State Of Karnataka vs M Shaheera on 10 November, 2010

[Cites 19, Cited by 0]

Karnataka High Court

State Of Karnataka vs M Shaheera on 10 November, 2010

Bench: K.Sreedhar Rao

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 10m DAY OF NOVEMBER, 2o1of..

PRESENT:

THE HONBLE MR JUSTICE K. sREEDHAR;----RAC~.   R.

AND

THE HON'BLE MR. JUSTECE _ 

CRIMINAL APPEAL No.12i<5__ oE'2ooS ($1., «. " '

BEIVVEEN:

.?~'v.*

State of Karnataka V   =  ' 
By the Sub Inspector GfPQ1iCe,2;_' 3 "  A a _
Siddapur Police Station.  V     .A_';V.,};'Appe11ant

[By Sri. G.BhaV;3;;f;f'  

AND:

1. {M.Sh3hteeran,i.4 h"
S/0' Mt1sthlV&f,Vt   
Aged' about ' 23. 
Occ}-Fish Merc_haf1t,

; ' Residirig at " A
" ' VSjdd_apu1" V i.Ela.ge.

"  _ SaﬁyaAVW/o Musthaf,
 . Aged  42 years,
' O.oC':eA'i1F{ouse Wife,
Residing at M.G.Road,
" Siddapur.

  M.1\/Iusthaf s /0 Late Usrnan,

Aged about 49 years,

Occ: Coolie,

Residing at M.G.Road,

Siddapur. . . Respondents

{By Sri. T.A.Karumbaiah, Advocate} This Criminal Appeal is filed Under Section 3?_'8 [1] and (3) of Cr.P.C. praying to grant leave to file an..ap:i)iea1 against the Judgment dated 05.03.2005 paseea_;hyee District and Sessions Judge, Kodagu, inf S.C.No.28/2002 -- thereby acquittiiigthe re's}iQn€ie'n,ts'..,,' ' accused for the offence Punishabie Under Section' IPC.

This Appeal coming this day, Keshavanarayana, J.', ideiiveired. foilouring The to 3 were tried for the them for the offence punishable' 302 IPC, before the District and Sessions Kodagu, Madikeri in «..,S~C£i*£0s:.?:8,C_2OO'2';'After the trial, they Were acquitted by g_Sthe:.::Sessi0ns Judge. Aggrieved by this, the is in aiioeal before this Court.

2., The case of the prosecution in brief is as under; =:_'dfAccused No.1--M.Shaheera married deceased "---'ii:ttazimunnisa daughter of PW.19--Ameena on 8.11.2001. After the marriage she started living with her husband- accused No.1 and parents--ir1--law accused Nos.2 and 3 in Siddapura Town. While staying so in her matrimonial home, the accused were cornplainingjthat she does not know cooking and to take husband and in--laws properly. In this were some differences between the accused 4th'e.._on.e.' hand and the deceased Naziniunnisaxon fact was known to the motheriéddarid .other'relatives of the deceased. During the;Vj_1{i.'2-_.p2002, accused No.1 and the deceased sleptv-iriside'--tl1e their house. In the at .a.1r1..Jaccused No.1 left the thevdeceased did not come out of i'ooni,_:aAtf a.m., accused No.2--the moth:er--in~law..of the deceased went inside the room and dead on the cot. Immediately, father--ir1--law of the deceased _ werit to.-__Sidd'apura Police Station and lodged a report at aﬁiri. about his daughter~ir1--law lying dead inside 'thVeb'edroom of his house. Based on the said report, the T "case in UDR No.6/O2 was registered as per EX.P.}.4:. Immediately, the police Visited the scene of occurrence, shifted the dead body to the Hospital where the Doctor conﬁrmed the death of said Nazimunnisa. Thereafter, the Investigating Officer held inquest over the deadlbody of Nazimunnisa. In the meanwhile, the mother-.aifi:c_i__i't.h_:e' relatives of the deceased were informed " O and all of them came to the Hospital,:yVh.er'e find the dead body and they.4__.wereT_toid body is in the house of the andltherzefoire, they went to the house of tfiiefacctisegd the dead body of the deceased ,there.A ¥:K.A.i\/Iustafa, maternal uncle 0fg"t-I1:3_e complaint as per susbecting the death of the deceased'be'ing "one and the accused being the Lanhd ."reI.atives of the deceased as herlmdeath. On the basis of the said of'~..-"'PW.1, case was registered and V V' _ invest.iga.tion«--'Was taken up. On the same day, accused Inwas" apprehended and since he was also found to "sustained some injury, he was taken to the O -«'..:V'f1'ospitaI for examination and treatment where he was O examined by PW.9«~Dr.Prathibha, Medical Officer in the Gove1'11me1it Hospital at Sicidapura. Before PW.9 accused No.1 gave history of his injury as assault his wife Nazirnunnisa at about 5.00 a.rn. on the said history was recorded by PW.9 in "

and the same was mentioned in Vt-herwound_,:Certifica.te Ex.P.7 issued by PW.9. Subseduweritlyi, accused«. and 3 were also arrested after. 'the it investigation, the charge. sheVet"Cra_:nae'V"to be laid.

3. On comrnitta1';.the court of Sessions, ugduilty of the charge to be tried. The prosecution 'the guilt of the accused persons to 33, reiied on documentary .to___P..24 and M.0s.1 to 8. The defence o1'°.VtheacVcuse'd..Was one of total denial and that of faise irnpIicatio1ic;'j_ it hearing both sides and on assessment of A 5_'thVed"'*~«ora1 and documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has failed to prove the various circumstances relied upon by it to connect the accused @ to the death of the deceased and therefore, the guilt of the accused for the charge levelled against them':

offence punishable under Section 302 {PC is not established beyond" '1'easona'olAeV:' Consequently, the accused were.__ , A. aggrieved by the judgment of-vtacquittal-,._thef'.=Statethis in appeal.

5. We have heard learned Additional the appellant .._ State counsel appearing for the We have perused the records and_c1oselyx"s.cniti'nized the evidence, both oral _._as as documentary and also read the judgment "1 _un:derVappepaI.,_ Al" v ._ A Ivnthetlfacts and circumstances of the case, the points that arise for our consideration are, it {ti} Whether the learned Sessions Judge is justified in holding that the prosecution has failed to prove the charges levelled against the accused persons and in acqaitting them'? and A &/it (2) Whether the judgment under appealflhi suffers from any perversity or calling interference by this Court'?

7. The relationship betweerrpthe accused ,andgtl2_e4 '* deceased is not in dispute. Accusepde deceased on 8.11.2001. The_iaet that VNazi:i:idu?en:.e.a -died on 15.2.2002 in the bedroom...of"t.he.._vhouse acicused is also not in dispute. evidence of PW. 9, on 15.2.2OQ2j:' she post mortem examinationfon dead bod"y~~of Nazimunnisa and she observed V " .

''d'Body._of AAa»'V'fe111ale aged about 16-18 years, ri'rod_e_rate1y built and nourished. ,, inortis present all over the body. RM. stai,niri'g.present over the back and buttocks in colour. Under cloth smells of ~ urine Elchyrnosis present over the neck and AA face".

it 2) a) There is an abrasion in the center of neck in the midline at the level of the thyroid cartilage measuring 0.5cm X, 0.2crn, reddish in colour.

b) There is an abrasion in the center of neck in the midline just below 2(a}""'*--,p measuring 0.4c1nxO. lcms reddish" : H' colour. A4 A

c) There is an abrasionpppin the"c'en.ter'of neck in midline measuring colour. V p it d d] There is.' an abrlasion in.' the neck right sid'e.:i"4cI'nsniidline at the level of cart;ilage._' 1 rneasuring ; re --i.n___cfolour.

' over the neck ~ "niidline at the level of . '(L-artilage on left side.

~ There..:'isd':'an4'abrasion over the neck froniﬁniidline at the level of the cartilage on left side "«ﬁ"measuring 1cn1x0.3cn1s reddish in L tcolour.

' dissection extravasation of blood present in the subcutaneous tissues on both sides, corresponding to the abrasion mentioned earlier; contusions present over subcutaneous tissues and muscles.

(3) Sub conjuctival haemorrhagic spots present on both sides. _ According to her further evidence fracture and dislocation of hyoid bone present on the left sideyand extravessetion of blood into fractured site noticed. She has opined that the asphyxia as a result of throttling. been cross--eXamined at ierigth. hatre'._:e.arefi.1llV3hz examined the answers elicitedléllinpithee crossfeigaltiination of PW.9 and we find nothing or discredit her testimony with regard:.to~ﬂj:e causellof Therefore, the uncontro§';Ie1tejd_V_ would clearly establishh"thati,5»vtheE:'§.'death: of Nazimunnisa was due to throttling 2 as psuch; 'death was homicidal. The next' «question required to be considered is

-responsible for homicidal death of the deceased. No doubt the case of the prosecution rests on 'V.circum~sta;ntia1 evidence. The deceased was none other wife of accused No.1 and dat1ghter--in--1aw of ix"-«mllaccused Nos.2 and 3. The death has occurred inside uifthe bedroom in the matrimonial home of the deceased. Of course, the prosecution in order to connect the E./yj 10 accused to the death of the deceased has reiied on two circumstances, nameiy, the motive and the deceased being in the company of accused No.1 bedroom in or about the time of death. H learned Sessions Judge. the to prove the circumstance of learned Sessions Judge in where the prosecution rests on motive plays an important about this legal position". llfpiowev-er,€ptiie 'leaI'ned__.Sessions Judge to base thleuprlosecution has failed to prove the' the testimony of material Witnesses prosecution in this regard . they are all close reiatives of the therefore, their testimony cannot be accepted'. A'l'his approach adopted by the iearned Ses.sior1*s Judge, in our opinion, is improper and J to the well settled principies of iaw with regard appreciation of evidence of witnesses who are related to the victim or the deceased. It is well settled law by catena of decisions of the Apex Court and this Court 11 that the testimony of a witness cannot be discarded only on the ground that he or she is closely related Victim or the deceased. Nevertheless, the of _ such witnesses have to be closely_ scrii'tI1ii:}§e:d "' accepting the same to rule out implication. In the cased-on _ thedavdrnaeteirial witnesses examined theAVg4)irosecii'tio1;'l . the motive are no doubt deceased. In a case of this natulfe, be the close relatives4__V Generally the neighbours not come forward to give evidencelagainstltheaccused for various reasons. In thiscasel"neighbours of the accused who . l."Were"--eXa§'i'nined byvthe prosecution have turned hostile sitpported the case of the prosecution. On l _ thaAt"'«grou'r1dA«lthe testimony of close relatives cannot be W H " 'discarded...

9. PW.l9--Ameena being the mother and PW.1-- u:fMusthafa being the maternal uncle of the deceased in our opinion, are natural witnesses. It is a natural event 23/ 12 that the daughter would inform her mother and other close relatives as to what transpires in her matrimonial home. PWs.1 and 19 have deposed in about the differences between accused_No';-l..V _ the .1 deceased and also about the deceased saying that she does no't_v'l{r1ow does not take proper care of h_usband:ia:ndVVfin--1aws. Evidence of materia1'wit'--nesses»wo_u1d~c1early establish that there were some differeriees bietweveniaccused No.1 and the deoe.ase§:l't' tl1ereforefa1l"'that was not well between the' There used to be frequent quarrels between= them; ._Und.ei'~.___ithe"se circumstances, in our opinion. the" learned Sessions Judge is not justified in 11"hOvld'ingE5that~the eiiidence on record is not sufficient to attributed against accused No.1 if not against ,.ace1i'sed Nos.2 and 3.

or :'The other important circumstance relied upon 'the prosecution is that the deceased was found in

-it-he company of accused No.1 inside the bedroom in or about the time of her death. According to the evidence ('I 13 of PW. 9, the age of the injuries found on the deceased was within 12 hours prior to the post examination. Post mortem examination ~ between 3.05 pm. and 5.15 p.rr1._on hours prior to the conduct of post takes us to between 3.00 "the 3' 3 crucial question is as to deceased was found in the igetween 3.00 am. and iétccording to the evidence ofgat' about 10.30 a.m., Station and lodged a report the death of his daughter-

1n--law.1n house anddon that basis he registered the :,.UDR.éNo.0/V0'2Avand on the same day he visited the house of accused Nos.1 to 3 and conducted _spot mahazar in the presence of panchas also_.:accused No.3 as per Ex.P.3. There is no siseriotis cross--eXamination to PW.13 in this regard. The contents of Ex.P.3 indicate that the dead body was " found in the bedroom in the house of accused Nos.1 to

3. Therefore fa.-om the evidence on record it is clearly 14 established that the death of the deceased had taken place inside the bedroom of the house of to 3. Now the question is whether accused * the company of the deceased o'f-if death. Of course, in this regard»':'as:i'--per prosecution, the complaintflodidged 'was if the basis for setting.,_th6iA"c'r:ii¥1inVal__ law""on7§motion. However, since it wasﬂthe: by accused No.3, the it cannot be used agairist Nevertheless, there is intzvivnsfic" which would beyond reasonable the presence of accused No. 1.inspide'uthe bedro'o1Vnfin or about the time of death of ,,i4»;1.eceased. "According to the case of the prosecution, on accused No.1 was apprehended and since he 'was found having sustained some injuries on ]his_'per's*on he was taken to the hospital at Siddapur for 'exainination and when he was produced before the 2 "rnedical officer ~PW.9, he gave history for the injury as assault by Nazimunnisa at about 5.00 am. on 15.2.2002. W.'S3 in her oral evidence has stated that on 255/ 15 15.2.2002 she examined accused No.1 at about____2.00 am. When he was brought to the Hospital by the' with a history of assauit. She has 0' accused No.1 gave the history.' Nazimunnisa [deceased] at 5.00 on examination she found (1) Abrasions injury Dyern[i4eft'e-.e1bo\y"region size Qcomplainant' reddish in Colouricy . a '_ . _ [2] oyer"righ--t': side of chest and a'i5jdQ;rnen 0 0' r eigarnination tenderness " i'was"jpres:ent "cnfc'hes't"an"d abdomen. She havsafurther: the injuries were simple in nature and the age of the injuries were within 24 hours 0 if -prior€toi'exarninatio'n"and to this effect she issued wound ~cer._tifica'vte_EX:~PV.1'~7. Careful examination of the answers elicited in cross--examination of PW.9 indicates that u'""..ﬁ"theLdefence has not controverted the evidence of PW.9 a._fw_ith-fregard to history furnished by accused No.1. Per

-contra, in the Cross~examination it is elicited from PW.9 that she examined accused No.1 in the duty room in the hospital at 2.00 a.m. in the intervening night of 16 15.2.2002 and 16.2.2002. There is no suggestion to PW.9 that accused No.1 did not give any such as stated by her. Thus the evidence of estabiishes that when accused xto4./_jth'c, 0' Hospital and produced before gav€.,AyAth._e that he was assaulted by his Na:zirr1unnvisa--.at"about 0' 5.00 a.n1. on 15.2.2002. If is~Aad'n1issib1e in evidence it would establish the presence; company of the deceased ottgdeath of the deceased.

Now this statement made by acctised No'. is admissible in evidence or whether" eyiclnded under Section 26 of the '''''Evidence Act. Thiswposition, in our opinion, is no more it-.re;:.* injview of the decision of the Apex Court in the"~cas,_e' «:'Kanda Padayachi --Vs-- State of Tamil Nadu 1972 Supreme Court 66]. In this decision, their 'Lbrdships have distinguished the admission of a fact by "an accused from 'Confession' within the meaning of Sections 24 to 26 of the Evidence Act. It has been cleariy held that the statement made by the accused /&«/ 17 whilst he was in Police custody to the Doctor that injury on his person were caused by murdered pei'so_'n_"'i.s admissible} Under Section 21 of the Evidence S' such statement would not amoun-tto--5Confessio,n' {2vi.tjhin.. the meaning of Sections 24 to 23V_o:f:_Eyidle11.ce~ relevant observations are fou--n:d'..in paras ltowiﬂlland V 14, which reads as under:

"6. Counsel fo1f.lti1le'vapVpellanft.raised two contentic:-r:1'sV._ that both High Court had It lc'onstg.rued important Lies S drawn inferences by the facts estab_lished T he second, which _;'was lriiorell substantial and requires V cloi1sidyerationl,lllyvas that the statement made before the Doctor (PW.8) tlrialtl-"eji_tl..a1'\2yas the deceased who had caused 'the injury on his tow on the fatal night was H fin-admissible under Section 26 of the Evidence Act, 1872 as it was made whilst the appellant was in the custody of the Police".

"8. As regards the second contention, we think that on the strength of the M 18 decisions, both of the Privy Council and this Court, the High Court was right in conclusion that the appellants stateiri'e'n;t.v:,.,l: ;. before the Doctor was properly _ evidence and could be reiied'u_p'on.; admission under Section oifrrthle Evi_denc.e "

Act, 1872. Nothing was-andllcould against the Doctor to his :evi'den}ce about the statement made the appellant from beingl' only question,'=-therefo1'e:;; that statement' it reason of 'S H to 26 form a trio coiitaining A' safeguards against accused persons be_ing coerced or induced to confess Tovvard_s_ithat end Section 24 makes a eon_fessi--on irrelevant in a criminal it is made as a result of Vinducenilent, threat or promise from a person in authority, and is sufficient to give V " *=._anaccused person grounds to suppose that V' " by making it he would gain any advantage or avoid any evil in reference to the proceedings against him. Under Section 25, a confession made to a Police Officer under any circumstances is not admissible in the M 19 evidence against him. Section 26 provides_.__ next that no confession made by a prisoner'~._S~.._ in custody even to a person other Police Officer is admissible unless mtadefijn S"

the immediate presence of-a"'Magis~trat.el";-V V "IO. The expression 'con.fession'h"as not been defined in me'-v..EVtidence..Act]; ll Stephen in his Digest of the Law of"Evfiyde.rlce deﬁned it as any time by a person charged crirriejvvstating or suggestin'g#1':he committed a v_._ Jagrup. [1885] lVl__.R_ «Cyhafidawarkar, J . in (1.909) 11 Born LR 633 hcwever;diCl. "not'="accept such a wide __defini~tio'n. a'nd':_gav"e a narrower meaning to expressj.Q_n_*confession' holding that only 3 statement which was a direct ac'itn_ovvledgment of guilt would amount to Confession and did not include merely inciulpatory admission which falls short of if being admission of guilt. The question as to if the meaning of 'confession' was ultimately settled in 1939 by the Privy Council in Pakala Narayana Swami --Vs-- The King Emperor, 66 Ind App 66 -'-'-~ {AIR 1939 PC 47) wherein at page 81 Lord Atkin iaid down aw 20 that no statement containing self;---._ exculpatory matter could amount confession if the exculpatory statemenfwas' ~'-~ of some fact which if true could neg.a:ti"Sk~e _ offence alleged to be :'con1'esse,cl..;« observed:

"Moreover, a coezrifession'-..mustfei~ther.. admit to terms the offence, or at 1'El;t€' substantially all' the constitute the offence. gravely incriminating fact' i conclusively is itself a confession. Vtellg». , 'adm'ission that the acc'use.dj-gis owner and was in recent p'oss-essionfoyf or revolver which caused. explanation of any Aether 4man'spo'ssession. Some confusion ._':g_j':"ap'pears to"""'n'ave been caused by the ...._of confession in Article 22 of "'f".__VyStephen~'s'"V..Digest of the Law of Evidence which «defines a confession as an admission made at any time by a person charged with A Vfbcrime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal a 21 cases, and for this purpose defines confessions so as to cover all such___ admissions, in order to have a general term-_44 for use in the three foilowing artic-i.es.:'__'__i"I' confession secured by inducement).__madeV" l upon oath, made unde-Pa.' p-rorriiseg of-f, secrecy. The deﬁnition is-. notccontaineld the Evidence Act, 1.872; and_ii1 ths1tlV'l'.§?ict_V.Vit it it would not be consistent» with"

use of languageto Conlstrugelconfessiori a statement by air; l:'"S_u.ggesting the inferencewthat 'coin mittedlvthe Crime". fa heieiigy .._tiie.llPrii}V3lr Council, a :':con_fessiIon.__ 4' ' . ha_s- __ -- to be a direct ac}V{riowle(_1.lgléir1»e'1*1.t"'0f"the guilt of the offence _ in question. andlstich as would be sufficient itself "foIf.___C0nviction. If it falls short of plenary acknowledgement of guilt it be a confession even though the Stateiiient is of some incriminating fact ~~ iivhich taken along with other evidence tends if to prove his guilt. Such a statement is admission but not confession. Such a deﬁnition was brought out by Chandawarkar. J., in R. V. Santya Bandhu, [1909] 11 Born LR 638 by distinguishing a statement giving rise to an inference of guilt 22 and a statement directly admitting the..___ crime in question".

"l2. In Palvindar Kaur --Vs~ Punjab (1), 1953 son O4__.+--:,[AIR_"'i'9"5ﬁ2'jV»SC.'_'_g 354] the statement made,' b3,»the'---;{ccus¢h,c was that she had _placed* her huwshandis dead body in a trunk and-ihad l jeep and thrown it vvell. with regard to the eaukgeyhr -"statement was that her usband had "ac--c'identally taken a' "po'ison.ou;s erroneously This Court referr"edr" ,_Pal:{a:l:a ll Naravayana SwaIni's case. 1t&3lE§v.'{nd:'Appl.'_66__E [AIR 1939 PC 47) and and held that a V _ staternent. vvhichllcfontained selfmexculpatory rnatter co'uld___n.ot amount to a confession if if theye-xictllpatory matter is of some fact which . _ negative the offence alleged to be cojnfessed. But the Court added that a =sta;.*.ement to be a confession must either if admit in terms of the offence or at any rate substantially all the facts which constitute the offence, and that an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itseif a confession. In Om Prakash --Vs- 23 State of UP. AIR 1960 SC 409 the appellant was convicted under Section 161 read Section 109 of the Penal Code.

statements made by him, 4' to the Assistant Agricu'ltura} A_ Aligarh were relied upon as Zeonfessionsp of"

bribery having been by"hin1 servants and upon the had based his Courtiﬂset aside the eonvicltion" holdingpilpthatineither of the two deoeumerits' plenary J that the St£itei'I'?1e}:i'Lt§3"V.'V.A'f€'r€ oi} being construed as having been sheathed V . servants named thereilni and that best they might arouse 5 'supspiciowna that he had bribed them. In this Xllconclusion,"the Court approvingly cited Narayana Swamfs case and relied A"-yon't'he'[:rneaning of the word 'Confession' gixf/elriv therein. by Lord Atkin. In F addi --Vs- State of Madhya Pradesh. [1964] 6 sea 312 (AIR 1954 so 1850) the appellant filed a first information report on the basis of which the dead body of his step son was recovered and three persons were arrested. As a result of the investigation, however, the appellant was arrested and was sent up for 24 trial which resulted in his conviction and a-=__ sentence of death. In an appeal before Court, he contended that the -9 information report ought not to _ admitted by reason of S'ec'tionA_ Evidence Act and sectioni1'e2 fttze"

Criminal Procedure Code. The coritention. was rejected on the grou_xnd_uthat"neither} of the two provisions barred*:t\heC"admissibility of the first infonhationeheportthat report was orilyaifi «appellant of which acill' hearing on the ques:tion:_44_"';asCto by whom the " 'co1n:r'11itte.d' whether the :lth4ea.Kap_pellant in the Court denying the eéridefice of certain prosecution :V'witnes.se.s "wast" correct or not. Such "ad-missionsdﬁfere admissible under Section Evidence Act and as such could be ~..Vi'pro{?_ed 'against the accused".

ﬁj_"1V4~. On the authority of these " 'igpronouncements by this Court, it is clear "that the statement in question did not amount to a confession. It was an admission of a fact, no doubt of an incriminating fact, and which established the presence of the appellant in the 25 deceased's room but which clearly was not.__ barred under Section 26. The Sessions'~.._4'_f'~.__ Judge and the High Court were, the_1_féI"o«re~,--.._:_5 right in holding it to be admissible_d:and[in relying upon it. In this'"'view,', co11nse_1's"~A" I second contention also fails rejected". V if A Division Benchyzof C.oui't-..in~Ethe case of State of Kerala Vs; [AIR 1988 KERALA 1} follovving of the Apex Court has; as found under Section" as different from the statement' to any other person though in'theV'c11s'1r.ody ofthe police. In this decision the Cour't""'has held that what is prohibited o_dui;de'r is only confession and that embargo is not»._exten.d_e:d to the statements which do not amount to 7"~.__Vconfes'sion. Relevant observations are found at para 45 if judgment, which reads as under:

"45. The admissibility is questioned on the ground that the statements are hit by Section 26 of the Evidence Act which prohibits confession made by a person 26 "whilst he is in the custody of a police..__ officer". What is prohibited is "Confession", and the embargo 1- extended to the statements which__do_ amount to confession. Admissions be proved as against the person and Section 21 of they Evidenceffﬁtct such admissions bei'i1g' proved:.ﬂ":

Contours of Sec'ti.on n%ot..bounVd'edVV by limitations of in the custody gofga po1iCe:V':of1"i.c':er'. is no doubt if adrn_i.ssion""amounts to "confessi4on;"""'-- it1j"'fftranvsgresses into the foribidudtpn t'i1itetd'i-gjieetgtijett'in Section 26. »e,'v;4confe'ssion"? Neither the Evidence }'-tctnorghfcther statutes on criminal . '1-aw defines' confession. Privy Council, way yin in Narayana Swami Vs-

AIR 1939 PC 47, made the explain the Word "confession"

wed in the Evidence Act. Lord Atkin who delivered the famous judgment in that V 'jcase stated thus:

"The word "confession as used in Evidence Act cannot be construed as meaning a statement by an accused "suggesting the inference that he committed" the crime. A confession must /'9 /gm 27 either admit in terms the offence, or at any rate substantially all the facts constitute the offence. An admission....o_f gravely incriminating fact, even conclusively incriminatin_g.....fact off itself a confession". * (Emlphajsisj3sup'pl.ied)"

"The Supreme if aforesaid explanation gasV':co'I'1tect i-Pavlirinfder Kaur--Vs~ state'i«952 so 354.

In Aghnoo Nagesia $tate' AIR
1966    considered the
    accused's

confess'ionH While' "_Vl1'l custody, one

-- other inculpatory. In the " cor1text','-- 'Supreme Court found it __Vworftliwhi.lef. to adopt the same line of 'ab_O1J.t the contours of confession principles followed in Palvinder K.a--ur's'j'c.ase were reaffirmed. The important decisions on this subject, in Vi€W of the ~~ context in this case, is Kanda Padayachi ' -Vs- State of Tamil Nadu, AIR 1972 sc 66. if The subject dealt with in that decision is the admissibiiity of a statement made by an accused, in police custody, to a doctor regarding some minor injuries found on his person, to the effect that "it was the 28 deceased who at about midnight on July 10, 1969 had caused the injury on his the {sic}. by biting him". The Supreme Court reference to the case law on the subje[ct..'__' including Pakala Narayana Swami's._VVcafseVh' h and held that the statement' in yqu_esti.ont» not amount to a confessi.fo'n,'iV but"

amounts to an admiss-;.on ohfhefahct r:o"d_o14ibt of an incriminating'dact, t which established the"'pVreseiice'* appellant in the deceased rohorn". '' ./has been laid down-in pa..r"a"»13« of the which reads t:'r?:us"'e1e'ar that admission of a 'fact, 'hovs}eiEer'inci*initnating, but not by itself estabIishi;ng""'theh:"guiit of the maker of such ' »admiss~ion; "would not amount to confession Within thehfneaning of Sections 24 to 26 of A it " _ EVid--ence Act." *[Emphasis supplied) Vjbiyision Bench of this Court in Chandran --Vs-- State of Kerala, (1987) 1 X T "KER LT 391 followed the same principle. When the statements attributed to the second and third accused in Exts.P22 and 36 respectively are judged from the above guidelines, we hold that, though incriminating the statements do not amount 29 to confession and hence they are not hit by..__ Section 26 of the Evidence Act." A A

11. in the light of the aforesaid de«cisiloi1Vs;''liNcAgarie '» of the opinion that the statement: rnade? before PW.9 with regard toithegghistory fur1i'is'iied, that he was assaulted by his at about_ a.m. on 15.2.2002 would not l'conltes.sion' within the meaning of Sectiohns Act and said leiridence. The said statem_€n.t. that the deceased and accused in the bedroom between 3.00 andl"5.._'OO n:l5.2.2002i during which period, the»"h,orr__liicidall dea.t_._h..of the deceased had occurred. As above, as per the medical evidence, the death of' deceased was due to throttling. Accused lx__No.1 the husband of the deceased and being in capacity was under an obligation to explain the circumstance in which his wife died on account of throttling. When deceased and accused were the only persons inside the bedroom and if the wife had died on V 30 account of throttling, in the absence of any explanation from accused No.1 the only irresistible inferencefthat could be drawn is that accused No.1 was respons,iblei for the homicidal death of the de'cea«sed, on account of throttling. The facttiiéastl'-to homicidal death of the whil-e.Vsh_e_: theddd company of her 'accused, was within the special As per Section 106 of of proving the said fact .;l'h'e:»§accused has not made any caused the death of his wifveivvhile his company. Accused No.1 has not ppcorneuoiut any explanation either during the A""cross--e}§iarniAnation of material witnesses nor during his Section 313 Cr.P.C. Therefore, having regard ..__to-the common course of natural event and ]'n1i,.man'"conduct, it has to be presumed that accused l'Io;'1"t'alone was responsible for the homicidal death of "his wife. The learned Sessions Judge, in our opinion, has completely omitted to take into account this important circumstance established on record. f 31 Therefore, the judgment under appeal suffers_..._from perversity and illegality on account of consider the important material evidence'..fon which would clearly establish No.1 for the homicidal death of Therefore, the judgment accused No.1 cannot courseifjthere is absolutely no evidence complicity of accused Nos.~2"':arid death of the deceased. E_ve.ii"According.to'-thecase of the prosecution ' and aiso from_., facts established, it was only accused No.1 was of the deceased in or about -the utimeﬁof death. During that period. were not in the company of the Ai'dec¢as6tf:~«.fl'here'fore acquittal of accused Nos.2 and 3 is justifiedlantd it does not call for interference by this However, acquittal of accused No.1 is unjustified .' and liable to be set aside.

12. The next question for consideration is as to whether the act committed by the accused would attract &/ 32 the offence punishabie under Section 302 IPC. Itis the argument of the iearned counsel for the accused:.f"No;V,1 that even if the entire case of the prosecu.'ti'onA.,in:"' regard is accepted, the act cornmitted '.jaccuxseVd~, would not fall under Section it attract provision of Sectiori..,]304 Fart' 'II, the V incident appears to have ocpcurrﬁfq ta-m~Aing'Aa'Vqu'arre1 and scufﬂe, therefore intention to commit the the history furnished it is noticed that accused' some minor injuries.

This there was a sudden quarrel and fight the husband and the wife for some "triv"1iaI reasons and in the scufﬂe accused No.1 appears to the neck of deceased. Therefore, it A ' :_ i cannot .said that accused No.1 did the said act with R."4"-Wpremeditation. However, regard being had to the facts circumstances of the case, it cannot be said that

-the accused committed such acts without the intention of causing death of his wife. Under these circumstances, in our opinion, the act committed by the ~@ 33 accused though. is culpable homicide, it woul_d___ not amount to murder but the act committed":V:hy?'p:'--.t}2.e accused No.1 is culpable homicide not murder falling within 1 partg'of"'«Sec.tionu Therefore, in our opinion, accused convicted for the offence puriishableh part I IPC. . f if f

13. counsel appearing i "No.1 / accused No.1 of the learned counseff\1'~iT%!p'atV of the case for a total periodpf and ':17 days, accused No.1 was in ffherefore, accused No.1 has spent period in the custody as such the learned cou'i'1sel.."su'orr1its that a lenient View be taken and ._.:accused"l\lo.1 may be sentenced to the period already .' splent in custody during the trial.

14. The offence under I part of Section 304 IPC is punishabie with imprisonment for life or imprisonment 34 of either description for a term which may extend .-.to 10 years and shall also be liable to pay ﬁne. to the fact that the incident occurred between husband and wife on"trivi.al taking into consideration the undergone by accused No.1;"~yy'e.ﬁnd lorce V in the argument of the~learn'eld for th'e"appellant that accused No.1 shouid the period already unde~rgo;n.e the trial of the case and .1;

15; appeal is allowed in part. The judgruent dated 0'5.()l3.2zlOO5 passed by the District and Judge, Koldagu, Madikeri, in S.C.No.28/2002 A No. 1/ accused No.1 is hereby set~ aside. »._'MAc'cused No.1 is convicted for the offence .e:p11nisha'ble under Section 304 part I IPC. He is sentenced to imprisonment for the period already spent T custody during the trial of the case and also to pay ﬁne of R:-3.20.000/--. In default to pay fine accused NO.l shall undergo rigorous imprisonment for a period of 1 M 85 year. T he judgment of acquittal passed against accused Nos.2 and 3 is hereby confirmed.

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