STATE OF KARNATAKA Vs. LAXMAN

JUDGEMENT

(1.) IT is necessary to brief the circumstances under which this Court was required to hear this Criminal Appeal on merits.

(2.) THE respondent-accused was charged for having committed an offence punishable under Section 302. IPC in Sessions Case No. 14/96 and stood his trial before the learned Sessions Judge. Uttara Kannada. Karwar. Briefly stated the charge against him was that on the morning of 24th September. 1995 at about 10. 30 a. m. he had inflicted an injury on the deceased Smt. Umabai Ganapathi Bhat while the lady in question was in the bathroom of the house. The accused is alleged to have inflicted the injury with a sickle as a result of which the spinal cord was cut and the deceased virtually died on the spot. The accused is alleged to have run away with the weapon and it is alleged that in the course of the investigation the weapon was recovered pursuant to certain statements made by him. The learned Sessions Judge held the accused guilty of the offence punishable under Section 302. IPC and convicted him but while imposing the sentence awarded a sentence of 10 years RI. Against this conviction and sentence the State has preferred the present appeal the short point being that once the accused was convicted under Section 302. IPC the Court was required under the law to impose the sentence of R. I for life or the higher sentence and that the awarding of 10 years R. I was not permissible and consequently that the sentence be enhanced. This Court issued notice to the respondent-accused and it is relevant for us to record that the accused had not preferred any appeal against the conviction and sentence. Pursuant to the notice being served on the respondent accused he was not represented before this Court and this Court proceeded on the basis that the respondent-accused had no ground on which to show cause why that the sentence in question be enhanced. This Court had also called for the report from the Trial Judge on the question as to how and under what circumstances the sentence of 10 years R. I. was awarded in a conviction under Section 302, IPC.

(3.) ON receipt of the report from the learned Sessions Judge, this Court reconsidered the matter and took cognizance of the fact that in a case where enhancement of sentence is sought and notice is issued to the accused, that having regard to the provision of Section 377 (3) of the Cr. P. C. as interpreted by the Supreme Court and other Courts from time to time, that it is a well settled principle of law that the whole issue is open in so far as it is competent for the accused to argue that a lesser sentence be awarded or that the accused be acquitted. At that stage, the Court appointed learned Advocate Sri B. Nagaraj to appear as Amicus Curiae on behalf of the respondent-accused. Notice was also once again issued to the accused-respondent whereupon he engaged the services of a learned Advocate Smt. Anasuya who filed her appearance on his behalf Learned Advocate for the respondent reiterated the position that the whole issue is wide open and that therefore, the appeal would have to be heard on merits and should not be restricted only to the question of sentence and we have upheld this contention in view of the settled position in law and directed that the appeal be heard on merits. Since however by this time the respondent accused had briefed his Counsel and desired that she should represent him, we dictated a separate order and issued certain direction to the office with regard to the payment of professional charges etc. , to the learned Advocate Mr. B. Nagaraj who had been appointed as amicus curiae and we have proceeded to hear the learned State Public Prosecutor and the respondents learned Advocate and we have also briefly heard Mr. B. Nagaraj.