The main legal point established in the judgment is that the accused's actions did not demonstrate the intention to commit murder, leading to a conviction under a lesser offence of Section 304 II of IPC.

Mohan M. Shantana Goudar, J.

1. The judgment and order of conviction dated 30.11.2010 passed by the III Addl. District and Sessions Judge, D.K., Mangalore in Sessions Case No. 111/2009 is called in question by the convicted accused. By the impugned judgment the Trial Court has convicted the accused for the offences punishable under Sections 498(A) and 302 of IPC and sentenced him to under go imprisonment for life and to pay fine of Rs. 5,000/- in default to undergo imprisonment for a period of 6 months.

2. Case of the prosecution in brief is that the deceased Laxmi is the wife of the accused; the accused had got two wives viz., Rathna and Laxmi (deceased). It seems the accused married Laxmi after divorcing Rathna; the accused and 1st wife Rathna had got a son by name Mahendra (PW.20); the accused and the deceased had got two children who are younger than Mahendra; at the time of incident Mahendra was aged about 9 years.

The accused was doing coolie along with Ganesha - PW.5 and Mani - CW.13 (husband of PW.1) in Nagarjuna Company at Padubidri and once in a week he used to return to home to live with his family at Kunjathbail Village. On the date of the incident i.e., 25.7.2009 at about 9.00 p.m. the accused had come to his house, he had dined with his wife deceased Laxmi and three children; it is relevant to note that PW.20 -Mahendra aged about 9 years, who was born to first wife was also living with the accused and the deceased; during that night the accused started suspecting the fidelity of the deceased and he quarreled with her on that aspect of the matter; thereafter he pushed her to the ground and threw a stone on her and thereafter he assaulted with the burning stick, consequent upon which victim Laxmi suffered number of injuries; major injuries sustained by her were on the head; the accused threatened his son - Mahendra (PW.20), not to inform about the incident to anybody and PW.20 being a child did not inform about the incident to anybody; however, on the next day evening at about 7.00 p.m. the accused himself went to the house of PW. 1 and informed her about the incident; PW. 1 was a relative of the deceased; she came to the house of the deceased along with PWs.2 and 3 and after seeing that the victim was not in a position to talk and move, she shifted the victim to Wenlock Hospital, wherein she succumbed to the injuries on the next day i.e., on 28.07.2009.

In the meanwhile, first information came to be lodged by PW.1 at about 11.00 a.m. on 28.07.2009 before Sub-Inspector of Police - PW.21, Kavoor Police Station, Mangalore, which came to be registered in Crime No. 90/2009; first information lodged by PW.1 is at Ex. P.1; the Circle Inspector of Police (PW.17) completed the investigation and laid the charge sheet for the offences punishable under Sections 498(A) and 302 of IPC.

In order to prove its case, the prosecution in all examined 22 witnesses and got marked 22 exhibits and 8 material objects. On behalf of the defence no witness is examined as mentioned supra. On evaluation of the material on record and on hearing the parties the Trial Court convicted the accused for the offences with which he was charged.

3. PWs.1, 2, 3 and 5 went to the house of the accused and deceased, immediately after hearing the news from the accused that the deceased was unwell, at 7.00 p.m. on 26.7.2009; PW.1 lodged the complaint as per Ex. P.1 before the Kavoor Police Station; PWs.1 and 2 shifted the injured to Wenlock Hospital; in the meanwhile, they also got the information from the step son of the deceased viz., Mahendra - PW.20 about the incident in question. PW. 1 is the witness to the scene of offence Mahazar - Ex. P. 2 and she has also deposed about the sketch of scene of offence drawn by police as per Ex. P.3; PW.2 is the witness for inquest post mortem also; PW.8 is the witness for inquest mahazar; PW.4 is the neighbour of the accused and the deceased, but she has turned hostile; PW.5 being the brother of PW.1 and also husba