IMPORTANT POINTS
(1) Sentence – Power to impose punishment of imprisonment for life without remission is conferred only on Constitutional Courts and not on Sessions Courts.
(2) Remission – No right accrues to accused to seek for any remission when imprisonment for life is imposed, till remainder of life – Sessions Court cannot prohibit benefit of set off as provided under Section 428 of Cr.P.C.

JUDGMENT (CAV)

H.P. Sandesh, J.—This appeal is filed challenging the judgment of conviction and sentence dated 27.11.2017 passed in S.C.No. 10018/2017 on the file of the V Additional District and Session Judge, Shivamogga, sitting at Sagar for the offences punishable Sections 364 and 302 of IPC.

2. The factual matrix of case of prosecution is that the complainant is the resident of Alavalli of Sirsi, Siddapura. It is the case of prosecution that in the year 2011, the complainant got married to one Kumarswamy of Basaveshwara Nagar of Haveri district and her husband is working as a mechanical engineer in one company at Pune. They had a son by name Srujaya aged about 3½ years. They are following Moolegadde Mutt and she is visiting there whenever she comes to her native place. The complainant had come to her native for the marriage of her sister. On 08.04.2017 she had been to the said Mutt with her Mother-Renuka and Son-Srujaya in order to attend the coronation ceremony of new Swamiji. It is also the case of persecution that other relatives of the complainant were also there in the Mutt. This accused was serving in the said Mutt and assisting the Swamiji and there was an ill-will between the complainant and accused since the complainant and her mother used to advise him with regard to the affairs of the said Mutt.

3. That on 10.04.2017, during the night, they took food and slept in the Mutt by locking the doors. The son was sleeping with her. On 11.04.2017, at about 05.30 a.m., one Rajaiah woke her up and said that child was not found and hence, they immediately searched for the child and found that doors of Mutt were opened. Herself and her grandmother-Gowramma and relatives i.e., Mahadevamma, Ashwini and others have searched for the child but not found. The complainant learnt that someone had kidnapped her son when they were sleeping. It is also the case of prosecution that accused came from outside when they were searching and on enquiry, he has not given any answer thus, the complainant suspected the role of the accused that he might have kidnapped her son. It is also the case of the prosecution that there was some change in the health of the complainant and others on the next day who took food last night. Hence, lodged the complaint against the accused.

4. Based on the complaint, the police have conducted investigation and apprehended the accused and body of the child was recovered at the instance of the accused and recorded the statement of the witnesses and filed the charge sheet against the accused. The copies of the charge sheet papers were supplied to the accused in compliance of Section 207 of Cr.P.C. and the Judge who received the charge sheet, committed the case to the Sessions Court. The accused was secured and cognizance was taken and the accused did not plead guilty and claims for trial.

5. The prosecution, in order to prove the case, examined PW1 to PW21 and got marked the documents at Ex.P1 to P57 and MO1 to MO4 were also got marked. The accused was subjected to 313 statement and he denied the incriminating evidence and he did not choose to give any defence evidence.

6. The Trial Court having considered both oral and documentary evidence comes to the conclusion that prosecution has proved the case against the accused in respect of the charges levelled against him under Section 364 as well as Section 302 of IPC and sentenced to undergo imprisonment for life i.e., he has to remain in prison until his natural death and he shall pay fine of Rs.15,000/-. In default to pay the fine, he shall further undergo simple imprisonment for 6 months. Out of the fine of amount, Rs.10,000/- shall be paid to PW1. MO1 to MO3 are ordered to be destroyed as worthless after the appeal period is over.

7. Being aggrieved by the judgment of conviction and sentence, the present an appeal is filed before this Court.

8. The main contention of the counsel appearing to the appellant before this Court is that the Trial Court committed an error