JUDGMENT : 1. In this appeal the accused have challenged their conviction and sentence for the offence punishable under Section 302 read with Section 34 of IPC. 2. For the sake of convenience, the parties are referred to their rank before the Trial Court. 3. It is the case of the prosecution that accused are father and son and they were residing in the farm house situated within the jurisdiction of Indi police station. The granddaughter of brother of deceased Apparaya Lalaseri, by name Giremma @ Revamma was given in marriage to accused No. 2 about 10 months prior to the date of the incident. After the marriage, she started living with the accused persons in their house. It is alleged that intending to perform the second marriage of accused No. 2, accused No. 1 started harassing and making allegations against his daughter-in-law Giremma @ Revamma and sent her back to her parents' house. In this regard, about 3-4 times, panchayat was held by the deceased in the presence of CWs.8, 11, 12, 17 to 20 and the accused persons were advised not to ill-treat Giremma @ Revamma or if they are unable to treat her properly in their house, at least accused No. 2 should set up a separate residence for his wife and live with her, failing which, the deceased gave a threat that he is going to file a criminal complaint. 4. In this background, the accused persons mistook the advise given by deceased to set up a separate residence as though he is trying to break the family and on 08.01.2013 at about 8:45 a.m. while deceased along with complainant-Kasturibai was proceeding from Alur Maddi towards Alur Tanda by walk and when they were near the borewell, accused persons came on motorbike and after stopping their vehicle in front of the deceased, both accused persons assaulted the deceased with two koyta which are used for cutting the sugarcane and gave about 5-6 blows and thereafter, accused No. 2 severed the head of the deceased and threw the head towards the drain. 5. According to the prosecution the incident was witnessed by CW.6-Rudrappa, CW.7-Mahadevappa, CW.14-Dundappa Natikar, CW.15-Annaraya Maragur and CW.16-Basavaraj Walikar. 5. According to the prosecution the incident was witnessed by CW.6-Rudrappa, CW.7-Mahadevappa, CW.14-Dundappa Natikar, CW.15-Annaraya Maragur and CW.16-Basavaraj Walikar. After the incident, Smt.Kasturibai who was the kept mistress of the deceased and who was accompanying him at the time of incident and is an eyewitness informed the said fact to the wife of deceased i.e. CW.10/Smt.Bheemabai and after who and others came to the spot, she went to the police station i.e. complainant went to the police station and lodged the complaint. 6. Based on the complaint, the jurisdictional police registered the case in Crime No. 5/2013 for the offence punishable under Section 302 read with Section 34 of IPC and transmitted FIR to the Court. The PSI who registered the case handed over the further investigation to the CPI. On telephonic message to him about the registration of the case, the CPI immediately visited the spot. The PSI who has registered the case was also present at the spot. After going through the records, the CPI conducted inquest panchanama over the dead body in the presence of panchas. He got shifted the dead body to the hospital for post mortem examination. He also conducted spot panchanama in the presence of panchas and collected blood stained soil, plain soil and recovered two choppers i.e. koyta which were left at the spot by the accused persons, a pair of chappal belonging to the deceased through the spot mahazar. He also drew the rough sketch of the scene of offence. Few photographs of the scene of the offence including that of the dead body i.e. torso and severed head were captured. The Investigating Officer has also recorded the statements of some of the witnesses namely, Bheemarayagouda, Rudrappa, Mahadevappa, Shantappa, Rajashri, Bheemabai, Giremma @ Revamma, Dundappa, Annaraya, Basavaraju, Bhimaraya Karale, Doddappa Patil, Malakappa, Hanumanth Mujagonda, Sankappa Biradar and Kallappa Karale at the spot itself. After the post mortem examination, he handed over the dead body to the relatives. After the post mortem examination, the cloths which were on the body of the deceased were also seized through mahazar. 7. After accused Nos.1 and 2 were arrested and produced before him, the Investigating Officer has recorded their voluntary statement and based on the same, he has seized the blood stained cloths of accused Nos.1 and 2 and also the motorcycle which used by them for committing the murder, in the presence of the panchas. 7. After accused Nos.1 and 2 were arrested and produced before him, the Investigating Officer has recorded their voluntary statement and based on the same, he has seized the blood stained cloths of accused Nos.1 and 2 and also the motorcycle which used by them for committing the murder, in the presence of the panchas. After their medical examination, accused persons were produced before the Court and they were remanded to judicial custody. The Investigating Officer has also sent the seized articles for chemical analysis to the FSL Belagavi and after receipt of the post mortem report, sketch of the scene of occurrence and pending receipt of FSL report as well as the opinion of the Medical Officer regarding the weapons, he has filed charge sheet. After receipt of the FSL report and opinion of the Medical Officer, they were submitted to the Trial Court. 8. Charges were framed against the accused persons for the offences punishable under Section 302 read with Section 34 of IPC. They have denied the charge and claimed trial. 9. In support of the prosecution case in all 20 witnesses are examined as PWs.1 to 20, Exs.P1 to P26 and MOs.1 to 14 are marked. During the cross-examination of the prosecution witnesses, the accused persons have got marked portions of the statement of the witnesses and two photographs as Exs.D1 to D10. During the course of their statement under Section 313 Cr.P.C., the accused persons denied the incriminating evidence arising against them during the course of the trial. They did not chose to lead evidence on their behalf. 10. After hearing the arguments of both sides, the learned trial Judge has convicted the accused persons and sentenced them as detailed in the impugned judgment and order. 11. During the course of the argument, the learned counsel representing the accused persons submitted that the order of conviction and sentence passed by the learned trial Judge is opposed to the law, facts and probabilities of the case. There is no meticulous appreciation of the material on record by the Trial Court. He further submitted that the alleged incident has occurred in the early morning and the place of occurrence is away from the village and as such, there are no witnesses to the said incident and accused persons have been falsely implicated. There is no meticulous appreciation of the material on record by the Trial Court. He further submitted that the alleged incident has occurred in the early morning and the place of occurrence is away from the village and as such, there are no witnesses to the said incident and accused persons have been falsely implicated. He would further submit that PWs.1, 6, 7 and 8 are interested witnesses and due to the enmity, they have falsely implicated the accused persons. 12. The learned counsel further submitted that as elicited during the cross-examination of the prosecution witnesses, the deceased was a womanizer and had number of kept mistresses and as such, he had many enemies and the murder of the deceased is committed by someone else and the blame is put on the accused persons. The Trial Court has failed to appreciate the fact that the accused persons had no motive to eliminate the deceased, that too severing the head of the deceased from the body. Even though the prosecution case is that the incident has been witnessed by number of persons, none of the independent witnesses have supported the prosecution case and those who have supported are partisan and interested witnesses. Therefore, corroboration from independent witnesses was wanting. 13. He would further submit that the evidence of complainant i.e. PW.1 that she did not try to rescue the deceased from the clutches of the accused create doubt as to the veracity of the case of the prosecution. The Trial Court has failed to note the inconsistencies in the evidence of PW.1 and other witnesses. There is inordinate delay in registering the case and the learned trial Judge has failed to appreciate the said fact. In her complaint, the complainant has not disclosed the names of the eyewitnesses and therefore their presence at the scene of occurrence is doubtful and prays to allow the appeal. 14. On the other hand, the learned Addl. SPP has supported the impugned judgment and order of conviction. In her complaint, the complainant has not disclosed the names of the eyewitnesses and therefore their presence at the scene of occurrence is doubtful and prays to allow the appeal. 14. On the other hand, the learned Addl. SPP has supported the impugned judgment and order of conviction. Relying upon the decisions of the Hon'ble Supreme Court in the case of Leela Ram (D) through Duli Chand vs. State of Haryana and Another, AIR 1999 SC 3717 , Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753 , Motiram Padu Joshi and Others vs. State of Maharashtra, (2018) 9 SCC 429 , he argued that in the light of the principles enunciated regarding appreciation of the evidence of eyewitnesses in criminal cases, the Trial Court has come to a correct conclusion that the accused persons are guilty of the charges leveled against them and prays to dismiss the appeal. 15. We have heard the elaborate arguments of both sides and perused the records. 16. The undisputed facts are deceased-Apparaya Lalaseri was a retired teacher. His wife i.e. PW.7- Bheemabai also a retired teacher was staying along with her children at Lachyan. PW.1-Kasturibai is the kept mistress of deceased-Apparaya Lalaseri and living with him at Alur Maddi and in spite of the fact that she was a kept mistress of deceased, she was treated as though a member of the family. It is also not in dispute that the PW.8-Giremma @ Revamma the granddaughter of the brother of deceased- Apparaya Lalaseri was given in marriage to accused No. 2 - Basavaraj. 17. It is the definite case of the prosecution that when the accused persons started harassing and ill- treating his brother's granddaughter who was given in marriage to accused No. 2, deceased intervened and conducted panchayat 3-4 times and requested the accused persons not to do so and he also suggested that in case they do not like the daughter-in-law to stay with them, a separate residence may be arranged for accused No. 2 and his wife to stay separately and this was not taken in proper spirit by accused No. 1 and he along with accused No. 2 committed the murder of the deceased and accused No. 1 gone to the extent of severing the head of the deceased. 18. 18. In view of this, burden is on the prosecution to establish that the accused persons had strong motive to eliminate the deceased. Of course there are eyewitnesses to the incident. The accused persons have taken up a specific defence that the deceased was a womanizer and he had several affairs i.e. several kept mistresses including the complainant and for this reason on the date of incident, the deceased was killed by someone else when he had gone to answers the nature's call and there are no eyewitnesses to the said incident. The accused have further contended that in respect of the said incident already a complaint was lodged and concealing the said fact, a new complaint was lodged falsely implicating the accused persons. 19. In order to prove the motive, the prosecution has relied upon the evidence of PWs.1, 3, 6, 7 and 8. PW.8-Giremma @ Revamma is the wife of accused No. 2 and daughter-in-law of accused No. 1. She is the granddaughter of the brother of deceased. Her evidence establish the fact that within 2-3 months of her marriage, the accused persons especially accused No. 1 started quarrelling with her in respect of an incident where he suspected her having poisoned the food. In this respect PW.8 has deposed that while she was in the house of accused persons, she was doing the cooking work and it was her mother-in-law who was serving the food. In respect of the said incident, she has deposed that on that day when her mother-in-law was about to serve the food to accused Nos.1 and 2, she i.e. PW.8 observed that the food was black in colour and her mother-in-law also questioned her about it, but she expressed her ignorance as to the reason for the same and on that day the said food was not served. After the said incident, accused No. 1 started blaming her saying that she poisoned the food to kill them. 20. It is pertinent to note that the evidence of PW.8 reveal that she was not harassed or troubled by her husband i.e. accused No. 2 or her mother-in-law and it was accused No. 1 alone who was blaming her and he wanted to perform the second marriage of accused No. 2. 20. It is pertinent to note that the evidence of PW.8 reveal that she was not harassed or troubled by her husband i.e. accused No. 2 or her mother-in-law and it was accused No. 1 alone who was blaming her and he wanted to perform the second marriage of accused No. 2. The evidence of PWs.1, 3, 6 and 7 also corroborate the evidence of PW.8 regarding the ill-treatment of PW.8 at the house of accused persons and the fact that 3-4 times panchayat was held. In fact, PW.8 has specifically deposed that on the last occasion when the panchayat was conducted, the accused persons tried to assault the deceased and consequently the panchayat failed and she was brought back to her parents' house. It has also come in the evidence that whenever the panchayat was conducted, the deceased used to give ultimatum to the accused persons that if they harass PW.8-Giremma @ Revamma, he is going to lodge complaint and see that the accused persons are put behind the bars. 21. It is pertinent to note that the fact of food poisoning was elicited through the cross-examination of PW.8. This fact is not stated by the witness to the police while giving her statement under Section 162 Cr.P.C. She has been questioned as to whether she has disclosed this fact to the police while her statement was recording under Section 162 Cr.P.C. Of course she has answered in the negative. 22. It is pertinent to note that PW.8-Giremma @ Revamma is not an eyewitness to the incident. Her statement is recorded only to prove the motive and with regard to the motive, the police have recorded her statement. These details of cause for accused No. 1 ill- treating her were not material so far as the criminal case in question is concerned and for this reason the police might not have record the details. Since it was in the exclusive knowledge of this witness, and as she has not thought it material at that point of time, she may not have revealed the same. Only after the said fact of food poisoning was elicited through the cross-examination it has come on record. Therefore, the fact that it is not reflected in her statement under Section 162 Cr.P.C. is not a material omission so as to treat it as contradiction going to the root of the prosecution case. Only after the said fact of food poisoning was elicited through the cross-examination it has come on record. Therefore, the fact that it is not reflected in her statement under Section 162 Cr.P.C. is not a material omission so as to treat it as contradiction going to the root of the prosecution case. By eliciting in her cross- examination, the reason for accused No. 1 not wanting his daughter-in-law to stay in their house and he was planning to perform the second marriage of accused No. 2, is brought on record by the defence themselves. This also supports the case of the prosecution that this was the background in which the relationship between the accused persons and deceased was strained. 23. It is pertinent to note that the deceased was a teacher and he was an educated man among these people. He had retired long back. It appears he was exerting certain amount of respect in the community and was in a position to give threat to the accused persons with dire consequences if they failed to treat their daughter-in-law properly. In fact, the evidence of PW.1 disclose that a criminal complaint was lodged by PW.8-Giremma @ Revamma against the accused persons, but that ended up in compromise. This fact also prove the capability of the deceased and since the accused persons did not want to take back PW.8-Giremma @ Revamma, they might have thought that the deceased was thorn in their flesh and they wanted to eliminate him. The evidence of PWs.1, 3, 6 to 8 establish the motive attributed to the accused persons for committing the crime. 24. Even though suggestions have been made to prosecution witnesses that no such panchayat was conducted and deceased never gave any threat to the accused persons of initiating criminal proceedings, the fact remains that within ten months of marriage, the wife of accused No. 2 left the matrimonial home and was staying in parents' house. Other than the reasons assigned by the prosecution, the accused persons have not come up with any reason for PW.8-Giremma @ Revamma leaving their house and staying in her parental home. As rightly observed by the learned Sessions Judge, in their statement under Section 313 Cr.P.C., the accused persons have admitted the fact that PW.8-Giremma @ Revamma was no longer staying in their house and she was living with her parents. As rightly observed by the learned Sessions Judge, in their statement under Section 313 Cr.P.C., the accused persons have admitted the fact that PW.8-Giremma @ Revamma was no longer staying in their house and she was living with her parents. Of course they have never made any attempt to get her back to the matrimonial home. After examining the testimony of these witnesses, the trial Judge has rightly come to the conclusion that prosecution has established the motive for the accused persons to commit the crime in question. We find no perversity in the said finding. 25. Now coming to the actual incident. PW.1- Kasturibai, PW.4-Rudrappa Teli, PW.5-Mahadevappa Chabuksawar, PW.9-Annaraya Maragur, PW.10-Basavaraj Walikar and PW.11-Dundappa Natikar are cited as eyewitnesses to the incident. Out of these, PW.4-Rudrappa Teli and PW.5-Mahadevappa Chabuksawar are cited as eyewitnesses in the complaint itself. These two witnesses have turned hostile and not supported the prosecution case. However, the remaining witnesses i.e. PWs.1, 9, 10 and 11 have spoken to about the actual incident and the participation of accused Nos.1 and 2 in committing the crime in question. 26. It is pertinent to note that PW.1-Kasturibai who is also the complainant is a kept mistress of the deceased. Her evidence reveal that even though she was given in marriage to one Vithal Metri, but after leaving him, she started staying with the deceased as his kept mistress. During the course of the cross-examination of this witness, it is elicited during childhood she used to visit her husband's house, but ultimately she did not choose to join him after attaining the age of puberty as by that time he had already remarried. The fact that the deceased and PW.1-Kasturibai were living together as husband and wife and this fact was accepted by the wife of the deceased and all their family members is not in dispute. Thus, the relationship between the deceased and PW.1-Kasturibai was accepted by all the members of the family as well as by the society. 27. The evidence of PW.1-Kasturibai reveals that on the date of incident i.e. 08.01.2013 she and deceased were supposed to attend a function at Lachyan village and for that purpose, they were going to Indi to purchase some articles and at around 8:45 a.m., she and deceased were proceeding towards bus stand on road. 27. The evidence of PW.1-Kasturibai reveals that on the date of incident i.e. 08.01.2013 she and deceased were supposed to attend a function at Lachyan village and for that purpose, they were going to Indi to purchase some articles and at around 8:45 a.m., she and deceased were proceeding towards bus stand on road. Deceased was a few paces ahead of her and she was following him by carrying a bag at a distance of about 25-30 feet. At that time accused Nos.1 and 2 came on motorcycle from the direction of their garden land and stopped the motorbike in front of the deceased. She has deposed that the vehicle was driven by accused No. 1/Girimallppa and his son i.e. accused No. 2 was the pillion rider and both of them got down from the motorcycle, removed koyta and holding the deceased by his shirt, they assaulted him on the head, back, forehead etc. She has specifically stated that thereafter accused No. 1-Gireppa pushed the deceased on the ground and holding his hair, he severed the head with the chopper i.e. koyta and threw the severed head towards the drain. She has specifically stated that both the accused persons gave threat to her by showing koytas and they left the place after leaving koytas and went away on the motorbike. 28. PW.1 has specifically stated that she started crying and when her husband was assaulted, there were no persons near the spot and because of the shock, she could not see others. Later many people gathered at the spot. PW.1 has stated that immediately she informed the fact of the said incident to Lachyan house referring to Bheemabai the wife of the deceased over telephone and after Bheemabai, her son-in-law and others came to the spot, all of them went to the police station and in this regard, she has lodged a complaint as per Ex.P1. 29. As already discussed, PW.4-Rudrappa Teli, PW.5-Mahadevappa Chabuksawar are named as eyewitness to the incident in the complaint itself. However, before the Court they have not supported the prosecution case with regard to the motive as well as actual incident. 29. As already discussed, PW.4-Rudrappa Teli, PW.5-Mahadevappa Chabuksawar are named as eyewitness to the incident in the complaint itself. However, before the Court they have not supported the prosecution case with regard to the motive as well as actual incident. During the course of their cross-examination, they have denied that accused persons were ill-treating Giremma @ Revamma and when the deceased intervened and tried to patch up, they were angry and that was the motive for the accused persons to commit the murder of the deceased. They have also denied of having witnessed the incident and given statement as per Exs.P10 and P11. These two witnesses are not cross-examined by the defence. The manner in which these two witnesses have given evidence makes it evident that they are won over by the accused persons and as such, they were not desirous of disclosing the truth. 30. The evidence of PW.9-Annaraya Maragur disclose that at the time of incident i.e. at about 8:45 a.m., he was coming from old Alur village to new Alur village to go to his farm house after getting the javar grounded in the flour mill and when he was near the hand pump, he saw the accused persons coming on the motorcycle and they stopped in front of the deceased- Apparaya. He has deposed that accused No. 1 gave a chopper i.e. koyta to accused No. 2 and accosted him to assault the deceased, but accused No. 2 slapped the deceased on his cheek with the broader portion of chopper and watching this, accused No. 1 ridiculed accused No. 2 i.e. taunted accused No. 2 that he do not know how to assault and gave hard blows on the neck of the deceased with a chopper thrice and threw him on ground and separated his neck portion and lifted it and threw it away and thereafter both of them went on the motorcycle towards LT-2 tanda. He has also deposed that at the time of incident, Kasturibai-PW.1 was coming towards the place of incident after locking her house. He has specifically stated that after seeing the ghastly incident, due to fear he went to his house. All the eyewitnesses to the incident have identified MOs.3 and 4/choppers (i.e. koytas) as the weapons used by the accused persons to assault the deceased. 31. PW.10-Basavaraj Walikar is also an eyewitness to the incident. He has specifically stated that after seeing the ghastly incident, due to fear he went to his house. All the eyewitnesses to the incident have identified MOs.3 and 4/choppers (i.e. koytas) as the weapons used by the accused persons to assault the deceased. 31. PW.10-Basavaraj Walikar is also an eyewitness to the incident. He is stated to be the student of the deceased. He has also deposed that PW.1-Kasturibai was residing with the deceased at Alur and they had no issues whereas the wife and children of deceased were living at Lachyan. The evidence of this witness reveal that his brother Neelappa Walikar is running a kirana shop in old Alur village and he had requested this witness to bring some kirana items from Lachyan kirana shop and therefore at around 8:00 am, he left his house and proceeding towards Lachyan on his motorcycle. On the way near the hand pump, he saw the accused persons assaulting the deceased with choppers and on seeing this, he turned around and went back to his house. He has also deposed that at around 10:00 a.m., when some of the villagers were proceeding towards the scene of occurrence, he also accompanied them and went to the spot and saw the dead body of Apparaya with his severed neck fallen near the drain. During his cross-examination, he has specifically deposed that he saw the incident from a distance of about 30 feet and immediately he turned back and returned to his home. 32. The evidence of PW.11-Dundappa Natikar is to the effect that on the date of incident, from old Alur village he was proceeding towards new Alur village and when he came near the hand pump, from a distance of about 20 yards, which is approximately 100 feet, he saw the dead body of Apparaya fallen on the ground with his head severed and he saw the accused persons going on their motorcycle towards their land. His evidence is to the effect that immediately after the incident he saw the accused persons going away from the scene of occurrence. It is admissible under Section 6 of the Indian Evidence Act as res gestae. 33. Learned counsel representing the accused persons have vehemently argued that PWs.9, 10 and 11 are not named as the eyewitnesses in the complaint and as such, their presence at the scene of occurrence is not proved. It is admissible under Section 6 of the Indian Evidence Act as res gestae. 33. Learned counsel representing the accused persons have vehemently argued that PWs.9, 10 and 11 are not named as the eyewitnesses in the complaint and as such, their presence at the scene of occurrence is not proved. In fact, the two witnesses who are named in the complaint have turned hostile and they have not supported the case of the prosecution. It is true that in the complaint, the complainant has not named PWs.9 to 11 as present at the scene of occurrence or immediately after the incident and they have seen the accused persons going away from the scene of occurrence. It is relevant to note that accused Nos.1 and 2 have committed a ghastly murder of deceased in front of his kept mistress in a very cruel manner. In a fraction of second, they have accosted the deceased and not only assaulted him with the choppers, but also accused No. 2 after throwing him on the floor by holding his hair he has severed the neck of the deceased and threw it towards the drain. After the incident, they have threatened the complainant by showing choppers and left on their motorcycle leaving the choppers. After seeing the such ghastly incident, certainly the complainant would have been under a tremendous shock. In fact during her evidence, she has clearly stated that the incident was so ghastly that she did not observe who were all present near the spot or who have seen the incident from a distance. She had become totally blank. The other witnesses have clearly stated that when they went to the spot, they found the complainant sitting near the hand pump and crying. In fact, the photographs of the deceased and the scene of occurrence makes its evident that they were so shocking she did not even go near the deceased. 34. Based on the evidence of PW.9 that when the incident took place he is saw the complainant coming towards the place of occurrence, the learned counsel representing the accused argued that she was not at all present at the place of occurrence, where the incident took place. 34. Based on the evidence of PW.9 that when the incident took place he is saw the complainant coming towards the place of occurrence, the learned counsel representing the accused argued that she was not at all present at the place of occurrence, where the incident took place. It is pertinent to note that during the course of the complaint as well as the evidence, PW.1 has clearly stated that she was following the deceased from a distance of about 25-30 feet. PW.9 after watching the incident from a distance, being afraid of went away. Therefore, his evidence that he saw the complainant coming towards the incident does not mean that she was not at all present at the scene of the occurrence. In fact, he has seen the incident from the opposite side of the complainant. He did not choose to stay back even after the accused persons left the scene of the occurrence. Therefore, his evidence though support the prosecution case will not negate the presence of the complainant at the place of occurrence. 35. The learned counsel representing the accused persons have argued that the conduct of the complainant in not going to the rescue of the deceased was very unnatural and as such her presence at scene of occurrence is doubtful. As already discussed, the accused persons committed the murder of the deceased in a very cruel and ghastly manner and they have gone to the extent of severing the head of the deceased. The incident has taken place suddenly and as the complainant was following deceased from a distance of 25-30 feet she witnessed the incident from there and by the time she came near the place of occurrence, the accused persons had already assaulted the deceased. They were two strong men holding choppers and assaulting the deceased and have gone to the extent of beheading him. In such circumstance, it goes hard to a helpless woman to venture to go near the deceased for his rescue. In fact, the other witnesses, namely, PWs.9 to 11 have also not chosen to stay back at scene of occurrence and immediately after watching the incident they have left the place being afraid of the ghastly murder that has taken place. In fact, the other witnesses, namely, PWs.9 to 11 have also not chosen to stay back at scene of occurrence and immediately after watching the incident they have left the place being afraid of the ghastly murder that has taken place. Such being the case, it was quite natural for the complainant being under tremendous shock and fear not to go near the accused persons to rescue the deceased. In fact, she has clearly deposed that before leaving the place, the accused persons gave her threat by showing choppers and after leaving the choppers at the spot, they sped away on their motorcycle. Therefore, the conduct of the complainant in not going to rescue the deceased cannot be termed as unnatural. In fact it was very natural on her part to go blank, horrified and in such a condition to notice all the persons present and witnessed the incident. 36. We have carefully examined the evidence of PWs.1 and 9 to 11 regarding the involvement of the accused persons in committing the crime in question. Their evidence is reliable, convincing and cogent. We find no reasons to disbelieve their evidence and rightly so the Trial Court has relied upon their evidence to hold that it is accused persons who have committed the murder of the deceased. 37. The defence of the accused that the incident has taken place at the early hours of 08.01.2013 when deceased had gone to answer nature's call and there were no eyewitnesses to the incident and in respect of same, a complaint was lodged and subsequently accused persons have been falsely implicated and the investigation officer has also anti timed the complaint and foisted the false case against the accused persons. To establish their defence, the accused persons have relied upon the evidence of PW14-Kallappa Siddappa Karale who is the scribe of the complaint at Ex.P1. He is the nephew of PW9-Bheemabai the wife of the deceased. He has deposed that after coming to know about the incident, he came to the Alur village between 12.00 noon or 1.00 p.m. and he along with PW1-Kasturibai went to the Indi Police Station and lodged the complaint at around 3.00 p.m. But according to the prosecution, the complaint came to be filed at about 11.30 a.m. and immediately the FIR was transmitted. However, the FIR has reached the jurisdictional magistrate at 6.15 p.m. Based on this, the accused contend that the incident had taken place at the early hours and already a complaint was lodged and subsequently a false case has been registered against the accused persons and therefore the FIR has reached the magistrate at a belated stage. However, to explain the delay in transmitting the FIR to the court, the prosecution has relied upon the evidence of PW17-Vijayakumar Rathod, Police Constable. He has clearly stated that he was entrusted with the FIR at 1.00 p.m. and by the time he went to the court, it was 1:30 p.m. But the magistrate has already gone to his house for lunch and therefore, he could not hand over the same to him immediately. PW.17 has deposed that after returning from his residence, immediately the learned Magistrate went to the seat, started the Court proceedings and therefore he could not interfere in between and only after the learned Magistrate retired from the open court, he handed over the FIR. During his cross examination he has denied that till 5.30 p.m., FIR was not given to him and therefore there is delay in transmitting the same to the jurisdictional magistrate. 38. As rightly discussed by the learned Sessions Judge, and as deposed by PW16-Irasangappa Pattanshetti, PSI who registered the case, and as evident from FIR at Ex.P19, the case was registered at 11.30 a.m. PW16 has immediately intimated the Circle Inspector about registering of the case and he reached the spot and followed by the CPI who is examined as PW19. After reaching the spot, PW.19 has taken up further investigation. Immediately he has conducted the inquest at Ex.P7 in between 1.15 to 2.15 p.m. He has also conducted the spot mahazar at Ex.P8 in between 2.30 to 3.30 p.m. At the spot he has also recorded the statements of some of the witnesses. In all these documents, he has noted the crime number of the case in which these proceedings are drawn. If at all the case was registered at 3.00 p.m. as suggested to PW16, the crime number of these proceedings would not have been reflected in the spot mahazar as well as the inquest. In all these documents, he has noted the crime number of the case in which these proceedings are drawn. If at all the case was registered at 3.00 p.m. as suggested to PW16, the crime number of these proceedings would not have been reflected in the spot mahazar as well as the inquest. It appears the accused persons have won over PW14 and through him, they have tried to introduce that the case was registered only at 3.00 p.m. However, PW14 who is the scribe of the complaint at Ex.P1 has denied that the contents of complaint was not as narrated by the PW1-Kasturibai and that she was not aware of the contents of the complaint. This suggestion is contrary to the testimony of PW1-Kasturibai. Not even a suggestion is made to the complainant that she was not at all aware of the contents of the complaint. Of course she has denied the suggestion that the incident took place at around 5.00 a.m. and immediately people started gathering at the scene of occurrence. As rightly held by the learned Session Judge, PW14 the scribe has been won over by the defence for the purpose of changing the time of registering the case, based on the fact that the FIR has reached the magistrate at the belated stage. Of course through the evidence of PW17-Vijaykumar Rathod, the police constable who has transmitted the FIR, the prosecution has clearly explained the delay in transmitting the FIR. We find no reasons to disbelieve his testimony. Therefore, we hold that the defence has failed to demonstrate that the case was registered at 3:00 p.m. and not 11.30 a.m. as stated in the FIR. 39. The oral testimony of the eye witnesses as well as the evidence of PW18-Dr.Mahantayya Ganjigatti, who has conducted the post mortem examination on the dead body of the deceased, establish the fact that the deceased met a homicidal death. Of course, accused persons have not disputed the fact that the death of the deceased was homicidal. It is their case that the murder of deceased- Apparaya Lalaseri was committed by some one else and accused persons have been falsely implicated. However, they have failed to demonstrate their defence to that effect. 40. Based on post mortem report at Ex.P23 and the evidence of the PW18-Dr. It is their case that the murder of deceased- Apparaya Lalaseri was committed by some one else and accused persons have been falsely implicated. However, they have failed to demonstrate their defence to that effect. 40. Based on post mortem report at Ex.P23 and the evidence of the PW18-Dr. Mahantayya Ganjigatti who has conducted the post mortem examination that semi digested food particles were found in the stomach of the deceased, the defence is trying to establish that the incident has occurred in the early hours of 8.1.2013. Of course PW.18 has denied that the incident has taken place about 10-12 hours prior to the conducting of the post mortem examination. He has stood by his opinion that the death occurred about 6 to 8 hours prior to the post mortem examination. In this regard, at para 4 of his cross-examination, he has specifically deposed that irrespective of at what time a person has taken food, once death occurs, in whatever condition the food was there in the stomach, it will remain in that state only. In the said paragraph he has once again denied the suggestion that taking into consideration the digested food particles in the stomach and the rigor mortis having set in, the death might have occurred about 10 to 12 hours prior to the post mortem examination. In this regard, the evidence of PW1- Kasturibai is relevant wherein she has deposed that on the previous night at 9.00 p.m., she and her husband consumed chapatti, milk and banana. This explained the fact that by the next morning, the food had already digested and therefore in the stomach the Medical Officer has found the digested food particles. Thus, from the evidence of the Medical Officer who conducted the post mortem examination also, it is established that the death of the deceased occurred at around 8:45 a.m. and it corroborates the case of the prosecution and testimony of complainant as well as the other eye witnesses. Taking into consideration all these aspects, the learned Session Judge has rightly come to the conclusion that the accused persons committed the murder of the deceased and PW1 was an eyewitness to the incident having seen the same from a distance about 25 to 30 feet. Similarly PWs-9 and 10 have also seen the incident. Taking into consideration all these aspects, the learned Session Judge has rightly come to the conclusion that the accused persons committed the murder of the deceased and PW1 was an eyewitness to the incident having seen the same from a distance about 25 to 30 feet. Similarly PWs-9 and 10 have also seen the incident. PW.11 has seen the accused persons leaving place of occurrence on their motor bike and immediately at the scene of occurrence he found the torso and head of deceased on the ground. The conclusions arrived at by the Session Judge is based on the evidence placed on record and the witnesses to the occurrence are natural, reliable, trustworthy and their evidence is consistent. Of course, there are few inconsistencies and omissions, which would not go to the root of the prosecution case. We find no reason, not to accept the conclusion arrived at by the Trial Court and we find no perversity therein so as to interfere with the same. 41. Now coming to the evidence of the prosecution regarding recovery of blood stained clothes and motorbike of the accused and at their instance, PW13-Bhimaraya Chandram Kannur and PW15-Siddraya Siddappa Tenalli are witness to the mahazar Ex.P14. They have deposed that the Investigating Officer who was known to them called them to the farm house of the accused persons and took their photographs at Ex.P15 to 18. That their signatures were taken on blank paper and thereafter something was written therein. During the cross examination by the prosecution, they have denied that the accused persons gave the voluntary statement and as per their voluntary statement they lead them to their farm house and produced the blood stained clothes and the motorbike was also recovered. It is pertinent to note that the accused have not cross examined these two witnesses with regard to their evidence that the photographs in question were taken at the place depicted therein i.e. farm house of accused person and accused Nos.1 and 2 are also reflected in these photographs. On this aspects, the evidence of PW19-Gopalkrishna Goudar who has conducted the further investigation is relevant. He is the one who has recovered the blood stained clothes of the accused as well as motor bike used for the commission of offences and he has given evidence to that effect. On this aspects, the evidence of PW19-Gopalkrishna Goudar who has conducted the further investigation is relevant. He is the one who has recovered the blood stained clothes of the accused as well as motor bike used for the commission of offences and he has given evidence to that effect. His evidence establish the fact that in the presence of PW13 and PW15, the mahazar was drawn and the material objects were seized at the instance of the accused persons. A suggestion is made to the Investigating Officer that he had preserved the blood of the deceased and smeared on the clothes of the accused at MOs-11 to 14. By making the said suggestion, the accused persons are admitting that MOs-11 to 14 clothes belong to them. As per Ex.P14 they are the one which was seized at the instance of the accused persons. The investigating Officer is also questioned as to whether he has collected the blood sample of the accused and sent to the FSL. It is not the case of the prosecution that during the incident, the accused persons were injured and therefore the clothes which they were wearing contained the blood stained of the accused. Consequently, there was no need to collect their blood sample and send that to the FSL. 42. The FSL report Ex.P26 is a relevant piece of evidence connecting the accused persons to the crime in question. As per Ex.P26-FSL report, the blood stained mud, the two koytas, the shirt, banian and paijama of the deceased, the shirt and paijama of accused No. 1 and the shirt and pant of accused No. 2 were stained with human blood of 'A' group. This supports the case of the prosecution that it is the accused persons who committed the crime in question and during the process, the weapons used by them for committing the offences and also the clothes worn by them at the time of offences were stained with human blood. In spite of fact that the PW13 and PW14 witnesses to the seizure of the blood stained clothes of the accused have turned hostile, with the support of the evidence of Investigating Officer and corroborated by the FSL report, the prosecution established that the clothes which the accused persons were wearing at the time of commission of the offence were stained with human blood. The accused persons are not having any other explanation other than making suggestion that the blood of the deceased was preserved and sprinkled on the clothes of the accused persons and the said suggestion is not acceptable. 43. Thus, from the oral as well as the documentary evidence placed on record, the prosecution has established beyond reasonable doubt that the accused persons had a strong motive to eliminate the deceased and on 8.1.2013, with the help of MOs-3 and 4, they assaulted the deceased and killed him and beheaded him. The post mortem report proves the fact that the death of the deceased was due to the hemorrhagic shock as a result of the injuries sustained over the neck. Trial Court has discussed the oral and documentary evidence placed on record, threadbare and has come to a correct conclusion that the charges leveled against the accused are proved beyond reasonable doubt. This conclusion is based on the legal evidence placed on record and absolutely there is no perversity calling for interference by this Court. 44. So for as the quantum of punishment imposed. Accused persons have committed the murder of the deceased in a very gruesome manner. After assaulting him mercilessly, not being satisfied with the same they have gone extent of severing the head of the deceased from the body and it was thrown towards the drain with scant respect even to the dead body. This is done in the presence of PW.1-Kasturibai. Consequently, relying upon the decision of the Hon'ble Supreme Court in case of Abdul Waheed vs. State of Uttar Pradesh, (2016) 1 SCC 583 and Raj Bala vs. State of Haryana and Others, (2016) 1 SCC 463 , the Trial Court has sentenced the accused persons to undergo imprisonment for the entire life, for the offence punishable under Section 302 read with Section 34 of IPC and also to pay fine of Rs. 10,000/- each in default to undergo simple imprisonment for three months each. 45. It is pertinent to note that as on the date of the incident accused No. 1 was aged 50 years. Accused No. 2 was aged 30 years. By now accused No. 1 is aged around 58 years. 10,000/- each in default to undergo simple imprisonment for three months each. 45. It is pertinent to note that as on the date of the incident accused No. 1 was aged 50 years. Accused No. 2 was aged 30 years. By now accused No. 1 is aged around 58 years. It has come in the evidence that it is accused No. 1 who wanted to perform the second marriage to accused No. 2 and for this reason he was not in favour of Giremma @ Revamma the wife of accused No. 2 to stay in their house and instrumental in removing her from the matrimonial house. It has also come in the evidence that it is he who took active part in commission of the offence and gone to the extent of severing the head of the deceased. When accused No. 2 did not take the initiative to assault the deceased, he has taunted him and after giving severe blows to the deceased also went to the extent of severing his head. Taking into consideration the age of accused No. 1 as well as accused No. 2 not taking very active part in the commission of the offence similar to that of accused No. 1, we hold that sentencing accused Nos.1 and 2 to undergo imprisonment for their entire life is on the higher side. Having regard to the facts and circumstances of the case, we hold that sentencing them to undergo imprisonment for life would meet the ends of justice. To this extent the punishment is liable to be modified. 46. The Trial Court has also ordered the accused to pay a sum of Rs. 5,00,000/- to PW1-Kasturibai by way of compensation, in default of paying the same, they are further sentenced to undergo imprisonment for two years each. The trial court has observed that since PW7- Bheemabai Apparaya Lalaseri is the legally wedded wife of the deceased, she is entitled for the properties left by him. Since the complainant i.e. PW1-Kasturibai was a kept mistress, she is not entitled for any benefits arising out of the death of the deceased and therefore he has ordered for payment of the compensation to PW1-Kasturibai. Having regard to the peculiar facts and circumstances, we hold that the imposition of fine as well as compensation is correct and we uphold the same. Having regard to the peculiar facts and circumstances, we hold that the imposition of fine as well as compensation is correct and we uphold the same. In view of the decision of the Hon'ble Supreme Court reported in (2009) 6 SCC 652 in case of Vijayan vs. Sadanandan K. and Another, the learned Sessions Judge is within his powers to impose default sentence in case of failure on the part of the accused persons to pay the compensation so awarded. 47. Looking from any angle, we do not find any reason to interfere with the judgment and order of conviction. However, the sentence of imprisonment for the entire life is converted into imprisonment for life and accordingly we proceed to pass the following: ORDER: The appeal is partly allowed. The conviction and sentence in S.C. No. 121/2013 by the II-Addl. Sessions Judge, Vijayapura, for the offence punishable under Section 302 read with Section 34 of IPC is confirmed. However, the sentence to undergo imprisonment for entire life is converted into imprisonment for life. The sentence regarding payment of fine and compensation is maintained. We place on record our appreciation for the able assistance rendered by Sri. B.C. Jaka, learned Amicus Curiae. The Registry is directed to pay honorarium of Rs. 15,000/- to Sri. B.C. Jaka, learned Amicus Curiae representing the appellants.

GIRIMALLAPPA @ GIRIMALLA @ GIREPPA v. STATE OF KARNATAKA