleader supports the impugned judgment and maintains that the accused had used M.O.1 to assault his own wife on the head which is established by the prosecution by placing cogent and convincing evidence on record. 18. M.O.1 being the is used in the incident and part chosen to assault the deceased by the accused being the vital part the intention could be gathered from the attendant circumstances and even in the absence of any appeal being filed by the State - 7 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 the prosecution can very well maintained its arguments with regard to the sentence is concerned and sought for dismissal of the appeal in toto. 19. Having heard the parties in detail, this Court perused the material on record meticulously. 20. On such perusal of the material on record, the following points would arise for consideration: (i) Whether the prosecution is successful in establishing the offence alleged against the accused? (ii) Whether the impugned judgment is suffering from legal infirmity or perversity? (iii) Whether the sentence is excessive? (iv) What Order? 21. REGARDING POINT Nos.1 AND 2: In the case on hand, the unfortunate incident that occurred on 08.02.2011 is established by the prosecution by placing cogent and convincing evidence on record. The deceased is none other than the wife of the accused. - 8 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 22. Learned Sessions Judge in the impugned judgment has taken into consideration the attendant facts and circumstances of the case and came to a categorical conclusion that the material on record would not attract the offence punishable under Section 302 of the Indian Penal Code, inasmuch as, there was no proper proof for the motive and actual preparation for the offence punishable under Section 302 of the Indian Penal Code is concerned, and therefore, scaled down the offence alleged against the accused from 302 to 304 Part II of the Indian Penal Code. 23. However, the material evidence on record would also go to show that accused assaulted the deceased with M.O.1 and part chosen for assault is the head, resulting in death of the injured. Therefore, there is sufficient force in the argument put forth on behalf of the prosecution that intention and knowledge should be gathered from the attendant facts and circumstances of the case. 24. Since the conviction of the accused is for the offence punishable under Section 304 Part II of the Indian Penal Code as against the charge for the offence punishable under Section - 9 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 302 of the Indian Penal Code, if at all the State is aggrieved, it should have filed an appeal. 25. In an appeal filed by the accused, State cannot argue that higher offence is attracted. 26. Therefore, conviction for the offence punishable under Section 304 Part II of the Indian Penal Code needs to be maintained. 27. The material on record also establishes that there was no explanation whatsoever offered by the accused except denying the incriminatory circumstances at the time of recording the accused statement. 28. All these factors when viewed cumulatively, this Court does not find any legal infirmity or perversity in the Sessions Judge recording the Order conviction against the accused for the offence punishable under Section 304 Part II of the Indian Penal Code in the peculiar, attendant facts and circumstances of the case. - 10 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 29. Admittedly, the incident has occurred at the spur of the moment and therefore, the question of motive and preparation would not arise in the case on hand. 30. Cumulative consideration of the material on record thus supports the view taken by the learned Sessions Judge in the impugned Judgment to maintain the conviction of the accused for the offence punishable under Section 304 Part II of the Indian Penal Code; more so, having regard to the fact that the learned Sessions Judge has discussed at length the principles of law enunciated in various judgments of the Hon’ble Apex Court while arriving at a conclusion that the case on hand requires scaling down of the offence punishable under Sectin 304 Part II of the Indian Penal Code as against the Charge for the offence punishable under Section 302 of the Indian Penal Code. 31. In view of the above discussion, point No.1 is answered in the affirmative and point No.2 is answered in the negative. 32. REGARDING POINT No.3: In the case on hand, accused was in custody from 08.02.2011 to 08.03.2011. Since the Order of conviction is for the offence punishable under Section 304 Part II of the Indian Penal Code, learned Sessions Judge - 11 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 had the discretion to Order for sentence of imprisonment or fine or both. 33. Learned Sessions Judge has taken into consideration the attendant facts and circumstances of the case and in her discretion she has granted the sentence of imprisonment and fine as referred to supra. 34. Taking note of the fact that the elder daughter of the accused is now married and living with her husband and marriage was performed by the accused to the satisfaction of his elder daughter, and the other two children are to be maintained by the appellant, ordering the appellant/accused to undergo imprisonment as per the impugned judgment would result in sufferance to the family of the accused as there are no other members to maintain his children who are yet to be settled in life. 35. Under such circumstances, if the custody period already undergone by the accused is directed to be treated as the period of imprisonment by enhancing the fine amount in a sum of Rs.2,00,000/- of which Rs.1,00,000/- each to be kept in - 12 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 fixed deposit in the names of unmarried children of the accused for their future requirements, ends of justice would be met. 36. Accordingly, point No.3 is answered partly in the affirmative. 37. REGARDING POINT No.4: In view of the finding of this Court on point Nos.1 to 3, the following: ORDER (i) The Criminal Appeal is allowed in part. (ii) While maintaining the conviction of the accused for the offence punishable under Section 304 Part II of the Indian Penal Code, sentence ordered by the learned Sessions Judge is modified as under: (a) Period of imprisonment undergone by the accused between 08.02.2011 to 08.03.2011 at the time of investigation/trial is treated as the period of imprisonment for the aforesaid offence by enhancing the fine amount in a sum of Rs.2,00,000/- (plus Rs.2,000/- ordered by the learned Sessions Judge) totaling to Rs.2,02,000/-. (b) The said fine is ordered to be paid by the accused on or before 20th February 2025. - 13 - NC: 2025:KHC:1245 CRL.A No. 1137 of 2012 (iii) After deposit of the fine amount, Rs.1,00,000/- each is ordered to be kept in fixed deposit in the names of unmarried son and daughters of the accused for a period of five years to meet their future expenses and thereafter, release the amount under due identification. (iv) Balance sum of Rs.2,000/- shall vest with the Government towards defraying expenses of the State. (v) Office is directed to return the Trial Court Records with copy of this Order, forthwith. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 61