Case: N. Shivakumar Vs. State of Karnataka

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.