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SUPREME COURT OF INDIA
Kurian Joseph, A.M.Khanwilkar, JJ.
Gandi Doddabasappa @Gandhi Basavaraj – Appellant
Versus
State of Karnataka – Respondents
CRIMINAL APPEAL NO. 631 OF 2012
Decided On : 28-02-2017
(B) Criminal Procedure Code, 1973 – Sections 386, 397 and 401 – Constitution of India – Article 136 – Appeal – Withdrawal of – Permissibility – Apex Court after hearing parties and having been prima facie convinced, issued show cause notice to appellant for enhancement of sentence – In this backdrop, appellant cannot be permitted to withdraw appeal – Show cause notice issued to appellant (accused) will have to be taken to its logical end being substantive proceedings ascribable to jurisdiction of Appellate Court – Once an appeal against acquittal is entertained by High Court, it becomes duty of High Court to decide the same irrespective of fact that appellant does not choose to prosecute it or is unable to prosecute it for one reason or other – After suo motu show cause notice for enhancement of sentence issued by Apex Court after hearing both sides, it will be duty of Apex Court to decide the same irrespective of fact that accused does not want to prosecute his appeal against conviction. (Para 20)
Facts of Case:
Honour killing. Instant criminal appeal arises from judgment and final order passed by High Court of Karnataka in Criminal Appeal. High Court has set aside order of acquittal passed by Sessions Court and instead convicted the appellant (accused) for an offence punishable under Section 304, Part I of Indian Penal Code, 1860 and sentenced him to undergo 10 (ten) years of rigorous imprisonment for killing his daughter.
Findings of Court:
None of exceptions in Section 300 of IPC is attracted in present case. It would necessarily follow that accused (appellant) committed murder of his daughter who was in the advanced stage of pregnancy and for which he was liable to be punished with either imprisonment for life or death under Section 302 of IPC alone. In e peculiar factual background of this case, we do not find it a fit case to impose death penalty.
A fortiori, appeal preferred by appellant deserves to be dismissed and show cause notice issued by this Court for enhancement of sentence is made absolute – thereby convicting appellant (accused) for offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life.
Result : Appeal dismissed.
JUDGMENT
A.M. KHANWILKAR, J.
This criminal appeal arises from the judgment and final order passed by the High Court of Karnataka dated 3rd June, 2011 in Criminal Appeal No. 2259 of 2005. The High Court has set aside the order of acquittal passed by the Sessions Court and instead convicted the appellant (accused) for an offence punishable under Section 304, Part I of the Indian Penal Code, 1860 (`IPC') and sentenced him to undergo 10 (ten) years of rigorous imprisonment for killing his daughter, Shilpa.
2. When this appeal was taken up for hearing on 8th September, 2016, the Court directed issuance of notice to the appellant (accused) for enhancement of sentence. That notice has been duly served on the appellant.
3. The factual circumstances leading to this appeal are as under:
a. One Ravi Kumar (PW16), from the Naik community and Shilpa, from the Lingayat community, were in love. Being from different castes and apprehending opposition to their marriage by the family of Shilpa, they decided to elope and got married in 2002. They got their marriage registered before the Sub-Registrar, Hospet in 2003. Eventually, the couple returned to their village Taranagar to stay with the parents of Ravi Kumar (PW16), PW17 and PW18. When this marriage came to the knowledge of Shilpa's father, the accused, he bitterly opposed the same and reportedly berated PW16 and his family on several occasions, stating that they had brought down the honour of his family and that he would "finish" his daughter for marrying into a lower caste.
b. In the days leading up to the alleged incident, Shilpa was pregnant (around nine months). She frequently used the public toilet near to her place of residence, often accompanied by her mother-in-law (PW18). On the fateful day i.e. on 3rd October, 2003, at around 8 AM, Shilpa wanted to go to the toilet. At the relevant time, PW18 was preparing `rotis' for her husband (PW17) who was getting ready to go to work. PW 18 told Shilpa that she would join her as soon as she finishes that work. After finishing her task and washing her hands, PW18 started walking towards the public toilet. When she was near the house of one Hanumanthappa, she heard a cry of Shilpa "Appa Beda Appa" (Father, don't, father) coming from the toilet. PW18 rushed towards the toilet. She saw the appellant (accused) emerging from the toilet with a blood stained sickle. Upon seeing PW18, the appellant (accused) threw the sickle into a manure dung pit nearby and ran away. Hearing the commotion, PWs1 to 4 soon arrived at the spot and along with PW18, entered the public toilet. They found Shilpa lying on the ground, facing upwards, in a pool of blood with a cut to her neck. PW18 then lodged a complaint with PSI (PW24), who then registered the FIR. The appellant absconded after the incident and was eventually arrested 20 (twenty) days later. After the investigation was complete, the appellant was charge sheeted for killing his daughter Shilpa and committed to trial before the Sessions Court.
c. During the trial, prosecution led evidence of 25 (twenty five) witnesses including the experts. The eye witnesses who had arrived at the spot of the incident turned hostile with the exception of PW18, whose testimony has been found to be truthful and reliable by the High Court.
d. The Sessions Court, vide judgment dated 28th February, 2005, acquitted the accused inter alia on the ground that mere intent on the part of the accused to commit the crime was not sufficient to record a finding of guilt. The Sessions Court discarded the evidence of PW18. It held that the evidence of PW 18 was replete with improvements on her previous statement and was unreliable. Further, the circumstantial evidence was not enough to convict the accused.
e. In appeal by the State, the High Court accepted the prosecution's case that the accused was a frustrated father because of his daughter having married to Ravi Kumar (PW16) who belonged to lower caste and was the motive to commit the crime. Furth
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