Pramodhkumar N. @ Pramoda v. State of Karnataka by Jayapura Police Station, Mysuru, (Represented by learned

the offence under section 201 of IPC. If the trial court has made reference under section 366 of Cr.P.C. confirmation of death sentence, the accused has preferred an appeal challenging his conviction. - 5 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019

2. Briefly stated, the factual background for the incident as projected in the charge sheet is this: Krittika Dev (referred to as girl hereafter) was the daughter of PW1 and a student of B.Com. On the pretext of loving and marrying the girl, he enticed her to part with her jewelleries to him in order to mobilize money for his personal use. The girl started forcing the accused to marry him, but he had already been engaged to another girl by name Kannikashree of his caste. He thought that he and his family members might have to face problems in future if he married a girl belonging to schedule caste; he wanted to convince her not to think of marrying him; and for that purpose he took her to Melukote on 15.12.2014 where she was made to stay in a lodge till 16.12.2014. Then he brought her to Mysore on 17.12.2014 and arranged for her stay at Shivaguru Comforts lodge situate behind K.S.R.T.C. Bus stand. On 21.12.2014, he took her in his car to a desolated place in a newly formed residential layout in the outskirts of Mysore City in order to again convince her to give up the idea of marrying him, or - 6 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 else to kill her if she did not agree to his request. While going to that place, he brought some liquor and food items. There his effort to convince her went futile, and when she insisted him on marrying her, he gave three or four blows on her head with a wheel spanner of his car. When she fell down unconscious, he dumped her into a open manhole. He returned to his room at Kumbara Hostel, Mysore, changed his clothes and then came to the same place buying petrol from Aravinda Petrol Bunk. He poured kerosene on the girl who was still unconscious and then lit fire to see that evidence was destroyed. This is the case projected by prosecution.

3. The case is based on circumstantial evidence. The trial court found all the circumstances being proved in order to record conviction against the accused for the offences punishable under section 302 and 201 of IPC.

4. We have heard Sri. Hashmath Pasha, learned senior counsel for the accused, Sri. Vijayakumar Majage, learned SPP-II for the State and Smt. Raksha Keerthana, - 7 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 learned counsel who argued on behalf of Sri. Kemparaju, for respondent no.2.

5. Though several grounds assailing conviction judgment are urged in the memorandum of appeal, Sri. Hashmath Pasha confined his argument to only one point which is like this: Assuming that the prosecution has been able to prove all the circumstances that inculpate the accused, the prosecution case would not establish a case of murder. His argument was that the death of the girl did not take place on account of assault made by the accused on her head with wheel spanner. He referred to the evidence given by PW30, the doctor who conducted autopsy and his two reports Ex.P62 and Ex.P64 to develop argument that as has been mentioned in Ex.P62, soot particles were found in trachea and right lung was charred. PW30 opined that death occurred due to burns. That means the death did not take place consequent to blows on the head of the girl with wheel spanner, but the accused thought that the girl was dead due to assault - 8 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 made by him, and he set fire to the girl with a view to destroying evidence. The girl was alive till she was burnt, but notable aspect here was that he had no intention to kill the girl by setting fire to her, and his intention was to destroy the evidence. Since he did not intend to kill by burning her, and assault made by him did not cause death, having regard to nature of injuries mentioned in P.M. report the accused could be convicted only for the offence under section 326 of IPC. His second line of argument was that if Ex.P.80, the voluntary statement of the accused is read, the situation that provoked the accused to beating on the head of the girl becomes amply clear. The girl did not heed to the request of the accused, instead she threatened him of committing suicide by mentioning his name. Provocation was given by the girl. He took the wheel spanner which was there in the car to assault the girl. His quick action to assault the girl was a momentary reaction which rules out preparation. Had the death taken place due to assault on head, in a situation like this, it would not have amounted to murder as - 9 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 Explanation-I to section 300 of IPC could be applied, and since the death did not take place due to assault, the accused could only be punished under section 308 of IPC. In this context he submitted that the voluntary or confession statement of the accused can be read if circumstances narrated therein favours the accused; the bar under section 25 of the Indian Evidence Act is not applicable if such statement is favourable to him. On this point he referred to some decided cases which will be adverted to later. He also argued that the trial court has wrongly convicted the accused for the offence under section 302 of IPC, that there is no case for imposing death sentence as for the sake of argument, if it is assumed that the act of the accused amounted to murder, the rarest of rare case is not at all forth coming and therefore, the accused can be either convicted for the offence under section 326 or section 308 of IPC, and he may be released from jail since he has already spent more than the term of imprisonment that can be imposed for either of these offences. - 10 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019

6. Sri. Vijayakumar Majage, learned SPP-II argued that the prosecution has been able to prove a clear case of murder. The evidence placed before the court by the prosecution proves all the circumstances without any break in the chain. The trial court has rightly and properly appreciated the evidence. Adverting to the points raised by Sri. Hashmath Pasha, Sri. Vijayakumar Majage replied that the evidence indicates clear intention of the accused to kill the girl. He might have used the wheel spanner available in the car to assault the girl, but the other circumstances do indicate that the accused took the girl in his car to a far off place in order to kill her. She might not have met death due to assault, but he later on set her ablaze which resulted in her death. He developed intention to kill her when he found her to be an obstacle to marry another girl. There was no provocation by the deceased girl. Taking the girl to Melukote, bringing her to Mysore later on and taking her to uninhabited place - are all the aspects that establish his motive to eliminate the girl. He argued that undoubtedly, the incident proved by - 11 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 the prosecution was diabolic and cruel which answers the test of the rarest of rare case. The trial court has taken the balance sheet of aggravating and mitigating circumstances before imposing death sentence and hence death sentence is to be confirmed.

7. Smt. Raksha Keertana supported the impugned judgment by arguing that the act of the accused would amount to murder, it is not possible to take a view that he had no intention of committing murder. Dropping the victim into a manhole and setting fire to her is an instance of gruesome murder and such a crime deserves no less a punishment than death sentence which the trial court has rightly done. Therefore the appeal filed by the accused deserves to be dismissed and the reference confirmed.

8. From the arguments the points that require to be answered are: i. If the death occurred due to burns, can’t the accused be held guilty of murder ? - 12 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 ii. If it was not murder, what is the offence to which the accused can be convicted and sentenced? iii. Is the finding of the trial court that the rarest of rare case has been made out correct? Discussion: Points (i) and (ii) can be answered together.

9. The evidence of PW30, Dr. Dayanand who conducted post mortem examination is that before dissection of the dead body he noticed two bone deep lacerations on the head and after dissection, he found corresponding internal injuries. He also found right lung being charred and soot particles in the trachea. He has also stated that if a person being burnt breathes, there are chances that soot particles enter trachea. He opined finally that the death occurred due to burn injuries sustained by the girl. Ex.P62 is the post mortem report containing opinion as to cause of death and Ex.P.64 is his opinion to some clarifications sought in Ex.P63. And of - 13 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 course PW30 has also opined by examining the wheel spanner (MO1) that the external injuries mentioned in Ex.P62 might occur if it was used for infliction of injuries. The opinion of PW30 is therefore very clear that the external injuries inflicted on head did not result in death, rather death of the girl occurred due to burns sustained by her. In fact in the charge sheet also it is clearly mentioned that the girl was unconscious when she was set aflame, that means she was alive till then. The whole situation requires analysis in this background.

10. As argued by Sri. Hashmath Pasha, since the injuries inflicted by the accused using wheel spanner did not lead to death, such act of the accused constituted an offence of voluntarily causing hurt punishable under section 326 of IPC. But the argument of Sri. Vijayakumar Majage as also Smt. Raksha Keertana was that the accused had intention to kill her and for that purpose only, he took her to a desolated place situate in the outskirts of the city. In the charge sheet it is mentioned that the - 14 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 accused brought the girl from Kollegala to convince her not to marry him. He arranged for her stay in a lodge at Melukote. It is further stated in the charge sheet that the accused brought her to Mysore and made her stay at Shivaguru Comforts Lodge, and from there he took her out of the city at about 5 p.m. on 21.12.2014 to convince her that their marriage was not possible, and to kill her if she did not agree. The charge sheet allegation is that he had an intention to kill if she did not heed to his request.

11. The evidence given by PW1, the father and PW40, the brother of the girl may be seen to decipher whether she left the house on her own or the accused took her to Melukote. These two witnesses do not say that the accused took the girl with him on 15.12.2014 from Kollegala. PW40 was studying at Mysore and only PW1 was present at Kollegala on that day. The evidence of PW1 is that when he returned home in the evening on

15.12.2014, he did not see his daughter and when he telephoned her, the reply was that she had gone out and - 15 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 would be back home next day morning. Again he called her after ten minutes, but her phone was switched of. Then he telephoned to his son (PW40) and asked him to come over to Kollegala from Mysore. Around 8.30 p.m., PW40 came to Kollegala. On the next day morning, at

7.30 hours, again, PW1 tried to contact his daughter over phone. Hearing ringing sound he gave the telephone to PW40 and asked him to speak to her. When PW40 spoke to her and asked her whereabouts and told her that the jewelleries kept in the house were not being seen, her reply was that she would tell everything after returning home. He has stated further that the girl herself telephoned him around 12.15 hours on 17.12.2014 to inform him about her marriage and that she would return home after two or three days. On 18.12.2014 when he was returning home from office, he met his brother Shiva Mallu (CW4) on the way and told him everything. CW4 asked PW1 as to why he had not given a complaint to police and to this PW1 replied that he did not do so as his daughter had told him that she would commit suicide if he - 16 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 would approach police. All his efforts to contact his daughter over phone on 18th, 19th and 20th of December, 2014 were not successful and on 21.12.2014 at 8.15 p.m. she herself telephoned and told him that she had been married and would meet him after three months, and she also requested him not to search after her. Almost same is the evidence of PW40. Therefore from the evidence of these two witnesses, it is possible to infer that the accused did not bring the girl from Kollegala, instead she herself left home voluntarily. Version like this is not found in statement of the accused under section 313 Cr.P.C., but his voluntary statement discloses the same. To what extent voluntary statement which is also called confession statement can be looked into is the legal question in view of prohibition contained in section 25 of the Indian Evidence Act. Section 25 states: “25. Confession to police officer not to be proved. No confession made to a police-officer shall be proved as against a person accused of any offence.” - 17 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019

12. Though section 25 does not explicitly state that confession of committing a crime is excluded from proving against an accused, the meaning that can be gathered from the word ‘confession’ is that it refers to confession of committing crime only. That means even if an accused gives an admission before police of committing crime, it cannot be proved against him. Only exception is section 27 where disclosure statement leads to discovery of a fact. But what section 25 actually states is not to use confession statement against him; its converse application in favour of accused is not prohibited. While giving a statement before the police officer, if an accused states something other than incriminatory against him, and such statement favours him, it can be made use of. In this context some decided cases cited by Sri. Hashmath Pasha may be usefully referred to. Murli @ Denny Vs. State of Rajasthan – [1995 Supp. (1) SCC 39] is the judgment of the Supreme Court where admission of an accused in his statement before SHO was considered to examine - 18 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 applicability of Exception-I to section 300 of IPC. In para 5 of the judgment, it is observed that “5. Having examined the circumstances on record, we are satisfied that it was the accused who inflicted injuries on deceased person, as a result of which he died. But the learned Senior Counsel, Shri Sibal submits that there are any number of circumstances indicating that the accused acted on a grave and sudden provocation and, therefore, Exception No. 1 to Section 300 is attracted. We find considerable force in submission. To start with, prosecution evidence itself indicates that the deceased was a man of violent nature and had no regard for law and was creating terror and fear in the minds of common people. In such an aggressive mood, he must have gone to the shop of the accused. As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the accused and showered virulent abuses. It may be mentioned here that we are not using the - 19 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under Exception 1 to Section 300 I.P.C., particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place.” (emphasis supplied)

13. In Kajal Sen and others Vs. State of Assam [(2002) 2 SCC 551], it is held that a confession statement, but leading to discovery of a fact, can be relied upon for establishing defence. It is held: “11. From aforesaid course investigation, it is apparent that the IO was not having any information till 18th, how the incident took place and who committed the offence. The FIR which was recorded on

15.12.1990 only mentions that four persons caused injuries to the deceased and does not mention how the incident took place. As against this, the statement of one of the - 20 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 accused which was recorded under Section 27 of the Evidence Act for search of the weapon of offence clearly indicates that the deceased was having a 'dao' in his hand and there was some altercation between the deceased and other accused. When deceased saw Nepal Deb coming on the road, he said 'hey, son of bitch, stop' and as Nepal Deb attacked him with 'dao', he tried to flee away but he intercepted him on the road and at that stage he gave knife blow and fled away. Hence, the improved story of the so-called eye- witnesses, namely PW2 Smt. Pritilata Deb, PW4 Sujit Deb, PW5 Sri Ranjan Deb and PW7 Sibaji Ray involving rest of the accused (appellants) is inconsistent with what has been brought on record by the prosecution. However, learned counsel respondent submitted that statement made the accused Nepal Deb before Investigating Officer cannot be taken into consideration so as to doubt the prosecution version as deposed by the eye-witnesses. In our view, this submission is without any substance. Once the prosecution has led the evidence before the Court which has remained unchallenged, it was open to the - 21 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 accused to rely upon the same for their defence." (emphasis supplied)

14. The Madras High Court, in re Rayappa Asari (1971 SCC Online Mad 334) has taken the view that the prohibition contained in section 25 is as to using the statement against the accused, but conversely it can be used in his favour. This observation is in para 9 which is extracted below: “9. As regards the evidence of PW. 6 we find that there are three discrepant versions as to when he met the appellant and the extra judicial confession was made to him whether it was when P.W.6 was going to answer calls of nature, or was answering calls of nature or was returning after answering calls of nature. We, therefore, leave his statement out of account. There can be no doubt, however, that the appellant appeared at the police station with the bloodstained clothes M.Os. 1 and 2. It is immaterial for our purpose whether it was actually P.W.6 who produced him. Suffice it to say that there is no material to make us think that he made any statement to the police that on returning home from the cinema he found that his concubine had - 22 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 been murdered by a stranger. That he made such a statement has been denied by PW.12 and we accept the evidence of PW.12 on the point. If he had indeed made such statement, it could have been used by the appellant in his favour. The prohibition contained in Section 25 of the Evidence Act is only the use of the statement against the accused. See also the judgment of Somasundaram J in re Mottai Thevar 1951-2 Mad LJ 605: (AIR 1952 Mad 586) See also Hasil v. Emperor AIR 1942 Lah 37 & Lalkhan v. Emperor AIR 1948 Lah 43, quoted in Sarkar's Law of Evidence. 11th Edn PP. 270 and

271.We have also ourselves looked into the case diary to satisfy ourselves that it does not contain any statement of the accused favourable to him. The appellant has not offered any explanation for the human blood on his clothes M.Os. 1 and 2. but he would simply deny that they were recovered from him.” (emphasis supplied)

15. As the position of law as to scope of section 25 becomes clear, if the two confession statements of the accused are seen what appears is this. Of course portions in the statements leading to certain discoveries are marked Ex.P79 and Ex.P80; they may not be relevant - 23 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 here, but what the first statement recorded on 8.1.2015 evinces is that the girl had some differences with her father in relation to some domestic matter which she brought to the notice of the accused by making telephone call to him, and at that time he advised her to stay separately. Therefore on 15.12.2014, she herself left the house, came over to Mysore, telephoned accused, and asked him to take her to his room, and marry her. Thereafter he took her to Melukote and arranged for her stay there. Then she came to Mysore on 17.12.2014. Both of them searched in vain for accommodation in many lodges, but at last the accused was able to secure a room for the girl at Shivaguru Lodge. He has stated that she used to make calls to him every day and insisting him on marrying her or else she would go to his house and create ruckus for him; and she used to scold him also. His marriage with another girl, Kannikashree had been fixed and therefore he thought that she would be an obstacle for his marriage with Kannikashree. He has also stated that she was not so much good looking and that he belonged to - 24 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 upper caste, i.e., Vakkaliga and for all these reasons he should convince her not to marry him. For this reason he took the girl to a park where he asked her to telephone to her father and brother, and requested to go back to her house. Instead she called her father and brother and asked them to forget her since she had married and sought their excuse. She did not agree for returning home. Having given a lengthy narration like this, he further stated about the incident dated 21.12.2014. Indeed his statement regarding assault on the girl cannot be read against him, but his other statements are that he once again made effort to convince her to return home and at that juncture she rejected his advice and said that she would commit suicide blaming him to be the reason for suicide. And at that moment he thought of killing her thinking that she would befall an obstacle forever in his future life.

16. Therefore from the above, it can be gathered that the girl herself came out of her father’s house. - 25 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 Though the accused appears to have advised her to live separately because of some domestic issues, he never intended to bring her to Mysore in order to marry her. What can be understood from his voluntary statement is that she herself came over to Mysore and forced him to marry her. Whatever the accused has stated thus militates against the prosecution case that he asked the girl to come over to Mysore from Kollegala to convince her that it was not possible for him to marry her. It is in this backdrop an effort should be made to decipher out whether the accused had an intention to kill the girl. The accused would not have resorted to assaulting the girl with wheel spanner if she had agreed to his request, it was only when she rejected his request and appeared to be stubborn in her decision to marry him, they might have got into an altercation. PW37 the first investigating officer has stated about a scuffle between the accused and the girl. Therefore though it is found in the voluntary statement of the accused that he had decided to kill her if she did not consider his request, by that itself no inference - 26 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 can be drawn that he had a clear intention of causing the death of the girl; it was only when she made it clear that she would go to his house to disclose every thing or that she would commit suicide, he might have resorted to beating her with a wheel spanner. This incident appears to have occurred when situation went out of control and therefore, if the act of the accused in causing injuries on the head of the girl had resulted in her death, Explanation no.4 to section 300 could have been applied in a situation like this, but she did not die of those injuries.

17. The next aspect is, whether the accused could be held guilty of offence of murder for burning the girl. PW37 has given evidence that he set fire to the girl in order to burn her. This evidence is against the prosecution case that he burnt the dead body to destroy the evidence and it is for this reason section 201 of IPC was invoked in the charge sheet. But, if voluntary statement of the accused is again looked into as a mitigating circumstance in his favour, it reveals the fact - 27 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 that he thought the girl to have died consequent to assault on her head and therefore decided to burn the dead body in order to escape from police. Though the girl was still alive when he set fire to her, his belief was she was dead and burning a dead body. Akin to situation like this decision of the Full Bench of Madras High Court in Palani Goundan Vs. Emperor – 1919 ILR (Mad) Volume XLII Page 547, cited by the State Public Prosecutor may be usefully referred to here. The facts therein show that the accused struck his wife a blow on her head with a plough share which rendered her unconscious. Believing her to be dead, the accused hanged her to a beam by a rope which act actually resulted in her death. Analyzing the facts the accused was not held guilty of murder or culpable homicide amounting to murder. The final opinion of the Full Bench is as follows: “It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for - 28 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 one being taken by another. 'Causing death' may be paraphrased as putting an end to human life: and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man cuts the head off from a human body, he does an act which he knows will put an end to life, if it exists. But we think that the intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because, though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body. Complications may - 29 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 arise when it is arguable that the two acts of the accused should be treated as being really one transaction as in Queen Empress v. Khandu – [(1891) ILR 15 Bom. 194] or when the facts suggest a doubt whether there may not be imputed the accused a reckless indifference and ignorance as to whether the body he handled was alive or dead, as in Gour Gobindo's case [(1866) 6 W.R. (Cr.R.) 55]. The facts as found here eliminate both these possibilities, and are practically the same as those found in Emperor v. Dalu Sardar [(1914) 18 C.W.N. 1279]. We agree with the decision of the learned Judges in that case and with clear intimation of opinion by Sargent, C.J., in Queen Empress v. Khandu [(1891) ILR 15 Bom. 194]. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can, of course, be punished both for his original assault on his wife, and for his attempt to create false evidence by hanging her. These, however, are matters for the consideration and determination of the referring Bench.”

18. Now from the above discussion, it transpires that the accused cannot be held guilty of murder for having set - 30 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 fire to the girl. Since the injuries inflicted by him did not lead to death, and in view of applicability of exception 4 to section 300 of IPC, he can be held guilty of an offence of making attempt to commit culpable homicide punishable under section 308 of IPC. Points no.(i) and (ii) are thus answered. POINT No.(iii) :

19. The impugned judgment states that the accused had preplanned to commit murder of the girl and for that purpose only he asked her to come over to Mysore from Kollegala. This finding is unfounded. That apart the defence appears to have failed to put forth the argument before the trial court in the way it was argued before us. That could be the reason for recording conviction for the offence under sections 302 and 201 of IPC. Nevertheless the trial court could have evaluated evidence inquisitively to draw proper conclusions. The judgment of the trial court only discloses overwhelming sensitivity to the situation. Even if it is assumed for argument sake that the - 31 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 incident is a murder, it is difficult to state that the rarest of rare case is made out to impose death sentence. For all these reasons and in view of discussion on points (i) and (ii), reference under section 366 is to be rejected and point no.(iii) is answered accordingly.

20. Now from the above discussion we hold that the accused can be convicted for the offences under sections 308 and 201 of IPC. The accused is in jail since 8.1.2015. Having regard to sentencing structure provided in sections 308 and 201 of IPC, the imprisonment period may be set off against the sentence to be imposed on him for the said two offences. Hence the following : ORDER (i) (ii) Criminal Reference No.3/2019 is rejected Criminal Appeal No.1671/2019 is partly allowed. The impugned judgment is modified holding the accused guilty of offence under section 308 of IPC instead of section 302 of - 32 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 IPC. Conviction of the accused for the offence under section 302 IPC is set aside. (iii) Accused is sentenced to undergo simple imprisonment for seven years and fine of Rs.20,000/- for the offence under section 308 IPC. In default to pay fine, he shall further undergo imprisonment for three months. (iv) His conviction for the offence under section 201 IPC confirmed, but sentence of imprisonment is reduced to one year. The fine and default imprisonment period imposed by the trial court is retained. (v) The sentence of imprisonment for the offences under sections 308 and 201 of IPC is made to run concurrently. (vi) The accused shall be set at liberty if his presence in the jail is not required in connection with any other case and the Registry shall intimate this order to concerned jail authorities forthwith. - 33 - NC: 2024:KHC:19308-DB CRL.A No. 1671 of 2019 C/W CRL.RC No. 3 of 2019 (vii) Entire fine amount shall be deposited by the accused before the trial court within two weeks from the date of his release from jail. Sd/- JUDGE Sd/- JUDGE List No.: 19 Sl No.: 3