Karnataka High Court
Thimmegowda vs The State Of Karnataka on 27 January, 2018
Bench: Aravind Kumar, R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY 2018
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1296/2012
BETWEEN:
Thimmegowda
S/o Late Thimmegowda
@ Annegowda
Aged 45 years
R/o Sabbathi Village
Konanuru Hobli
Arakalgud Taluk-573 102. .. APPELLANT
(By Sri. B S Prasad, Adv.)
AND:
The State of Karnataka
By Konanur Police Station
Represented by
State Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri. Vijayakumar Majage, Addl. S.P.P.)
2
This criminal appeal is filed under Section 374(2)
CR.P.C. praying to set aside the judgment and order of
conviction dated 22.05.2009 passed by the P.O., F.T.C.-III,
Hassan in S.C.No.110/2007 - convicting the
appellant/accused for the offence punishable under Section
302 of IPC and etc.
This Criminal Appeal coming on for hearing this day,
Budihal R.B., J., delivered the following:
JUDGMENT
This appeal is preferred by appellant - accused challenging the correctness and legality of judgment and order of conviction passed by the Fast Track Court-III and Additional Sessions Judge, Hassan in S.C. No.110/2007 on 22.05.2009 whereunder appellant- accused has been convicted for the offence punishable under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of `2,500/- in default, further imprisonment for six months.
2. Brief facts of the case of prosecution as per the averments made in complaint (Ex.P.14) are that, P.W.16- 3 Krishnegowda (complainant), who is the son of appellant-accused has stated that he is residing along with his parents. Himself and his sister Rekha (Kulli) are the children to their parents. His sister studied upto 8th standard and then she discontinued her studies. She was aged 16 years and he was aged 18 years studying in I year B.A. degree course at B.M. Shetty college, Konanur. Along with studies, he was also doing coolie work. His father's village was Akkalwadi. But, about 10 years back, his father shifted his family to Sabbatthi and there he purchased some lands and constructed house. For this, he sold ancestral landed properly at Akkalawadi. The complainant has further stated that his father was addicted to consuming alcohol and because of that reason, his father sold the landed properties. For the maintenance of the family, it was necessary for the complainant, his mother and his sister to do coolie work. Only landed property of about 1½ acre which was nearer to their house property was the 4 only property left for their family. The father of complainant by doing coolie work was using the amount for his vices and he was not giving it for family. Even his father was insisting the mother of the complainant and his sister to give their earnings from coolie work for said purpose. The complainant has also stated in the complaint that referring to his mother, appellant- accused was telling her that from the time she had entered his house was not auspicious and because of her entry into their family, he started selling landed property and so also house property, one after the other. Even his father had gone to extent of making an allegation against his mother that she was having illicit relationship with another person at the place where she was doing coolie work and picking up quarrel telling that she was carrying on prostitution and earning amount. Seeing appellant-accused abusing his mother and his sister, the complainant was also quarrelling with his father-the appellant herein. The appellant was abusing 5 them by using filthy words and he was telling that he would commit murder of both of them and then go to jail. The complainant was consoling his father-appellant and sometimes, he used to advise him because they were afraid of him. On 18.2.2007, from morning, the complainant, his father, his mother and his sister were in the house. His father was going nearby the gate and returning back and he was moving around the landed property. Even at 2.00 p.m. also, he picked up quarrel asking mother and sister of the complainant to give amount for his expenses and he abused them by using abusive words. The complainant advised him. At about 4.00 p.m. on that day, the complainant went to attend work nearby brick house of Gerukuppe Channegowda to prepare the thrashing floor. But he did not return to house during night. Normally, he used to sleep in brick house of Channegowda. Even on date of incident, during night after having dinner, he slept there itself. On 19.2.2007, he woke up late, as he was working till 6 1.00 O'clock late night. At 8.30 a.m., when he woke up, he came home as usual, and the front door was locked. He thought that his mother and his sister might have gone to wash clothes. He came on back side of house and after washing his face, he peeped through window of the house. He saw that his mother and his sister were lying on the floor. After seeing the same, he also noticed that they were lying in the pool of blood. He became perplexed and started to scream using the words 'avva, avva' and 'kulli, kulli'. They did not talk to him. He moved towards front side of the house and called one Ashok who was proceeding on the road. He also came and on seeing them, called them as Rajammakka and Kulli. Even at that time, his mother, his sister did not speak. They came to know that they were murdered. Then they informed to the village people and the same was informed to the police also. The complainant was informed by the villagers to immediately go to police station and accordingly, he lodged the complaint stating 7 that his father-appellant has murdered his mother and his sister on the ill will that they were not giving him money for his expenses. The complainant has also stated that suspecting fidelity of his mother, and also saying that her entry into their house was not auspicious, his father-appellant herein has committed the murder of both his mother and sister with a sharp weapon during the night of 18.2.2007 when they were sleeping in the house. After putting lock to front door, his father- appellant had absconded from there. Accordingly, he requested police to take appropriate action against appellant-accused. On the basis of said complaint, case came to be registered for offence punishable under Section 302 of IPC in crime No.24/2007.
3. After completion of investigation, investigating officer has also filed charge sheet against appellant- accused for the offence punishable under Section 302 of IPC. After taking cognizance of the offence, learned 8 Sessions Judge, framed charge as against appellant- accused and when it was read over and explained to him, appellant-accused pleaded not guilty and claimed to be tried. Accordingly, the matter was posted for trial. After trial, as appellant-accused came to be convicted by the learned Sessions Judge, he is before this Court challenging the legality and correctness of the judgment and order of conviction on the grounds as mentioned at ground Nos.1 to 18 of the appeal memorandum.
4. We have heard the arguments of Sri B.S. Prasad, learned Counsel appearing for appellant-accused and Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor for respondent-State. We have perused the entire records secured from the Court below.
5. Learned Counsel appearing for appellant- accused during the course of arguments has contended that accused was not at all present in the house, during night, on the date of incident and by submitting as such, 9 he raised the plea of alibi; he has contended that none of the witnesses have supported the case of prosecution even including the complainant; perusal of prosecution materials, there is no sufficient and cogent material to connect the appellant-accused with the alleged offence; it is also the submission of the learned counsel for the appellant that there is no direct witnesses to the incident. The case of prosecution totally rests on circumstantial evidence. Even with regard to circumstances said to have been collected by the prosecution, learned Counsel has made a submission that extra judicial confession said to have been made by appellant-accused before P.W.29, there is total inconsistency regarding the actual day on which he sought for extra judicial confession before P.W.29 and it cannot be relied upon by the trial Court. The learned Counsel draws attention of this Court to the evidence of P.Ws.28 and 29 which is inconsistent with each other. Even with regard to the voluntary statement (Ex.P.24) is 10 concerned, learned Counsel has drawn our attention to the judicial confession and has submitted that the date found on said statement has been erased by putting whitener, which creates a doubt in the mind of Court as to when exactly and on what date, the alleged voluntary statement came to be recorded by the police.
It is also the contention of learned Counsel for the appellant that so far as the recovery of weapons such as axe and knife, shirt and lungi are concerned, no independent witnesses have supported the case of the prosecution and only on the evidence of investigating officer, it cannot be said that evidence of prosecution is reliable in respect of recovery aspect. It is further submission of learned Counsel that appellant accused was not in the house during night between 18.2.2007 and 19.2.2007 and he was in coffee estate of one Prasad. Drawing our attention to the evidence of P.W.29, learned Counsel submitted that it was consistently suggested to 11 P.W.29, who has also deposed before the Court that as requested by appellant-accused, he helped appellant- accused in getting a job in the coffee estate of said Prasad. All these material aspects were not at all properly appreciated by the learned Sessions Judge and learned Sessions Judge has wrongly come to a conclusion by holding that prosecution has proved its case beyond reasonable doubt.
With reference to Post Mortem reports at Exs.P.11 and P.12, in respect of both deceased, learned Counsel for appellant made submission that looking to the number and nature of injuries found on the deceased, it is highly impossible for a single person to cause such type of injuries. Hence, on this ground also, learned Counsel has submitted that the judgment and order of conviction passed by the learned Sessions Judge is not in accordance with materials placed on record. There is no satisfactory and acceptable evidence on the side of prosecution to show that during night between 12 18.02.2007 and 19.02.2007, appellant accused was in the house. He has also submitted that complainant who was said to be in the brick house belonging to one Channegowda, which is hardly at a distance of 50 feet from his own house and there was no reason for him to stay in the said brick house when his house was so near to his work place. Therefore, in this regard, evidence of P.W.16-complainant is also not acceptable.
The learned Counsel further submitted that though it is the prosecution case that as per FSL report (Ex.P.27), it is stated that there were blood stains on item Nos.18 to 21, i.e., two weapons and two clothes, but serology report is not at all produced to show that blood stains were of human blood and grouping of the said blood. Unless and until, it is produced by prosecution that too in the case based on circumstantial evidence, there cannot be conviction as against appellant-accused.
It is further contention of learned Counsel that when it was stated by complainant that main entry of 13 the house was under lock, though investigating officer also stated in his evidence that he broke the lock of door, but key of said lock was not recovered. Therefore, only on the basis that house was under lock, it cannot be presumed that it was necessary for appellant-accused to put lock to front door of house. Even these aspects were not taken into consideration by the learned Sessions Judge while convicting appellant accused. Hence, learned Counsel for appellant-accused has prayed for appeal being allowed and judgment and order of conviction passed by Court below being set aside and to acquit appellant-accused holding that prosecution has utterly failed to prove its case beyond reasonable doubt and benefit of doubt may be extended to the appellant- accused.
6. Per contra, learned Additional State Public Prosecutor made a submission that complainant who is the son of appellant - accused lodged the complaint in 14 this case immediately after noticing his mother and sister who were lying on the floor in a pool of blood. It is his submission that complainant has clearly mentioned in the complaint as well as in his oral evidence that on 18.02.2007 upto 4.00 p.m. he was in the house and his father who was also present along with them and was moving in front of the house repeatedly and he was even moving around the rented property and thereafter complainant went to attend the work in the field of Sri Chennegowda and slept that night there itself.
Learned Additional Special Public Prosecutor made a submission regarding last seen theory that appellant - accused was seen in the house along with other members of the family upto 4.00 p.m. and if that is so, it is for the appellant - accused to explain the same about when he left the house, for what reason he left and in that regard no explanation is forthcoming by the accused. It is also his submission that regarding plea of 15 alibi put forth by accused that he was somewhere else, namely, in the coffee shop of one Sri Prasad, there is no positive evidence on the side of the defence. It is also his submission that incident took place in the residential house. When that is so, burden is not on the prosecution but it is on the accused person to explain under what circumstances said incident took place according to him. It is also his submission that when the accused has been given such an opportunity, he has not at all made a specific defence nor he explained the circumstances under which said incident took place. It is also his submission that case of the prosecution is supported by the medical evidence. Doctors who conducted autopsy over the dead body of both deceased, gave the opinion that death is caused due to multiple injuries sustained. Even the Medical Officer after examining the weapons - M.Os. 8 & 9 gave the opinion that injuries that were mentioned in the postmortem report could be caused by using such weapons. Hence, 16 he submitted that Doctors evidence as well as postmortem reports also supports the prosecution case.
Regarding contention of appellant - accused about inconsistency in the date on which appellant - accused went to the place of P.W.29, he submits that P.W.29 in his evidence has not at all mentioned the date. P.W.29 has stated that when appellant - accused came to his place during night at 8.00 p.m., he made extra judicial confession admitting guilt that he committed murder of his wife and daughter. P.W.29 has also deposed that during that night, after having meals, appellant - accused slept along with him and on the next day, police came and apprehended the accused i.e., on 03.03.2007 and is said to have produced the accused-appellant before the Investigating Officer at 10.00 a.m. In this connection, P.W.31 - Investigating Officer has deposed that on 03.03.2007 itself he recorded voluntary statement of the appellant - accused under Ex.P-24 and 17 on the very day, weapons - M.Os.8 & 9 and clothes - M.Os.20 & 21 were recovered. Hence, learned Additional State Public Prosecutor submitted that when there is sufficient material placed by the prosecution regarding last seen theory of appellant -accused present in the house along with family members, whole burden is on the appellant - accused to establish his innocence by cogent and acceptable material.
Regarding non production of serology report, learned Additional State Public Prosecutor made a submission that it may be the fault or defect in the investigation or it may be the fault of the investigating officer for not securing serology report during the course of trial before the trial Court. But he submitted that when other material is available on record, only on the ground of non-production of serology report, the Court cannot give the benefit of acquitting accused. Hence, he submitted that learned Sessions Judge has taken all 18 these aspects into consideration while appreciating the evidence and has rightly convicted the appellant - accused holding that he is guilty of the offences for which he was charged. It is also his submission that as to why the son of appellant - accused gave the complaint against his father, nothing has been made out during the cross examination of P.W.16 and investigating Officer - P.W.31. Hence, he prays for dismissal of the appeal and prays for confirming the judgment and order of conviction passed by the Court below.
7. We have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the Court below, oral evidence of the prosecution witnesses P.W.1 to P.W.31 and documents Exs.P-1 to P-27 on the side of the prosecution. On the side of the defence, no witness were examined but one document was got marked as Ex.D-1. We have perused the said document also. We have also considered the 19 oral submissions made by both the learned counsel at the bar.
8. Looking to the spot mahazar and the complaint averments, incident which is said to have taken place in the residential house of appellant - accused and other members of the family including complainant is not in dispute. Dead bodies of mother and sister of the complainant were lying in the said house and from the said place, bodies were shifted after conducting inquest mahazar to the hospital for the purpose of postmortem examination. It is no doubt true there are no direct witnesses to the incident and case of the prosecution rests on the circumstantial evidence. We are also conscious of the legal position that whenever a case rests on the circumstantial evidence, circumstances must be such that they inevitably and exclusively suggest the guilt of the accused person and there should not be any circumstances which is 20 consistent with the innocence of the accused person. Keeping these principles in mind, we proceed to examine the material placed before the Court below during the course of trial.
9. Complainant has been examined as P.W.16. In his evidence, he has stated that accused is his father, deceased Smt.Rajamma is his mother and deceased Rekha is his sister. His mother and sister expired about one year 10 months back. They were murdered in his house where himself, appellant - accused, his mother and his sister were staying. During the night when the incident took place, he went to work in the thrashing floor of one Sri Chennegowda . He went at about 4.00 p.m. on that day and at that time, his mother and sister were in the house and accused was standing nearby the gate in front of the house. Himself, his father , mother and sister were in good terms. Appellant - accused was addicted to consume alcohol. Deceased were attending 21 to the coolie work. Accused was insisting the deceased to give money for consuming alcohol. Whenever they did not give money for consuming alcohol, appellant - accused was making galata with his mother and sister. On the next day of the incident, at about 8.30 a.m., he came back to his house. The door of the house was under lock. When he went inside the house, he saw his mother and sister were murdered and dead bodies were lying side by side. At that time, accused was not in the house. When the complainant made a hue and cry, people came to their house and he gave a complaint to the PSI as told by the PSI as per Ex.P-14 and his signature is at Ex.P-14(a). After he lodged the complaint, police came to his house and they have conducted mahazar as per Ex.P-4 and he has put his signature on Ex.P-4 nearby his house. Under Ex.P-4, police have not seized anything, they simply obtained the signature. When he went to the house on the morning, accused did not come to the house. Whenever the mother and sister 22 of the complainant were not giving amount to accused, he was not assaulting them but he was making galata by using abusive words and he was not making allegation of illicit relationship as against deceased Smt.Rajamma. Therefore, this witness was treated at the request of Public Prosecutor as hostile witness and Public Prosecutor cross examined this witness wherein he has stated that at the time when the incident took place, he was studying in first year B.A in BMS college, Konanur. He admitted the suggestion that he himself wrote Ex.P- 14 and given to the police. Even he has admitted the suggestion that in his complaint he has mentioned that whenever his mother was going to work, his father was making allegation that she is having illicit connection with such persons. He denied the suggestion that whenever his mother and sister did not give the amount to the appellant - accused, he was picking up quarrel, but the witness deposed that orally he tried to threaten them. He admitted the suggestion as true that whenever 23 mother and sister of the complainant were not giving amount to the appellant - accused, suspecting fidelity of the mother of the complainant, accused used to abuse her and for these reasons he committed murder of the mother and sister of the complainant when they slept in the house and thereafter he put a lock to the front door of the house and had absconded. He admitted that he has mentioned so in the complaint. In the cross examination by the learned defence advocate, he has deposed that there are four to five houses belonging to Sriyuths Rangaswamanna, Shivananda, Shantamma and Ashok nearby his house. He further deposed that place where he had gone to work is at the distance of 50 meters from his house; if a person stood at the said place/thrashing floor, house of the complainant is very much visible but he deposed that if somebody talks or shout in the house, it will not be heard at the said place/thrashing floor. He further deposed that on the said date, he was working along with Sriyuths 24 Chennegowda, Manjanna and Yogesha in the thrashing floor; they worked from 4.00 p.m up to 3.30 a.m. with the help of electrical light in the said thrashing floor.
10. In para 2 of the cross examination, he admitted that he has mentioned in his complaint that accused used to abuse his mother - deceased Smt.Rajamma that the time she entered their house is not auspicious and she was doing prostitution at the place where she was doing coolie work; whenever accused comes to the house by consuming alcohol, he was abusing deceased Smt.Rajamma by using such words but he has not informed the same to elders or requested the elders to take action against accused. In his complaint, Ex.P-14 he has not mentioned that he himself opened the latch and entered the house and saw the dead bodies. He deposed that he filed a complaint written by him as per Ex.P-14. In para 4 of the cross examination, he has specifically denied a suggestion made by the defence that during that night accused went 25 to work in the coffee estate of one Mr. Prasad of Uchangi village. P.W.16 further denied a suggestion that police got written contents of the complaint according to their convenience through him, but he further deposed that he personally wrote the contents. He denied a suggestion that a false case has been registered against appellant - accused. He further denied a suggestion that at the instance of the police, he is giving false evidence. Therefore, P.W.16 - son of the appellant - accused herein, had consistently reiterated the contents of the complaint more particularly, presence of the appellant - accused in the house up to 4.00 p.m. on 18.02.2007.
11. Regarding contention of learned counsel appearing for appellant herein that prosecution has not placed any material to show that appellant - accused was very much present in the house during the night in- between 18.02.2007 and 19.02.2007 is concerned, Court 26 has to take into consideration all the materials that have been placed on record by the prosecution.
12. Firstly, to disbelieve the evidence of P.W.16 about the presence of his father in the said house on the date of incident, there is no serious cross examination on that aspect. Nothing has been brought on record during the course of cross examination of P.W.16 to disbelieve the version of the witness - P.W.16. Apart from that, when P.W.16 is son of appellant - accused, what made him to depose against his own father is not forthcoming in the cross examination. Apart from that, it is the case of prosecution that immediately after the incident, appellant - accused left the place, remained absconded and was not available to the police till he was apprehended on 03.03.2007. Therefore, from 18.02.2007 till 03.03.2007 prosecution material goes to show that appellant - accused was absconding. When appellant -accused has not at all involved in committing 27 the alleged offence, his conduct of remaining absconding is most material. Natural conduct of the appellant would be, being a husband and father of deceased, immediately he could have taken steps by approaching the police requesting them to trace the culprits and also immediately bring to the notice of the parental home of Smt.Rajamma, which is also not done. In this case, it is also not his defence that he being a parent had attended funeral of his wife and daughter. During the course of hearing, learned counsel appearing for appellant- accused submitted to the Court that there was coffee shop of one Sri Prasad which was at the distance of 55 kms, he did not know anything about the incident and therefore he did not come to the house nor informed anybody, but the evidence of P.W.29 is otherwise. Evidence of P.W.29 goes to show that accused came to his house on 02.03.2007 during 8.00 p.m. and made extra judicial confession admitting the guilt that it is he who committed murder of his wife and daughter and on 28 the very next day i.e, on 03.03.2007, police came and apprehended the accused. Therefore, accused was not present in his house and he was in the coffee shop of said Sri Prasad. Atleast, by way of defence evidence, accused could have examined the owner of the coffee shop - Sri Prasad, which was also not done.
13. Material produced by the prosecution goes to show that on 03.03.2007 when police apprehended the accused, he was produced before the Investigating Officer. Voluntary statement of accused came to be recorded by the Investigating Officer as per Ex.P-24 wherein he has admitted that weapons which he has used for committing murder of his wife and daughter and his blood stained cloths he had worn at that time have been kept in his house and he will point out and produce the said objects if he is taken to his house. Accordingly, he led the Investigation Officer and panch witnesses to the area behind his house and took out said 29 material objects and produced before the Investigating Officer which were seized under mahazar - Ex.P-7.
14. In this connection, learned counsel appearing for appellant - accused made a submission that during the course of trial, independent witnesses who were panch witnesses to the said mahazar - Ex.P-7 turned hostile and not supported the prosecution case. But the Investigating Officer in whose presence they were seized has been examined as P.W.31. We have perused the evidence of P.W.31 whereunder he has stated that accused gave his voluntary statement and accordingly he led them and produced the materials, which were marked during the course of trial as M.Os. 8 & 9 i.e., one axe and knife and lungi as M.O.20 and Banian as M.O.21. These four material objects along with cloths found on the dead body of Smt Rajamma as well as her daughter were also sent to FSL examination and FSL examination report is produced during the course of trial 30 as per Ex.P-27. Looking to the deposition of P.W.31, we noticed that when said document - Ex.P-27 was tendered in evidence, Court below has recorded on 06.03.2009 to the effect that learned counsel appearing for the defence has no objection for marking of FSL report and as such it came to be marked as Ex.P-27. We have perused the FSL report. The items which were said to have been recovered at the instance of accused person were at Sl.Nos.18 to 21. Looking to the result of the analysis, it is mentioned in the FSL report that they were having blood stains. In this connection, contention of learned counsel appearing for defence that case rests on the circumstantial evidence and regarding blood grouping that is to say that it is human blood, serology report is not produced by the prosecution has to be examined. It is true, serology report ought to have been produced by the Investigating Officer before the Court to establish said fact but if it was not produced by the Investigating Officer, what is the next course open to the Court, 31 whether on that ground accused can be acquitted when other materials placed on record make out the case of prosecution is the point for consideration. Whenever there is lapse on the part of Investigating Officer, the question that would arise is:
"Whether such lapse itself is sufficient to acquit the accused?"
On this aspect, decision of the Hon'ble Apex Court rendered in the case of STATE OF U.P. VS. HARI MOHAN AND OTHERS reported in AIR 2001 SC 142 would guide us. Paragraph 9 of the said decision is relevant for our purpose and it reads as under:
"9. Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating officer appears to have left no stone unturned to help the accused- respondents. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The conduct of the investigating officer SI D.P. Tiwari (P.W.7) was even noticed by the trial court. On 30th October, 1978 while recording his statement, the trial court 32 observed that "it appears that the IO was negligent and an irresponsible investigating officer". It was noticed that "the witness giving aforesaid statement and it appears that he wants to damage the prosecution case". It is not disputed that during investigation it had come in evidence that respondent No.1 was possessed of a licensed gun which was stated to have been used by him on
15.3.1977, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the PW1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. It is unfortunate that no action can be taken against the IO at this stage who, in all probabilities, must have retired by now."
15. When two murders took place that too in the residential house, Investigating Officer being responsible officer to know the consequences and seriousness of the situation, he could have secured all the materials 33 relevant for the purpose of trial of the case which is not done in this case as serology report was not produced. Apart from that, regarding contention of learned counsel for defence that unless and until serology report is produced before the Court, FSL report stating that there were blood stained marks on the cloths of the appellant- accused is not sufficient is concerned, we are of the view that incident took place in the residential house where admittedly, appellant, complainant, deceased Smt.Rajamma and deceased Rekha were residing together in the said house. We have seen the material placed by the prosecution that during that night, complainant (P.W.16) had not slept in the house and he went to work in the thrashing floor of one Sri Chennegowda. Therefore, only persons left in the house were appellant - accused and two deceased persons. In such situation, contention of learned counsel for the defence cannot be accepted that entire burden is to be discharged by the prosecution itself, because, it is the 34 accused person who was staying in the house and it is for him to explain under what circumstances incident has taken place. If he failed to explain the circumstances, then, in that case, it goes against defence of the accused. In this connection also we are referring to the Division Bench decision of Hon'ble Apex Court reported in TRIMUKH MAROTI KIRKAN VS. STATE OF MAHARASHTRA reported in 2006(10) SCC
681. Relevant paragraphs are 21 and 22. In paragraph 21, it is observed by their Lordships that in a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and said accused either offers no explanation or offers an explanation which is found to be untrue, then, the same becomes additional link in the chain of circumstances to make it complete. This view was taken in catena of decisions of Hon'ble Apex Court which have been noticed 35 therein. For our purpose to appreciate the case on hand, paragraph 22 of the said decision is relevant wherein guidelines have been given by the Hon'ble Apex Court that when the incident took place in the dwelling house, as to how the Court has to appreciate the material and proceed in the matter. Paragraph 22 of the said judgment reads as under:
"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-AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khukhri' 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 36 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 were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. IN STATE OF U.P. V. DR. RAVINDRA PRAKASH MITTAL -AIR 1992 SC 2045 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 37 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."
Therefore, accused is under the legal obligation to offer his explanation which is also a principle under Section 106 of the Evidence Act, 1872. Illustration III(b) is relevant for the purpose of said principle. In this case, though it is the explanation given by the accused that during the course of cross examination of the prosecution witnesses itself more particularly P.W.29, it was elicited that accused was not in the house during that night and he was in the Coffee shop of one Sri Prasad, looking to the evidence of P.W.29 himself, it clearly goes to show that he has taken a false defence only in order to escape from the clutches of law. 38
16. Apart from that, learned Additional SPP has also relied upon the decision of the Hon'ble Apex Court in the case of ASHOK VS. STATE OF MAHARASHTRA reported in 2015 Crl.L.J. 2041 regarding last seen theory and he drew our attention to paragraph No.13 of the said decision. It reads as under:
"13. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarized as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of Indian Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt."
Therefore, even according to the principle enunciated in the said decision also, when last seen theory has been 39 established by the prosecution with the help of an acceptable material, then, it is for the accused person to explain as to how and under what circumstances incident has taken place.
17. We have also perused statement of accused recorded under Section 313 Cr.P.C. While examining accused-appellant, Court has put a specific question (question No.26) as to whether he wanted to say anything in the matter? he has said 'no', and for question No.27 as to whether he wanted to examine any witness on his behalf? he has said 'no'. Accused- appellant has not taken the opportunity which was provided to him to explain the circumstances which according to him are the reasons for the death of his wife and daughter. When such opportunity was given to him, atleast he could have examined Sri Prasad, owner of the Coffee Shop as a defence witness to prove the defence of alibi. It is not done in this case. It is no doubt true that 40 looking to the prosecution material, there are minor discrepancies crept-in in the evidence of prosecution witnesses, but they will not go to the root to falsify the entire case of the prosecution.
18. Even when the material objects M.Os.8, 9, 20 & 21 which were seized at the instance of accused were having blood stains, again, it is for the accused to explain how those blood stains were on the banian and lungi belonging to him and he has not explained about them. Considering the materials placed by the prosecution before Court, we are of the considered view that non-production of serology report will not come in the way to accept other materials available on record and to come to a right conclusion in the matter.
19. Apart from the evidence of P.W.16 -
complainant to show the ill treatment and harassment by the appellant -accused to his wife and children, prosecution has also examined one Mr.Ashok as P.W.2 . 41 It is no doubt true that this witness also turned hostile but only because of that reason, his entire evidence cannot be rejected. In para 2 of his Examination-in- Chief, he has deposed that accused was in the habit of consuming alcohol, but, in the next sentence he showed his ignorance that he was insisting his wife to give money for consuming alcohol. It is only ignorance of the witness but he has not specifically denied. He has also deposed in the next sentence that husband and wife were often quarrelling with each other. So the evidence of this independent witness also supports the case of prosecution that there used to be quarrel between the appellant and his wife.
20. As we have already observed herein above and at the cost of repetition, it is noticed that when P.W.16 - complainant (son of accused) has stated that on 18.02.2007 he has seen the appellant - accused - his father up to 4.00 p.m. and from the next day, appellant 42
- accused remained absconded and he was apprehended only on 03.03.2007, conduct of the appellant is very important. Accused has not participated in the funeral, he has not informed the police and the relatives of deceased Rajamma and being husband and father , he has not taken any action in the matter, he just kept mum and had absconded. Therefore, this conduct of the accused is also important for the Court to come to a right conclusion in the matter.
21. Regarding medical evidence, Doctors who had conducted autopsy over the dead bodies have been examined as P.W.14 & P.W.15. Dr.Kalavathi - P.W.14 conducted autopsy over the dead body of Smt.Rajamma - wife of the appellant - accused, whereunder doctor noticed 12 external injuries over the dead body. She has deposed that she has given the opinion - Ex.P-11 - postmortem report and as per Ex.P-11, cause of death is due to shock and haemorrhage as a result of incised 43 right carotid artery and jugular vein and multiple injuries. The Doctors - P.Ws.14 and 15 jointly conducted autopsy over the dead body of Rekha and post mortem report is marked as Ex.P-12. We have also perused postmortem report - Ex.P-12. Postmortem was conducted by P.Ws.14 and 15 jointly. Doctors noticed 24 external injuries on the dead body and cause for death is mentioned as it was due to shock and haemorrhage as a result of incised right carotid artery and jugular vein and multiple injuries.
22. Ex.P-13 is a letter from the Medical Officer addressed to CPI, Arakalgud Circle furnishing his opinion in respect of the weapons i.e., one axe and one knife sent through one Sri Devaraju, P.C.No.310 for examination. Medical Officer opined that by using said weapons, it is possible to cause injuries on the dead bodies of deceased Smt.Rajamma and Rekha. Medical opinion also goes to show that weapons said to have 44 been recovered at the instance of accused person ie., axe and knife were used in committing said offence which is also fortified by the blood stains as per FSL report.
23. We have carefully perused the judgment and order of conviction passed by the learned III Fast Track and Sessions Judge, Hassan. Learned Sessions Judge has extensively considered all the aspects of the matter, both oral and documentary and rightly held that prosecution established its case beyond all reasonable doubt and convicted the appellant - accused. Appellant
- accused even before this Court is not able to make out his defence of plea of alibi that he was elsewhere when said incident took place in his house. There are no legal and valid grounds for this Court to allow the appeal either to set aside the judgment and order of conviction or to modify said judgment. We see no merits in the appeal. Accordingly, same is hereby dismissed 45 confirming the judgment and order of conviction passed by the Court below.
SD/-
JUDGE SD/-
JUDGE Cs/sp