:1: IN THE HIGH COURT OF KARNATAKA [ENTITY] BENCH Dated this the 20th day of April [SECTION]7 Present THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA AND THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL APPEAL NO.100078/[SECTION][SECTION] BETWEEN: SRI SRINIVAS PRABHAKAR HOOLI AGE: [SECTION]1 YEARS, OCC: ELECTRICAL ENGINEER R/O.KOPPAL NOW AT [ENTITY] APPELLANT (BY SRI SRINAND A PACHHAPURE, ADV.) AND THE STATE OF KARNATAKA BY ACP, [ENTITY], SUB URBAN PS NOW REP. BY SPP, HIGH COURT OF KARNATAKA BENCH AT [ENTITY]. RESPONDENT (BY SRI. V.M. BANAKAR, ADDL SPP) THIS CRIMINAL APPEAL IS FILED U/S 37[SECTION] (2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 31.12.[SECTION]3 AND ORDER OF SENTENCE DATED 0[SECTION].01.[SECTION][SECTION] PASSED BY THE P.O., FAST TRACK COURT & II-ADDL. DIST. & SESSIONS JUDGE, :2: [ENTITY], IN S.C.NO.[SECTION]6/2009 FOR THE OFFENCES P/U/[SECTION], [SECTION] & [SECTION] OF [ACT]. THIS APPEAL COMING ON FOR HEARING, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.03.[SECTION]7, THIS DAY, [ENTITY], J, DELIVERED THE FOLLOWING: JUDGMENT
This appeal is preferred by the appellant/accused being aggrieved by the judgment and order of conviction dated 31.12.[SECTION]3 passed by the Fast Track Court at Dharwad in S.C.No.[SECTION]6/2009. By the said judgment and order, the trial Court convicted the appellant/accused for the offence punishable under [SECTION], [SECTION] and [SECTION] of [ACT] and acquitted for the offence punishable under [SECTION] and [SECTION] of [ACT].
2. The brief facts of the prosecution case as per the complaint (Ex.P-1) are that appellant married [ENTITY] (deceased) on 20.12.200[SECTION] and at the time of marriage, appellant was paid Rs.30,000/- cash, 3 tholas of gold and utensils as varopachara and during [ENTITY]nt function of the deceased, the appellant was given gold ornaments of 1 thola. Despite the same, appellant used to give ill-treatment to the deceased insisting her to bring more dowry amount from her parental place, the same was brought to the notice of the complainant by the deceased. Hence, the appellant was called by the complainant and he was advised not to give such ill-treatment to the deceased. Even then, the appellant did not heed to the advice and was still insisting the deceased to bring money from her parental place and in that regard he was giving ill-treatment to her. The couple were staying in the rented house of one [ENTITY] at Dharwad, Gulaganjikoppa nearby Hanuman Temple. It is further stated in the complaint that, on 26.12.2008 at about [SECTION].30 a.m., the appellant with his mobile No.9[SECTION][SECTION]8973389 phoned to the mobile of the complainant having No.98[SECTION]52162[SECTION]5 and informed that [ENTITY] (deceased) committed suicide and asked him to come immediately. The complainant became perplexed and himself, his wife and other relatives came to Dharwad at about 10.30 a.m. and saw his daughter [ENTITY] lying dead in the first hall of the said house and she was in a supine position. There were injuries on the front side of the neck and appears to be because of throttling and there was a blackening of the skin at that place. Therefore, the appellant committed the murder of his daughter by throttling and hence, legal action may be taken against him. On the basis of the said complaint, case came to be registered in Dharwad Sub-urban Police Station Crime No.2[SECTION]6/2008 for the offence punishable under [SECTION] and [SECTION] of [ACT] against the appellant. The Investigating Officer, after conducting investigation, filed the charge sheet for the offence punishable under [SECTION], [SECTION] and [SECTION] of [ACT] and [SECTION] and [SECTION] of [ACT].
3. To prove its case, prosecution in all examined 27 witnesses as P.Ws.1 to 27 and the documents Exs.P-1 to P-2[SECTION] were produced and material objects M.Os.1 to 5 were got marked and on the side of the defence, the appellant/accused got himself examined as D.W.1 and no documents were produced.
[SECTION]. After considering the materials placed on record, the learned trial Judge convicted the accused for the offence punishable under [SECTION], [SECTION] and [SECTION] of [ACT] and acquitted for the offence punishable under [SECTION] and [SECTION] of [ACT]. Being aggrieved by the judgment and order of conviction, the appellant/accused is before this Court in this appeal challenging the legality and correctness of the judgment and order of the trial Court on the grounds as mentioned in the appeal memorandum.
5. We have heard the arguments of the learned counsel appearing for the appellant/accused and also the arguments of the learned Addl. SPP for the respondent-State.
6. Learned counsel for the appellant has submitted that the judgment and order of conviction is contrary to the material placed on record. He has submitted that the learned trial Judge has wrongly read the evidence and came to the wrong conclusion in convicting the appellant/accused for the said offences. It is the first and foremost contention that materials show that when the complainant came to the spot, the Police Officers and other persons were already gathered at the spot, the complainant had deliberated with the relatives and also with the Police Officers at the spot and thereafter, he lodged the complaint as per Ex.P-1, therefore, the complaint is hit by [SECTION] of [ACT] and it can be only the statement under [SECTION] of [ACT] and it cannot be termed as complaint. It is also his submission that the materials placed on record show that complainant at one breath states that he has filed the complaint at the spot before the Police and at another breath he has deposed that he went to the Police Station along with his relative and lodged the complaint. Therefore, there is no consistency with regard to the place at which the compliant was given by P.W.1. It is also his contention that though it is the case of the prosecution as per the complaint averments that appellant/accused informed the complainant P.W.1 at about [SECTION].30 a.m. on 26.12.2008 and the distance from the residence of the complainant to the place of incident hardly takes about 15-20 minutes, even then, the complaint was lodged at 1.00 p.m. on 26.12.2008 and hence, there is an unexplained delay in lodging the complaint. Hence, he has submitted that, in view of these infirmities in lodging the complaint and if the complaint is disbelieved, the entire case of the prosecution shall have to be disbelieved.
Learned counsel has further submitted that on 25.12.2008 itself the appellant had been to Koppal and he was not at all in the house on the intervening night of 25/26.12.2008 and hence, the appellant, by examining himself as D.W.1, has explained in his oral evidence also that he was not at all present in the house during that night and he placed the material that he was at Koppal and only after coming to know about the incident in the house, he along with his parents came to the spot. Hence, it is his contention that this defence of plea of alibi of the appellant was not properly and correctly appreciated by the trial Court and it was wrongly rejected.
He has further submitted that it has come in the evidence of the prosecution witnesses that the own sister of the deceased by name [ENTITY] eloped with somebody and when it was brought to the notice of deceased [ENTITY], she felt very bad and as she was very sensitive, because of that reason she committed suicide in the house.
Learned counsel for the appellant, in the alternative, has submitted that there is no intention on the part of the appellant/accused person for committing the murder of the deceased. He has also submitted that as it has come in the evidence of the panch witnesses on the prosecution side that on the previous day of the incident i.e., on 25.12.2008 when the deceased and the appellant had been to the relatives namely [ENTITY] and [ENTITY], at that time the deceased complained before them about the demand of the amount by the appellant and giving ill-treatment and harassment to her and in that connection the said [ENTITY] and [ENTITY] advised the appellant/accused person not to give such ill-treatment to her and therefore, there is a grave and sudden provocation to the accused and hence, even if it is assumed that he is responsible for the death of the deceased, the case at the most is punishable under [SECTION] of [ACT] and not under [SECTION] of [ACT].
He has also submitted that even looking to the evidence of landlady (P.W.1[SECTION]), she turned hostile and not fully supported the case of the prosecution and her evidence is also not helpful to the prosecution to prove that the appellant was very much present in the house during the night on 25/26.12.2008. He has also submitted that since the case is based on circumstantial evidence, the prosecution failed to establish the chain of circumstances to prove that it is the appellant, who committed the alleged offence. Therefore, he has submitted that the learned trial Judge has wrongly convicted the appellant/accused and hence, submitted that appeal be allowed and the judgment and order of conviction be set-aside.
Lastly, he has submitted that appellant has already undergone custody for a period of seven years and in case, if it is held that the appellant/accused is responsible for committing the offence, same may be taken into consideration.
In support of his contentions, learned counsel for the appellant has relied upon the following decisions:
i. [SECTION]3(3) KCCR [SECTION][SECTION] (DB) in the case of [ENTITY] and Others vs. State of Karnataka by Holenarasipura Town Police, Hassan District; ii. [PRECEDENT] in the case of [ENTITY] vs. The State of T.N.; iii. AIR (SC) 2007 323[SECTION] in the case of [PRECEDENT]; iv. ([SECTION][SECTION]) 2 SCC 1 in the case of [ENTITY] vs. Government of Uttar Pradesh and others; v. 1995 SCC (Cri) 156 in the case of [PRECEDENT]; vi. AIR 1993 SC 26[SECTION][SECTION] in the case of State of Andhra Pradesh vs. Punati Ramulu and others; vii. 1995 CRI.L.J. [SECTION]57 (SC) in the case of [PRECEDENT];
viii. ILR [SECTION]7 KAR 105 in the case of Honya @ Honnappa @ [ENTITY] vs. State of Karnataka.
7. Per contra, the learned Addl.State Public Prosecutor during the course of his argument submitted that though the police and other persons said to have gathered at the spot by the time the complainant came to the said place, but they were not knowing what was the offence committed as the house was under lock from outside. He submitted that it is only after the arrival of the appellant-accused to the said place at about 10.30 a.m. it is appellant himself was having the key of the said house who opened lock with the help of the said key. Hence, the learned Addl.State Public Prosecutor made the submission that when till the arrival of the accused the police as well as other persons were not knowing exactly what is the offence taken place therefore the question of complaint-Ex.P1 being hit by [SECTION] of the [ACT] does not arise in the case. Hence, he submitted that there was no deliberation or discussion by the police before Ex.P1-complaint was lodged. It is also his submission that so far as the plea of alibi is concerned the evidence on the side of the prosecution witnesses clearly goes to show that the accused was very much present in the house during the night of 25/26.12.2008. He also submitted that except taking a bald defence of plea of alibi the appellant has not placed any satisfactory and cogent materials to prove the plea of alibi. Hence, he submitted that when the accused has failed to prove his defence on alibi this also supports the case of the prosecution about his presence in the house during that night. It is also his contention that this is the incident which took place inside the house wherein the appellant, deceased and their 3 years old baby were residing. Therefore, learned Addl.State Public Prosecutor made the submission that it is for the accused to explain how and under what circumstances the said incident took place. He made the submission that the facts about the death of deceased were within the knowledge of the accused person and therefore as per [SECTION] of the [ACT], the appellant-accused is the proper and competent person to explain about the circumstances and the reasons about the death of the deceased. He submitted that only with an intention to escape from the punishment he has taken false defence of plea of alibi. It is also his contention that as per the evidence placed on record, it is the appellant himself who informed the complainant-PW1 at [SECTION].30 a.m. on 26.12.2008 informing that [ENTITY] committed suicide and asking him to come immediately. The learned Addl.State Public Prosecutor also submitted that even it has come in evidence of the witnesses that the accused also informed that she has consumed something and died. It is his contention that looking to the materials placed on record there is no supporting material to say that the deceased either consumed any poisonous substance or she has committed the suicide. In this connection, learned Addl.State Public Prosecutor draw the attention of this Court to the postmortem report, the injuries noticed by the Doctor who conducted postmortem examination so also the oral evidence of the Doctor and submitted that all these materials completely ruled out the possibility of deceased committing suicide and on the contrary they go to show that death is because of manual throttling. Hence, the learned Addl.State Public Prosecutor submitted that looking to the oral and documentary evidence on record the Trial Court correctly appreciated the materials and rightly comes to the conclusion in convicting the appellant-accused. There is no illegality committed by the Trial Court nor there is any perverse or capricious view taken by the Trial Court in coming to such conclusion. Hence, he lastly made submission that there is no merit in the appeal, same may be dismissed confirming the judgment and order of conviction passed by the Trial Court. Even with regard to the quantum of sentence, he submitted that the sentence imposed by the Trial Court is reasonable and proper. In support of his contention, learned Addl. State Public Prosecutor relied upon the following decision of the Hon'ble Apex Court:
i. Crl.Appeal No.13[SECTION]1 of 2005 dated 11.11.2006 in the case of [PRECEDENT].
8. We have perused the grounds urged in the appeal memorandum, the judgment and order of conviction passed by the Trial Court, oral evidence of the witnesses and the documents produced before the Trial Court. We have perused the decisions relied upon by the learned counsel for the appellant and the learned Additional State Public Prosecutor for the respondent- State, which are referred to above. So also, we have considered the oral submissions made by both the sides at the Bar.
9. The first and foremost contention of the learned counsel appearing for the appellant/accused is that there is an unexplained delay in lodging the complaint. Even though it is the case of the prosecution that the police officer, the other prosecution witnesses and the general public were very much present at the spot much earlier to the filing of the complaint (Ex.P.1) by P.W.1-[ENTITY], the police have not at all registered the FIR though the police were having knowledge about the commission of the cognizable offence. It is his further contention that the complaint- Ex.P.1 was registered at 1.00 p.m. on 26.12.2008, by which time the investigation had already started as the police officers were present at the spot and were having the knowledge about the commission of cognizable offence. Hence, it is the contention of the defence that the complaint-Ex.P.1 is hit by [SECTION] of [ACT] and it can be treated only as a statement under [SECTION] recorded during the investigation. In this regard, we have carefully perused the decisions relied upon by the learned counsel appearing for the appellant.
10. In the case of [ENTITY] and Others Vs. State of Karnataka, decision reported in [SECTION]3(3) KCCR [SECTION][SECTION] (DB), the facts therein go to show that the alleged incident had taken place at about 6.30 p.m. on 22.05.2005 and there was death of two persons viz., [ENTITY] and [ENTITY]. As per the case of the prosecution, in the said case, PWs.[SECTION] and 18 went to rescue the deceased when the assault was going on, on the two deceased persons. After assaulting the deceased, the accused fled away from the spot along with the weapons and the two deceased and PW.[SECTION] were removed, in a tempo, to the hospital where the deceased were declared as brought dead. One of the eyewitnesses, PW.18 escaped after he was assaulted and PW.[SECTION] another eyewitness, on being admitted to the hospital, was examined by P.W.27-Medical Officer. After examining PW.[SECTION], PW.27-Medical Officer sent an intimation as per Exs.P.25 and 26 to the jurisdictional police reporting the two deceased having been brought dead and injured (PW.[SECTION]) having been admitted into the hospital on account of the assault made by accused No.[SECTION]-[ENTITY]. The said intimation was received initially by Head Constable-13[SECTION] who, in turn, handed over to PW.28-PSI. PW.28, on receipt of Exs.P.25 and 26 proceeded to the Hospital at Holenarasipura, thereafter ascertaining from the Medical Officer that PW.[SECTION] was in a fit condition to give statement, recorded his first information as per Ex.P.2 in the presence of the Medical Officer and thereafter returned to the police station and, on the basis of Ex.P.2-complaint, he registered a case in [CASE NUMBER] for the said offences in that case.
11. Looking to para No.15 of the said judgment [[ENTITY], (supra)], it is observed by the Division Bench as under:
"Drawing our attention to the evidence of PWs.3, [SECTION], 10 and 11, he submits that their evidence reveals that the police had come to the spot immediately after the occurrence and they had removed the body of the two deceased to the hospital in a tempo along with the assistance of other witnesses including PW.[SECTION]. He further contended that before the two bodies were removed to the hospital the evidence of P.W.[SECTION] reveals that he had gone to the outpost at Halekote and had informed them of the occurrence and thereafter had returned to the place of occurrence. The said outpost police had also sent a message to Holenarasipura police through wireless of the said information. The Outpost police have recorded the same at Outpost police station and forwarded the same to Holenarasipura police station. He further submitted that the evidence of PW.29- CPI reveals that at about 10.30 p.m. or 11.00 p.m. on being informed by PW.28-PSI of the occurrence he had come to the spot. If the same is taken into consideration, PWs.28 and 29 had the information about the occurrence much prior to coming into existence of Ex.P.2- first information recorded by PW.28 in the hospital. Therefore, he submits that since the police already had definite information of the cognizable offence about the occurrence in this case, as the investigation had commenced, Ex.P.2 cannot be treated as first information and it is hit by [SECTION] of [ACT]"
After analyzing the factual aspects involved in that particular case, the Division Bench came to the conclusion that Ex.P.2-first information is hit by [SECTION] of [ACT]
12. In another decision reported in [PRECEDENT] between [ENTITY] Vs. The State of T.N., it is observed by their Lordships of the Hon'ble Apex Court, at para 12, as under:
"It is in the evidence of [ENTITY] that the house of [ENTITY] is at a distance of three furlongs from the village of [ENTITY]. Police station Valavanthi is also at a distance of three furlongs from the house of [ENTITY]. Assuming that [ENTITY] PW8 was not found at his house till 10.30 p.m. on March 12, 1970 by [ENTITY], it is not clear as to why no report was lodged by [ENTITY] at the police station. It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of [ENTITY] deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than two miles from the village of [ENTITY] and [ENTITY] and their failure to make a report to the police till the following day would tend to show that none of them had witnessed the occurrence. It seems likely, as has been stated on behalf of the accused, that the villagers came to know of the death of [ENTITY] deceased on the evening of March 12, 1970. They did not then know about the actual assailant of the deceased, and on the following day, their suspicion fell on the accused and accordingly they involved him in this case. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In the present case, [ENTITY], daughter-in-law of [ENTITY] deceased, according to the prosecution case, was present when the accused made murderous assault on the deceased. [ENTITY], stepson of the deceased, is also alleged to have arrived near the scene of occurrence on being told by [ENTITY]. Neither of them, nor any other villager, who is stated to have been told about the occurrence by [ENTITY] and [ENTITY], made any report at the police station for more than 20 hours after the occurrence, even though the police station is only two miles from the place of occurrence. The said circumstance, in our opinion, would raise considerably doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused- appellant upon it."
13. Looking to the above mentioned two decisions, the proved facts in the said cases were that there were eyewitnesses to the incident. In the case of [ENTITY] (supra), P.W.[SECTION] was the injured and the facts therein also go to show that the police officer immediately rushed to the spot, shifted the deceased to the Hospital and also the P.W.[SECTION] and other witnesses. In the case of [ENTITY] (supra), the facts proved in the said case go to show that [ENTITY], the daughter-in-law of the deceased, is an eyewitness to the incident and even she called [ENTITY], who also arrived near the scene of occurrence, and there was a delay of more than 20 hours in lodging the first information report before the police.
1[SECTION]. We have also perused decisions of the Hon'ble Supreme Court in the case of [PRECEDENT] and in the case of [ENTITY] Vs. Government of Uttar Pradesh and Others reported in ([SECTION][SECTION])2 SCC 1, with regard to the principles enunciated therein regarding the importance of registration of an information as FIR at the earliest point of time.
15. In view of the principles enunciated in the above referred decisions relied upon by the learned counsel appearing for the appellant, now the question in this case is, Whether the complaint-Ex.P.1 is hit by [SECTION] of [ACT], or, at the most, it can be treated only as a statement recorded under [SECTION] of the [ACT] during investigation?
16. Looking to the factual story, as per the prosecution case, involved in this particular case, the alleged incident took place in the residential house wherein only the appellant/accused, his wife (deceased) and their small baby were residing and the incident took place during the night of 25/26.12.2008. As per the complainant's contention, at about [SECTION].30 a.m. on 26.12.2008, he received the information from the mobile phone of the appellant/accused to his mobile phone informing that the deceased committed suicide and asking him to come immediately. In turn, P.W.1- complainnant requested his relatives i.e., P.Ws.3 and [SECTION] informing them about the message received from the appellant and asking them to go to the said place immediately and he will come later as it may take some time. It is no doubt true, looking to the evidence of P.Ws.3, [SECTION] and other prosecution witnesses, they reached the place at about 8.00 or 8.30 a.m. in the morning, and when the complainant and his wife reached the spot, it was 10.30 a.m. in the morning, by which time the police were already present at the spot. But it has come on record through the mouth of the witnesses on the side of the prosecution that when they had been to the spot, the residential house of the appellant was under lock from outside and it is only after the arrival of appellant/accused to the spot at about 10.30 a.m., the accused was having the key of the lock and with the help of the said key, the accused himself opened the lock, and thereafter everybody went inside the house and saw the dead body. It is no doubt true that a suggestion was made to the prosecution witnesses that the accused was not at all in the house during that night and he had been to Koppal and came back at about 10.30 a.m. on 26.12.2008, but, the said suggestion has been denied by all the witnesses. The prosecution witnesses, viz., PW.1-[ENTITY], PW.2- [ENTITY], PW.3-[ENTITY] and PW.5-[ENTITY] have consistently deposed in their evidence that the accused was having the key of the said house and he opened it when he came along with the police at about 10.30 a.m. Therefore, looking to these materials placed on record during the course of trial, it clearly goes to show that the house was under lock from outside till it was opened at 10.30 a.m. by the accused with the help of the key that he was having. Therefore, till the door was opened at 10.30. a.m., even the police and other persons, who had gathered in front of the house, were not able to know exactly what incident that had taken place. Whether it was a suicide or it was a homicidal death, absolutely there was no information till that time to the police. Apart from that, looking to the decision of the Hon'ble Apex Court in the case of [ENTITY] (supra), in the Head Note 'A' at para 3, it is observed by their Lordships as under:
"However, where information received does not disclose a cognizable offence a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not - Also, matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches in initiating criminal prosecution are illustrations and not exhaustive of all cases which may warrant preliminary inquiry."
Therefore, in this case, as we have already stated above, the incident took place in the residential house. As per the evidence of the prosecution witnesses, the house was under lock till 10.30 a.m. There was no definite information to the police that a cognizable offence had taken place. This is why because, as per the say of the complainant-PW.1, accused informed PW.1 at [SECTION].30 a.m. on 26.12.2008 that she (deceased) committed suicide, but it has come in the evidence of the prosecution witnesses that the accused, at one stretch, informed them that she (deceased) committed suicide by hanging and, at another stretch, he informed them that that she consumed something. Looking to this material also, what exactly had happened was not known to anybody. Therefore, looking to the facts and circumstances in the decisions relied upon by the learned counsel for the appellant/accused and the facts and circumstances of the case on hand, they are not exactly one and the same. The criteria in respect of the offences that may take place on the open ground and at some open place cannot be the same as that of the offence in the present case, which has taken place in the residential house where only the couple were residing with their small kid. There may be some delay, but in view of the reasons and the evidence that we have discussed above, we are of the clear opinion that Exs.P.1-complaint is not hit by [SECTION] of [ACT], and it cannot be said that Ex.P.1 can be considered only as a statement recorded under [SECTION] of [ACT] during investigation. Therefore, the decisions relied upon by the learned counsel for the appellant will not come to the aid and assistance of the appellant.
17. Looking to the cross-examination of the prosecution witnesses, it is the defence of the accused that his wife [ENTITY] committed suicide. But looking to the postmortem report-Ex.P23, the Doctor who conducted the autopsy noticed the external injuries as under:-
"Continuous oblique imprint abrasions [SECTION] in numbers with bruising in between and surrounding them are present over front of neck which are reddish brown in colour dry and parchment like. These imprint abrasions are round to oval in shape and measure 1.5 c.m. in diameter. The surrounding area is bruised and congested. The upper end of then continuous abrasion with bruise starts from a point 5 c.m. below symphysis mark, 5 c.m. lateral to midline towards right side above superior border of thyroid cartilage. It traverses downwards obliquely towards left crossing midline at the level of thyroid cartilage and ends at a point 8 c.m. below symphysis menti [SECTION] c.m. lateral to midline towards left side. The total area of all abrasion with bruising measures 10 X 2 c.m."
Even in his oral evidence also the Doctor-PW2[SECTION] deposed about the said injuries which are narrated in detail in the previous paragraph.
18. The Doctor has also mentioned in his oral evidence that on further dissection of the neck bruising and hemorrhage is found in superficial much corresponding to areas mentioned above of abrasion and bruising. Few hemorrhage spots are seen over thyroid gline, cartilage and surface of epiglatice. The Doctor has given the final opinion regarding the cause of death that death is due to asphyxia as a result of manual strangulation (throttling). During the course of cross-examination of PW2[SECTION], it was suggested that if a person by taking soft cloth or the saree and commits suicide by strangulation and at that time also the injuries which has been mentioned at the neck portion can be caused, but the Doctor denied the said suggestion. He also denied the suggestion that at the instance of the Investigation Officer, he has given a false report that death is because of the manual strangulation (throttling). Therefore, even looking to the cross-examination of PW2[SECTION] nothing has been elicited from his mouth that the contents of the postmortem report are false. Even it is not established in his oral evidence that he is giving false evidence. Through the mouth of some of the prosecution witnesses who are the relatives of the deceased it has also come on record that the accused informed that she committed suicide and also he informed that she consumed something. In this regard, prosecution produced the document Ex.P17 which is the FSL report. The opinion in this FSL report is as under:-
"Residue of volatile poisons, pesticides, barbiturates, benzodiazepines, toxic metal ions and anions were not detected in all the above stated exhibits.
So this Ex.P17-FSL report goes to show that the stomach contents were examined by the laboratory and found that there are no poisonous substance found.
Looking to the postmortem report so also the oral evidence of PW2[SECTION] and the document Ex.P17, it completely overrules the possibility of the deceased committing suicide by strangulation or committing suicide by consumption of any poisonous substance.
Therefore, the accused was not able to establish that the death is because of suicide and on the contrary these materials and the other oral evidence of the relatives of the deceased namely the parents and PW3, [SECTION] and 5 go to show that it is a homicidal death and not the suicidal death.
19. The main defence of the appellant-accused is that on 25.12.2008 from morning at about 9.00 or 9.30 a.m. he was not present in the house till his return at about 10.30 a.m. on 26.12.2008, as he had been to Koppal along with the child. So the appellant took the defence of plea of alibi that he was present elsewhere and not at the spot of the incident. The deceased and the accused are none other than the married couple having a small kid from their wedlock. So the normal presumption that the husband and wife along with their kid were residing together in the said residential house even during the night when the incident took place. But when the accused took the specific defence of plea of alibi heavy burden is casted on the appellant-accused to establish the said defence with cogent and acceptable materials. It is no doubt the appellant-accused got himself examined as DW1. In his evidence, he deposed that in 2008, he was working as Junior Engineer in the Electrical Department at Dharwad Office within the Hubballi Mahanagar Palike. At that time he was residing along with his wife at Dharwad/[ENTITY]. 20- 25 days earlier to the incident himself and his wife- [ENTITY] came to that rented house. As there was a function in the house of the owner of the house of [ENTITY] the said owner informed the accused to vacate the said house. Hence, for a period of one month he shifted his residence to the house situated at Gulaganjikoppa. He further deposed that on 25.12.2008 morning at 9.00 to 9.30 a.m. he went to Koppal along with his son [ENTITY]. He came to know about the death of his wife on 26.12.2008 at about 6.00 to 6.30 a.m. and at that time he was at Koppal. At that time [ENTITY] the owner of his house and his brother-in-law [ENTITY] phoned to him and informed that [ENTITY] committed suicide by hanging. His wife has also having a mobile phone. Said [ENTITY] and [ENTITY] informed the news to PW1 through the mobile phone of his wife deceased [ENTITY]. So also they have informed him also about the incident with the said mobile phone. Then he came back at about 11.00 a.m. By the time he came to the spot, his in laws and his relatives at Hubballi and [ENTITY] also came to the spot. He further deposed that on 25.12.2008 at 9.00 p.m. PW1 informed deceased [ENTITY] that her younger sister [ENTITY] eloped with somebody. His wife was very sensitive and after hearing that her sister eloped with somebody she committed suicide. He further deposed that half an hour after his arrival to the spot the police came to the said place. He has also deposed that he has not given ill treatment to his wife in connection with the dowry amount and false case has been booked against him. During the course of cross-examination, it was suggested to DW1 that he is giving false evidence that on 25.12.2008 itself he had been to Koppal along with his son. But DW1 denied the said suggestion. It was also suggested to DW1 that on 25.12.2008 he along with his wife went to [ENTITY] to the relatives house namely [ENTITY]-P.W.5 and [ENTITY] PW13 and at that time deceased complained against him that he is giving ill-treatment to her in connection with the dowry amount and PW5 and 13 advised him not to do like that, but DW1 denied the said suggestions. When it is seriously challenged by the prosecution that he had not been to Koppal and it is the contention of the prosecution that during the night on the day of the incident he was very much present in the house, the accused has to place acceptable material to show that he was at Koppal during that night. In this regard except his oral say that he had been to Koppal on 25.12.2008 along with his son, there is no supporting material. If he had traveled to Koppal either by train or by bus or through any other vehicle at least he could have produced the tickets to show his travel to Koppal and when it is his contention during his oral evidence that his wife was also having mobile phone with the said mobile phone the owner of his house [ENTITY] and his brother-in-law [ENTITY] phoned to his mobile and informed at about 6.00 or 6.30 a.m. about suicide committed by [ENTITY] he could have produced the call details which he has not done. Had he produced the call details even the location of the mobile phone used at that movement of time could have been came to be known by the police as well as the court trying the matter. He could have examined the owner of his house [ENTITY] and his brother-in-law [ENTITY] to prove the said contention which he has not done. Apart from that it is the oral evidence of PW5 and 13 that on 25.12.2008 the accused along with his wife came to [ENTITY] and at that time the deceased complained before them as against her husband the accused that he is giving ill-treatment and harassment to her in connection with the dowry amount PW5 and 13 advised him not to do like that. Then he went back on the same day along with his wife. Even during the course of cross-examination of PW5 and 13 nothing has been elicited from their mouth to disbelieve their version about the accused coming to them along with his wife to [ENTITY] on 25.12.2008. Apart from that looking to his oral evidence the appellant-accused deposed that at about 6.00 or 6.30 a.m. on 26.12.2008 he came to know about the suicide of his wife when he was informed by [ENTITY] and [ENTITY] to his mobile through the mobile phone of his wife [ENTITY]. Even with regard to that also he could have produced some documentary proof, which he has not done. Apart from that looking to the oral evidence of PW1[SECTION] Smt.[ENTITY], who is the landlady of the accused and deceased, deposed in her evidence in her examination-in-chief that in the year 2008 accused was staying in her house as tenant along with his wife and one small kid. She further deposed that on 25.12.2008 during the day time nobody was present in the house of the accused, but on that day at about 9.00 or 9.30 p.m. accused along with his wife and child came back to the house at 9.30 p.m. when she was watching the Television she noticed that accused came inside the house and then went into his house and she does not know what has happened during the night thereafter and in the morning at about 8.30 a.m. sister of the deceased [ENTITY] came and enquired whether [ENTITY] is there or not. She has shown the house to her, but it was locked from outside. When she was also cross-examined by the Public Prosecutor she admitted the suggestion that in the morning at about [SECTION].00 a.m. she woke up after hearing the weeping sound of [ENTITY], the son of the deceased. She has also admitted the suggestion that at that time she has seen the accused going out of his house along with his son passing infront of the house of landlady PW1[SECTION]. She further deposed that as the child was weeping she felt that he might have taken the child to console the child. Even in the cross-examination by the defence she denied the suggestion that she is falsely deposing that in the morning accused came along with his son and opened the lock of the said house. She has further deposed in the cross-examination that on 25th at about 9.00 or 9.30 p.m. when they came back she was knowing that they had been to [ENTITY]. She denied the suggestion that she has not seen accused going out of the house at [SECTION].00 a.m. on 26.12.2008 along with child and she is deposing falsely.
20. So far as the evidence of prosecution witnesses that it is the accused himself, who came at about 10.30 a.m. and he himself opened the lock of the house with the key, which he was possessing, is concerned, no doubt, the Investigating Officer, [ENTITY] (P.W.26) in his cross-examination has clearly stated that P.W.1/complainant and P.W.2 the wife of the complainant, have not stated before him in their statements about the said fact. Therefore, so far as the evidence of P.Ws.1 and 2 with regard to the said aspect is concerned, it can be said that there is an omission about the said material fact and whatever P.Ws.1 and 2 have deposed before the Court about the fact that the accused came, he was possessing the key and accused himself opened the lock is an improvement in the case.
21. But regarding the fact that accused came at about 10.30 a.m. and he was having the key of the said house and it is accused himself opened the lock of the said house, which is also deposed by P.W.3-[ENTITY], P.W.5-[ENTITY], P.W.13-[ENTITY], P.W.1[SECTION]-Smt.[ENTITY], who is the landlady, in whose house accused and his wife (deceased) were residing on rental basis, and P.W.16-[ENTITY], all these five witnesses have also deposed in their evidence about the said fact, but their evidence was not at all confronted to the Investigating Officer that there is omission. Therefore, the evidence of all these five witnesses with regard to the said fact remains unchallenged. Unless and until, the said portion of the evidence of these five witnesses was confronted to the Investigating Officer, the contention of the defence that there is omission, cannot be accepted at all. Therefore, considering all these materials placed on reocrd, they clearly show that the accused was very much present in his house during the night on 25/26.12.2008 and it also shows that accused has taken false defence that he was at Koppal and he was not in the house during the night of that incident. The accused failed to establish his defence of plea of alibi that he was at Koppal.
22. The evidence of P.W.5 [ENTITY] and P.W.13 [ENTITY] show that the accused had been to [ENTITY] on 25.12.2008 and the deceased [ENTITY] complained before them against the accused stating that he is giving ill-treatment and harassment to her in connection with the amount that he has demanded from her; at that time P.Ws.5 and 13 advised the accused not to do so. Thereafter, the accused came back along with his wife and son to their rented house Gulaganjikoppa, Dharwad.
23. It is true that looking to the evidence of P.W.26, Investigating Officer, and the cross-examination of P.Ws.5 and 13, they have admitted that they have not stated in their statement before the Police during investigation the fact of accused coming to them at [ENTITY], deceased complaining against the accused before them and they advising the accused. But the evidence of P.W.1[SECTION] (landlady) is very much clear that, on 25.12.2008 during the day time nobody was there in the house of the accused; accused came during night at about 9.00 or 9.30 p.m. on the said day along with their son and they all went inside their house. Her evidence also shows that at about 3.00 a.m. on 26.12.2008 she heard the weeping sound of the son of accused and at about [SECTION].00 a.m., she has seen the accused going out of his house along with the said child. She has further deposed that she was under the impression that as the child was weeping, the accused might have taken out the child to console the child. So this evidence of the landlady, who is neighbourer, and who had an occasion to know about what is happening in the house of the accused, remains unchallenged. Even during the course of cross-examination, nothing has been elicited from her mouth so as to disbelieve her version. Therefore, these materials also show that on 25.12.2008 the accused came to the house along with his wife and son and he stayed in his house during that night.
2[SECTION]. The averments in the complaint, so also, the oral evidence of P.Ws.1 to 5 and 13, the relatives of the deceased, show that accused used to give ill-treatment to the deceased in connection with the amount that he has demanded and insisting the deceased to go to her parental place and bring money. P.Ws.1 and 2, the parents of the deceased [ENTITY], have also specifically deposed in their evidence that their daughter used to call them over phone and was informing about the said ill-treatment and harassment by her husband/accused. P.Ws.5 and 13 have also deposed that, deceased [ENTITY] complained before them against her husband stating that he is giving ill-treatment and harassment to her in connection with money. It is no doubt true, as we have already discussed above, there is omission regarding the said fact in the the evidence of P.Ws.5 and 13, but whether really the deceased along with her husband had been to [ENTITY] to the house of P.Ws.5 and 13 on 25.12.2008 is also to be considered and appreciated along with other attending circumstances in the case.
25. It is also the contention of the learned counsel appearing for the appellant that the prosecution witnesses are all related to the deceased and hence, they are interested witnesses and their evidence cannot be relied upon by the Court. In this connection, learned counsel for the appellant also relied upon the decision of the Hon'ble Apex Court in the case of [PRECEDENT]. So also, he relied upon another decision in the case of State of A.P. Vs. Pujati Ramulu reported in AIR 1993 SC 26[SECTION][SECTION] - Head Note 'C'. We have perused the judgments of the Hon'ble Apex Court. But, in the case on hand, the prosecution not only relied upon the evidence of the relatives of the deceased, but also examined Smt. [ENTITY], the landlady, as P.W.1[SECTION]. The said P.W.1[SECTION] is an independent witness and she is not all related to the deceased. The house in which the deceased and the appellant herein were residing belongs to P.W.1[SECTION] and her husband. Therefore, the contention of the learned counsel for the appellant that the prosecution case rests on the evidence of interested witnesses cannot be accepted at all.
26. As we have already discussed above, the materials also support the contention of the prosecution that the deceased had been to [ENTITY] along with her husband on 25.12.2008. Therefore, the evidence of P.Ws.5 and 13 that deceased complained against her husband before them about the ill-treatment and harassment, amounts to oral dying declaration, which is a relevant piece of evidence under the provisions of [SECTION] of the [ACT].
27. Another important aspect of the case is that, this is the incident, which took place inside the residential house, wherein the accused, deceased and their small kid only were residing and that too, the incident took place during intervening night on 25/26.12.2008; so far as the defence of the accused that he was not at all in the house during that night and took the plea of alibi is concerned, we have already discussed in detail with reference to the material placed on record and we have already come to the conclusion that the accused has utterly failed to establish his plea of alibi and hence, he was very much present in the house during that night. When that is so, there is burden on the part of the accused person to explain satisfactorily as to how and why the said incident took place inside their house; it is not his defence that somebody came to his house during his absence and he might have committed the murder of his wife.
28. With regard to the explanation of the accused by way of defence during the course of trial and by suggesting to the prosecution witnesses at the time of cross-examination that, as [ENTITY], the sister of the deceased, eloped with someone and when the same was intimated to the deceased [ENTITY] and as [ENTITY] was very sensitive, she felt very bad, so she has committed suicide is concerned, the said defence story has been denied by all the prosecution witnesses.
29. Apart from that looking to the medical evidence about which we have discussed above, in detail, it rules-out the possibility of deceased committing suicide and on the contrary, the medical evidence also establishes that it is a case of murder. Under such circumstances, the burden is upon the accused person to explain how the incident has taken place inside the house. In this connection, learned Addl. SPP has relied upon the decision of Hon'ble Apex Court in Crl.Appeal.No.13[SECTION]1/2005 in the case of [PRECEDENT], the relevant portion is paragraph No.12, which reads as under:
"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 19[SECTION][SECTION] AC 315 quoted with approval by [ENTITY], J. in [PRECEDENT]). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind [SECTION] of the [ACT] which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of [SECTION] of the [ACT] there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
30. Therefore, even looking to the principle enunciated in the said decision, it is the accused, who has to explain about the incident, but looking to the defence set up by the accused and the cross- examination of the prosecution witnesses, he has utterly failed to establish his defence that it is a case of suicide and even he has also failed to establish that he was not in the house during that night and he was at Koppal. Hence, it is not only the non-explanation of the accused about the incident, but he has taken a false defence only with an intention to escape from the clutches of law.
31. The evidence of the Doctor, who conducted autopsy, and the contents of the PM examination, consistently show that it was a homicidal death by manual strangulation (throttling). Hence, we are of the clear opinion that it is the accused and accused alone, who is responsible for the death of the deceased [ENTITY].
32. So far as the contention of the defence that there is a delay in lodging the complaint is concerned, the materials show that the alleged offence took place during night in between 25.12.02008 and 26.12.2008 and as per the say of the complaint/P.W.1., the accused informed him about the incident through his mobile to the mobile of the complainant at about [SECTION].30a.m. on 26.12.2008 and as it was difficult for P.W.1 to go immediately, he informed P.Ws.3 and 5 to go to the spot immediately and they will come little later. The other materials, about which we have already made discussion, show that even though P.Ws.3, 5 and some other relatives of the deceased came to the spot, the house was under lock from outside and it is only at about 10.30a.m. the accused came and with the help of the key, which he was having, opened the lock, and till then, the persons, who were gathered there, were not able to know exactly what is the nature of the offence, whether it is suicide or it is a homicidal death. In this connection, it is relevant to refer to the evidence of D.W.1 (accused), who has deposed at paragraph No.2 of his deposition that on 26.12.2008 at about 6.00 to 6.30 a.m. he came to know about the incident that his wife [ENTITY] expired. He has further deposed that his land owner [ENTITY] and his brother-in-law [ENTITY] phoned to him and informed him that his wife [ENTITY] committed suicide. After coming to know about the incident, himself, his parents, his brother and his son all came to the spot at about 11.00 a.m. He has also deposed that after half an hour of his arrival to the spot, Police came to the spot. So this evidence of the accused himself shows that Police arrived to the spot only after 11.30 a.m. The complaint was filed at 1.00 p.m. and there is gap of only 1 hour. We have discussed about referring to the decision of the Hon'ble Apex Court in [ENTITY] vs. Government of Uttar Pradesh and others, that in case of maternal dispute/family dispute/commercial dispute/corruption cases, the nature of cases requires some sort of preliminary enquiry. Therefore, looking to these aspects of the matter, it cannot be said that there is an abnormal unexplained delay in the case. It is no doubt true, so far as lodging of the complaint by P.W.1 is concerned, there are some minor discrepancies in the evidence of P.W.1 and other prosecution witnesses, but they will not go to the very root of the case to come to the conclusion that the entire case of the prosecution is false and the accused has been falsely implicated in the case. The Court has to consider the entire materials placed on record and to see what is the cumulative effect emerging out of that and the Court cannot base its findings by considering the materials in isolation. Therefore, we are of the opinion that there is no unexplained delay in lodging the complaint in this case and hence, the contention of the defence in this regard cannot be accepted at all.
33. During the course of arguments, learned counsel for the appellant has made the alternative submission that as the accused had been to [ENTITY] with his wife on 25.12.2008 to the relatives house i.e., P.Ws.5 and 13, [ENTITY] and [ENTITY] respectively, and as the deceased [ENTITY] complained before them that accused is giving ill-treatment and harassment to her in connection with the amount demanded by the accused and as P.Ws.5 and 13 scolded and advised the appellant/accused not to do like that and because of that reason, in grave and sudden provocation, the accused might have committed the said offence and there is no intention on the part of the accused to commit the murder. It is further contended that at the most the case falls under [SECTION] of [ACT] i.e. culpable homicide not amounting to murder and hence, he has submitted that the appellant has already undergone seven years custody period and same may be taken into consideration while considering the sentence, but regarding this contention of the learned counsel for the appellant, firstly, the said contention supports the case of the prosecution that on 25.12.2008 accused had been to [ENTITY] along with the deceased to meet P.Ws.5 and 13 and deceased made complaint against her husband and in that regard P.Ws.5 and 13 advised the appellant/accused. Apart from that during the course of trial, it is not the defence of the accused that there was a grave and sudden provocation to the accused and because of which, he committed the alleged incident, but on the contrary, the defence of accused is that he was not at all present at the spot, he was elsewhere and he is totally unconnected with the said incident. Under such circumstances, and in the absence of specific defence regarding the grave and sudden provocation, only on the basis of the arguments advanced by the learned counsel for the appellant by way of alternative submission, it cannot be accepted and hence, it is hereby rejected.
3[SECTION]. Looking to the entire materials placed on record and in view of our above discussions, we are of the opinion that the trial Court has properly considered each and every aspect of the matter, both oral and documentary, and rightly came to the conclusion in convicting the appellant/accused. Therefore, neither there is any illegality in the judgment of the trial Court nor there is any perverse or capricious view taken by the trial Court in coming to the said conclusion. There are no legal and valid grounds to interfere into the matter either to set-aside the judgment and order of conviction or to modify the same. Hence, there is no merit in the appeal, accordingly, same is hereby dismissed.
Even with regard to the sentence is concerned, we are of the opinion that sentence imposed by the trial Court is also reasonable and proper.
JUDGE Sd/-
JUDGE [ENTITY]/CLK/KMS