Karnataka High Court
Jeenu Kurubara Lingappa vs The State Of Karnataka on 28 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.85/2014
BETWEEN:
Jeenu Kurubara Lingappa
S/o Kencha
Aged about 41 years
Occ: Coolie,
R/at Bommanahalli Colony
Bhadragola Village
Virajpet Taluk-571 218.
... Appellant
(By Sri Nataraj G., Advocate)
AND:
The State of Karnataka
by Virajpet Police Station
Represented by State Public Prosecutor
High Court of Karnataka
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the judgment of
conviction dated 26.7.2013 and sentence dated
7.8.2013 passed by the II Addl. District and Sessions
Judge, Madikeri sitting at Virajpet in S.C.No.12/2010
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convicting the appellant/accused for the offence
punishable under Section 302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this
day, BUDIHAL R.B. J. delivered the following:-
JUDGMENT
This appeal is preferred by the appellant/accused being aggrieved by the judgment of conviction dated 26.7.2013 and order of sentence dated 7.8.2013 passed by the II Additional District Judge Court, Kodagu, Madikeri sitting at Virajpet, in S.C.No.12/2010, wherein the appellant/accused has been convicted for the offence punishable under Section 302 of the IPC.
2. Brief facts of the prosecution case as per the complaint under Ex.P21 that one Smt.Vasanthi wife of Lingappa lodged a complaint on 17.10.2009 wherein it is stated that she is residing in the said address, her mother's place is H.D.Kote, Annuru Village. About 20 years back she married to one Kencha of Mathuru Village and she is having two -3- daughters, first daughter Geetha was given in marriage to one Kumar and second daughter Anitha also given to one Linga. It is further stated that her husband Kencha deserted her and thereafter she joined with one Annayya of Annuru village and she was living her life with said Annayya. She is not having any children through said Annayya. Said Annayya was also with her for about 5 to 6 years, thereafter he also left her and since five years she stared to live with one Lingappa who is a resident of Bommanahalli who is working as coolie and they were staying in the quarters belonging to the said forest department and she is also doing the coolie work.
3. On 16.10.2009 herself and her husband Lingappa were in the house and Lingappa was quarrelling with her. Again alleging that she is having illicit relationship with some other person, during night at about 8.00 p.m. he picked up a quarrel with the complainant and he was stating that he will -4- finish of her and she should not alive and he brought the kerosene oil can, poured the kerosene and he took match box from his pant pocket and lit fire to her and then she was caught with fire to her Saree and there were flames and she was screaming. At that time, her daughter Anitha who was in the neighbouring house and her husband Linga who was also staying their and one Raju and Laxmi wife of Raju came and extinguished the fire. Thereafter, one Jayanthi phoned to Gonikoppal Government Hospital over phone and got the ambulance and she was shifted to Government Hospital for treatment. She requested to take appropriate action against her husband who poured kerosene and lit fire to her. It is also mentioned in the said complaint that she admitted to the emergency ward in the Government Hospital and there she gave the statement.
4. On the basis of the said complaint a case came to be registered in Crime No.140/2009 for the offence punishable under Section 307 of the IPC. -5-
5. Subsequently, after the demise of the complainant and as per the requisition made by the police under Ex.P26, an offence under Section 302 of the IPC came to be inserted in place of 307 of the IPC.
6. The Investigating Officer after conducting investigation filed the charge sheet as against the appellant/accused for the offence under Section 302 of the IPC.
7. The learned Sessions Judge after perusing the materials prepared the charge under Section 302 of the IPC and when the charge was read over and explained to the appellant/accused, he pleaded not guilty and claims to be tried. Accordingly, charge was framed for the said offence, his plea was also recorded, then the matter was set down for trial.
8. The prosecution in support of its case in all examined 24 witnesses and also got marked 28 documents with sub-markings, so also seven material objects MOs.1 to 7.
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9. The accused has been examined under Section 313 of the Cr.P.C. and his statement came to be recorded, incriminating material has been read over to him and thereafter the answers given by the accused are recorded in his statement.
10. On the side of the defence neither any witnesses were examined nor any documents were produced.
11. After hearing the arguments of both sides and also after considering the materials both oral and documentary, ultimately the learned Sessions Judge comes to the conclusion that prosecution proved its case beyond all reasonable doubt. Accordingly, convicted the appellant/accused for the offence under Section 302 of the IPC.
12. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment on the grounds as mentioned at ground Nos.1 to 13 of the appeal -7- memorandum, the appellant/accused is before this Court.
13. We heard the arguments of the learned counsel appearing for the appellant/accused, and also the arguments of the learned Addl. SPP for the respondent/State.
14. Learned counsel for the appellant made the submission drawing our attention to the entire materials through the paper book and also original records secured that none of the prosecution witnesses relied upon by the prosecution supported the case of the prosecution and they turned hostile. He submitted that the prosecution relied upon the dying declaration under Ex.P21 said to have been given by the deceased before her death. In this connection he made the submission that looking to the evidence of the doctor as well as the police who said to have recorded the dying declaration under Ex.P21 their evidence is not worth believable and even after considering their evidence, reasonable -8- doubt arises, in the mind of the Court as to the case of the prosecution that whether really the deceased left such a dying declaration or not.
15. Learned counsel submitted that according to the doctor's opinion she sustained 80% to 90% of the burns. Hence, he submitted that even looking to the evidence of the prosecution witnesses though they turned hostile, they have stated in their evidence that the injured was in a position to speak and even PW.4 Anitha daughter of the injured, so also her husband PW8 Linga, both have stated that she was not in a position to speak. Learned counsel drawing our attention to Ex.P21 dying declaration made the submission that though there appears to be endorsement made by the doctor PW16 that she was in a position to talk, but there is no specific endorsement by the doctor that she was conscious, she was able to understand the consequences of her statement. Hence, he submitted that the endorsement relied upon by the prosecution on the -9- said document Ex.P21 itself is not sufficient to come to the conclusion that it is the dying declaration given by the deceased. He also made the submission that even the evidence of the Investigating Officer also raises doubt in the mind of the Court. He made the submission that he recorded the contents of the dying declaration Ex.P21, but so far as endorsement to the LTM is concerned, it is of the another police official who was present. He identified the LTM by writing below the LTM. Therefore he made the submission that it is also not acceptable. Learned counsel however made the submission that the entire medical records are also not produced before the Court and he draw our attention to the writings made in Ex.P21 and submitted that looking to the entire contents, it cannot be said that the injured was able to give such a lengthy statement which is like the statements which are going to be recorded under Section 161 of the Cr.P.C. On these grounds learned counsel submitted that these material objects were not properly appreciated and considered by the
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learned Sessions Judge. He wrongly read the evidence and wrongly comes to the conclusion in holding that prosecution proved its case beyond all reasonable doubt. Learned counsel submitted that even there is no material to show positively that the appellant/accused was very much present in the house when the alleged incident took place.
16. Per contra, the learned Addl. SPP made the submission that though the witnesses have turned hostile, looking to the evidence of PW4 Anitha and PW8 her husband Linga, both have stated in their examination-in-chief that she was not in a position to speak. He also made the submission that the dying declaration was recorded on 17th at the early morning 2.15 a.m. But in the evidence of PW.9 Tahsildar he has deposed that she was not in a position to speak when he went to her and examined her, the learned Addl. SPP in this regard made the submission that PW9 went near the injured in the after noon at about 1.30 p.m. by that time, it may be true that she was
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not in a position to speak. But the question is when the dying declaration was recorded at the earliest point of time, at 2.15 a.m., this shows that it is recorded in between 2.15 and 3.00 a.m. Therefore, he made the submission that only on the ground that when the PW9 went to her in the after noon and at that time she was in a position to speak is not the ground for rejecting the dying declaration which was recorded much earlier. He also draw our attention to the evidence of the doctor PW16 and made the submission that she consistently deposed in her evidence that the police officials recorded the dying declaration in her presence and the injured was in a conscious state and she was capable to speak. He submitted that there is no reason to disbelieve the evidence of the doctor as nothing has been elicited in her evidence, so also our attention to the Investigating Officer's evidence and made the submission that there is no reason to doubt the evidence of the investigating officer also in this case. Hence, the learned Addl. SPP made the submission
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that the dying declaration under Ex.P21 was satisfactorily established with the help of the material witnesses who recorded the dying declaration in the presence of the doctor. Hence, he submitted that the trial Court appreciated the material and rightly held that the prosecution proved the dying declaration with the cogent and satisfactory material. Learned Addl. SPP lastly made the submission that there is no merit in the appeal. Hence, the appeal may be dismissed.
17. We perused the grounds in the appeal/memorandum, judgment and order of conviction passed by the Court below, oral evidence of PWs.1 to 24 and the documents produced by the prosecution. We have also considered the judgment reported in (1999) 7 SCC 695 in the case of Paparambaka Rosamma and Others Vs. State of A.P. relied upon by the learned counsel for the appellant and we considered the oral submissions made by the learned counsels on both sides at the Bar.
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18. Looking to the prosecution material the entire case of the prosecution rests on the statement said to have been given by the deceased under Ex.P21 which is said to be her dying declaration after her demise.
19. We perused the oral evidence of the witnesses. PWs.1 to 8 turned hostile and not supported the prosecution case. Though the witnesses were treated as hostile and at the request of the public prosecutor when questioned by public prosecutor suggesting the case of the prosecution the witnesses have denied all those suggestions and nothing has been elicited from the mouth of PWs.1 to 8 so as to believe the story of the prosecution that the accused poured kerosene and lit fire and the deceased gave the dying declaration as per Ex.P21 and out of these witnesses in their examination in chief they have also stated that PW1 J.K.Jayanthi deposed in her evidence in her examination in chief that when they went to her she was not in a position
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to speak and she also deposed that at that time her husband was not in the house. The another witness PW2 also deposed in the examination in chief that when they enquired with the injured, she was not in a position to speak.
PW3 J.K.Raju deposed in the examination in chief that she has not stated anything before him as against the accused person.
PW4 Anitha deposed in her examination in chief who is daughter of the deceased that she talked to the injured, injured talked with her, but she has not told before her how she sustained the burn injuries. PW8 Linga is the husband of Anitha. PW8 deposed in his evidence in examination in chief that he does not know who poured kerosene and lit fire on her. He also deposed that at the time of taking her to the hospital she was talking and they enquired with her, but she did not tell before them for what reason she sustained the burn injuries.
PW9 one Sathish Kumar, Assistant
Commissioner, Chickaballapura deposed in his
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evidence that from 8.4.2008 to 27.1.2010 he was working as a Tahsildar at Virajpet. On 17.10.2009 PSI Ponnampet police station sent one requisition letter to him and in the contents of the requisition he made a request that one Smt.Vasanthi W/o Lingappa is admitted to the Government Hospital at Gonikoppal and she sustained burn injuries and she is struggling and he has to record her dying declaration. Accordingly, at about 1.30 p.m. he went to Gonikoppal Government Hospital and he visited the ward in which Vasanthi was admitted. Before going to the said ward he enquired about the case with the duty doctor and he came to know that said woman was admitted in the hospital at 1.45 a.m., then along with the said doctor he went to the burn ward in the presence of the doctor he enquired with Vasanthi, but she was not in a position to speak, but she was having conscious. Number of times he asked her, but she has not responded to his questions and in that connection he issued the letter in writing to the PSI as per Ex.P15, Ex.P15(a) is his signature and
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in the cross examination in the defence he denied that he is deposing falsely that he went to the said hospital and he visited the ward wherein the Vasanthi was admitted and at the instance of police he is giving false signatures.
PWs.11, 12 and 13 are the witnesses to the inquest mahazar Ex.P.18.
PW14 A.P. Shanti, she turned hostile and not supported the prosecution case and even in the cross examination nothing has been elicited from her mouth and she denied that she has given the statement before the police as per Ex.P19.
PW15 Ganesh P.R. is the panch witness to the spot mahazar and he deposed in his presence the panchnamas conducted under Ex.P1 at the spot and the pieces of plastic dabba, pieces of the burnt clothes and the burnt match sticks. The witness identified as MOs.1 to 5. In the cross examination though it was suggested that in his presence no such material objects were seized from the spot, but the said suggestion has been denied by the witness.
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20. So far as Ex.P21 the dying declaration said to be of the deceased, the evidence of PW16 is important. PW16 Dr.Saroja deposed in her evidence in her examination in chief that on 19.10.2009 at 3.15 to 4.30 p.m. she conducted the post mortem report over the dead body of the deceased. It was of a dead body of a female, there were burn injuries over the dead body, body was burnt about 80 to 90% and the injured was admitted on 17.10.2009 at 1.45 a.m. With regard to admission of the injured in the said hospital, the intimation was sent to the police, it is under Ex.P20, Ex.P20(a) is her signature. After she sending the intimation under Ex.P20, immediately police came to the hospital. At that time she was in a position to speak, police enquired with her, in her presence. At that time she gave the statement before the police. She also enquired with her that when she was admitted to the hospital what are the reasons to sustain the burn injuries, police have also enquired about the same and at that time the injured told before them that her husband was having a suspicion
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about her fidelity and because of that reason he poured kerosene on her and lit fire to her.
21. She identified the document Ex.P21 and deposed that it was recorded in her presence and that injured Vasanthi has put her thumb impression on the said document. The signature of the witness on the said document is identified as Ex.P21(a). She has deposed that when police recorded the statement of the victim, she was also present and that Vasanthi expired on 19.10.2009 at 7.00 a.m. and she intimated the said fact to the police by addressing a letter which is at Ex.P22 and her signature on the said letter as Ex.P22(a). Thereafter, police came to the hospital. According to P.W.16, Vasanthi sustained injuries on the left side of the face, on the right forehead, feet and also the fingers of both hands were burnt. She cannot definitely say about the rigor mortis and when the dissection was conducted for the internal injuries, all other organs were intact. She has given the cause of death as septicemic shock
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due to burn injuries and she has issued the post mortem report as per Ex.P23. She also deposed that death might have taken place between 6 to 12 hours prior to the post mortem examination.
In the cross-examination, she deposed that initially she gave first aid to the injured and thereafter gave treatment. She denied the suggestion that she has not at all sent Ex.P20 intimation to the police. She has deposed that except face and lower limbs the entire body of the injured was burnt. The burn injuries were of a third degree. She denied the suggestion that because of the burn injuries Vasanthi was not in a position to speak and also denied the suggestion that because her left thumb was burnt, she was not in a position to put her thumb impression. Witness admitted as true that in the post mortem report she has not mentioned the percentage of burns. She has deposed that 30-45 minutes after sending Ex.P20 police came to the hospital. She denied the suggestions that Vasanthi has not at all gave the statement in her presence and that in
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collusion with the police they have created Ex.P21 document.
22. P.W.17-P.M.Sabu is the Head Constable of Virajpet police station. He was deputed to apprehend the accused person. He deposed that he came to know that accused was at Lingappa road junction. They went to the said place in the morning at 11.00 a.m. on 17.9.2009 and apprehended him at the said junction and brought him to the police station and the ASI enquired with him and he admitted that he poured kerosene on his wife, lit fire to her and committed her murder. He also deposed that he draw the spot mahazar as per Ex.P1. He identified the same and also his signature. He also deposed about the material objects M.Os.1 to 3.
In the cross-examination when it was suggested to the said witness that he was not at all deputed to apprehend the accused and he has neither gone to the said junction nor apprehended the said place and is giving false evidence, the same was denied by him.
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23. P.W.21-M.Somaiah, ASI has deposed in his evidence in the examination-in-chief that on 17.10.2009 at 1.45 a.m. when he was the SHO of Ponnampet police station he received the call from the doctor of Gonikoppal Government Hospital to the effect that one Smt.Vasanthi is admitted to the hospital due to burn injuries. Then he visited the said hospital and received endorsement from the doctor and in the presence of said doctor he recorded the statement of the injured as per Ex.P21 and he also identified his signature as Ex.P21(b). After coming back to the police station and on the basis of the said statement of the injured, he registered the case in Crime No.140/2010 and issued FIR under Ex.P24 and on the same day, he made a request to the Tahsildar to record the dying declaration of the injured. He also identified the spot mahazar Ex.P1, so also, the material objects under M.Os.1 to 5 seized under Ex.P1.
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In the cross-examination he has deposed that Vasanthi had sustained 80-90% burn injuries. He has not observed that the fingers of Vasanthi were burnt. He denied the suggestion that injured Vasanthi has not at all given her statement before him and for the purpose of this case, he has created the said statement. He has deposed that he does not know Vasanthi was illiterate and about that he has not enquired with her and he has made an endorsement on Ex.P21 to the effect that he has explained to Vasanthi about the statement made by her. The left thumb impression of Vasanthi is identified by constable Suresh. He denied the suggestion on that day Suresh had not at all accompanied him and also denied that Vasanthi was not in a position to sit. When he recorded the statement under Ex.P21, the relatives of Vasanthi were waiting outside the hospital. He also deposed that he has recorded the statement of the witnesses whom he has named at paragraph No.8 of his deposition, but denied the suggestion that they have
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not at all given such statement before him. He denied the suggestion that without conducting proper investigation, he has filed the charge sheet against the accused person.
24. Before appreciating the oral evidence of P.W.16 and P.W.21 in connection with recording of dying declaration of Vasanthi, we have perused the decision relied upon by the learned counsel for the appellant-accused reported in (1999)7 SCC 695 in the case of Paparambaka Rosamma and Others Vs. State of A.P. wherein at paragraph No.9 of the said decision. Their Lordships' have observed that, 'In medical science two stages namely, conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Court below'.
25. As submitted by the learned counsel for the appellant though doctor has made an endorsement on Ex.P21 that deceased Vasanthi was in a position
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to speak, but it is not specifically mentioned that she was having fit state of mind to understand the things and also there is no endorsement to that effect. Hence, only on the basis of the endorsement that the victim was in a position to give statement, it cannot be concluded that she has given the statement as per Ex.P21.
26. In this case, except the dying declaration Ex.P21 and oral evidence of P.Ws.16 and 21 there is no other material on the side of the prosecution. The dying declaration, no doubt, if it is satisfactorily proved, can be the sole basis for conviction and corroboration from other sources is not required. But at the same time, before accepting the dying declaration Court must be cautious because of two reasons, firstly, the statement of the declarant will not be made on oath and secondly, the declarant will not be subjected to cross-examination. Hence, the Court has to satisfy itself that the declaration made by the person is voluntary, truthful and reliable.
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27. No doubt in the Full Bench decision relied upon by the learned counsel for the appellant, referred to above, it is held that doctor's certification is essential not only regarding consciousness of the deceased but also about fit state of mind that existed before recording dying declaration, but in this regard, there is a subsequent decision of the Hon'ble Apex Court rendered by the larger bench consisting of 5 Hon'ble Judges reported in AIR 2002 SC 2973 in the case of Laxman Vs. State of Maharashtra wherein their Lordships' have ruled that 'certification by the Doctor is not a mandate of law, but a rule of caution for the Court to appreciate the dying declaration'. Therefore, we are not only concentrating about the certification aspect by the Doctor but also about other material in connection with the dying declaration said to have been given by deceased Vasanthi.
28. P.W.4-Anitha, daughter of deceased Vasanthi has deposed in her evidence that though
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deceased was in a position to talk, when asked about the burn injuries sustained, she has not stated anything about the same.
So also, P.W.8, the husband of P.W.4 has also stated that though they had asked her about the injuries she has sustained, she has not at all stated anything about the same.
Hence, even according to the case of the prosecution and P.W.4, P.W.8 and the neighbours who have attended the injured immediately after the incident when they have specifically asked about the injuries sustained, the deceased has not stated that it is the accused who poured kerosene on her and lit fire to her. No doubt the prosecution has treated these witnesses as hostile since nothing has been elicited from their side to support its case.
29. As per the post mortem report Ex.P23 the percentage of burns is 85-90% and as opined by the doctor, the cause of death is due to septicemic shock as a result of extension burn.
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In this regard the evidence of P.W.9, the Tahsildar of Virajpet taluk is relevant. According to him, he went to the hospital ward at about 1.30 p.m. on 17.10.2009 wherein the injured was admitted. When he asked questions to her, the injured has not responded to any of his questions and was not in a position to speak and he intimated the said fact to police by issuing a letter Ex.P15. The contents of the said letter and the oral evidence of P.W.9 clearly shows that deceased was not in a position to speak.
However, in this regard, it is the contention of the learned Addl. SPP that the dying declaration Ex.P21 was recorded much earlier i.e., at 2.15 a.m. on 17.10.2009 and at that moment deceased was in a position to speak. Even if it is accepted for the purpose of appreciation of the case of the prosecution, but as per the Full Bench decision of the Hon'ble Apex Court, mere fact that injured was in a position to speak is not sufficient unless there is material to show that she was having conscious and fit state of mind and was capable to give statement.
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Therefore, about all these aspects even P.W.16, the doctor who was present has not made a mention while the statement under Ex.P21 was recorded by the Police Officer. The endorsement made by the Doctor is only to the effect that injured was able to speak.
30. P.W.21, the ASI who said to have recorded the statement of the deceased has stated that deceased gave statement before him under Ex.P21 and accordingly, he has recorded the same. In this connection, learned counsel for the appellant submits that it is not in the form of dying declaration and nothing but 161 Cr.P.C. statement recorded by police during investigation. But so far as the form of dying declaration is concerned, there is no law requiring that the dying declaration should be in a particular form. If it inspires the confidence of the Court that really such statement was given by the injured before the persons who have been examined as witnesses, then the said statement can be accepted as dying
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declaration. But here the contention of the defence is that entire body of the injured was burnt including upper limbs and fingers of both hands. In this regard, when the investigating officer was asked during the course of cross-examination that the fingers were burnt, he has deposed that he has not observed these things. This assumes importance, since the investigating officer P.W.21 has deposed in his evidence that the thumb impression was obtained to the said document by one Suresh, Head Constable and he identified the same. When it was suggested that said Suresh has not at all obtained such impression, police have not examined said Suresh and as such, in this regard the evidence of P.W.21 appears to be unnatural and improbable. When he has recorded such a lengthy statement which runs to 2 pages under Ex.P21, he could have obtained the thumb impression and identified the same, but to that extent he has stated that thumb impression was taken by Suresh, Head Constable, but he has not been examined before the Court.
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31. When in the cross-examination of P.W.16, the doctor, a specific suggestion was made that as the left thumb of the injured was completely burnt, she was not in a position to put her thumb impression to the document Ex.P21, the witness has denied the said suggestion. But when it is the contention of the defence that the left thumb of the injured was completely burnt and when it is the case of the prosecution that still she has put her thumb impression on the document Ex.P21, prosecution ought to have examined the said Suresh, Head Constable before the Court. Because of the non- examination of the said witness, the accused has been deprived of the opportunity to cross-examine the said witness and to elicit correct information in that regard. Apart from that, by close scrutiny of Ex.P21, it could be seen that the ink used to write the time of recording the statement as 2.15 a.m. is totally different from the other parts of the document. The word 2.15 appears to be very thick compared to other
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writings in Ex.P21. This assumes importance since P.W.9 Tahsildar has deposed before the Court that injured was not in a position to speak and even other prosecution witnesses though have turned hostile have deposed that injured was not in a position to speak. Though it is contended by the learned Addl. SPP that the dying declaration Ex.P21 was recorded at the earliest point of time at 2.15 to 3.00 a.m., but the shade of the ink in so far as recording the timing is concerned raises doubt in the mind of the Court as to whether really at that time injured has given such statement. The doubts with regard to these important material aspects are not at all cleared by the prosecution by producing worth believable and acceptable material. The prosecution also has not produced the entire case sheet which could have made it clear to the Court as to when injured was taken to the hospital, at the first instance and what was the history furnished before the Doctor regarding the incident. We do not understand why the case sheet has not been produced before the Court and
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suppressed by the prosecution. The non-production of the entire case sheet also raises doubt in the mind of the Court and adverse inference will have to be drawn against the case of the prosecution that if the entire case sheet had been produced before the Court, the contents of it would have gone against the case of the prosecution.
32. Looking to the entire material including the prosecution evidence, none of the witnesses have deposed positively that at the time of incident the accused was also present in the house when the incident has taken place. The prosecution witnesses have not stated that when they rushed to the house of the injured after hearing cries and screaming of the injured they have seen the accused person in the house and on the other hand, it is the contention of the defence that accused was not at all present in the house at that point of time.
It is no doubt true that normally husband and wife would be present in the house at that time, but
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only on that basis and in the absence of positive evidence about his presence in the house when the incident has taken place, the presumption under Section 106 of the Indian Evidence Act regarding the burden on the accused person to explain the things cannot be made applicable. If it is admitted that accused was very much present in the house and if the said fact is established with the cogent and acceptable material, certainly it was the burden on the part of the accused to explain under what circumstances the incident has taken place. But the said principle cannot be applied here in view of our observation that there is no positive evidence with regard to presence of the accused in the house on that day.
33. Considering all these aspects of the matter we are of the opinion that the evidence of P.W.16, the Doctor and P.W.21, the Police Officer, will not inspire confidence in the mind of the Court that the deceased was really capable to speak and has really given the
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statement under Ex.P21 and reasonable doubt arises in the mind of the Court, the benefit of which, shall have to be given to the accused person. These aspects are not at all properly considered and appreciated by the learned Sessions Judge and he has wrongly come to the conclusion in accepting the material placed by the prosecution, in spite of all the infirmities in the evidence.
34. Accordingly, appeal is allowed. The judgment and order of conviction passed and sentence imposed by the learned II Additional District and Sessions Judge, Madikeri sitting at Virajpet, in S.C.No.12/2010 against the appellant-accused is hereby set aside. Appellant-accused is acquitted of the offence under Section 302 of IPC.
Registry is directed to send the copy of this order to the concerned prison authorities immediately.
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The concerned prison authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE AP/BKP