Case: N. Shivakumar Vs. State of Karnataka

(1) This is an appeal against the judgment of the High Court of Karnataka dated 12.1.2001 in criminal appeal no. 83/97, confirming the conviction of the appellant by the learned additional sessions judge, Bangalore rural district, Bangalore in S.C. no. 12/88 for the offence under section 302 IPC and the sentence unposed to undergo imprisonment for life and fine of Rs. 5000/-, in default of which to undergo simple imprisonment for six months. (2) The case of the prosecution is that: the accused who got married to the deceased, the sister of PWs 1 and 2 six years prior to the date of occurrence, that they were blessed with a female child three years thereafter, who, unfortunately got affected with polio, that the accused has often been picking up quarrel with his wife for being not in a position to conceive for another child, that on such pretext, the accused was often quarrelling with his wife for getting her consent and also clearance from her brothers to get married for the second time and on the fateful day, when he alone was in the house with her, committed murder by throttling. On the next morning, i.e., 8.12.1987 at about 5.30 a.m., he seems to have informed PW-3, the neighbour that he found his wifes body too cold and not responding to calls. Thereafter, it appears PW-3 went and verified and found the wife of the accused dead with some black marks on her neck. The case of the prosecution further proceeds that the accused in a fear stricken condition met PWs. 1 and 2 and virtually confessed to PWs. 1 and 2 about the killing of his wife by throttling her neck since he was not getting clearance for his second marriage and also endeavoured to settle the matter amicably to avoid driving the matter to the police. This could not materialise and on a complaint given to the police at 9.00 a.m. by PW-1 to the officer incharge of police station Doddaballapura as per. Exhibit P-1, investigation has been conducted and the appellant had been charged for the offence under section 302 IPC for the murder of his wife.(3) After trial and examination of prosecution witnesses PW-1 to PW-7, including the doctor PW-6, who conducted the postmortem examination and after questioning the accused under section 313 Cr.P.C., the learned trial judge came to the conclusion that it is the accused who committed the murder of his wife on the night of 7.12.1987 and that the prosecution was able to substantiate the charge under section 302 IPC beyond reasonable doubt for which ultimately the learned sessions judge convicted him and imposed the sentence, as noticed earlier. The accused pursued the matter on appeal before the High Court. The learned judges of the division bench, as could be seen from the judgment under challenge, have not only elaborately considered all the points raised for the accused but have extensively adverted to the evidence on record and appreciated and re-appreciated the evidence independently and ultimately concurred with the reasons as well as the findings recorded by the learned sessions judge convicting the accused for the murder of his wife. The appeal consequently came to be dismissed. Hence, this appeal.(4) Ms. Ranjana Narayan, learned amicus appearing on behalf of the appellant, while reiterating the line of defence and grounds taken to challenge the conviction before the High Court, as well as the stand taken before the learned sessions judge, strenuously contended that since there are no eye witnesses to the occurrence, circumstances to involve the accused with the commission of the offence should be such as to prove the guilt to the hilt, with no reasonable possibility of the innocence of the accused and that version of the prosecution could not be believed, in the normal circumstances that the accused, had he committed the offence, would have gone to or confessed to PWs. 1 and 2 of having committed the murder of his wife/their sister, and that the medical evidence also does not appear to be so conclusive to prove that the deceased died due to any act of violence or that at any rate there was any evidence in the form of finger prints on the neck of the deceased to connect the accused with the death of his wife. The learned amicus further submitted that PW1 has not immediately lodged any complaint on coming to know of the death of his sister and this type of reaction on the part of PW-1 also, according to learned amicus, is neither natural nor normal in the circumstances and the possibilities are more that the deceased suffered, in the normal course a natural death while sleeping and not on account of any violence committed on her body and that too by the accused. The learned counsel invited our attention to portions of the evidence of PWs. 1, 2, 3, 4 and 6 and also portions of the judgments of both the courts below to vindicate her stand on behalf of the appellant. The learned counsel appearing for the respondent-state adopted the reasoning of the courts below, to submit that this appeal in which leave has been granted under Article 136 of the Constitution of India, merit acceptance or warrants any interference, having regard to the concurrent findings of the courts below, supported by sufficient and acceptable materials.(5) We have carefully considered the materials on record. In the light of the reasons recorded by both the learned trial judge as well as the division bench of the High Court, on the basis of overwhelming materials on record to substantiate the charge, the guilt of the appellant stood sufficiently proved. The fact that the deceased and the accused were alone in the house on the night of occurrence, that even by 5.30 a.m. in the early morning, the following day, he conveyed to PW-3, his neighbour that the body of his wife has been cold and that she is not responding to calls will go to show that he alone was present in the company of his wife at the crucial point of time. There is nothing on record to show that the deceased had committed any suicide or that anybody else was responsible for her death. The stand taken for the accused throughout, including before us, that she died a natural death, stood strongly belied by the report submitted after post-mortem examination and the deposition of PW-6, the doctor, who conducted the post-mortem examination, which not only disclosed the injuries found on the neck of the deceased but as per the medical opinion, the death was due to squeezing or throttling of the neck. The theory of the victim having died a natural death is a pure myth not warranted on the evidence on record. The courts below have chosen to assess the evidence and appreciate all these aspects in the absence of any cross-examination of the doctor who conducted the post-mortem examination to discredit his opinion that the death was only a homicidal one due to the violence committed on the body of the deceased. Though the appellant also took the stand that he was away for about three days before the occurrence and returned back on the morning of 8.12.1987 no one was examined to show where he had been and in what place or company he was on those days. The evidence of PW-3 also militate against his version in this regard. PW-3 has no grouse to speak falsely against the accused and nothing has been brought on record to discredit her testimony on that count. It is in this background that the courts below have chosen to give credence to the extra judicial confession said to have been made by accused to PW-1, keeping in view of the fact that the accused had much confidence in PWs. 1 and 2, his brother-in-laws to tell the truth and square up the matter. It has been established by ample materials that when the appellant was in dire circumstances it is PW-1 and PW-2 who were maintaining him and his family for more than four years and there is nothing improbable in the version of the prosecution witnesses that the accused conferred to PW-1 and PW2 about what had really happened. The appreciation of the materials on record and the oral evidence by the learned sessions judge as well as the High Court could not be said to be either perverse or so absurd or that the findings could be said to have been recorded without adverting to any vital or significant piece of evidence, which if taken note of, would go to either cast any doubt on the prosecution case or justify the innocence of the accused. This is not a case where the conviction could be said to have been entirely based on only the extra judicial confession. The extra judicial confession said to have been made to PW-1 was relied upon as one piece of evidence, a circumstance to strengthen along with the other materials, the case of the prosecution. The evidence of PW-3 is very clinching ,and to the point to substantiate that the accused alone was with the deceased in the house at the material and relevant point of time and her evidence sufficiently discredits the plea of the accused to be a pure afterthought, since, we find that both the learned sessions judge as well as the division bench of the High Court have meticulously gone through the evidence on this aspect extensively, and on a proper analysis and appreciation in their proper context, as it deserves, arrived at the finding of guilt of the accused-appellant by giving cogent and convincing reasons.(6) Being an appeal by grant of leave under Article 136 of the Constitution of India, and the judgment under appeal being one of concurrence, in the absence of glaring infirmities or perversity in appreciation of evidence or proof of any crucial evidence being ignored from consideration in arriving at the findings or misconception of law, resulting in miscarriage of justice, this Court will not interfere in the matter merely because there is possibly different view which could also be taken on the facts of the case.

Decision:
1[ds](5) We have carefully considered the materials on record. In the light of the reasons recorded by both the learned trial judge as well as the division bench of the High Court, on the basis of overwhelming materials on record to substantiate the charge, the guilt of the appellant stood sufficiently proved. The fact that the deceased and the accused were alone in the house on the night of occurrence, that even by 5.30 a.m. in the early morning, the following day, he conveyed tohis neighbour that the body of his wife has been cold and that she is not responding to calls will go to show that he alone was present in the company of his wife at the crucial point of time. There is nothing on record to show that the deceased had committed any suicide or that anybody else was responsible for her death. The stand taken for the accused throughout, including before us, that she died a natural death, stood strongly belied by the report submitted afterpostmortem examination andthe deposition ofthe doctor, who conducted theexamination, which not only disclosed the injuries found on the neck of the deceased but as per the medical opinion, the death was due to squeezing or throttling of the neck. The theory of the victim having died a natural death is a pure myth not warranted on the evidence on record. The courts below have chosen to assess the evidence and appreciate all these aspects in the absence of anyof the doctor who conducted theexamination to discredit his opinion that the death was only a homicidal one due to the violence committed on the body of the deceased. Though the appellant also took the stand that he was away for about three days before the occurrence and returned back on the morning of 8.12.1987 no one was examined to show where he had been and in what place or company he was on those days. The evidence ofalso militate against his version in this regard.has no grouse to speak falsely against the accused and nothing has been brought on record to discredit her testimony on that count. It is in this background that the courts below have chosen to give credence to the extra judicial confession said to have been made by accused tokeeping in view of the fact that the accused had much confidence in PWs. 1 and 2, histo tell the truth and square up the matter. It has been established by ample materials that when the appellant was in dire circumstances it iswho were maintaining him and his family for more than four years and there is nothing improbable in the version of the prosecution witnesses that the accused conferred toand PW2 about what had really happened. The appreciation of the materials on record and the oral evidence by the learned sessions judge as well as the High Court could not be said to be either perverse or so absurd or that the findings could be said to have been recorded without adverting to any vital or significant piece of evidence, which if taken note of, would go to either cast any doubt on the prosecution case or justify the innocence of the accused. This is not a case where the conviction could be said to have been entirely based on only the extra judicial confession. The extra judicial confession said to have been made towas relied upon as one piece of evidence, a circumstance to strengthen along with the other materials, the case of the prosecution. The evidence ofis very clinching ,and to the point to substantiate that the accused alone was with the deceased in the house at the material and relevant point of time and her evidence sufficiently discredits the plea of the accused to be a pure afterthought, since, we find that both the learned sessions judge as well as the division bench of the High Court have meticulously gone through the evidence on this aspect extensively, and on a proper analysis and appreciation in their proper context, as it deserves, arrived at the finding of guilt of theby giving cogent and convincing reasons.(6) Being an appeal by grant of leave under Article 136 of the Constitution of India, and the judgment under appeal being one of concurrence, in the absence of glaring infirmities or perversity in appreciation of evidence or proof of any crucial evidence being ignored from consideration in arriving at the findings or misconception of law, resulting in miscarriage of justice, this Court will not interfere in the matter merely because there is possibly different view which could also be taken on the facts of the case.