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2019 DIGILAW 1260 (KAR)

State v. M. B. Mohana @ Manu

2019-06-14

G.NARENDAR, H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. These are the appeals filed by the State as against accused No.1 insofar as non-imposition of sentence of fine on the respondent for the offence punishable under Section 302 of IPC and sought to impose the sentence of fine and also the appeal by accused No.1 convicting him for the offences punishable under Sections 302, 323, 324 of IPC passed in SC No.39/2008 on the file of the Fast Track Court, Mandya and prayed to acquit him. 2. Brief facts of the case of the prosecution is that, the accused persons have committed the murder of Smt. Kalamma, who is the mother of PW1 who came to Mamballi village to cultivate the land given to her daughter and staying with her at daughter's house. The incident of murder was taken place on 24.05.2006. It is alleged in the complaint by the complainant that her marriage was solemnized with accused No.1 about 8 years back and out of the said wedlock, they are having two children. After the marriage, relationship was cordial for some time and thereafter, differences arisen between the complainant and accused No.1 and in this regard, several panchayats were held and two months prior to the filing of the complaint, accused No.1 along with other accused picked up quarrel with the complainant and driven out the complainant from her husband's house. It is further alleged that at that time, panchayat was held and in the said panchayat, 25 guntas of the land was given to the children of the complainant and compromise was entered between the parties. It is further alleged about 20 days prior to filing of the complaint, she again returned to the house of accused No.1 and started residing at Mamballi; four days prior to filing of the complaint, brothers of the complainant one Swamygowda and Ramakrishnegowda and her mother came to Mamballi village to cultivate the land given to the complainant. Her brothers after cultivating the land given to the complainant, returned to their village and the mother of the complainant continued to stay with the complainant in the house at Mamballi. 3. Her brothers after cultivating the land given to the complainant, returned to their village and the mother of the complainant continued to stay with the complainant in the house at Mamballi. 3. That on 24.05.2006 at about 1 a.m., when her mother Kalamma, complainant and her son Abhishek were residing in the house at Mamballi, accused No.1 was picked up quarrel with the complainant alleging that she brought her brothers to cultivate the land and assaulted her mother Kalamma with axe on her head and also assaulted the complainant with the said axe on her right side waist and at that time, one Swamygowda and Ramakrishnegowda came and pacified the incident and they took the injured and the complainant in an Auto rickshaw to K.R. Pet Government Hospital. The doctor after seeing Kalamma has informed that she is already dead. It is the case of the prosecution that accused No.1 at the instigation of the other accused persons has committed the offences against the complainant and her mother and hence, prayed to take action against the accused persons. The police have registered the case against the accused persons for the offences punishable under Sections 324, 323,114 and 302 of IPC read with Section 34 of IPC. Accused No.1 was arrested and produced before the Court on 31.05.2006 and released on bail on 8.12.2013. Accused Nos.2 to 5 voluntarily surrendered before the trial Court and they were enlarged on bail as per the orders passed in Crl. Misc. No.575/2006 on the file of the Sessions Court. After the investigation, the Investigating Officer has filed charge sheet against these accused persons and after receipt of the charge sheet, cognizance was taken in Criminal Case at CC No.499/2006 against the accused persons and copy of the charge sheet was furnished to the accused persons and the offence is triable by the Sessions Court and hence, committed the case to the Court of Sessions for trial under Section 209 of Cr.P.C. 4. The Sessions Judge, after receipt of the committal records, registered the case as SC No.39/2008 against the accused persons and after hearing both the parties, framed the charges against the accused persons for the above offences and the accused persons did not plead guilty and claimed trial, hence, the Court below recorded the evidence of PW1 to PW37 and prosecution relied upon Exs.P1 to 42 and also got marked MOs 1 to 10. The Court below after recording 313 statement and hearing arguments of both the counsels, convicted accused No.1 and acquitted other accused persons. 5. Being aggrieved by the judgment of conviction and sentence, State has preferred an appeal in Crl.A. No.708/2014 praying the Court to modify the judgment of conviction and sentence and prayed this Court to impose the fine as the same has not been imposed by the Court below. 6. The main grounds urged in the appeal that the Sessions Judge ought to have seen that it is mandatory under law to impose fine for the offence punishable under Sections 302 of IPC and sentence imposed on the respondent is not in commensurate with the offences of murder committed by the respondent. The Sessions Court could not have imposed only rigorous imprisonment for life and it ought to have imposed a fine on the respondent/accused No.1 for the offence punishable under Section 302 of IPC. The other contention that the punishment for murder as provided under the IPC is death or imprisonment for life and also fine. The learned Sessions Judge could not have taken a lenient view sentencing the respondent and non-imposition of fine on the respondent has resulted in mis-carriage of justice. 7. The accused No.1 in Crl.A. No.278/2015 has contended that the Court below fails to appreciate that the evidence on record was not sufficient to convict the appellant for the offences punishable under Section 302 of IPC. When incident was taken place in the residential house and the residential area, the prosecution not procured independent witnesses to prove the charges and only accepting the evidence of interested witnesses, the appellant is convicted which is not permissible. The other contention that if the entire facts of the case taken into consideration, there was no enmity between PW1 and accused before the incident and earlier also complaint lodged against the accused. The other contention that if the entire facts of the case taken into consideration, there was no enmity between PW1 and accused before the incident and earlier also complaint lodged against the accused. When the appellant seriously attacked on the delay of lodging the complaint, the trial Court instead of deciding it shifted the aid fact in para-55 of the judgment observing that the defense counsel as to what was the reasonable ground to implicate the accused does also not explain it. In the Indian culture, no woman falsely implicates her own husband in a false case, if the husband of a woman is an innocent. 8. It is further contended that the medical evidence is also fully not supporting the case of the prosecution, since doctor who conducted PM admitted that if the deceased had fallen down on the sharp agricultural equipments, the injuries found on the dead body might have caused, especially, when the weapon i.e. axe not sent by Investigating Officer to the doctor to give opinion, regarding occurrence of the injuries found on the dead body if the said axe used in the incident. When the trial Court acquitted the other accused by disbelieving the evidence of PW1 and other witnesses, the same evidence is also applicable to the present accused which not disbelieved, hence, the Court below has failed to appreciate that the evidence given by the witnesses are false evidence, hence, prayed this Court to pass order of acquittal. 9. Sri. I.S. Pramod Chandra, learned SPP-II, in his arguments, he contended that the proviso of Section 302 of IPC contemplates the punishment for murder, shall be punishable with death or imprisonment for life and shall also be liable to pay fine and in spite of Section 302 mandates imposing of fine, the Court below did not choose to impose any fine, hence, it requires interference by this Court to modify the judgment of conviction and impose fine. 10. 10. Learned SPP-II in his arguments, he vehemently contends that the Court below evaluated both oral and documentary evidence and after evaluation, comes to the conclusion that the incident was taken place and the victim was murdered by accused No.1 and held that no materials are found in respect of other accused persons and acquitted them and State has not filed any appeal as against acquittal and only filed an appeal for non-compliance of mandatory provisions of Section 302 of IPC in not imposing the sentence of fine. 11. Accused No.1 has preferred an appeal before this Court contending that when the Court below did not appreciate both oral and documentary evidence in a right perspective and committed an error in convicting the accused No.1. The very contention of the accused cannot be accepted and the Court below rightly appreciated both oral and documentary evidence and particularly relied upon the evidence of PW1 and PW2, who are the eye-witnesses and PW5 to 7, who came to the spot immediately after hearing the screaming sound in the house of the complainant and they also noticed the injuries found on Smt. Kalamma and they also took the injured to the hospital and though they turned hostile in respect of incident is concerned, but they have deposed regarding nature of the injuries sustained by the deceased as well as PW1. The Court below also considered the material available on record and comes to the conclusion that Accused No.1 only committed the murder with the motive and prosecution was able to prove the charges leveled against the accused persons, however, acquitted the other accused persons and found material against accused No.1. Hence, he has been convicted and there are no grounds to interfere with the order of the judgment in convicting accused No.1 for the offences alleged against him. 12. The counsel for accused No.1 in his appeal he vehemently contended that the Court below failed to appreciate both oral and documentary evidence. Hence, he has been convicted and there are no grounds to interfere with the order of the judgment in convicting accused No.1 for the offences alleged against him. 12. The counsel for accused No.1 in his appeal he vehemently contended that the Court below failed to appreciate both oral and documentary evidence. The very approach of the Court below is erroneous and the Court below failed to appreciate how the alleged incident was taken place and other witnesses of the prosecution have not supported the case of the prosecution and the Court below taking note of the evidence of the interested witnesses i.e. PW1 and 2 and brothers of PW1 and failed to appreciate the medical evidence available on record and erroneously comes to the conclusion that the prosecution has proved the case against accused No.1. 13. The other contention that the Court below failed to appreciate the medical evidence available on record and in spite of comes to the conclusion that the medical evidence is not trustworthy but convicted the accused No.1 for the offences alleged against him. The Court below failed to appreciate even documentary evidence available on record. The prosecution failed to prove the guilt of accused No.1 and none of the independent witnesses have supported the case of the prosecution. The very narration of the incident creates doubt and in the absence of any independent witnesses and also eye-witnesses, the Court below wrongly convicted accused No.1 and in spite of benefit of doubt goes in favour of accused No.1 but fails to consider the benefit of doubt. 14. The counsel for accused No.1 also vehemently contends in his arguments that when the Court below comes to the conclusion that there is no any material against accused Nos.2, 3 and 5 and erroneously convicted the accused No.1. The trial Judge ought to have acquitted accused No.1 also since there was no any credible evidence before the Court below and the evidence adduced by the prosecution also does not inspire any confidence of the Court to come to the conclusion that this accused only committed the murder, hence, prayed this Court to acquit accused No.1 also for the offences alleged against him. 15. In support of his contentions, the counsel also relied upon the judgment of this Court in the case of State of Karnataka Vs. 15. In support of his contentions, the counsel also relied upon the judgment of this Court in the case of State of Karnataka Vs. Veluswamy alias Swamy, (2017) 3 KarLJ 609 (DB); by relying upon this judgment, alternatively he argued, even if this Court comes to the conclusion that there are materials against accused No.1, this Court can invoke Section 304(1) of IPC and impose lesser sentence taking note of the injuries sustained by the deceased only one injury and there was no any intention to commit the murder of the deceased and there must be an intention to take away the life and with that intention, if any injury is inflicted which likely to cause the death, only offence of Section 302 has to be invoked or otherwise, the Court can also take note of the nature of the injuries and same is also one injury and it is a fit case to invoke Section 304(1) of IPC, hence, prayed to modify the judgment invoking Section 304(1) of IPC. 16. Having heard the arguments of the counsel for the accused and also learned SPP-II and after perusing the lower court records, the following points arise for our consideration: (i) Whether the Court below has committed an error in convicting the accused No.1 for the offences punishable under Sections 302, 323 and 324 of IPC and whether it requires interference of this Court. (ii) Whether the appeal filed by the State to modify the judgment of conviction and to impose the fine is deserved? Point No. I: 17. The gist of the case of the prosecution is that there were differences between accused and complainant and panchayat was held and in the said panchayat, panchayatdars have given share to the children of the complainant to the extent of 25 guntas and 10 guntas was given to the accused No.1 and another 10 guntas was given to the mother of accused No.1 who is accused No.4 and the very motive for committing the murder by the accused is that the family members of the complainant i.e. brothers and mother of the complainant were cultivating the land which were given to the portion of the complainant, hence, he was having ill will and committed the murder of his mother-in-law. 18. 18. The prosecution in order to prove the guilt of the accused, relied upon the evidence of PW1 to 37 and prosecution also got marked Exs.P1 to P42 apart from oral and documentary evidence relied upon the material objects 1 to 8. 19. Now, let us appreciate the evidence of the prosecution one by one. The prosecution mainly relied upon the evidence of the complainant who is examined as PW1 and PW2 is son of PW1 and also son of the accused No.1. The prosecution case is that PW3 to 7 rushed to the spot immediately after hearing screaming sound. PW3 and 4 have turned hostile. PW5 to 7 have supported the case of the prosecution with regard to rushed to the house of the accused immediately after hearing the screaming sound and not supported with regard to the incident is concerned. The prosecution also relied upon the evidence of PW12, who is a driver of the auto rickshaw, who took the injured in his auto to the hospital and PW12 has given the evidence in the line of defence of the accused. The prosecution relied upon the evidence of PW13 to 17, who are the panchayatdars, who participated in the panchayat and all of them have spoken with regard to giving of 25 guntas of the land in favour of the complainant. PW10 is the sister of PW1. PW11, who participated in the panchayat and he did not support the case of the prosecution and PW13 was also participated in the panchayat and partly supported the case of the prosecution. PW14 is the witness, who participated in the panchayat and partly supported the case of the prosecution. PW15 supported the case of the prosecution relating to panchayat. PW16 also supported having participated in the panchayat but he denied his statement made before the Police. PW17 also spoken with regard to panchayath was conveyed. PW18 and 19 are the brothers of PW1 and they have supported the case of the prosecution. PW20 is also another witness who participated in the panchayat, he supported the case of the prosecution and he also signatory to Ex.P17-Seizure Mahazar. PW21 is the mahazar witness and he is the inquest mahazar witness and identified the signature on Ex.P18- inquest. PW22 is the husband of the deceased and he narrated with regard to differences between the husband and wife and also about panchayat. PW21 is the mahazar witness and he is the inquest mahazar witness and identified the signature on Ex.P18- inquest. PW22 is the husband of the deceased and he narrated with regard to differences between the husband and wife and also about panchayat. PW23 is the mahazar witness of Ex.P19 and he has turned hostile so also PW24 turned hostile, but he admits his image found on Ex.P20. PW25 is the person who prepared the sketch and PW26 who prepared partition based on the decision of the Panchayat. PW27 is the photographer and he says he took photos. PW28 is the doctor who conducted post mortem. PW29 is the person who gave assessment extracts of the house of the accused. PW30 is the doctor who treated the complainant and issued wound certificate-Ex.P31. PW31 has turned hostile and PW32 is the Assistant Director of FSL. PW33 is the Police Witness, who has taken the MOs 1 to 9 to FSL and he was appointed to search the accused No.1. PW34 is the police witness, who was appointed to watch the dead body of deceased Kalamma. PW35 is the Investigating Officer who has conducted investigation. PW36 is also another Investigating Officer who has conducted part of investigation and PW37 is also the police witness who submitted the FIR to the Court. 20. Now, let us appreciate the evidence available on record before the Court both oral and documentary evidence. This Court being the First Appellate Court has to reappreciate both the oral and documentary evidence available before the Court. The prosecution mainly relies upon the evidence of PWs.1 and 2 as direct evidence and PWs.5 to 7, who rushed to the house after hearing the screaming sound from the house in which the incident has taken place and PW12, who is the auto rickshaw driver, who took the injured to the hospital. 21. Now let us see the evidence of PWs.1 and 2. 21. Now let us see the evidence of PWs.1 and 2. PW1 is the wife of accused No.1 and the daughter of the deceased and in her evidence she says that there was difference between her and her husband and hence, panchayat was held earlier and in the said panchayat, portion of property was given to her and three days prior to the death of the deceased she came to the house of the accused No.1 and in the said panchayat 25 guntas of land was given to her and her children. She was cultivating the said land through her brothers and mother and hence, the accused persons were having ill will against her mother. That on the date of the incident she went to wet land and the accused Byregowda did not leave water to her land and thereafter she went to society and she did not get the rice since she was not having the card and she came back to house at around 1.00 p.m. and she did not find her saree and blouses and hence, she enquired her husband and he replied that he does not know. She claims that by that time he replied why she is telling lie against him and he caused life threat and at that time the remaining accused persons came and instigated him to take her life. Thereafter, leaving her mother in the house she went to Somanahalli fair and she called and told her sister that she lost her saree and blouses and her sister advised her not to ask anything and go to house and accordingly she came to house. By that time, her husband was sitting near the door and when she asked him to leave space claiming that she is having right in the house and thereafter her husband abused her in filthy language and he made galata till 10.00 o'clock and there was no electric supply and they were having kerosene lamp and her husband has removed the bulb and hence, there was no power. She did not get sleep and her mother was sleeping by the side of the wall and she was sleeping next to her mother and her son Abhishek was sleeping next to her and when her husband was abusing at around 1.00 a.m., he brought the axe and assaulted with the same on the head of her mother and immediately she screamed at the spot and he also assaulted on her chest, head and on waist with the axe and also assaulted on her hand and knee and hence, there was swelling on her hand. She also claims that the accused No.2-Yogesh also came and assaulted her and instigated her husband to take her life. She claims that her mother was sleeping on the mat and pillow and as a result of assault her cloths, mat and pillow were blood stained. She immediately took her mother in an auto rickshaw along with her son, neighborers Ramkrishnagowda, Swamigowda and another Swamigowda, who is the son of Siddegowda. In the auto rickshaw also they brought the mat and pillow since her mother was sleeping on the same and the doctor, who came near the auto rickshaw, examined and declared that the injured was already passed away and the doctor informed the same to the police. The police also recorded her statement and took her signature and informed her sister and she identifies her signature on the complaint- Ex.P1. The police also conducted the mahazar in terms of Ex.P2 and took her signature and the police also took her in a jeep to the spot and drawn the mahazar in terms of Ex.P3(a). She claims that her husband was addicted to bad vices and used to consume alcohol and when she stopped bringing the money from her parental house, he used to assault her and when he assaulted with firewood, the same was brought to the notice of the panchayatdars and panchayat was held and she claims that accused Nos.2 to 5 instigated her husband. She identifies blood stained cloths as MOs.1 to 3 and also identified the cloth of her husband as MO4 and lungi as MO5 and says the same are blood stained and also identified the axe as MO6. The pillow cover and mat were also identified as MOs.7 and 8. 22. Pw1 was subjected to cross-examination. She identifies blood stained cloths as MOs.1 to 3 and also identified the cloth of her husband as MO4 and lungi as MO5 and says the same are blood stained and also identified the axe as MO6. The pillow cover and mat were also identified as MOs.7 and 8. 22. Pw1 was subjected to cross-examination. In the cross-examination, she admits that her sister name is Rukmini and she is resident of Mirle and at the time of death of her mother, her sister was staying at K.R.Pet and she claims that there was a partition four months prior to the death of her mother and her mother-in-law and father-in-law were staying separately. Her brother-in-law was also residing separately and property was not transferred and she claims that both the children are studying at Mirle and made rented accommodation for them. At the time of death of her mother both the children were there in the village and elder son was studying along with her and younger son was studying in the house of her mother. It is elicited that she only informed the police about the death of her mother when she was in the hospital and they came to hospital at around 2.00 o'clock. She gave complaint at around 3.00-3.30 a.m. and she was not admitted in the hospital. She admits that while coming to the Court she used to come along with her sister and on the date of the incident she also came to hospital. It is elicited that two years prior to the death of her mother she gave complaint to the police about the harassment given by her husband and about the share in the property which was not given to her. 23. In the cross-examination, it is suggested that her mother was aged 58 years and while going to attend the nature call she fell down on the agricultural equipments and as a result she sustained injuries and the said suggestion was denied. Further suggestion was made that the accused No.1 himself took her to the hospital in an auto rickshaw and the said suggestion was also denied. A suggestion was made that herself and her sister both of them taking the advantage of the situation gave a false complaint against the accused No.1 and the same was denied. Further suggestion was made that the accused No.1 himself took her to the hospital in an auto rickshaw and the said suggestion was also denied. A suggestion was made that herself and her sister both of them taking the advantage of the situation gave a false complaint against the accused No.1 and the same was denied. It is suggested that PW2 was not in the house at the time of the incident and the said suggestion was denied. It is suggested that while doing the work in the wet land, she sustained injury and taking the advantage of the same, made false allegations against her husband that he assaulted her and the said suggestion was denied. 24. Pw2, who is the son of accused No.1 and also the son of PW1 in his evidence he claims that in the house he himself, his mother and father and grandmother were staying and he was studying second standard. The grandmother came to his father's house to cultivate the land two days prior to the incident. He further says that there was galata between his father and mother since his father gave the blouse of her mother to someone else and in the night his mother screamed and hence, he awakened and he found the blood stain on the cloths of his father and he was holding axe in his hand and blood was oozing from the head of his grandmother and people were also gathered and it was around 1.00 o'clock and also makes an allegation against other accused persons. The mat was blood stained and his mother also sustained injury to her head and waist since his father assaulted his mother. He himself, his mother, Somanna and others went to the hospital and the doctor has declared that his grandmother is no more. 25. Pw2 was subjected to cross-examination. In the cross-examination he says that at the time of the death of his grandmother he himself, his mother and grandmother were there in the house of the accused No.1. He says that he came to Court 5-6 times and his mother and senior aunt used to bring him to Court. He also admits that on that day also his mother and senior aunt brought him to Court and near the door his mother and senior aunt are standing. He says that he came to Court 5-6 times and his mother and senior aunt used to bring him to Court. He also admits that on that day also his mother and senior aunt brought him to Court and near the door his mother and senior aunt are standing. He also admits that they came to Mandya at around 9.00 o'clock and met their advocate and he says that the advocate advised him to give answer intelligently and the advocate has briefed him. It is suggested that instruction was given to him to depose as police have written and the said suggestion was denied. He admits that while talking to the advocate his mother and senior aunt were there and the police were not there. It is suggested that his grandmother fell down accidentally on the agricultural equipments and when the same was noticed by his father he immediately brought the grandmother and made her to sleep on the mat and the accused only brought the neighborers and took the injured grandmother to the hospital in an auto rickshaw and the said suggestion was denied. 26. The prosecution relies upon the evidence of PWs.5 to 7, who came to the spot immediately after hearing the screaming sound. PW5 says that he is having acquaintance with the complainant and also with the accused and three years ago he heard the screaming sound in the house of the complainant and at that time the complainant has requested to save her mother and she was sustained injury to her head. He himself, Ramkrishnegowda and another Swamigowda took the injured to the hospital and though the doctor gave treatment she passed away and the complainant was also accompanied her and he was treated as hostile. It is suggested that he gave the statement that these accused only committed the murder and the said suggestion was denied. In the cross-examination of PW.5 it is elicited by the defence counsel that Abhishek was not accompanied to the hospital in an auto rickshaw. 27. Pw6 is another witness. He also reiterates the same evidence as PW5 that he came to the spot after hearing the screaming sound and found the injury on the head of the injured and the complainant was also sustained injury to her and lacerated wound and he does not know how an incident was taken place and he has not given any statement. He also reiterates the same evidence as PW5 that he came to the spot after hearing the screaming sound and found the injury on the head of the injured and the complainant was also sustained injury to her and lacerated wound and he does not know how an incident was taken place and he has not given any statement. PW6 was also cross-examined by the learned Public Prosecutor and a suggestion was made that he gave the statement before the police in terms of Ex.P7 and the same was denied. He admits that the husband of accused No.4 is Boregowda and the daughter of Boregowda's brother was given to him. He also says that PW2 did not accompany to hospital in an auto rickshaw. 28. Pw7 also reiterates the evidence of PWs.5 and 6 and also says that they took the injured to the hospital in an auto rickshaw and he has not given any statement. He was subjected to cross-examination and in the cross-examination a suggestion was made that he gave the statement and the said suggestion was denied. 29. Pw12, who is the auto rickshaw driver in his evidence he says that at around 12.00-1.00 o'clock someone came and knocked the door of his house and on opening the door he found the accused No.1 Mohan and he requested him to come and take his mother-in-law to the hospital since she is not feeling well and on enquiry he revealed that she fell down on the agricultural equipments and sustained injuries and hence, he accompanied him and in the auto rickshaw the injured was taken by accused No.1, Ramkrishnegowda, Swamigowda and PW1 to K.R. Pet Government Hospital and PW.1 went to bring her sister and he came back. The witness was treated as hostile and it is suggested that he gave the statement in terms of Ex.P12 and the said suggestion was denied. It is suggested that while coming to the Court he brought the accused and PW11 in his auto rickshaw and as per their instructions he is giving false evidence before the Court and the said suggestion was denied. 30. The other witnesses are panchayatdars i.e. PWs.13, 14, 15, 16 and 20. It is suggested that while coming to the Court he brought the accused and PW11 in his auto rickshaw and as per their instructions he is giving false evidence before the Court and the said suggestion was denied. 30. The other witnesses are panchayatdars i.e. PWs.13, 14, 15, 16 and 20. On perusal of the evidence of these witnesses, all of them have deposed that a panchayat was held and in the said panchayat it was decided to give 25 guntas of land in favour of PW1 and they supported the evidence of the prosecution to the extent of panchayat was held earlier prior to the incident. 31. The prosecution relies upon the evidence of PW22, who is the husband of the deceased. In his evidence he has also spoken with regard to the panchayat was held and given 25 guntas of land to his daughter and his wife went to the house of his daughter to cultivate the land and he came to know that the accused made galagta and committed the murder of his wife with the axe and immediately on the next day morning he went to the hospital and found the dead body of his wife. In the cross-examination he says that the police enquired him on the date of death of his wife. It is suggested that his wife during the night she fell down on the axe and sustained injuries and the said suggestion was denied. 32. Pw23 is the recovery witness i.e. recovery of the axe and he did not support the case of the prosecution and he was cross-examined suggesting that the accused himself took all of them and produced the axe removing the same from haystack and the said suggestion was denied. 33. The prosecution also relied upon the evidence of photographer, who has been examined as PW27 and in his evidence he says that he was requested to take the photographs of the dead body and accordingly he took three photos and thereafter he was taken to Mamballi village and he took the photo of tiled house. 33. The prosecution also relied upon the evidence of photographer, who has been examined as PW27 and in his evidence he says that he was requested to take the photographs of the dead body and accordingly he took three photos and thereafter he was taken to Mamballi village and he took the photo of tiled house. He also says that he was taken along with accused No.1 and he has produced the axe which was at little distance from the village and he took the photo of the same and he identifies four photos which are marked as Exs.P22 to 25 and also he identifies the photos of the place of the incident which are marked as Exs.P26 and 27. In the cross-examination it is suggested that he cannot tell on what date he took the photos and also he cannot tell who were the persons standing with the Circle Inspector in the photo, Ex.P20. It is suggested that he has not taken the photo of Ex.P20 and the said suggestion was denied. 34. The prosecution also relies upon the evidence of PW28-doctor, who conducted the postmortem and in his evidence he says that he conducted the postmortem from morning 9 to 11 and he noted the injuries and occipital bone was fractured and there was damage to brain and remaining parts are in order and he gave the opinion that the death was due to oozing of the blood and he identifies the signature in Ex.P28, which is marked as Ex.P28(a). He also says that the seized axe was sent to him in a sealed cover along with a letter asking some questions and he gave the opinion that the injuries could be caused by using the said MO6 and also he gave the opinion that if any person is assaulted with said axe chances of death is more and he identifies the signature available on Ex.P29 as Ex.P29(a) to Ex.P29(c). In the crossexamination he admits that the measurement of the sharpness of the axe is to the extent of 4 inches and if any injury is caused by using the said axe there is chances of causing fracture to the head and he cannot tell about the force while using the said axe. He admits that if any person falls on the agricultural equipments forcibly there is chance of sustaining the said injury. He admits that if any person falls on the agricultural equipments forcibly there is chance of sustaining the said injury. He admits that if any assault is made with force by using MO6 there is chance of extending the size of injury. He admits that the measurement of the injury on the head is 6 c.m. on the outside and 3 c.m. inside and he did not notice that whether he found the blood stains or not when the same was sent to him. He admits that in the letter they have not mentioned that the blood stained axe was sent to examine and to give report. Again he says that they have given such letter and he gave the report and he cannot tell how long the blood stains would be there on the axe. He has been further examined and in the further examination he says earlier he was deposed that the measurement of the axe was 4 inches, but it is 21/2 inches. In the cross-examination he admits that he is not having any document to show the measurement of MO6 and he is not having any particular identifying mark on the axe. He claims that when the MO6 was sent to him it was sealed and he only opened the seal and he did not drawn any mahazar. 35. The prosecution relies upon the evidence of PW30- Dr.N.Roopesh, who examined PW1 on 25.05.2006 at around 3.30 p.m. and he says that he found four injuries on her and he gave the certificate in terms of Ex.P31 and he identifies the signature as Ex.P31(a) and also identifies the wound certificate as Ex.P30 and the injuries are simple in nature. He says if the assault is made by the back portion of the axe there is chance of sustaining injury No.1 and also injury Nos.2 and 3 and injury No.4 would cause if the same is assaulted with the sharpen edge of the axe. PW30 was subjected to cross-examination. In the cross-examination he admits that if any person falls on the agricultural equipment with force injury Nos.1 and 3 could be caused and so also injury Nos.2 and 4 if any person falls on the hard object. It is suggested that if any assault is made with the axe, the injuries found on Ex.P31 would not be sustained and the said suggestion was denied. It is suggested that if any assault is made with the axe, the injuries found on Ex.P31 would not be sustained and the said suggestion was denied. He admits that while examining the injured and while giving the report in terms of Ex.P31 weapon was not shown to him. It is suggested that PW1 has not stated that Mohan has assaulted her as mentioned in Ex.P31 and the said suggestion was denied. He says that the injured only came to hospital and police were not there along with her. 36. Pw32 is an expert and in his evidence he says that the sealed articles were sent for examination and he found the pillow cover, mat, saree, blouse and another mat, shirt, lungi, axe and found the blood and subjected the same for examination and found the blood stains in all these objects and he gave the report and he identifies the signature as Ex.P33(a). In the cross-examination he admits that he has examined whether there was blood stains or not on MOs.6 to 8 and he says regarding matching of the blood i.e. serological report that can be obtained from the Deputy Director. 37. The prosecution examined PW33-head constable, who took the seized articles to the FSL and in his evidence he says that he was also deputed to search the accused. 38. Pw.34 is the PC, who has handed over the seized articles before the Circle Inspector of Police and mahazar was drawn and he has sent the mahazar. He was subjected to cross-examination and in the cross-examination a suggestion was made that no mahazar was conducted and he did not produce any articles and the said suggestion was denied. 39. Pw35 is the PSI and in his evidence he says that he has received the complaint from PW1 and registered the case and issued the FIR and also conducted the inquest and seized the articles and drawn the mahazar and thereafter on 30.05.2006 he entrusted the papers to the Circle Inspector for further investigation and also apprehended the accused No.1. In the cross-examination he admits that when PW1 came to the police station she came along with complaint and he did not enquire with whom she got it written. A suggestion was made that he is falsely deposing that mat and pillow covers are stained with blood and the said suggestion was denied. In the cross-examination he admits that when PW1 came to the police station she came along with complaint and he did not enquire with whom she got it written. A suggestion was made that he is falsely deposing that mat and pillow covers are stained with blood and the said suggestion was denied. Further suggestion was made that he is falsely deposing that accused was there near Ganjegere bus stop and the said suggestion was denied. 40. Pw36, who conducted the further investigation i.e. conducting of spot mahazar and seizure of the articles at the spot in terms of Ex.P3 and deputed the staff to search the accused and spoken with regard to the seizure of the articles and drawn the mahazar in terms of Ex.P38 and also requested the engineer to prepare the sketch at the spot and apprehended the accused and he identifies the accused and further he says that he has recorded the voluntary statement of the accused and the same is marked as Ex.P41 and he deposed with regard to the seizure of the blood stained cloths and he identifies the MOs and also identifies the signature available on the mahazar on Ex.P17 and further he says that the accused took near his house and produced the axe and found the blood stains on the axe and the same was seized and photos were taken and drawn the mahazar in terms of Ex.P19 and he identifies the signature as Ex.P19(c). The accused was thereafter produced before the Court and he has sent the seized articles to the FSL and recorded the statement of the witnesses and he got obtained the sketch from the PWD Department and he recorded the statement of the witnesses regarding panchayat was held and also identifies the report of the FSL. In the cross-examination it is suggested that the accused has not given voluntary statement in terms of Ex.P41 and the said suggestion was denied. It is suggested that the accused has not informed that he was wearing the said cloth at the time of the alleged incident and the said suggestion was denied. It is suggested that he is falsely deposing that he has seized lungi and shirt and the same are blood stained and the said suggestion was denied. It is suggested that the accused has not informed that he was wearing the said cloth at the time of the alleged incident and the said suggestion was denied. It is suggested that he is falsely deposing that he has seized lungi and shirt and the same are blood stained and the said suggestion was denied. Further suggestion was made that he is falsely deposing that the accused took him and others near the place where he kept the axe and produced the same and the said suggestion was denied. It is suggested that he is falsely claiming that he has not sent the articles to the FSL and no such report is obtained and the said suggestion was denied. Further a suggestion was made that he did not record the statement of the witnesses and the said suggestion was denied. 41. Pw37 is the witness, who took the FIR to the Court and he claims that the Judge was in dictation and hence, he has produced the same before the Court at 11.15 a.m. It is elicited in the cross-examination that K.R. Pet police station is in the bus stand road and the distance is 500 feet and the Court is also at the distance of 600 feet and the Presiding Officer is residing in house which is also in the Court premises. It is suggested that Ex.P1 is created for the purpose of this case and the said suggestion was denied. 42. The prosecution though examined the witnesses, PWs.9 to 11, 17 to 19, 24 to 26 and 31, they have not supported the case of the prosecution and only the evidence remains is other witnesses whose evidence has been discussed in detail above. 43. Now let us appreciate both the oral and documentary evidence to appreciate the evidence available on record in keeping the case of the prosecution and also the contention of the learned counsel for the accused. 44. The prosecution mainly relies upon the evidence of PWs-1 and 2, who are the daughter and grand-son of the deceased. The other witnesses are PWs-5, 6 and 7, who rushed to the spot immediately after hearing screaming sound in the house of the accused and PW-1, in which the deceased stayed on the date of incident. 44. The prosecution mainly relies upon the evidence of PWs-1 and 2, who are the daughter and grand-son of the deceased. The other witnesses are PWs-5, 6 and 7, who rushed to the spot immediately after hearing screaming sound in the house of the accused and PW-1, in which the deceased stayed on the date of incident. The prosecution has also relied upon the evidence of PWs-28 and 30, Doctors, who treated the PW-1, injured and also the deceased. The other witness PW-10, who is the brother of PW-1 is not an eye witness to the incident, but narrated with regard to the ill will between the accused, deceased and PW-1. PW-12 is the auto driver, who took the injured to the hospital immediately after the incident. The other witnesses are formal witnesses and some of them have supported the case of the prosecution and some of them have not supported the case of the prosecution. 45. Now let us see the evidence of PW-1, who is the wife of the accused and daughter of the deceased. PW-1 in her evidence has deposed that there was difference between her and her husband i.e., the accused and also states in this regard, a panchayat was held and an extent of 25 guntas of land was given to her and her children, in which her mother and brothers were cultivating. Hence, the accused persons were having ill will against her and they were telling that they are going to take away her life. That on the date of the incident, at around 10.00 a.m., when she went to her paddy land for watering, accused No.4-Byre Gowda did not allow her for watering and thereafter, she went to society to bring rice but, could not get the same as she was not having the ration card. When she came back to house at around 1.00 p.m., she found her new sarees and blouses were missing and on enquiry, the accused replied that he does not know anything about the same and caused threat that he will take way her life saying that she is telling lie against him, at that time, the remaining accused persons came and instigated him to take away her life. Thereafter, she left the house and went to Somanahalli to purchase the grocery and when she came back, her husband was sitting near the door and when she asked to leave the place, he scolded her claiming that he is also having share in the house and thereafter, he started abusing her and her family members and made galatta at around 10.00 a.m. and there was no light in the house since, he had removed the bulb and hence, there was kerosene lamp. After the food, the deceased was sleeping by the side of the wall and by the side of the deceased, she and her son were sleeping and the accused was also sleeping. At around 1.00 p.m., her husband started abusing and by taking axe, he assaulted her mother when she was sleeping and when PW-1 screamed at the spot, he also assaulted her on chest, waist and head with the same axe. At that time, accused No.2 also came to the spot and assaulted PW.1 and instigated to take away her life. Due to the assault made to the mother of PW.1, the blood was oozing and immediately, she was taken to hospital in an auto rickshaw by PW.1, her son Abhishek, Ramakrishnegowda, Swamygowda and another Swamygowda, son of Siddegowda and told that they have got the auto rickshaw from Kattekyathanahalli. The Doctor came near the auto rickshaw and declared that her mother has already lost her breath and her statement was recorded. 46. In the cross-examination, it is elicited that PW-1 is an illiterate and a suggestion was made that her mother went to attend the nature call, at that time, she fell down on the agricultural accessories and as a result, she sustained injury and the said suggestion was denied. Regarding the injury sustained by her, a suggestion was made that she has sustained the said injury while doing the work in the paddy land and taking advantage of the ill will against the accused, she is falsely deposing that the accused assaulted her and the said suggestion was denied. 47. The prosecution, in order to prove the nature of injuries sustained by PW-1 also got examined the witness PW-30, Doctor, who treated the injured-PW-1. 47. The prosecution, in order to prove the nature of injuries sustained by PW-1 also got examined the witness PW-30, Doctor, who treated the injured-PW-1. The Doctor in his evidence has stated that PW-1 has sustained four injuries i.e., on her head, right wrist, right forearm, lacerated wound on pelvis and iliac bone and also injury on the left knee measuring 3 x 3 cms. The injury Nos.1 and 3 are lacerated wounds and injury Nos.2 and 4 are contusions. In the crossexamination, it is also elicited that, if a person falls on the agricultural sharp edged accessories forcibly, there is a chance of sustaining injury Nos.1 and 3 as mentioned in Ex- P31 and injury Nos.2 and 4 are also sustainable, if a person falls on the hard object. Further, suggestion was made that injuries mentioned in Ex-P31 cannot be sustained, if the same is assaulted with axe and the said suggestion was denied. However, he admits that the axe was not shown to him while examining the injuries. It is suggested that the injured PW-1 has not stated before him that accused has assaulted her as mentioned in Ex-P31 and the said suggestion was denied. He admits that the Police have not visited along with the injured to the hospital and injured only came to the hospital. 48. The other witness PW-2 is the son of the accused and PW-1 and grand-son of the deceased. He says in his evidence that he heard the screaming sound in the midnight and when he awaken, at that time, he found the shirt of the accused i.e., his father was blood stained and he was having axe in his hand and blood was oozing from his grandmother's head and the people also gathered and immediately, his grand-mother was taken to hospital and Doctor has declared that his grand-mother has passed away. In the cross-examination, no doubt it is elicited that he was taken to advocate's office and lawyer has advised him that he has to give answer intelligently and the advocate has briefed the same to him. Suggestion was made that he was advised to give evidence as the police have stated and the same was denied. It is suggested that his grand-mother accidentally fell on the agricultural accessories and as a result, she sustained injury and the said suggestion was categorically denied. Suggestion was made that he was advised to give evidence as the police have stated and the same was denied. It is suggested that his grand-mother accidentally fell on the agricultural accessories and as a result, she sustained injury and the said suggestion was categorically denied. Further suggestion was made that, when his grand-mother fell down, at that time, his mother i.e., PW-1 screamed at the spot and as a result, he was awaken and the said suggestion is also denied. It is stated that his mother PW-1 and his Senior aunt while bringing him to Court were briefing to give evidence in the manner in which the statement has been recorded by the Police and the said suggestion was also denied. 49. Having taken note of the evidence of PWs-1 and 2, who are none other than the wife and son of the accused, who have witnessed the incident have categorically stated that accused has assaulted the deceased with axe on her head and as a result, he has sustained the injuries. With regard to the nature of injuries is concerned, there is no dispute that the deceased had sustained only one injury and in support of their case, the prosecution has relied upon the evidence of PW-28, Doctor, who has stated with regard to the nature of injuries and the same is not disputed by the other side. Further, it is seen that defence was taken that deceased had sustained injury when the deceased accidentally while going to attend the nature call fall on the agricultural accessories and as a result, she sustained injury. It is important to note that the injury sustained by the deceased is on the occipital bone and the same was fractured. It is also the evidence of PW-28, Doctor that there was a damage to brain and the remaining parts of the body are in order and the said wound certificate is marked as Ex-P31. The Doctor has also opined that the injuries could be caused by using the axe which is marked as M.O.6 and also in his cross-examination, he admits the measurement and sharpness of the axe is to the extent of 4 inches and if any injury is caused by the said axe, there is a chance of causing fracture to the head. In his cross-examination, he also admits that if any person falls on the agricultural equipments forcibly, there is a chance of sustaining the said injury. Further, he admits that if any assault is made with force by using M.O.6, there is a chance of extended injury. The defence mainly contend that as opined by the Doctor, the measurement of the injury on the head is 6 cms outside and 3 cms. inside and he also admits that blood stained axe was sent to FSL. Since, the Doctor had opined the measurement and sharpness of the axe is to the extent of 4 inches earlier, subsequently clarified the same that it was actually 21/2 inches. However, there is no document to show the measurement of M.O.6 and he denied the suggestion that the injuries which have been mentioned in the wound certificate do not cause by using the weapon M.O.6. 50. Having taken note of nature of injury sustained by the deceased, it is clear that there was a fracture to the occipital bone and there was damage to brain and the remaining parts of the body were in order and no other injuries, except the said injury. Though an attempt is made in the cross-examination of PWs-28 and 30, Doctors that those injuries could not be caused by using M.O.6, both the witnesses have specifically denied the suggestion. It is no doubt true that PW-28 admits that there are chances sustaining the similar injury, if a person forcibly falls on the agricultural accessories. In the case on hand, it is noticed that the witnesses PWs-1 and 2 are none other than the wife and son of the accused, who have categorically stated that accused caused the said injury with M.O.6 and PW-2, son of the accused also states that he awaken after hearing the screaming sound of his grand-mother and he found the axe in the hands of the accused. Further, it is important to note that PW-1 has sustained four injuries i.e., injury Nos.1 and 3 are lacerated wounds and injury Nos.2 and 4 are contusions and suggestion was made that while working in the paddy land, she has sustained injuries and there is no explanation with regard to sustaining of lacerated wounds and contusions in the paddy field. Hence, from the above, it is clear that accused not only assaulted the deceased but, also his wife- PW1. 51. Hence, from the above, it is clear that accused not only assaulted the deceased but, also his wife- PW1. 51. Further, it is important to note that PWs-5, 6 and 7 who came to the spot immediately after the incident have stated with regard to the nature of injury sustained by the deceased and also taking the injured to the hospital in the auto-rickshaw and the Doctor declared the injured was no more and the evidence of PWs-5, 6 and 7 regarding taking the injured to the hospital is not disputed. PW-1 injured also came to the hospital in an auto rickshaw along with them. But it is important to note that PW-5 categorically states that Ramakrishnegowda and Swamygowda have brought the auto rickshaw and not the accused as contended by the defence. Hence, it is clear that accused did not bring the auto rickshaw. Though an attempt is made by the accused that he only brought the auto rickshaw, there is no material before this court to show that the accused himself took the injured to the hospital. The ordinary prudent man, who happens to be the son-in-law of the deceased would have immediately taken the injured to the hospital, if the deceased accidentally fallen on the agricultural accessories and the same has not been done by the accused and the same clearly show that the accused only committed an act of assaulting the deceased. It is further important to note that panchayat was held between the accused and PW-1 and property to the extent of 25 guntas was given to his wife is also not in dispute prior to this incident and witnesses, who have been examined have also spoken about the same and it is also not in dispute that the mother and brothers of PW-1 were cultivating the said land. Hence, it is clear that the there was an ill-will between the accused and PW-1. The materials on record clearly disclose that on the date of the incident accused was abusing and scolding in the house and assaulted the deceased with axe. The evidence of PWs-1, 2, 5, 6 and 7 and also the evidence of PWs-28 and 30 regarding the injuries sustained by PW1 and also the injury sustained by the deceased clearly shows that they themselves have taken the deceased to the hospital and accused did not accompany the deceased to the hospital. The evidence of PWs-1, 2, 5, 6 and 7 and also the evidence of PWs-28 and 30 regarding the injuries sustained by PW1 and also the injury sustained by the deceased clearly shows that they themselves have taken the deceased to the hospital and accused did not accompany the deceased to the hospital. The materials on record categorically discloses the fact that the accused assaulted the deceased and PW1, though an attempt has been made to state that the deceased accidentally fell down on the agricultural accessories and the same cannot be believed and we do not find any material to believe the defence of the accused. 52. Ex.P.28-Post Mortem report also discloses the cause of death and Ex.P17 Seizure Mahazer under which shirt and lungi of the accused was seized, it is evident that the same was blood stained and FSL report which is marked at Ex.P33 confirms that both the clothes were blood stained and Ex.P42, Serology report discloses that blood group of the deceased as 'O' Positive and the same is found on the shirt and lungi of the accused. Having taken note of the materials available before this Court, it is clear that the death is on account of the injuries sustained by the deceased. 53. Now the question before this court is whether the accused was having any intention to take away the life of the deceased. As already pointed out, the Doctor, who was examined as PW-28 has categorically stated that there was one injury which led to fracture of occipital bone and except the said injury, there is no other injuries. Now the question is whether the accused was having any intention to take away the life of the deceased or he only inflicted the injury. The records reveal that there was no enmity between the accused and deceased. It is further important to note that PW-1 in her evidence has categorically stated that the accused was having an intention to kill her and other accused persons have instigated the accused to take away her life and not the life of the deceased. Hence, it is necessary to consider the totality of the facts, circumstances and probabilities of the case and not to make a narrow interpretation of the evidence produced by the prosecution. 54. Hence, it is necessary to consider the totality of the facts, circumstances and probabilities of the case and not to make a narrow interpretation of the evidence produced by the prosecution. 54. The court has to examine whether the accused was having any intention to cause death of the deceased and whether case falls within the purview of Section 302 of IPC or Section 304 of IPC. In the case on hand as already pointed out, only single injury was sustained and if really accused was having an intention to cause the death of the deceased, he would have inflicted more injuries on the deceased and he only gave a simple blow which landed on the head of the deceased. Hence, it is clear that the accused did not intend to kill the deceased nor cause injury which is likely to cause the death of the accused and it is important to note that blow was not repeated and there was no intention to kill the deceased. 55. Having taken note of the principles laid down in the judgment of the Hon'ble Apex Court reported in the case of Mavila Thamban Nambiar vs. State of Kerala, (1997) AIR SC 687 the Hon'ble Apex Court has held that, where the accused gave one blow with a pair of scissors on the chest of the deceased, though the accused might not have an intention to cause death, but knowledge could be implied to him that the injury could cause death and hence, the Hon'ble Apex Court convicted the accused for the offence punishable under Section 304 part-II. We also refer to the other judgment of the Hon'ble Apex Court in the case of S.D. Soni vs. State of Gujarath, (1991) AIR SC 917, wherein it is held that even though the accused may not have the intention to cause death, but if he had a knowledge that his act would likely cause death, he commits the offence punishable under Section 304 part-II. The Hon'ble Apex Court also in the judgment reported in the case of Tholan vs. State of Tamil Nadu, (1984) AIR SC 759 it is held that, where the accused has inflicted only one blow which results in the death of the accused, intention to kill cannot be attributed and the same falls within the purview of Section 304 part-II of IPC and not under Section 302. 56. 56. Having taken note of the material available before this Court, in the case on hand, it is clear that only one single blow was given by the accused which led the death of the deceased and there was no any prior enmity between the deceased and accused and the single blow which landed on the head of the deceased led to the death of the deceased and if really he intended to take away the life, he would have inflicted more number of injuries and the same has not been done and it is clear that there is no intention to cause the death of the deceased, but the inflicted injury has caused death. Hence, it is a fit case to bring the case within the purview of Section 304 part-II of IPC as held by the Hon'ble Apex Court in the judgments referred to supra. Hence, we are of the opinion that the judgment of conviction and order of sentence is required to be modified for the offence punishable under Section 304 part-II of IPC and not under Section 302 of IPC. 57. The prosecution has also filed an appeal in Crl.A.No.708/2014 urging the ground that fine has not been imposed which is mandatory and no doubt, if the offence comes within the purview of Section 302 of IPC, the word fine is used and since now this Court after evaluating and reconsidering the evidence available on record has come to the conclusion that there was no intention to take away the life of the deceased and brought the case under Section 304 part-II of IPC, there cannot be a fine also. Section 304 part-II of IPC envisages punishment for causing such bodily injury as is likely to cause death or with imprisonment for a term which may extended up to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Hence, we are of the opinion that the appeal filed by the State to impose the fine as mandatory does not arise. 58. In view of the discussions made above, we pass the following: ORDER 1. The appeal filed by the accused in Crl.A.No.278/2015 is partly allowed. 2. Hence, we are of the opinion that the appeal filed by the State to impose the fine as mandatory does not arise. 58. In view of the discussions made above, we pass the following: ORDER 1. The appeal filed by the accused in Crl.A.No.278/2015 is partly allowed. 2. The judgment of conviction under Section 302 of IPC is modified as 304 part-II of IPC. 3. The accused is sentenced to undergo imprisonment for a period of seven years. Since, the accused was in custody from 31.05.2006 to 08.12.2013 and thereafter while passing the judgment of conviction he was taken to custody and till date he has been in the custody, he is entitled for the benefit under Section 428 of Cr.P.C. Since, he has already served the sentence he may be released forthwith. 4. The appeal filed by the State in Crl.A.No.708/2014 becomes in-fructuous in view of the modification of judgment of conviction and order of sentence.