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2007 DIGILAW 472 (KAR)

AJAYA SWAMI v. STATE

2007-08-01

R.B.NAIK, V.G.SABHAHIT

body2007
V. G. SABHAHIT, J. ( 1 ) THIS appeal by the accused in S. C. No. 110/2002 on the file of the II Addl. Sessions Judge, Dakshina Kannada, Mangalore, is directed against the judgement of conviction and sentence dated 06. 11. 2003, wherein the appellant-accused has been found guilty of having committed the offence punishable under Section 302 IPC. , and sentenced to undergo imprisonment for life and to pay a fine of rs. 5,000/- and in default of payment of fine, to undergo simple imprisonment for six months. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows:- ( 2 ) IT is the case of the prosecution that accused - Ajaya Swamy and Babu, the deceased, PWs. 2, 3, 5 to 9 had come to Mangalore for doing coolie work and they were staying in a semi constructed building called Trinity building. They were going for coolie work to different places. Babu was working as bar bender. Accused was working as a coolie in the construction work. Accused was keeping his utensils in the premises in the occupation of PW2, but, he was sleeping in the first floor of the semi-constructed building. There was electrical connection to the said building and there was sufficient light provided by Tube lights in the corridor also. Ajay Swamy and Babu had good relation. However, enmity developed between them and they started quarrelling with each other. On the date of the incident i. e. , 27. 07. 2002, PW. 2 and others heard the noise of quarrel between the accused and Babu, the deceased. They went near the place where the quarrel was going on. Accused and Babu were abusing each other regarding money. PW. 2 and others separated them and pacified them. Thereafter, about 15 to 20 minutes later, again, accused and babu started quarrelling and PW. 2 and others came to the spot and p. S. I. , also came to the spot and separated accused and Babu and advised accused and Babu not to quarrel and informed PW. 2 to telephone to the Police, if they quarrelled again. However, 15 to 20 minutes later, again PW2 and others heard noise of quarrel between the accused and Babu and they went near the place where the accused and Babu were quarrelling. 2 to telephone to the Police, if they quarrelled again. However, 15 to 20 minutes later, again PW2 and others heard noise of quarrel between the accused and Babu and they went near the place where the accused and Babu were quarrelling. Accused took out a knife which he had brought and stabbed Babu on his chest and Babu fell down. PW1 was on night rounds along with PW15 and they were going in the jeep bearing No. CAG 509 and they received information at about 11:55 p. m. on 27. 07. 2002 from the control room from PW18 and immediately, they went to the spot and found that one person had fallen down with bleeding injuries in the cellar portion of the semiconstructed building. He made enquiry as to what had happened. PW2-Sangappa informed PW1 about the incident and the fact that the accused had stabbed Babu and as a result, Babu sustained injury on his chest and had fallen down. Immediately, Babu was taken in the Police Jeep to the District Hospital at Mangalore and was admitted to the Hospital. PW1 went to the Police Station and lodged the report as per Ex. P1. PW19, who was working as A. S. I. , received ex. P1 filed by PW1 and registered the same in Crime No. 182/2002 and prepared F. I. R. , and sent the same to the Court and to his superior officers. The injured-Babu succumbed to the injuries caused by stabbing by the accused and died on 28. 07. 2002 at 1. 10 a. m. On 28. 07. 2002, accused was produced before PW19. The shirt which accused was wearing was stained with blood and the said shirt -M. O. No. 10 was seized under mahazar - Ex. P15. Further investigation of the case was taken over by PW20, who went to wenlock Hospital and conducted inquest over the dead body and found two stab injuries on the body of Babu and prepared inquest mahazar as per Ex. P3. He seized the clothes worn by the deceased babu under Ex. P4. On the basis of the voluntary statement given by the accused before PW22 as per Ex. P27, accused led Police and pw4 and showed the place where he had concealed the knife (choori)-M. O. No. 1 and the same was seized under the mahazar-Ex. P5. P3. He seized the clothes worn by the deceased babu under Ex. P4. On the basis of the voluntary statement given by the accused before PW22 as per Ex. P27, accused led Police and pw4 and showed the place where he had concealed the knife (choori)-M. O. No. 1 and the same was seized under the mahazar-Ex. P5. After completing the investigation, charge-sheet was filed against the accused of having committed the offence punishable under section 302 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution examined PWs. 1 to 22 and got marked Exs. P1 to P30. On behalf of the accused, Ex. D1 was got marked in the evidence of PW3. Statement of the accused under Section 313 cr. P. C. , was recorded. The defence of the accused is one of denial. The accused did not lead any defence evidence. The trial Court after considering the contentions of the learned Public Prosecutor and the learned counsel appearing for the accused and appreciating the oral and documentary evidence adduced by the prosecution by its judgement dated 06. 11. 2003, held that the prosecution has proved beyond reasonable doubt that Babu suffered homicidal death and the prosecution has proved that it was accused who caused murder of babu and thereby committed the offence punishable under Section 302 IPC. , and after hearing the learned counsel appearing for the accused and the accused, sentenced the accused to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default, to undergo simple imprisonment for six months for the offence punishable under Section 302 IPC. Being aggrieved by the said judgment of conviction and sentence, the accused is before this Court in this appeal. The appeal was presented by the accused through the Jail superintendent. Sri Mallikarjun S. Masali, learned counsel was appointed as Amicus Curiae to present the case of the appellant. ( 3 ) WE have heard the learned counsel appearing for the appellant and the learned State Public Prosecutor. Having regard to the contentions urged, the points that arise for our consideration in this appeal are: 1. Whether the finding of the trial Court that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 302 IPC. , is justified or calls for interference in this appeal? 2. Having regard to the contentions urged, the points that arise for our consideration in this appeal are: 1. Whether the finding of the trial Court that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 302 IPC. , is justified or calls for interference in this appeal? 2. Whether the sentence imposed upon the appellant-accused by the trial Court calls for interference in this appeal ? we answer the above points for consideration as follows:-Point No. 1: The finding of the trial Court that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 302 IPC. , is justified and does not call for interference in this appeal. Point No. 2 : in the negative for the following: reasons ( 4 ) LEARNED counsel appearing for the appellant has taken me through the evidence of PWs. 1 to 22 and the contents of the documents got marked by the prosecution and the accused and submitted that the prosecution has failed to prove the guilt of the accused and even if the evidence of the eye witnesses, PWs. 2 and 5 and the evidence of the Medical Officer and other material on record is accepted, the prosecution has not proved beyond reasonable doubt that the appellant has committed the offence punishable under Section 302 IPC. , and the offence would fall under fourth exception to Section 300 IPC. , and wherefore, the judgement of conviction and sentence passed by the trial Court is liable to be set aside or modified. ( 5 ) ON the other hand, the learned State Public Prosecutor submitted that the trial Court has rightly appreciated the evidence adduced by the prosecution and having regard to the fact that the quarrel between accused and Babu took place thrice and accused took undue advantage of the fact that Babu was not armed and took out knife and stabbed Babu and caused his murder, would show that the offence committed by the accused does not fall within exception 4 to Section 300 IPC. , and wherefore, the finding of the trial Court that the accused has committed the offence punishable under Section 302 IPC. , is justified. ( 6 ) WE have given anxious consideration to the contentions of the learned counsel appearing for the appellant and the learned State public Prosecutor. , and wherefore, the finding of the trial Court that the accused has committed the offence punishable under Section 302 IPC. , is justified. ( 6 ) WE have given anxious consideration to the contentions of the learned counsel appearing for the appellant and the learned State public Prosecutor. ( 7 ) THE prosecution is relying upon the evidence of PWs. 1 to 22 and the contents of the documents, Exs. P1 to P30, to bring home the guilt of the accused. PW1 is the P. S. I. , who lodged the report as per ex. P1. PWs. 2, 3, 5, 6 to 8 are examined as eye witnesses. PWs. 2 and 5 have supported the case of the prosecution. PWs. 3 and 6 to 8 have not supported the case of the prosecution fully regarding stabbing of Babu by the accused. PW4 has been examined to show that he had advised the accused and Babu not to quarrel and he had pacified them in the earlier incident on the same day preceding the incident in which Babu was stabbed by the accused. PW9 is a witness to the mahazar, Exs. P4, P5 and P9. PW10 is a witness to the mahazar, exs. P3 and P4. PW11 is a witness to the spot mahazar, Ex. P14. PW12 is a witness to the mahazar- Ex. P15. PW13 is the Medical officer who conducted postmortem examination on the dead body of Babu and issued postmortem report as per Ex. P16. PW14 is the scientific officer who issued serology report as per Exs. P 18 to P21. PW15 is the Police Constable who had accompanied PW1 during the night rounds. PW16 is the Police Constable who has scribed the mahazar, Exs. P3 and P4. PW17 is the Police Constable, who collected doctor's opinion - Ex. P 17 and submitted the same to the Investigation officer. PW18 is the Police Constable attached to the control room, who received the telephone message from PW3-Sadashiva. PW19 is the P. S. I. , who registered the complaint-Ex. P1. PW20 is the P. S. I. , who conducted inquest as per panchanama - Ex. P3. PW21 is the architect of the building, wherein offence had taken place. PW22 is the P. S. I. , who took over further investigation and filed charge-sheet against the accused after completing the investigation. P1. PW20 is the P. S. I. , who conducted inquest as per panchanama - Ex. P3. PW21 is the architect of the building, wherein offence had taken place. PW22 is the P. S. I. , who took over further investigation and filed charge-sheet against the accused after completing the investigation. It is clear from the above said evidence adduced by the prosecution that the prosecution is left with the evidence of PWs. 2 and 5, who are eye witnesses to the incident as also the evidence of the Medical Officer- PW13 and seizure of M. O. No. 1 - knife on the basis of the voluntary statement given by the accused and other material on record to bring home the guilt of the accused. ( 8 ) PW2-SANGAPPA has stated in his evidence that himself and other workers including accused and Babu were staying in Trinity building, which was semi-constructed having two floors. He was living in the cellar. Accused was doing coolie work and Babu was doing bar bending work. Though accused was staying separately from PW2, he was keeping his utensils in the premises in the occupation ofpw2. He has further deposed that the relation between the accused and Babu was cordial before the incident. However, they had started quarrelling with each other. On the date of the incident, they had gone for coolie work and had returned in the evening after receiving wages. He has further deposed that he had taken his dinner and he heard the noise of acquittal. Himself and others went near the spot. Accused and Babu were abusing each other and he advised accused and Babu and pacified them and thereafter, they went to their place. About 15 to 20 minutes later, again, they heard the noise of quarrel at the cellar portion of the building. At that time, Police who were on beat duty, had come there. They pacified accused and Babu and asked them not to quarrel and informed the witness that he should telephone to the Police if they quarrelled again and gave the telephone number to him. He has further deposed that about 15 to 20 minutes later, again he heard the noise of quarrel near the room which was in the occupation of the witness. Accused and Babu had started quarrelling again and he went near the spot and tried to pacify them. He has further deposed that about 15 to 20 minutes later, again he heard the noise of quarrel near the room which was in the occupation of the witness. Accused and Babu had started quarrelling again and he went near the spot and tried to pacify them. However, accused took out a knife, which he had brought in a bag, and stabbed Babu on the left side of his chest. He saw the accused stabbing Babu. Babu fell down on the ground. They went and tried to bring an Autorickshaw to take Babu to the Hospital, but, autorickshaw driver refused to come and Police came in a Jeep and babu was shifted in the Jeep of the Police to the Hospital. He did not see where the accused in the night had gone after the incident and at about 1 a. m. , they received the information that Babu had died. He has further stated that Sadashiva (PW3) was present at the spot during the incident, wherein the accused stabbed Babu. He has identified m. O. No. 1 as the knife which was used by the accused for stabbing babu. It is elicited in the cross-examination of PW2 that it was raining on the said day and he is still residing in Trinity building in the Car parking area. Police have enquired him during investigation and he has not seen the injury on the neck, chest and the face of the accused. He has denied the suggestion that he is deposing falsely. ( 9 ) PW3-SADASHIVA has deposed in his evidence that they were residing in the Trinity building, which was semi-constructed. Accused and Babu were also residing there. He had returned from coolie work after receiving wages as it was a Saturday and at about 11 p. m. , he heard the noise of quarrel. Immediately, he went out and saw accused and Babu, who were quarrelling regarding money and several persons had assembled there and at that time, Police also came there and pacified accused and Babu and asked the witness to telephone them if accused and Babu quarrelled again and gave telephone number. Sometime thereafter, he heard the noise of galata and went to the spot and saw that Babu had already fallen down and accused was present at the spot and he informed the Police about the incident. At this stage, witness was treated as hostile. Sometime thereafter, he heard the noise of galata and went to the spot and saw that Babu had already fallen down and accused was present at the spot and he informed the Police about the incident. At this stage, witness was treated as hostile. Nothing has been elicited in his cross-examination to show that he witnessed the accused stabbing Babu with a knife and it is elicited in his cross-examination by the learned counsel appearing for the accused that it is not true to suggest that there was no quarrel between accused and babu regarding money. It is further elicited that he has not stated in the statement before the Police that himself and his wife had gone to sleep at 8:30 p. m. , on the date of the incident after finishing their dinner. It is clear from the evidence of PW. 3 that though he has been treated as hostile to the prosecution case with regard to the fact that he has not seen the accused stabbing Babu, he has clearly spoken to about the incident of quarrel that took place between accused and babu and police having come to the scene and pacified the quarrel and separated accused and Babu and about the third incident of quarrel between accused and Babu and wherefore, his evidence is helpful to the prosecution to that extent. ( 10 ) PW. 4 G Keshava has stated in his evidence that he was doing barbending work and 7 persons are working under him and Babu was also working under him and he was from Bangalore and he was staying in Trinity building which was under construction. During 27/28, in the early morning, while he was sleeping, Mastry Sadashiva informed him that Babu had been stabbed and that he had been shifted to the hospital. Immediately he went to the hospital. He has further deposed that prior to the incident, there was quarrel between Babu and accused regarding money and he has pacified them in Panchayat. This witness is treated as hostile as he did not support the case of the prosecution with regard to the seizure of the knife (MO. 1) on the basis of the voluntary statement of the accused and he was permitted to be cross-examined by the Public Prosecutor. This witness is treated as hostile as he did not support the case of the prosecution with regard to the seizure of the knife (MO. 1) on the basis of the voluntary statement of the accused and he was permitted to be cross-examined by the Public Prosecutor. However, his evidence is helpful to the prosecution in so far as it relates to the fact that there is enmity between the accused and Babu and they were quarrelling regarding money. ( 11 ) PW. 5 Prakash is examined as an eyewitness to the incident and he has stated in his evidence that he was doing coolie work and he knew Babu and there was quarrel between accused and Babu regarding money. On the date of incident, which is Saturday, he heard the noise and went to the spot and other had also gathered and police had come to the spot and pacified the accused and Babu and thereafter, he came back to his place where he was residing in the same building in the basement floor and at about 11. 45 or 12. 00 in the night he heard noise and went to the spot and found that accused and Babu were quarrelling again by way of abusing each other and there was a scuffle between accused and Babu and accused took out the knife and stabbed on the chest of Babu. Babu fallen down by sustaining bleeding injuries and police came to the spot, as Sadashiva (PW. 3) had telephoned to them and the injured was shifted to the hospital and he learnt at about 1 o' clock in the night that Babu died and on the next day morning he went and saw the dead body of babu. It is elicited in the cross-examination of this witness by the defence that the police have recorded his statement on the next date of the incident and that he reached the spot after 5-6 minutes after hearing the noise of quarrel between accused and Babu and it is not true to stay that he has not seen the accused stabbing Babu with knife and that he is deposing falsely. ( 12 ) PW. ( 12 ) PW. 6 Yellappa is also examined as an eyewitness to the incident and he has deposed in his evidence that he does not know anything about the fact as to whether there was a quarrel between accused and Babu regarding money. However, on the date of incident which was a Saturday at about 10. 30 p. m. there was a galata between accused and Babu and he does not know the reason for the quarrel, several persons had assembled there, the police advised the accused and Babu not to quarrel and thereafter he went and slept. After the police went away from the scene, there was again quarrel between accused and Babu and they were abusing each other and he came back to his shed and slept. At this stage, the witness was treated as hostile and he was permitted to be cross-examined by the Public prosecutor. Nothing has been elicited in his cross-examination in support of the case of the prosecution. However, he has denied the suggestion made in the cross-examination by the learned counsel for the accused that it is not true to say that there was no quarrel at all between the accused and Babu. ( 13 ) PW. 7 Basavaraj is also examined as an eyewitness to the incident and he has stated in his deposition that on the date of incident at about 9. 30 p. m. accused and Babu were quarrelling, he went and slept and that he has not seen the accused stabbing Babu with knife. At this stage, witness has been treated as hostile and he was permitted to be cross-examined by the Public Prosecutor and nothing has been elicited in his cross-examination, which is helpful to the case of the prosecution regarding accused stabbing Babu. ( 14 ) PW. 8 Annu has also been examined as an eyewitness to the incident and he has deposed regarding quarrel took place between accused and Babu and the visit of police and pacifying the quarrel. He further deposed that again he heard the noise, he went to the spot and found that Babu had fallen on the ground and he was not in a position to talk and several people had assembled at the spot. He has not seen the accused stabbing Babu with knife. He further deposed that again he heard the noise, he went to the spot and found that Babu had fallen on the ground and he was not in a position to talk and several people had assembled at the spot. He has not seen the accused stabbing Babu with knife. At this stage, the witness was treated as hostile and he was permitted to be cross-examined by the Public Prosecutor and nothing has been elicited in the cross-examination of this witness to support the case of the prosecution regarding the fact that accused stabbing Babu with knife and caused the injuries. ( 15 ) PW. 13 Dr. P. Saroj a is the Medical Officer who conducted the post mortem examination over the dead body of Babu and she has stated in her evidence that she has conducted post mortem examination over dead body of Babu and found the following injuries. i) Incised penetrating wound over the anterior chest wall on the left side 1" above and lateral to left nipple. Oblique situated 1/3" x " penetrating inside. ii) Incised wound over the lateral aspect of the left thigh in upper 1/3 vertical 1/3" x " up to the muscle. She has further deposed that on dissection, she found the following injuries: i) The thorax was found containing a punctured wound just below the 3rd rib at the same level as injury No. 1 above. ii) Pleurae were punctured. About 1 liter of blood was found in the cavity. iii) Left lung collapsed lateral aspect of the middle lobe of left lung found punctured up to 1" cutting the lung tissues leading bleeding in the pleurae and thoracic cavity. She has further deposed that the death might have occurred within 6 to 18 hours prior to the post mortem examination and she has opined that death was due to shock and hemorrhage as a result of injuries to the lungs and she has issued the post mortem examination report as per Ex. P. 16. She has further deposed that on 30. 08. 2002, Mangalore south Police had sent a weapon with a requisition to render her opinion as to whether the injuries found on the body of Babu could be caused by the weapon sent. On examination of the said weapon (MO. 1)she has rendered her opinion as per Ex. P. 17 opining that the injury nos. 08. 2002, Mangalore south Police had sent a weapon with a requisition to render her opinion as to whether the injuries found on the body of Babu could be caused by the weapon sent. On examination of the said weapon (MO. 1)she has rendered her opinion as per Ex. P. 17 opining that the injury nos. 1 and 2 could be caused if an assailant were to stab with it and she has identified MO. 1 knife as the weapon which was sent for her opinion. Nothing has been elicited in her cross-examination to disbelieve her evidence regarding the injuries found on the body of babu and the fact that those injuries found on the body of could be caused by the weapon MO. 1 -knife. She has denied the suggestion made by the defence that if a person were to fall from a height namely from a building under construction on a projected portion like rod and on the other materials, injury Nos. 1 and 2 could be caused and if immediate attention had been given to the injured there was possibility of his survival. It is not true to suggest that in order to oblige the police she had issued opinion as per Ex. P. 17. Thus, the evidence of pw. 13, the Medical Officer clearly proves beyond reasonable doubt that Babu had sustained stab injury on his chest which would be caused by the knife MO. 1 and that Babu suffered homicidal death. Though it is elicited in the cross-examination of the Medical Officer that injury found on the body of Babu could be caused if a person falls from a height namely from a building under construction on a projected portion like rod and on the other materials, the same would not in any way helpful to the accused, inasmuch as, it is not the defence taken by the accused in the present case and no suggestion in that behalf is made either to the eyewitnesses or any statement is made in that behalf in the statement of the accused recorded U/s. 313 of Cr. P. C. Wherefore, the said suggestion would not in any way helpful to the accused, in view of the fact that, that is not the evidence prosecution relied upon to bring home the guilt of the accused and wherefore, the finding of the trial Court that Babu suffered homicidal death is unassailable and it is entitled to be confirmed. ( 16 ) ON re-appreciation of the evidence of PWs. 2 and 5 as also the evidence of PW. 3 and PWs. 6 to 8 it is clear that PWs. 2 and 5 who have supported the case of the prosecution and other eyewitness pws. 3, 6 to 8 though have not supported the case of the prosecution only in so far as it relates to accused stabbing Babu with knife, they have spoken to about the quarrel that took place on two occasions on the date of incident between accused and Babu and they have witnessed the said incident. The eyewitness to the incident, namely pws. 2 and 5 clearly spoken about accused stabbing of Babu with knife (MO. 1) and nothing has been elicited in the cross-examination of PWs. 2 and 5 to discard their evidence regarding the quarrel that took place between accused and Babu on three occasions and in the third occasion, accused stabbing Babu with knife and causing injuries as noted by the Medical Officer (PW. 13) in the post mortem report ex. P. 16. Further, the material on record would also clearly show that the knife MO. 1 has been recovered on the basis of the voluntary statement given by the accused as per Ex. P. 27 and the Medical Officer pw. 13 has categorically opined that the injuries found on the body of babu could be caused with the weapon/knife (MO. 1) and the evidence of PWs. 2 and 5 which is consistent, cogent and reliable and clearly show that the accused used the weapon MO. 1 knife and stabbed babu and caused injuries to Babu which has resulted in his death. There is no merit in the contention of the learned counsel appearing for the appellant that the offence committed by the accused would fall under exception-4 of Section-300 of I. P. C. , and would not amounts to culpable homicidal death amounting to murder and at the most, the offence may be treated as culpable homicidal death not amounting to murder. ( 17 ) IT is clear from the provision of exception-4 of Section-300 that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. As per the explanation to exception-4, it is immaterial in such cases which party offers the provocation or commits the first assault. In the present case, the evidence of PWs. 2 and 5 as also the evidence of PW. 3, 6 to 8 would clearly show that even prior to the incident itself accused and Babu quarreled and PW. 2 and others went and pacified the accused and babu and they went to their premises in their occupation. Thereafter, 15-20 minute again accused and Babu quarreled and at that stage, police had also come to the spot, pacified the quarrel and advised the accused not to quarrel with Babu and police had informed PW. 2 to telephone to the police if they quarrel again. However, after 15-20 minutes later, accused came with knife and again there was a quarrel between the accused and Babu and accused stabbed Babu and caused injury to Babu. It is not in dispute that Babu was not armed with any weapon and therefore, it is clear that having regard to the fact that the accused has taken undue advantage of the fact that Babu was not armed and despite the quarrel being pacified by PW. 2 and others on the first occasion and on the second occasion the quarrel being pacified by the police and on the third occasion, the accused came armed with weapon/knife and stabbed and caused fatal injuries to Babu and wherefore, it is clear that the accused, having taken undue advantage of the circumstances in which Babu was placed unarmed and has acted in a cruel manner and it is further clear from the fact proved by the prosecution that the offence committed by the accused does not attract exception-4 of Sction-300 of I. P. C and accordingly, we hold that the offence committed by the accused is culpable homicidal death amounting to murder. ( 18 ) IT is clear from the explanation-2 of Section-299 that where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Wherefore, the facts elicited in the cross-examination of PW. 13 that if immediate medical attention had been given to the injured-Babu, there were possibilities of his survival would not in any way affect the case of the prosecution and the prosecution has proved beyond reasonable doubt that the accused has committed offence of murder punishable U/s. 302 of I. P. C. and on reappreciation of the above said material on record we hold that the finding arrived at by the trial Court that the prosecution has proved beyond reasonable doubt that accused has committed the offence punishable U/s. 302 of IPC. , is justified and the same does not call for interference in this appeal. Accordingly, we answer point No. (i ). ( 19 ) THE trial Court has rightly convicted the accused and he has been sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- and in default of payment of fine, to undergo simple imprisonment for another 6 months for the offence punishable u/s. 302 of I. P. C. Having regard to the fact that accused has been convicted for the offence punishable under Section 302 of IPC. , the circumstances under which the offence has been committed and other facts and circumstances of the case bearing upon the question of sentence and having regard to the sentence prescribed for the offence under Section 302 IPC. , we hold that the sentence imposed upon the accused for the offence punishable U/s. 302 of I. P. C. , cannot be said to be excessive and the trial Court is justified in imposing the above sentence and it does not call for interference in this appeal. Accordingly, we answer point NO. 2 for determination in the negative. In view of our answer to the point Nos. (i) and (ii), we pass the following order: the appeal is dismissed. The Judgment of conviction and sentence passed by the II Additional Sessions Judge, Dakshina kannada, Mangalore, in S. C. NO. 110/2002 dated 06. 11. 2003 is confirmed. Service rendered by Sri. 2 for determination in the negative. In view of our answer to the point Nos. (i) and (ii), we pass the following order: the appeal is dismissed. The Judgment of conviction and sentence passed by the II Additional Sessions Judge, Dakshina kannada, Mangalore, in S. C. NO. 110/2002 dated 06. 11. 2003 is confirmed. Service rendered by Sri. Mallikarjun S. Masali, learned advocate appointed as Amicus Curiae is placed on record. His fee is fixed in a sum of Rs. 5,000/- (Rupees Five Thousand ).