STATE OF KARNATAKA Vs. R VARADARAJU

JUDGEMENT

(1.) Both these appeals arise out of the judgment of the trial Court under which on a charge under Section 302, IPC, the trial Court found the accused-respondent guilty under Section 304, Part-I, IPC and sentenced him to suffer R.I. far two years and giving set off of the period of detention already undergone under Section 428, Cr. P.C. directed him to serve the remaining sentence. As the appeals arise out of judgment of the trial Court finding the accused guilty for causing the death of his wife Bhagyalaxmi alias Bhagyamma on 27-3-1987 between 1.30 and 2 p.m. in his house at Bangalore by assaulting her with at carpenter's chisel, both the appeals could be brought under a narrow compass. The prosecution case is that the deceased had adulterous connection with one Bhaktavatsala and this serving as a motive, on the afternoon of this incident, the accused came to his house when his two children were out, bolted the door from inside and then assaulted her to death by inflicting multiple injuries with the carpenter's chisel. He then came out which was noticed by P.W. 1 a next door neighbour and whose wife was also working rolling incense sticks along with the deceased then he followed the accused and took him to the police station at Rajajinagar, produced him before P.W. 12 and thereafter on his advice took him to the Basaveswaranagar Police Station, which was the jurisdictional police station, produced before PSI-P.W. 13 at 3.30 p.m. and also filed his report which was treated as the first information by P.W. 13 and a case was registered under Section 302, IPC. Undisputedly the dead body of the said Bhagyalaxmi was lying in his house with multiple injuries when inquest was held and body subjected to autopsy. It was P.W. 17 who took over investigation and completed it. The accused was apprehended when he was produced in the police station by P.W. 1. He is said to have produced the chisel as well as the blood-stained clothes from his house where he had secreted them. As far as the prosecution evidence is concerned it was one of the circumstances proving the guilt of the accused. P.W. 1, P.W. 4 and P.W. 5 gave evidence of movements of the accused and P.W. 5 is none else than the daughter of the accused and the deceased. They spoke about they hearing cries from inside the house that afternoon, the accused coming out and then leaving the house and the body of the deceased with multiple injuries lying in the house. In addition to this circumstantial evidence there is also before Court the confession of the accused recorded by the 1st additional Chief Metropolitan Magistrate, Bangalore on 4-4-1987. The trial Court acting on this evidence given by the prosecution witnesses mainly P.Ws. 1, 4 and 5 and also considering the circumstances stated by the accused in his confession found that the case of the accused falls under Exception No. 1 of Section 300, IPC, found him guilty under Section 304, Part-I, IPC convicted him and sentenced to undergo R.I. for two years. The State has challenged the acquittal of the accused under Section 302, IPC in Criminal Appeal No. 870/1988 and in Criminal Appeal No. 871 of 1988 alternatively has sought for enhancement of sentence even for the offence under Section 304, Part-I, IPC in the event of the Court confirming the judgment of the trial Court.

(2.) As the respondent-accused was unrepresented we appointed Sri A. J. Gunjal, Amicus Curiae to assist us in this appeal and he has ably done so.

(3.) The circumstantial evidence by itself without the confession being looked into could prove the offence under Section 302 IPC but the trial Court looked into the confession even though the learned Magistrate who recorded it was not examined presumably acting under Section 80 of the Evidence Act and finding that there are circumstance, which gave rise to grave and sudden provocation found the accused guilty under Section 304 Part-I IPC. We gave our anxious thought to the propriety of the learned Sessions Judge looking into the confession when the evidence of the Magistrate who recorded it not being before him. It must be said that the learned High Court Government Pleader was fair enough to bring to our notice Section 80 of the Evidence Act which reads as follows :-