ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR) This appeal is preferred by the accused in SC No.12/2017 on the file of II Additional District & Sessions Judge, Chikkamagaluru convicting the accused for the offence under Section 302 of IPC and sentencing him for life imprisonment besides fine of Rs.10,000/- with default imprisonment for six months.

2. The prosecution case is that, on 17.10.2016 at about 6.00 p.m., the accused caused the death of his wife Chandramma by assaulting her with a chopper. The accused was suspecting the fidelity of his wife and this was the motive projected for the incident to take place. Report about the incident was given by PW1- the brother of the deceased as per Ex.P1. Investigation resulted in accused being charge sheeted and tried.

3. Out of 24 witnesses examined by the prosecution, the material witnesses are PWs.1, 3, 4, 5, 6 and 7. The trial court believed the testimony of the sole eye witness - PW5 and also referred to the incidental aspects deposed by PWs.3, 4, 6 and 7 besides considering the seizure of a chopper under mahazar marked Ex.P13 to record conviction against the accused.

4. We have heard the arguments of Sri N.R.Krishnappa, learned counsel for the appellant and Sri Vijayakumar Majage, learned SPP-II for the respondent-

State.

5. It is the argument of Sri N.R.Krishnappa, learned counsel for the appellant that as per the version given by PW1 in Ex.P1, there was a quarrel between the accused and the deceased on 17.10.2016. This clearly indicates that in the course of quarrel, the accused might have assaulted his wife in a state of anger as he was suspecting the character of his wife and was also unhappy about the conduct of his wife in going to her maternal house very frequently. His further argument is that the sole testimony of PW5 cannot be believed, because he was a child witness and in that view, it was necessary that his evidence would have been corroborated by other witnesses. If the evidence had been properly appreciated, it would have been possible to hold that the offence that would get established is one punishable under Section 304 of IPC. Therefore conviction for 302 IPC is to be set aside and the sentence reduced to one under Section 304 of IPC.

6. Sri Vijay Kumar Majage, learned SPP-II submits that the sole testimony of PW5 cannot be discarded. He was inside the house when the incident took place. There are no traces of tutoring in his evidence. Added to this, evidence of PWs.4, 6 and 7 is relevant to some extent in the sense that they all saw the accused leaving the house immediately after the incident took place. All these witnesses saw the dead body very soon after the incident. In this view, the case of the prosecution would get established. He further argues that there was recovery of chopper, MO6, at the instance of the accused. No case under Section 304 of IPC is made out because as per the prosecution case, no quarrel had taken place at the time when the incident broke out. The deceased was cooking food. The accused came from outside, closed the door and resorted to assaulting her with a chopper. All these instances would clearly establish his clear intention to cause the death of his wife and therefore conviction for the offence under Section 302 IPC is to be sustained.

7. We have perused the entire records. Re-

assessment of evidence gives the picture like this : PW1 is the brother of deceased. He was not an eye witness and all that can be gathered from his evidence is that at about 7 a.m. on 17.10.2016 he received a telephone call from his brother Prasannakumar-PW3 and came to know that his sister Chandramma had been killed by the accused. He went to the Mc.Gann Hospital, Shivamogga and saw the injuries that the deceased had sustained. After the death of the deceased, he went to police station and gave a complaint as per Ex.P1.

8. PW3 - Prasanna Kumar is the brother of the deceased. His evidence shows that relationship between the accused and his s