Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 7, Cited by 0]

Karnataka High Court

Mahadeva S/O Seenegowda vs State By Metagalli Police Station on 19 July, 2012

Author: D V Shylendra Kumar

Bench: D V Shylendra Kumar

   IN THE HIGH COURT OF KARNATAKA AT BANGALORE

        DATED THIS THE 19TH DAY OF JULY, 2012

                         PRESENT

    THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
                           AND
           THE HON'BLE MR JUSTICE B V PINTO

               Criminal Appeal No 894 of 2008

BETWEEN:

MAHADEVA
S/O SEENEGOWDA
CON NO.15601
CENTRAL PRISON
MYSORE                                            ... APPELLANT

                [By Smt Rahat Afshan, Adv.,]

AND:

STATE BY METAGALLI POLICE STATION               ... RESPONDENT

            [By Sri N S Sampangiramaiah, HCGP]


      THIS CRIMINAL APPEAL FILED UNDER SECTION 374[2] R/W
SECTION 383 OF CODE OF CRIMINAL PROCEDURE BY THE
CONVICT/APPELLANT/ACCUSED      THROUGH    SUPERINTENDENT,
CENTRAL PRISON, MYSORE, AGAINST THE JUDGMENT AND ORDER
DT.18/19.12.2007 PASSED BY THE II ADDL. SESSION'S JUDGE,
MYSORE         IN     S.C.NO.259/2006-CONVICTING      THE
CONVICT/APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE
U/S 302 OF IPC AND SENTENCING HIM TO UNDERGO
IMPRISONMENT FOR LIFE AND TO PAY A FINE OF `5,000/- IN
DEFAULT, TO UNDERGO S.I. FOR A PERIOD OF 6 MONTHS FOR THE
OFFENCE P/U/S 302 OF IPC. THE CONVICT/APPELLANT/ACCUSED
PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE.
                                 2

      THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, SHYLENDRA KUMAR, J., DELIVERED THE FOLLOWING:-



                          JUDGMENT

This appeal is filed under section 374 read with section 383 of Criminal Procedure Code [Cr.P.C] by the Accused against the Judgment dated 18.12.2007 passed by court of II Additional Senior Judge, Mysore, in S.C.No.259/2006 convicting the appellant of the offence punishable under section 302 of IPC and sentencing him to undergo imprisonment for life.

2. The case of the prosecution is that on the evening of 24.09.2006 at about 8.30 pm, the accused person has assaulted his wife by name Reshma by using a lattanige and has thereafter poured kerosene on her body and lit her on fire resulting in extensive burns and as a result she died. The prosecution has put forth the case that the accused suspected fidelity of his wife, had a history of assaulting and torturing his wife earlier also; that the couple had married for about eight years and had two children one of the 3 children is a son aged about four years at the time of the incident who had witnessed the incident; that the written complaint - Ex.P1 in this regard came to be lodged in Metagalli Police Station by the brother-in-law of the deceased i.e., husband of elder sister of the deceased at about 11.30 pm on the same day; that the written complaint was given by the said person who was examined as PW.1; that thereafter the Police had visited the scene of occurrence and found accused person at the spot; that the first information report was prepared by the Police Sub Inspector M H Khan who deposed as PW.20 and the first information report has reached the Magistrate the next day at 11 am; that the Police had recorded the statements of PWs.5, 6 and 7; that the complaint - Ex.P1 revealed that the complainant is the resident of Kumbarakoppalu, Mysore, living with his wife and children and carrying on agricultural operations; that the deceased by name Reshma had been given in marriage to Mahadeva of Gerasanahalli; that the marriage took place about eight years back; that out of the wedlock they had a male child and a female child; that their family 4 lived in Gerasanahalli; that the accused person was suspecting the character of his wife without any justification and due to this the accused was also harassing and quarreling with his wife quite often; that during such incident the complainant as well as his in-laws were pacifying the differences between the couple and the accused was also being provided financial assistance; that on one such occasion, even a complaint had been given at Bilikere Police Station about harassment meted out by the accused to his wife and advising him to behave properly and the matter was set right; that about two years earlier the complainant had helped the accused person to come and settle in Mysore with his family and in that connection he had helped him to secure a house on rent owned by one Ningegowda which was in the neighbourhood of the residence of the complainant; that the accused had been living with his wife and children in that house for the past about two years; that the complainant was also concerned and helping the accused and members of his family; that on 24.09.2006, there were guests to the house of the 5 complainant and in that connection they had prepared fish curry; that the accused, his wife Reshma and children had also come to their house on that day, had food and were staying with them till about 8 pm whereafter they went back to their house and within about half hour thereafter i.e., around 8.30 pm, he received information to the effect that Reshma had lit herself on fire was being shouted in the neighbourhood of her house and immediately the complainant and his wife ran to the house of the accused person and when they reached there, the owner of the house Ningegowda was standing outside the house holding Sachin- son of the accused and they found that Reshma was literally on fire; that the accused was inside the house, but did not take any steps for dousing or bringing to an end the flames; that the complainant along with neighbours joined together to douse the fire on the body of Reshma and by the time they found that she had died and also noticed that blood was oozing out of her head and this led them suspect that the accused must have assaulted Reshma on her head by some weapon and must have caused her death by pouring 6 kerosene on her body and lit her on fire and therefore necessary action may be taken in this regard.

3. It is the further case of the prosecution that PW.24 - Chandrappa - Inspector of Police visited the spot the next day at about 6 am and held an inquest; that PW.1 - complainant had shown them the spot and inquest was drawn up as per Ex.P3 and apart from the signature of the Inspector, had obtained signatures of panch witnesses - PW.5 - Shambugowda who is the neighbour, PW.6 - Rekha - sister of the deceased and PW.7 - Ningegowda - owner of the house and recorded their statement. At that time, the accused was arrested and produced before the jurisdictional Magistrate and was remanded to judicial custody.

4. The police have conducted further investigation, recorded voluntary statement of accused before produced him before the Magistrate and had also recovered MOs, 1 to 7, namely, burnt cloth, mat, blood stained mud, burnt echalu stick, one lattanige, one kerosene can, one match box respectively. The Inspector had also recorded statement of 7 PW.8 - Sachin who is the son of deceased and accused, PW.9 - Raju, PW.11 - Seenegowda and PW.23 -

Yoganarasimha, neighbour.

5. The Police filed charge sheet before the court on 9.11.2006 alleging that the accused had committed the act of murder of his wife and therefore was punishable under section 302 of IPC.

6. On behalf of the prosecution, as many as 24 witnesses were examined and documentary evidence Exs.P1 to P17 such as Ex.P1 - Complaint, Ex.P1[a] - Signature of PW1, Ex.P1[b] - Signature of PW1, Ex.P2 - Mahazar, Ex.P2[a]- Signature of PW1, Ex.P2[b] - Signature of PW2, Ex.P2[c] - Signature of PW24, Ex.P3 - Inquest report, Ex.P3[a] - Signature of PW3, Ex.P3[b] - Signature of PW4, Ex.P3[c] - Signature of PW4, Ex.P4 - Mahazar, Ex.P4[a] - Signature of PW10, Ex.P4[b] - Signature of PW21, Ex.P5 - Statement of PW11, Ex.P5[a] - Portion of statement of PW11, Ex.P5[b] - Portion of statement of PW11, Ex.P5[c] - Portion of statement of PW11, Ex.P5[d] - Portion of statement of PW11, Ex.P6 - 8 Statement of PW12, Ex.P6[a] - Portion of statement of PW12, Ex.P6[b] - Portion of statement of PW12, Ex.P6[c] - Portion of statement of PW12, Ex.P7 - Report, Ex.P7[a] - Portion of statement of PW5, Ex.P8 - Letter, Ex.P8[a] - Signature of PW16, Ex.P8[b] - Portion of statement of PW6, Ex.P9 - Sketch, Ex.P9[a] - Statement of Junior Engineer, Ex.P10 - P.M. report, Ex.P10[a] - Signature of PW17, Ex.P11 - Opinion report, Ex.P12 - Report of PW18, Ex.P12[a] - Signature of PW18, Ex.P13 - FIR, Ex.P13[a] - Signature of PW20, Ex.P14 - Voluntary statement of the accused, Ex.P14[a] - Signature of PW21, Ex.P14[b] - Signature of the accused, Ex.P14[c] - Signature of PW24 and Ex.P17 - F.S.L. report had been produced and so also the material objects 1 to 7 as indicated above.

7. PW.1 - complainant has deposed about the deceased being given in marriage to the accused about seven to eight years back about their living in Gerasanahalli Village, having two children out of the wedlock, the differences and quarrels between the couple, the incident about the complaint before 9 the Bilikere Police Station which came to be settled amongst the parties later in connection with the assault on the deceased by her husband, the dispute being settled at the Police Station, the couple being sent to Mudalakoppalu and two days where after they returned to Gerasanahalli Village, incident of accused having lit the saree of the deceased which took place two years ago and it was informed to the complainant by the parents of the accused who telephoned because of which the deceased had been taken back to her parental house and the accused approaching the complainant to mediate by expressing remorse and requesting to help for securing his wife back to matrimonial house; that he will not misconduct thereafter and later the witness helping the family of the accused to settle in Mysore by securing a rented house in the neighbourhood of the place where the witness was living. This witness has also mentioned about the habit of the accused consuming liquor and quarreling with his wife quite often and on this aspect also the witness had advised the accused. This witness has also deposed about the incident on the evening of 10 24.09.2006 and as to how the accused with his wife and children had visited his house prior to the incident; that they returned home and within about half an hour or thereafter he had received information about the incident and when he reached the place, they found the accused sitting near the door of his house and when he went inside opening the door he found Reshma was burnt with fire, son of Reshma and accused being with Ningegowda - owner of the house and lodging a complaint thereafter and visit of the Police the next day about the mahazar conducted by the Police and recovery of MOs 1 to 4 at the scene of occurrence.

8. During cross examination, he admitted that he had not seen the accused and his wife during the stay in Gerasanahalli and that part of their marital life nor when they were living in Mudalakoppalu - place of the accused. He has denied suggestion that the deceased caught fire accidentally. He has also stated that he was not aware of the complaint that had been given at Bilikere Police Station nor any complaint being registered there. He has also stated 11 that while they were living in Kumbalakoppa, the accused person used to visit them quite often and he was quite cordial with the witness whenever he visited the house of the witness - PW.1. He has also stated that when the incident took place, son of the accused who was about four to five years was in the house of the accused person. He has admitted that he had not mentioned about the visit of his son-in-law on that day at about 7 pm in the complaint that he had lodged. He has also denied the suggestion that he learnt about fire mishap on Reshma on reaching and was informed by the neighbours. He has also stated during cross examination that he did not speak to son of the deceased on that day after the incident nor had he taken him to the Police Station. He has denied the suggestion that the relatives of the accused had visited the Police Station the next day. He has also denied the suggestion that he and his other relatives had insisted on the relatives of the accused to settle the properties of the deceased on the children and it is because of their disinclination, he had prepared a complaint the next day morning at 8.30 am. He has also denied the 12 suggestion that just to harass the accused person, he has built up the story and alleged complaint - Ex.P1. He has also denied the suggestion that prior to the incident, Reshma was in very cordial terms with her husband.

9. PW.2 - Neighbour has deposed that the accused person, the deceased person and their son were residing in the house in the relevant period and that he had seen the deceased during their living in the neighbourhood. He has also spoken about the mahazar drawn by the Police and having signed the same and also spoken about the seizure effected by the Police at the time of the mahazar. He has stated that it was only after the contents of the mahazar was read over, he had signed it.

10. In his cross examination, he has stated that the Police were present during the previous night after drawing the mahazar and he had not told the Police as to how to draw the mahazar; that at the place of the incident, walls were blackened due to smoke; that the house where the incident took place was measuring 10 feet x 10 feet; that in the same 13 hall, there was kitchen, bedroom and other facilities; that PW.3 - S. Ramesh - another neighbour has also deposed about his acquaintance with the deceased and the accused as a couple and living with their son in the house of Ningegowda of Kumbarakoppalu. He had also seen the house where the incident took place. He has stated that he has witnessed the fire in the house of the accused on 24.09.2006 between 7.30 pm and 8 pm and when he went to the house, found that the deceased had sustained serious burn injuries and people were throwing sand on her body to douse the fire. The owner of the house and the neighbours were helping in this act. When he went, the accused and his son were inside the house and they were brought outside the house thereafter and as soon as he went to the spot, he brought out the accused and his son and made them sit outside. The body of the deceased Reshma was inside the house flat on the floor near the door. The Police had come to the spot on the night of the incident, but had conducted mahazar next day morning. The inquest was conducted in 14 his presence and mahazar was drawn and he had signed the same and identified his signature at Ex.P3[a].

11. During his cross examination, he has affirmed the statement that he had given to the Police and had denied the suggestion that though he had not stated before the Police, he is deposing falsely before the court to this effect. However, he has admitted he had not read the contents of Ex.P3 - mahazar and has also stated that he is not fully aware of the contents of Ex.P3.

12. PW.4 - S. Ramakrishna who is also witness to the inquest proceedings and has deposed about the mahazar.

13. PW.5 - father of the deceased has deposed about the relationship, marriage of the deceased and the accused about eight years ago, their living in Gerasanahalli, thereafter couple having one male child and one female child, about the accused harassing and torturing his daughter ever since the date of the marriage till her death, about his beating of his wife, about phone calls which the 15 parents of the accused had made to him on the day when accused had beaten his wife Reshma and on reaching the place the witness having seen the face of his daughter in a swollen condition. He has also deposed about he advising the accused and about the complaint that he had attempted to lodge before the Bilikere Police Station of the harassment meted out to his daughter by her husband, but the neighbours there appealing him to excuse the accused and give him one more opportunity for reforming himself and therefore the witness reconciling the same on not pursuing the complaint, but on the other hand, sending back his daughter to Gerasanahalli. After this incident, three months thereafter accused had again assaulted his wife and litting fire to her saree and information being given by the very father of the accused over the telephone and that the witness having brought back his daughter to his place and providing her treatment at his place; that the accused appealing to PW.1 to mediate in the matter to secure house to him and his family to live in Kumbarakoppalu at Mysore, about PW.1 informing him of the same and Panchayat had 16 been held in his place wherein PW.1 - Accused and three other persons on each side participated, on assurance of the accused that he will take good care of his daughter and on such assurance the witness having sent his daughter to continue her living with the accused, about the accused having taken the house of Ningegowda - PW.7 on rent and living in that house with his wife and children; about the accused objecting to his visit to their house when he used to go there to know about their well being etc., about the telephone call that he received at around 9.30 pm on the day of the incident [ 11 months before his deposition], about his daughter being set on fire and he reaching the place of his daughter and son-in-law at midnight when he found that his daughter has been totally burnt and blood having oozed out of the hind portion of her head, about daughter of the accused living with him in his village at that time and son of the accused and the deceased living with the couple in their house at Mysore, but he had not enquired about the incident. The Police had enquired him about he making statements before the Police, but he exactly not knowing 17 how his daughter died, but later on coming to know that the accused person had poured kerosene on her body, lit her and killed her.

14. In his cross examination, it is elicited that when he reached the place of incident, except for the Police there was no one else at the spot; that he came to know that the accused was at the Police Station at that time, but he did not speak to the neighbours about the incident and son of the accused being with PW.1. He has reiterated about the accused torturing his daughter - deceased person even earlier also and has denied the suggestion there was no blood oozing out from the head portion of the deceased when he saw body of the deceased. He has also denied the suggestion about his people insisting on the relatives of the accused to settle the properties in favour of the children of the accused, but the topic being raised in the Police Station the next day morning. But, the accused not having agreed for such proposal, saying that it was not proper time to discuss such things and because of that reason he has 18 lodged the complaint is not correct. He has also denied suggestion that the accused and the deceased were in very cordial terms till the death of his daughter.

15. PW.6 - Rekha - sister of the deceased and wife of PW.1 has deposed about acquaintance of the accused and has identified him in view of relationship and the marriage between the accused and deceased having taken place eight years ago and they are living at Gerasanahalli and thereafter about the accused coming to the house in a drunken state and harassing his wife, about the advise that he was being given to mend his ways, about her sister complaining about her husband harassing and beating her and many a times coming home in a drunken state and about her consoling her sister that things may improve in future and therefore have a little patience etc. She has also spoken about the incident two years earlier and as to how sister of the witness had come to their house complaining of beating by her husband and as to how her husband advised and counselled the accused and had them back together. She has also 19 stated about her sister living in Kumbarakoppalu for the past two years before her death living in a rental house and about continued complaints of her sister, particularly, about bad behaviour of her husband and harassment to her. She has also stated about the incident on 24.09.2006 consistent with the deposition of PW.1.

16. In her cross examination, she has stated that she does not have personal knowledge about the manner of living of the deceased and the accused at Gerasanahalli. She has stated that it was accused and deceased who were visiting their house and she and her husband were hardly going to their house at Mudalakoppalu. She has affirmed in her cross examination about her sister having been fully burnt. She went to their house after learning about the incident. While she has affirmed about the blood oozing out of the head of the deceased, she has stated that she has not touched any part of the deceased to satisfy herself and that she had also not spoken to the neighbours, but has stated that when she reached the spot, the neighbours were talking about the way 20 Reshma caught fire because of the acts of the accused and how they had to break open the door and then tried to douse the fire etc. She has denied the suggestion that the accused and deceased were living very cordially and there are no differences. She has also denied the suggestion that the accused himself had gone to the Police Station to inform about the incident, but has stated accused was present at the scene of occurrence.

17. PW.7 - owner of the house in his deposition has stated about the accused and the deceased being tenants in his house on monthly rent of Rs.350/-, about PW.1 securing the house on rent to the accused and the deceased, about the accused coming home daily in a drunken state and picking up quarrel with his wife and beating her and about his advising the accused not to indulge in such acts; that such incidents were occurring at the interval of fifteen to twenty days and also that he had asked the accused to vacate the house because of such repeated incidents and accused postponing the same assuring that he will vacate shortly etc. 21 He has also spoken about the incident on 24.09.2006 that he had gone out of the house and returned home at about 7 pm and was resting in his house and between 8 pm and 8.30 pm he noticed people outside the street had started shouting and there is fire in one of his houses given on rent and on coming out he noticed the fire in the house of the accused and when he went to the house of the accused, he found that the front door had been bolted from inside and because of the fire emanating from the windows of the house, he forced the door open and found the accused standing behind inside the house; that the child of the accused is also inside the house and as the door was forced opened the accused came out of the house, he brought the child of the accused outside the house and found that the body of the deceased had been fully burnt and still small fires on her body, he himself and people who had gathered around there tried to douse the fire by throwing sand on the body. It is thereafter PW.1 and others came to the scene; that in the house only accused, his wife - deceased and son were living and he also found that the accused had not made 22 any attempt to douse the fire on the body of his wife but was standing still.

18. In his cross examination, he has reiterated the statements he made in chief examination and has denied the suggestion that the accused was in the Police Station at around 10 pm on the day of the incident. On the other hand, Police had taken the accused on the day of the incident from the house of the accused. He has also denied the suggestion that the accused had come to the house only at about 9.30 or 10 pm and was not at the place earlier etc. He has also denied the suggestion that the deceased had accidentally caught fire and died and taking undue advantage of this incident, PW.1 himself lodged a false complaint and was deposing falsely to harm the accused.

19. PW.8 - Sachin is son of the deceased and the accused, about six years of age at the time of deposition as on 21.08.2007 and studying in second standard. The learned trial Judge has posed some preliminary questions to this witness to evaluate his level of understanding and as to 23 whether he will be able to depose in an intelligible manner and being satisfied about the same has permitted the examination of this witness. The child has stated about his living with his grandparents at Gerasanahalli after the incident and before that he was living with his parents at Mysore. While living in Mysore, he was living with the accused and the deceased and has identified the accused as his father. He has also stated that his mother is no more; that on 24.09.2006 the day of incident his father had hit his mother with a hammer, then poured kerosene and lit her on fire using match stick and because of which she died in fire; that he was sitting inside the house crying at that time and his father threatened him that unless he stops crying he will also be put on fire and will be killed etc.

20. During cross examination of this child, while his statement about witnessing the event has been to some extent impeached by the child indicating that he had been asked to depose before the court by his maternal Uncle - Devaraj; that he had come to Mysore three days before the 24 deposition and he had been told that he will have to state before the court as instructed; that he had acquaintance of PW.1 - his Uncle and PW.6 - his Aunt [Doddappa & Doddamma]; that they had been treating him well by providing eatables and had also brought him to Mysore on several occasions and they had also informed him that he will have to depose before the court and as instructed by them.

21. He has also stated in his cross examination that he was not attending to school at the time of incident; that he had slept by 7 pm on that day; that his mother did not shout due to the fire lit on her and he woke up because of the noise and at that time found his mother having fallen down and people came into the house by breaking open the door and has denied the suggestion that he had been tutored to depose about his statement that his father threatening him that unless he stops crying, he will also be lit on fire. He has also stated that he had been taken to the Police Station on the day of the incident but not later. He has also stated in 25 his cross examination that his Uncle had instructed him to speak well in the court Hall and therefore he is speaking accordingly. He has also stated in the cross examination that his Uncle had assured that he will take good care of him and continue his education in Mysore and because of that he had come to the court to depose etc.

22. PW.9-Raju, is a person who was the co-worker with the accused and has deposed that while accused was doing masonry work he was doing centering work and they are working together since the year 1992-93 onwards. He stated that PW.1 had helped the accused for taking a rented house in Mysore and to his knowledge he was living in his house for a while and there are occasions when the accused would go home drunk, abuse and beat his wife. The deceased-wife of the accused visits the house and many a time she had gone to the witness's house with the face coloured and when the reason was enquired she used to say that her husband has beaten her up.

26

23. This witness also stated that when he has questioned this conduct of the accused, he had replied to him that his wife was not obedient and that she used to retort and therefore he was beating his wife. This witness stated that he has counselled the accused to conduct in a proper manner. He has also stated that he has seen on the night of the incident the accused smoking and coming out of the house of the accused. He had also followed PW.7 when they got into the house of the accused and PW.7 had helped the son of the accused to come out of the house and at that time the face of the child had been blackened and he had seen the accused standing behind a partition-like a wall. Wife of the accused had fallen on the ground and the body was black and the blood was oozing out of the left ear. Witness and others tried to bring sand and water lying in front of the house and tried to put off the fire. By the time the police arrived, because of the fire and the consequential injuries, wife of the accused suffered burn injuries and died. In the cross-examination, he has stated that to his knowledge the accused and the deceased were on cordial terms but there 27 used to be occasional quarrels between the two as would happen in any other household but notwithstanding that continuously they were living together. He has stated that he has not visited the house of the accused earlier. He has also stated by the time the police arrived to the spot good number of other people, were gathered there. When he reached to that place, he saw PW.7 forcing the door open as it was locked from inside and he joined him in breaking open the door. However, he stated in the cross-examination that the place where the deceased was living was a small place and may be it was not possible to protect the victim. He has stated he has enquired the accused about the incident that he found the blood oozing out of the ear but did not notice any injuries on the part of the head. He has denied a suggestion that he has deposed that at the behest of the police, he has helped them and he has also stated what he has deposed before the Court during chief examination was as it happened for the first time as narrated before the Court. He has also stated that PWs.1 & 7 and himself were residing in the same area. He has denied the suggestion 28 that he has deposed falsely unknowing the version of PW.1 and also the relevant suggestion that he and PW.7 had been got into the house by force without entering into the house.

24. PW.10-Rajesh is also a witness to draw Mahazar and he has spoken about the recovery such as one Lattanige- MO.5, one Kerosene can-Mo.6 & one match box-Mo.7, which he had identified in the Court Hall as MOs. 5 to 7 respectively. In his cross-examination, he states that when he went to the house of the accused, the door was opened. There is no impediment or hurdle for going and coming out of the house. He had gone inside the house and he had not seen whether what articles are being kept there and he has come to know about it after the police have brought out of the house. He has denied a suggestion that the recovery for the seizure mahazar was incorrect and also denied a suggestion that he was not present at the spot at the time of drawing up of the seizure mahazar.

25. PW.11 Seenegowda is the father of the accused spoken to about the relationship of his son living in the house of the 29 deceased, his wife. They having two children one male and one female. He has stated that he was taking good care of his wife and he has not seen beating his wife due to suspicion or other reason. He has stated that his son was living with the deceased in Mysore for the past two years and has stated that he had not complained to the police. He has not given any statement before the police that the accused has poured kerosene on his wife and lit fire. This witness was treated as hostile. During his cross-examination, he has denied the suggestion that his son and his wife are quarrelling with many reasons and denied his earlier suggestion as per Ex.P5.

26. PW.12-Krishnegowda, a resident of Gerasanahalli, has spoken to about the accused and the deceased residing in his village. He has denied about as stated that he is not aware of any differences or any ill treatment to his wife.

27. PW.13-Puttananjayya is the Police Sub-Inspector at Yelandur Police Station. He has stated that he was earlier working in Bilikere Police Station in June 2003 to January 30 2005. He has stated that in October 2004, the deceased and her father had come to the police station and complained that the accused persons-husband-Mahadeva quarrelled in the previous night and has burnt all the clothes of the deceased and her children and likely to create problems to them that they have informed behind the back orally. When he had asked them to give a complaint in writing, they agreed and went out of the Police Station. After five minutes, Taluk Panchayath Adhyaksha Somegowda, Reshma, Shambugouda came back to the Police Station informing that they have settled the matter. At that time, accused, one Krishnegowda, Revanna, Channaankegowda had also come to the Station. In his cross-examination, he has admitted that there was no record of the said complaint in the Police Station and he does not remember who are all present on that day and what type of case was recorded. There is a system in the Police Station that if any body comes and gives a complaint that should be registered in a Case Register. Because he had not received any complaint in writing on the information and therefore did not make any entry in the 31 Register. He denied a suggestion that the deceased and her father-PW.5 did not come to the Station to register a case against the accused on that day is not true and the IO has taken wrong statement from his side to help the case.

28. PW.14-A.S.I. at Metagalli Police Station, who had recorded the FIR and had also forwarded the same to apprehend the accused on 25.9.2006. On 25.9.2006, he and one Dileep, Police Constable went to Kumbavarakoppalu in Mysore and identified the accused, who was standing in front of House No.41. He had enquired about the identity of the accused. Accused said that his name is Mahadeva; father-Seenegowda; aged 30 years and native place Gerasanahalli, Bilikere Hobli, Hunsur Taluk. He satisfied that he is the person, who was involved in the incident and who was named in the complaint, he was arrested and produced along with the report before the Inspector of Police. He identified that the arrested person is the accused involved in this case in the Court Hall and the First Information Report is not produced. In his cross- 32 examination, it is stated that around 11.10 minutes in the morning when they reached House No.41, they found that the said house is the rented house of the accused. When he reached the spot, no other person from the Police Station was found at the spot and he had not seen whether the inquest panchanama conducted at that time. He has denied a suggestion that the accused was in the Police Station at 10 pm on 24.9.2006.

29. PW.15-Annaiah.R. is a neighbour of PW.7-Ningegowda, he resides near the house, when the incident took place. He has stated that the accused person used to come to the house in a drunken condition and abuse his wife by saying that he is going to murder her. He has also stated that himself and other elders had advised the accused not to spoil the life of his wife and they asked him to take care of his wife. After their advise also, accused continued the same thing, they advised Reshma to give complaint against the accused before the Police. On the date of incident, he was on tour. The incident being informed by PW.7 that the accused 33 has caused the death of Reshma by beating her up and also poured kerosene, lit fire and murdered her, he could not go there, but the statement was recorded by the police after 20 days when he comes back from the tour. In his cross- examination, he states that he is returned from the tour on 12.10.2006 and 2 days after, the police enquired him and taken the statement. Nothing is elicited from this witness in favour of the defence. He denied a suggestion that he was advised falsely that he has friendship with PW.7.

30. PW.16-S.V.Kishore Kumar, Assistant Executive Engineer, who had sent one Mahesh, Junior Engineer to draw sketch on the scene of occurrence at the time of inquest according to the memo received by the Metagalli Police Station, he has identified the Sketch drawn by his Assistant-Mahesh and he also identified the signature of his Assistant-Mahesh. In the cross-examination, he has stated that Mahesh, Junior Engineer is still working in his office.

31. PW.17-Dr.Y.Udayashankar is the Doctor, who conducted post-mortem examination of Reshma. He has 34 stated that the body of the deceased was sent to his Department on 25.9.2006. Post-mortem was conducted between 11.45 a.m. and 12.45 p.m. at the mortuary of Government Medical College, Mysore. He noticed the following on the external examination:

"Length of the body is 172 CMs. moderately builty, Rigor mortis is present all over the body, Liver mortis and complexion could not be made out, because of extensive burns on the body. Tongue protuded and dark red in colour. Smell of kerosene present, bleeding through the left ear seen."

He is also stated about the blood being present over left temporal and parietal region an area of 10 x 10 cms. Skull shows fissure fracture of 12 cms. long extending from left temporal bone running downwards and medially to the hair of the left middle cranial fossa. Membrances shown all types of haemmhorrhages Brain shows coup contusion on left temporal region and contracoup contusions over right parietal and adjacent frontal and occipital areas. He also stated the burns were ante-mortem to the extent of 100 35 percent. Head injury is also ante-mortem caused due to blunt force impact to a free head. He has opined that the death having taken place between 12 to 24 hours prior to autopsy, death was due to shock, consequent to the burns sustained with the presence of head injury, possibly in a homicidal assault. He issued P.M.report and the same is marked at Ex.P10 and identified his signature at Ex.P10(a). In his cross-examination, he has also identified MO.5- weapon, which had been received by his Department to examine and to give his opinion. The article which was sent for examination is a round solid body wooden roller, measuring 26 cms. in length weighing 350 grams in weight. One end of the handle is broken. The circumference at the centre is 17 cm. The length of the intact handle is 7 cms. and circumference is 7.5 cms. He has opined that the head injury mentioned in Ex.P10 is possible if assaulted with the above described weapon-MO.5. The head injury is ante- mortem. The burns are unlikely from suicidal cause. He has also opined after examination, the said article was repacked in the same container, labled, sealed and handed over to the 36 concerned police. If the deceased Reshma was assaulted with article at MO.5 and to the injury she sustained, she immediately looses her consciousness. After loosing consciousness if the kerosene is poured on her body and lit fire, the burn injuries as mentioned in Ex.P10 may be caused to her. Due to the internal left side head injury sustained by the person, the blood was coming out from the left ear. He has stated in cross-examination that the head injury sustained by the victim was not visible, but it is internal head injury. He has made a suggestion that if the assault was made with force by using MO.5. will be appearing on the head portion. He has admitted that if force was used at the time of assault, the place where assault was made will be depressed, but not always. In normal course, if the assault was made with blunt object by using force, normally the depressed fracture could be caused. If the fracture injuries were caused, it is not necessary the blood will come out from the injury, Usually, the internal injury will be corresponding to the external injury. He has reiterated that the head injury as well as burn injuries are 37 fatal in nature to cause death. He has denied the suggestion that if the head comes into the contact with a hard round surface object, with force, the injury as mentioned in Ex.P10 in the head will not be caused. He has admitted that he did not notice any mark over the head to say that the article- MO.5 was used for assault. Also considering that any blunt object was used during assault, the head injury may be caused. However, he has reiterated that the injuries as noticed above, the injuries would have been caused by an assault in an object by the nature of MO.5 and when external injuries were not noticeable, internal injury can be attributable. Assault by using a blunt object though he has considered but has not mentioned in his report. The nature of the object which may cause the internal injuries establishes that it could be due to hit by an object like MO.5. However, the injuries are due to assault by the blunt object. Injuries due to burn, whatever being the cause for the death but the burn injuries was uniform in nature. He has answered that uniform burn injuries may be seen in the case of accidental burns. He is also stated in his cross- 38 examination that if such burns are caused at the beginning the victim may cry for help and the person may run around. He has also stated that the deceased has sustained extensive burn injuries when she was alive and it is also possible that due to congested place of incident extensive burn injuries might have happened. It is also elicited in the cross-examination that the deceased might have consumed the food 2 or 2½ hours prior to her death and there is no indication that the deceased having taken any non- vegetarian food. He has also denied a suggestion that he prepared the post-mortem report and given an opinion due to police pressure it would affect the death was due to homicidal death.

32. PW.20-M.H.Khan is the Police Sub Inspector, who had received the written complaint about the incident on 24.9.2006 from PW.1, when he was on Station duty. He has stated that thereafter he had registered a case in Crime No.118/2006 for the offences punishable under Section 302 IPC and has forwarded Ex.P13-FIR to the Court. Identified 39 his signature as Ex.P13(a). It is also stated that on the very day further investigation of the case is handed over to Charge Sheet Witness-30, who is PW.24-M.N.Chandrappa, Inspector of Police, Metagalli Police Station.

33. PW.21-B.Kumar, who is a witness to seizure mahazar- Ex.P4. He has deposed about the recoveries and inconsistencies with the other witnesses who have signed the Mahazar evidencing the recovery of MOs. In his cross- examination, he has stated that he had not been asked by the police to come to the spot for any prior intimation that he had been informed about the incident and the mahazar to be drawn at the Station.

34. PW.23-Yoganarasimha, Police Constable of Metagalli Police Station, who had taken the FIR-Ex.P13 to the Court and produced it before the Magistrate at 11 a.m. on 25.9.2006, he has stated that the distance between the Court and the Police Station is 4 km and the Police Station is on the main road. There is specific transport between the Station and the Court. Even if he walks from the Station, it 40 is half-an-hour to reach the Court. He has denied a suggestion that FIR was given to him for presentation before the Court only at 10 a.m. on 25.9.2006.

35. PW.24-M.N.Chandrappa is the IO of the case. He has spoken about the investigation and filing of the charge sheet. During the cross-examination he has denied a suggestion that the accused had come to the Police Station in the night of the incident for lodging the complaint. He has also denied the suggestion that the witness reached the spot on the date of occurrence at 6'o clock in the morning the accused had accompanied them in the Police Station and they have denied the suggestion that after visiting the spot next day morning and only at the behest he had registered the case against the accused and he has also denied a suggestion that he has thereafter arrested the accused who was already present in the station. He has also denied a suggestion that the accused had not given voluntary statement in the Station in the presence of witnesses. he has also denied a suggestion he has created PW.8-Sachin, as an independent 41 witness to the case after visiting the spot of occurrence. He has also denied a suggestion that PWs.11 and 12 had not given statements before him as per Exs.P4 and P6. He has denied a suggestion that during the course of investigation he had come to know that the accused caught fire to the deceased Reshma. He has also denied a suggestion in respect of such an accidental incident at the behest of the elders of Kumbarakoppalu, he has registered a false case against the accused.

36. The learned trial Judge on evaluating and appreciation of such evidence before the Court had formulated the points:-

1. Whether the prosecution proves beyond all reasonable doubts that on 24.9.2006 in the night at 8-30 p.m. in the house bearing No.41 situated at Kumbarakoppalu, on water tank road at Mysore the accused who was suspecting the character of his wife and used to harass her and in spite of advise made by the elderly persons, the accused suspecting the character of his wife and assaulted his wife 42 by name Reshma on the back of her head with Lattanige (®lÖtÂU)É and poured kerosene oil on her and lit fire and committed the murder of his wife and thereby the accused has committed an offence punishable under section 302 of IPC?
2. What order?

37. For answering Point No.1, the learned trial Judge has discussed the evidence on record and has accepted the prosecution story that the motive for the crime was the accused having suspected the character and fidelity of his wife. The post-mortem report, the evidence of PW.17 indicates that death was a homicidal death. The evidence of PW.17 is not been seriously challenged nor is it suggested that the very post-mortem report is false and incorrect one. That the evidence of PW.3 and PW.5 clearly indicated the presence of the accused at the place of the incident namely, the deceased getting burnt and suffering 100% injuries resulting in her death. It is also indicated there was injury on her head; that their evidence also revealed the quarrels 43 and ill treatment by the husband on his wife-the deceased, that they shifting their place of residence from Gerasanahalli to a rented house at Metagalli, Mysore, they are living in Metagalli for three years and the evidence of the other prosecution witnesses also indicating the frequent quarrels between them, the evidence of PW.1, PW.7-owner of the house and PW.9-friend and co-worker of the accused revealing that the accused was inside the house which had been bolted from inside at the time of occurrence, that their son PW.8 was also inside the house and the supporting evidence of other prosecution witnesses clearly indicated the circumstances loaded against the accused person and that the accused who had 313 statement had while explaining and who had been given an opportunity to explain the circumstances owed against him, nothing taken against, he was not present at the place of occurrence but was available in the Theatre and not having made out this evidence by any supportive material placed before the Court and which is accepted with sole eye witness namely., the child of the accused and the deceased. Child PW.8-Sachin while 44 witnessing the scene and while even his father involved in the act and he himself saw her mother sustaining to burn injuries and the recovery of material also to this point is an erring finger towards the accused persons. Concluded that the prosecution had made out a case beyond reasonable doubt and accordingly found the accused guilty of the offences charged and sentenced him to punishment of imprisonment for life.

38. It is against this Judgment and sentence, the present appeal.

39. Appearing on behalf of the appellant, we have heard Smt. Rahat Afshan, learned Counsel appearing for the appellant and Sri N.S.Sampangiramaiah, learned HCGP appearing for the Respondent/State.

40. Smt. Rahat Afshan, learned Counsel appearing for the appellant has mainly pointed out all the inconsistency in the prosecution case that prosecution in-fact has not made good its version beyond reasonable doubt that the prosecution 45 story and the supporting material placed before the Court to make good its case has left many gaping holes in the prosecution story. When the prosecution has never made good its version, about the incident as having taken place only due to the intended acts of the accused person, the learned Judge of the trial Court has placed unnecessary and unwarranted reliance on the so called eye witness, a child of the young age namely., 4 years at the time of incident. But even the child had while not deposed consistently about the incident and had during cross-examination not only stated that he had been tutored to depose so and having regard to the considerable gap between the incident and the date of giving evidence, the possibility of the child narrating the incident by memory is rather remote and so also the statement to the effect that the accused had threatened the child; that the child also will be done away, but it is all due to the fact that the child has been tutored to depose things. The Judgment of conviction is vitiated due to erroneous reliance placed taking into consideration the child witness as an independent witness.

46

41. It is also submitted that the post-mortem report has also left with many questions and doubts. The Doctor had not given a definite opinion about the cause for death and was not sure whether it was due to a blow to the head with the blunt object or whether it was due to extensive burn injuries that an opinion of this nature which was not conclusive one way of the other and even the Doctor opining the possibilities of such injuries occurring with any accidental death taking place or when there may be an accidental fire, conclusion that the death was a homicidal death, the very opinion was not clear or clinching and as the cause of death even as conceded by the Doctor may be due to an accidental fall or an accidental fire. There could not be a definite conclusion that the death was a homicidal death and in this state of affairs of accusation levelling the charge of an offence punishable under Section 302 IPC against the accused person is too far-fetched. Therefore, he submits that the Judgment is vitiated as not sustained in law and liable to be set aside. It is also pointed out that while the version in the FIR and the complaint lodged by PW.1 was to 47 the effect that on the date of incident he had prepared some special dishes in the house of the accused and the deceased may be consumed. The post-mortem report would not indicate there was presence of any non-vegetaraian food, which was consumed by the deceased, but the definite opinion that the contents in the abdominal region disclose only vegetarian and not any non-vegetarian. That in itself throws that there is suspicion on the very prosecution story based on the complaint which itself was in variance with the post-mortem report.

42. Learned Counsel has taken us through the evidence of PW.8-Sachin to point out the inconsistencies and make good submission that it is smothered evidence. Learned counsel has also drawn attention to the absence of any material on record placed by the prosecution before the Court to indicate any past incident to attribute a motive of the nature of the accused suspecting the character and fidelity of the deceased, his wife and also about past incidence to sustain the story of the accused having been in the habit of beating 48 his wife and harassing her on earlier occasion also. It is submitted that the evidence of PW.13-PSI, who has claimed that he was working at Bilikere Police Station and received an oral complaint from the deceased and her father PW.5- Shambugowda about the harassment and ill-treatment of the deceased even about two years prior to the incident. Absence of any record in the Police Station in a serious matter like this, is indicative of the fact that it was only a made up portion of the prosecution and PW.13 is an employee of the Department trying to help out the Department more-so to help the investigating police Department to make good his case etc., It is also submitted that the conduct of the accused person is definitely not suggestive of committing a crime; that the accused had remained at the scene and he had never tried to flee from the place and that he was also co-operative in the investigation etc.; that whether before the incident or after the incident he had not made any attempts to flee from law or justice, but in fact he had made an attempt to lodge a complaint of the incident himself but the police had not 49 accepted that. On the other hand police have investigated the complaint of the complainant, due to the pressure of the elders in the village and therefore the entire prosecution story is a made up one and not believable and the conviction secured on a false complaint and not supportive evidence let in by the prosecution, could not have resulted in a conviction and therefore submits that the judgment should be set aside and the accused be acquitted of the charges holding that the charges are not made good.

43. Learned Counsel has placed reliance on the Judgment of the Supreme Court reported in AIR 1983 SC 274 [STATE OF ASSAM v. MAFIZUDDIN AHMED] to submit that evidence of a sole child witness of tender age cannot be relied upon nor is it safe to secure conviction on the basis of the evidence that the sole witness as a child. Reliance is also placed on the Judgment of the Supreme Court in the case of STATE OF MAHARASHTRA V. MADHUKAR GOVIND PAKHARE reported in AIR 1988 SC 2978. She submits that unless circumstantial evidence was cogent, convincing 50 and pointing an erring finger towards the accused, conviction cannot be secured; that in the present case, if the evidence let in by the prosecution and the evidence of the child witness is ignored and therefore amounting to a case of circumstantial evidence for proving the case being neither cogent, nor threat and with so many gaps to indicate thing would not have resulted in conviction of the accused and the benefit of doubt, if at all goes to the accused.

44. Learned Counsel has submitted that the possibility of the incident having taken place i.e., the death of the deceased due to an accidental fire or accidental fall being one of the possibilities and even as opined by the Doctor- PW.17 death was due to hit by an object blunt in nature and the nature of MO.5 resulted in injuries good enough case due to extensive burn injuries and also one such possibility of the two, the one favourable to the accused should have been preferred by the trial Judge. Therefore, the accused should have been given the benefit of doubt and should have been acquitted rather than convicted. He has also pointed 51 out that neither in the complaint nor in the FIR mention is made about the presence of the child at the place of offence, which is a strong circumstances to indicate that the child witness is planted only to bring him as a possible eye witness and it cannot be said that there was an independent witness to the incident and that too in the form of PW.8.

45. The delay in filing of the complaint inasmuch as the incident being taken place between 8 and 8.30 p.m. but the complaint was lodged only at 11.30 p.m. is not properly explained, that too when the distance between the Police Station and the place of occurrence being just 2 kms. There could not have been such an inordinate delay; that the delay throws doubts on the prosecution case and the correctness of the complaint. This also goes against the prosecution and when such a doubt arises, the benefit naturally goes to the accused and not to favour the prosecution. For this reason also, it is submitted that the Judgment under appeal is not sustainable.

52

46. On the other hand, Sri N.S.Sampangiramaiah, learned HCGP appearing for the Respondent/State has strongly supported the Judgment under appeal and submitted that the prosecution has established a clear case of murder on the part of the accused; that apart from the evidence of child witness, the circumstantial evidence from the available material before the Court was good enough to hold the accused guilty of the offence; that the prosecution has established the motive such as the accused doubting the character of the deceased through the evidence of PW.1, PW.5 and PW.9; that PWs.1, 3, 7, 8 & 9 had very clearly stated the presence of the accused at the scene of occurrence; that the recovery of material object as spoken to by PWs.10, 21 and 22 linked the incident to the object and to the accused person. It is submitted that the post-mortem report and the evidence of PW.17-the Doctor who had conducted the autopsy had clearly indicated the homicidal nature of the death and the conduct of the accused in not making any attempt to douse the fire on the body of his wife is being clearly established by the evidence of PWs.1, 6 and 53 7; that this fact clearly indicated an intention on the part of the accused that he decided the death of his wife by burn injuries and when the accused having taken the defence that he was not at the place of occurrence in his statement made at the time of questioning him under the provisions of 313 of Cr.P.C. and not making good presence else where such as in a theatre at that time, only confirmed the prosecution story and the defence putforth was a false, incorrect defence and these things coupled with the evidence of PW.8, the child witness and that the statement of this witness as having earlier been recorded by the Investigating Officer.

47. PW.24-M.N.Chandrappa, only made good prosecution version and that the evidence of the child witness was not as suggested by the defence i.e. a made up story or tutored witness; that the relationship between the couple was not in dispute and it had been spoken to by many witnesses and many independent witnesses having supported this version of the prosecution. The evidence of prosecution witness about the conduct of the deceased after marriage and upto 54 the date of incident being one of meeting out harassment to his wife etc., not seriously being challenged, all these circumstances clearly indicate that the accused is obviously guilty of the offence and with chain of circumstances pointing out the erring finger of guilt of the accused but the accused not making much more chance nor make his conclusions for accused being found guilty.

48. The learned government pleader submits that the learned trial Judge on an overall appreciation of the entire material on record has come to the right conclusion that the accused is guilty of the offence charged and therefore submits that the Judgment and conviction should be sustained.

49. It is also pointed out that the anomalies and inconsistencies pointed out by the learned Counsel for the appellant such as the delay in lodging of the complaint or the possibility of the incident being an accidental one and the opinion of the Doctor who has conducted the autopsy to the effect that there is also a possibility that the injuries and 55 resultant death can be attributable to the accidental incident also are all not as serious as to warrant an interference in the Judgment; that in fact there is not much delay or no delay at all; that a meager delay assuming that there is some does not in any way affect the prosecution case and the so called inconsistency in the complaint to the effect that in the house of PW.1 they had prepared non-vegetarian food, but the post-mortem report did not mention about the existence of any non-vegetarian food particles in the stomach of the deceased, cannot make any difference to the prosecution case as the deceased need not have consumed what all food had been prepared in the house of PW.1 on the day.

50. Be that as it may, that it is not a circumstance, which create a doubt in the prosecution story and insofar as the opinion of the Doctor is concerned, opinion is significant only insofar as it related to, opining that the death would be due to a version as indicated by the prosecution and other things are not very material as the Doctor has not opined that the death cannot be attributable, such injuries are 56 homicidal in nature even with regard to the evidence of trustworthiness which are caused otherwise.

51. Sri N.S.Sampangiramaiah, learned HCGP appearing for the Respondent/State has pointed out that the child, who was tender in age at the time of incident and in fact the learned trial Judge posed some preliminary questions on the incident to ascertain the understanding capacity of the child, and only after the learned trial Judge was satisfied, the child was permitted to examine and therefore the evidence of the child cannot be ignored totally but the evidentiary value to the extent it should be accepted and should be taken into consideration.

52. We have perused the Judgment, the evidence on record and bestowed our attention to the submissions made at the bar.

53. Except for the sole eyewitness, which is a child at the tender age of 6 years at the time of incident, it is to be taken that the prosecution case has to be made good only by the 57 circumstantial evidence. We have to re-appreciate the evidence on record as noticed above and we have also bestowed our attention to the value that could have been attached to the evidence of the child witness. The evidence if it is accepted then it constitutes the evidence of an eyewitness.

54. We find that the prosecution story is supported by not less than 10 witnesses and the defence has not been able to discredit the evidence of PWs.1, 3, 5, 7, 9, 10, 17, 21 and 24. Evidence of PWs.2, 6 & 8 is also supportive. Homicidal death is made good as in the first instance death is homicidal and not due to any natural cause but due to injuries suffered by the blow on the head of the deceased but also due to the burn injuries.

55. In a situation of this nature and the Doctor has opined either event could be first but which is also good enough and ultimately it is shown that both injuries that occurred were prior to the death, which fact is coupled with the conduct of the accused, whose presence at the place of incident is made 58 good by oral evidence let in by the prosecution and as noticed above, particularly, the accused being totally inactive and not having made any attempt at all to save his wife from the effects of the burns on her body and on the other hand having put up the defence that he was not at the scene and having failed to make good this defence of being away from the scene by leading any supportive evidence in this regard and therefore not having explained the circumstances against the one which is totally within his knowledge, adverse inference against him necessarily has to be drawn in the wake of provisions of Section 106 of the Indian Evidence Act. It is this conduct of the accused in not having made any attempts for preventing the fire on the body of the deceased spreading and accepting her death though he had taken up a defence that he was not upto the scene but they have failed to break all the presumption of holding him guilty or have not explained his conduct or not making good his defence.

59

56. Though learned Counsel for the appellant has tried to create holes and gaps in the prosecution versions etc., we find that the delay is definitely not the one which can affect the prosecution evidence let in before the Court to make good his version.

57. Even the inconsistencies in the complaint or in the FIR with the later evidence, assuming that there is some inconsistency, it is not of such nature to disbelieve prosecution theory and of very little consequence or no consequence as an FIR should not be been given more importance and an information provided to the Police/Law Enforcing Agency about the incident and to set the law into motion and it is neither necessary nor of much significance as to give vivid description of the incident in the complaint which is in First Information Report. First Information Report is neither a piece of substantial evidence nor by itself affects a prosecution case in one way or the other is the settled law, unless it is a situation where it is made good that the entire prosecution story is a concocted one and a 60 false case is foisted and therefore the contents and the time of lodging of a complaint or First Information Report assume significance and importance. In the present case, an interval of 2 to 3 hours between the time of occurrence and lodging of the complaint can never be considered to be a set back to the prosecution case and in an incident of this nature, the parties will be mistaken of doubt and not to the uppermost in the mind, who lodged a complaint in the Police Station.

58. Even with regard to the submission of learned Counsel for the appellant that the incident may be due to an accidental injury to the deceased is while not very consistent nor the only inference that can be drawn from the material evidence on record, we find on the other hand a stand of this nature and the possibility of an alternative is not the one which can be arrived at through an argument at the appellate stage, but by taking a definite stand on the part of the defence and by making suitable suggestions to the prosecution witnesses. We do not find that kind of attempt 61 in the present case, to suggest that the incident was an accidental one.

59. In the present case, even the accident theory, cannot be putforth because the conduct of the accused is not the natural reaction of any person to a situation of his wife catching fire and trying to douse the fire, but no attempt is made at all, which conduct only points in the direction of the intended mind of the accused for the happening of the incident.

60. We find the reliance placed by learned Counsel for the appellant on the Judgment of the Supreme Court reported in AIR 1983 SC 274 [STATE OF ASSAM v. MAFIZUDDIN AHMED] is not very helpful or relevant to the appellant/accused in this case, as in the first instance, the conviction is not secured on the sole eye witness account of the child; that in fact even ignoring that part of the evidence of the child witness, that he had seen his father hitting his mother, later on pouring kerosene and litting fire on her, there is no doubt about the presence of the accused on the 62 spot being made out by his evidence, assuming that he was not awake at the time when the alleged incident took place he has seen his mother on fire. He has also positively stated that when he has started crying after seeing the incident, his father has threatened him that he will also be murdered unless he stops the crying. It is a clear circumstances that goes against the accused and therefore is not a case where the evidence is not cogent or convincing.

61. So far as the Judgment of Supreme Court in the case of STATE OF MAHARASHTRA V. MADHUKAR GOVIND PAKHARE reported in AIR 1988 SC 2978 is concerned, we find that the circumstantial evidence, even ignoring the evidence of the child eye witness by itself is good enough to prove the prosecution theory in the present case as there are not many holes and gaps in the evidence of the prosecution. In fact there are not many circumstances in the present case and therefore not much scope to pick holes in the prosecution case. There is only one circumstance, which is the presence of the accused at the place of incident, which is 63 spoken to by many witnesses and no explanation offered by the accused and on the other hand having failed to make good his defence, by placing any acceptable evidence in this regard before the Court and with the positive evidence against the accused, which is in the nature of circumstantial evidence inevitably pointing an erring finger towards the accused person.

62. Therefore, we find no error or illegality committed by the learned trial Judge in finding the accused guilty of the offence charged with convicting him and sentenced accordingly. No cause to interfere with the conviction.

63. In the result, we dismiss the appeal.

64. Before parting, we would like to place on record a word of appreciation about the manner in which the appeal presented by the learned Counsel for the appellant. This is an appeal of the convicted person, who had been provided legal aid by the Legal Aid Committee. We fix Counsel's fee to be at `5,000/- and direct the Legal Aid Committee to pay 64 this fee to the Counsel, who has argued the case for the appellant.

Sd/-

JUDGE Sd/-

JUDGE AN/cp*