Karnataka High Court
Suresha vs State Of Karnataka on 28 September, 2022
Author: K. Somashekar
Bench: K. Somashekar
CRL.A.2170/2017
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL No.2170 OF 2017
BETWEEN:
SURESHA,
S/O LATE KRISHNAIAH,
AGED ABOUT 36 YEARS,
R/O B.HOSAHALLI COLONY,
BANAKAL HOBLI,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT. ... APPELLANT
(BY SRI N.R.KRISHNAPPA, ADV.)
AND:
STATE OF KARNATAKA,
BY BANAKAL POLICE,
CHIKKAMAGALURU DISTRICT,
REPRESENTED BY
THE PUBLIC PROSECUTOR,
CITY CIVIL COURT BUILDING,
BENGALURU-560 001. ... RESPONDENT
(BY SMT.RASHMI JADHAV., HCGP)
CRL.A.2170/2017
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 28.11.2017
PASSED BY THE PRINCIPAL SESSIONS JUDGE,
CHIKKAMAGALURU IN S.C NO.02/2017 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 09.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Appeal is directed against the judgment of conviction and order of sentence dated 28/29.11.2017 rendered by the Trial Court in Sessions Case No.2/2017, sentencing the appellant/accused to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months for an offence under Section 302 of the Indian Penal Code, 1860 (in short 'IPC').
2. Heard the arguments of Sri.N.R.Krishnappa, learned counsel representing the appellant/accused and Smt.Rashmi Jadhav, learned HCGP representing the CRL.A.2170/2017 3 respondent/State. Perused the impugned judgment and the evidence relied by both sides.
3. The case pleaded by the prosecution in brevity is that, the appellant/accused (hereinafter referred to as 'the accused') was married to one Meenakshi and begotten a female child. Because of the misunderstanding, both husband and wife parted ways and were residing separately. At the same time, one Smt.Radha (deceased in the instant case) was married to one Nanjaiah of Chigateri village. Her marital life with Nanjaiah was failed as there was a frequent quarrel between them and for this reason, deceased Radha left Nanjaiah and came back to her native place. Since the accused as well as deceased Radha were leading life singly, they got to know each other and married and started residing together and due to the said wedlock, they begot one male and one female minor children. The marital life of the deceased and CRL.A.2170/2017 4 the accused was cordial only for a period of one year and thereafter the deceased started drinking alcohol and accused started complaining against her for her drinking habit. There was a frequent quarrel in the family. On 04.09.2016, it was a Gowri-Ganesha festival. On the said date, the children were in the house and the deceased was sleeping in the room. At about 8.00 p.m., the accused, who came from work, picked up a quarrel with the deceased that she has not celebrated the festival and she has not cooked food for the children and the said quarrel went out of the control and the accused knowingly well that any assault on the head of the deceased will cause her death, intentionally took out a weapon of offence viz., club kept in the house and inflicted head injury, as a result of which, the deceased succumbed to the injuries and the accused throwing the club in the house did not inform the incident to anybody nor taken the deceased CRL.A.2170/2017 5 to Hospital, but on the very day night, the death of the deceased was revealed to fellow villagers, who visited the house of the accused, saw the dead body of the deceased and the same was informed to PW-2/Geetha, sister of the deceased who, on the next day morning, saw the dead body of the deceased in the house of the accused and filed the written complaint and set the law into motion and thereby a case has been registered in Crime No.89/2016 before the Banakal Police Station, Chikkamagaluru. The accused, who was hiding in plantation behind the house, was traced out and he was subjected to inquiry and at the voluntary statement of the accused, the weapon of offence was seized, PW-9/Chandrashekar registered the FIR, apprehended the accused and PW-17/M.Jagadish is the Investigating Officer, who conducted the investigation thoroughly and filed the charge sheet before the CRL.A.2170/2017 6 committal court i.e., the Court of Additional Civil Judge and JMFC, Mudigere, Chikmagalur District.
4. The learned Additional Civil Judge and JMFC, Mudigere, on receipt of the charge sheet taken cognizance of the offences and registered a case in C.C.No.900/2016. After compliance of Section 207 of Cr.P.C., case has been committed to the Court of Sessions under Section 209 of Cr.P.C. Hence, case has been registered in S.C.No.2/2017 by the learned Principal District and Sessions Judge, Chikkamagaluru.
5. The presence of the accused was secured by the learned Sessions Judge as he is in judicial custody since from the date of his arrest i.e., 06.09.2016. The accused was represented by the defence counsel. After hearing both sides and on considering the charge sheet materials, learned Sessions Judge has directed the accused to answer the charge for the offence CRL.A.2170/2017 7 punishable under Section 302 of IPC, when the charge was read over, the accused pleaded not guilty of the charge. To bring home the guilt of the accused, the prosecution has relied upon the evidence of PWs-1 to 17, documents as per Exs.P1 to P32 and material objects as per M.Os.1 to 5. During the course of cross- examination of witnesses on behalf of the defence, Exs.D1 to D4 came to be marked. The accused was questioned under Section 313 of Cr.P.C. pointing out the incriminating circumstances found in the prosecution evidence. The accused did deny the said circumstances wherein the accused claimed that all the said circumstances pointed towards him are all false. When he was called upon to lead evidence as contemplated under Section 233 of the Cr.P.C., he chose not to lead any defence evidence.
6. The learned Sessions Judge after hearing both sides, considering the material available on record and CRL.A.2170/2017 8 the evidence of both sides, passed the impugned judgment holding that the accused is guilty of the offence punishable under Section 302 of IPC and after hearing both sides passed the impugned sentence.
7. Aggrieved by the said impugned judgment of conviction and order of sentence, the accused has approached this court on the grounds that the entire case is based on circumstantial evidence, the evidence is not consistent with the guilt of the accused, but it is consistent with his innocence, the trial court has not taken care and caution while appreciating the prosecution evidence inspite of the witnesses have turned hostile. The witnesses, who have spoken against the accused, are all partisan, interested and unreliable witnesses. The prosecution has relied upon the other circumstances, such as, accused and deceased were living together at B.Hosahalli Colony, Mudigere Taluk, there was frequent quarrels between CRL.A.2170/2017 9 them, the deceased died unnaturally in the house of the accused and the death was not homicidal. But the evidence relied upon by the prosecution did not prove the said circumstances beyond reasonable doubt. Except the witnesses speaking about frequent quarrel between the accused and the deceased, which is unreliable and interested, there is no evidence to hold that the accused is guilty of the charge and therefore, he is entitled for the benefit of doubt and accordingly sought for his acquittal by reversing the impugned judgment of conviction and order of sentence.
8. It has been argued by Sri.N.R.Krishnappa, learned counsel for the appellant/accused that on the date of alleged incident, accused was not in the house as he had gone outside for work and therefore, the prosecution cannot invoke Section 106 of the Evidence Act, 1872 ('the Act' for brevity), calling upon the accused to explain the cause of death of the deceased. CRL.A.2170/2017 10 When the accused returned home, he found the deceased fallen in the bathroom and thereby she has sustained injury and such an explanation is proper and there was no such incident.
Learned counsel also emphasized on the character of deceased Radha, who had discontinued her matrimonial life with her first husband for the reason that she had become a drunkard, she used to quarrel with her first husband frequently, she left him and came back to B.Hosahalli where, for the reason of first wife of the accused Meenakshi had left the accused, the accused and Radha got married and they led life and begotten children. On the fateful day, it was a Gowri festival, where the deceased without cooking food or performing the festival was drinking liquor and sleeping in the house and when it was questioned by him, she quarreled with him, she went to bathroom and fell and sustained injuries and therefore, accused informed the CRL.A.2170/2017 11 same to the fellow-members of the village, he was not absconder, he was very much present when the relatives came to see the dead body and false theory has been created that he was an absconder.
An alternate argument also suggested without conceding the defence in the form of secondary hypothesis that deceased having been a drunkard was not taking care of the accused as well as their children and she was irritating the accused by not preparing any food, she had become a regular drunkard, used to fall on the streets and she might have sustained several injuries. This has been evidenced by the autopsy report where the past injury marks are found on the body of the deceased. Keeping that in the background, the deceased might have provoked the accused for taking up such a drastic step, but inspite of leading marital life with the deceased for more than 6 - 7 years, the accused did tolerate the ill-activities of the CRL.A.2170/2017 12 deceased for the sake of minor children and he had no intention to lose his wife and the alleged incident might have taken place at the instance of the deceased in a fit of anger in a quarrel on the fateful day and therefore, the act is not intentional, the offence under Section 302 of IPC will not attract, as it is a case of 'culpable homicide not amounting to murder' which falls within the purview of Section 304 of IPC and for the reason of the accused to take care of the minor children, who are now become orphans on account of death of the deceased, even during her life-time, accused as well as the minor children were leading an orphan life and sought for acquittal or at least modification of the conviction and sentence.
9. On the contrary, Smt.Rashmi Jadhav, learned High Court Government Pleader contended that the witnesses did speak about the frequent quarrel between the accused and the deceased and it was the CRL.A.2170/2017 13 motive for the accused to take such a drastic step in inflicting head injury by means of club, which is a dangerous weapon, the accused was absconded, he has been arrested, on his voluntary statement, the weapon of offence i.e., club has been seized, the Medical Officer, who conducted autopsy has given an opinion that the injuries found on the head of the deceased were possible by means of wooden club, the blood stains on the cloths of the deceased and also on the material objects has been evaluated by the FSL experts, who confirmed common human blood on these materials. It is also contended that the death of the deceased was inside the house of accused where the accused and his minor children alone were living. The incident took place in the night hours and there are no chances of strangers or any other person coming inside the house and therefore, Section 106 of the Act is aptly applicable, the accused is required to give an CRL.A.2170/2017 14 explanation for the death of the deceased. However, contrarily accused has given a false hypothesis that the deceased had suffered injuries by falling down in the bathroom, which itself is one of the grounds to suspect the defence of the accused. Hence, the falsity in the defence did explain the conduct of the accused and if really the deceased had fallen in the bathroom and sustained injuries, being a husband, why he had not taken her to hospital did indicate the motive of the accused to eliminate the deceased. The accused has no right to take away the life of the deceased for whatever reason of the deceased either drinking alcohol or not preparing food for him or the children. Therefore, the evidence did point out the motive of the accused to commit the murder of the deceased and for trivial reason, he has used the club and inflicted head injuries resulting in death of the deceased. Though the case rests upon the circumstantial evidence, the death CRL.A.2170/2017 15 was homicidal in nature, the chain of events that the deceased was died in the house of the accused, arrest of the accused, seizure of weapon of offence at his instance and bloodstains on the cloths, on the weapon of offence and the seized material objects did point out towards the accused and accused alone and there is no secondary hypothesis to give the benefit of doubt and it is a clear case of 'culpable homicide amounting to murder' and therefore, the conviction of the accused for the offence under Section 302 of IPC and award of sentence is sustainable and needs to be confirmed.
10. Having considered the rival contentions, let us examine what the prosecution propose evidence to prove its case. In order to bring home the guilt of the accused, prosecution has relied upon 17 witnesses. PW-2/Smt.Geetha is the sister of the deceased, who is the complainant. She has deposed about the marriage of the deceased with the accused, their frequent CRL.A.2170/2017 16 quarrel and pacification by the fellow villagers. According to her, she came to know about the incident from PW-3/Latha and she rushed to the spot and found the dead body of the deceased with black marks on the face and hands and from the people gathered at the spot, she came to know that there was a quarrel between the deceased and the accused on the previous day at 5.00 p.m. in respect of sale of Brandy in the house of the accused. According to her, this kind of quarrel was taken earlier 5 to 6 times and the deceased came to the house of PW-2 and the accused was summoned. As he was advised to take her back, he took her back with a promise that he will not beat her in future. In this regard, she filed the complaint as per Ex.P6 to the Police and later the Police came to the spot and prepared the mahazar as per Ex.P1 and took photos as per Exs.P2 and P3 and thereafter the Police CRL.A.2170/2017 17 have also conducted inquest mahazar on the dead body of the deceased as per Ex.P4.
11. PW-1/Dinesha and PW-3/Latha, who are the husband and wife, are neighbours of the accused. At about 8.00 or 8.30 p.m. on the date of alleged incident, PW-10/Kumar came and informed about the alleged incident. Hence, they rushed to the spot, saw blood oozing from left ear and injury on the head of the deceased. The accused was inside the house along with his brother PW-11/Kumar. According to them, the Police have visited the house of the accused and conducted the spot mahazar as per Ex.P1 and also inquest as per Ex.P4. Their evidence though point out that there was a previous quarrel between the deceased and the accused, which has been pacified, they did not inform the Police how the deceased has suffered injury and cause of death of the deceased. Hence, their evidence can be taken into consideration CRL.A.2170/2017 18 only for getting the information about the death of the deceased, spot mahazar and inquest mahazar conducted by the Police in the house of the accused.
12. PW-4/Rajashekar is a panch witness to the inquest and also a chance witness to the incident. Apart from deposing that the marriage of the accused with Radha that took place 9 years ago and due to the marriage, they begot two minor children and post- marriage quarrel between the husband and wife and in this regard, 2-3 times deceased came to his house. He called the accused, pacified him and sent the deceased back to her matrimonial house. Through PW-2/Geetha, he received information at 7.30 a.m. on the next day of Gowri festival regarding death of the deceased and for this reason he visited the house of the accused at B.Hosahalli where he had seen the dead body of the deceased inside the house of the accused with injuries on the head and also bleeding from the ear. He came CRL.A.2170/2017 19 to know from the fellow villagers that since there was quarrel between the husband and wife, the accused might have killed the deceased on the previous day by means of a club. Hence, Police shifted the dead body of deceased to the Government Hospital, Mudigere, where an inquest was conducted as per Ex.P4 by taking the photographs of the dead body as per Exs.P2 and P3.
13. PW-11/Kumara is the brother of accused and PW-12/Shalini is his wife. There is no dispute as to PWs-11 and 12 and the accused were residing in the same house but in different portions separately. Therefore, PWs-11 and 12 are very relevant witnesses with respect to the alleged incident. The prosecution has cited them as chance witnesses. The evidence of PWs-11 and 12 admits that they were residing in the same house in a different portion and the accused along with the deceased were residing in another CRL.A.2170/2017 20 portion. Both admit that on the day of Gowri festival, the alleged incident of death of the deceased took place. But both pleaded innocence how the death of the deceased was happened. PW-11 denied his previous statement before the Police as per Ex.P21 whereas PW-12 denied her statement as per Ex.P22. Though PWs-1 to 4 admit that the deceased and accused were husband and wife, their marriage had taken place and they begot two children, PWs-11 and 12 not prepared to accept that the accused and deceased were the husband and wife. PWs-11 and 12 have given a clear go-by to the prosecution, however, their evidence loses importance as they are not the eye-witnesses. But their evidence did point out the visit of the Police and carrying the dead body of the deceased from the house of the accused and where the Police have taken certain photographs and making CRL.A.2170/2017 21 certain inquiries. To that extent, the evidence of PWs- 11 and 12 is able to support the prosecution.
14. PW-10 is another Kumara, who is different from PW-11. He is shown as spot pancha and also seizure pancha for the belongings of the deceased at M.Os.3 to 5. PW-13/Vishwanath is another panch witness for the same. The evidence of PWs-10 and 13 did point out that when they had gone near the house of the accused, they had seen the presence of the Police as well as the accused, where the photograph at Ex.P16 was taken and signature at Ex.P17(a) and (b) has been obtained from them. PW-10 and PW-13 though did not support the seizure of club beneath the divana at the instance of the accused under Ex.P18/maahzar, but they admit that the photograph at Ex.P19 was taken. They did not support the prosecution as to the spot mahazar, seizure of weapon of offence i.e., club and also cloths of the deceased CRL.A.2170/2017 22 under Ex.P20/mahazar at Banakal Police Station, which was produced by the Police Constable, who was deputed for postmortem examination of the deceased.
15. PW-5/Kamalamma is the mother of the deceased. PW-6/Kumara is brother of the deceased. The evidence of PW-6 did point out scribing of Ex.P6/complaint as stated by PW-2/Geetha to give it to the Police to set the law into motion.
16. PWs-5 and 6 both deposed about the performance of the marriage of the deceased with the accused, 6 years ago prior to the date of incident and due to the marriage, begetting of two children. The deceased and the accused along with the children were residing at B.Hosahalli village in their house and 2-3 times, they had quarreled with each other and for this reason, deceased came back to her parental house at Uduse village. Accused was called to the house, he CRL.A.2170/2017 23 was pacified, advised and the deceased was sent along with the accused. Both came to know about the alleged incident informed to by PW-2/Geetha and on the next day morning, they visited B.Hosahalli village where they saw the presence of PW-2/Geetha, fellow villagers and they went inside the house and saw the dead body of the deceased inside the house with bleeding in the ear. PW-5 came to know about the quarrel on the previous night and in the morning, deceased was found dead, wherein PW-6 says that he had met the accused in the house, had interaction with him and asked how the deceased was died, for which, accused said that the deceased while attending the nature call in the bathroom slipped, fell down and sustained injuries and succumbed to death. But PW-6 did not believe the version of the accused and for this reason, he took PW-2/Geetha to Police Station where he has scribed and presented Ex.P6/complaint to the CRL.A.2170/2017 24 Police and thereafter the Police visited the spot, shifted the dead body of the deceased to the Government Hospital at Mudigere.
17. PW-9/Chandrashekar is the P.S.I. of Banakal Police Station. He has deposed that on 05.09.2016 at 1.00 p.m., he received Ex.P6/complaint from PW- 2/Geetha and registered the case in Crime No.89/2016 as per Ex.P14. On the very day evening, as per the instructions of the Investigating Officer, he visited B.Hosahalli village, collected information about whereabouts of the accused, who was found hiding in the coffee plantation, apprehended the accused, brought him to the Police Station and produced before PW-17/M.Jagadish, the C.P.I. along with his report at Ex.P15.
18. PW-14/Manjunatha is the Police Constable. As per the instructions of PW-9, carried Ex.P14/FIR to the Mudigere Court on 05.09.2016 at 1.30 p.m. CRL.A.2170/2017 25
19. PW-16/Sujatha, the lady Constable on 05.09.2016, as per the instructions of the Investigating Officer, visited the house of the accused where she had seen the dead body of the deceased and along with Constable Shankar, she shifted the body to the mortuary of M.G.M. Hospital of Mudigere and she stood guard of the body. She also deposed about visit of the Investigating Officer to the hospital and conducting the inquest mahazar as per Ex.P4 and thereafter she was deputed to supervise the postmortem examination. According to PW-16, PW-15/Dr.Vijayalakshm, the Medical Officer has conducted the postmortem examination on the dead body of the deceased. She collected the cloths like red color nighty, waist thread, black thread of leg and one pair of ear studs as per M.Os.3 to 5 and same were carried to the Police Station, produced before the Investigating Officer and same was seized under Ex.P20 mahazer.
CRL.A.2170/201726
20. PW-7/Nanjundaiah, the Assistant Engineer, deposed about preparation of Ex.P10/sketch at the place of incident as shown to him by the escort Police and same was forwarded to the Investigating Officer. According to him, the house belongs to the father of the accused i.e., Krishnaiah.
21. PW-8/Vindya, Panchayat Development Officer of Hesgal Grama Panchayat, deposed about the issuing of assessment extract as per Exs.P11 to P13 in respect of the house of the accused, to the Investigating Officer.
22. PW-15/Dr.Vijayalakshmi is the Medical Officer of M.G.M.Hospital, Mudigere. On 5.9.2016 she received a request from Banakal Police i.e., through PW-9 requesting for conducting postmortem examination on the body of the deceased. On the very day between 7.00 p.m. and 9.00 p.m. she has CRL.A.2170/2017 27 conducted the postmortem examination on the dead body of the deceased and issued Ex.P23/Postmortem report. According to PW-15, at the time of postmortem examination, she has observed the following injuries on the dead body of the deceased:
External Injuries:
1. Contusion over right side of chest about 2 cm x 2 cm.
2. Contusion of 3 cm x 1 cm over left side of chest.
3. Contusion of 1 cm x 1 cm below left side.
4. Contusion of 3 cm x 2 cm over left side of forehead.
5. Contusion of 3 cm x 3 cm over left side on back region.
6. An abrasion of 1 cm x 1 cm over lateral aspect of left eye.
7. A lacerated wound measuring about 2 cm x 1/2 cm over front of left ear. Clotted blood present at the site.
8. A lacerated wound measuring 3 cm x 1/2 cm over right side of occipital region.CRL.A.2170/2017 28
vÀ¯É §ÄgÀÄqÉ ªÀÄvÀÄÛ ¨É£É߮ĩ£À £Á¼À vÀ¯É §ÄgÀÄqÉ ªÀÄvÀÄÛ ¨É£ÀÄß ªÀÄÆ¼É B Depressed fracture (R±ÉÃgÀÄPÀ RAqÀ) of occipital bone on right side.
JzÉUÀÆqÀÄ UÉÆÃqÉUÀ¼ÀÄ, ¥ÀPÉ̮ħÄUÀ¼ÀÄ ªÀÄvÀÄÛ B Fracture of 3rd, 4th and ªÉÄ®è®Ä§ÄUÀļÀÄ (ªÀÄÈzÀé¹Û) 5th ribs on left side of chest, about 500 ml of blood with clots seen in the intercostals region on left side."
As per the evidence of PW-15, the internal and external injuries on the dead body of the deceased are all ante- mortem in nature and the probable time of the death of the deceased was 12 to 24 hours prior to the postmortem examination. During the time of postmortem examination, she has collected the blood samples of the dead body, has collected the cloths on the dead body and handed over to the Police, who were deputed for supervision. PW-15 has given an opinion that the death of the deceased was due to shock and hemorrhage on account of the injury to brain. She also CRL.A.2170/2017 29 deposed about examination of M.O.1/club on 18.11.2016, compared the injuries referred to in Ex.P23, which are observed at the time of postmortem examination. Since they are corilating to each other, she opined that the injuries found on the dead body of the deceased were possible if assault is made by means of M.O.1/club and to this extent, her opinion is at Ex.P24.
23. Now, the last but not the least is, the evidence of PW-17/M.Jagadeesh, Police Inspector of Mudigere Circle, who conducted the entire investigation. He has given evidence on oath that on 5.9.2016, he took over the further investigation from PW-9 /Chandrashekar, PSI of Banakal Police Station. On the very day itself, he visited the spot along with his staff members where he met PW-1/Dinesh, who shown the place of incident. Hence, between 3.30 p.m. and 4.00 p.m., as per Ex.P1 he has conducted the spot CRL.A.2170/2017 30 mahazar where the dead body was found, in the presence of PW-3/Latha, wife of PW-1 and CW- 7/Shashikumar. During the time of spot mahazar, he has prepared Ex.P26/rough sketch of the spot and also photograph at Ex.P28 was taken and he had seen oozing of the blood from the left ear and injury on the lower part of the ear and back side of the head. Hence, he deputed PW-16/Sujatha, lady Police Constable and also the Constable Shankar to shift the dead body to Government Hospital, Mudigere.
24. He also deposed that on the very day between 4.30 and 6.30 p.m. he had visited Government Hospital, Mudigere and conducted the inquest mahazar on the dead body of the deceased in the presence of PW-1/Dinesh, PW-3/Latha, PW- 4/Rajashekar as per Ex.P4 and noted the injuries found on the dead body. During the said time, he has enquired PW-5/Kamalamma, mother of the deceased CRL.A.2170/2017 31 and PW-6/Kumara, brother of the deceased and CW- 11/Annappa and CW-13/Manjunath and recorded their inquest statement and thereafter forwarded the dead body of the deceased for postmortem examination. On the very day, he entrusted the staff members for search of the accused and at about 7.30 p.m., accused was apprehended from the backyard of his house in the garden and he was produced at 8.00 p.m. under Ex.P15/report. Hence, he has arrested the accused, enquired him and recorded his voluntary statement as per Ex.P27. The accused was also subjected to medical examination and he was detained in the Police Station under guard.
25. The evidence of PW-17 also indicates that on 6.9.2016, he secured the presence of PW-10/Kumara and PW-13/Vishwanath to the Police Station, along with them and the accused visited the village of B.Hosahalli. There, the accused took them to his house and inside CRL.A.2170/2017 32 the house in the hall beneath the cot, he removed M.O.1/club as weapon of offence and it was seized under Ex.P18 and also drawn Ex.P7 spot mahazar between 11 and 11.30 a.m. by taking Ex.P19/photo. On the very day, PW-16/Sujatha brought and produced M.Os.2 to 5/cloths and other articles on the dead body from the hospital and same was seized in the presence of PW-10/Kumara and PW-13/Vishwanath under Ex.P20/seizure mahazar by taking Ex.P28/photograph. He has also enquired and recorded the statements of PWs-1, 3, 11 and 12 and requested PWD authorities and other officers to furnish the records pertaining to the house of the accused. By receiving the postmortem report as per Ex.P23 on 17.9.2016 sent M.O.1/club to the Medical Officer for opinion received the opinion report as per Ex.P25 on 18.11.2016. He has subjected the seized articles to the FSL examination and received CRL.A.2170/2017 33 Ex.P31/FSL report and filed the final report against the accused.
26. These are all evidence relied upon by the prosecution to bring home the guilt of the accused.
27. From the evidence of the prosecution, the following undisputed points come out:
The deceased and the accused were husband and wife, they lived a matrimonial life for 6 years, they beget two children and they were residing at B.Hosahalli in the house stands in the name of father of accused. It is also not in dispute that the marriage of both accused and the deceased was second marriage.
28. The entire case of the prosecution rests upon the circumstantial evidence. The Hon'ble Apex Court in a catena of decisions laid down the principles, how the evidence shall pass the test of evaluation in a case rests upon the circumstantial evidence. In this regard, CRL.A.2170/2017 34 it is relevant to refer to the decision of the Hon'ble Apex Court in the case of Raju @ Rajendra Prasad - vs- State of Rajasthan1 wherein it is observed at paragraphs-22 to 24 as under:
"22. In Krishnan v. State [(2008) 15 SCC 430], this Court after considering a large number of its earlier judgments observed as follows : (SCC p. 435, para 15) '15. ... This Court in a series of decisions has consistently held that then a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete 1 Crl.Appeal No.1599/2022 dt.19.9.2022 CRL.A.2170/2017 35 and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra [(1982) 2 SCC 351].)'
23. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :
(SCC p. 185, para 153)
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must"
or "should" and not "may be" established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground CRL.A.2170/2017 36 for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
A similar view has been reiterated by this Court in State of U.P. v. Satish [(2005) 3 SCC 114] and Pawan v. State of Uttaranchal [(2009) 15 SCC 259].
24. In Subramaniam v. State of T.N. [(2009) 14 SCC 415], while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable."
(See Ramesh Bhai v. State of Rajasthan [(2009) 12 SCC 603])."
(emphasis supplied)"
25. The Hon'ble Apex Court in the case of G.Parshwanath -vs- State of Karnataka2 (2010) 8 SCC 593 at paragraphs-23 and 24 has held as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from 2 (2010) 8 SCC 593 CRL.A.2170/2017 37 which the conclusion of guilt is to be drawn should, in the first instance, be fully established.
Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case CRL.A.2170/2017 38 resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
26. Keeping the above principles laid down by the Hon'ble Apex Court, let us analyse the prosecution evidence with reference to each link as suggested by the prosecution evidence. The prosecution evidence did point out the following links to form part of chain of circumstances to explain the guilt of the accused:
(i) Homicidal death of deceased Radha;
(ii) Tracing of dead body of the deceased inside the house of the accused;
(iii) The deceased suffered fatal injury while she was sleeping inside the house;CRL.A.2170/2017 39
(iv) Recovery of club from inside the house at the instance of the accused;
(v) Falsity of the explanation of the accused about the deceased sustaining injury.
Reg: Link No.(i):
Homicidal death of deceased Radha:
27. In this regard, the evidence of PW-1/Dinesh and his wife PW-3/Latha is relevant. It is they, who received the information at about 8.30 p.m. from PW- 10/Kumar and for this reason, both they have rushed to the house of the accused, which is situated just 20 feet away from their house. They found in the room, the dead body of the deceased with head injury with bleeding from her left ear. At that time, accused, brother of the accused PW-11/Kumara and his wife PW- 12/Shalini were present in the house. Hence, they are the two witnesses, who have first seen the dead body CRL.A.2170/2017 40 of the deceased. The evidence of PWs-11 and 12 did point out that though they turned hostile of the prosecution case, during their cross-examination, it is elicited that they have seen the dead body of the deceased inside the house of accused with head injury and bleeding in the left ear.
28. These are the material witnesses, whose testimony is sufficient to note that the dead body of deceased was traced on 04.09.2016 at 8.30 p.m. with head injury with bleeding in left ear. Ex.P4 is the inquest mahazar wherein PW-4/Rajashekar is the inquest pancha, who did speak about the injuries found on the head of the deceased and also bleeding from the left ear and in this regard, inquest was conducted by the Police as per Ex.P4.
29. Ex.P23 is the postmortem report and if it is read along with the evidence of PW-
CRL.A.2170/201741 15/Dr.Vijayalakshmi, the Medical Officer of MGM Hospital at Mudigere did point out that on 05.09.2016 between 7.00 p.m. and 9.00 p.m. when she conducted postmortem examination on the dead body of the deceased, she has noticed the injuries on the dead body, which has been referred to in her evidence supra. She has noticed internal injuries, which is also referred to above and she has issued the postmortem report as per Ex.P23. She has also examined M.O.1/club referred to her by the Police and she has examined the same and opined that such a club would cause injuries as referred to in Ex.P23 and she has given further opinion that from M.O.1, such injuries that were found on the dead body of the deceased were possible.
30. Prosecution of M.O.1 for PW-15 examination has been deposed by PW-17/M.Jagadish and also the evidence did point out that the seizure of M.O.1/club CRL.A.2170/2017 42 from the place where the dead body was traced i.e., from inside the house of the accused. The opinion of PW-15/Dr.Vijayalakshmi that death of the deceased with reference to the contents of intestines was between 12 and 24 hours and having regard to the time of postmortem examination and the proposed time of the incident is co-related to each other and it takes back to the alleged time of incident.
31. Another aspect coming from the defence is that the deceased is a habitual drunkard. She had fallen in the bathroom and another secondary hypothesis proposed by other witnesses that she being a drunkard might have fallen somewhere in the village, due to which, she has died. But these two hypothesis have no support, as the evidence of PW-15 would make it very clear that there was no alcohol smell or contents when postmortem examination was conducted. Much apart, the dead body was not traced in the streets of CRL.A.2170/2017 43 B.Hosahalli, but it was admittedly found inside the house of the accused. Hence, these two other hypothesis that the deceased after drinking alcohol might have fallen down and sustained such injuries were ruled out. Thus, totality of the evidence did point out that the deceased was succumbed to death because of the head injuries suffered by her. As the second and third hypothesis is ruled out, there is no other hypothesis to deny the version of the prosecution that cause of the death of the deceased was on account of head injuries that the deceased has suffered. Therefore, we find no hesitation in accepting that the death of the deceased was homicidal in nature. Reg. Link No.(ii):
Tracing of dead body of the deceased inside the house of the accused:
32. As seen from the evidence of PWs-1, 3, 11, 12 and also the evidence of PWs-10 and 13, who are the spot panchas under Ex.P17 and also the evidence CRL.A.2170/2017 44 of PW-5/Kamalamma, mother of the deceased, PW- 6/Kumara, brother of deceased and PW-11/Kumara, brother of accused and PW-12/Shalini, wife of PW-11, who are the fellow villagers and the witnesses, who first saw the dead body of the deceased. Their evidence did point out that on 04.09.2016 at 8.30 p.m., the deceased Radha was found dead inside the house of the accused and the dead body was preserved intact since the relatives had to come from different villages. The cross-examination of the above witnesses did not point out anything regarding tracing of the dead body other than the place suggested by the prosecution. The evidence of PW-11/Kumara and PW- 12/Shalini, who are the brother and sister-in-law of the accused, naturally turned hostile as they are residing together in different portions of the house and it is they from whom much can be expected to support the prosecution case. As found from the evidence, the CRL.A.2170/2017 45 deceased and the accused were having two children, who are now in the care and custody of PWs-11 and 12 and naturally they do not want to shoulder the responsibility of the children of their brother and they retracting from their previous statement as per Exs.P21 and P22 is quite natural. Even excluding the evidence of PWs-11 and 12, the evidence of PWs-1 and 3, the fellow villagers explained that the body was traced inside the house of the accused. PW-10/Kumara and PW-13/Vishwanatha, who are the panch witnesses where the dead body was taken to Police custody, they have not supported the prosecution, but the evidence of PWs-17/M.Jagadish, the Investigating officer, did take support from the evidence of PWs-1, 3, 5 and 6 and also PW-2/Geetha, sister of the deceased, who stand in support of Ex.P1/spot mahazar. Hence, the evidence of PW-2 though interested in the facts and circumstances of the case, we need to evaluate the CRL.A.2170/2017 46 evidence in consonance with the evidence of PW-17. Thus, spot mahazar did point out the retrieval of the dead body from inside the house of the accused. Reg. Link No.(iii):
The deceased suffering fatal injury while she was sleeping inside the house:
33. As could be seen from the evidence of the prosecution witnesses i.e., PW-2/Geetha, PW-
5/Kamalamma, mother of the deceased, PW-6/Kumara, brother of the deceased and also PW-1/Dinesha and PW-3/Latha, the fellow villagers, did point out that the deceased Radha was residing with the accused and two minor children in the house. The evidence of PW- 11/Kumara and PW-12/Shalini, brother and sister-in- law of the accused did point out that in the house standing in the name of Krishnaiah, the father of the accused, having two portions, in one portion PWs-11 and 12 are residing and in another portion, the accused, deceased and their children were residing. CRL.A.2170/2017 47 Though PWs-11 and 12 point out that in the other portion, Meenakshi, the first wife of the accused was residing, it has been falsified by the evidence of PWs-1 and 3, the fellow villagers, who reside just 200 feet from the house of the accused, that in another portion of the house, the deceased and the accused were residing and not Meenakshi, the first wife of the accused. As could be seen from the records, Meenakshi and her child were residing separately and they were not in contact with the accused. Though some evidence brought out that the accused used to stay with Meenakshi and for this reason, the deceased Radha used to come to the house of Meenakshi and demanding her to send her husband back, this kind of evidence in the form of defence has no substance as Meenakshi is residing somewhere else not in the house where the alleged incident took place, but that will not go to the root of the case. But from the material CRL.A.2170/2017 48 evidence, it is clear that the deceased and the accused were residing together along with their two minor children. As seen from the evidence, during the time of mahazar, the dead body was removed from the house of the accused with head injury and bleeding in the left ear. It is PWs-1 and 3, who had seen the dead body immediately after the alleged incident and their evidence clinches the issue. The inquest mahazar under Ex.P4 and the evidence of PW-4/Rajashekar coupled with the evidence of PW-17/M.Jagadish, the Investigating Officer did point out that at the time of visit of the Police, visit of the fellow villagers, the dead body of the deceased was inside the house with head injury, has been confirmed during the inquest and also during the postmortem examination. Therefore, the evidence did point out that at the time of retrieval of the dead body, it was with the head injury, which is fatal in nature as opined by the Doctor/PW-15 at the CRL.A.2170/2017 49 time of postmortem examination and her report at Exs.P23 and P24. As seen from the evidence, it was at 8.30 p.m., PWs-1 and 3 visited the house of the deceased where she was found dead with bleeding injuries. Hence, the injuries at 8.30 p.m. on 4.9.2016 were so fresh within a span of shortest period they have seen the deceased with injuries. As seen from the defence, the accused admits that the deceased had sustained injuries inside the house i.e., in the bathroom due to fall. Hence, this indicates that the deceased Radha has sustained injuries on her head, which is fatal in nature when she was inside the house of the accused. Therefore, this link could safely be inferred positively from the evidence available on record. Reg. Link No.(iv):
Recovery of club from inside the house at the instance of the accused:CRL.A.2170/2017 50
34. The prosecution has proposed M.O.1 as the weapon of offence. This weapon of offence is said to have been seized at the instance of the accused under his voluntary statement. In this regard, PW-
9/Chandrashekar, PSI has deposed that as per the instructions of PW-17, he has tried to search for the accused. On the next day, the accused was traced in the coffee plantation behind the house of accused and he was taken to custody and produced before PW-17 under Ex.P15/report. The prosecution witnesses did point out that the accused was very much present when they had visited the house of the deceased and even they had an interaction where the accused who tried to explain to them that the deceased fell down in bathroom and sustained injuries. Even from the prosecution evidence, it is found that during the visit of Police for the spot inspection and till carrying of the dead body, accused was very much present in the CRL.A.2170/2017 51 house. Even if the same is accepted that the accused was present on 4.9.2016, he was not taken into custody of the Police. Even if assumed that the accused was taken into custody, it will not go to the root of the case. Ex.P1 is the spot mahazar and Ex.P17 is another spot mahazar conducted by the Investigating Officer inside the house of the accused.
35. Ex.P27 is the voluntary statement of the accused where the accused revealed concealment of M.O.1 inside the house and for this reason, he took PW-17 to his house and shown M.O.1/club beneath the divana and same was seized under Ex.P18/mahazar. Again the prosecution banking upon the evidence of PW-10/Kumara, PW-13/Vishwanatha, who are the pancahs, as observed above, they have given a clear goby to the prosecution that they had not seen the seizure of M.O.1 at the instance of the accused, but their evidence did point out that they were present CRL.A.2170/2017 52 near the house of the accused when the Police came along with the accused where the photographs were taken as per Ex.P19. PWs-10 and 13 admit their presence and Ex.P19/photograph taken near the house of the accused. Having regard to the evidence of PWs- 10 and 13 and also the evidence of PW-17, M.O.1, which is the weapon of offence is seized from inside the house requires to be examined since panch witnesses have turned hostile. In this regard, it is relevant to refer to Ex.P31/FSL report and Ex.P32/Serology report where PW-17 has subjected M.O.1 and also nighty on the dead body of the deceased for FSL examination and the FSL report did point out that the nighty of the deceased and also M.O.1/club did carry human bloodstains of 'B' group. This indicates that the blood of the deceased on her cloth and also on M.O.1 has been explained. Hence, this is the club, which is said to have been seized from inside the house of the CRL.A.2170/2017 53 accused under Ex.P27/voluntary statement of the accused, Ex.P18/mahazar and Ex.P19/photograph.
36. If these witnesses give a clear go-by to the prosecution version in order to facilitate the accused as observed above, PWs-11 and 12, who are the brother and sister-in-law of the accused, were not ready to take possession of the children of the accused and they want to put the children back to the custody of the accused, which can only be possible if he comes out of the custody. Hence, under such circumstances, the court has to appreciate the seizure of M.O.1 from inside the house of the accused, as there is only a technical evidence of PW-17. Thus, we find no hesitation in accepting the evidence of the prosecution, which is qualitative rather than quantitative and therefore, we are of the opinion that M.O.1/club was recovered at the instance of the accused from inside of his house. CRL.A.2170/2017 54 Reg. Link No.(v):
Falsity of the explanation of the accused about the deceased sustaining injury:
37. Now the prosecution has proposed that the deceased has suffered head injury at the instance of the accused when she was sleeping inside the house. In this regard, there are three versions of defence. They are (i) deceased herself fell down in the bathroom while attending nature call and sustained head injury,
(ii) deceased is a habitual drunkard, she used to drink liquor and fall in the street and thereby she has sustained injuries and (iii) deceased was a patient of epilepsy and due to sudden attack, she had sustained injuries on her body.
38. In support of these hypothesis, it is elicited in the cross-examination of PW-1 that the deceased Radha was drinking alcohol, she was suffering from fits disease and she used to fall on the road. It is also suggested to PW-3/Latha that deceased fell down by CRL.A.2170/2017 55 drinking alcohol, but she stands in support of the prosecution that it is incorrect. PW-12/Shalini though claims that she is not knowing who is the deceased, but in the defence cross-examination, she admits that everyday deceased used to drink alcohol, she used to fall here and there in the village and during that time, she has helped her to bring her home. If PW-12 is unknown to the deceased, then how come she had given such evidence, to the said extent, she has supported the prosecution rather than the defence. Nextly, PW-12 in the defence cross-examination admits that, she, accused, PW-11 and the deceased and their children are residing together in the same house. Hence, it is clear that PW-12 does not want to reveal the truth, but the truth has come out in the defence from her mouth. As seen from the evidence, the dead body was traced inside the house of the accused and not from outside or elsewhere and as such, there is no CRL.A.2170/2017 56 probability to accept the defence version that the deceased has sustained injuries being fell down in the village by drinking alcohol and much apart, there was no traces of alcohol as found when PW-15/doctor did autopsy and therefore, such defence is not reasonable for acceptance rather it indicates that it is only an assertion supported without any substance. The another version that the deceased fell down and sustained injury on her head has been explained by the prosecution through the evidence of PW-15/doctor that head injury of such nature could not be possible if anybody falls in the bathroom. As regarding epilepsy, during the course of cross-examination of mother, sister and brother of the deceased, there was no suggestion at all. Much less the defence has suggested such a defence by selecting the favourable witnesses, hence, it will not probabalise the defence. The three different versions of the defence for the injuries that CRL.A.2170/2017 57 has been sustained by the deceased has been ruled out.
39. Now from the above, it is very clear that the defence proposed by the accused is not acceptable and there is a falsity in the defence. When there is falsity in the defence, it will certainly act against the accused as one of the links of circumstances in the chain of circumstances.
40. Now, from the proposed five links, one can fairly infer that none of the above links are weak links, if all these five links are to be taken together, they form strong chain of circumstances, which point out towards the accused and accused alone. The five golden principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra3 has been complied by the prosecution, thus, one can make out a conclusion 3 (1984) 4 SCC 116 CRL.A.2170/2017 58 of guilt and these circumstances are very consistent with the guilt of the accused and are inconsistent with his innocence, which is conclusive in nature and tendency.
41. Now adverting to the argument of the prosecution based on Section 106 of the Evidence Act, it is relevant to refer to the said provision. Section 106 reads thus:
"106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
42. On the issue of applicability of Section 106 of the Evidence Act, the Hon'ble Apex Court in the case of Shambu Nath Mehra v. The State of Ajmer (AIR 1956 SC 404) laid down in detail and the relevant part of the said decision reads thus :-
CRL.A.2170/201759
"10. Section 106 is an exception to section
101. Section 101 lays down the general rule about the burden of proof.
'101, Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".
Illustration (a) to Section 106 of the Evidence Act says-
'(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime'.
11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within CRL.A.2170/2017 60 his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that, that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.
12. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in 3 (1956) SCR page 199 a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his CRL.A.2170/2017 61 explanation than for the State to establish its falsity.
13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts." (emphasis supplied)
43. In view of the settled law, as discussed above, the prosecution has established the proposed links, which form part of chain, the chain has no weak links, the accused has offered three different hypothesis which is found falsified by virtue of the evidence. When the prosecution has explained its CRL.A.2170/2017 62 version, pointing towards the guilt of the accused, as contemplated under Section 106 of the Evidence Act, burden is on the accused to explain the cause of death of the deceased. As we observed, the explanation so offered by the accused has been falsified. The presumption stood unrebutted and Section 106 of the Evidence Act has no assistance to the accused.
44. Now coming to the aspect of whether the guilt of the accused forms part of offence under Section 302 of IPC or any secondary hypothesis and also to form whether the act of the accused in committing the death of the deceased is culpable homicide not amounting to murder?
45. In this regard, it is relevant to refer to the judgment laid down by the Hon'ble Apex Court in State of Andhra Pradesh -vs- Rayavarapu Punnayya4 wherein, while clarifying the distinction between the 4 (1976) 4 SCC 382 CRL.A.2170/2017 63 "murder" and "culpable homicide" and their consequences, the Hon'ble Apex Court held as under:
"In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its species. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally . . . . 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."
46. In order to constitute an offence under Section 302 of IPC, the prosecution is required to explain the offence within the frame of Section of 300 of IPC. Section 300 of IPC reads thus:
"300. Murder.--
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death CRL.A.2170/2017 64 is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.CRL.A.2170/2017 65
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence."
Exceptions 2, 3, 4 and 5 of Section 300 of IPC is not applicable to the case on hand. 'Culpable homicide' is not 'murder' fall within Exception-I. In view of Exception-I to Section 300 of IPC, the court has to consider whether the 'culpable homicide' as defined under Section 299 of Cr.P.C. can be 'murder' or not.
47. From the evidence on record, it is very clear that the marriage of the deceased and accused was a second marriage. The first marriage of the accused and the deceased, both were failed. The deceased having married Nanjaiah left him on the ground that he was ill-treating her. The evidence also points out that the deceased addicted to drinking alcohol. She was not attending to any household work having two children in her hands, even on the fateful day, it was a Gowri festival, she did not prepare any food nor performed CRL.A.2170/2017 66 the festival and she was sleeping in the house. The accused had gone out for labour work, when he returned back, he saw the children without food and the deceased sleeping in the house. In the background of the frequent quarrels between the accused and the deceased, that has been pacified by their relatives and the villagers as explained by the prosecution evidence, the alleged incident took place. It was the incident that took place inside the house and the explanation of the accused is not acceptable. Inspite of repeated quarrels between the husband and wife, inspite of the assault, the deceased was drinking alcohol, not attending to the accused and his children, the deceased was not performing her duty as wife of the accused and mother of minor children. Thus, the evidence did point out that at no point of time, the accused having any intention to kill the deceased. He has already suffered in the first marriage so also the deceased, they have CRL.A.2170/2017 67 minor children to take care of and for this reason, the prosecution is not able to explain the intention part of the accused to commit the murder of the deceased. As found from the prosecution evidence, the deceased, for the reason of not preparing the food, that has prompted and enraged the accused to take such a drastic step all of a sudden and removed M.O.1/club from inside the house and inflict injuries as part of punishment and there was no intention on his part to cause death. Hence, the alleged act of the accused comes within the purview of Exception-I to Section 300 of IPC where the death of deceased was 'culpable homicide not amounting to murder'. Hence, the order of conviction by the learned Sessions Judge for an offence punishable under Section 302 of IPC should not have been under the concept of 'murder' but it should be "culpable homicide not amounting to murder". Hence, the offence falls within the purview of Section CRL.A.2170/2017 68 304 Part II of IPC. Therefore, the order of conviction needs to be brought down to Section 304 Part II of IPC instead of offence under Section 302 of IPC. Accordingly, the impugned judgment needs modification.
48. In the result, we pass the following:
ORDER The appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973, is partly allowed.
The judgment of conviction and order of sentence dated 29.11.2017 rendered by the Trial Court in Sessions Case No.2/2017 stands modified.
The accused is convicted for the offence under Section 304 Part II of IPC instead of Section 302 of IPC. The period of 6 years 22 days undergone by the accused in incarceration is held sufficient sentence for CRL.A.2170/2017 69 the offence punishable under Section 304 Part II of IPC. The fine imposed by the Trial Court is maintained.
Registry of this Court is directed to forward a copy of the operative portion of this judgment to the concerned Jail authority where the accused is housed with a direction to set him at liberty forthwith, if he is not required in any other case.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE KNM/-