IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 71H DAY OF APRIL, 201 1 BEFORE THE HON’BLE MR. JUSTICE V. JAGANNATHAN CRL.A, NO32/2007 BETWEEN: M.CHANDRAPPA S/O KCHAUDAPPA. AGED 24 YEARS. HINDU \‘LMIKE, AGRICULTURIST, R/ 0 DOOPADAHALLI, KUDLIGI TALUK. APPELLANT (BY SRI .T.R.PATIL, AMICUS CURIAE) AND: THE STATE BY SUBJNSPECTOR OF POLICE, KOTT’UR. RESPONDENT (BY SRI.AN AND K. NAVALGIMATH. HCGP) THIS CRIMINAL APPEAL IS PREFERRED BY THE CONVICT/APPELLANT/ACCUSED THROUGH THE SUPERINTENDENT, CENTRAL PRISON. BELLARY AGAINST THE JUDGMENT & ORDER DT.25/26,04.06 PASSED BY THE DIST,, & SJ., (P.O) FTCIII, HOSPET IN SC.NO.2/05 CONVICTING AND SENTENCING THE ?PPELLANT /ACCUSED FOR THE OFFENCES AS STATED THEREIN. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLoWING: JUDGEMENT This criminal appeal is preferred by accused No.1 who is convicted in respect of the offences punishable under Sections 304-I, 498A and 342 of the IPC. Accused No.1 sentenced to undergo R.I. for 8 years and to pay a fine of Rs.5,000/- and in default, undergo further R.l. for 1 year for the offence punishable under Section 304-I of IPC; and further sentenced him to undergo 2 years R.I. and to pay a fine of Rs. I ,000/- and in default, to undergo 4 months R.I. for the offence punishable under Section 498A of IPC, and to undergo 2 months R.I. and to pay a fine of Rs.300/- and in default, to undergo R.l. for 10 day for the offence punishable under Section 342 of IPC. 2. The prosecution case in short is that the appellant herein was married to Smt.Basamma @ Kotramma about 1 ‘/ years prior to her death and after the marriage, the accused namely, the husband and mother-in-law of the deceased suspected the character of the deceased and in this connection, they used to quarrel with her, beating her, and abusing her. 15 days prior to the incident, deceased was I taken to her mother’s house for Panchami festival. Thereafter, she was brought to the house of her husband and again accused abused her. On 01 .10.2004 at about 1.00 p.m. accused demanded from deceased her golden bendole (ear-studs), as the accused wanted money. The deceased refused to give her ear-studs and in the evening after coming home, accused took food and accused No.1- husband slept with his wife and accused No.2-mother slept outside the house. Thereafter, accused Nos. 1 and 2 told the deceased that they would give deceased a suitable punishment and in the midnight at about 1.00 a.m. accused Nos. I and 2 poured kerosene on deceased and set her ablaze. 3. The deceased shouted and called for help and neighbouring witnesses namely Neelamma, Hanumanthappa, one Yenne Gowdara Eranna and others came and poured water and deceased was taken to the hospital for treatment. ln the hospital, deceased informed about the incident to her father and the case was registered against the accused for the offences punishable under 4 Sections 498A, 323, 324, 342, 307 of IPC. Thereafter, deceased was taken to the Government hospital and she made one more statement before the Taluka Magistrate as per Ex.P6. After completion of the investigation, charge sheet was filed. 4. At the trial, accused pleaded not guilty, the prosecution examined P.Ws. 1 to 15 and got marked Exs.P1 to 19 and M.Os. I to 3. Accused statement was recorded and accused denied the prosecution case. No evidence was lead on behalf of the accused, except marking one document Ex.DI. 5. The learned trial Judge after careful appreciation of the evidence on record, found that the dying declaration made by the deceased was reliable arid trustworthy, though the other witnesses turned hostile and by accepting the dying declaration, accused were convicted in respect of the offences punishable under Sections 304-I, 498A and 342 of IPC. Further, accused No.2 was convicted in respect of the offences punishable under Sections 498A and 342 of the IPC. 6. Accused No.2 was given set off by adjusting the period spent in custody with the sentence passed against her. 7. Therefore, in this appeal only accused No.1 calls in question the judgement of conviction and sentence passed. 8. Learned counsel Sri.T. R. Patil, who is appointed as Amicus Curiae by this Court on behalf of accused No.1, argued that, except the dying declaration, there is no other evidence and, therefore, the conviction of the appellant is not proper. He referred to the evidence in this regard and also to the evidence of Taluka Executive Magistrate, who was examined as P.W.7. In the alternative, the submission made is that, as the appellant has undergone 5 years and 5 months in custody, the said period has to be given set off against the sentence imposed by the trial court in respect of the offence punishable under Section 304-1 of the IPC. 6 9. On the other hand, the submission of the learned High Court Government Pleader for the State is that, the trial court has earefuib analyied the evidence on record and also the law laid down b the Apex court in respect of accepting the dying declaration alone to base the conviction. Secondly, it is argued by him that, the defence taken by the accused has not been established and, therefore, this also goes to prove the prosecution case that the incident happened in the house of accused and not in the house of deceased. As such, the judgcment of conviction does not require any interference. So far as the sentence is concerned, learned High Court Government Pleader for the State submits that the sentence awarded is also proper. lu. Having thus heard both sides and after carefully going through the evidence on record and the reasons given the trial court, I find that, the trial court has accepted the dying declaration made b3 the deceased in the presence of the Taluka Magistrate and secondly, the defence theo that the incident has occurred in the house of the deceased had not been established because no defcne evidence was 7 placed. Since the death has occurred almost after 7 months of the incident, the learned trial judge thought it fit to convict the appellant in respect of the offence punishable under Section 304-1 of IPC. Thus, having carefully gone through the entire material on record, the court below has properly appreciated the evidence and has rightly convicted the appellant in respect of the offences mentioned earlier. 11. Therefore, what remains is the sentence part of the case. The trial court has sentenced the appellant to undergo 8 years R.l. in respect of the offence punishable under Section 304-1 of IPC. The appellant has spent 5 years and 5 months in custody. The death occurred long after the incident and almost after 7 months. Accused No.2 was also alleged to have joined hands with accused No.1 in setting fire to the deceased. However, the trial court did not convict her for the offence punishable under Section 304-1 of IPC. 12. Taking all these factors into account, in my view, the sentence period already, undergone in custody can be given set off against the sentence imposed by the trial court 6 8 in respect of the offences punishable under Sections 304-I, 498A and 342 of the IPC. However, the fine imposed by the trial court will have to be paid by him and in default of payment of fine, he will have to undergo the default sentence. 13. For the above reasons, the appeal is allowed in part to the extent of setting off the period already undergone in custody as against the sentence imposed by the trial court in respect of the offence punishable under Section 304-I of the IPC. If the fine amount is paid by the appellant within three months from the date of receipt of copy of this judgement, he shall be set at liberty. 14. Since, learned counsel Sri.T.R.Patil has assisted the court as Amicus Curiae, his pay is fixed at Rs.3,000/- and the same shall be paid to him forthwith by the registry. JUDGE MBS/