Karnataka High Court
Nanjashetty @ Nanja vs State Of Karnataka on 30 January, 2024
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NC: 2024:KHC:3943-DB
CRL.A No. 310/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.310/2017(C)
BETWEEN:
NANJASHETTY @ NANJA
S/O LATE NANJASHETTY @ KALLANANJASHETTY
AGED ABOUT 30 YEARS
RESIDENT OF DODDAMOLE VILLAGE
CHAMARAJANAGAR - 571 313 ...APPELLANT
(BY SRI ABHILASH R., ADVOCATE)
AND:
STATE OF KARNATAKA
BY CHAMARAJANAGAR EAST POLICE
REPRESENTED BY S.P.P.
HIGH COURT BUILDING
BENGALURU - 560 001 ...RESPONDENT
Digitally signed
by PRABHU
KUMARA (BY SRI VIJAYAKUMAR MAJAGE, S.P.P-II)
NAIKA
Location: High THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
Court of
Karnataka CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 21-12-2016 AND SENTENCE DATED 27-12-2016 PASSED BY
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGAR, SITTING AT KOLLEGALA, IN S.C. NO.33/2013,
CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR DICTATING
JUDGMENT, THIS DAY, K.S. MUDAGAL J., DELIVERED THE
FOLLOWING:
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CRL.A No. 310/2017
JUDGMENT
Challenging the order of his conviction and sentence, the accused in Sessions Case No.33/2013 on the file of the Additional District and Sessions Judge, Chamarajanagara, Sitting at Kollegala, has preferred this appeal.
2. The appellant was tried in Sessions Case No.33/2013 for the offence punishable under Section 302 Indian Penal Code, 1860 (for short, 'IPC') on the basis of the charge-sheet filed by Chamarajanagar East Police in Crime No.12/2013 of their Police Station. Crime No.12/2013 was registered against the appellant on the basis of the complaint submitted by PW.1-Mahadevamma as per Ex.P1.
3. The appellant is the sole accused. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.
4. The case of the prosecution in brief is as follows:
PW1 is the mother, PW12 is the father and PW21 is the elder brother of the deceased-Gowramma. The marriage of the accused and the deceased was solemnized about five years prior to 19.01.2013. Out of the said marriage, the couple had son aged about 4 years and daughter aged 2½ years. After the -3- NC: 2024:KHC:3943-DB CRL.A No. 310/2017 birth of his children, the accused became addicted to alcohol and gambling. He was physically and mentally ill-treating Gowramma suspecting her fidelity. He was taking objections for her going to coolie work. Two days prior to 19.01.2013, the accused went to Gunjumalai on pilgrimage and he abruptly returned suspecting the fidelity of the victim. On 19.01.2013 at 8:00 a.m., he picked up quarrel with Gowramma, objecting her for going to the coolie work and assaulted her with MO7- chopper, committed her murder and fled away. On hearing the commotion, PW9-elder sister of the accused who was also residing near the house of the accused, rushed to the spot and found the victim dead with homicidal injuries. Listening to the commotion, PWs.3 to 6 rushed to the spot, the accused left the place saying that he has chopped and killed Gowramma and they shall see that. On learning about the incident, CW28-elder brother of the accused came to the spot and informed PWs.1 and 12 about the incident. Then PW.1 came to the spot. PW30- Sub-Inspector of Police of Chamarajanagar East Police Station visited the spot, he received the complaint as per Ex.P1 at the spot and forwarded the same to the Police Station through PW27-Police Constable. Based on the said complaint, PW28- Assistant Sub-Inspector of Police registered F.I.R as per Ex.P23 -4- NC: 2024:KHC:3943-DB CRL.A No. 310/2017 and forwarded the same to the Court. He handed over the further investigation to PW30-Sub-Inspector of Police of Chamarajanagar East Police Station. PW30 visited the spot and conducted the spot mahazar as per Ex.P2. During spot mahazar, he seized bloodstained mud and unstained mud and then, he handed over further investigation to PW26-Circle Inspector of Police. PW30, who was deputed by PW26, arrested the accused on 19.01.2013 near Haradanahalli Farm and produced him before PW26. PW26 interrogated the accused and recorded his voluntary statement as per Ex.P20. Based on the voluntary statement of the accused, the accused produced his bloodstained clothes, i.e. MOs.8 and 9-T-shirt and pant respectively and they were seized under the mahazar as per Ex.P14 in the presence of PWs.14 and 15-panchas and thereafter, the accused led the Police to his house and produced MO7-chopper and the same was seized under mahazar Ex.P15 in the presence of PWs.14 and 15. PW26 conducted the inquest mahazar as per Ex.P16, recorded the statement of the witnesses, got the dead body subjected to Post-Mortem examination, referred the seized material to FSL examination, collected the Post-Mortem examination report and FSL report, etc. and filed the charge-sheet. -5-
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5. The trial Court on hearing the parties, framed the charge against the accused for the offence punishable under Section 302 IPC. The accused denied the charge and claimed to be tried. Therefore, the trial was conducted. In support of the case of the prosecution, PWs.1 to 31 were examined, Exs.P1 to P31 and MOs.1 to 9 were marked. The accused after his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') neither filed any defence statement nor led any defence evidence.
6. The trial Court on hearing the parties by the impugned judgment and order, convicted the accused-appellant for the offence punishable under Section 302 IPC and sentenced him to life imprisonment with fine of Rs.5,000/- and in default to pay the fine, to undergo imprisonment for six months.
7. The trial Court held that though the case is based on circumstantial evidence and some of the witnesses have turned hostile, the prosecution has established the guilt of the accused by the evidence of PWs.1 and 21, medical evidence and forensic evidence. The trial Court further held that the -6- NC: 2024:KHC:3943-DB CRL.A No. 310/2017 witnesses, who have turned hostile, in the cross-examination have also admitted being res gestae witnesses to the incident.
8. The accused has challenged the said order of conviction and sentence in the above case. Submissions of Sri Abhilash R., learned counsel for the accused-appellant:
9. The case is based on circumstantial evidence. There are no direct witnesses to the case. Except PWs.1 and 21 and official witnesses, all other material witnesses have turned hostile. The trial Court committed gross error in interpreting the evidence of such hostile witnesses by taking the bits of sentences in the depositions. The circumstance of recovery of incriminating material itself was not proved. Therefore, the question of connecting the accused to the crime by the scientific expert evidence was unjustified. Even assuming that the accused assaulted the victim, that was in the course of domestic dispute in a fit of anger. There is nothing to show that the accused intended to commit the murder of the deceased. Even if it is held that the accused assaulted the victim, his act attracts the offence under Section 304 IPC and not under Section 302 IPC. The accused has already undergone more -7- NC: 2024:KHC:3943-DB CRL.A No. 310/2017 than ten years judicial custody, therefore, restricting the period of sentence for the offence under Section 304 IPC, he may be released.
Submissions of Sri Vijayakumar Majage, learned State Public Prosecutor-II for the respondent-State:
10. Though the case is based on circumstantial evidence, the accused did not impeach the evidence of PWs.1, 12, 21 and the evidence of PW24-Doctor who conducted the Post-Mortem examination to the effect that the death was homicidal one. Even the hostile witnesses state that the victim died homicidal death. The death had taken place in the house of the accused, where the accused and the deceased ordinarily reside. Therefore, he had to explain how the victim suffered those injuries. The evidence of PWs.1, 12 and 21 proved the motive circumstance. Soon after the incident, the accused was found absconding from the house. Such conduct becomes relevant under Section 8 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'). He failed to explain the cause of death which was within his special knowledge. Therefore, the trial Court was justified in convicting the appellant-accused. The manner of assault and the injuries found on the victim falsifies the theory of the accused assaulting the victim without -8- NC: 2024:KHC:3943-DB CRL.A No. 310/2017 knowledge or intention to commit the murder. Therefore, there is no merit in the contention that the act of the accused falls under Section 304 IPC. There is no merit in the appeal and the same is liable to be dismissed.
11. Considering the submissions of both side and on examination of the records, the point that arises for consideration is "Whether the impugned judgment and order of conviction and sentence passed by the trial Court is sustainable?".
ANALYSIS
12. The accused did not dispute that he was married to the victim about five years prior to the incident and had two children out of the said wedlock. He also did not dispute that deceased died in his house with fatal injuries. The relationship of PWs.1, 12, 13 and 21 with the deceased was not disputed. Of course, there was no direct witness to the incident. The case is based on circumstantial evidence. The circumstances relied on by the prosecution are as follows:
(i) Regarding the nature of death - The victim died homicidal death in the house of the accused. -9-
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(ii) Motive - That the accused got addicted to alcohol, gambling and started suspecting the fidelity of the victim and on that ground, he was ill-treating her.
(iii) Extra-judicial confession made by the accused before PWs.3 to 6 and 9.
(iv) That the accused and the deceased were last found at the scene of offence.
(v) The recovery of incriminating material at the instance of the accused;
(vi) The recovery of bloodstained clothes of the accused; and
(vii) The medical evidence, forensic evidence and the evidence of official witnesses.
Reg. The nature of death:
13. To prove that the death was homicidal one, the prosecution relied on the evidence of PW24-Doctor and the Post-Mortem examination report-Ex.P19, inquest mahazar- Ex.P16 and evidence of PWs.16 to 18, PWs.1, 12 and 21 and PW26-Investigating Officer. PWs.16 to 18-inquest mahazar witnesses did not support the prosecution case. PW24-Medical Officer of the District Hospital, Chamarajanagara deposes that,
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 on 20-1-2013 on the requisition of the Police he conducted the Post-Mortem examination on the dead body of Gowramma between 1:05 p.m. and 2:20 p.m. He deposed that on examination, he issued Post-Mortem examination report as per Ex.P19 and found the following injuries:
"1. Transverse cut lacerated wound of size 17 x 2 cm traversing through the orbits, extending bone deep with distruction of eye balls present. The underlying bone margin was showing clean cut margin. The right end of the injury was situated 3 cm from the right tragus of the ear.
2. Transverse cut injury just below the nose involving upper lip of size 16 x 2 cm with the right lateral end situated 4 cm from right tragus. The alveolar margin of maxilla has been cut, depth of the injury is 1.3 cm.
3. Transverse cut injury involving both angles of mouth of length 2 x 2 cm from left angle and 5 x 2 cm from right angle of mouth. The outer end of the injury from right angle of mouth was situated 6 cm from right tragus, total length from one end to other was 12 cm.
4. Laceration of 5 x 1 cm, subcutaneous tissue deep found just below the lower lip.
5. Laceration of 7 x 1.5 cm, bone deep on the chin with right end situated 9 cm from right tragus was found. Protrusion of cut end of mandible was seen from the lacerated wound. Tip of the fractured mandible was situated 11 cm away from the right
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 tragus. Tailing of wound was appreciated in injury 3, 4 and 5 towards the right end.
6. Abrasions of 3 x 0.2 cm, 2 x 0.2 cm and 2 x 0.5 cm were found on the right shoulder, one below the other in the order mentioned.
7. Abrasion of 4 x 0.2 cm was found on the right side of neck.
All above mentioned injuries were antemortem in nature and injury 1 and 2 were fatal in nature. Extra- vasation of blood into soft tissues were found in injuries 1-5."
He also deposed about the internal injuries found on the dead body. He deposed that the death was due to intracranial hemorrhage due to the injuries suffered. He deposed that, on examining MO.7 the chopper, he opined that the injuries mentioned in Ex.P19 could be caused by MO.7. In the cross- examination of PW.24 except suggesting that he has given a false report at the behest of the police which he denied, nothing was elicited to disbelieve his evidence. He was an official witness and he had no personal interest in the case. Having regard to the nature of the injuries there was no reason to disbelieve that the injuries and consequential death were homicidal one. Even though the inquest mahazar witnesses did not support the prosecution version, the evidence of PW.24 and
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 Ex.P19 was further corroborated by the evidence of PWs.1 and
21. Therefore, the fact of the death being homicidal was proved by the prosecution.
Reg. Motive and extra-judicial confession:
14. In the complaint Ex.P1 as well as in the evidence of PWs.1, 12 and 21, it was categorically stated that initially, the accused lived cordially with the deceased. It was further stated that after birth of his second child, the accused got addicted to alcohol, gambling, smoking and started suspecting the fidelity of the victim. PWs.1, 12 and 21 have further deposed that the accused was not permitting the victim to go to coolie work. To maintain the family she was compelled to earn, therefore, she was insisting for going to the coolie work. They have also deposed that the accused was not even allowing her to go to public water tap to fetch the water during daytime and therefore, she was forced to fetch the water during the night when the roads were not populated. They further deposed that two days prior to the incident, the accused went on pilgrimage to Gunjumalai and abruptly returned. On learning that the accused returned to Kollegala breaking his pilgrimage, PW12 and CW28 went to Kollegala and brought him back to the Village. PWs.1, 12 and 21 further deposed that when they
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 enquired the accused as to why he abruptly returned from the pilgrimage, the accused said that he has doubt about the fidelity of his wife, therefore, he has returned. PWs.1 and 12 say that all of them advised the accused and sent the accused and Gowramma back to their house at Doddamole Village. PWs.12 and 21 further deposed that on the next date, CW28 informed them that the accused has committed the murder of Gowramma and they went to the house of the accused and found Gowramma dead. PW1 speaks about filing of the complaint, the Police conducting the spot mahazar-ExP2 and seizure of MOs.1 and 2-bloodstained mud and unstained mud. PWs.1, 12 and 21 deposed that at the time of the incident, PWs.12, 13 and 21 had gone to Sabarimala on pilgrimage and when they were in Dharmasthala, they received the information from CW28 about the murder of Gowramma and they returned to Chamarajanagara District Hospital and found the dead body of the victim. The evidence of these witnesses regarding the accused being addicted to the vices, few months earlier to the incident, suspecting the fidelity of the victim and objecting her for going to the coolie work or fetching the water was not disputed in the cross-examination. Though PW12 did not support the prosecution case in its entirety, he supported the
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 case of the prosecution with regard to the accused getting addicted to alcohol, ill-treating the victim, suspecting her fidelity, etc. In the cross-examination of PW12, he denied the suggestion that he has not witnessed the accused indulging in gambling and not maintaining the family by getting necessary groceries or assaulting the victim.
15. By the time the incident took place, the accused and the deceased had two children. By the death of the mother, they lost one parent. If the accused was falsely implicated in the case by PWs.1, 12 and 21, they were losing another parent also and making the children become orphans. Moreover, being the close relatives i.e., PWs.1, 12 and 21 had no reason to shield the true culprit and falsely implicate the accused in the case. Therefore, there is no reason to disbelieve the evidence of PWs.1, 12 and 21 regarding the conduct of the accused namely he getting addicted to vices and subjecting the victim to physical and mental cruelty suspecting her fidelity. Their evidence cannot be discarded merely because they are the relatives of the victim or they are interested witnesses. To call them as the interested witnesses, the conviction of the accused should confer some benefit on them. As aforesaid, the
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 conviction of the accused was not conferring any benefit on PWs.1, 12 and 21 as that was making their grandchildren/nephew/niece orphans. Therefore, there is no merit in the contention that they are the interested witnesses and their evidence shall be disbelieved.
16. The prosecution relied on the evidence of PWs.3 to 6 the neighbours of the deceased, PWs.7 and 8 who were the co-coolie workers of the deceased and PW9-sister-in-law of the deceased/elder sister of the accused to prove the motive circumstance. The prosecution also relied on the evidence of PWs.3 to 6 and 9 to prove the circumstance of extra-judicial confession. It is the case of the prosecution that after the accused committing the murder, on hearing the commotion, PWs.3 to 6 and 9 rushed to the spot, the accused left the place saying that he has chopped the victim and they should go and see. No doubt, all the aforesaid witnesses have turned hostile. Despite they turning hostile, they did dispute the fact that they were the neighbours/relatives of the accused and the deceased and they were acquainted with them. PW9 did not dispute her relationship with the deceased and the accused. She herself gives her address as Doddamole Village, where the accused
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 and deceased were living together. The aforesaid witnesses have disputed having given statement before the Investigating Officer as per Exs.P3 to 6 and 9. PW9 being the close relative of the accused turning hostile to the prosecution case is quite natural.
17. Taking the judicial notice of the witnesses turning hostile and referring to the responsibility of the Court in such cases, the Hon'ble Supreme Court in paragraph Nos.14 and 15 of the judgment in Trimukh Maroti Kirkan v. State of Maharashtra1, in this regard, has held as follows:
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. 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 1 (2006) 10 SCC 681
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 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 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.
(Emphasis supplied)
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 The reading of the above judgment shows that in cases involving the murder in the house, there is a tendency on the part of the relatives of the deceased turning hostile and in such situation, the Court should not act merely as an umpire and let go the guilty unpunished. It is also held that, in such cases, it is extremely difficult for the prosecution to lead extreme positive evidence and the Court has to take into consideration Section 106 of the Evidence Act and the burden of proof on the prosecution is comparatively of lighter character. In such cases, there is corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. Having regard to the aforesaid judgment, the witnesses turning hostile alone cannot have dent on the prosecution case, unless the accused explains cause of the death. By the above evidence, it can be said that the prosecution has successfully proved the circumstance of motive, though not extra judicial confession.
Reg. Recovery of bloodstained clothes of the victim under Ex.P18:
18. According to the prosecution, after postmortem examination PW.24 handed over MOs.3 to 6 - Saree, Blouse, Petticoat and Woolen Sweater of the victim to PW.23-the
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 woman police constable. She carried them to the police station, produced then before PW.26 and he seized them under mahazar Ex.P18 in the presence of PWs.25 and 29. PWs.25 and 29 did not support the prosecution case regarding seizure of the above seized articles. However, there was no reason to disbelieve the evidence of PW.24 the doctor, PW.23 the police constable and PW.26 the Investigating Officer regarding recovery of MOs.3 to 6 in the police station under mahazar Ex.P18. Therefore the said circumstance was proved. Reg. Recovery of clothes of the accused under Ex.P14 and weapon of offence under mahazar Ex.P15, Sections 8 and 106 of Evidence Act.
19. It is the case of the prosecution that at the time of arrest accused was wearing MOs.8 and 9 the bloodstained T- shirt and pant, they were seized in the police station under mahazar Ex.P14 in the presence of PWs.14 and 15. It is further case of the prosecution that the accused gave voluntary statement to show the place where he has concealed the weapon of offence MO.7, led the Investigating Officer and PWs.14 and 15 to his house and took out MO.7 which was concealed in the loft of his house under coconut leaves and that was seized under mahazar Ex.P15.
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20. PWs.14 and 15 did not support the proceedings under mahazar Exs.P14 and 15. What remained was only the evidence of PW.26 the Investigating Officer regarding seizure of MO.7. The evidence of PWs.26 and 31 the Investigating Officer and Forensic Expert respectively, shows that the Investigation Officer had sent MOs.1 to 4 and 6 to 9 for chemical analysis and on examination, PW.31 issued report Ex.P22. PW.31 further deposed that item Nos.3 to 8 T-shirt, pant, chopper, Saree, blouse, Sweater were stained with 'A' blood group.
21. PWs.10 and 11 are the co-pilgrims of the accused during Gunjumalai pilgrimage. They deposed that on 11.01.2013 themselves, accused and in all 15 persons had gone on piligrimage to Mahadeshwara Betta and the accused broke his sacrament (garland) near Mahadeshwara temple abruptly. Despite their advice not to return, he went back. They further deposed that they informed the same to CW.28 the elder brother of the accused on phone. PW.10 further deposed that on his return, he came to know that accused has committed murder of his wife.
22. Even assuming that the seizure was not proved conclusively by the evidence of independent witnesses, the
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 accused did not dispute that Gowramma died homicidal death in his house, where himself and the deceased alone were ordinarily living together. How she suffered those injuries was within his special knowledge and he was required to explain that either in the cross-examination of the witnesses or during his examination under Section 313 Cr.P.C. Absolutely, he did not offer any explanation for the same. Soon after the incident he was found missing from the house. He did not report to the police or the relatives of the victim about her death. He did not set up any plea of alibi. Such conduct of the accused becomes relevant under Sections 8 and 106 of the Evidence Act. The accused failed to discharge the burden placed on him under Section 106 of the Evidence Act.
23. The judgment of the Hon'ble Supreme Court in Trimukh Maroti Kirkan's case referred to supra covers the issue. Therefore, conviction could be placed on the circumstances of motive, homicidal death, res-gestae witnesses' evidence and conduct of the accused in the light of Sections 8 and 106 of the Evidence Act.
24. The above discussions go to show that the accused who had married the victim and mother of his two children,
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NC: 2024:KHC:3943-DB CRL.A No. 310/2017 mercilessly and very brutally assaulted her and done to death. Under the facts and circumstances discussed above, on re- appreciation of the evidence and in the light of the judgment in Trimukh Maroti Kirkan's case referred to supra and all other surrounding circumstances, this Court is of the considered opinion that there are no grounds to interfere with the judgment and order of the trial Court. Hence, the following:
ORDER The appeal is dismissed.
The impugned judgment and order of sentence passed by the Additional District and Sessions Judge, Chamarajanagara, Sitting at Kollegala in SC No.33/2013 are hereby confirmed.
This Court places on record its appreciation for the able assistance rendered by Sri Abhilash R, learned panel Advocate for High Court Legal Services Committee.
Sd/-
JUDGE Sd/-
JUDGE KVK/PKN List No.: 1 Sl No.: 7