JUDGMENT : 1. The case of the prosecution, in brief, is as follows:- The deceased Gangamma and the accused were residents of Bagali village. On 12.05.2005, at about 11.00 p.m., with an intention to commit robbery of gold ornaments, cash and other articles kept in the steel trunk, the accused, whose house is located just one house after the house of deceased, trespassed into the house of Gangamma. At the moment, when the accused tried to come out of the house, the deceased Gangamma woke up and screamed. At that point of time, the accused, apprehending that his act of robbery will be spread to the villagers, he committed her murder by compressing/strangulating her neck with his hands. Upon hearing the scream sound from the house of deceased Gangamma, PW.2 (Channaveerappa) who was sleeping in the front yard of house woke up and he rushes to the house of the deceased Gangamma along with PW.3 Kenchappa and they saw the accused coming out of the house of the deceased with steel trunk in his hand. When they enquired him, he did no give satisfactory reply and the said fact was informed to PW.1 Patragouda, the relative of the deceased. When PW.1 complainant enquired the accused about carrying the trunk belonging to deceased he in turn told him that he is going to handover the same to one Manjappa, as requested by deceased Gangamma. Thereafter, PWs. 1, 2 & 3 went inside the house and found the dead body of the deceased Gangamma. On further enquiry, the accused confessed with them that he did commit murder of deceased by compressing her neck. Thereafter, PW.1 M. Patragouda, the relative of the deceased lodged complaint with the jurisdictional police. The police, after investigation, filed charge sheet against the accused for the offences punishable under Sections-457, 392, 302 of IPC. 2. The accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined 11 witnesses, marked 11 documents as at Ex.P.1 to P.11 and also got marked material objects MOS. 1 to 11. On behalf of the accused, the contradictory portion of the statement of PW.2 has been got marked as Ex.D.1 to D.3. The accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined 11 witnesses, marked 11 documents as at Ex.P.1 to P.11 and also got marked material objects MOS. 1 to 11. On behalf of the accused, the contradictory portion of the statement of PW.2 has been got marked as Ex.D.1 to D.3. By the impugned judgment of conviction and order of sentence, the Trial Court convicted the accused for the offences punishable under Sections 457, 392, 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- for the offence punishable under Section-457, in default of payment of fine, to undergo imprisonment for further period of three months. To undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/-, in default, to undergo imprisonment for further period of six months for the offence under Section 392 and undergo imprisonment for life for the offence punishable under Section-302 of IPC. Both the sentences were ordered to run concurrently. Being aggrieved by the same, the present appeal is preferred. 3. Shri. Y.S. Shiva Prakash, learned Advocate appearing for the appellant vehemently contended that there are no eyewitnesses to the incident to prove that the accused had committed murder of the deceased. PW.1 (M. Patragouda) is the close relative of deceased Gangamma and hence, his evidence cannot be believed. There are material discrepancies in the evidence of PWs. 2 & 3 and therefore, the learned judge of the trial Court has failed to appreciate the evidence on record in a proper perspective and misdirected itself in convicting the accused. 4. On the other hand, Shri. Vijayakumar Majage, learned Additional State Public Prosecutor strongly opposes the arguments addressed by the learned counsel for the appellant. He contends that immediately after hearing the scream sound from the house of the deceased, PWs. 2 & 3 who were sleeping in the front yard of their respective house, which are located within 25-50 feet radius from the house of the deceased woke up and when they rushed to the house of the deceased Gangamma, they saw that the accused coming out of the house of the deceased along with steel trunk. 2 & 3 who were sleeping in the front yard of their respective house, which are located within 25-50 feet radius from the house of the deceased woke up and when they rushed to the house of the deceased Gangamma, they saw that the accused coming out of the house of the deceased along with steel trunk. The evidence adduced by the prosecution clearly establishes that the accused was staying just one house after the house of the deceased and he was very much known to the deceased. On the date of incident, at about 11.00 p.m. in the night, he trespassed into the house of the deceased, with an intention to commit robbery of gold ornaments, cash and other articles which were kept in the steel trunk. When the deceased saw that the accused was going with her trunk, and on hearing her scream, the accused, apprehending that his act would be exposed in the village, he committed her murder by strangulating her neck. While he was coming out of the house of the deceased, PWs. 1, 2 & 3 red-handedly apprehended the accused and handed over to the custody of the police and thereafter, PW.1 identified the ornaments and other articles, seized by the police. The trial Court, on appreciation of the material on record in proper perspective rightly convicted the accused and hence, no interference is called from this Court. He prays for dismissal of the appeal. 5. We heard learned counsel for the appellant and Additional S.P.P. for the respondent-State and examined the records. 6. Upon hearing the learned counsels and in view of the above mentioned rival contentions, the points that arise for consideration are as follows: (i) Whether the prosecution has established the chain of circumstances that it is the accused who trespassed into the house of the deceased, with an intention to commit robbery and thereafter committed murder of the deceased? (ii) Whether the learned judge of the trial Court was justified in convicting the accused for the offence punishable under Section-302 of IPC and as to whether the offence committed by the accused would fall under exception-I of Section-300, as contended by the learned counsel for the appellant? 7. Amongst the witnesses examined on behalf of the prosecution, PW.1 is the relative of the deceased and the complainant in this case. 7. Amongst the witnesses examined on behalf of the prosecution, PW.1 is the relative of the deceased and the complainant in this case. PW.2 was the neighbor of the deceased goes to the house of the deceased after hearing screaming sound and red-handedly apprehended the accused with stolen trunk. PW.3 was also the neighbor of the deceased who accompanied PW.2 to the house of the deceased, but he turned hostile to the prosecution. PW.4 was the person who gave written complaint as per Ex.P.1, as stated by PW.1. PW.5 was the witnesses who heard about the incident and saw that accused was standing near his house. PW.6 is the immediate neighbor of the deceased and accused. PW.7 is the relative of the deceased and brother of the complainant. PW.8 is the Doctor who conducted Autopsy over the dead body of the deceased. PW.9 is the witness for inquest and seizure mahazar Ex.P.6 & 7. PW.10 is the PSI., who received complaint from PW.1 and registered case against the petitioner and forwarded FIR to the Court. PW.11 is the Investigation Officer. In the absence of eyewitness to the incident, the entire case of the prosecution rests with the oral evidence of PWs. 1, 2, 6 and the medical evidence and deposition of PW.8, the Doctor. 8. PW.1 (M. Patranagouda) is the complainant and relative of the deceased. He has deposed in his evidence that the deceased was elder sister of his father and his maternal aunt. As her husband died long back, she alone was staying in the house and the house of the accused is situated just one house after the house of the deceased and hence, the accused was very close with the deceased. On the date of incident, at about 11.30 p.m., Chennaveerappa (PW.2) came to his house and informed him that accused Nagaraja has committed murder of his aunt Gangamma. Immediately he accompanied PW.2 to the house of the deceased wherein PW.3 Kenchappa and accused were present there. When they asked the accused as to why he was carrying the steel trunk belonging to the deceased, he has not given satisfactory reply and he was in fully shaken state of affair. The accused informed him that the deceased told him to hand over the said trunk to one Manjappa. When they asked the accused as to why he was carrying the steel trunk belonging to the deceased, he has not given satisfactory reply and he was in fully shaken state of affair. The accused informed him that the deceased told him to hand over the said trunk to one Manjappa. When he instructed the accused to come inside the house to enquire with the deceased Gangamma, the accused told him that she died. Thereafter, they detained the accused and handed over to the police on the next day morning and he lodged complaint as per Ex.P.1. During his examination-in-chief, the gold ornaments MOs. 2 to 5, cash of Rs.7280/-(MO.6) and other documents which were kept in the trunk were got marked as MOs 7, 8 & 10. He has categorically deposed that with a view to commit robbery, the accused has trespassed into the house of Gangamma and committed her murder. In the cross-examination of this witness, it was suggested by the defence that the house of the deceased and PW.2 Chennaveerappa was located just opposite within a distance of 25 feet. Except saying that he did know the correct denomination of the cash recovered, nothing worthwhile is elicited in his cross-examination, to disbelieve his evidence. 9. PW.2 Chennaveerappa, whose house is located just 25 feet away from the house of the deceased has deposed in his evidence that the accused is staying just one house after the house of the deceased Gangamma. Since it was a summer at the time of the incident, he used to sleep outside his house. On the date of incident, when he was sleeping in the front yard of his house, PW.3 Kenchappa was also sleeping in front of his house. At about 11.00 p.m, he heard screaming sound from the house of Gangamma. After half an hour, he saw that the accused was coming out of the house of deceased along with steel trunk. He asked the accused to stop there and he made PW.3 Kenchappa to woke up. On enquiry, the accused told them that he was going to handover the said trunk to one Manjappa. Thereafter, he brought PW.1, the relative of the deceased to the house of Gangamma. When all of them went inside the house, they found Gangamma died. He asked the accused to stop there and he made PW.3 Kenchappa to woke up. On enquiry, the accused told them that he was going to handover the said trunk to one Manjappa. Thereafter, he brought PW.1, the relative of the deceased to the house of Gangamma. When all of them went inside the house, they found Gangamma died. When he, PW.1 & PW.3 enquired the accused, he confessed before them that when he entered the house of the deceased to rob the gold ornaments, cash and other articles kept in the trunk, she started to scream and hence, he committed murder of Gangamma by strangulating her neck. Despite incisive cross-examination, except marking contradictory portion of his statement given before the police as Ex.D.2 & D2, nothing worthwhile was elicited to discard his evidence. In his statement given before the police as at Ex.D.1 & 2, PW.2 Chennaveeraiah has stated that he and PW.3 Kenchappa were sleeping in front of the temple, just opposite to their house and that the accused had gone to the house of Gangamma, entered into her house and closed the door. However, he has not deposed the above two aspects before the Court. There was slight variation in his evidence to the effect that ‘he has stated before the police that he and Kenchappa were sleeping in front of the temple whereas, he has stated in his deposition before the Court that he was sleeping in the front yard of house. However, in his cross-examination, he has categorically deposed that his house is situated just 50-60 feet from the house of the deceased. Hence, the above mentioned slight variation in the statement of this witness would not take away his entire evidence. PW.3 Kenchappa, is the neighbor of the deceased and he requires to speak that he also woke up and accompanied PW.2 to the house of the deceased. But, he turned hostile to the prosecution. PW.4 Bharamagouda has deposed that he accompanied the complainant PW.1 to the police station wherein, he written the complaint Ex.P.1 lodged by the complaint, as narrated by the complainant. PW.5 is the witness who rushed to the house of the deceased, after hearing the news and saw that the accused was standing near his house. PW.6 Hemanna has deposed in his evidence that his house located in between the house of the deceased and accused. PW.5 is the witness who rushed to the house of the deceased, after hearing the news and saw that the accused was standing near his house. PW.6 Hemanna has deposed in his evidence that his house located in between the house of the deceased and accused. On the date of incident at about 12.00 p.m in the night, after hearing galata, he woke up and came out of his house and saw that the accused was standing near his house along with MO.1 trunk in his hand. Nothing worthwhile was elicited in his cross-examination. PW.7 M. Manjunath is the brother of the complainant PW.1. He deposed that after hearing the news about death of Gangamma from PW.2, he had been to the house of the deceased and saw that Gangamma was murdered. The accused, with an intention to commit robbery of gold ornaments, has committed murder of deceased Gangamma and at that point of time, the trunk belonging to the deceased was in possession of the accused. Nothing worthwhile has been elicited in his cross-examination. 10. PW.8 (Doctor K.M.N. Khan), who conducted postmortem examination over the dead body of the deceased has deposed in his evidence that on 13.05.2005, he conducted postmortem examination over the dead body of deceased Gangamma as per Ex.P.5, between 12.30 to 3.00 p.m. On examination over the dead body he found the following injuries ‘rigor mortis present all over the body. Finger marks with abrasion found on either side the wind pipe, marks are brown dry and Parchment like, marks are Areocentric shaped, face swollen and Cyanosis with abrasion on the right cheek is present’. On dissection he found that ‘the neck below the marks of finger there was extravasations of blood seen. Fracture of hyoid bone was present of both the cornea. Ecchymosed of such antonymous tissue below the mark of finger seen. All the injuries are ante mortem’. Time since death was about 12-14 hours from the time of post mortem. He opined that the death was due to asphyxia of vital organ due to throttling. It was suggested to him in his cross-examination that death could be caused if the deceased herself strangulates her neck. That has been stoutly denied by the doctor. Nothing worthwhile has been elicited in his cross-examination to disbelieve his evidence. 11. P.W.9 is the witness for inquest and recovery mahazars, Ex.P.6 and 7. It was suggested to him in his cross-examination that death could be caused if the deceased herself strangulates her neck. That has been stoutly denied by the doctor. Nothing worthwhile has been elicited in his cross-examination to disbelieve his evidence. 11. P.W.9 is the witness for inquest and recovery mahazars, Ex.P.6 and 7. He has categorically deposed in his evidence that Police have conducted mahazars and recovered M.O. 1 trunk in which M.O.s 2 to 11 were recovered. Despite incisive cross-examination, nothing worthwhile has been elicited in the cross-examination of these witnesses to disbelieve their evidence. P.W.10 is the PSI, who received the complaint from P.W.1 as per Ex.P.1 and submitted FIR Ex.P.11 to the Court. P.W.11 is the Police Inspector, who conducted the investigation. He has deposed in his deposition that he took up further investigation, visited the spot, conducted spot mahazar Ex.P.6, recovery mahazar Ex.P.7, seized cash of Rs. 7,280/- along with other documents found in the trunk, arrested the accused, subjected the dead body for post mortem examination and after completion of the investigation filed charge sheet against the accused. 12. On summarizing the evidence of the prosecution witnesses it is seen that incident had occurred on 12.05.2005 at about 11.00 p.m. in the night, in Bagali Village. Indisputably the accused is the resident of the same village where the deceased Gangamma resides and his house is located just one house after the house of the deceased. The accused is known to the deceased. During the summer, that too in the month of May, it is quite natural that rustic villagers used to sleep in the front yard of their houses. As spoken to by prosecution witnesses namely, P.Ws. 1, 2, 4 and 6, on the date of incident, P.W.2 and 6 were also sleeping in the front yard of their house. After hearing the screaming sound from the house of the deceased Gangamma, they rushed to the house of the deceased and at that point of time they saw the accused coming out of the house of the deceased with steel trunk in his hand. On enquiry, the accused informed them that he was carrying the trunk to handover the same to one Manjappa, as requested by deceased Gangamma. However, on entering into the house, they saw the dead body of Gangamma inside her house. On enquiry, the accused informed them that he was carrying the trunk to handover the same to one Manjappa, as requested by deceased Gangamma. However, on entering into the house, they saw the dead body of Gangamma inside her house. P.W.9, who was witness for spot mahazar and recovery mahazar categorically deposed that the gold ornaments, cash of Rs. 7,280/- and other articles which were found in the said trunk which was in possession of the accused were seized by the police. The oral evidence of P.Ws. 1, 2, 4, 5, 6 and 7 clearly indicate that on the date of incident, they had been to the house of Gangamma and found that the accused coming out of the house of deceased with steel trunk in his hand and the accused was detained and handed over to the police by the villagers. Their evidence is corroborating with each other, trustworthy and acceptable. Hence, there is no reason for us to discard or disbelieve their evidence. The oral evidence coupled with the medical evidence and other incriminating circumstances narrated above would unerringly link the accused in the commission of murder of deceased Gangamma and points the finger towards the accused who has committed the murder of Gangamma, aged 75 years for gain. Accordingly, we answer point No.1 by holding that the prosecution has clearly established the chain of circumstances that it is the accused alone has committed the murder of the deceased. Thus, it takes us to next point as to whether the offence committed by the accused would fall under exception I of Section 300, as contended by learned counsel for the appellant. 13. Further, the learned counsel for the appellant contended that even if this Court were to come to the conclusion that the prosecution has established its case beyond reasonable doubt and no interference is called for, the offence committed by the accused appellant be reduced from 302 to 304 part-I of IPC and lesser punishment be imposed, inasmuch as, there was no premeditation or intention on the part of the accused to commit the murder of the deceased. That the accused has not assaulted with any deadly weapons. That the accused has not assaulted with any deadly weapons. In support of his contention, he placed reliance on the following judgments: (i) Muthu –vsState by Inspector of Police, Tamil Nadu (2009) 17 Supreme Court Cases 433) (ii) Bishnupada Sarkar and another –vsState of West Bengal (AIR Supreme Court 2248) (iii) Nankaunoo –vsState of Uttar Pradesh (2016) 3 Supreme Court Cases317.Learned counsel for the appellant, placing reliance on the judgment of the Apex Court, (i) in the case of Muthu 14. In Muthu’s case referred to above, it was a case where the deceased had thrown some rubbish into the shop of the accused and being enraged thereby, the accused picked up a knife from a table and stabbed the deceased in the chest, as a result of which he died. In the case on hand, the facts reveal that there was no such provocation by the deceased to assault her. The facts involved in the above case and in the present case are entirely different. Hence, the said judgment cannot be made applicable to the facts of the present case. In the case of Bishnupada Sarkar, it was a case where the son of the deceased and the accused were involved in the incident and it was when the deceased intervened, he was assaulted by the accused. Here again, the facts of the present case are entirely different. There was no such involvement of the relatives of the deceased in the incident. Hence, the above judgment would not be made applicable to the facts of the present case. In the third case i.e., in Nankaunoo’s case, it was a case wherein the Hon’ble Apex Court distinguished the difference between the intention to cause injury concerned and whether said injury was sufficient in ordinary course of nature to cause death. In the instant case, the death of deceased Gangamma was caused by the accused by strangulating her neck and no weapon was used in the incident and bleeding injuries were caused to her. Hence, the 3rd judgment relied on by the counsel for the appellant could not be made applicable to the facts of the present case. 15. On careful evaluation/scrutiny of the evidence adduced by the prosecution clearly indicate that the incident of murder occurred in the night hours between 11.00 pm to 12.00 am. Hence, the 3rd judgment relied on by the counsel for the appellant could not be made applicable to the facts of the present case. 15. On careful evaluation/scrutiny of the evidence adduced by the prosecution clearly indicate that the incident of murder occurred in the night hours between 11.00 pm to 12.00 am. Admittedly deceased Gangamma who lost her husband in her young age was staying alone in the said house. The accused who was staying one house after the house of the deceased had close acquaintance with the deceased Gangamma. On the date of incident, with a view to commit robbery of gold ornaments and other articles which were kept in a steel trunk by the deceased, he trespassed into the house of the deceased. Incidentally the deceased Gangamma woke up and screamed. At that juncture, the accused apprehending that his act of robbery would be spread by the deceased to the villagers, he made up his mind to kill the deceased who was aged 80 years old and thereby committed her murder by strangulating her neck, knowing fully well and having knowledge that his act would definitely take away the life of the deceased. If really there was no knowledge or intention on the part of the accused to kill the deceased, he would have run away from the spot with the stolen trunk. But in the case on hand the accused did not stop there, immediately he made up his mind to kill the deceased by strangulating her neck. Looking at the totality of circumstances and on appreciation of the oral and documentary evidence adduced by the prosecution we are of the considered view that there is no substance in the submission of the counsel that the act committed by the accused would fall under the category of homicidal death not amounting to murder. 16. On re-appreciation of the entire material on record it is seen that the prosecution had established the chain of circumstances leading up to the death of the deceased Gangamma. The oral and documentary evidence on record unerringly point the fingers towards the guilt of the accused. Therefore, we are of the view that there is no error or perversity committed by the Trial Court in appreciating the evidence on record. The reasons assigned by the Trial Court are just and proper. There is no perversity in the order of the trial Court. Therefore, we are of the view that there is no error or perversity committed by the Trial Court in appreciating the evidence on record. The reasons assigned by the Trial Court are just and proper. There is no perversity in the order of the trial Court. We find no good ground to interfere with the well considered judgment of the Trial Court. Consequently, points for consideration are answered by holding that the Trial Court was justified in convicting the accused-appellant for the offence punishable under Sections – 457, 392 and 302 of IPC. Therefore, the appeal being devoid of merits is dismissed. The judgment of conviction and order of sentence dated 29.03.2006 passed by the District and Sessions Judge, Davanagere in S.C. No.125 of 2005 is affirmed.