Karnataka High Court
Keshava vs The State Of Karnataka on 5 January, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL NO.1120/2017
BETWEEN:
KESHAVA
S/O. PILLAMUNIYAPPA
AGED ABOUT 34 YEARS
CONVICT NO.12293
PRESENT ADDRESS:
CENTRAL PRISON
BELLARY - 583 219,
PERMANENT ADDRESS:
R/O. KORAMANGALA GRAMA
VIJAYAPURA HOBLI
DEVANAHALLI TALUK - 562 110
... APPELLANT
(BY SRI: KAPIL DIXIT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY VIJAYAPURA POLICE
REPRESENTED BY
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001
... RESPONDENT
(BY SRI: VIJAYKUMAR MAJAGE., ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
2
20.11.2015 AND SENTENCE DATED 26.11.2015 PASSED BY THE V
ADDL. DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN
S.C.NO.15001/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.10,000/- FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE
APPELLANT/ACCUSED IS PRAYS THAT HE BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-accused has filed the present appeal against the impugned judgment of conviction dated 20.11.2015 and order of sentence dated 26.11.2015 made in S.C.No.15001 of 2013 on the file of V Additional District and Sessions Judge, Devanahalli (hereinafter referred to as 'the Trial Court'), convicting the appellant-accused for the offence punishable under Section 302 of Indian Penal Code (for short 'the IPC'), and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-.
2. The Circle Inspector of Police, Vijayapura Circle after investigation filed the charge sheet against the accused for the offence punishable under Section 302 of IPC. It is the specific case of the prosecution that accused and deceased Anitha are husband and wife. Their marriage was performed 3 about 10 years prior to the incident. From the wedlock, they had begotten two children by names Charan and Myna aged 5 years and 1½ years respectively. Both were residing together in the house of accused at Koramangala. After the birth of children, there was frequent quarrel between the accused and the deceased in respect of trivial issues. The panchayats were held in the presence of elders, but not yielded any result. It is the further case of prosecution that on 02.02.2013 in the midnight at about 12.00 a.m., there was a sudden quarrel between the accused and the deceased and during quarrel, the accused became violent and assaulted his wife on her head, hands and legs with MO1 - chopper and caused grievous cut injuries. Due to the grievous cut injuries, she collapsed and died at the spot. The accused feared by the death of deceased thought that he may be prosecuted for her murder and made an attempt to kill himself by cutting his throat by a small knife. In the meanwhile, the brothers and relatives of the accused came to his house and took the accused to the Government Hospital, Devanahalli for treatment and thereafter, he was shifted to Bowring Hospital. In the midnight at about 1.00 a.m., PW5 - Munikrishna, the 4 brother of accused informed the murder of the deceased by the accused to PW7 - Hanumappa, who in turn telephoned to PW2 - Venkateshappa, the complainant who is the adopted father of the deceased. PW2 - Venkateshappa informed the same to his friends and relatives and all of them went to Koramangala to the house of accused and saw the dead body and PW2 - Venkateshappa lodged the complaint to Vijayapura Police Station as per Ex.P2.
3. On the basis of Ex.P2, PW18 - Sandeep Kowri, Sub Inspector of Police of Vijayapura Police Station registered the case in Crime No.22 of 2012 for the offence punishable under Section 302 of IPC and after investigation, filed the charge sheet. Learned JMFC secured the presence of the accused and committed the matter to the Sessions Court. The learned Sessions Judge secured the presence of the accused and framed charge for the offence punishable under Section 302 of IPC and read over and explained the same to the accused in kannada language known to him. The accused pleaded not guilty and claimed to be tried. 5
4. In order to prove the case of prosecution, it examined PWs.1 to 19, marked material documents Exs.P1 to 14 and material objects MOs.1 to 11. After completion of evidence of the prosecution witnesses, statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. Based on the aforesaid pleadings, the learned Sessions Judge formulated the points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded the finding that the prosecution has proved beyond reasonable doubt that deceased Anitha is the wife of the accused and they were frequently quarrelling and on 02.02.2013 at about 11.30 to 12.00 in the midnight at Koramangala village in the house of the accused, the accused with an intention to murder his wife assaulted her with chopper on the head and other parts of the body and caused grievous injuries, which has resulted in the instant death, thereby, attracts the provision of Section 302 of IPC. Accordingly, the learned Sessions Judge by the 6 impugned judgment of conviction and order of sentence, convicted the accused for the offence punishable under Section 302 of IPC sentencing him to undergo rigorous imprisonment for life with a fine of Rs.10,000/-. Hence, the present appeal is filed by the accused.
5. We have heard the learned counsel for the parties to the lis.
6. Sri.Kapil Dixit, learned counsel for the appellant- accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the Trial Court convicting the accused for the offence punishable under Section 302 of IPC is without any basis and contrary to the material on record and cannot be sustained and liable to be set aside. He further contended that the alleged unfortunate incident occurred in the house of the accused in midnight on 02.02.2013 was due to sudden provocation, thereby, the accused assaulted his wife which clearly attracts of the provisions of Section 304 of IPC and not Section 302 of IPC. The same has not been considered by the learned Sessions Judge while passing the impugned judgment, hence, 7 the same cannot be sustained. He would further contend that the Trial Court proceeded to convict the accused mainly on the ground that he was suspecting the fidelity of his wife that she was having affair with another man by name Nataraj and it was the strong motive for the appellant-accused to murder Anitha. Learned Sessions Judge failed to notice that there is no smoke without fire, when expressing the latter observation, if the Trial Court stood by its view that the appellant was making out an imaginary and fictitious character connecting Nataraj, it could not have held the appellant-accused killed his wife as he suspected her chastity.
7. He would further contend that because of the mistake committed by the learned counsel for the accused before the Trial Court about the new defence taken with regard to the illicit relationship with Nataraj, the same should not affect the rights of the accused who is innocent as the incident happened in a sudden provocation and without any pre-meditation. The said aspect of the matter has not been considered by the learned Sessions Judge, thereby erroneously convicted the accused. He would further contend that though the accused was admitted to Bowring Hospital 8 immediately after the incident as he has also sustained injuries, he was not arrested immediately and when he went to the police station on 27.02.2013 to know the fate of the complaint, he was arrested and the complaint submitted by him was suppressed by the police. The said aspect has not been considered by the Trial Court and ignoring the fact that the appellant being a layman and hailing from a downtrodden section of the society, there is all likelihood that the written the complaint which he intended to submit to the police station through the Medical Officer could have been suppressed deliberately and with intention. Therefore, there is a need for an investigation in the matter all over again, for which the impugned judgment of conviction and order of sentence has to be set aside. Therefore, he prays for allowing the appeal.
8. Per contra, Sri.Vijaykumar Majage, learned Additional State Public Prosecutor for the State while justifying the impugned judgment of conviction and order of sentence passed by the Trial Court convicting the accused for the offence punishable under Section 302 of IPC contended that there is no dispute that the appellant and the deceased 9 are husband and wife and they had love marriage and from the wedlock, two children were born. It is the specific case of prosecution as per the complaint lodged by PW2 - Venkateshappa, the adoptive father of the deceased that two years prior to the incident, there was frequent quarrel between the husband and wife and the husband assaulted his wife with MO1 - chopper and thereby killed his wife. Therefore, the Trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC.
9. He would further contend that even though the accused has not offered any explanation while recording his statement under Section 313 Cr.P.C., but very strangely the defence is taken in the cross examination that the deceased had illicit relationship with one Nataraj, thereby, the accused was provoked and assaulted his wife. That being the story created only during the cross examination of the prosecution witnesses and there is absolutely no basis and the fictitious person address was also not known to the accused. He would further contend that if really there was a quarrel, he should have offered explanation in his statement recorded under Section 313 Cr.P.C. In the absence of any explanation, a film 10 story created by him cannot be accepted. He would further contend that on the date of unfortunate incident occurred on 02.02.2013 in the midnight, only the accused and his wife were in the house of the accused at Koramangala and the burden is on the husband to explain in view of the provisions of Section 106 of the Evidence Act. The same has not been discharged.
10. He would further contend that both oral and documentary evidence produced depicts that the accused intentionally killed his wife with MO1 - chopper on the unfortunate day and thereby committed the murder of his wife, which attracts the provision of Section 302 of IPC. He further contended that the learned Sessions Judge on considering both oral and documentary evidence in a proper perspective has rightly convicted the accused for the offence punishable under Section 302 of IPC. He further contended that Ex.P14 - FSL report clearly depicts that the blood was detected in Article Nos.1 to 3, 5 to 11 i.e., Machu, maflar, control soil, sweater, nighty, petticoat, bra, pant, towel and blade and it was stained with human blood. The blood clot in item No.4 was disintegrated and item No.1 machu, item No.2 11 maflar and item No.3 control soil were stained with 'B' blood group. Therefore, he sought for dismissal of the appeal.
11. In view of the rival contentions urged by learned counsel for the parties, the only point that would arise for our consideration in this appeal is:
"Whether the appellant-accused has
made out a case to interfere with the
impugned judgment of conviction and order of sentenced passed by the Trial Court in convicting the accused for the offence punishable under Section 302 of IPC sentencing him to undergo rigorous imprisonment for life and pay a fine of Rs.10,000/-, in the facts and circumstances of the case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record and the Trial Court records carefully.
13. It is not in dispute that the accused and the deceased Anitha are husband and wife and their marriage was performed about 10 years prior to the incident. It is also not 12 in dispute that from of the wedlock, two children were born aged 5 years and 1½ years respectively. According to the complaint - Ex.P2 filed by PW2 - Venkateshappa, the uncle of the deceased and adopted father, Anitha is the daughter of his brother and her mother died while she was in her tender age and since her father was drunkard, he has fostered the deceased and as she fell in love with the accused about 10 years back, he performed their marriage at H-Cross, as per Hindu customs and rites. They were residing in Koramangala and they had two children by name Charan and Myna aged 5 years and 1½ years respectively. There were frequent quarrels between the husband and wife and from last two years, he had convened panchayats for 3 to 4 times and had advised the accused. He further stated that at about 1.00 a.m. on 03.02.2013, he received information from his relative Hanumappa that there was a quarrel between the husband and wife and the accused had assaulted the deceased with chopper on her head and hand, thereby killed and after killing the wife, being afraid of the consequences, has tried to cut his throat with a blade. Thereafter, he informed the same to his friends and relatives and went to the spot and thereafter 13 lodged the complaint. Based on the complaint - Ex.P2, the police registered the case on 03.02.2013 at about 7.30 a.m. in Crime No.22 of 2012 for the offence punishable under Section 302 of IPC.
14. This Court being the Appellate Court, in order to re-appreciate the entire materials on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
(i) PW1 - Paparaju is a coolie by profession. He has stated that he has signed on Ex.P1 - spot mahazar in the police station. He has turned hostile.
(ii) PW2 - Venkateshappa, is the uncle of the deceased and complainant who has stated in support of the case of prosecution. Nothing has been elicited in the cross examination to disprove that the accused was not involved in the commission of the death of the deceased.
(iii) PW3 - Muniraju is the brother of the deceased who has stated that there are 4 siblings to their parents. After demise of his mother, his father addicted to alcohol and neglected the children, therefore, the deceased was under the care and custody of PW2 - the uncle. The marriage of the deceased was performed about 10 years prior to 14 the incident. About 7 to 8 years they led a happy married life and out of the wedlock they have two children. Recently, from last two years, they started quarrelling and accordingly, PW2 - uncle had conducted panchayath for 3 to 4 times, but has not yielded any result. He received a call from Hanumappa, then he along with others reached Koramangala and found the dead body.
Accordingly, Ex.P1 was prepared and he had signed Ex.P1 - mahazar. He further stated that he has not seen the accused at the spot with self injury. He has supported the case of prosecution.
(iv) PW7 - Hanumappa, who is the neighbour has stated that he know both the accused and the deceased. He has stated that his house is about 50 to 100 feet far from his house. About one year ago, when he was sleeping at his home, at about 12.00 in the midnight, PW5 - Munikrishnappa waked him up and asked him to come to Anitha's house and when they visited, they found Anitha was dead with severe head injuries. At that time, there was only accused and the deceased at the home and he called PW3 - Muniraju, the brother of the deceased and told about the incident. The relationship of the deceased and the accused were cordial, however, recently they started quarrelling with each other and they conducted panchayat, the same has not yielded any result. He further 15 stated that the accused never spoke about the illicit relationship with Nataraj. The police never took any statement of him. He supports the case of prosecution.
(v) PW8 - Eshwara is the relative of the deceased. He also stated on par with PW7 and so also PW9 - Munivenkatappa and PW10 - Gowramma. Nothing has been elicited from the cross examination to disbelieve that accused is not involved in homicidal death of the deceased. Admittedly, PW9 - Munivenkatappa has given a statement on oath and he has not been cross examined.
(vi) PW11 - Kemparajaiah is the PDO of Koramangala Grama Panchayat. As per requisition, he has prepared and issued demand register extract in respect house of the accused as per Ex.P6. He supports the case of prosecution.
(vii) PW12 - Srinivas Murthy is the Junior Engineer. As per the requisition, he has prepared Ex.P8 spot sketch and issued letter of AEE as per Ex.P9. He supports the case of prosecution.
(viii) PW13 - Dr.Nagesh who conducted post mortem has stated on oath that on 03.02.2013, he received requisition to conduct post mortem of the dead body of the deceased. Accordingly, he conducted post mortem of the dead body of deceased Anitha and later on 15.03.2013, he 16 received MO1 - machete for opinion. He has given his opinion as per Ex.P11 that it is possible to cause the injuries sustained by the deceased with the weapon. He has also identified MO.2 and MOs.5 to 10 the clothes of the deceased and opined that as many as 7 injuries were found on the dead body as per the post mortem report.
(ix) PW14 - Shivamallappa is the Police Constable who submitted FIR to the Hon'ble Court on 03.02.2013 around 12.00 in the afternoon.
(x) PW15 - Nagaraj and PW19 - Md.Khakim Mulla are the Head Constables. They were deputed on 14.03.2013 by the Investigating Officer to trace the accused. On receiving the information that the accused is in Bowring hospital, they apprehended the accused and produced before the Investigating Officer.
(xi) PW16 - Buddegowda is the Head Constable who carried 7 articles to FSL on 14.03.2013 i.e. MOs.1 to 11.
(xii) PW17 - Venugopal is the Police Inspector who is also Investigating Officer visited the hospital, recorded the statement, collected the samples and identified the materials and submitted the same before the Court. He has also made requisition to Grama Panchayath and PWD to prepare sketch of 17 the house of the accused and after completion of investigation, filed charge sheet.
(xiii) PW18 - Sandeep P Kauri is the Police Sub Inspector who received information that husband has murdered his wife with chopper and immediately rushed to the scene of offence and found the dead body. Later on receiving the complaint from PW2 - Venkateshappa registered FIR for the offence punishable under Section 302 of IPC.
15. Based on the aforesaid materials on record, the Trial Court proceeded to convict the accused. Admittedly, there are no eye witness to the incident. PW2 - Venkateshappa who is the adopted father of deceased lodged the first information on the basis of information given by PW7
- Hanumappa who got information from PW5 - Munikrishnappa. It is specifically stated in Ex.P2 that initially their relationship was cordial and from about 2 years, accused started ill-treating Anitha due to some family dispute. The elders had advised the accused, but he did not heed to the same and continued ill-treating the deceased. He further explained that the accused was manhandling, ill-treating and abusing the deceased to bring money from her parent's 18 house. But there is no such plea in the complaint. It is the specific defence of the accused that since the deceased was having extra marital relationship with one Nataraj, he was quarrelling with her. Admittedly, no such explanation is offered by the accused in his statement recorded under Section 313 of Cr.P.C. and in the absence of any material document produced to prove the illicit relationship, mere cross examination without any basis cannot be a ground to believe the version of the accused.
16. It is also not in dispute that the accused in the cross examination of prosecution witnesses has taken a defence that the deceased was having illicit relationship with one Nataraj. Therefore, the suggestion of the accused made in the cross examination of the prosecution is strong and more reliable. A married lady Anitha may feel very much insulted when her husband suspects her fidelity. Therefore, she might not have disclosed the real facts to PW2, relatives and friends and therefore, PW2 might not have not stated the same in the complaint as well as in the evidence. Thereby, suggestion of the accused itself gives rise the motive for him 19 to commit the offence, which becomes strong and more probable.
17. One of the contention raised by the learned counsel for the accused in the present appeal is that the very defence of illicit relationship between Anitha and one Nataraj could not have been taken by the learned counsel for the accused before the Trial Court, but unfortunately, in the present case, no such ground is taken by the appellant in the present appeal. From the oral and documentary evidence on record, the prosecution proves that the deceased and the accused were quarreling for trivial issues. It is true that PWs.2, 3 and 7 to 10 have not stated before the police that the quarrel was for getting dowry, but however, they have stated that the dispute was in respect of bringing money from the parents of the deceased. PW3 has stated in his evidence that the accused was having extra marital affair with another woman. But he has not stated that the deceased was having illicit relationship with another boy. All the witnesses have clearly deposed before the Court that the relationship of the accused and the deceased was not cordial. All the witnesses are not the eye witnesses to the incident, but the accused had 20 personal knowledge of the quarrel which discloses that the deceased had illicit relationship with one Nataraj. Therefore, there was frequent quarrel.
18. If really there was truth in the statement that the quarrel took place between the husband and wife and according to the defence, Nataraj, the alleged paramour tried to assault the accused, thereby the deceased tried to protect her husband and Nataraj killed the deceased and not the accused. If really that was the defence, the accused ought to have lodged the complaint before the jurisdictional police immediately after the incident, instead he has vanished from the spot. The another defence taken by the accused is that deceased Anitha had extra marital relationship with one Nataraj and the accused had suspected her chastity and fidelity. When the husband suspected and believed that his wife is having affair with another man, it is a strong motive to murder her. The said defence of the accused indicates that is was the motive to kill his wife.
19. On perusal of the entire statement recorded under Section 313 of Cr.P.C. of the accused, nowhere he has offered 21 any explanation to the incriminating circumstances placed by the prosecution. In the absence of explanation, an adverse inference has to be drawn against the accused under the provision of Section 114(g) of the Evidence Act. Our view is fortified by the Hon'ble Supreme Court in the case of Prahlad Vs State of Rajasthan1, wherein para 11, it is held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
20. It is also not in dispute that admittedly as per the date of incident, accused and the deceased were residing in the house of the accused. Admittedly, the husband has not discharged initial burden on him to offer any reasonable explanation under the provisions of Section 106 of Evidence Act as to how the deceased died, as held by the Hon'ble Supreme Court in Kalu alias Laxminarayan Vs State of 1 (2019) 14 SCC 438 22 Madhya Pradesh2, wherein, at paras 11 to 16, held as under:
"11. The aforesaid factors leave us satisfied that the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. The conduct of the appellant, in the aforesaid background, now becomes important. If the deceased had committed suicide, we find it strange that the appellant laid her body on the floor after bringing her down but did not bother to inform anyone living near him much less the parents of the deceased. There is no evidence that the information was conveyed to the family members of the deceased by the appellant or at the behest of the appellant. The appellant was also not found to be at home when her family members came the next morning. The appellant offered no defence whatsoever with regard to his absence the whole night and on the contrary PW3 attempted to build up a case of alibi on behalf of the appellant, when he himself had taken no such defence under Section 313 Cr.P.C.2
(2019) 10 SCC 211 23
12. The occurrence had taken place in the rural environment in the middle of the month of October when it gets dark early. Normally in a rural environment people return home after dusk and life begins early with dawn. It is strange that the appellant did not return home the whole night and was taken into custody on
21.10.1994.
13. In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night. In Hanumant. v State of M.P. it was observed:
"10. .....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the 24 one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. In Tulshiram Sahadu Suryawanshi v State of Maharashtra, this Court observed:
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not 25 intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar:
"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately 26 difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."
15. In Trimukh Maroti Kirkan v State of Maharashtra, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions --27
quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of 28 Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the 29 facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 Cr.P.C with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased."
21. It is also not in dispute that with regard to the defence taken by the accused that the Investigating Officer has not examined any of the neighbor or witnesses belonging to Koramangala Village, in fact, the Investigating officer has examined PWs.1, 5, 7 and one Shivakumar, the resident of Koramangala. PWs.1, 5 and 7 in their evidence have not stated that Anitha had illicit relationship with Nataraj and Nataraj killed Anitha and not her husband. PW5 - Munikrishnappa, the brother of the accused has not supported the version of the accused. If anybody has seen the incident that Nataraj killed Anitha, the accused could have examined them or atleast bring the same to the notice of the Investigating Officer. The accused has failed to examine any of the witnesses to prove that the deceased had illicit 30 relationship with Nataraj, as such the alleged defence taken by the accused appears to be a story and is not probable. From this it appears that the said Nataraj is a fictitious person and the accused has created a false story. Whether the said Nataraj is the resident of same village or from different village is also not made known to the Court. It also does not disclose that he was very rich person and politically influenced having capacity to avoid the litigation and case against him. Therefore, the defence taken by the accused before the Trial Court is unacceptable.
22. The Trial Court considered the entire material on record in a proper perspective and has come to the right conclusion that the deceased is the wife of the accused and there was frequent quarrel and on 02.02.2013 at about 11.30 to 12.00 in the mid night, in Koramangala in the house of accused with an intention to murder his wife assaulted her with chopper on her head, hands and other parts of the body and caused grievous injuries as a result of the incident, the deceased died at the spot, which attracts the provisions of Section 302 of IPC. Though learned counsel for the appellant tried to persuade this Court that it is a frequent quarrel 31 between the parties and due to sudden provocation, the accused assaulted the deceased and thereby Exception 4 of Section 300 of IPC attracts under the provision under Section 304 Part II IPC, cannot be accepted. If really there was sudden quarrel between the wife and husband and during the quarrel and without premeditation he assaulted, the same should have been taken or offered explanation in the statement recorded under Section 313 Cr.P.C., but the same is not stated. Very strangely, they have taken a new defence in the cross examination of the prosecution witness that she had illicit relationship with one Nataraj. The same is not proved thereby, the very plea taken in the present appeal cannot be accepted.
23. Learned counsel for the appellant has not pointed out any of the circumstances and any of the evidence of the prosecution witnesses that the accident occurred due to sudden provocation without pre-meditation. Admittedly, the accused has not examined any defence witnesses to prove the specific evidence with regard to the illicit relationship between the deceased and Nataraj, thereby the prosecution has proved beyond reasonable doubt about the involvement of the 32 accused in homicidal death of his own wife and killed using MO1 - chopper. If really there was a sudden quarrel there was no occasion for the accused to use MO1 - chopper and assault on the vital parts of the body.
23. As per Ex.P10 - the post mortem report discloses 7 injuries which reads as under:.
"1. Condition of Subject: Stout, emaciated, decomposed, etc.
- A female body aged about 30 years of height about 5 feet of dark complexion upper limbs flexed lower limbs extended. Rigor mortis present.
2. Wounds: Position, size, character.
3. Bruises: Position, size, nature.
4. Mark of ligatures on neck, dissection, etc. 1/4
-1. A liner cut injury measuring about 6" x "
over left occipital area.
2. A semi-circular deep cut injury measuring about 5"x 4"x 3"present below the previous injury exposing the underlying cut membranes and lacerated brain tissue.
3. A linear transverse cut injury measuring about 2"x 1"over lateral aspect of left arm.
4. A linear transverse cut injury measuring about 3"x 1.1/2" below the previous injury. 33
5. A deep transverse cut injury measuring about 4"x 2"at the level of left wrist joint disarticulated from the left upper limb.
6. A linear transverse deep cut injury measuring about 4.1/2" x 1" over right palm exposing underlying cut muscles and palmer muscles.
7. A transverse linear cut injury measuring about 4"x 1" over medical part of middle 1/3rd of right thigh".
PW13 - Dr.Nagesh, has opined that the cause of death is due to shock and hemorrhage as a result of vital head injury i.e., left occipital lobe of brain.
24. The same is also supported by scientific evidence Ex.P14 - FSL report which clearly depicts as under:
"1. Presence of blood was detected in Article Nos.1, 2, 3, 5, 6, 7, 8, 9, 10 and 11.
2. Items 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 were stained with human blood.
3. Blood in Item 4 was disintegrated, hence, their origin could not be determined.
4. Items 1, 2, 3, 5, 6, 7, 8, 9 and 10 were stained with "B" blood group
5. The blood grouping of the blood stains in item 11 could not be determined as the results of the test were inconclusive".34
25. All these materials unmistakenly points accusing the finger towards the accused as the author of the crime and the accused has not probabalized his defence, thereby the prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
26. For the reasons stated above, the points raised in the present appeal has to be answered in Negative holding that the accused has not made out any grounds to interfere with the impugned judgment of conviction and order of sentence, sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC.
26. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal filed by the accused is hereby dismissed as devoid of merits.
(ii) The impugned judgment of conviction and order of sentence dated 20.11.2015 passed in S.C.No.15001 of 2013 on the file of V Additional District and Sessions Judge, Devanahalli, is hereby confirmed.35
Registry is directed to send back the Trial Court records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE *bgn/-