Karnataka High Court
Smt Shashirekha vs The State Of Karnataka on 9 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1797
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CRL.A. NO.998/2014
BETWEEN:
SMT. SHASHIREKHA
W/O LATE UDAYKUMAR
AGED ABOUT 27 YEARS
HALOW BLOCK SHED
NATARAJA LAYOUT
J.P. NAGAR, 7TH PHASE
BANGALORE - 560 028.
...APPELLANT
(BY SRI. ROBIN CHRISTOPHER, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY HULIMAVU
POLICE STATION
BANGALORE - 560 026.
...RESPONDENT
(BY SRI. VIJAY KUMAR MAJAGE, SPL.P.P.)
THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE CONVICTION ORDER AND
SENTENCE DATED 12.9.2014, PASSED BY THE PRESIDING
OFFICER, FTC-XV, BANGALORE, IN S.C.NO.310/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 302 OF IPC.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been preferred by the sole accused challenging the judgment of conviction and order of sentence dated 12.09.2014 in S.C.No.310/2013 passed by the Presiding Officer, FTC-XV, Bengaluru City convicting her for the offence punishable under Section 302 IPC and sentencing her to undergo life imprisonment and to pay a fine of Rs.3000/-.
2. Brief Facts leading to filing of this appeal are as under:
It is the case of the prosecution that accused is the wife of the deceased Sri K.Udaykumar and she was living with her husband and their 5 year old son -
Rangaswamy at a shed in site No.98/2, Nataraja Layout, Kothnur, J.P.Nagar 7th Phase belonging to one Mr.Raviraj, which is under Hulimavu Police station jurisdiction. Her deceased husband Sri K Udaykumar was consuming alcohol everyday and was not providing 3 any money to run the family to the accused. He was beating the accused and doing galata, because of which, accused had developed vengeance towards her husband and on 19.11.2012 at about 9.00 p.m. in the night when he came drunk and started abusing and assaulting the accused, she is said to have assaulted her husband Sri K Udaykumar on his head by a wooden pestle and committed his murder.
3. Prosecution, in order to drive home the guilt of the accused, examined in all 11 witnesses as P.Ws.1 to 11 and got marked material objects M.Os.1 to 5. After examination of the prosecution witnesses, statement of the accused under Section 313 Cr.P.C. came to be recorded. Accused did not chose to lead any evidence. After hearing the arguments of the prosecution as well as learned Advocate appearing for the defence and on appreciation of material evidence placed on record, learned Sessions Judge arrived at a conclusion that prosecution had proved its case beyond reasonable doubt and convicted the accused for the offence 4 punishable under Section 302 IPC and sentenced her to undergo imprisonment for life and to pay a fine of Rs.3,000/-. Hence, this appeal.
4. We have heard Sri Robin Christopher, learned Advocate appearing for appellant - accused and Sri Vijayakumar S Majage, learned Addl.SPP appearing for respondent-State. Perused the records.
5. Learned Advocate appearing for appellant has contended that there are no eye witness to the crime and witnesses - P.Ws.1, 2, 3 and 9 have turned hostile and trial court has convicted the appellant solely based on circumstantial evidence, which do not link the accused to the crime. Though learned Advocate has contended strenuously for acquittal of appellant on merits of the case, he has also alleged that even accepting the entire case of the prosecution, the offence alleged against accused would fall under Section 304 (II) IPC and it does not attract Section 302 IPC. Hence, he contends that learned trial Judge committed a serious error in convicting the appellant for the offence 5 punishable under Section 302 IPC. He further submits that learned trial Judge has mechanically considered material on record and failed to assign proper reasons for convicting the appellant.
5(i) He would further submit that appellant is in judicial custody for more than 5 years 11 months and if Court comes to the conclusion that appellant has committed the offence alleged, case would fall under Section 304 (II) IPC i.e., culpable homicide not amounting to murder and in such an event, he requests the Court to reduce the sentence and convict the accused only for the offence punishable under Section 304 (II) IPC by allowing the appeal accordingly.
6. Per contra, learned Additional SPP has supported the impugned judgment and has submitted that burden is on the appellant to prove the circumstances under which her husband had sustained injuries. He submits that P.Ws.2 and 9 are eye witnesses and trial court after considering the entire material evidence placed on record by the prosecution, 6 has rightly convicted the appellant for the offence punishable under Section 302 IPC. Hence, he prays for dismissal of the appeal.
7. We have carefully considered the submissions made at the bar, perused the records and re-evaluated the entire evidence on record. We are of the considered view that following points would arise for our consideration:
"(1) Whether the judgment of
conviction and order of sentence
imposed on the appellant/accused by Sessions Judge in S.C.No.310/2013 is to be sustained, set aside or modified?
OR Whether learned Sessions Judge has appreciated the available evidence to convict the appellant/accused in S.C.No.310/2013?
(2) What order?"
8. P.W.1 filed a complaint on 19.11.2012 before Hulimavu police station alleging that accused had 7 confessed to him for having murdered her husband with a pestle and as such he sought for steps being taken against accused. Based on said complaint FIR came to be registered in Crime No.554/2012 for the offence punishable under Section 302 IPC against accused. Complainant came to be examined as P.W.1. He has deposed that 10 months prior to the date of his deposition namely, in the month of October or November-2012, while he was returning to his house on his motorbike, he had received a phone-message from his friend when he had reached Nataraja Layout, J.P.Nagar 7th Phase, informing him that a lady holding a child was crying. Hence, complainant and his friend is said to have proceeded to Nataraja Layout and found a lady standing with a child and crying. Hence, they are said to have enquired with her as to what had happened and as to why she was crying. According to P.W.1 accused appeared to be in a state of shock and did not reply properly. She was about 25 years and the child was about 4 to 5 years. She is said to have informed the complainant and his friend that she had quarreled with 8 her husband and he is injured. Hence, complainant is said to have called the police and informed them before proceeding to her house/shed. The lady is said to have taken him to the spot. However, P.W.1 has deposed in the cross-examination that he is not in a position to recognize the accused properly as the incident occurred about 8 to 9 months back. He has also deposed that accused present in the court hall might be the same lady he had seen at the scene of crime. P.W.1 has further deposed that, lady took him to a shed where they found one person had fallen and at that point of time, police came and found a person who had fallen and injured, was dead. The dead body was taken by the police to the hospital. Next day, the police called him to the police station and took his signature. P.W.1 has identified his signature found in the complaint -Ex.P-1 as Ex.P-1(a). He has further deposed that on same day after midnight, police had drawn mahazar as per Ex.P-2 and he has identified his signature on the mahazar as per Ex.P-2(a). However, he has deposed that he does not remember what police had collected from the scene of crime. He 9 further deposes that he does not know the contents of mahazar-Ex.P-2 and at that juncture, P.W.1 has been treated hostile by the prosecution and has been cross- examined. In the cross-examination, P.W.1 has deposed that police took his signature on the spot and also the next day in the police station. But, he denies knowledge as to other aspects including seizure of M.Os.1 to 5 and the events stated by him in the complaint. He has failed to identify the accused present in the court as the same person having seen by him at the shed. He has denied having signed Ex.P.2.
9. P.W.2 - Sri Hemagiri - neighbour of the accused and deceased who came to be examined by the prosecution has turned hostile and has been cross- examined by prosecution. It is elucidated from P.W.2 that accused and her husband along with a child were living opposite to his shed. He has deposed that name of the accused must be Smt.Shashikala and name of her husband is Sri Uday and he is dead. He has deposed that about one year back between 10.00 p.m. to 10 10.45 p.m. police came to his shed and woke him up and when he went near the shed of the deceased he had seen Sri.Uday Kumar was lying dead in the pool of blood. He admitted police have taken his signature to the spot mahazar- Ex.P.2 as per Ex.P-2(b). He pleads ignorance about seizure of articles and the mahazar. He has also admitted deceased-Uday was an alcoholic and was quarrelling with the accused quite often. In the cross examination, he states he had seen once deceased beating his wife. He has denied seizure of MO's 1 to 3 in his presence.
10. P.W.3 is the father of the deceased. He has spoken about the death of his son and having cremated his body. Nothing has been elucidated in his cross examination.
11. P.W.4 is the police constable from Hulimavu Police station and he has deposed that after Post Mortem of deceased came to be conducted, he had handed over the dead body to the relatives of the deceased. 11
12. P.W.5 is an Officer working in Forensic Science Laboratory, Madiwala. He has deposed that he had examined the five (5) M.Os. marked in the instant case. He has further deposed that on examination of these material objects he had found blood stains on M.Os.1, 3, 4 and 5 and it was human blood of Group-A. He has identified said M.Os. including M.O.3 which is a wooden pestle. Report submitted by P.W.5 came to be marked as Ex.P.10.
13. P.W.6 is the Doctor who conducted the post mortem examination of deceased Sri Uday Kumar and she has submitted postmortem report as per Ex.P.6. She has identified M.O.3 and referred to it in her report- Ex.P.7 that injuries 1 to 3 found on the dead body can be possible by M.O.3. She is of the opinion that death was due to injuries sustained on head and not for any other reason. She was cross examined and nothing worthwhile has been elucidated to discard her testimony. She has categorically denied suggestions that injuries found on the deceased may occur if a person consumes 12 liquor and falls down on a stone by force. The statement of P.W.6 clearly supports the case of prosecution that death was due to assault.
14. P.W.7 is the head constable from Hulimavu police station. He has spoken about registration of FIR and having submitted the same to the court.
15. P.W.8 is the PSI of Hulimavu police station, he states that while he was policing in his jurisdiction on the night of 19.11.2012, at about 11.15 p.m. CW-14 asked him to come to the scene of crime where body of the deceased was lying and accordingly he went to the scene of crime where CW-14 handed over a complaint and asked him to handover to the station house officer for registering the complaint and he did the same.
16. P.W.9 is the wife of P.W.2 and neighbour of the accused and the deceased. She has identified the accused as the wife of the deceased. However, she pleads ignorance about the cause of death of appellant's husband and she has further deposed that she does not 13 know how he died and she came to know of it from the police. She has been treated as hostile witness by the prosecution and has been cross examined. However, nothing worthwhile has been elicited from her. She has denied the entire case of prosecution.
17. P.W.10 is the Investigation Officer. He has deposed about the manner in which investigation came to be conducted. He has deposed that on receiving wireless information about the incident, he had proceeded to the spot and found that deceased was lying in a pool of blood and had sustained injuries to his head. He also found P.W.1, accused and her five year old child at the spot and the complainant. He is said to have got the complaint written as per statement made by Bharath Kumar i.e. P.W.1 and has identified the complaint as Ex.P-1 and his signature at Ex.P1(c).
He has further deposed that he arrested the accused during course of investigation and inspected the scene of crime in the presence of P.W.2 and P.W.9 and had seized MOs 1 to 5 and obtained the signatures of 14 the panchas. He has identified panch mahazar Ex.P.2. He has further deposed that he had recorded the statements of PWs 2 and 9, who are neighbours of the deceased and accused as per Ex.P.3 and P.12 respectively.
He has identified the post mortem report -Ex.P.4. He also recorded the voluntary statement of the accused under Section 161 of Cr.P.C.
He also seized wooden pestle which is marked as M.O.3 at the instance of accused and has spoken about sending MOs 1 to 5 to FSL, shifting the dead body and conducting the investigation.
18. P.W.11 is a formal witness who has received articles -MOs 1 to 5 from investigation officer and transmitted them to FSL for the purposes of examination by experts.
19. Based on the aforesaid evidence, trial Court was of the view that prosecution had placed sufficient material and held prosecution had proved its case beyond all reasonable doubt, insofar as the accused is 15 concerned and as such, convicted the accused for the offence punishable under Section 302 of IPC and sentenced her to undergo imprisonment for life.
20. Evidence on record would disclose that on account of accused being the wife of deceased had been at the receiving end namely, she had been physically assaulted on several occasions by her deceased husband on account of her objections for deceased consuming alcohol and not taking care of the family namely, wife and son. It is specific the case of the prosecution that deceased despite warnings given by the accused, was in the habit of assaulting the accused and on account of his conduct, accused had decided or made up her mind to commit the murder of her husband so that she could live in peace along with her only son. It is relevant to observe at this juncture that P.W.1 has deposed that on the relevant date while he was proceeding to his house at about 10.30 p.m. on his motorbike, he had received a message on his mobile phone from his friend about a lady standing along with her child and was crying on the 16 route where P.W.1 was proceeding and as such, P.W.1 claims that he and his friend proceeded to J.P.Nagar 7th Phase, Nataraja Layout and had found accused was standing on the road holding her child and she was crying. However, so called friend who messaged P.W.1 has not been examined. Call details of P.W.1 is also not produced or marked. As to the manner in which friend of P.W.1 came to know about accused was standing on the road and crying has not been explained by the prosecution. In fact P.W.1 was not sure about the identity of the lady whom he saw on the date of incident being the same lady who was present in the Court. He has also denied seizure of MOs 1 to 5 under Ex.P.2.
21. P.Ws.2 and 9 - husband and wife who are said to be the neighbours of the deceased and accused, though have turned hostile, it is elicited in their cross examination that they are neighbours of accused and deceased. P.W.2 has specifically stated in his cross examination that deceased had assaulted the accused at 17 one point of time. His admission in that regard reads as under:
"GzÀAiÀiï PÀĪÀiÁgÀ£ÀÄ ¥Àæw¤vÀå
ªÀÄzÀå¥Á£À ªÀiÁrPÉÆAqÀÄ DvÀ£À ºÉAqÀw
±À²gÉÃSÁ¼À ªÉÄÃ¯É UÀ¯ÁmÉ ªÀiÁr ¤vÀåªÀÇ ºÉÆqÉAiÀÄÄwÛzÀÝ£ÀÄ C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. GzÀAiÀiï PÀĪÀiÁgÀ¤UÉ 2-3 ¨Áj §Ä¢Ý ºÉýzÀÄÝ £ÀqÀªÀ½PÉAiÀÄ£ÀÄß §zÀ¯Á¬Ä¹PÉƼÀîzÉà ªÀÄzÀå¥Á£À ªÀiÁrPÉÆAqÀÄ §AzÀÄ ªÀiÁªÀÄÆ°£ÀAvÉ UÀ¯ÁmÉ ªÀiÁr ºÉAqÀwUÉ ºÉÆqÉAiÀÄÄwÛzÀÝ£ÀÄ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ MªÉÄä UÀ¯ÁmÉ ªÀiÁr ºÉÆqÉAiÀÄÄwÛzÀÝ£ÀÄ JAzÀÄ ºÉýgÀÄvÁÛgÉ."
(emphasis supplied by us) This evidence would establish that deceased was the husband of accused and they were residing in a shed nearby to the place where P.Ws.2 and 9 were residing and deceased had consumed alcohol and had assaulted the accused at one point of time.
22. The chain of events would indicate that accused had taken P.W.1 to the shed where deceased was lying in a pool of blood with injuries to his head. P.W.1 has admitted in his examination-in-chief to have affixed his signature to the seizure mahazar - Ex.P-2 as per Ex.P.2(a) whereunder pestle - M.O.3 had been seized 18 by P.W.10. Said wooden pestle had traces of human blood of Group-A as deposed by FSL Official - P.W.5.
23. The facts on hand would disclose that accused and deceased were husband and wife and living together in a shed at Nataraja layout, Kothnur, J.P.Nagar 7th Phase, Bengaluru and only other persons who were residing in the said vicinity was P.Ws.2 and 9. Even P.W.2 has deposed that there were quarrels between accused and the deceased and particularly when deceased used to consume alcohol, he was assaulting the accused. Thus, relationship between accused and deceased has been established and the fact that deceased was lying in a pool of blood when P.W.1 came to the spot on 19.11.2012 is also established. In other words, dead body of the deceased found in the shed where deceased lived along with accused and their son had been established by the prosecution. Hence, Section 106 of the Indian Evidence Act would come into play namely, when any fact is specially within the knowledge of any person, burden of proving the fact is upon such 19 person. Accused and her 5 year old child were the only persons who lived with the deceased in the shed. The body of Mr.Uday namely, husband of the accused was found in the shed in which he was residing with the accused and this fact has been established by the prosecution. Deceased had sustained injuries to the vital part of his body namely, 'head' as found in the postmortem report - Ex.P-6. Thus, it is incumbent upon the accused to explain the circumstances under which deceased had sustained injuries. In the instant case, accused has not explained the same or had failed to explain the circumstances under which deceased had sustained injuries and the cause or reason for his death. In other words, the onus shifted on the appellant to explain the circumstances and the manner in which deceased met a homicidal death in the house of the accused, which was a fact specifically and exclusively within her knowledge and she had not explained the same. It is not the case of the appellant that there had been an intruder in the house at night. Where the evidence is of a circumstantial nature, the circumstances 20 from which the conclusion of the guilt is to be drawn should in the first instance be fully established by the prosecution 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 conclusive nature and to exclude every hypothesis but one the proposed to be proved. In other words, there must be a chain of evidence so far as complete and not to leave any reasonable ground for conclusion consistent with the emotions of the accused and it must be such as to show that with all human probability the act must have been done by the accused.
24. It is no doubt true that burden of proving the guilt of the accused is always on the prosecution and prosecution is required to prove the same beyond reasonable doubt. In the instant case, circumstantial evidence namely motive and conduct of the accused shows that accused is the wife of the deceased and she had failed to explain the circumstances in which her husband had died. The pestle - M.O.3 which prosecution 21 alleged was used by the accused to assault the deceased also indicate presence of human blood. Hence, it was for the accused to have explained as to how such blood was found on the pestle - M.O.3 as per the mandate of Section 106 of Indian Evidence Act. In fact, accused had failed to do so. In PHULA SINGH vs STATE OF H.P reported in (2014)2 SCC (Cri) 232, it has been held by the Hon'ble Apex Court:
"
"The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw interference, including such adverse inference against the accused as may be permissible in accordance with law."
25. The circumstances under which deceased was lying in a pool of blood has also not been explained by the accused. In the statement recorded by Sessions 22 Court under Section 313 Cr.P.C. the incriminating evidence found and relied upon by the prosecution was brought to the notice of accused. She has failed to explain the circumstances under which her husband had sustained injuries or the circumstances under which he was lying in a pool of blood.
26. In the instant case, the appellant does not deny her presence at the scene of crime (the house where deceased and accused lived). Except the appellant and her child, no other persons were present at the scene of crime and she was the inmate of the house where the offence is committed in secrecy inside the 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 prosecution to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparatively lighter in character. In view of Section 106 of Evidence Act, there will be corresponding burden 23 on the inmates of the house to give cogent explanation as to how crime was committed.
27. As observed herein above, appellant being the only inmate of the house, did not offer any explanation as to how the incident took place. Further she has not explained in her statement recorded under Section 313 of Cr.P.C the circumstances in which deceased had sustained injuries except denying every question by answering 'do not know' or 'false'. It is the duty of the accused to furnish an explanation in her statement recorded under Section 313 Cr.P.C. regarding incriminating material that has been produced against her. Accused has been given freedom to remain silent during the investigation, as well as before the Court, then, the appellant/accused may choose to maintain silence or even deny entire prosecution case. In the present case, as observed above, the appellant in her statement under Section 313 Cr.P.C except saying 'false' and 'do not know', has not explained how the incident took place or who had committed the offence (if known) 24 or the reason for her husband sustaining head injury and lying in a pool of blood. In such circumstances, we will have to draw an adverse inference against the appellant for not furnishing the explanation in her statement recorded under Section 313 of Cr.P.C.
28. Where an accused is alleged to have committed the murder of her husband and the prosecution succeeded in leading the evidence to show that shortly before the commission of crime, they were seen together and the offence had taken place in the house where husband and wife normally resides, then, it is for the accused to explain. For this proposition, we place reliance on the judgment of the Apex Court in TRIMUKH MAROTI KIRKAN V. STATE OF MAHARASHTRA reported in (2006) 10 SCC 681 wherein it came to be held:
"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 25 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 Prosecution quotend with approval by Arijit Pasayat, J. in State of Punjab vs. 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 traveling 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 26 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 placed 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. In Nika Ram v. State of Himachal Pradesh. it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the 27 appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
29. Aforesaid view came to be reiterated by the Apex Court in KALU ALIAS LAXMINARAYAN V. 28 STATE OF MADHYA PRADESH reported in (2019) 10 SCC 411 wherein in paragraph 16 it is held as under :
"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 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 assistant of the deceased."
Hence, finding of the learned Sessions Judge that P.W.1 was present at the spot had been proved by the prosecution, in the light of P.W.1 having partially admitted the contents of the statement made before police, as well as signature found on Exs.P-1 and P-2 is a well reasoned finding not calling for interference. The evidence of P.W.2 would also indicate there are only two (2) sheds namely, one belonging to the deceased and another belonging to P.W.2. This evidence would also disclose that accused was living with the deceased and deceased was in the habit of consuming liquor and 29 picking-up quarrel with his wife ending in assault on the accused. The admission of P.W.2 would prove the relationship between accused and deceased was strained and except these two sheds no other shed or house being located in that area. Thus, admission of P.W.2 would go to prove that absolutely there is no chance for others who could have access to the house of deceased. Presence of P.W.1 & P.W.2 along with Investigating Officer at the scene of crime is not in dispute. P.W.1 & P.W.2 have admitted to have affixed their signatures to seizure Mahazar- Ex.P.2. Thus, from evidence on record, it would emerge that:
(i) dead body was found in the house/shed where deceased and accused were living with their son aged 5 years;
(ii) except the shed of P.W.2, there was no other shed or house in the vicinity and there was no access to the shed of the deceased by others;
(iii) Complainant (P.W.1) and neighbour (P.W.2) have admitted their signature to seizure 30 (MO's 1 to 3) panchanama and recovery is thus proved.
(iv) Blood stains found on M.Os.1, 3 to 5 were 'A' blood group and M.Os.4 & 5 were the clothes worn by the deceased.
Thus, prosecution has been able to prove that offence was committed by appellant/accused only and finding recorded by the learned Sessions Judge in this regard at paragraph 26 is well reasoned finding and same would not call for our interference.
30. The next question which would arise for our consideration is:
"Whether accused had intentionally committed the murder with pre-
meditated mind?"
and same requires to be examined in the background of material evidence available on record.
31. Even according to the statement of the accused recorded under Section 161 Cr.P.C., she had assaulted the deceased by using pestle - M.O.3 and it 31 was on account of the fact that deceased used to beat the accused after consuming liquor and this was regular feature. It is the specific case of the prosecution that on that particular day, she got enraged due to similar act committed by the deceased and as such, she had assaulted the deceased in a heat of passion. However, there should be foundation laid in the evidence of the witness to show as to what exactly happened on that particular day at the time of incident and the nature of fight which took place between accused and the deceased and what all the abusive words were used either by the accused or deceased in order to draw an inference that accused in a heat of passion, had got enraged due to the act of the deceased and same being the reason for the resultant incident. In the absence of any such material on record, we cannot arrive at a conclusion that accused without any pre-meditation but only due to enragement had committed such act so as to bring about the offence under exception to Section 300 IPC particularly, under Part I of Section 304 IPC. 32
32. The evidence of the Doctor P.W.6 would indicate about she having deposed with regard to the injuries sustained by the deceased. She has deposed that she had found following external injuries:
"(1) split laceration, transverse measuring 5cm x 2 cm x bone deep present over Left Parital region, 6 cms above the Left Ear.
(2) Laceration measuring 3 cm x 1 cm x bone deep present 3 cms below Left lower Eyelid at its Lateral aspected and transversely placed.
(3) Laceration, transverse measuring 2 x 0.5 cms x muscle deep present over lateral part of Left upper Eyelid.
(4) Left black Eye present."
33. There cannot be a universal principle that whenever death is on account of a single blow, the offence is one under Section 304 and not under Section 302 of IPC.
34. In this regard, judgment of the Hon'ble Supreme Court in the case of THOLAN V. STATE OF TAMILNADU reported in 1984(2) SCC 133 can be looked into. In the said case, accused stood in front of 33 house of deceased and used foul language against some persons (who are unconnected with deceased). Deceased came out of his house and informed the accused that he should not use vulgar and foul language in front of ladies and asked him to go away. Accused questioned the authority of deceased to ask him to leave the place. In the altercation that ensued, accused gave one blow with a knife which landed on right chest of deceased which proved to be fatal. The Apex court arrived at a conclusion that accused could not be convicted under Section 302 of IPC but was guilty under Section 304 Part II of IPC. Circumstances which weighed with the Court for convicting under Section 304(1) of IPC were :
1) There was no connection whatsoever between accused and deceased and presence of the deceased at the time of incident was wholly accidental;
2) Altercation with deceased was in the spur of the moment and accused gave a single blow being enraged by the words of deceased asking accused to leave the place;34
3) Requisite intention could not be attributed to the accused as there was nothing to show that accused intended the blow to land on right side of the chest which proved to be fatal.
35. In instant case, prosecution has contended that on account of deceased assaulting or beating his wife everyday, she was fed up and as such she wanted to take away the life of the deceased and with this motive, she had assaulted the deceased with pestle - M.O.3 and killed him.
36. This cannot be construed as motive in the facts and circumstances of instant case particularly, when evidence on record would clearly indicate there were such altercations between husband and wife even on earlier occasions and these incidences were not uncommon between them. However, on the fateful day i.e., on 19.11.2012, the deceased is said to have assaulted his wife viz. the accused who had questioned him as to why he was indulging in such acts which did not deter the deceased from assaulting the accused and 35 being enraged by this act, accused had assaulted on the head of the deceased by the wooden pestle-M.O.3. Entire evidence of P.Ws 2, 3 and 9 when read together including spot mahazar - Ex.P-3, it would disclose that alleged wooden pestle-M.O.3 was inside the shed where deceased was living. Being enraged on account of deceased assaulting her, she is said to have picked up the wooden pestle (M.O.3), which she thought would be the best weapon to assault her husband so as to prevent him from repeating his acts, and in that spur of the moment, without an intent of causing his death, she has heaped blows on his head and without any premeditation, she had assaulted the unarmed deceased and it was solely on account of quarrel that ensued between them. When tempers run high and in the heat of passion or moment, such reactions would not be uncommon.
37. In this regard the judgments of the Apex court in the case of LAXMAN KALU NIKALJE VS. STATE OF MAHARAHTRA reported in AIR 1968 SC 36 1390; RANDHIR SINGH VS. STATE OF PUNJAB reported in AIR 1982 SC 55 and BAGDI RAM VS. STATE OF M.P. (2004) 12 SCC 302 can be looked up.
38. The intention has to be gathered from the facts and circumstances of each case and there cannot be any straight jacket formula which can be prescribed as to whether a solitary blow on a vital part of body resulting in death must always necessarily reduce the offence either to murder or to hold that it is culpable homicide not amounting to murder punishable under Section 304 part II of the Code.
39. In VIRSA SINGH VS. STATE OF PUNJAB reported in AIR 1958 SC 465, the Hon'ble Apex court has held that prosecution must prove the following facts before it can bring a case under Section 300 "thirdly", "first, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
37Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause and injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of 38 nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
40. Hence, this Court will have to proceed to decide the question of intention with utmost care and caution as that will decide whether the case falls under Sections 302, 304 Part I or 304 Part II of IPC.
41. The Hon'ble Apex Court in the case of PULICHERLA NAGARAJU @ NAGARAJA REDDY VS. STATE OF A.P. reported in (2006) 11 SCC 444 has held:
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally 39 absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section
302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre- meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."40
42. As observed herein above, on 19.11.2012 the deceased had assaulted his wife i.e. accused for questioning him for his acts. The accused being enraged by the act of her husband namely, continuously assaulting her had hit the deceased with the wooden pestle - M.O.3 lying in the house by assaulting the deceased on his head repeatedly to prevent him from assaulting her further. The said act was committed under the influence of extreme mental stress or emotional disturbance. She had no premeditation to commit said act and she had not carried the pestle - M.O.3 with a pre-conceived idea to do away with the life of her husband nor she had any pre-conceived notion to take away the life of her husband. On the other hand, she had picked M.O.3 found in their shed instantaneously to assault her deceased husband so that he would stop from assaulting her. This can be terms as a knee-jerk reaction of the accused.
43. Though prosecution has proved the homicidal death as could be seen from the entire material on 41 record, there is evidence on record to show there was no premeditation or intention on the part of accused to take away the life of her husband. There was no animosity between the accused and the deceased. When there is no such animosity, intention to cause the death of her husband cannot be inferred. The circumstances under which the alleged incident had taken place, would definitely fall under Part II of Section 304 IPC.
44. We are of the considered opinion that accused was not having any intention or premeditation to cause the death of her husband. While convicting the accused/appellant the trial Court has failed to appreciate this aspect in its right perspective. Under such circumstances, we hold that the prosecution had failed to prove that accused had any motive like revenge to murder her husband and the one propounded is too remote to be accepted. Accused was not having any intention or premeditation or had done any preparation to cause the death of her husband. The act of the accused was preceded by a quarrel between the deceased 42 and the accused, and it is probable that quarrel might have reached the climax and the accused would have lost her temper and in the heat of passion, she might have assaulted the deceased in the spur of the moment.
45. Therefore, looking to the facts of the case on hand, the act of the accused would fall under Exception IV of Section 300 of IPC which says that the culpable homicide is not a murder, which is committed without premeditation. In a sudden fight in the heat of passion, upon a sudden quarrel, if the offender does not take any undue advantage or act in a cruel or unusual manner, it cannot be said that in an unusual manner the accused had acted upon. The evidence on record reveals that there was no intention on the part of accused to cause death of her husband and it was sudden fight between accused and the deceased, perhaps due to heat of passion, the accused might have assaulted the deceased.
46. Therefore, we are of the considered view that offence would fall under Section 304 Part II of IPC and it is very difficult to conclude that it would fall under 302 43 IPC. Therefore, the said benefit of doubt deserves to be extended in favour of the accused/appellant. At this juncture, it is submitted by both sides that accused has been arrested on 20.11.2012 and till today, she is in custody.
47. In view of the said submission made at the Bar, it is clear that the accused is in custody since nearly 6 years 2 months 23 days as on date. Hence, it is just and proper to convict the accused/appellant for the offence punishable under Section 304 Part II of IPC instead of 302 of IPC and sentence her to undergo imprisonment which she has already undergone.
Accordingly, we proceed to pass the following :
JUDGMENT
1) The Criminal Appeal is allowed in part;
2) The judgment of conviction and sentence passed by the FTC-XV Bengaluru City dated 12.09.2014 in S.C.No.310/2013 for the offence punishable under Section 302 IPC against accused is hereby set aside.44
3) Appellant - accused is convicted for the offence punishable under Section 304 (II) IPC and sentenced her to undergo imprisonment for 6 years 2 months and 23 days and also sentenced to pay fine of Rs.5,000/- , in default, to undergo simple imprisonment for six months.
4) Since appellant has already undergone imprisonment for 6 years 2 months and 23 days, she is ordered to be released from custody immediately after she deposits the fine amount and if not required in any other case.
5) The Registry is directed to send a copy of this order to the concerned Jail Superintendant for release of the appellant immediately after she depositing the aforesaid fine amount and if she is not required in any other case.
SD/-
JUDGE SD/-
JUDGE *sp